HomeMy WebLinkAbout12/11/2012 06 Adult Entertainment: YMC Amendments 15.09.200 and Chapter 5.30BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting of: December 11, 2012
ITEM TITLE:
SUBMITTED BY:
CONTACT
PERSON/TELEPHONE:
SUMMARY EXPLANATION:
Two Ordinances: (A) Ordinance amending YMC 15.09.200;
and (B) Ordinance amending Chapter 5.30 YMC;
amending zoning regulations and licensing requirements
for adult entertainment businesses and uses, respectively.
(Closed Record Hearing.)
Mark Kunkler, Senior Assistant City Attorney
Mark Kunkler, Senior Assistant City Attorney/575-6030
The Yakima Planning Commission has held an Open Record Public Hearing on November
28, 2012, and has adopted findings of fact, conclusions of law, and recommendation that
the City Council approve proposed amendments to YMC 15.09.200 and Chapter 5.30 YMC,
amending zoning regulations and licensing requirements for adult entertainment businesses
and uses, respectively. Attached as documents to this item are the proposed Ordinances
amending such provisions, together with a memorandum summarizing the amendments and
identifying record documents supporting the recommended amendments.
This matter comes to the City Council as a Closed Record Hearing. Public comment may be
received on any matter already in the record, but no new evidence may be received. If
adopted, the Ordinances contain provisions providing that the existing moratorium adopted
July 17, 2012 pursuant to Ordinance No. 2012-026 will terminate on the date the
amendments become effective.
Resolution
Contract:
Contract Term:
Insurance Required? No
Funding
Source:
APPROVED FOR
SUBMITTAL:
Ordinance X
Mail to:
Amount:
Other
(specify)
Expiration Date:
Phone:
City Manager
STAFF RECOMME ON>> _
C uct'Closed Recbrd Hearing and adopt-Ordinances. -
BOARD/COMMISSION RECOMMENDATION:
The Planning Commission has conducted an Open Record Public Hearing on November 28,
2012 and recommends City Council approval.
ATTACHMENTS:
Click to download
❑ Memo to Council 11-30-12
❑ Proposed Ord to YMC 15.09.200
❑ Proposed Ord to YMC 5.30
E Complete Record Adult Ent Bus Amdts-Part 1
❑ Complete Record -Adult Ent Bus Amdts-Part 2
❑ Complete Record -Adult Ent Bus Amdts-Part 3
CITY OF YAKIMA
LEGAL
DEPARTMENT
200SouthThird Street, Yaldn Washington 98901 (509).575-6030 Fan (509)575-6160
TO:
MEMORANDUM
November 30, 2012
Honorable Mayor and City Council
Tony O'Rourke, City Manager
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Adult Entertainment — Recomm•
endation of Planning Commission — Closed
Record Hearing (December 11, 2012)
On November 28, 2012, the Yakima Planning Commission held an Open Record Public
Hearing on proposed amendments to YMC 15.09.200 (zoning) and Chapter 5.30 YMC
(licensing). At the conclusion of the hearing, the Planning Commission adopted Findings of
Fact, Conclusions of Law and Recommendation to the City Council to approve the
amendments. A Closed Record Public Hearing is set before the City Council at 7:00 p.m. on
Tuesday, December 11, 2012.
Closed Record Hearing.
A Closed Record Hearing is a hearing limited to the record compiled and considered by the
Planning Commission. Members of the public may comment on matters already in the record,
but may not introduce new evidence.
Proposed Amendments — Zoning Code Provisions and Licensing.
Two sections of the Yakima Municipal Code are under discussion for possible amendment.
These sections are: (a) YMC 15.09.200 pertaining to zoning regulations for adult entertainment
businesses and land uses, and (b) Chapter 5.30 YMC pertaining to business licensing of such
uses. The proposed amendments are included in the agenda materials and are summarized as
fol lows:
A. Zoning Amendments. YMC 15 09.200 has been modified to eliminate the
review procedure found unconstitutional by the United States District Court in Muffett v. City of
Yakima, Case No. CV -10 -3092 -RMP (E.D. Wash. July 17, 2012). The judge ruled that the
review for "compatibility" was unconstitutional as a restraint on freedom of speech because it
was not sufficiently based on objective standards and left too much discretion to the decision -
maker.
Memorandum to Honorable Mayor and Members of the City Council
November 30, 2012
Page 2
Ordinances enacted by other jurisdictions were reviewed. Many of these cities and counties
also contained "proximity" limitations significantly greater that the provisions in YMC 15.09.200.
For example, many cities have adopted provisions stating that adult entertainment uses cannot
locate closer than 1,000 feet from residentially zoned properties, schools, parks, churches and
other protected uses. YMC 15.09.200 has a 500 -foot buffer limitation. The studies of adverse
secondary effects associated with adult business uses conducted by several cities and counties
in the State of Washington and across the United States support a finding that significant
proximity limitation buffer zones reduce or ameliorate such adverse secondary effects.
In response to the above, the following proposed changes were made to YMC 15.09.200:
(a) . Elimination of "Compatibility" Review. The 'compatibility review"
mechanisms of the existing code are eliminated. Instead, adult businesses uses are
deemed permitted in the M-1 Light Industrial zones of the City. Included in the record is
a Map showing the location of the M-1 Zone, as well as those portions of M-1 zoned
property that could be available for possible siting of an adult entertainment business.
(b) Increase of "Buffer" Proximity Limitations. The proposed amendment increases
the 500 -foot buffer to 800 feet. Thus, the amended provisions provides that no adult
entertainment business can locate closer than 800 feet from the outside boundary of
any parcel that contains a public or private school, daycare facility, church or other
house of worship, public park, public library, residential zoning district. Additionally, the
amendment provides that no adult entertainment business can locate closer than 800
feet from the boundary of any city adjacent to the City of Yakima.
(c) Amended Review Procedures. The review procedures have been amended
to eliminate the review for compatibility with existing neighborhoods. Instead, the new
provisions state a series of objective criteria to be reviewed (i.e., compliance with
development standards, zoning, proximity limitations, appropriate engineering and traffic
plans).
(d) Miscellaneous Several amendments are inserted throughout the code
section to bring such into conformity with new proposed licensing requirements in
Chapter 5.30 YMC (described below). For example, new signage requirements are
included, as well as provisions dealing with hours of operation.
The Map included in the record shows that imposition of the geographic controls leaves
approximately 157 parcels totaling about 400 acres available for possible use for adult
entertainment businesses. The Supreme Court has held that an incidental restriction on
protected speech is justified under the First Amendment if, in addition to serving a substantial
legitimate purpose, it allows reasonable alternative channels for sexually explicit
communication. Renton v Playtime Theatres, Inc. (1986) 475 US 41, 89 L Ed 29, 106 S Ct 925,
12 Media L R 1721, reh den 475 US 1132, 90 L Ed 205, 106 S Ct 1663. In the following case,
Memorandum to Honorable Mayor and Members of the City Council
November 30, 2012
Page 3
the -court held that -an ordinance restricting the location of adult businesses t� industrial zones
did not unreasonably restrict access to adult speech. As reported in 10 A.L.R.5th 538, Section
10(a):
A county zoning ordinance which limited adult uses as of right to industrial zones did not
unreasonably restrict public access to constitutionally protected communication, the
court held in County of Cook v Renaissance Arcade & Bookstore (1988) 122 III 2d 123,
118 11I Dec 618, 522 NE2d 73, app dismd 488 US 882, 102 L Ed 2d 201, 109 S Ct 209.
The county had obtained an order against several adult bookstore operators enjoining
them from conducting business in violation of the ordinance, which made nonconforming
uses subject to amortization. The adult bookstore owners argued that permissible
locations for adult uses must be adequate and reasonably able to house the operation
of an adult business in order to meet constitutional standards. They contended that they
could not operate their businesses on land containing railroad yards, tankfarms, and
other industrial facilities, and that in any case, industrial land was unavailable; that
industrial zones were ill suited to the operation of retail business because they must
compete with factories and industrial facilities for available space; that public water and
sewer service was not provided and would be costly to supply; and that the zones were
nonconducive to operating a consumer -oriented, small retail or commercial store. The
court noted that the ordinance must refrain from effectively denying a reasonable
opportunity to open and operate an adult business within the city. The ordinance
provided approximately 78 industrially zoned areas containing numerous available sites,
observed the court. The testimony of the expert witnesses had conflicted, the court said,
but the county's witness had testified that a substantial quantity of privately owned,
industrially zoned land was available for purchase and had found many sites suitable
and available; he had also testified that sewer and water facilities could be provided
privately if they were not available in the public system. The court concluded that the
ordinance left the bookstore owners with a reasonable number of suitable sites in which
to relocate, noting that its decision was consistentwith others based on the standard of
reasonable alternative channels of communication.
B. Adult Entertainment — Regulatory Licenses — Summary of Amendment.
Chapter 5.30 YMC states the current business licensing and regulatory requirements for adult
entertainment businesses. In conformity with other codes from cities throughout the State of
Washington, and in response to public comment previously received from citizens of the City of
Yakima, the following changes are proposed:
(a) Expanded Definitions. Several new or expanded definitions are proposed.
(b) License Prohibited to Certain Classes New section 5.30.012 defines those
classes prohibited from receiving an adult entertainment license. These include
persons under eighteen years of age, partnerships (unless each partner is qualified to
receive a license), a corporation (unless all officers and directors are qualified to
' Memorandum to Honorable Mayor and Members of the City Council
November 30, 2012
Page 4
receive a license), persons who do not have a place of business qualifying under the
applicable fire and building codes), etc.
(c) Separate Licenses. Separate licenses are required for an adult entertainment
establishment, adult entertainment manager, and adult entertainer.
(d) Operation Regulations. New provisions are included: regulating distance of
entertainers from patrons; height of stage; stage railing requirements; prohibition of
"warning systems" warning of impending police or inspector entrance; display of
license; personal interviews of operators, managers and entertainers prior to
issuance of license.
(e). Standards of Operation. A new section is added defining standards of
operation. These standards regulate distance between entertainers and patrons,
prohibit direct tipping, prohibit any dance or performance unless onstage, regulate
lighting, record keeping, inspections, and other operational matters.
C. Record Documents.
The record in this matter includes the following:
(a) Copy of court decision in Muffett v. City of Yakima, et aL, Case No. CV -10 -3092 -
RMP (E.D. Wash. July 17, 2012).
(b) Ordinance No. 2012-26 imposing moratorium on adult entertainment uses,
adopted as an emergency ordinance on July 17, 2012.
(c) Resolution No. 2012-113 adopting Findings of Fact for Moratorium regarding
adult entertainment adopted pursuant to Ordinance No 2012-26.
(d) Memorandum dated August 7, 2012, from Mark Kunkler, Senior Assistant City
Attorney, to City Council, regarding Findings of Fact in support of Resolution No. 2012-
113.
(e) Memorandum dated October 1, 2012, from Mark Kunkler, Senior Assistant City
Attorney, to Planning Commission, adult entertainment issues.
(f) Memorandum dated November 6, 2012, from Mark Kunkler, Senior Assistant
City Attorney, to Planning Commission, regarding proximity standards for adult
entertainment businesses — adverse secondary effects.
(g) Proposed amendments to YMC 15.09.200 regarding zoning regulations for adult
entertainment business uses, together with Maps showing effects of a 500 -foot buffer
and an 800 -foot buffer.
Memorandum to Honorable Mayor and Members of the City Council
November 30, 2012
Page 5
(h) Proposed amendments to Chapter 5.30 YMC regarding licensing and regulation
of adult entertainment businesses.
(i) Materials provided by the Kittitas-Yakima Women of Vision, dated August 16,
2012.
(j) Notices of Public Hearing for hearing before the City Council and before the
Planning Commission and the minutes of such meetings.
Additionally, copies of the following reports regarding adverse secondary effects associated
with adult entertainment businesses have previously been reproduced and provided to the
Planning Commission:'
(a) Centralia, Washington, "Crime Risk in the Vicinity of a Sexually Oriented
Business: A Report to the Centralia City Attorney's Office — Revised" (2004).
(b) Des Moines, Washington, "Adult Use Study" (1984).
(c) Bellevue, Washington, "Location of Adult Entertainment Uses — Background
Materials" (1988)
(d) Kelso, Washington, "Zoning for Sexually Oriented Businesses" (1993).
(e) Kent, Washington, "Adult Use Zoning Study" (1982).
(f) Seattle, Washington, "Adult Cabarets in Seattle" (2006).
(g) Fort Worth, Texas, "Effects of Land Uses on Surrounding Property Values"
(2004).
(h) 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).
(j) Los Angeles, California, "Crime Related Secondary Effects of Sexually -Oriented
Businesses: Report to the City Attorney" (2007).
' Copies of the Reports compiled by the Cities of Garden Grove, California, Fort Worth, Texas, and Des
Moines and Seattle, Washington, have been included in this agenda item as example reports. Copies of
the other reports are available for inspection.
Memorandum to Honorable Mayor and Members of the City Council
November 30, 2012
Page 6
-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:
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);
Memorandum to Honorable Mayor and Members of the City Council
November 30, 2012
Page 7
Minneap-olis, Minnesota, "An Analysis of-theReIb•
tionship 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).
Yakima County, Ordinance No. 8-2012, and Resolution No. 382-2012
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Proposed Adult Business Potential Locations 2012
800 Foot Buffer
ORDINANCE NO. 2012 -
AN ORDINANCE _ relating to land use regulation; amending Section 15.09.200 of the
Yakima Municipal Code regarding_adult entertainment businesses -
and uses. - -
WHEREAS, the City Council has previously adopted ordinances regulating land
uses for adult entertainment businesses and uses, all as codified at Section 15.09.200
YMC; and
WHEREAS, the City Council has previously adopted a moratorium pursuant to
Ordinance No. 2012-026 prohibiting the receipt of applications, and processing and
issuance of license and land use permits for adult entertainment businesses and uses
pending development and adoption of comprehensive land use and licensing regulations
for such uses; and
WHEREAS, the City of Yakima Planning. Commission has held an open record
public hearing on November 28, 2012 regarding the proposed amendment of YMC
15.09.200, which amendment is attached hereto as Exhibit "A" and incorporated herein
by this reference, and having considered all evidence and testimony produced therein
and the record in this matter, has issued its recommendation that the City Council adopt
the proposed amendment; and
WHEREAS, the City Council, having received and reviewed the record herein
together with the recommendation of the Planning Commission as supported by its
adopted findings of fact and conclusions of law, and the City Council, having conducted
a closed record public hearing on December 11, 2012 as required by law and city
procedure; and
WHEREAS, the City Council finds and determines that the recommendation of
the Planning Commission should be accepted, and that the findings of fact and
conclusions of law supporting such recommendation should be adopted and approved;
and
WHEREAS, the City Council finds and determines that approval of such
amendment will provide necessary and appropriate mitigations, tailored to the needs of
the community, for amelioration of identified adverse secondary effects associated with
adult entertainment businesses and uses, and that sufficient properties and potential
locations remain after imposition of such mitigations for the development and operation
of adult entertainment businesses and uses; and
WHEREAS, the City Council finds and determines that approval of such
amendment is in the best interests of residents of the City of Yakima and will promote
the general health, safety and welfare; now, therefore
1
BE IT ORDAINED BY THE CITY OF YAKIMA:
_ Section t ` The recommendation -. the. Planning C_ornmis4ion_L is, hereby___ _.
ecevec- and=i pproved,Ta�c the::ffnding`s offactand=se au tons-of- 1pporting-such
recommendaon'are approved aril adopted as the findings and conclusions of the City
Council herein.
Section 2. Section 15.09.200 of the Yakima Municipal Code is hereby
amended to read as set forth in Exhibit "A" attached hereto and incorporated herein.
Section 3. This ordinance shall be in full force and effect 30 days after its
passage, approval, and publication as provided by law and by the City Charter.
Section 4. Upon the effective date of this Ordinance and the amendment of
YMC 15.09.200 adopted and approved herein, the moratorium implemented pursuant to
Ordinance No. 2012-026 shall expire.
PASSED BY THE CITY COUNCIL, signed and approved this 11th day of December,
2012.
ATTEST: Micah Cawley, Mayor
City Clerk
Publication Date:
Effective Date:
YAKIMA MUNICIPAL CODE
15.09.200 Adult business.
A. Purpose. All adult business uses shall comply with the requirements of this section. The purpose and
intent of requiring standards for adult business uses is to mitigate the adverse secondary effects caused
- -
= = by such facilities and to maintain compatibility with other land uses and services,in furtFiei ce Of this 17
purpose, this section is intended to regulate the location of adult entertainment and commercial
enterprises in order to promote the health, safety and welfare of all citizens and in order to preserve and
protect the quality of life in and around all neighborhoods through effective land use planning and
reasonable regulation in light of the findings set forth herein and the facts and evidence contained in the
legislative record.
The standards established in this section shall apply to all adult business uses. Adult business uses are
recognized as having objectionable operational characteristics, particularly when they are aggregated in
one area. Since these uses have a harmful effect upon adjacent uses, and residential and commercial
uses in particular, special regulation of adult business uses is necessary to avoid adverse effects arising
from adult businesses so they will not contribute to the blighting or downgrading of the surrounding
neighborhood. It is the intent of this section to allow these uses to exist in a dispersed manner within
specific zoning districts.
The standards established in this section shall not be construed to restrict or prohibit the following
activities or products: plays, operas, musicals, or other dramatic works; classes, seminars or lectures for
educational or scientific purposes; nudity within a locker room or other similar facility used for changing
clothing in connection with athletic or exercise activities; nudity within a hospital, clinic or other similar
medical facility for health-related purposes; and all movies and videos that are rated G, PG, PG -1 3, R and
NC -1 7 by the Motion Picture Association of America.
B. Special Definitions Specific to This Section. For the purpose of this section, the following words and
phrases shall have the following meanings:
1. "Administrative official" means the director of the community development department of the
city.
24. "Adult arcade/viewing booth" means any booth, cubicle, stall, or compartment that is
designed, constructed, or used to hold or seat patrons and is used for presenting adult media for
observation by patrons therein. This definition does not apply to a theatre, movie house,
playhouse, or a room or enclosure or portion thereof that contains more than six hundred square
feet.. Those greater than six hundred square feet shall be considered an adult motion picture
theatre.
32. "Adult business uses" means any uses on premises to which the adult public, patrons or
members are invited or admitted or wherein any employee or other person provides, exhibits or
1
performs adult entertainment or operates an adult commercial establishment, to or for a member
of the adult public, a patron or a member, and specifically includes the list below:
a. Adult commercial establishments;
b. Adult_mQtion picture°;theatres;: `
c. Adult arcades/viewing booths;
d. Adult cabarets, dance halls and dance studios.
Also refer to specific prohibited uses identified in subsection E of this section.
43 "Adult cabaret/dance hall" or "dance studio" means a building or portion of a building
regularly featuring dancing or other live adult entertainment if the dancing or entertainment
provided is distinguished or characterized by an emphasis on the exhibiting of specified sexual
activities or specified anatomical areas for observation by patrons therein (YMC Chapter 5.30).
54. "Adult commercial establishment" means any premises on or where adult media or
sexually oriented toys or novelties are the majority of articles or items for sale and/or rent.
Majority shall be determined to exist when forty percent or more of the establishment's gross
public floor area is devoted to adult media or sexually oriented toys or novelties. Commercial -
establishments where the sale and/or rent of adult media or sexually oriented toys or novelties
do not account for forty percent or more of the establishment's gross public floor area shall
adhere to the standards set forth in subsection (C)(2) of this section.
65. "Adult entertainment" means any exhibition or dance of any type, pantomime, modeling or
any other performance, including motion pictures, which involves the exposure to view any
specified anatomical areas or involves any specified sexual activities
76. "Adult media" means magazines, books, videotapes, movies, slides, CD-ROMs or other
devices used to record computer images, or other media that are distinguished or characterized
by their emphasis on matter depicting, describing, or relating to specified anatomical areas or
specified sexual activities.
87. "Adult motion picture theatre" means an establishment emphasizing or predominantly
showing movies that exhibit specified sexual activities.
98. "Body studio" means any premises, other than a licensed massage parlor, reducing salon,
health spa or public bath house, upon which is furnished, or which is offered to be furnished, for
a fee or charge or other like consideration, the opportunity or act of painting, massaging, feeling,
handling or touching the unclothed body or any unclothed portion of the body of another person,
or to observe, view or photograph any such activity.
2
109. Church. See definition in YMC 15.02.020.1,
11. "City" means the City of Yakima.
12. "Department" means the community development department of the city.
1349. - "Escort arid introductory service" means services provided with the intent to perform
prohibited specified sexual activities, specified sexual exhibitions or other activities prohibited in
this section.
1414. "Massage parlor" means a commercial establishment in which massage or other
touching of the human body is provided for a fee and which excludes any person by virtue of age
or sex from all or any portion of the premises in which such service is provided.
154-2. "Media" means anything printed or written, or any picture, drawing, photograph, motion
picture, film, videotape or videotape p'roduction, or pictorial representation, or any electrical or
electronic reproduction of anything that is or may be used as a means of communication. Media
includes, but is not limited to, books, newspapers, magazines, movies, videos, sound recordings,
CD-ROMs, other magnetic media, and undeveloped pictures.
164-3. Park. See definition in YMC 15.02.020.2
174-4. "Residential zoning district means the suburban residential (SR); single-family
residential (R-1); two-family residential (R-2); and multifamily residential (R-3) zoning districts as
defined in YMC Chapter 15.03.
1845. School. See definition in YMC 15.02.020.3
1 "Church" means a structure, or group of structures, which by design and construction are primarily used
for organized religious services and instruction.
2 "Park" means a public or privately owned area with facilities for active or passive recreation by the
public.
3 "School" means a structure and accessory facilities in which prescribed courses are taught. This
definition includes elementary, junior high or high schools and institutions of higher learning, but does not
include commercial schools, nursery schools, kindergartens, or day nurseries, except when operated in
conjunction with a public, private, or parochial school.
3
1944. "Sexually oriented toys or novelties" means instruments, devices, or paraphernalia either
designed as representations of human genital organs or female breasts, or designed or
marketed primarily for use to simulate human genital organs.
204-7. 'Specified anatomical areas" means (3) less than completely and opaquely -covered -
human genitals, pubicregion, buttock, andfemale breast below a point immediately above the
top of the areola; and (2) human male genitals in a discernibly turgid state, even if completely
and opaquely covered.
2144. "Specified sexual activities" means human genitals in a state of sexual stimulation or
arousal or acts of human masturbation, sexual intercourse, sodomy, or fondling or other erotic
touching of human genitals, pubic region, buttock, or female breast.
224-8. "Specified sexual exhibitions" means any exhibition, performance or dance which is
intended to sexually, stimulate any member of the public and which is conducted on a regular
basis or as a substantial part of the premises activity. This includes, but is not limited to, any
such exhibition, performance or dance performed for, arranged with or engaged in with fewer
than all members of the public on the premises at that time, with separate consideration paid,
either directly or indirectly, for such performance, exhibition or dance and which is commonly
referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing or
straddle dancing.
C. Permitted Uses. Adult business uses shall be permitted subject to the following conditions:
1. Subject to the provisions of this code and compliance with the development standards of
this section. Adult adult business uses shall be considered Class (2) permitted uses, -requiring
industrial) zoning district,
, in and only in the M-1 (light
business uses are prohibited in all other zoning districts.
Adult
2. Commercial uses approved for zoning requirements of Chapters 15.04 through 15.08 that
sell and/or rent adult media or sexually oriented toys or novelties, but for which that portion of the
establishment's gross public floor area devoted to the sale or rent of adult media or sexually
oriented toys or novelties accounts for less than forty percent of gross public floor area of the
commercial use shall:
a. Restrict persons under the age of eighteen from purchasing and/or renting the adult
items, and
b Contain those adult items in a separate area appropriately sited and signed to restrict
access to people under the age of eighteen, or behind a counter.
4
D. Development Standards. The following standards shall apply to proposed adult business uses,
permitted under this section:
1. Adult business uses shall adhere to the following standards:
Separation: Standards.
1. The parcel that contains the adult business use, and the signs relating to the use,
shall not be located within five eight hundred (800) feet of any of the following
preexisting uses or previously established districts:
a The outside boundary of any parcel that contains a public school, private
school or day care facility;
b. The outside boundary of any parcel that contains a church or other house of
worship;
c. The outside boundary of an existing public park;
d. The outside boundary of any parcel that contains a public library; aFicl
e. A residential zoning district= ; and
f. The boundary of any city adjacent to the City of Yakima.
2. The parcel that contains an adult entertainment use shall not be located within
one thousand five hundred (1,500) feet of a parcel supporting a similar adult
entertainment use as defined in this section, whether such similar use is located
within or outside the city limits.
3. The general site -screening requirements of YMC Chapter 15.07 shall apply.
4. The separation requirements stated in subsections (D)(1)(a)(1)(a) through (e) and
(D)(1)(a)(2) of this section shall be measured by extending a straight line from the
nearest point on the property line of the parcel containing the proposed adult
entertainment use to the nearest point on the property line of the parcel containing the
other adult entertainment use, school, day care, church, public park, or public library.
b. Licensing.
All adult business uses, with the exception of adult commercial
establishments, shall be subject to the licensing requirements of YMC Chapter 5.30
5
c., Hours of Operation. Any adult business use, as defined in this section, shall not
conduct or operate any business or commercial function on or around their premises
between the hours of two a.m. and eight -thirty ten a.m. of the same day.
d. Signage. Signage of adult.busises•uses:;cas definedinthis section, -shall comply with
J e_provisions of YMC Chapter -1. T wittrthe=fogowing specific-condition
1. Each adult business use shall be allowed one on -premises sign which shall be
limited to'displaying the name of the establishment, the street address, the days and
hours of operation, restrictions on the age of persons that may be admitted to the
building and the nonspecific identification of the nature of the stock -in -trade or
entertainment offered therein (e.g., "adult toys," 'adult books"). Nowhere on the
signage or on the building visible to outside passersby shall appear any verbiage,
insignias, pictures, drawings or other descriptions suggestive of sexual acts or
actions, or which represent the sexually oriented material and/or performances of the
adult entertainment use.
2. In accordance with YMC 5.30.040(5)(C), adult entertainment establishments shall
conspicuously post a readable sign at or near each public entrance which clearly
states, and is printed in letters at least one inch tall, and reads:
THS ADULT ENTERTAINMENT BUSINESS IS REGULATED BY THE CITY
OF YAKIMA. ENTERTAINERS ARE:
A. NOT PERMITTED TO ENGAGE IN ANY TYPE OF SEXUAL CONDUCT;
B. NOT PERMITTED TO APPEAR SEMI-NUDE OR NUDE, EXCEPT ON
STAGE:
C. NOT PERMITTED TO ACCEPT TIPS OR GRATUITIES IN ADVANCE OF
THEIR PERFORMANCE;
D. NOT PERMITTED TO ACCEPT TIPS DIRECTLY FROM PATRONS WHILE
PERFORMING UPON ANY STAGE AREA.
This sign shall not, for purposes of administration of this section, limit the allowed use
from having one on -premises sign as indicated in subsection (D)(1)(d) of this section.
Adult commercial establishments do not need to comply with this standard.
e. Parking. The parking standards in YMC Chapter 15.06 shall apply,to all off-street
parking for uses under this section.
f. Design Standards. Adult business uses shall conform to the following design standards:
1. Buildings, fences, or other structures which are visible from any public right-of-
way shall be of a neutral coloring and design scheme, similar to surrounding
commercial facilities.
2. All windows, entries, and other openings shall be screened and/or covered in •
such a way that no business activityass cciated with a fulf-entertainment "uses, other -
than approved outside signage, shall otherwise be visible from any public right-of-way
or other public space.
E. Prohibited Uses. Adult uses not included in the definition of "adult business uses" pursuant to
subsection (B)(5) of this section are prohibited, Prohibited activities include, but are not limited to,
massage parlors, escort and introductory services, body studios and specified sexual activities and
exhibitions not specifically allowed under the definition of "adult business uses."
F. Nonconforming Uses Any adult business use or specified sexual activity/exhibition legally in
operation on the effective date of the ordinance codified in this section shall be permitted to continue;
provided, that all adult business development standards set forth in this section, with the exception of the
separation standards from subsection D of this section, are complied with. Any adult business use pre-
existing upon the effective date of the ordinance codified in this section meeting all development
standards, except said separation standards, shall not be considered nonconforming and shall be allowed
to remain as a legally established business. The existing business which operates twenty-four hours per
day shall be allowed to continue; provided, that any application for expansion, addition or relocation, after
the effective date of the ordinance codified in thissection, shall be subject to the review requirements of
this section. A protected use specified in subsection (D)(1)(a)(1)(a) through (e) of this section shall not
benefit from the separation requirements of this section if the protected use chooses to locate within five
hundred feet of a lawfully located and licensed adult business use after the effective date of the ordinance
codified in this section. An adult business facility is lawfully located if it has located within the city in
accordance with the requirements of this section.
G. Application — Review — Appeal. The review and appealprocedures set forth below shall be the
applicable review and appeal procedures for adult business uses:
1. Development permit application.
Applications for permits for adult business uses shall be made in writing to the administrative
official on forms supplied by the department. A general site plan conforming'to the provisions of
YMC 15.11.040 shall accompany the application. The administrative official may request any
other information necessary to clarify the application or determine compliance with, and provide
for the enforcement of, this title.
2. Review procedures.
The administrative official shall review all adult business uses for compliance with this title. The
administrative official shall notify the applicant of the approval or denial of the application, request
additional information, or forward the application to the department for review.
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3. AittrQYal_ _
The administrative -official shall issue a development permit when it has been determined that:
a. The proposed use is a permitted use under this section 15.09.200;
b. That the proposed development complies with the standards and provisions of this
title'
c. That the proposed development complies with other building and development codes
in effect and administered by the administrative official*,
d. That proposed development complies with traffic engineering standards and policies
established by the appropriate jurisdiction to protect the function and satisfactory level of
service of arterial and collector streets; and
e. That any new improvements or expansions of a structure comply with the standards
of this title.
The administrative official may issue a development permit subject to specific conditions in
mitigation of environmental impacts and control of hazardous materials, and requiring compliance
with development standards.
4. Denial — Conditional Approval.
When an application is denied, or when an application is approved with conditions, the
administrative official shall state the specific reasons and shall cite the specific chapters and
sections of this title upon which denial or conditional approval is based. The administrative official
may also refer the applicant to the department•to determine if relief from such denial or
conditional approval is available through other application.
5. Appeals.
Any decision by the administrative official to deny issuance of a permit for an adult business use,
or the imposition of conditions in issuance of a permit for an adult business use, may be appealed
to the hearing examiner under the provisions of YMC 15.16.030.
H. Should any section, paragraph, sentence, clause or phrase ofthis chapter or its application to any
person or circumstance be declared unconstitutional or otherwise invalid for any reason, such decision
shall not affect the validity of the remaining portions of this ordinance or its application to other persons or
circumstances.
8
ORDINANCE NO. 2012 -
AN ORDINANCE relating to business licensing and regulation; amending Chapter
5.30 of the Yakima Municipal Code regarding business Iicensing
aad regulation=of adultentertainment businesses and uses.
WHEREAS, the City Council has previously adopted ordinances regulating
business licensing and regulation of adult entertainment businesses and uses, all as
codified at Chapter 5.30 YMC; and
WHEREAS, the City Council has previously adopted a moratorium pursuant to
Ordinance No. 2012-026 prohibiting the receipt of applications, and processing and
issuance of licenses and land use permits for adult entertainment businesses and uses
pending development and adoption of comprehensive land use and licensing regulations
for such uses; and
WHEREAS, the City of Yakima Planning Commission has held an open record
public hearing on November 28, 2012 regarding the proposed amendment of Chapter
5.30 YMC, which amendment is attached hereto as Exhibit "A" and incorporated herein
by this reference, and having considered all evidence and testimony produced therein
and the record in this matter, has issued its recommendation that the City Council adopt
the proposed amendment; and
WHEREAS, the City Council, having received and reviewed the record herein
together with the recommendation of the Planning Commission as supported by its
adopted findings of fact and conclusions of law, and the City Council, having conducted
a closed record public hearing on December 11, 2012; and
WHEREAS, the City Council finds and determines that the recommendation of
the Planning Commission should be accepted, and that the findings of fact and
conclusions of law supporting such recommendation should be adopted and approved;
and
WHEREAS, the City Council finds and determines that approval of such
amendment will provide necessary and appropriate mitigations, tailored to the needs of
the community, for amelioration of identified adverse secondary effects associated with
licensing and operation of adult entertainment businesses and uses; and
WHEREAS, the City Council finds and determines that approval of such
amendment is in the best interests of residents of the City of Yakima and will promote
the general health, safety and welfare; now, therefore
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. The recommendation the Planning Commission is hereby
received and approved, and the findings of fact and conclusions of law supporting such
recommendation are approved and adopted as the findings and conclusions of the City
Council herein.
- Section 2. Chapter 5.30 of the Yakima Municipal Code is hereby amended to
read as set forth in Exhibit "A" attached hereto and incorporated- herein_-
Section 3. This ordinance shall be in full force and effect 30 days after its
passage, approval, and publication as provided by law and by the City Charter.
Section 4. Upon the effective date of this Ordinance and the amendment of
Chapter 5.30 YMC adopted and approved herein, the moratorium implemented pursuant
to Ordinance No. 2012-026 shall expire.
PASSED BY THE CITY COUNCIL, signedand approved this 11th day of December,
2012.
ATTEST: Micah Cawley, Mayor
City Clerk
Publication Date:
Effective Date:
Chapter 5.30
ADULT ENTERTAINMENT
Sections:
5.30:005 Intent:
5.30.010 Definitions.
5.30.012 License prohibited to certain classes.
5.30.020 Licenses—Application.
5.30.025 Temporary license—Issuance.
5.30.030 License—Issuance.
5.30.040 1Unlawfitil-sen4ust Standards of conduct and operation.
5.30.045 Allowing minor in adult entertainment establishment.
5.30.050 Inspection.
- -1 I_I - =
5.30.070 Ent
5 30.088060 Denial or revocation of license.
5.30.008070 Appeal of license suspension or revocation.
5.30.083080 Stay of license suspension or revocation.
5.30.805090 Penalties.
5.30.100 Severability.
5.30.005 Intent.
This chapter is intended to protect the general public health, safety and welfare of the citizenry of the city
through the regulation of the operations of adult entertainment establishments. The regulations set forth in
this chapter are intended to prevent health and safety problems in and around entertainment
establishments and to prevent dangerous and unlawful conduct in and around adult entertainment
establishments.
5.30.010 Definitions.
For the purpose of this chapter, the following words and phrases shall have the following meanings:
1, "Adult arcade/viewing booth" means any booth, cubicle, stall, or compartment that is
designed, constructed, or used to hold or seat patrons and is used for presenting adult media for
observation by patrons therein. This definition does not apply to a theatre, movie house,
playhouse, or a room or enclosure or portion thereof that contains more than six hundred square
feet. Those greater than six hundred square feet shall be considered an adult motion picture
theatre.
1
2. "Adult business uses" means any uses on premises to which the adult public, patrons or
members are invited or admitted or wherein any employee or other person provides, exhibits or
performs adult entertainment or operates an adult commercial establishment, to or for a member
of the adult public, a patron or a member, and specifically includes the list below:
teisrt..�r.�:
a. Adult commercial establishments; - —_-
b. Adult motion picture theatres;
c. Adult arcades/viewing booths'
d. Adult cabarets, dance halls and dance studios.
3. "Adult cabaret/dance hall" or "dance studio" means a building or portion of a building
regularly featuring dancing or other live adult entertainment if the dancing or entertainment
provided is distinguished or characterized by an emphasis on the exhibiting of specified sexual
activities or specified anatomical areas for observation by patrons therein.
42. "Adult commercial establishment" means any premises on or where adult media or
sexually oriented toys or novelties are the majority of articles or items for sale and/or rent.
Majority shall be determined to exist when forty percent or more of the establishment's gross
public floor area is devoted to adult media or sexually oriented toys or novelties. Commercial
establishments where the sale and/or rent of adult media or sexually oriented toys or novelties
do not account for forty percent or more of the establishment's gross public floor area shall
adhere to the standards set forth in 5.30.014 of this chapter.
5. "Adult entertainment" means any exhibition performance, or dance which is not obscene and:
a. Where such exhibition, performance, or dance involves a person who is unclothed or in
such costume, attire, or clothing as to expose anyportion of the female breast below the
top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or
wearing any device or covering exposed to view which simulates the appearance of anv
portion of the female breast below the top of the areola or any portion of the pubic region,
anus, buttocks, vulva or genitals or human male genitals in a discernibly turgid state, even
if completely and opaquely covered; or
b. Where such exhibition, performance or dance is distinguished or characterized by a
predominant emphasis on the depiction, description, simulation or relation to the following
specified sexual activities:
i. Human genitals in a state of sexual stimulation or arousal;
ii. Acts of human masturbation, sexual intercourse or sodomy; or
2
iii. Fondling or other erotic touching of human genitals, pubic region, buttocks or female
breasts; or
c. Which is intended to sexually stimulate any member of the public and which is conducted
on a regular basis or as a substantial part of the activity on the premises. This includes, but
is not limited to, any such exhibitibn`performance or dance performed.for,.'arranged with; or _
engaged in with fewer than all members of the public on the premises at that time, and
which is commonly referred to as table dancing couch dancing, lap dancing, private
dancing and straddle dancing.
d. This term shall not be construed to include:
i. Plays, operas, musicals, or other dramatic works; or
ii. Classes, seminars and lectures which are held for serious scientific or educational
purposes.
62 "Adult entertainment establishment" means any premises to which the adult public, patrons
or members are invited or admitted and wherein any employee or other person provides, exhibits
or performs adult entertainment to or for a member of the adult public a patron or a member. The
term includes: adult arcades/viewing booths; adult cabarets, dance halls and dance studios; adult
motion picture theaters.
7. "Adult media" means magazines, books, videotapes, movies, slides, CD-ROMs or other
devices used to record computer images, or other media that are distinguished or characterized
by their emphasis on matter depicting, describinq, or relating to specified anatomical areas or
specified sexual activities.
8. "Adult motion picture theatre" means an establishment emphasizing or predominantly
showing movies that exhibit specified sexual activities.
9. "Body studio" means any premises other than a licensed massage parlor, reducing salon,
health spa or public bath house, upon which is furnished, or which is offered to be furnished, for a
fee or charge or other like consideration, the opportunity or act of painting, massaging, feeling,
handling or touching the unclothed body or any unclothed portion of the body of another person,
or to observe, view or photograph any such activity.
10. "City" meahs the City of Yakima.
11. "Code administration manager" means the code administration manager of the city or his or
her designee.
3
123. "Entertainer" means any person who performs or provides adult entertainment on the
premises of an adult entertainment establishment, whether or not a fee is charged or accepted for
adult entertainment.
---.{„ .a ,�.�.. -- 1_34. ;Employee" means any and all persons, including managers, entertainers and independent
contract�r 'ho work in orator -ref e r any=services directly#elated to, the operation of an adult
entertainment premises.
14. "Media" means anything printed or written, or any picture, drawing, photograph, motion
picture, film, videotape or videotape production, or pictorial representation, or any electrical or
electronic reproduction of anything that is or may be used as a means of communication. Media
includes, but is not limited to, books, newspapers, magazines, movies, videos, sound recordings,
CD-ROMs, other magnetic media, and undeveloped pictures.
155. "Operator" is any person who owns, operates, maintains or conducts an adult
entertainment establishment,
166.. "Manager" means any person, other than an operator, as defined in subsection 5 of this
section, who supervises, manages, directs, administers or is in charge of any portion of any
activity involving adult entertainment occurring at any place offering adult entertainment.
17. "Person" means any natural person, partnership, corporation or any combination thereof
18. "Sexually oriented toys or novelties' means instruments, devices, or paraphernalia either
designed, as representations of human genital organs or female breasts, or designed or marketed
primarily for use to simulate human genital organs.
19. "Specified anatomical areas" means (1) less than completely and opaquely covered: human
genitals, pubic region, buttock. and female breast below a point immediately above the top of the
areola; and (2) human male genitals in a discernibly turgid state, even if completely and opaquely
covered.
20. "Specified sexual activities" means human genitals in a state of sexual stimulation or
arousal or acts of human masturbation, sexual intercourse, sodomy, or fondling or other erotic
touching of human genitals, pubic region, buttock, or female breast.
21. "Specified sexual exhibitions" means any exhibition, performance or dance which is
intended to sexually stimulate any member of the public and which is conducted on a regular
basis or as a substantial part of the premises activity. This includes, but is not limited to, any such
exhibition, performance or dance performed for, arranged with or engaged in with fewer than all
members of the public on the premises at that time, with separate consideration paid, either
directly or indirectly, for such performance, exhibition or dance and which is commonly referred to
as table dancing, couch dancing, taxi dancing, lap dancing private dancing or straddle dancing.
4
228. "Substantial connection" means:
a. In a sole proprietorship, an individual who owns, operates or conducts, directly or
indirectly, the adult entertainment establishment; or
.- In a partnership, an individual who shares in any potential profits of the adult
entertainment establishment; or
c. In a corporation, an individual who is an officer, director,. or a holder (directly or
beneficially) of more than ten percent of any class of stock, or
d. An individual who furnishes more than ten percent of the capital financing of such adult
entertainment establishment, whether in cash, goods or services.
5.30.012 License prohibited to certain classes.
No license shall beissuedunder this chapter to:
A. A natural person who has not attained the ape of 18 years.
B. A limited liability company unless all managing members thereof are qualified to obtain a
license as provided in this chapter.
C. A partnership, unless all general partners thereof are qualified to obtain a license as provided
in this chapter.
D. A corporation, unless all the officers and directors thereof are qualified to obtain a license as
provided in this chapter,
E. A proposed adult entertainment business operator whose place of business does not comply
with all applicable requirements of the fire, building, and zoning codes of the City.
E An applicant for any adult entertainment business license who is delinquent on City taxes,
fees, fines, or penalties assessed in relation to an adult entertainment business.
G. An applicant for an adult entertainment business license whose place of business is conducted
by an agent, unless such agent has obtained a manager's license.
H. An applicant who has failed to provide information required on a license application for the
issuance of the license or has made, with the intent to mislead, a materially false statement in the
application for a license under this chapter. "Materially false statement" means any false statement, oral
or written, which could have affected the course or outcome of the license application.
5
I. An applicant who has had a license previously issued under this chapter revoked within one
year of the time the applicant seeks a new license.
- 5.30.020 Licenses—Application.
A. Adult Entertainment Establishment License.
It is unlawful for a person to own, conduct or operate an adult entertainment establishment unless such
establishment is licensed as provided in this chapter. The fee for an adult entertainment establishment
license and renewal shall be one thousand dollars ($1,000) per year. The license shall expire one year
from the date of its issuance. In addition, a nonrefundable application fee in the amount of two hundred
dollars ($200) must be paid at the time of filing an application in order to defray the costs of processing
the application.
1. All applications for an adult entertainment establishment license shall be submitted to the
code administration manager in the name of the person or entity proposing to conduct an adult
entertainment business on the business premises and shall be signed by such person and
certified as true under penalty of perjury. All applications shall be submitted on a form supplied
by the City, and shall be complete when the following information and submittals are provided:
a. For each applicant: names; any aliases or previous names; driver's license number, if
any; Social Security number, if any; business, mailing, and residential address; and
business and residential telephone number.
b. If a corporation, date and place of incorporation, evidence that it is in good standing
under the laws of Washington, and name and address of any registered agent for service
of process.
c. Whether the applicant holds any other licenses under this chapter or any license for
similar adult entertainment or sexually oriented business, including motionpicture theaters,
adult commercial establishment and panorams, from the City or another city, county or
state, and if so, the names and addresses of each other licensed business.
d. A summary of the business history of each applicant owning or operating the adult
entertainment, adult commercial establishment or other sexually oriented businesses,
providing names, addresses and dates of operation for such businesses, and whether any
business license or adult entertainment license has been revoked or suspended, and the
reason therefor.
e. For each applicant, any and all criminal convictions or forfeitures within ten (10) years
immediately preceding the date of the application, other than parking offenses or minor
6
traffic. infractions, including the dates of conviction nature of the crime, name and location
of court and disposition.
f, For each applicant, -a description of business, occupation or employment history for the
three years immediately preceding the date of the application.
q. The location and doing -business -as name of the proposed adult entertainment business,
including a legal description of the property, street address, and telephone number,
together with the name and address of each owner and lessee of the property.
h. Two two-inch by two-inch color passport -quality photographs of the applicant, taken
within six months of the date of application, showing only the full face.
i. Documentation that the applicant has attained at least eighteen years of age. Any one of
the following shall be accepted as documentation of age:
is A.motor vehicle operator's license issued by any state bearing the applicant's
photograph and date of birth
ii. A State -issued identification card bearing the applicant's photograph and date of
birth:
iii. An official passport or military ID issued by the United States of America;
iv, An immigration card issued by the United States of America.
i. A scale drawing or diagram showing the proposed configuration of the premises for the
adult entertainment business, including a statement of the total floor space occupied by the
business, and marked dimensions of the interior of the premises. Performance areas,
seating areas, manager's office and stations, restrooms and service areas shall be clearly
marked on the drawing. An application for a license for an adult entertainment
establishment and adult commercial establishment shall include building plans which
demonstrate conformance with 5.30,040(C).
2. Notification of the acquisition of new general partners, managing members, officers or
directors, subsequent to the issuance of an adult cabaret license, shall be provided in writing to
the code administration manager no later than 21 days following such acquisition. The notice
required shall include the information required for the original adult cabaret license application..
3. The adult entertainment establishment license if granted, shall state on its face the name of
the person or persons to whom it is issued, the expiration date, the doing -business -as name and
the address of the licensed adult entertainment establishment. The permit shall be posted in a
conspicuous place at or near the entrance to the adult entertainment business premises so that
it can be easily read at any time the business is open.
7
4. No person granted an adult entertainment establishment license pursuant to this chapter shall
operate the adult entertainment establishment under a name not specified on the license, nor
shall any person operate an adult entertainment establishment under any designation or at any
location not specified on the license.
r-5. Upon receipt of any complete application and fee, the. -code administration managershall
provide copies to the Police Department and to other appropriate City departments or
contractors, for a full investigation and review to determine compliance of the proposed adult
entertainment establishment with this chapter and other applicable laws. Each adult
entertainment establishment license license shall be issued with a notification that it shall be
subject to revocation for noncompliance of the premises with building and zoning codes and this
chapter.
6. In the event the premises are not vet constructed, the departments shall base their
recommendation as to premises compliance on their review of the drawings submitted with the
application. Any adult entertainment establishment license approved prior to premises
construction shall contain a condition that the premises must be inspected prior to occupancy,
and determined to be in substantial conformance with the drawings submitted with the
application and other applicable building and development regulations.
7. No person granted a license pursuant to this chapter shall operate the adult entertainment
establishmentunder a name not specified in the license, nor shall he or she conduct business
under any designation or location not specified in the license.
8. The code administration manager shall not issue or renew any license under this section if
the information received by the code administration manager indicates that:
a. Any knowingly false statement was made in the application;
b. The applicant, within ten years of the date of application, has pleaded guilty to,
forfeited bail on, or has currently pending against applicant, or been convicted of violating
any law, of any jurisdiction, for prostitution; pandering; pimping; lewd conduct; sexual
misconduct; indecent exposure; rape in the first, second or third degree; indecent
liberties; rape of a child in the first, second or third degree; child molestation in the first,
second, or third degree: sexual misconduct with a minor in the first or second degree; any
violation of this chapter; or other substantially similar crimes.
B. Adult Entertainment Manager's License.
1. It is unlawful for any person to be employed as or act as a manager, as defined in Section
5.30.010, without a valid license. The fee for a license apptisation shall be one hundred dollars, per
calendar year or portion thereof. Application for such license or renewal shall be made to the code
administration manager. In addition to the annual license fee,a nonrefundable application fee in the
8
amount of fifty dollars ($50) must be paid at the time of filing an application in order to defray the costs of
processing the application.
2. All applications for issuance or renewal of a manager's license shall be made to and filed
with the code administration manager on forms furnished by the code administration manager for such
purpose_,
plaetegra:phc. All applications for a manager's license shall be signed by the applicant and certified to be
true under penalty of perjury. The manager's license application shall require the following information:
a. The applicant's name._home address, home telephone number, date and place of birth,
Social Security number, and any stage names or nicknames used in entertaining.
b. The name and address of each business at which the applicant intends to work as a
manager.
c. Documentation that the applicant has attained at least eighteen years of age. Any one of
the following shall be accepted as documentation of age:
i. A motor vehicle operator's license issued by any state bearing the applicant's
photograph and date of birth;
ii. A State -issued identification card bearing the applicant's photograph and date of
birth;
iii. An official passport or military ID issued by the United States of America; or
iv. An immigration card issued by the United States of America.
d. A complete statement of all convictions of the applicant for any misdemeanor- or felony
violations in this or any other city. county, or state within ten (10) years immediately
preceding the date of the application, except parking violations or minor traffic infractions.
e. A description of the applicant's principal activities or services to be rendered.
f. Two two-inch by two-inch color passport -quality photographs of the applicant, taken
within six months of the date of application, showing only the full face. Such photograph, if
the license applied for is issued, shallbe affixed thereto in a manner designed to
discourage alteration or substitution of photographs.
This application shall state the true name of the applicant and any other names the applicant may have
used, together with such other information as the code administration manager may deem necessary or
9
desirable for the purpose of enforcing or otherwise administering this chapter. Applicants shall not be less
than eighteen years of age.
3. Each manager license shall be issued to a specific person named in the license document to
manage -air -adult -entertainment establishment at a specific location designated by street address in the
ITcerrSe document...Managerslicer ll-riotte-transferable.to any person: or adult entertainment
establishment location other than as specified in the license document.
4. The code administration manager shall not issue or renew any license under this section if the
information received bythe code administration manager indicates that:
a. Any knowingly false statement was made in the application;
b. The applicant, within ten nears of the date of application, has pleaded guilty to, forfeited bail
on, or has currently pending against applicant, or been convicted of violating any law, of any
jurisdiction, for prostitution; pandering; pimping; lewd conduct; sexual misconduct- indecent
exposure; rape in the first, second or third degree; indecent liberties; rape of a child in the first,
second or third degree; child molestation in the first, second, or third degree; sexual misconduct
with a minor in the first or second degree; any violation of this chapter; orother substantially similar
crimes.
C. Entertainer's License.
1. It is unlawful for any person to be employed as or act as an entertainer, as defined in Section
5.30.010, without a valid license. The fee for a license application shall be one hundred dollars ($100) per
calendar year or portion thereof. Application for such license or renewal shall be made to the code
administration manager. In addition, a nonrefundable application fee in the amount of fifty dollars ($50)
must be paid at the time of filing an application in order to defray the costs of processing the application.
2. All applications for issuance or renewal of an entertainer's license shall be made to and filed
with the code administration manager on forms furnished by the code administration manager for such
purpose. All applications for an entertainer's license shall be signed by the applicant and certified to be
true under penalty of perjury. The entertainer's license application shall require the following information.
a. The applicant's name, home address home telephone number, date and place of birth,
Social Security number, and any stage names or nicknames used in entertaining.
b. The name and address of each business at which the applicant intends to work as an
entertainer.
c. Documentation that the applicant has attained at least eighteen years of age. Any one of
the following shall be accepted as documentation of age:
10
i. A motor vehicle operators license issued by any state bearing the applicant's
photograph and date of birth;
ii. A State -issued identification card bearing the applicant's photograph and date of
birth;
iii. An -official passport or military ID issued by the United States of America; or
iv. An immigration card issued by the United States of America.
d. A complete statement of all convictions of the applicant for any misdemeanor or felony
violations in this or any other city, county, or state within ten (10) years immediately
preceding the date of the application, except parking violations or minor traffic infractions.
e. A description of the applicant's principal activities or services to be rendered.
f. Two two-inch by two-inch color passport -quality photographs of the applicant, taken
within six months of the date of application, showing only the full face. Such photograph, if
the license applied for is issued, shall be affixed thereto in a manner designed to
discourage alteration or substitution of photographs.
q. The names and addresses of all employers or individuals or businesses for whom the
applicant was an employee or independent contractor for the period of two (2) years
immediately prior to the application date and the time period of such employment.
This application shall state the true name of the applicant and any other names the applicant may have
used together with such other information as the code administration manager may deem necessary or
desirable for the purpose of enforcing or otherwise administering this chapter. Applicants shall not be less
than eighteen years of age.
3. Any license issued under the provisions of this section shall be valid for employment in any
adult entertainment establishment licensed under this chapter but shall not be transferable to any other
person.
4. The code administration manager shall not issue or renew any license under this section if the
information received by the code administration manager indicates that:
a. Any knowingly false statement was made in the application;
b. The applicant, within ten years of the date of application, has pleaded guilty to, forfeited bail on,
or has currentlypendinq against applicant, or been convicted of violating any law, of any
jurisdiction, for prostitution; pandering; pimping; lewd conduct; sexual misconduct; indecent
exposure; rape in the first, second or third degree; indecent liberties; rape of a child in the first,
second or third degree; child molestation in the first, second, or third degree; sexual misconduct
11
with a minor in the first or second degree; any violation of -this chapter; or other substantially similar
crimes.
c. Date and place of birth;
Yakima
renewal--is-sought;
12
renewal-is-sep t,
5.30.025 Temporary license—Issuance.
Upon the filing of a complete application for issuance or renewal of an adult entertainment establishment
license, manager's license or entertainer's license, the code administration manager shall issue a
temporary license. Such temporary license shall be effective for a period of fifteen days or until a final
decision on issuance of a permanent license has been made. Additional temporary licenses shall be
issued for fifteen -day periods up until a final determination on the permanent license has been made.
Temporary licenses may be suspended or revoked as provided in this chapter.
5.30.030 License—Issuance.
A. Upon the filing of any complete application for issuance or renewal of an adult entertainment
establishment license, manager's license or entertainer's license, the code administration manager shall
refer the application to the chief of the Yakima police department who shall cause an investigation to be
made of the applicant or applicants, including the statements in the application form, and who shall
furnish a written report to the code administration manager of the results of such investigation, including a
recommendation as to whether a license should be issued. The police department shall interview in
person each applicant for a new adult entertainment establishment license, manager's license. or
entertainer's license; for any renewal of such licenses, the police department may conduct a personal
interview.
The code administration manager shall investigate the premises and report compliance with all applicable
city codes for which the code administration manager is responsible for enforcement.
If, from the reports mentioned in the preceding paragraphs and other information concerning the applicant
or applicants, the premises and person having a substantial connection with such establishment or
proposed establishment, the code administration manager deems the application to comply with all of the
conditions required for licensing hereunder, the code administration manager shall issue or renew the
license for which application was made.
13
B. Each adult entertainment establishment license shall be issued for a specific premises, the location
of which shall be designated by street address on the license document. Adult entertainment
establishment licenses shall not be transferable from one location to any other location, nor from one
licensee to another to operate the adult entertainment establishment at the same location.
C. 'The code adrriini tration manager thall=notissue--or renew any license under this chaptei if-tTie-
information received by the code administration manager indicates that:
1. Any knowingly false statement was made in the license application,
2 Any person having a substantial connection with such establishment or proposed
establishment within ten years of the date of application has pleaded guilty to or has currently
pending against that person, or forfeited bail, or been convicted of violation of any law of any
jurisdiction for prostitution; pandering; pimping; lewd conduct; sexual misconduct; indecent
exposure; rape in the first, second or third degree; indecent liberties; rape of a child in the first,
second or third degree; child molestation in the first, second or third degree; sexual misconduct with
a minor in the first or second degree; any violation of this chapter; or other substantially similar
crimes; or
3. Any premises on which an adult entertainment establishment is sought to be located fails to
meet health, safety, fire, zoning or other valid standards established by regulations and ordinances
governing health and safety; provided, however, denial under this subsection shall be without
prejudice to future application.
5.30.040 Standards of conduct and operation.
The following" standards of conduct and operation are conditions of each permit issued pursuant to this
chapter. Violation will subject the person violating such standards to the penalties set forth below.
A. Entertainers and Employees. The following standards of conduct must be adhered to by employees of
any adult entertainment business while in any area of an adult entertainment business in which members
of the public are allowed to be present:
1. No employee or entertainer shall be unclothed or in such less than opaque and complete
attire, costume or clothing so as to expose to view any portion of the female breast below the top
of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, except upon a
performance area defined as a stage at least 18 inches above the immediate floor level and
removed at least eight feet from the nearest member of the public. A continuous railing at least
three feet in height and located at least eight feet from all points of the performance area shall
separate the performance area and the patron seating areas. No patron or customer shall go
onto or upon an adult live entertainment performance area.
2. No employee or entertainer mingling with members of the public shall be unclothed or in less
than opaque and complete attire, costume or clothing as described in subsection (A)(1) of this
14
section, nor shall any male employee or entertainer at any time appear with his genitals in a
discernibly turgid state, even if completely and opaquely covered, or wear or use any device or
covering which simulates the same.
3. No employee or entertainer mingling with members of the public shall wear or use any device
or covering exposed to view which simulates` the_breastlbelow-the=top`of reola;=vvuiva,-_.__
genitals, anus, any portion of the pubic region, or buttocks:
4. No employee or entertainer shall caress, fondle, or touch any member of the public, including
another entertainer, unless both such entertainers are on a stage meeting the requirements of
subsection (A}(1) of this section, for the purpose of sexual arousal of either party. No employee
or entertainer shall permit any member of.the public to caress, fondle, or touch any employee or
entertainer, for the purpose of sexual arousal of either party.
5. No employee or entertainer shall perform actual or simulated acts of sexual conduct as
defined in this chapter, or any act which constitutes a violation of Chapter 7.48A RCW, the
Washington Moral Nuisances Statute.
6. No employee or entertainer mingling with members of the public shall conduct any dance,
performance or exhibition in or about the nonstage area of the adult cabaret unless that dance,
performance or exhibition is performed at a distance of no less than four feet, measured from the
forehead of the entertainer to the forehead of the customer paying for the dance, performance;
or exhibition.
7. No tip or gratuity offered to or accepted by an adult entertainer may be offered or accepted
prior to any performance, dance or exhibition provided by the entertainer. No entertainer
performing upon any stage area shall be permitted to accept any form of gratuity offered directly
to the entertainer by any member of the public. Any gratuity offered to any entertainer performing
upon any stage areas must be placed into a receptacle provided for receipt of gratuities by the
adult entertainment business or provided through a manager on duty on the premises. Any
gratuity or tip offered to any adult entertainer conducting any performance, dance or exhibition in
or about the nonstage area of the adult entertainment business shall be placed into the hand of
the adult entertainer or into a receptacle provided by the adult entertainer, and not upon the
Person or into the clothing of the adult entertainer.
8. Every adult entertainer shall post his or her license in his other work area so it is readily
available for inspection by city authorities responsible for enforcement of this chapter.
9. No adult entertainment conducted within or upon the licensed premises shall be visible from
any public place outside the licensed premises.
15
B. Adult Entertainment Manager's License. The following are required of an adult entertainment manager:
1. Admission must be restricted to persons of the ape 18 nears or more, It is unlawful for any
owner, operator, manager or other person in charge of an adult entertainment business to
,.—knowingly permit or - allow .any person under the minimum age specified to be in or upon such
—=piernis�s: A=licensed manager or other=employeehall verifv•the ageofall-members of the
public seeking to enter an adult entertainment business.
2. Neither the performance nor any photograph, drawing, sketch or other pictorial or graphic
representation thereof displaying any portion of the breast below the top of the areola or any
portion of the pubic hair, buttocks, genitals, and/or anus may be visible outside of the adult
entertainment business. The prohibition of this subsection (B)(2) is intended to be limited to adult
entertainment business performances and representation of same, and is not intended to
prohibit the activities enumerated 5.30.010(5)(d).
3. No member of the public shall be permitted at any time to enter into any of the nonpublic
portions of the adult entertainment business, which shall include but are not limited to: the
dressing rooms of the entertainers or other rooms provided for the benefit of employees, and the
.kitchen and storage areas; except that persons delivering goods and materials, food and
beverages, or performing maintenance or repairs to the premises or equipment on the premises
may be permitted into nonpublic areas to the extent required to perform their job duties.
4. The licensee shall not operate or maintain any warning system or device, of any nature or
kind, for the purpose of warning customers or patrons or any other persons located on the
licensee's premises that police officers or other City inspectors are approaching or have entered
the licensee's premises..
5. A licensed manager shall be on duty at an adult entertainment business at ail times adult
entertainment is being provided or members of the public are present on the premises. The
name and license of the manager shall be prominently posted during business hours. The
manager shall be responsible for verifying that any person who provides adult entertainment
within the premises possesses a current and valid entertainer's license.
6. The licensed manager on duty shall not be an entertainer.
7. The manager or an assistant manager licensed under this chapter shall maintain visual
observation of each member of the public at•all times any entertainer is present in the public or
performance areas of the adult entertainment business premises. Where there is more than one
performance area, or the performance area is of such size or configuration that one manager or
assistant manager is unable to visually observe, at all times, each adult entertainer, each
employee, and each member of the public, a manager or assistant manager licensed under this
chapter shall be provided for each public or performance area or portion of a public or
16
performance area visually separated from other portions of the adult entertainment business
premises.
8. The manager shall be responsible for and shall assure that the actions of members of the
public, the adult entertainers and all other employees shall comply with all requirements of this
9. Every manager shall post his or her license in his or her work area so it is readily available for
inspection by city authorities responsible for enforcement of this chapter.
10. Any enclosed room or cubicle within the licensed premises where adult entertainment is
performed, shall not be locked, barred or fit with locking devices at any time the premises are
open to the public.
11. Each adult entertainment establishment shall not be owned operated or conducted without
a licensed manager in such establishment at all times such establishment is open to the public.
12. No person, other than an employee, shall be allowed in any area other than a public
restroom of an adult entertainment establishment, including any booths, cubicles, rooms or stalls,
which is not completely visible from all common areas of the premises.
13. Post and conspicuously display in the common areas of each place offering adult
entertainment a list of any and all entertainment provided on the premises. Such list shall further
indicate the specific fee or charge in dollar amounts for each entertainment listed.
14. No performance or any photograph, drawing, sketch or other pictorial or graphic
representation thereof displaying any portion of the breasts below the top of the areola or any
portion of the pubic hair, vulva, buttocks, genitals or anus shall be allowed to be visible outside of
the licensed premises.
C. Adult Entertainment Establishment License.
1. Responsibility for Conduct of Entertainers and Employees. The adult entertainment
establishment operator shall assure that all managers, entertainers and employees comply with
standards of conduct of this section and all other requirements of this chapter. Failure to take
reasonable measures to promptly correct violations which were known or should have been
known to the operator shall be grounds for suspension or revocation of the adult entertainment
business operator's license or other penalties provided in this chapter.
2. Performance Area. The performance area of the adult entertainment business premises
where adult entertainment is provided shall be a stage or platform at least 18 inches in elevation
above the level of the patron seating areas, and shall be separated by a distance of at least eight
feet from all areas of the premises to which members of the public have access. A continuous
17
railing at least three feet in height and located at least eight feet from all points of the
performance area shall separate the performance area and the patron seating areas. The stage
and the entire interior portion of cubicles rooms or stalls wherein adult entertainment is provided
must be visible from the common areas of the premises and at least one manager's station.
Visibility shallnot be blocked or-obstructed by doors, curtains; drapes or any other-obstruction
w afsoever. =— �-- -- �-- _ _ _ ��.�.
3. Lighting. Sufficient lighting shall be provided and equally distributed throughout the public
areas of the premises so that all objects are plainly visible at all times. A minimum lighting level
of 30 lux horizontal, measured at 30 inches from the floor and on 10 -foot centers, is hereby
established for all areas of the adult entertainment business premises where members of the
public are admitted.
4. Signs. A sign at least two feet by two feet, with letters at least one inch high, shall be
conspicuously displayed in the public area(s) of the premises stating the following:
THIS ADULT ENTERTAINMENT BUSINESS 15 REGULATED BY THE CITY OF
YAKIMA. ENTERTAINERS ARE:
A. NOT PERMITTED TO ENGAGE IN ANY TYPE OF SEXUAL CONDUCT;
B. NOT PERMITTED TO APPEAR SEMI-NUDE OR NUDE, EXCEPT ON STAGE;
C. NOT PERMITTED TO ACCEPT TIPS OR GRATUITIES IN ADVANCE OF THEIR
PERFORMANCE;
D. NOT PERMITTED TO ACCEPT TIPS DIRECTLY FROM PATRONS WHILE
PERFORMING UPON ANY STAGE AREA.
5. Recordkeepinq Requirements.
a. All papers, records, and things required to be kept pursuant to this chapter shall be open
to inspection by the code administration manager or his designated agents during the
hours when the licensed premises are open for business, upon two days' written notice.
The purpose of such inspections shall be to determine whether the papers, records, and
things meet the requirements of this chapter.
b. Each adult entertainment business shall maintain and retain for a period of two years the
name, address, and age of each person employed or otherwise retained or allowed to
perform on the premises as an adult entertainer, including independent contractors and
their employees. This information shall be open to inspection by the Clerk during hours of
operation of the business upon 24 hours' notice to the licensee.
18
. e Z.!: ZZ' ".! •_e:-
this-eheoter- -
8r-ern:Islas-awe
entect3nef-ls-lise4se:
D. It is unlawful for anv adult entertainment business to be operated or otherwise open to the public
between the hours of 2:00 a.m. and 10:00 a.m.
-etablishmeRt-4o4
•: •• e • • .• .e. . e: e.-
ag43i
suGh-a-manner--that4
p441:41s-plaGei
19
— _ 1111. •
the -pubis -hair,
20
• e e : • - - • : - .
s.uladiviErioR4-of-4144-544bseotion,
fRaagef-eR4uty-44R-the-pr-em-isas:
c. A gratuity or Up off
21
GE. Exterior signs andanyinterior sign or notice visible to the public may announce the name of the
business and the nature of the business by the term "adult entertainment," "adult theater" or "adult use
establishment" but shall not contain any representation of the human body or make any statement
pertaining to the human body, whether of entertainers, patrons or the public.
DE. It is unlawful for any person to be employed in an adult entertainment establishment or offer to
dance in an adult entertainment establishment at a time when it is unlicensed under this chapter.
G. This section shall not be construed to prohibit:
1. Plays, operas, musicals, dances or other dramatic works which are not obscene; or
2. Classes, seminars and lectures held for serious scientific or educational purposes;
3. Exhibitions or dances which are not obscene;
H. For purposes of subsection BG, above, an activity is "obscene" if:
1 Taken as a whole by an average person applying contemporary community standards the
activity appeals to a prurient interest in sex;
2. The activity depicts patently offensive representations of: ultimate sexual acts, normal or
perverted, actual or simulated; or masturbation, fellatio, cunnilingus, bestiality, excretory functions,
or lewd exhibition of the genitals or genital area; or violent or destructive sexual acts, including but
not limited to human or animal, mutilation, dismemberment, rape or torture; and
3. The activity taken as a whole lacks serious literary, artistic, political or scientific value.
GI. For purposes of subsection GG of this section, an activity is "dramatic" if the activity is of, relating to,
devoted to, or concerned specifically or professionally with current drama or the contemporary theater.
NJ. This chapter shall not be deemed to permit any activity, in taverns, bars, cocktail lounges, or any
premises maintaining liquor licenses, not permitted by the State Liquor Control Board. This chapter shall
not be deemed to permit any activity contrary to Section 6.10.020 -prohibiting nudity and semi -nudity on
licensed premises.
22
5.30.045 Aliowing minor in adult entertainment establishment.
It is unlawful for the licensee or manager of an adult entertainment establishment to knowingly allow a
person under the age of eighteen years to be on the premises of an adult entertainment establishment.
5.30.050 Inspection.
In order to ensur �omIiaTice
entertainment businesses which are open to members of the public shall be open to inspection by law
enforcement officers and/or the code administration manager during the hourswhen the Dremises are
open for business. The purpose of such insrections shail be to deterrnjne if the Iicensed Dremises are
operated in accordance with the requirements of this chapter. Additionally, all areas of licensed adult
entertainment businesses used as a dressing room or off-stage area for licensed entertainers shall be
open to inspection by such city agents and employees of the same sex as the entertainers to determine if
the licensed premises are operated in accordance with the requirements of this chapter, including but not
limited to, verifying_identity and age of entertainers, and verifying that each entertainer has a valid
entertainer's license.
B. It is unlawfufor a person to hinder or obstruct in any way an officer in the performance of his or her
duty under subsection A of this section.
manager.
23
6494e-67
24
5.30.080 060 Denial or revocation of license.
A. Any application for issuance or renewal of any license pursuant to this chapter shall not be accepted
by the code administration manager unless accompanied by the appropriate license fee. In the event an
application for a license is refused, the amount tendered as the license fee shall not be returned to the
applicant but shall be_retained by the city to defray the cost of examination and investigation.:_
B. Every license issued or renewal pursuant to this chapter shall expire at midnight of the day a year
from the date of issuance.
C. In addition to other penalties provided herein or by other applicable law, the code administration
manager shall have the right to suspend or revoke any license issued pursuant to this chapter upon a
showing that any establishment or person licensed hereunder has operated in violation of the provisions
of this chapter or has permitted or engaged in unlawful conduct on the premises. No license under this
chapter shall be revoked unless the code administration manager has first notified the parties in writing of
.a date not less than five days subsequent to the date of service of the notice, at which time the parties so
notified may appear, in person and be represented by coin -Ise!, before the code administration manager
and show cause why the license should not be suspended or revoked.
5.30.080 070 Appeal of license suspension or revocation.
A. The Yakima city council shall have jurisdiction to hear appeals from the following orders of the code
administration manager:
1. Denial of a license or licenses for which application is made pursuant to this chapter;
2. Suspensions or revocations of licenses issued pursuant to this chapter.
B. The aggrieved party shall have the right to appeal the code administration manager's order of denial,
suspension or revocation by giving a written notice to the code administration manager within seven days
after the entry of the order from which the appeal is taken. The notice shall specify every ground relied on
by the appealing party as reasons for reversal by the city council of the order of the code administration
manager from which the appeal is taken. The notice of appeal shall specify an address at which the
appellant may be given notice of hearing on the appeal.
C. After the timely filing of such an appeal, the Yakima city council shall set a time and place, not more
than thirty days from the date of receipt of such notice of appeal, for a hearing thereon. At the hearing the
appellant shall be entitled to appear in person, be represented by counsel, and offer evidence in support
of the grounds relied on by appellant to reverse the order of the code administration manager.
D. Within ten days from the date of the hearing before the city council, the council shall either affirm or
reverse the order of the code administration manager from which the appeal was taken; and a written
notice of the decision of the council shall forthwith be served on the appellant or mailed to .the address
specified by appellant forgiving the notice of appeal under subsection B of this section. The decision so
made by the council shall be final.
25
5.30.093 080 Stay of license suspension or revocation.
A. All suspensions or revocations under this chapter shall be effective immediately upon issuance of an
order of the code administration manager.
B. Filing a notice of appeal of an order of the code adn tstration-ma ersilati-stap'thetuspenston or
revocaton�f issued pursuant to this chapter'and until-fihal-review by the Yakima city council.
C. An aggrieved party may seek review of a decision of the city council by a court of competent
jurisdiction. The aggrieved party may, within thirty days of the city council's decision, stay a suspension or
revocation upheld by the final decision of the Yakima city council. Such a stay shall commence upon the
aggrieved party filing with a court of competent jurisdiction an action seeking review and serving on the
city notice of the action. A stay so initiated will be effective during the pendency of the action. (Ord. 96-38
§ 1, 1996).
5.30.096 090 Penalties.
In addition to those penalties and actions provided in Sections 5.01.010(B), 5.01.040, and 5 01.050 of this
code, any person knowingly violating any of the provisions of this chapter is a disorderly person and is
guilty of a misdemeanor and upon conviction thereof, shall be punished by a fine of not more than five
hundred dollars or by imprisonment in the city jail facility for not more than ninety days or by both such
fine and imprisonment. Each separateday or any portion thereof during which any violation of any
provision of this chapter occurs or continues shall be deemed a separate and distinct offense.
5.30.100 Severability.
Should any section, paragraph, sentence, clause or phrase of this chapter or its application to any person
or circumstance be declared unconstitutional or otherwise invalid for any reason, such decision shall not
affect the validity of the remaining portions of this ordinance or its application to other persons or
circumstances.
26
• `, IY . —•--ter .y i�y-c
1,/f(a C,Q . 4I75 ,
Final Report to the City of Garden Grove:
The Relationship Between Crime-and-Adtdi Business Operations
on Garden Grove Boulevard
Richard McCleary, Ph.D.
James W. Meeker, J.D., Ph.D.
October 23, 1991
DOC.
INDEX
Tabk of Contents
-!----17,-,Introltittleifind Executive Summary ---
fL Legal Requirements For Controlling Adult
Entertainment Businesses 7
IIL Crime In Garden Grove, 1981-1990 17
Figure 1 17.1
Table 1 18.1
Figure 2 19.1-2
Figure 3 2O.1.
W. The Impacted Area and the Public Sakty Hazard 22
Table 2 23.1
V. Quasi -Experimental Contrasts 25
VL Survey of Real Estate Professionals 33
VIL Hon globoid Survey 39
VIIL Conclusions 47
Appendices
Read Estate Peavey Frequencies A.9
Household Purvey Frequencies A.I3
Real Estate Instrument
Household /Dimmest
Proposed Statute
DOC.
INDEX
g,
I. Introduction and Executive Summary
This report summarizes an exhaustive series of statistical analyses conducted
over a tea -moa_ - �_- - - ry, _
�-by=��rard-R�1cCiea Pg:D:;=Jaaies W Meeker, .1.D:,
Ph.D., and five research assistants. This document presents the statistical analyses
that we feel are the most relevant for the legal requirement of basing zoning
restrictions on adult businesses on their negative impact on the community in
terms of crime, decreased property value and decreased quality of life. It is
constitutionally important that the City of Garden Grove base any restrictions on
adult businesses on these so called "secondary effects" and not upon the content or
moral offensiveness of such businesses. We are confident .that any independent
reanalysis will reach similar conclusions.
In July, 1990, we were contacted by the City Manager's Office and Police
Department for advice on problems related to the operation of stink businesses on
Garden Grove Boulevard. After years of experience with these businesses, the
Police Department had come to suspect that their operation Muted a public
safety hazard. Partly in response to this situation, the City bad adopted a zoning
ordinance which restricts the location and density of adult businesses. In order to
withstand oars ti esel scrutiny. the City needs to be able to show that the
ordinance was based on the neptive seecodary effete such businemes have on
their surroundings and not on the content of these businesses or their morality.
The precise dimensions of the n=ative impact of these businesses were unmown,
however. It was not clear that the superficial spatial relationship between crime
DOC.
INDEX
# '-- c9
3
Consultants' Final Report - Page 2
and these businesses was statistically significant, for example; and if the
-relationship-was significant, it was not clear what aspect of the operation was
responsible for the hazard. The exaet extent of other negative effects, such as
decreased property values and reduced quality of environment for others in the
area, were also unknown.
In several meetings with the City Manager's Office and the Police
Department during the summer and fall of 1990, and after reviewing several
studies conducted by other cities to justify zoning restriction on adult businesses,
it was decidedthat we would assist the. City in undertaking its oa'u study. This
study would consist of an extensive statistical analysis of the City's crime data, a
survey of real estate professionals, and a survey of City residents living close to the
currently operating adult businesses. The study was designed to focus on the
following questions.:
• Does crime increase in the vicinity of an adult bum? If so, is the
increase statistically significant and does it consul to a public safety
hazard?
• Cu the public safety hazard be ameliorated by requiring a minim
distance between adult businesses? What is -the required minimum distance?
• Are public
�� � practical zoning restrictions that wouldameliorate
the • Are adult businesses associated with a decrease in property values?
• Are adult businesses associated with declining quality of neighborhood?
We agreed to conduct the surveys and appropriate statistical analyses under
Do
1NDQt
#7
4
Consultants' Final Report - Page 3
three conditions; First, we could expect to have any public data held by the Police
--Department orthe-- -Offier;se.cond, we could expect the
operation of the Police Department and the City Manager's Office; and third, the
City would accept any and all findings regardless of their implications for past,
present, or future policy. These conditions were accepted in principle and
honored in practice. We enjoyed an extraordinary degree of autonomy and co,
operation from both the Police Department and the City Manager's Office.
In November, 1990, we began working with the Police Department to
define the parameters of the crime data to be analyzed.. The complete set of
crime reports for 1981-90 were eventually downloaded and read into a statistical
analysis system. The reliability of these data was ensured by comparing samples of
the data downloaded from the Police Department computers with data archived at
the California Bureau of Criminal Statistics and Federal Duman of Investigation.
Satisfied that the reliability of our data was nearly perfect, in human; 1991, we
began the arduous task of measuring the absolute and relative distances between
crime events. We were eventually able Ware's= the relevant distances for a
subset of 34,079 crimes to within 40 feet of the actual ocaurence with 99 percent
confidence. In late January through AprO, 1991, *en dirtiness were analyzed in
various modeb and with various methods. The results of these analyses show that
DOC.
INDEX
# D
Consultants' :Final Report - page 4
• Crime rises whenever an adult business opens or expands its operation
and the change is statistically significant. The rise is found in the most
serious causes, especially assault, robbery, burglary, and theft: ATbe_ risc_ia=-
`' ►sciahi%ss° csi es n Siad=a�co of use; sex offenses, s) i saki -
significant, though less consistent and interpretable. Given the nature and
magnitude of the effects, the adult bastions on Garden Grove Boulevard
constitute a serious public safety hazard
• Except for expansions, the adult businesses were in operation at their
present locations on Garden Grove `Boulevard prior to 1981. There has
been so little variation in spatial density since then that the reladcnship
between density and cruse cannot be determined
• Architectural devices designed to ameliorate the nuisance of these
businesses have no s esti icant impact an crime.
• When an adult business opens within 1000 feet of a tavern (or vice
versa) the impact of the adult business on crime` is aggravated substantially
and significantly.
During this same period of time, two questionnaire instruments were developed
and administered. In Isnusay and February, 1991, a sample of real estate
professionals was surveyed. Over nine hundred questionnaires were disstinted
with a response rate of fifteen percent. The results of this survey shag that
• Real estate prafiaaionals overwhelming agree that dose proximity of
adult businesses are emaciated with cleansed property values for
-iasagy residential and n tiple-bendy maidential
• Real estate professionals associate the dose prosimity of adnh business
with increased mime and other metre impacts as gbe paw of the
neighborhood.
During the spring and summer, 1991, a random sample of households living near
the adult businesses was surveyed. The results of this survey show that
DOC.
INDEX
1
Consultants' Final Report - Page 5
• Residents who live near adult businesses, as well as those who Iive
farther away, associate adult businesses with increased crime and other
--negative impacts on the quality of the neighborhood.
• A large proportion of residents who lire near adult businesses report
personal negative experiences that are attributed to these businesses.
• Public support for regulation of adult businesses is overwhelming.
While virtually all segments of the community voice support for all
regulatory initiatives, home owners and women are the strongest
supporters of regulation;
Each of these findings is fully supported by every bit of data available to us and by
every analysis that we conducted.
The crime data and analyses underlying our four major research tasks are
described in subsequent sections Most readers will be more interested in the
policy recommendations based on these analyses, however. Based an the four
major components of our research, we recommend that
• Lacking any conclusive evidence ort the relationship he ere spatial
density and online, than: is no reams to change the c:rffart 1000 foot
minairnnurn spacing requiranent between nus adult businesses.
• Mien the serious public safety Fuca* no adult boneless should operate
withbt 1000 fan of a
• Mere feasalk, the Candidata Use Pbnsit process should be used to
amelidrute the public safety hazard. For optimal effectiveness, the Police
Depararsen:''oxine be fi illy involved in every was of Air Fps.
• Given the interaakin effect, no tavern should be allowed to operate within
1000 fen of an adult business and vice tiers&
• The evidence clearly supports the amass thy ordbtartce riot danonrsrrati'g
the presence of negative secondary effects associated with detection and density
of adult basinsesset as :waked by curnau federal and state case law.
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#
Consultants' Final Report - Page 6
These rrwnrmawe...i..e:ott.. .. - -
of the problem. After developing that foundation in the following section, we
present our analyses of crime patterns in Garden Grove and two related opinion
surveys.
A
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Consultants' Final Report - Page 7
II. Legal Requirements For Controlling Adult Businesses
The legal control and regulation of pornography in generahaod` "adult
entertainment" businesses specifically hu a long and controversial history. The
1970 Commission on Obscenity and Pornography overwhelmingly voted to
eliminate all legal restrictions on use by consenting adults of sexually explicit
books, magazines, pictures. and films.t While President Nixon, who appointed the
Commission, was no pleased with the findings, they were consistent with the
general liberal view that pornography should be tolerated as a matter of individual
choice and taste unless it directly harms others= The Williams Committee in
England supported a similar position in 1979.3 Alternatively, the 1986 Attorney
General's Commission on Pornography called for a more aggressive enforcement
of obscenity laws and regulation of pornography that it deemed harmful even if
not legally obscene.'
The current .judiCinl doctrinal standard that governs the diffauh balance of
constitutionally protected free speech and the direct regulation of pornography, is
Report of the Commission on Ory mid Pbr rogrephy (Bast= Boons, 1970.
l See D.A. Downs, The New Poli is s of Pbrna ► (University of Chicago Press
1989).
See W.A. Simpson, Pornography and Politics: Report of the Ifome Office
(Wateriow Publishers, 1983)4
• Attorney General's Commission on Pornography, Find Report (U.S. Department
of Justice, 1986).
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INDEX
#
9
Consultants' Final Report - Page 8
found in Miller v. California 413 U.S. 15 (1973):
(a) whether "the average person, applying contemporary community
standards' would find that the work, taken u a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state
law; (c) whether the work, taken as a whole, lacks adios, literary, artistic,
political, or scientific value. (24).
Despite this standard, the Attorney General's Commission concluded that
[after the Miller decision)... the nature and extent of pornography in the
United States has changed dramatically, the materials that are available
today are more sexually explicit and portray more violence than those
available before 1970. The production, distribution and sale of
inpornography has become a large, well -organized and highly potable
Indeed, there is some empirical evidence to suggest that the number of
prosecutions` and appeals' of obscenity convictions Stave deed nationwide!
Recently much of the local control of pornography has been of a more
indirect nature given the difficulties of direct regulation and legal faints
involving First Amendment rights. One rather unique approach has been the
attempt to regulate pornography es a violation of women's civil righ*a. This use of
'Final Report supra note 4 at 461.
The New York Obscenity Project, *Aa Empirical y in totbeEffects of
Mier v. California oo the Control of Obscenity', New York- Lksiversity Law Review
32:843 (1979).
L► ' R.E. Riggs, "Miller v. California Revisited: An Empirical Note," Young
ni zz ley Law Review 2:247 (1981).
• See generally Das•ua,
stapes, note 2 at 20.
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# -
I0
Consultants' Final Report • Page 9
anti -discrimination statutes was first tried by Minneapolis' but has failed to catch
on in generaI.10 However. many municipalities veRbeea_veay_sicce$sful.in
--regulating where pornographic businesses and adult entertainment businesses can
locate through the use of zoning laws.
Municipalities have followed two major strategies in regulating the location
of adult entertainment businesses. One approach is to concentrate adult
businesses in a limited area, often called the.Boston.or "combat zone" approach.
The other approach follows the opposite tactic by dispersing admit entertainment
businesses, preventing their concentration, often called the Detroit approach."
In Boston, adult entertainment businesses had been unofficially
concentrated in a specific area of the city for many years.' This "combat zone"
was officially established as the Adult Entertainment District in 1974. It was felt
that by formally restricting such businesses to an area where they were already
established would prevent the spreading of these businesses to neighborhoods
' Minneapolis Code of Ordinances (LIDO), Tide 7, ch. 139.20, sec. 3, =bd. (gg),
m See Downs supra note 2.
u Far a general distonaimi of *ma two approaches sea Planningof
the Los Angeles sty Coaao7, Study of the Effeaz of the Coneaungiat of Adult
Entctahunent Estabtfthmaw In the Ory of La Angela, Las Angeles City Planning
Department (June, 1977) (Hereinafter LA Study).
' This discussion of Boston and the "combat zone' approach is taken from the LA,
Sway id., at 9-10.
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#__-a
11
Consultants' Final Report - Page 10
where they were deemed inappropriate. In addition, concentration of adult
businesses inight_aid in_ the policing of suck _activi_ties anchvoillcilnalceit easier for -
those who wanted to avoid such businesses to do so. There has been some
question as to the effectiveness of this regulatory approach, as the LA Study
observed:
The effectiveness and appropriateness of the Boston approach is a subject
of controversy. There has been some indication that it has resulted in an
increase in crime within the district and there is an increased vacancy rate
in the surrounding office buildings. Due to complaints of serious criminal
incidents, law enforcement activities have been increased and a amber of
liquor licenses in the area have been revoked, Since the 'Combat Zone-
, and most of the surrounding area •are part of various redevelopment
projects, however, the change in character of the area ciurnot be attributed
solely to the existence of 'adult entertainment' busineases°
The other approach that municipalitict.have followed is the dis' persement
model, sometimes called the Detroit model In 1972Detroft modified an *Anti -
Skid Row Ordinance to provide that subject to waiver, an adult theater could not
be located within 1,000 feet of any rivo other %plated Dace or within 500 feet of
a residential area. Regulateduses applied to ten different kinds of business
establishments including adult theaters, mink book stores, cabarets, barstaxi
dance halls end hotels. This statutory mining approach to replacing adult business
was legally challenged and subsequently upheld by the Supne Court as •
t3 Id:, at 9.
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# 'D
Consultants' Final Report - Page 12
such zoning laws. In Renton v. ?daytime Theatres Inc.' the Supreme Court held
-„such statutes_ cannot be, enacted for the purpose -of ressaining-speech -but-have to --
be "content -neutral' time, place, and manner regulations designed to serve a
substantial governmental interest and not unreasonably limit alternative avenues of
communications. In making this determination the court must look to the
municipality's motivation and purpose for enacting the statute. If the statute is
primarily aimed at suppressing Fust Amendment rights it is content based and
invalid But, if it is aimed at the 'secondary effects* such basses have on the
surrounding community, it is content neutral and therefore valid.
In making this determination the court must look at a number of factors,
from the evidence the municipality offers to :rapport a finding of secobdary effects„
to whether the zoning statute eliminates the paaaty of any adult bis
within the jurisdiction of the municipality. Itis the first factor this report is
primarily concerned with..' In the letbsi Theatres cane the Detroit Common
Council made a finding that adult businesses are especially injurious to a
F
n 473 U.S. 41 (1986)(flereinaiter Renton).
21 Ever if an ordinance were enacted far the proper reams the court still most
determine whether the ®rdi>sascewould effectively prevent any operatics clan adult
business within the municipality's jurndletioo, see Wabua Properties, Inc v. City of
Whittier 808 F.2d 1331 (198 6). However this is presumably not an issue for the City
of Garden Grove's ordinance because the enforcement of the ordinance would still
allow the operation of adult businesses in various lacati®m throughout the city.
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# o
Consultants' Final Report - Pie 11
constitutional in Young v American M•
uni Theatre; In+e,_" Thi model has been
adopted by -=nun erous cities including Los Angeles and twelve other Southern
California cities for controlling adult businesses.`
While the dispersal model has been found constitutionally valid, several
subsequent court decisions have limited the way in which municipalities can adopt
" 427 U.S. 50 (1976) (Hereinafter Mini Theatres). This decision is often cited as
the legal basis for a dispersal approach, however the opinion appears to support the
constitutionality of both the dispersal and concentration models:
It is not our function to appraise the wisdom of its [Detroit's] decision
to require adult theaters to be separated rather than concentrated in
the same areas. In either event, the city's interest in attempting to
preserve the quality of urban life is one that must be accorded high
respect. Moreover, the city must be allowed a reasonable opportunity
to experiment with solutions to admittedly serious problems (427 U.S.
50, 71).
Indeed the Supreme Court upheld the Constitutionality of the concentration model
in Renton. "Cities may regulate adult theaters by dispersing them, as in Detroit, or by
effectively concentrating them, ai in Resuaae."(ira note 16 at 52).
Is The best single source for information on this topic is the Los Angeles (may,
Council Planning Committee. According to the L4 Study:
Locally, the cities of Bellflower snd Norwalk have enacted ordinances
requhring adult bookstores and theaters to obtain a conditional use permit. As
a part of their study the City of Bellflower surveyed over 90 sties in Southern
California'to deteractiae how other cities were controlling adult bookstores. Of
the elks which raponded
to the Bellflower survey,12 require
a conditional
use permit far new The medic= for
permit
generally include dispersal and distance requirements Rich t a
model Bellflower also includes regt:tra�entt based ups the Detroit Study supra note at 12).
The L! Study also presents a table lusting 9 cities nationally that have taken a
dispersal zoning approach (Id., Table 11).
•
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# 'D-
H -a
Consultants' Mal Report • Page 13
neighborhood when they are concentrated. This was supported by expert opinion._._
-evidendefr-r
In the opinion of urban planners and real estate experts who supported
the ordinances, the location several such businesses in the same
neighborhood tends to attract an undesirable quantity and. quality of
transients, adversely affects property values, causes an increase in crime,
especially prostitution, and encourages residents and businesses to move
elsewhere."
The courts have not been very explicit in terms of the exact type and nature
of the evidence of "secondary effects" that is required to uphold zoning. Ordinances
regulating the location of admit businesses.. On the one band, failure to introduce
any evidence linking secondary effects with the way the ordinance is enforced, is
insufficient" On the other hand, a complete independent analysis of secondary
effects in each jurisdiction that enacts such laws 'is not. necessary. In Renton]° the
Supreme Court upheld an ordinance without benefit of an independent analysis.
u Mini Theatres supra note 18 at 53. •
"'Here, the County has presented no evidence that a single showing of an adult
movie would have any haianml secondary effects on the cimmmunity. The County has
thus failed to show that the Ordinance, as interpreted by the County to include any
theater that shows an adult movie a single rime, is sufficiently "natr+owfy tailored' to
affect ouiy that category of theatres shorn to produce the unwanted secondary
effects." Renton 106 S.ct. at 931. Nor do we see how the County could make such
a thawing, since it is diffladt to imagine that Anil► a *fie k shou+iag c*at, ar only ace
to a year, waubd have any meaningful secondary effects." Tail Inc. v. Son Bernardino
Country 827 F.2d 1329,1333 (9th Cir. 1987).
m Chy of Renton v Playbste Theatres, Inc., 475 U.S. 41, 106 S.Ct 925, 89 LEd-2d
2a(1986).
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#
�5
Consultants' Final Report - pale 14
y _
In this` cite the City. -®f _Renton relied heavily _upon the study of secondary effects-_
done in Seattle to justify its ordinance. The Court held:
We hold that Renton was entitled to rely on the experiences of Seattle
and other cities, and in -particular on the `detailed findings" summarized in
the Washington Supreme Courts Wartime' Cbwm% Inc v. Seauk. 90
Wash. 2d 709, 585 P. 2d 1153 (1978)] opinion, in enacting its adult theater
zoning ordinance. The Fust Amendment does not require a city, before
enacting such an ordinance, to conduct new studies or produce evidence
independent of that already generated by other cities, so long as whatever
evidence the city relies upon is reasonably believed to be relevant to
problem that the city addresses,`u
The Los Angeles Clly ping Department condacted a Rudy of secondary
effects in I977,n to support a spacing ordinance swat to the Detroit dispersal
model. Since Garden Grove's ordinance follows the• same model it may have
been legally sufficient for the City of Garden Grave to rely on tie Loa Angeles
study. However. the Los Angeles study is 19 years old and it could be argued that
because of its size, populates structure, real estate market, and other municipal
characteristics, Los Angeles is see s good calamine city for Garden Grave.
Liles the IA Study" thio aealysis relies on a atuhimethodalogical approach
to analyze secondary effects associated with the location of adult businesses. Both
an analysis of ewe roes and sump wen =ducted to aoalysa semedary effects
n Rattan, id., 475 U.S. 41 at 51-52.
a See U Shy supra note
z3 Supra note 11.
INDEX
Ike
Consultants' Final Report • Pane 15
associated with such businesses. Unlike the LA Study this analysis is more
The LA Study examined the secondary effect of crime rates and their
association with adult business by comparing the crime rates of Hollywood area
(which had a large concentration of adult businesses during the period studied,
November 1975 and December 1976) to the rest of the city.' This analysis did
show there was an increase in both Part l" and Part IP crimes associated with
the Hollywood area and its higher concentration of adult businesses in comparison
to the rest of the city. While supporting. the presence of secondary effects, the
analysis has several disadvantages for supporting a dispersion regulation model in
Garden Grove.
The City of Garden Grove is not very similar to Hollywood, either m
municipal character, or concentration and type of adult businesses? More
' The analysis presented in the LA Surd, was taken from a report prepared by
the Los Angeles City Police Department, The Impact of Sat Orie ued Businesses on the
Police Problems in the Clay of Los des.
b Past I .crimes incisde homicide, rape aggravated assault, robbery, burglary,
larceny, and vehicle theft
a~ Part II dimes include other assaults, forgery and counterfeiting. embezzlement
and fraud, stolen propem proseintion. nary, lid law pcmblin& and
other miscellaneous misdemeanors.
Hollywood in 1969 had 1 hardcore motel, 2 bookstores, 7 theaters, and 1
massage parlor/scam joint; in 1975 had 3 hard-core motels, 18 bookstores, 29 theatres,
and 38 massage parlor/scans joints, (see LA Study, Table VI, p. 54). Garden Grove on
the other hand only has seven bookstores and adult video stores.
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Consultants' FZnal Report • Page 16
importititly, Garden Grove seeks to Control -adult businesses in terms of their=
location to schools, churches, and residences (200 feet) and in relation to each
other (1000 feet).S6 To substantiate the relation between these distances and the
secondary effects needed to justify the regulation, the analysis should demonstrate
an association between the' secondary effects and these distances. For example, if
crime rates are higher within 1000 feet of an adult business than they are around
other businesses, this demonstrates a stronger association between secondary
effects and the regulation designed to control them. While areas of a city that
have higher concentrations of adult businesses may have higher crime rates than
other areas, this gives little support for regulation of specific distances between
adult business and other land uses.
The LA Study also presents the analyses of two questionnaires, one to
businessmen and residential property owners, and one to reshot*, real estate
appraisers and lenders„ to determine the effects of aduk businesses. While the
questionnaires do ask the respondents about posatble negative effects,.there was no
distinction between the negative 'effects when the distance from adult bis
varied, nor when there were two ce more such busineis loaned near each other.
Both of these issues are important aspects of the idea Gruen
n See Appendix for the Garden Grove ordinance.
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# D lf�
Consultants' Final Report • Page 17
III. Crime In Garden Grove, 1981-1990
During the decade of our study, 1981-1990, the Garden Grove Police
Department recorded 108,196 UCR Part I crimes (112 homicides. 548 rapes, 3,835
robberies, 16,677 assaults, 24,498 burglaries, 51,393 thefts, and 11,133 auto thefts)
and 17,274 UCR Part II crimes (2,828 sexual offenses, 5,353 drug offenses, 5,651
alcohol offenses, 972 weapons offenses, and 2,460 disorderly conduct. Figure 1
lends perspectiveto these numbers. Part I crimes, which arse ordinarily thought to
be the "most serious" crimes, make up more than 85 percent of the total. Part 11
crimes, whichinclude many of the so-called 'victimless" crimes, make up less than
fifteen percent of the total. Another important difference between these two
categories is that, while Part I crimes almost always begin with a citizen complaint,
Part II critics may result from proactive policing. For this reason, Part II crimes
have turned out to be less interesting to this study. Although we ford a strong
relationship between the distribution of Part II crimes (especially Part 11 sex
offenses) and the locations of aduh.businesses, we cannot draw a valid causal
relationship fru this finding. Part I crimes are quite another matter.
As shoos in Figure 1, Part I mines can be divided ember into Personal
and Property categories Personal crimes (or crimes age the person) account
for approximately twenty percent of the Part I total. Seventy-eight percent of
Personal crimes are assaults; 18 percent are robberies, three percent are rapes,
DOC.
INDEX
^'�Jn
V Gam^
1g
Consultants' Fuel Report - Par '17:1
Figure 1 - Distribution or Crimes in Garden Grove, 1981-1990
Total Crime
Part 1 Personal
C. ug
3353
Part lE
Pert n semi
2e3e
Part 1 Property
eur.ery
314U
Troll61933[
DOG.
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20
Consultants' Final Report - Page 18
and slightly less than one percent are homicides. Property crimes (or crimes
against property) account for approximately eighty percent-of,the Part I total.. Of-
these, 60 percent are thefts, 28 percent are burglaries, and 12 percent are auto
thefts. Although it is tempting to think of Property crimes as less serious than
Personal crimes, we caution the reader to remember that every crime has a deadly
potential. Every armed robbery is a potential homicide. Every theft, burglary, or
auto theft could quickly turn into a deadly confrontation. While subsequent
analyses may distinguish among the seven crimes then, we do this far didactic
purposes only. In our opinion, in practice. any Part I crime poses a serious threat
to public safety.
With this caveat, we note that the mix of crimes is Garden Grove its not
significantly resent than the mitt found in outer California cities during the =me
period. This is also true of population -adjusted crime rases. Relative to other
California cities, Garden Grove has neither a 'high" Cr 'low (lithe rate." To
iIustrate this point, Table 1 lists the 1985 Part 1 crime rates for twenty-four
representative cities. Garden Grove ranks slightly above the median on homicide
and sato theft, and slightly below the median au rape, robbery, meek, burglary,
" The Garden Grove Police Department is arpnixed into community 'teams,'
however, and it is generally believed that this organizational structure encourages
police -citizen interaction, including reporting of cringes Other things being equal,
Garden Grove is expected to have a higher crime rate than a city whose police
department is structured along more traditional lines.
DOC.
INDEX
# o --
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Consultants' Final Report a Page 18.1
Table 1 - Crimes per 100,000 Population for California Cities, 1983
Homicide Rape Assault Robbery Burglary Theft Auto
Theft
Anaheim 7.3 48.8 273.8 199.6 2351. 4348. 777.
Bakersfield 6.6 65.3 567.2 489.3 3651. 6649. 796.
Berkeley 10.6 41.6 638.7 435.5 2836. 7971. 841.
Concord 2.9 27.9 102.2 258.3 1376. 4076. 430.
Fremont 2.3 25.8 65.2 372.1 1354. 2969. 265.
Fresno 21.2 81.8 566.9 392.7 3632. 7745. 812.
Fullerton 4.9 32.3 168.2 201.5 1503. 4071. 503.
Garden Grove 10.5 38.1 325.2 293.6 2159. 4040. 693.
Glendale 2.9 12.2 189.1 140.2 1378. 2940. 663.
Hayward 6.4 38.5 267.1 405.0. 1809. 4926. 503.
Huntington Beach 2.4 22.3 100.9 147.8 1378. 2883. 430.
Inglewood 28.7 112.6 1236.2 630.8 2417. 2586. 1660..
Modesto 4.7 52.4 187.0 276.7 1979. 6149. 505.
Ontario 9.0 76.6 327.6 713.8 2321. 4088. 699.
Orange 5.5 25.2 219.8 247.1 1712. 3540. 602.
Oxnard 6.5 61.9 294.8 300.4 2008. 3984. 527..
Pasadena 24.6 49.1 596.3 590.3 2262. 5110. 921.
Pomona 25.9 92.7 907.9 1035.1 3155. 4337. 911.
Riverside 8.2 57.4 340.0 690.5 2628. 4849. 570.
San Bernadino 14.3 87.6 876.3 914.2 ' 3783. 5295. 1127.
Santa Ana 16.2 28.9 424.0 294.6 2498. 6612. 1134.
Stockton 18.2 61.4 475.4 497.7 3347. 7937. 739.
Sunnyvale 4.7 27.2 71.9 100.4 759. 2544. 245.
Torrance 3.1 28.5 254.9 202.5 1150. 3024. 865.
Source: Uniform Comte Reports, 1985
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# O-
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Consultants' Final Report - Page 19
and theft. None of these rankings is significantly different than the median, of
course, and furthermore„.the--rookingtfluetitata,slightly from year to year. While
Garden Grove has an "average” crime rate relative to other .cities, however, like
any other city, Garden Grove has a range of "high" and "low" cameneighborhoods.
We will address this point in greater detail shortly. For the present, it is important
to note that crime rates, vary widely across any city.
Crime rates also vary widely over time. To illustrate again, Figure 2 shows
annual Part I and Part II crime totals for Garden Grove aver the decade of this
study, 1981-1990.30 In some cases, auto -theft and assault, for example, crime
appears to trend steadily upward. In other cases. particularly burglary, mime
appears to trend steadily downward. In all cases, however, the trend is only
apparent- In every comfort spatial area that we have emmbred for this report, se
found ten-year trends to lie well within the bounds of stochastic cunt. In other Kurd,,
we found no statistically s tiff n vends. For reasons too numerous. , opted,
and obscure to be discussed here, time series of crime totals drift stochastically
from year to year and it is the mathematical nature of a drifting process to appear
�
to rise or fall sysreutticslly over time. Although this phenonsesion has been
widely reported by statisticians gime the early 19u& smeary. it is not vwell
so Since these are crime totals (not crime rates), Figure 2 must be interpreted
cautiously. Due to annesadon, in -migration, out, -tui tion, and
gn growth, the
population of Garden Grove has changed dramatically over the last ten years.
DOC.
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2,3
Consultants' Final Report • Page 19.1
Figure 2 • Annual Crime Trends in Garden Grove, 1981.1990
e h
•
MI r
r •
✓ -
i
a a Z
R
acu,Jo jenuud
cb
z
DOC.
INDEX
D 2)4
Consultants' Final Report . Page 19.2
Figure 2 - Annual Crime Trends in Garden Grove, 1981-1990
1 !
r
iit
1
DOC.
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#0e
Consultants' Final Report - Pap 20
understood ° by:popuiar-media or the public. Nevertheless,_each of= the seven Part I
crime trends is consistent with a "random" process and, hence, each is amenable to
a statistical analysis. The five Part II crime trends, in contrast, are not'at all
consistent with a 'random" process. To illustrate, note that total sex offenses
increase (from 320 to 480) by fifty percent from 1987 to 1988 and thea decrease
(front 480 to 232) by fifty percent from 1988 to 1989. Annual changes of this
magnitude lie well beyond the bounds of Normal "random" variadon. In fact, the
anomalous 1988 total is due to a concerted enforcement effort by the Garden
Grove Police Department. Lacking complete information on Part II enforcement
activities during the 1981-1990 decade, we cannot attribute changes in Part II
crime rates to the operation of adult businesses. Although we report effects for
Part II crimes in subsequent analyses, the only fraternally valid effects are for Part I
crimes.
Figure 3 shows another type of tread. Examining the day of the week of
the seven Part I crimes, a distinct pattern emerges. We see here that the
occurrence of Personal alma peaks on weekends. Conversely. Property crimes
peak during midweek and are learn likely to =CT on weekends. The bask kw than
pattern is well established in theory; gime: occur when the opportunigy is made
svatlabk to a person.who is inclined to commit criminal actions. Opportunity is
defined differently for Personal and Property crimes, however. Personal crimes
(especially anonymous robbery and assault committed .against strangers) are best
DOG.
IN 'EX
#
212
Consultants' Final Report. Page 20.1
Figure 3 - Crimes Weekday in Garden Grove, 1981.1990
=
__,--,------, ---_-',----_,==--_---'; •=:.- „ — _ _
P411
!watt rFcr
44.17".7j . ' ; ..........
Eh
.... .............. .. ; ... r ....
.... . . ............ , ........
NM=
CD
co
=MO
INDEX
#
Consultant? Final Report - Page 21
conducted under cover of darkness, on an intotdcated victim, in a relatively
__:—.11esertedtpubliciocation;- -These conditions-presuntably occur on weekend nights
outside bars or adult businesses. In daylight, the desired anonymity is
unobtainable and the vulnerable, prospective victims are not on the street Thus,
Personal crimes arc committed most often on weekend nights.
The opposite pattern holds for Property crimes. These crimes, notably theft
and burglary, are most often committed when the offender is kastlikely to
encounter any witnesses. In theory, the best time to break into a residence
undetected is during the weekday daytime hours when most occupants are away
from home. For our purposes, however, the weekday patterns found in these data,
as shown in Figure 3, are a simple ccmfumation of the reliability of our data.
More imPonant, perhaps, finding the sane patterns in all four. Personal mimes
and all three Property crimes justifies collapsing Part I crimes into two broad
categories. Hereafter, except where an effect or pan= varies across tbe Part 1
crimes, effects and patterns will be reported for Personal, Preperty, and Part II
crime categories.
DOC.
INDEX
0
24.1
Consultants' Final Report • Pane 22
0,04 Area Anil':Puble 5ahety_i�aa�d
At present, seven adult-oriented businesses operate on Garden Grove
Boulevard. The Party House, Located at 8751 Garden Grove Boulevard, was in
operation on December 16, 1980, when.. the City of Garden Grove annexed this
area. Two other adult businesses, the Bijou and the Video Preview RentalCenter,
located at 8745 and 8743 Garden Grove Boulevard in the same budding as the
Party House, "opened in March, 1986 and August, 1988 respectively. Given the
proximity of these three businesses, their individual impacts on crime are
confounded. Treating them u a single cluster of businesses, however, we find a
significant increase in both Personal and Property crimes following the openings of
the adult businesses at 8745 and 8743 Garden Grove Boulevard in Marsh, 1986
and August, 1988.
The Adak, located at 8502 Garden Grove Boulevard, and the Al to Z,
located at 8192 Garden Grove Boulevard, are far enough away from the 8700
block to allow for an assessment of individual impact. But :ansa these businesses
opened m February and May, 1980, at the very beginning of oar crime data, there
is no simple causal benchmark for attributing cribs around these byes to
their operation. The pattern of crime around theae'bnsinaaes is nevertheless
consistent with that hypothesis. At the other end of Garden Grove Boulevard,
the Hip Pocket (12686) and the Garden of Eden (12061-5), which opened in 1971
INDEX
30
Consultants' Final Report - Page 23
and 1977 respectively, pose the same problem. In March, 1983, however, the
arde ='of eire paalded its -operation franc= suite truce -Min _the=cae -of--
the Parry Houre-Bijou-Video Preview Rental Center canopies on the other end of
Garden Grove Boulevard, we find a significant rise in crime coincident. with this
expansion. The analyses supporting these findings will be presented shortly.
In our opinion, these seven adult businesses constitute a serious and
significant public safety hazard. One aspect of this hazard is apparent in Table 2.
During the 1981-90' decade, 610 Garden Grove Boulevard addresses had one or .
more crimes." The seven adult business addresses accounted for 239 Personal.
694 Property, and 538 Part II crimes, however, so these seven addresses accounted
for 10.5 percent of the Part 1 and 25.5 percent of the Pan ll ane ors Garden Grove
Boulevard during the Ian decade Since this disparity maid occur by chance alone
less than Otte time in one.hundred, the implied difference between these seven
addressee and the 603 other Garden Grove Boulevard addresses with one or moan
crimes is statistically significant The second colonof numbers in Table 2 are
ranks. These numbers tell the same story but=froar a different perspective. As
shown, three of the top tam' Part I crane "hot spot' are found at the adult basin=
address. Fre of the top tea Dart II deme 'hot spots" are find el the adult
s►
Of course, mart Garden Grove Boulevard addresses had no crimes during 1981-
90. Of these addresses with at least one crime, more than 55 percent had only one
crime.
INDEX
31
Address
Consultants' Final Report • Page 23.1
_
-alffer:"Relio-lied Crimes forAdulirBithinestei
Garden Grove Boulevard Only, 1981-1990
Bookstores/Peepshows
Personal Properly Pan! Pan II
N Rank N Rank N Rank N Rank
8192 Garden Grove 16 19 190 5 206 5 160 1
8502 Garden Grovi 25 9. 93 13 118 11 52 7
8743 Garden Grove 0 7 192 7 217 4 71
8745 Garden Grove 3 91 17 98 20 112 10 70
8751 Garden Grove _ 12 29 116 7 128 9 94 5
12061 Garden Grove 11 34 98 10 109 15 68 . 6
12686 Garden Grove 6 57 173 6 179 6 150 2
Address
8112 Garden Grove
8284 Garden Grove
8575 Garden Grove
8801 Garden Grove
8803 Garden Grove
12045 Garden Grove
12082 Garden Grove
12761 Garden Grove
-12889 Garden Grove
Barstraverns
Petsonal Property Pan I Part rl
N Rank N Rank N Rank N Rank
41 1
15 23
23 7
10 46
21 13
26 8
33 4
11 40
34 3
aiV4WAttb:t
12 135 8 22 17
50 50 40 469
16 112 13 35 11
.47 48 41 14 31
23 77 23 2020
25 85 20 - 19 23
15 120 9 43 9
78 35 61 4 81
18 112 13 19 23
'DOC.
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Consultants' Final Report - Pap 24
business addresses, but this may be expected.
Of- Tse --'one-canargue -that the relationshipis noncausal or spurious;
that these businesses simply moved into a neighborhood that happened to already
have a high crime rate. We test and reject this hypothesis in the next section. For
now, we draw attention to the Bar/Tavern addresses in Table 2. If the alternative
hypothesis is that the Garden Grove Boulevard neighborhoods had high cruse
rates before the seven adult businesses moved in, we would expect to these
addresses to have high crime rates u well (more so given that alcohol is served at
these addresses). On the contrary, however, we find that these addresses have
generally lower crime rates than the adult business addresses. Whereas three of
seven adult business addresses are in the top ten Part I crime 'hot spots,,' only two
of nine bar/tavern addresses make the top -ten him in this sense, the seven adult
business addresses on Garden Grove Boulevard constitute serious, 'significant
public safety hazards.
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3
3
Consultants' Final Report - Page 2S
V. Quasi -Experimental Contrasts
The address -specific crime counts in Table 2 are compelling evidence of the
public safety hazard posed by the adult businesses on Garden Grove Boulevard.
Simple counts do not satisfy the criterion of scientific validity, however, for there
are many noncausal explanations for any set of numbers. Validity requires that a
change in the operation of an adult business be followed by a change in the crime
rate near the business. If the before -after change proves statistically siert.
validity requires further that the same before -after change not be found in a
suitable "control" area. Only after both criteria are satisfied an we state in
scientifically valid terms that an adult business poses a public safety hazard.
The fact that the adult businesses ern Garden Grove Boulevard have
operated continually for the past decade has had an impact on our ability to
conduct proper beer analyses. ice,, crime should be contrasted in a
location before and after an adult business opens. Although this is not literally
possible, given the its of time and data, there were three major expansions
of adult byes at two existing locations and analyses of thew changes confirm
the picture of these bum painted by Table 2. The ental
contrasts derived from these analyses are outlined in greater detail here.
1) In March, 1982, the Garden of Edon expanded from a single suite at
12061 Garden Grave Boulevard into the adjoining suites at 12063 and 12065
DOE.
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3�
Consultants' Final Report - Page 26
Garden Grove Boulevard. The before/after and test/control contrasts for this
change are:— -
Test Site
Personal Crimes
Property Crimes
Part 11 Crimes
Control Site
Personal Crimes
Property Crime,
Pars 11 Crimes
One Year Before One Year'After
200' 500' 1000' 200' 500' 1000'
1 14 28 43
10 46 84 140
21 11 16 48
15 16 28 59
17 58 167 242
16 12 17 45
200' 500' 1000' 200' 500' 1000'
0 11 22 33
13 52 76 141
15 23 27 65
1 .9 28 39
12 56 87 155
11 22 29 62
Over the next year, Personal crimes within a 200 -foot radius rose significantly
compared to the preceding year.= Also compared to the preceding year,
Property crimes within a 1000 foot radbas rose sipificantly. The effect of the
expansion on Part II crimes was armed and largely insignificant. To control for the
posaility that these effects were due to unrelated extraneous variables, a *oontror
site was developed from the meals crime Counts of the other ate adult businesses.
While crime rase m the vicinity of the Gorden of Eden, however.=in' e remained
static at the 'control* site. Aocarcfingly, weattribute dm increases ti Permnal and
Property crimes to the =pension of the adult business.
Hereafter, unless stated otherwise, a tagnifIcast effect will imply a Probability
of .01 or kss.
DOC.
INDEX
Consultants' Final Report. Page 27
2) In March, 1986, the Bijou opened at its present location, 8745 Garden
--"Gritrve-Bonlevard. -Since-Abe Parry -House had been operating at 8751 Galati'''.
Grove Boulevard prior to this tinie, the opening of B(jou was in effect an
expansion. The before/after and test/control contrasts for this change are:
Test Site
Personal Crimes
Propeny Crones
Pan 11 Crimes
Control Site
Personal Crimes
Property Crimes
Parr Lf Crimes
One Year Before One Year After
200° 500' 1000' 200' 500' 1000'
2 7 21 30
3 19 94 116
13 14 43 70
6 11 30 47
11 40 113 164
8 13 42 63.
200' .500' 1000' 200' 500' 1000'
2 10 30 42
19 49 76 144
24 13 25C
1 11 31 43
20 60 '67 147
19 16 34 69
Over the next year, both Personal and Property crimes rose significantly within a
500 -foot radius. The effect on Part II crimes was mixed and largely insignificant
Slice no sinular effect was observed at econtior site developed from the mean
crime counts of four other adult buns the increases are mauled to th
opening of the Bijou.
3) In Ante, 1988, the Video heview Rental Center opened a 8743 Garden
Grove Boulevard. Since the Parry House and Bijou were already ia operation, this
opening too is treated as an mansion. The before/after and test/control contrasts
DM.
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for this change are:
Test Site
Personal Crines
Property Crimes
Part ll Crimes
Control Site
Personal Crimes
Property Crimes
Part II Crimes
Consultants' Final Report - Pap 23
One Year Before
200' 500' 1000'
One Year After
200' 500' 1000'
0 10 51 61 4 1S 44 65
3 19 67 89 6 23 60 91
11 13 16 40 34 11 25 70
200' 500' 1000' 200' 500' 1000'
1 13 49 63 1 11 54 66
5 22 74 101 4 24 68 96
9 17 22 48 23 13 20 61
In the following year, Personal crime rose significantly within a 500 -foot radius,
Property crime rose significantly within a 200 -foot radius, and Part 11 crimes rose
significantly within a 200 -foot radius (which is to say, at the Party hioi a Bijou-
Tideo eit w Rental Center complex- No incleases were observed ata 'control*
site developed from the mean crime counts of four other adult businesses.
. The consistent pattern of effects in these three cases demonstrates that the
adult businesses are indeed a public .safety hazard as the data presented in the
preceding section suggest. Given the nature of the operational changes in these
three cases, furthermore, it appears that am expansion of as aduht buses will
have the same effect. In light of the potentially lace area of the _hazard and the
predatory nature of the crines associated with the haard, we recommend that no
new adult businesses be allowed to operate within 1000 feet of a residential area.
Of course, virtually any increase in economic or social activity might be
DOC.
INDEX
3`1
Consultants' Ftnal Report - Page 29
expected _,to produce some, increase in -crime_ (though _perhaps not so.large an
increase as was observed in these three cases). When an increase in crime can be
attributed to a specific economic or social activity, it is reasonable to expect the
responsible parties to take steps designed to ameliorate the problem. In one
instance where an adult business acted to ameliorate a nuisance, however, the act
had no impact on crime.
4) In September, 1988, the City installed a blockade in the alley
immediately to the west of the Adult (8502 Garden Grove Boulevard) to prevent
"cruising." While • the blockade undoubtedly accomplished this intended purpose,
there was no significant effect on Personal, Property, or Part II conies in the
vicinity of the Adult. The before/after contrasts for this change are:
One Year more One Year After
Test Site 200' S00' 1000' 200' 500' 1000'
Pastaza! Crimes
Property Crimes
Part 11 Crimes
2 13 26 •41 2 11 21 34
3 19 67 89 6 25 60 91
11 • 13 16 40 34 . 11 25 70
Although this simple architectural device had no significant impact an crime, there
are undoubtedly many poeitlae steps that an adult business cat take to reduce
aime in its vicinity. Sinus to arra lie, no saw steps were taken during
1981-1990, we cannot speak Frith authority on the likely effectiveness of the various
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# O -d
3r6
Consultants' Final port - Page 30
amelioration strategies." Nevertheless, we recommend that the City use its
- legitimate -zoning authority to ensure that any near adult business will have a
minimum impact on crime in its vicinity. Beyond this recommendation, ,we find
strong evidence to suggest that the public safety hazard posed by adult businesses
on Garden Grove Boulevard is exacerbated by proximity to a bar or tavern. This
is based on two contrasts.
5) In April. 1985, a bar opened at 8112 Garden Grove Boulevard,
approximately 425 feet from the A to Z. The before/after and test/control
contrasts for this change are:
Test Site
Personal Crimes
Property Crimes
Parr 11 CAMS
One Year Before
200' 300' 1000'
0 1 12 13
9 29 56 94
4 2 7 13
Control Site 200' 500' 1000' •
Personal Crimen
Property Crimes
Part 1ICrimes
0 1 14 13
4 12 43 11
4 8 7 19
One Year Atter
200 500' 1000'
2 8 35 45
7 41 62 110
2 9 11 22
200' 500' 1000'
0 2 14 16
2 19 M 72
5 9 12 26
In the sobaequent year, Personal crime within 1000 feet role aimcantly.
" A similar architectural device was installed at the A to Z (8192 Garden Grove
Boulevard) in May, 1990. We have insufficient data to measure the effect of this
intervention, however.
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#
3(
Consultants' Final Report . Page 31
Although Property crime also rose, the increase was not significant. No significant
; ngesvas=observed :at a-'controrutitt�so:thcincsease in Personal crime was
attributed to proximity to the bar. Since analyses of crime 200, 500, and 1000 feet
from 8112 Garden Grove Boulevard (the bar) show no comparable effect, the rise
in Personal crime cannot be attributed to the bar alone. Rather, it must be'due to
an interaction between the bar and the adult business.
6) In May, 1989, a bar closed at 12889 Garden Grove Boulevard,
approximately 1075 feet from the Hip Pocket. The before/after and test/control
contrasts for this change are:
Test Site
Personal Crimes
'Property Crimes
Part 17 Crimes
Control Site
Personal Crimes
Property Crimes
Pars 11 Crimen
One Year Before
200' SOO' 1000'
2 9 13 24
4 15 29 48
13 22 8 43
200' 500' 1000'.
0 2 12 14
5 11 39 a 55
7 8 7 22
One Year After
200' SOO' 1000'
2 13 9 26
5 19 39 63
80 26 5 111
200' 300'-10010'
1 1 14 16
.3 13 44 60
7 8 13 28
In the subsequent year, no significant change was observed either in Peraoaai or
Property crime; since not withstazding the change was in the opposite
direction of what was 'expected. Part II crimes within 200 feet of the Hip Pocket
rose precipitously and significantly. No change was observed at a "control' site.
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Consultants' Finial Report e Page 32
Information from the Police Department suggests, however,. that the increase in
_Pan II crimes was the result of an unrelated enforce est campaign.
Failure to find any significant effect in this case suggests that the interaction
effect observed in the preceding case is limited to 1000 feet. While we strongly
recommend that no new adult business be located within 1000 feet of a bar (and
vice versa), there is no evidence of interaction at distances exceeding 1000 feet.
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Consultants' Mal Report - Page 33
VL Survey of Real Estate Professionals
Following the research model of the LA Study, an analysis of real estate
professionals was conducted to .determine- the prevailing professional opinion of
the secondary effects produced by presence of adult businesses." The
questionnaire instrument developed for this task distinguished between the effects
on single-family residential property, multiple -family residential property and
commercial property value& In addition, it asked for information on' the effects of
adult businesses within 200 feet, within 200-500 feet and the effects of two or more
adult businesses within these distances. Not only were the effects on property
values determined but also, effects on other issues that litigation in this area has
found important such u crime, traffic, noise, safety of amen and children. quality
of life, rents, loitering, and the ability to attract other businesses and customers
were identified.
In January and February, 1991, copies of the instrument were sent to the
membership list of the West. Orange County Association Of Realtors. Of the total
954 surveys seat out, 30 was returned with incorrect addresses The .remaining
sample of 924 resulted in a return of 141 emmpleted . questionnaires. 'Of these 141,
" See the Appendix for a copy of the questionnaire instrument and a complete
tabulation of reapcnses.
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# p-��
Censultants Final Repeat - Pap 34
19 where eliminated because of response bias." The final analysis is based on
— 122 valid responses."
The overall sample was very experienced in real estate, with 12.6 of years
experience on average. This group of real estate professionals was very ,
knowledgeable about Garden Grove .real estate, with.a mean experience in Garden
Grove real estate of 10.1 years. The overwhelming majority of respondents •
(94.3%) also said that they had an opinion on the impact of adult businesses on
the community.
The first set of items in our survey elicited opinions. pertaining to the
impact on property values by adult businesses. When adult businesses are located
within 200 feet of a residential or commercial property the overwhelming opinion
is .that property valuta will be substantially decreasect.
" Throughout the questionnaire, various questions were worded in either a
negative or positive fashion. This is done to eliminate respondents that merely circle •
one response, such is strongly agree, to all questions. The assumption is that a
respondent who is answering the questionnaire in a responsalile fashion would not
strongly agree with:both a negative assessment crf adult businesses and` a positive
assessment of adult businesses,
2. This gives a response rate of /22=4 or 13.2%. This is somewhat lower than
the response rate for the LA Study of 81/400 or 20% (p. 38). However, that report
makes no mention of correction for response bias. If the 19 returned questionnaires
that were eliminated for response hiss had been included in the analysis, the response
rate would have been 141/924 or 15.3%.
DOC.
INDEX •
# -0-
- •
ConsultantsMai Report - Page 35
Decrease No Effect Increase
Single-family= 97.S% - 2.5% 0.0%
-Multiple-family 95.0% 5.0% 0.0%
Commercial 8L5% 15.1% t 3.3%
Wh en adult businesses are located more than 200 feet but len than 500 feet of a
residential or commercial property, the effect diminishes only slightly:
Decrease No Effect Inmate
Single-family 95.1% 4.9% 0.0%
Multiple -family 915% 6.7% 0.8%
Commercial 77.5% 20.0% 2.S%
The difference between 200 and 500 feet is insignificant Otherwise, the strongest
impact occurs for single-family residences with a smaller (though still extremely
large and significant) impact on commercial property.
The density of adult businesses is also considered to have a negative impact
on property values. When two adult businesses are located within 1000 feet of
each other and within 200 to 500 feet of a property, whin are expected to
diminish significantly:
Decrease No Effect Increase
Single-family 89396 9.3% 0.8%
Multiple-fathlly 86.11% 12..3% 0.8%
Commercial • 71.9% 27.3% , 0.8%
Density impacts are judged to be slightly smaller than the impacts of location per
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Corsuitants' Final Report e page 36
se. The density impacts on property value are Large and significant nevertheless
and support a density_ re
For location and density alike, the overall pattern is clear. The vast
majority of real estate professionals associate location of an adult business with
decreased property values for single-family residential, multiple -family residential
and commercial property. Clearly, these data indicate the presence of an adult
business creates the secondary effect of decreased property values.
A second set of items elicited opinions on the impact of adult businesses on
residential neighborhood qualities. A majority of respondents felt that locating an .
adult business within 200 feet of a residential area would result in increased crime,
traffic, litter, loitering and noise; and decreased safety for women and children,
quality of life, and rents. Specific responses were:
Increase No Effect Decrease
Crime 93.1% 6.O% 0.9%
Traffic 97.4% 1.7% 0.9%
Litter 86.2% 12.1% 1.8%
Noise 7;4% 243% 3.6%
Safety 27.4% 10.6% 61:9%
Quality of Life 18.4% 6.1% 75.4%
Rents 8.0% 10.6% 81.496
85.5% 5.1% 9A%
When asked about problems in relation tocommercial properties„ the vast majority
of respondents blamed adult businesses for the same problems cited for residential
DOC.
INDEX
LI S-
Consultants' Final iteport • Page 37
•
properties and, also, for decreases in quality_ of business environment -commercial
rents, ability to attract new businesses, and ab0.ity of non -adult businesses to
attract customers. Specifically:
Increase No Effect Decrease
Crime 88.7% 9.6% 1.7%
Traffic 76.7% 20.7% 2.6%
Litter 83.5% 15.7% 0.9%
Noise 67.0% 29i% 3.6%
Safety 232% 12.5% 64.2%
Business Environment 115% 6.3% 8L2%
Commercial Rents 8.4% 13.9% 75.7%
Loitering 77.0% 8.0% 15.0%
Attract Businesses 7.9% 3.3% 88.3%
Attract Customers 8.8% 7.0% 843%
This general response pattern is essentially duplicated when respondents are asked
about the impact of locating two or more adult businesses within 1000 feet of each
other and within 200 feet of a residential or commercial area.
These findings are consistent with other studies addressing the negative
impact associated with the location of adult businesses." Closer analysis of
response patterns reveals that respondents who felt adult businesses produce a
decrease in property nines also are likely to respond that these businesses have a
negative effect on a neig hborbooti One of the strongest arsoaaatioms was between
decreased property values and increased crime. This is consistent with our analysis
" See for example the LA Report.
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# 1'') --
4
Consultants' Final Report - Page 38
of the crime data. The data from this survey clearly indicates that real estate
AlrOfittsionalsfeel that aduli businesses are asiociated with decreased property
values and decreased quality of neighborhood for both residential and commercial
areas.
DOC.
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#
Consultants' Final Report - Page 39
VII. HctttsehulSktrvr_ Results,
The final component of this research project was a survey of Garden Grove
households to assess citizen perceptions of the issues. Toward this end, we first
developed a questionnaire instrument based on instruments used in prior research
but modified to reflect the particular circumstances of Garden Grove. After field-
testing an early version of the instrument on a random sample of Santa Ana
telephone households in March and Apn'I, 1991, a refined final version of the
instrument was then administered to a stratified "random" sample of Garden
Grove telephone households in the summer of 1991 " To ensure that the sample
included households in the proximity of problem areas, the total sample of N=250
included 200 addresses located.within 1500 feet of an adnh boniness. We cannot
therefore generalize our results to the larger population without applying a set of
sample weights. As it turns out, however, the survey results are so nearly
unanimous that there is no need for complicated statistics.
Interviews were conducted by Garden Grove Police Department cadets, the
Consultants, and their research assistants. Standard survey research
were observed and independent audits were used to maintain the reliability and
validity of responses. By Labor Day, 1991, each of the 250 households in the
s, A copy of .the final version of this instrument and tabulated response
frequencies are found in the Appendix.
-DOC.
INDEX
Consultants' Final Report - Page 40
sample had either been contacted (with a completed interview or a refusal) or
_ - ruled _ out ole the sa pie. The banal breakdown of the sample -by interview status -
is:
Completed 118 47.2% 80.3%
Refused 29 11.6% 19.7%
Language 20 8.0%
No Answer 42 16.8%
Invalid 41 16.4%
Total 250 100.0% 100.0%
Non-English speaking households could not be interviewed and this is unfortunate.
Nevertheless, the number of completed interviews (118) and the completion rate
(80.3%) of this survey (80.3%) emceed the numbers realized in household surveys
conducted in other cities. Accordingly, we believe that our results present the
most accurate avatilable picture of -attitudes toward adult businesses.
General Pereeptiims of the Problem. The general public perceives the adult
businesses on Garden Grove Boulevard as a serious problem that has a roil impact
on daily life- While perceptions of the nature of this problems easy somewhat,
virtually everyone polled associates these businesses with one or snore negative
"Phone number were ruled cut for any of three reasons: (1) the number was not
located in Garden Grove; (2) the number was a business; or (3) no one at the
number spoke English.
DOC.
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Consultants' Final Report - Page 41
aspects of urban life. Exceptions to this rule are rare and the intensity of the
fenling-isipentest-ie-neighborhood nearer Garden Grove Boulevard.
Each interview began by asking the respondent to estimate the distance
from his or her house to the nearest adult business. The breakdown of responses
in the sample of completed interviews was:
200 Feet/I Block 12 • 9.8% 6.9%
500 Feet/2 Blocks 17 14.4% 4.9%
1000 Feet/3+ Blocks 54 45.8% 65.I%
Don't Know '35 29.7%
The accuracy of these subjective estimates was checked by asking the respondent
to name (or at least, to describe) the adult business nearest their home. In a
subset of cases, we were also able to measure the distance objectively. From these
data, it is clear that people are quite aware of how near or far away they live from
these businesses.
We next asked respondents to assess the impact that an adult entertainment
business located in their neighborhood would have on series of "social problems.'
Specifically:
I man going to ask a series of question concerning whit the impact of an
adult entertainment business has, or would have, if it were located within
500 feet of your neighborhood. Please tell me if the impact would be a
substantial increase, same increase, no effect, some decrease or a
substantial decrease.
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#
Consultants' Final Report - Page 42
Responses to this series of questions reveal a consistent perception of the impact
of adultl asi esses-oo-_-the-part .of -citizens.- -Brous- down u to threecategories:
Increase No Effect Decrease
Crime 72.9% 27.1% 0.0%
Traffic 60.7% 38.5% 0.94%
Litter .66.7% 32.5% 0.9%
Noise 62.1.9% 36.2% 1.8%
Safety 31.9% 20.7% 47S%r
Quality of Life 163% 23.9%., 59.84%
Property Values 14.5% 15.4% 70.1%
Rents 15.7% 38.9% 453%
Loitering 74.3% 22.1% 3-5%
Graffiti 56.6% 41.7% 1.7%
Vandalism 65.546 32.8% 1.7%
Respondents were asked if they knew of any specific incidents related to adult
entertainment businesses in their neighborhoods. Twenty-five respondents (21.4%)
answered affirmatively, citing specific esaanples of the 11 general problem areas
covered in the survey instrument Not surprisingly, most of these respondents
lived relatively near an adult business
Finally, to measure the depth of public sentiment, respondents were asked
whether they would move if an adult entertainment business were to snore into
their neighborhood- Seventy -me re spo den (61.2%) indicated at they wok!
("definitely" or "probably") move. Of the minority (3$.8%) who indicated that they
would ("definitely' or "probably") nee move, nearly half qualified their answers by
DOC.
INDEX
#
Consultants' Final Report - Page 43
explaining that financial considerations precluded a move for any reason.
Attitudes -Am -Regulation -With an -exception to be noted; t e pubiic believes
that the City should regulate adult businesses. One hundred respondents (853%)
believe that the City should regulate the location of adult businesses. Despite the
apparent laissez faire implications of the minority opinion, however, only one
respondent (0.9%) believed that adult businesses should be allowed to operate in
residential neighborhoods. Though perhaps disagreeing on the nature and extent
of regulation then, even the most ardent opponents of regulation seem to support
some type of regulation.
A series of questions designed to measure support for and/or opposition to
various approaches to regulation reveal a remarkable depth of support for all types
of regulation. Regulatory initiatives designed too protect the qty of residential
life, for example, garner nearly unanimous utpport from every element of the community:
Would you support a law that prohibited the establishment of an adult
entertainment business within 500 feet of a residential area, school or
church?.
Strongly Supper 92 75.096 78.096
Support 13 11.0% 11.0%
Neutral 4 3.4% 3.4%
OPPoge 6 S.1% 11%
Strongly Oppose 3 23% 23%
Regulatory initiatives designed to reduce the density of adult businesses, on the
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#
59,
Consultants' Final Report - Page 44
Regulatory initiatives designed to reduce the density of adult businesses, on the
other band, while not nearly so popular, are supported by a signifcrant majority of
citizens.
Would you support a law that prohibited the concentration of adult
entertainment businesses within 1000 feet of each other?
Strongly Support 52 44.1 44.4
Support 21 17.8 17.9
Neutra! 16 13.6 13.7
Oppose 22 18.6 18.8
Strongly Oppose 6 5.1 5.1
It should be noted, furthermore, that sorne of the respondents who oppose density
regulations do so because they oppose any initiative short of prohibition.
Croup Dtfferncces. Doe to the 'overwhehning degree of appart for almost
any regulatory initiative and, also, due to the relatively small sample size, few
Epp differences are statistically significant. Home ownership and gender are
exceptions In general, home owners are more likely than renters and women are
more likely than men to endorse any reguratory initiative. These differences are
expected, at coarse, but a careful examination of raspv®e pataerns reveals a
curious difference. When asked whether the City should re;alnte the locations. of
adnh businesses, for example, home owners and women able ezpt+e stronger
support for regulation than their complementary groups. Specifically,
DOC.
INDEX •
# p -c9-
53
Consultants' Final Report. Page 45
Own Rent WORM" Men
Regulate 'Yes, 74 24, — 98 57-- - 42 '99
_ _ _ , _
Regulate 7Vo —117 6 11 17 - -
81 34 115. 63 S3 116
Both differences (owners vs. renters and women vs. men) are statistically
significant. This common factor helps define the small minority (14.5%) of
respondents who feel that the City should not regulate adult businesses at. all.'
Asked if they would move if an adult business were to open in their tieighborhood,
on the other hand, home owners.and women diverge slightly:
Own Rent • Women Men
Move Yes 52 17 69 43 27 70
Move No 28 17 45 20 25 45
80 34 114 63 52 115
While home owners .are more likely (vs. renters) to say that they would move out
of their neighborhoodn to avoid, an adult business, the difference is not statistically
significant. In contrast, the difference ,for Women (vs. men) is quite significant
" Respondents who expressed the opinion that the City should not regulate adult
businesses tend to be,. younger (76.5% under 45) men (643%) who rent (58.8%).
More important, perhaps, these respondents tend to live relatively far away from adult
businesses (76.5% at least three blocks way) and to live in households with no
children (70.6%). Several of these respondents volunteered that they were
'libertarians.* Of cowse, many of the respondents who initially told us that they
opposed any regulation later expressed the opinion tbat adult buianesses should not
be allowed to locate near residential neighborhoods.
DOC.
INDEX
# ID
5 4
Consultants' Final Report - Page 45
Own Rent Women Men
---,Regulate Yes 74 24 98 57 42_- 99-=-- ------
- - Regulate No 7 10 17 6 11 17
81 34 115 63 53 116
Both differences (owners vs. renters and women vs men) are statistically
significant This common factor helps define the snap minority (145%) of
respondents who feel that the City should not regulate adult businesses at a11.'0
Asked if they would move if an adult business were to open in their neighborhood,
on the other hand, home owners:and women diverge slightly:
Own Rant Women Men
Move Yes 52 17 69 43 27 70
Move No 28 17 45 20 25 45
80 34 114' 43 32 115
While home owners are more likely (vs. renters) to say that they would move out
of their neighborhoods to avoid as adult business, the difference is not statistically
significant In contrast, the difference for Women (vs men) is quite significant
'° Respondents who expressed the opinion that the city should not regulate adult
businesses tend to be younger (76.5% under 45) men (64.7%) who rent (58.8%).
More impomtnt; perhaps, these respondents tend to live relatively far away front adult
businesses (76.5% at least three blocks away) and to live is households with no
children (70.6%). Several of these respondents volunteered that they were
"libertarians." Of course, many of the respondents who initially told- us that they
opposed any regulation later expressed the opinion that adult buisnesses should not
be allowed to locate near residential neighborhoods.
DOC.
INDEX
# D --�3-
54
Consultants' Final Report • Page 46
Tbis divergence reflects a salient difference in the way home owners and
women calculate costs and betse6ts. In the unstructured portions'of the_.int�rviews,=`-`�a_
many home owners expressed feelings of resignation. One respondent who had
lived in the vicinity of an adult business for more than thirty years, for example,
told, us that the social and economic costs of moving to another neighborhood
precluded this option; and in any event, there would no guarantee that adult
businesses would not eventually move into the new neighborhood. On the other
band, many women respondents expressed overwhelming fear for their safety and
the safety of their children. One woman respondent with three young children
told us that she had already moved because one of her children bad been harassed
by a man who she believed was a customer of an adult business. Although her
new apartment was smaller and more expensive, she believed that the move was
absolutely necessary for the safety of her children. Anecdotal data of this sort are
not amenable to statistical analysis. Nevertheless, these data provide a context for
interpreting the objective item~ responses of our survey,
DOC.
INDEX
55
Consultants' Final Report . Page 47
-
The data and analyses repotted in this document make a clear, compelling
statement about the secondary consequences of the adult entertainment businesses
along Garden Grove Boulevard. in terms Cif property values alone, the survey of
real estate professionals Ieads to the unambiguous conclusion that the mere
presence of these businesses depresses residential and commercial party. values.
While the effect on commercial property valves is problematic the effect on
residential property values argues for strict regulations governing the distance of
adult businesses from residential neighborhoods. In commercial zones, moreover,
the consistent opinions of real estate professionals suggest that high density also
depresses commercial property vah:es This argues far strict regulations gamin`
the distances between adult businesses.
A sepantte ems► of Garden Grose baasebolds is fully consistent with the
responses of real estate professionals. Fut simply, these businesses have a real
impact on the daily lives of their neighbors. By all measures, respondents ling
near cue of theme businesses are aware of the presence of the busbosses and have
a p (but apparently realistic) view of their impact on the
neighborhood.
Whereas public bearings might lead one to conclude that actual incidents involving
these businesses are rate, our mummy results show the opposite; more than one in
ftve respondents reported a specific incident related to the opt of
adish
DOC.
INDEX
# D- 56
Consultants' Final Report -Pae 48
businesses. 'This experience, leads to strong public support for regulation. Nine. of
. •.. •.___
4 regulations _that prohibitsiriesiesfrom op-- crating
-r
near residential neighborhoods; nearly two-thirds endorse regulations that prohibit
the geographical concentration of adult businesses.
Although these two surveys may represent subjective opinion, their resulta
are consistent with objective analyses of crime data. Comparing temporal crime
rates before and after changes in the operation of adult businesses, we find strong
evidence of a public safety hazard. The subjective impression s of Garden Grove
residents and real estate professionals have an empirical basis, in other word.
Given the seriousness nature of this public safety hazard, we recommend that
• No new adult businesses should be allowed to (*ease within 1000 feet of
a residence.
We find a significant interaction effect between the adult businesses and taverns or
bars When an adult business opens within -1000 feet of a tavern or bar, crime
rates rise by a factor that cannot be attributed to either bpsiness alone.
Accordingly, we recommend that
• No new tavern o bar should be a/kayo:4 to °peruse 'Wain 1000 feat of an
adult baubtas and Wee mina.
Since the adult businesses on Garden Grave Boulevard (or more precisely, their
locations) were in operation prior to the advent of our data, we find no optimum
DOC.
INDEX
# D 5-)
Consultants' Flnsl Report - page 49
or ideal distance between locations that would ameliorate the public safety hazard.
-; Accatd n y -_vi►e -retoazimend that - _
• The present spacing code benv+eei adult businesses should be maintained
Recognizing the legal and practical difficulties of changing the existing operations,
furthermore, we have no recommendations for the existing operations. Although
we find no evidence that the public safety hazard can be ameliorated by simple
arhitulural, barriers (walls, eg.), the hazard could conceivably be minimized by
regulations._ such as limiting the hours of operation, special lighting, and so forth.
Toward this end, we recommend that
• Where feasible, the Conditional Use Permit process should be used to
macron the public safety haunt For optimal effectiveness, the Police
Departnreru'nust be fully involved in every, aspect of this process.
There is a tendency toyview adult entertainment businesses u 'moral nu aaces°
when, in fact, the data show that they are public safety -hot spots.' Arg this
view, it may be useful to enact
policies designed to ensure the safety of customers
and neighbor: The Garden Grove Folies Department is ideally united to advise
on the range of policy options that might be implemented.
A final recommendation pertains to public involvement in the prom: The
results of our household survey reveal strong sentiments favoring any attempt to
ameliorate the secondary consequences of this problem. Nevertheless, we detect a
DOC.
INDEX
# Q-<:=•.
5B
Consultants' Final Report • Page 3p
spirit of cynicism in the Tesponses of citizens who live in the midst of the problem.
For example; the weaker public support_ for density regulation .(vs. regulating the
distance from a residential neighborhood) reflects in part a draconian view of the
problem; more than a few of the respondents who expressed Little or no support
for this regulation did so on the grounds that the businesses should not be allowed
to operate anywhere in the City. It would not be entirely correct to attribute this
view to moral or moralistic attitudes. In many cases, respondents related personal
experiences and fears that make these views understandable. Public support for
any practial regulation may require a process that addresses the experiences and
fears of these citizens. Unfortunately, we have no expertise (or even specific
insights) to suggest how this might be accomplished.
ti
'DOC.
INDEX
APPENDIX
Real Estate Survey Frequencies
Househoid Survey Frequencies
Real Estate Instrument
Household Instrument
Proposed Statute
•S
DOC.
INDEX •
# D
Consultants' Final Report - Al
Real Estate Professionals Survey Response Tabulations
Based_ on. your personal_,observations as a- real estato r I_Qr -information--
received-through'the prartice of your profession, do you have an opinion as to whether the
presence of an adult bookstore affects the resale or rental values of nearby properties?
Yes 115
No 6
Missing 1
94.3 94.3
4.9 4.9
.8 .8
How many years have you practiced in the real estate profession?
5 Years or Less 36 29.5 293
6-10 Years 16 1.3.1 13.1
11-25 Years 60 49.2 49.2
25 Years or More 10 8.2 • . 8.2
How many years have you practiced real estate in the Garden Grove area?
5 Years or Less 47 38.5 38.5
6-10 Years 19 15.6 15.6
11-25 Years 51 41.8 41.8
25 Years or More 3 2.4 4.1
Missing 2 1.6
Based on your professional experience, how would you expect average values of the
f folJowiult g types
of propel to be effected if they are leas than 200 feet•away from the new
—Single -fatally residential
20% Decrease 76 62.3 62.8
10-20% Decrease 28 23.0 23.1
0-10% Decrease 14 11 11.6
No Effect 2.5 23
Missing 1 .8
DOC.
INDEX
# D-�
Consultants' Final Report - A2
..:Multiple -family residential __ .
20% Decrease 46 37.7 38.3
10-20% Decrease 42 34.4 35.0
0-10% Decrease 26 21.3 21.7
No Effect . 6 4.9 • 5.0
Missing 2 1.6
...Commercial
20% Decrease 24 19.7 20.2
10-206 Decrease 40 32.8 33.6
0-10% Decrease 33 27.0 27.7
No Effect 18 14.8' 15.1
0-10% Increase 3 2.5 2.5
20% Increase 1 .8 .8 •
Missing 3 23
How would you expect the average value to be affected if the properties are within 200 to
500 feet of the new adult bookstore?
...Single-family residential
20% Decrease 67 54.9 55.4
10-20% Decrease 29 23.8 24.0
0-10% Decrease 19 15.6 15.7
No Effect • 6 4.9 5.0
Missing 1 .8
..-Multiple-family residential
20% Decrease 41 33.6 34.2
10-20% Deaease 36 29.5 30.0
0-10% Decrease 34 273 283
No Effect 8 6.6 6.7
10-20% Increase 1 .8 .8
Kissing 2 1.6
Qocu
INDEX
# .0--; •
491
. Consultants' Final Report - A3
...Commercial"
20% Decrease 20 16.4 16.7
10-20% -Decrease 37_ - _ -303. _
. -.-- _30.8
0-10% Decrease -s-_ == 36--- 29.5 _ - ._30.0-
No Effect 24 • 19.7 20.0
0-10% Increase 2 1.6 1.7
10-20% Increase 1 .8 • .8
Missing 2 1.6
Assume that a new adult bookstore will be located within 1000 feet of an existing adult
bookstore or other adult entertainment use. Based upon your professional experience, how
would you expect the average values of the following types of properties to be affected if
they are less than 200 feet away from the new bookstore?
...Single-family residential
20% Decrease 51 41.8 41.8
10-20% Decrease 38 31.1 31.1
0-10% Decrease 20 16.4 16.4
No Effect 12 9.8 9.8
0-1096 Increase 1 .8 .8
...Multiple -family residential
20% Decrease 41 33.6 33.6
10-20% Decrease 32 26.2 26.2
0.10% Decrease 33 27.0 27.0
No Effect 15 12.3 12.3
0-10% Increase 1 .8 .8
-Commercial
2096 Decrease 27 22.1 22.3
10-20% Decrease 27 22.1 22.3
0-10% Decrease 33 27.0 27.3
No Effect 33 27.0 27.3
10-20% Increase 1 .8 .8
Missing 1 .8
DOC.
INDEX
(O3
Consultants' Final Report A4
How would you expect the average values to be affected if the properties are within 200
to 500 feet of the adult bookstore?
11'
...Single-family residential
20% Decrease 65 53.3 • 55.1
10-20% Decrease 29 23.8 24.6
0-10% Decrease 15 12.3 12.7
No Effect 8 6.6 6.8
0-10% Increase 1 .8 .8
Missing 4 3.3
...Multiple -family residential
20% Decrease 42 34.4 35.3
10-20% Decrease 41 33.6 34.5
0-10% Decrease 25 20.5 21.0
No Effect 10 8.2 8.4
0-10% Increase 1 .8 .8
Missing 3 2.5
...Commercial
20% Decrease 25 20.5 21.4
10-20% Decrease 40 32.8 34.2
0-10% Decrease 25 20.5 21.4
No Effect 23 18.9 19.7
0-10% Increase 4 33 34
Missing 5 4.1
Based upon year professional ccperience, how would you evaluate the impact of locating
an adult bookstaft within 200 feet of an area on the following problems, if the area is
residential?
-Crime
Substantial Increase 59 48.4 50.9
Some Increase 49 40.2 42.2
No Effect 7 5.7 6.0
Same Decrease 1 .8 .9
Missing 6 4.9
DOC.
INDEX
#
Consultants' Final Report . A5
...Traf5c
'----.-- 'Substattliallnerease _
..7 ,:: .......,
Some Increase 60 49.2 51.3
No Effect • 26 21.3 22.2
Some Decrease 2 1.6 1.7
Substantial Decrease 1 . .8 . .9
Missing ' 5 4.1
...Litter
Substantial Increase 52 42.6 44.8
Some Increase as 39.3 41.4
No•Effeet 14 1L5 12.1 '
Some Decrease 1 • .8 .9
Substantial Decrease 1 .8 .9
Missing 6 4.9
...Noise
Substantial Increase 35 28.7 31-3
Some Increase 46 37.7 41.1
No Effect 27 22.1 24.1
Some Decrease 3 2.5 2.7
Substantial Decrease 1 .8 .9
Missing • 10 8.2
...Safety
Substantial Increase 24 19.7 21.2
Some Increase 7 5.7 6.2
No Effect 12 9.8 10.6
_Scene Decrease 24 19.7 • 21.2
Substantial Decrease 46 37.7 40.7
Missing 9 7.4
DOC.
INDEX
# ot
45-
Consultants' Final Report - A6
...Quality of life
Substantial increase
Some Increase
No Effect
Some Decrease
Substantial Decrease
Missing
...Rents
14 11.5
7 5.7
7 5.7
39 32.0
47 38.5
8 6.6
12.3
6.1
6.1
34.2
41.2
Substantial Increase 3 2.5 2.7
Some Increase 6 4.9 S.3
No Effect 12 9.8 10.6
Some Decrease 51 41.8 45.1
Substantial Decrease 41 33.6 36.3
Missing 9 7.4
...Loitering
Substantial Increase 60 49.2 51.3
Some Increase 40 32.8 34.2
No Effect 6 4.9 5.1
Some Decrease 3 2.5 2.6
Substantial Decrease 8 6.6 6.8
Missing 5 4.1
Based upon your prufeadonal experience, how would you evaluate the impact of locating
an adult bookstore within 200 feet of an area on the following problems, if the area is
commercial?
...crate
Substantial Increase 45 36.9 ' 39.1
Sane Isere se 57 46.7 49.6
No Effect 11 9.0 9.6
Substantial Decrease 2 1.6 1.7
Missing - 7 3.7
DOC.
INDEX
ldo
Consultants' Final Report - A7
...Traffic
Substantial Increase - 24
Same Increase - 65
No Effect 24
Some Decrease 1
Substantial Decrease 2
Missing 6
...Litter
19.7 20.7
53.3 56.0
19.7 20.7
.8 .9
. 1.6 1.7
4.9
Substantial Increase 36 29.5 31.3
Some Increase 60 49.2 52.2
No Effect 18 14.8 15.7
Substantial Decrease 1 .8 .9
Missing 7 5.7
...Noise
Substantial Increase 27 22.1 24.1
Some Increase 48 393 42.9
No Effect 33 27.0 - 29.5
Some Decrease 3 2.5 17
Substantial Decrease 1 1 .9
Missing 10 8.2
...Safety
Substantial Increase 16 13.1 14.3
Some Increase 10 8,2 8.9
No Effect 14 11.5 12.5 •
Some Decrease .., 36 .• 29.5 32.1
Substantial Decrease 36 294 32.1
Missing • 10 8.2
...Quality of business environment
Substantial Increase 6 4.9 5.4
Some Increase 8 6.6 7.1
No Effect 7 5.7 6.3
Some Decrease 53 43.4 473
Substantial Decrease 38 31.1 33.9
Missing 10 8.2
DOC.
INDEX
# -Os
Consultants' Final Report - A8
...Commercial rents
Substantial- Increase
Some Increase
No Effect
Some Decrease
Substantial Decrease
Missing
...Loitering
3-- - -`_ =-2.5 _ 2.8
41 5.6
17 13.9 15.9
58 47.5 54.2
• 23 18.9 21.5
15 12.3
Substantial Increase 41 33.6 36.3
Some Increase 46 37.7 40.7
No Effect 9 7.4 8.0
Same Decrease 11 9.0 9.7
Substantial Decrease 6 4.9 5.3
Missing 9 7.4
...Ability to attract new businesses
Substantial Increase 4 3_3 3.5
Some Increase 5 4.1 4.4
No Effect .4 33 33
Some Decrease 39 32.0 343
Substantial Decrease 61 • 50.0 54.0
Missing 9 7.4
...Ability to attract castcmers
Substantiallncrease 6 4.9 53
Some Increase • 4 33 3.5
No Effect a 8 6.6 7.0
Some Decrease 37 30.3 32.5
Substantial Decrease 59 48.4 51.8
Mpg 8 6.6
Based on your professional experience, bow would you evaluate the impact of locating. two
or more bookstores within 1000 feet of each other and within 200 feet of an area on the
following problems if the area is residential?
DOC,
INDEX
Consultants' Final Report -• A9
...Crime
,64.1 _
_ .
-37 - - - - 30.3 ''--3-1.6- -
No Effect 4 3.3 3.4
Substantial Decrease 1 .8 .9
Missing 5 ,
4.1
...Traffic
Substantial Increase 43 35.2 36.1
Some Increase 60 49.2 50.4
No Effect 14 11.5 11.8
Substantial Decrease 2 1.6 1.7
Missing 3 2.5
...Litter
Substantial Increase 63 51.6 52.9
Some Increase 46 37.7 38.7
No Effect 8 6.6 6.7
Substantial Decrease 2 1.6 1.7
Missing . 3 2.5
...Noise
Substantial Increase 48 39.3 41.4
Some Increaso 46 37.7 39.7
No Effect ' • 17 13.9 14.7
Some Decrease 2 1.6 1.7
Substantial Decrease 3 , . 2.5 2.6
.c
Miming 6 4.9
...Safety
Substantial Increase 22 18.0 18.8
Sane benne 10 8.2 8.5
No Effect 7 5.7 6.0
Some Decrease 24 19.7 20.5
Substantial Decrease 54 44.3 46.2
Missing 5 4.1
DOC.
INDEX
# L
Consultants' Final Report. - A10
...Quality of life
Substantial Increase 10 8.2 - - 8.5 --,
--Somelziiiiease - _ - - 2 1.6 L7
No Effect 6 4.9 5.1
Some Decrease 30 24.6 25.6
Substantial Decrease 69 56.6 ' 59.0
Miming 5 4.1
-.Rents
Substantial Increase 5 4.1 4.4
Some Increase 5 4.1 4.4
No Effect 7 5.7 6.1
Some Decrease 45 36.9 39.5
Substantial Decrease 52 42.6 45.6
Missing 8 6.6
...Loitering
Substantial Increase 62 50.8 53.4
Some Increase . 37 30.3 . 31.9
No Effect 5 4.1 4-3
Sane Decrease 6 4.9 5.2
Substantial Decrease 6 4.9 52
Missing 6 4.9
Based on your professional experience, how would you evaluate the impact of locating two
or more bookstores within 1000 feet of each other and within 200 feet of an arta on the
following problems if the area is commercial?
.-Crime
Substantial Increase 53 43.4 44-2
Some Increase 59 48.4 49.2
No Effect 6 4.9 5.0
Substantial Decrease 2 1.6 1.7
Missing . 2 1.6
DOC.
INDEX
# D-4;-•
10
Consultants' Final Report. All
...Traffic
Sfibitantia11iicrease_7._j
Some Increase -
No Effect
Some Decrease
Substantial Decrease
Missing
...Litter
Substantial Increase
Some Increase
No Effect
Some Decrease
Substantial Decrease
Missing
...Noise
Substantial Increase
Some Increase
No Effect
Substantial Decrease
Missing
...Safety
Substantial Increase
Some Increase •
No Effect
Some Decrease
•Substantial Decrease
MSE
-.Quality of business environment
Substantial Increase
Some Increase
No Effect
Some Decrease
Substantial Decrease
Missing
33
62
22
2
1
2
50
53
12
1
1
5
39
48
29
2
4
17
8
12
38
44
3
5
3
8
47
53
6
27.0
50.8
18.0
1.6
.8
1.6
41j0
43.4
9.8
.8
.8
. 4.1
32.0
39.3
23.8
1.6
3.3
13.9
6.6
9.8
311
36.1
25
4.1
2.5
6.6
38.5
43.4
4.9
27.5 _
51.7
18.3
1.7
.8
42.7
45.3
10.3
.9
.9
33.1
40.7
24.6
1.7
14.3
6.7
10.1
31.9
37.0
4.3
2.6
6.9
40.5
45.7
DOC.
INDEX
#
Consultants' Final Report - AI2
...Commercial rents
Substantial Increase 6 _. 4.9 _5.4_,
Some Increase _ = 9 __ _ =74 =« =`°- -BF
No Effect 13 10.7 . 11.7
Some Decrease 39 32.0 35.1
Substantial Decrease 44 36.1 39.6
Missing 11 9.0
...Loitering
Substantial Increase 49 40.2 42.6.
Some Increase 45 36.9 39.1
No Effect 5 4.1 43
Some Decrease 8 6.6 7.0
Substantial Decrease 8 6.6 7.0
Missing 7 5.7
...Ability to attract new businesses
Substantial Increase 4 3.3 3.5
Some Increase 4 3.3 3.5
No Effect 7 5.7 . 6.1
Some Decrease 43 35.2 37.7
Substantial. Decrease 56 45.9 49.1
Ming 8 6.6
...Ability to attract customers
Substantial Increase 7 5.7 5.9
Some Increase 3 2.5 2.5
No Effect 10 82 8.5
Some Decrease 38 31.1 323
Substantial Dazes 60 49.2 50.8
Mi ing 4g 3.3
Would you mind if we contacted you in the future reg ling you responses to these survey
questions?
No 63 51.6 64.3
Yes 26 21.3 26.3
Missing 33 78.1
DOC.
INDEX
Consultants' Final Report - A13
Household Survey Response Tabulations
-To Ihe best of _your ksowlege, bow close is the nearest adult bdifildforelorz.aclult_ _
-- -entertainment establishment? - -
200 Feet 6 5.1 5.1
500 Feet 2 1.7 1.7
1000 Feet 8 6.8 6.8
1 Block 6 5.1 5.1
2 Blocks 15 12.7 12.7
3+ Blocks 46 39.0 39.0
Don't Know 35 29.7 29.7
I am going to ask a series of questions concerning what the impact of an adult
entertainment business has or would have if it were located within 500 feet of your
neighborhood. Please tell me if the iimact would be a substantial increase, some increase,
no effect, some decrease, or a substantial decrease.
- Crime
Substantial Increase 55 46.6 46.6
Some Increase 31 26.3 26.3
No Effect 32 27.1 27.1
Some Decrease
Substantial Decrease
... Traffic
Substantial Increase 42 35.6 35.9
Some Increase 29 24.6 24.8
No Effect 45 ' 38.1 38.5
Some Decrease 1 .8 .9
Substantial Decrease
Missing 1 .8
Litter
Substantial Increase 43 36.4 36.8
Some Increase 35 29.7 29.9
No Effect 38 32.2 32.5
Some Decrease 1 .8 .9
Substantial Decrease
'Winning 1 .8
DOC.
INDEX
#
-13
Consultants' Mal Report - A14
... Noise,
Substantial Increase
Some Increase
No Effect
Some Decrease
SubstantialDecrease
Missing
... Safety
40 33.9 34.5
32 27.1 27.6
42 35.6 36.2
1 .8 • .9
1 .8 .9
2 1.7
Substantial Increase 25 21.2 21.6
Some Increase 12 10.2 10.3
No Effect 24 20.3 20.7
Some Decrease 9 16 7.8
Substantial Decrease 46 39.0 39.7
Missing 2 1.7
... General Quality of Life
Substantial Increase 14 11.9 12.0
Some Increase •5 42 4.3
No Effect 28 23.7 23.9
Some Decrease 18 15.3 15.4
Substantial Decrease 52 44.1 44.4
Missing 1 .8
... Property Values
Substantial Increase 9 7.6 7.7
..
Some /Dann 8 . 6.8 6.8
No Effect 18 153 15.4
Some Deerella 23 19.5 19.7
Substantial Decrease 59 50.0 50.4
Miming 1 .8
DOC.
INDEX
# D
Consultants' Final Report- A15
... Rents
i .
----10.27:-.__
-- Some Increase 5 4.2 4.6
No Effect 42 35.6 38.9
i
Some Decrease . 17 14.4, 15.7
Substantial Decrease 32 27.1 29.6
Missing 10 8.5
... Loitering
Substantial Increase 68 57.6 58.1
Some Increase 19 16.1 16.2
No Effect 26 22.0 22.2
Some Decrease 3 2.5 2.6
Substantial Decrease 1 .8 .9
Missing 1 .8
... Graffiti
Substantial Increase 44 373 38.3
Some Increase 21 17.8 18.3
No Effect. 48 40.7 41.7
Some Decrease 2 1.7 1.7
Substantial Decrease
Missing 3 2.5
... Vandalism
Substantial Increase 53 44.9 45.7
Some Increase .. 23 19.5 19.8
No Effect 38 32.2 32.8
Some Decrease 2 1.7 1.7
Substantial Decrease
Missing 2 1.7
Would you move if an adult entertainment business were faceted near your neighborhood?
Definitely Move 36 30.5 31.0
Probably Move 35 29.7 30.2
Probably not Move 28 23.7 24.1
Definitely not Move 17 14.4 14.7
Missing 2 1.7
•
DOC.
INDEX
Consultants' Final Report • A16
Do you believe the City should regulate the Iocation of adult businesses?
_No - 17- : _14.4 14:5
Yes - - 100 84.7 85.5
Missing 1 .8
The courts have ruled that cities must provide a place for adult businesses to operate. How
far away from your neighborhood would these businesses have to be to have a negligible
effect on your neighborhood?
500 Feet 4 3.4 3.4
1000 Feet 10 ' 8.5 8.6
1 Block 3 2.5 2.6
3+ Blocks 89 75.4 76.7
• Farther 10 8.5 8.6
Missing 2 1.7
In what zone do you think these types of business should be allowed?
Residential 1 .8 .9
Commercial 44 37.3 37.6
Industrial 68 57.6 58.1
None 4 3.4 3.4
Mpg 1 .8
Would you support a law that prohibited th :tablishment of an adult entertainment
business within 500 feet of a residential area, : .00l or church?
Strongly Support 92 78.0 78.0
Support 13 11.0 11.0
Neu • 4 3.4 3.4
OPPase 6 5.1 5.1
Strongly Oppose 3 23 2-5
Would you support a law that prohibited the concentration of adult entertainment
businesses within 1000 feet of each other?
Strongly Support 52 44.1 44.4
Support 21 17.8 17.9
Neutral 16 13.6 13.7
Oppose 22 18.6 18.8
Strongly Oppose 6 5.1 5.1
Missing 1 .8
DOC.
INDEX
# D
Consultants' Final Report - A17
Are you aware nf any specific incidents related to adult entertainment_businesses in your
_
neighborhodd?
- . •
No 92 78.0 78.6
Yes 25 21.2 21.4
Missing 1 .8
Do you own your home or do you rent?
Owner 82 69.5 70.7
Renter .34 28.8 29.3
Missing • 2 1.7
Haw long have you lived at your current residence?
One Year or Lass 9 7.6 7.7
Four Years or Less 26 22.0 22.2
Ten Years or Less 30 25.4 25.6
More than Ten Years 52 44.1 44.4
Missing 1 .8
What is your sex?
Female 64 542 54.7
Male 53 44.9 45.3
Missing 1 .8
What is your age?
21 or Under 6 5.1 5.5
22 thru 35 32 27.1 29.1
36 Wu 45 -, 26 • 22.0 23.6
44 thru 65 34 28.8 30.9
66 or Older 12 10.2 10.9
Missing 8 6.8
DOC.
INDEX
Consultants' Final Report • A18
What is your highest level of education?
Grade -School_
i School
Some College
College Degree
Graduate
Missing
2 - L7 - -1.8
32 27.1 28.1 _ d--- --
48 „ 40.7 42.1
28 23.7 24.6
4 3.4 3.5
4 3.4
How many children do you currently have living with you under the age of eighteen?
None 60 50.8 51.3
1-2 42 35.6 35.9
3 or More 15 12.7 12.8
Missing 1 .8
How would you characterize your ethnicity?
Caucasian 85 ' 72.0 72.6
Hispanic 19 16.1 16.2
Vietnamese 4 3.4 3.4
Oriental 5 4.2 4.3
Black 1 .8 .9
Other 3 23 2.6
Missing 1 .8
Would you like to be notified of any public hearings related to the restriction of adult
entertainment businesses h Garden Grave?
Yes 76 65.0 65.0
No 42 35.0 35.0
� r
•
DOC.
INDEX
CITY OF GARDEN GROVE
ADULT BUSINESS SURVEY CALL SHEETS
CASE ID:
Phone number:
Address:
Interviewer date tinge outcome time/date of callback
7.
8. --
9.
1U.
General Notes and Problem=
Hello, my MIMe is I am
We are conducting a survey of Garden Grote ° with City often Grove.residents to gather information on the
impact of certain basins
such as adult bookstares. nude or topless dance estab-
lishments, massage parlors, adult theaters showing X-rated movies,
on your residential area. The City is conductingpeepoperly ee-
velop legislation iz, this area. Your re this survey in ®rder to properly de-
tc
confidential. spouses are greatly appreciated and will be kept
-
(Need to-con{rrrrlJiat the rrsparident is -ct responding---- -_�
ness. If responding from a business discontinue he interview. residence and not a bust.
}
1. To the best of your knowledge. how close is the nearest adult bookstore or adult
entertainment establishment?
200 feet
0 SOQ feet
• 1000 fleet
• Don't know
CJ 1 block
D 2 blocks
O 3+ blocks
2. Which adult entertainment es ?
respondent far side is it.
tion, or general identification)ation, ie the met b n roams. or loca-
tion,
a DOC.
INDEX
6. The courts have ruled that ®ties must provide a place for adult businesses to oper-
ate. How far away from your neighborhood would these businesses have to be to
have a negligible effect on your neighborhood?
0 Less that 500 feet
• SOO.feet a_
O _ 1000 feet _ = -
O 1 block
O 2 blocks
0 3+ blocks
7. In what zone do you think these types of businesses ahould•be allowed?
3 Residential
O Commercial
Industrial
8. Would you support a law that prohibited the establishment of an adult entertain-
ment business with 500 feet of a residential area, school or church?
• Stmn`ly support
• Support
• Neutral
• Oppose
O Suvngly oppose
9. Would you support a law that prohibited the concentration of adult entertainment
business within 1000 of each other?
a Strongly support
• Support
3 Neutral
D Oppose
O Strongly oppose
10.Are you aware of any specific indents related to adult entertainment businesses in
your neighborhood?
O No
Cl Yes
If yes please ezplsin:
11. Do you own your home or do you rent ?
O Own
O Rant
DO
INDEX
# D
Rr
18. WetId you like to be notified of any public hearings related to the restriction of
adult entertainment businesses in Garden Grave?
a Yes
•
a No
If yes;,confiria name- ancl-Alailing *dittoes-
- _
- - - -
•
Thank you for your assistance in responding to our questions.
(If they insist on a number of SOMEORC to contact about rhe survey give them the City Manager' s
Office number 714-741.5101)
Or.
DOC.
INDEX
REAL ESTATE PROFESSIONAL SURVEY
Please complete this brief survey and return ft to the City of Garden Grove, City Manager's Office, by
March 1, 1991. A postage paid envelope is enclosed for your convenience.
1. Based upon your personal observations as a real estate professional or on information
tnrougn the practice of your profession. doreceived
adult bookstore affects the resale or you have a ypinipn as to whether the presence of en
== -_ rental values of nearby properties? - .__
Mo opinion
2. haw min
y years have you practiced in the real estate profession?
3. Hoc many yearn have you practiced real estate in the Garden Grove area?
Questions 4 through 15:
Please read the following infermetlon about a hypothetical neighborhood and respond to a few questions in
teres of your professional experience and judgment.
A middle-income residential neighborhood borders a main street that contains various commercial uses that
serve the neighborhood. Although most of the neighborhood is comprised of single-family hoses, there are
two multiple -fondly residential carspl axes in the neighborhood as well. A commerci a i building recently has
beco+ee vacant and will open shortly as a typical adult bookstore. CA °typics'l" adult bookstore In Garden
Grove els° contains several "peep show 30oths.f There are no other adult bookstores or 'similar
activities in the area. There is no other vacant coswercial space presently available in the area.
Based upon your professional experience, how would you expect average values of the following types of
property to be affected if they are less than 200 feet may from the new adult bookstore? (Circle the
appropriate number for each type of property./
Decrease Decrease Decrease No Increase Increase Increase
20% 10-20% 0-10% Effect 0-108 10-20% 20
4. Single-fasrily residential 1 2 3 • 4 g
S. Multlpie-family residential S 6 7
1 2 3
6. Commercial 1 2 3
4 S . 6 7
New would you expert the average value to be.affected if the properties are within 200 to 300 feet of the
new adult bookstore?
Decreata Decrease Decrees* No Increase leeriest Inerellse
20% 10-20% '0-10% Effect 0-105 10-20% 205
7. Single-family residential 1 • 2 3 4
6. Multiple -family rosidentia11 1 2 35 6 7
9. Commercial 1 2 3 4 5 6
6 7
Assume that the new adult bookstore vf11 be located within ?000 feet of an existing adult bookstore or
other adultentertainment use. based upon your professional experience. how would you expect the average
ves of the
ore following types of properties to be affected, if they are 1ess thea 200 feet away fres the
Decrease Decrease Decrease Mo Increase Increase Increase
20% 10-20% 0-10% Effect 0-10% 10-205 202'
10. Single-family residential 1 2 3
II. .ilvitiple-fa sly residential 1 2 3 4 5 6 7
12. Commercial 1 2 3 4
s 6 7
•
DOC.
INDEX
#
Mow would you expect the average values to be affected- 1f the properties are within 200 to SOO feet of the
new adult bookstore?
Decrease Decrease Decrease No Increase Increase Increase
20% 10.-20: 0.105 Effect 0-104 10-20: 20%
13. Singie.family residential 1 2 3 4 5
Ia. Multiple -family residential 1 2 3 4 5
15, Commercial 1 2 3 4, S -
6
6
7
7
7
0uejtions 16 -and 17:
_ _.s_== ate®
Based upon your professional experience, how mould you evaluate the feipact of locating an adult bookstore
within 200 feet of an area on the following;
16. If the area 1s residential:
Substantial Soon No SomeSubstantial
Increase Increase Effect Decrease Decrease
a . crime
1
b. traffic 2 3 4 5
c. litter 1 2
3
d. noise 1 4 5 5
2 3 4 5
e. safety of moan and
children 1 2 3 4
f. general quality of life 1 5
rents 1
t2 3 4 5
loitering 1 2 3 4 5
17. If the area if commercial:
a. crime
1 2 3 4 5
b. traffic
2 3 4 5
c. litter 1
2 3 4 5
d. noise
B. safety of won and 1 2 3 4 5
me
chi l dren 1 2 3 4
f. general quality of the5.
business environment 1 2 3 4 5
g. rents 1 2 3 4 5
h. loitering 1 2 3 4 5
i. .ability to attract other
near businesses 1 2 3 4 5
j. ability of other businesses
to attreCt eostvmers 1 2 3 4 5
Questions 10 and 19:
Based on your professional experience. haw .mould you evaluate the impact of locating tee or more adult
bookstores within 1000 feet of each other and +within 200 fent of an area on the following:
T0. If the area 1s Rsidetial:
S bstanttal Some No Same SWstantiel
Nernst femme Effect Decrease Decrease
A. crimi1 2 3 4 S
b. traffic
c. litter 1 2 3 4 5
d. noise 1 2 3
e. safety of women and 1 2 3 4 S
f. children 2 3 4 3
general quality of life 1 2 3 4 5
St.
h. affect loitering 1 2 5
3 4
2 3 4 5
DOC.
INDEX
# D-
SA
19. 1f the area iS CDmnerCiil:
Substantial- Solt NO Some Substantial
Increase Increase Effect Decrease Decrease
a. crime 1 2 3 4 S
b. traffic 1 2 3 4 5
c. litter 1; 2 3 4 5
d. noise 1 2 3 t 5
e. safety of women and
children 1 2 3 4 5
f. general_ qual.i_ty of the.....-
_—business envircnaient 1 -_ 2 3 4 - 5
g. - rents` .-- - 1 2 3 4 .5
Pt. loitering 1 2 3 4 5
I. ability to attract other
businesses 1 2 3
J. ability of other businesses
to attract customers 1 2 3 4 5
4
20. In general. to what degree do you feel adult entertainment businesses affect property values?
21. Why do you feel this way?
22. OPTIONAL: Mese. Name of Fire, and Address
Mould you mind it we contacted you in the future regarding your responses to these survey questions?
13241/1443A
02104/91
Thank you again for your assistance with this survey.
DOC.
INDEX
-3- # D'? as
SECTION 9.1.1.05 DEFINITIONS
A. PURPOSE The purpose of this Section is to Promote consistency and
pre�� on in the application and interpretation of this Chapter. The
meaning of words and phrases defined in this Section shall apply
throughout this Chapter, except where the context or usage of such words
and phrases clearly indicates a different meaning intended in that
specific case.
B. - GENERAL INTERPRETATION The following general interpretations shall apply.
througnout tnis Section:
1. The word "shall" is mandatory and not discretionary. The word "may"
is permissive and discretionary.
2. In case of any conflict or difference' in meaning between the text of
any definitions and any illustration or sketch, the text shall
control.
3. Any references in the masculine or feminine genders are
interchangeable.
4. Words in the present and future tenses are interchangeable and words
in the singular and plural tenses are interchangeable, unless the
context clearly indicates otherwise.
5. In case a definition 1s not listed in this section, the most current
Webster Collegiate Dictionary shall be referred to for interpretation.
6. In the event of a. conflict between the definitions section and the
remainder of Title IX, the Title IX provision shall prevail.
D
C. usedNinithe Chapter shalUnless l otherwise
eifollowing provided,
the ��s andphrases
9 meanings:
A ACCESSORY BUILDINGS AND STRUCTURES (NON-RESIDENTIAL): A building, part
o a' ul i ng, or s rue ' ure, a s nct • en a or subordinate to the M11 71
building or use on the same lot, which accessory use does not alter the
•
principal use of ,such lot or building. If an accessary building is
attached to the main building either by a common wall or if the roof of
the accessory building is a continuation of the roof of the main building,
the accessory building will be considered a part of the main building.
ACCESSORY LIMN& QUARTERS: Living quarters within an accessory building
that is ancillary and subordinate to a principal dwelling unit, located on
the same lot, for the sole use of persons employed on the premises or for
temporary use by guests of the occupants. Such quarters arm expressly
proflibited from containing kitchen facilities or any other area used for
the daily preparation of food.
57527/1926A C . ;
04 ,Q / 1
DOC.
INDEX
46
1
i
1
ADULT ENTERTAINMENT BUSINESSES: Adult entertainment businesses shall be
ae ineo as o mews:
- --1. -Adult Book Store means an establishment having as a substantial or
significant porfion of its stock in trade, books, magazines, other
periodicals, prerecorded motion picture film or videotape whether
contained on an open reel. or in cassette form, and other materials
that are distinguished or characterized by their emphasis on matter
depicting, describing, or relating to specified sexual activities or
specified anatomical areas or an establishment with a segment or
section -devoted -to the --sale, display, de viewing_of such materials, _
2. Adult Motion Picture Theater means an enclosed building with a
capacity of -fifty (50) or more persons used for presenting material
distinguished or characterized by their emphasis on matter depicting,
describing or relating to specified sexual activities or specified
anatomical -areas for observation by patrons therein.
3. Adult Mini itotion Picture Theater means an enclosed building with a
capacity for less than fifty (50) persons used for presenting
materials distinguished or characterized by an emphasis on matter
depicting or relating to specified sexual activities or specified
anatomical areas for observation by patrons therein.
4. Adult Hotel or Motel means a hotel or motel where Material It
presented that is distinguished or characterized by an, emphasi s on
matter depicting, describing or relating to 'specified sexual
ac,ti vi ties_or_ sapec.i fied anatomical areas.
5. Adult Motion Picture Arcade means any establishment required to
obtain a permit under Chapter 5.60 of the Garden Grove Municipal Code
or any other place to which the public is permitted or invited
wherein coin, token, or sl ug -operated 'Or electronically,
electrically or mechanically controlled still or motion picture
machines, projectors or other image -producing devices are maintained
to show images to five or fewer persons per machine at any one time,
and where the images so displayed are distinguished or characterized
by an emphasis on depicting or describing specified sexual activities
or specified anatomical areas.
Cabaret means a nightclub, theater or other establishment that
features live performances by topless and bottomless dancers, "go-go"
dancers, exotic dancers, strippers, or similar entertainers, where '
such performances are distinguished or characterized by an emphasis
on specified sexual activities or specified anatomical areas.
7. Escort Bureau and Introductory► Services means any establishment
requires to obtain a permit pursuant to Chapter 5.55 of the rtunfcipai
Code.
•6.
8. Massae Parlor or Bath House means any establishment required to
obtain a permit pursuant to Chapter 5.12 of the Garden Grove
':unicipal Code where, for any form of consideration or gratuity.
5752Ti1923A (5)
td i:f= ion
DOC.
INDEX
010
87
passage, alcohol rub, administration of fomentations, eiecttic or
magnetic treatments, or any other treatment or manipulation of the
human body, occurs.
9. Model Studio means any business where, for any form of consideration
or gratuity, figure models who display.specified anatomical areas are
.provided to be observed, sketched, drawn, painted, sculptured,
-. photographed, or similarly depicted by persons paying such
__ cons_idera ti on =or_ gratuity._..- _ =
10. Sexual Encounter Center means any business; agency or person who, for
.any_ form of consideration or gratuity, .provides a place where three
or more'persons, not all members of the same family, may congregate.
assemble or associate for the purpose of engaging in specified sexual
activities or exposing specified anatomical areas.
11. Any other business or establishment that offers its patrons services,
products, or entertainment characterized by an emphasis on matter
depicting, describing or relating to specified sexual activities or
specified anatomical areas.
12. For purposes,of the above definitions, `emphasis on matter depicting,
describing or relating to specified sexual activities or specified
anatomical areas" is found to be in existence when one or more of the
fol 1 owi ng conditions exist:
a. The area devoted to merchandise depicting, describing Or
relating to specified sexual activities or specified anatomical
:areas exceeds more than 15 percent of the total display or floor
space area open to the public or is not screened and controlled
by employees.
b. One of the primary purposes of the business or establishment is
to operate as.an adult entertainment establishment as evidenced
by the name, signage, advertising or other public promotion
utilized by said establishment.
c One of the primary purposes of the business or establishment is
to operate as an adult entertainment establishment as
demonstrated by its services, products or entertainment
constituting a regular and substantial portion of total business
operations and/or a regular and substantial portion of total
revenues received; where such services, products or
entertainment are characterized by an emphasis on matter
depicting, describing or relating to specified sexual activities
or specified anatomical areas. For purposes of this Section,
"regular and substantial portion" is defined to mean greater
than fifteen (15) percent of total operations or revenues
received.
d. Certain types of "adult merchandise" are displayed or
merchandised. For purposes of this Section, "adult maerchandise"
means adult, sexually oriented implements and paraphernalia,
57521 7192.3=, (•e)
04/04/91
DOC:
INDEX
P.1
such as, but not limited to: dildo, auto suck, sexually
oriented vibrators, edible underwear, benwa balls, inflatable
orifices, anatomical balloons with orifices, simulated and
battery operated vaginas, and similar sexually oriented devices.
AGRICULTURAL CROPS: The use of property for the growth and harvest of
agricultural crops, including the display or sale of seasonal agricultural
-f3-eitbCtslYtstrroll the parCelor:aft -adjaoe•nt parcel in .a roadside _stand:...._:_.
ALLEY: A public or private thoroughfare or way that may afford a
pr ary or a secondary means of access to abutting properties.
APARTMENT: A room, or a suite of two or more rooms, in a multiple
dwe11ing, occupied or suitable for occupancy as a dwelling unit for one
family but not including ,motels or hotels.
ARCADE: Any place of business containing ten (10) or more amusements
svices, including but not limited to pinball, air hockey and video games,
for use by the public at a fee.
B BAR: A public or private business open to the general public and
Ticensed by the California Department of Alcoholic Beverage Control with
an "on -sale premises" type license, providing preparation and retail sate
of alcoholic beverages for consumption on the premises, including taverns,
bars and similar uses.
BILLBOARD: A sign identifying a use, facility, or service not conducted
on the premises or a product that is produced, sold or manufactured
off-site.
BILLIARD PARLOR OR POOL HALL: "Billiard parlor" or "pool hall" means a
building, structure, or portion thereof in that are located one or more
tables designed or used for play of pool, billiards, bagatelle, snooker,
bumper pool, or similar,,games,.or any establishment required to obtain a
pe raft under Chapter 5.40.20 of the Municipal Code.
BOARDING/LODGING FACILITY: A building containing a dwelling unit where
lodging is provided, wit or without meals, for compensation with not more
than five (5) guest rooms for ten (10) persons.
BUILDING: Any structure that is completely roofed and enclosed on all
sid- es excluding all forms of vehicle( even though immobilized.
BUILDING FRONT: That side of any building designed or utilized as the
primary customer or pedestrian entrance to the building. Eich building
mai have more than one side of the building designated as a front under
this definition.
BUILDING HEIGHT: Tle vertical ,distance measured from tie average level
of the building site to the uppermost roof point of the structure,
e<cluding chimneys, antennas, architectural appurtenances and similar
features.
5752T/1928A (7)
DOC.
INDEX
#
(7) For shopping center associations. the number of days
shall be used on a monthly or quarterly schedule.
(8) The number of days for individual business addresses
shall count toward the maximum allowable days allocated
for special event sales.
__ _:_= •� a Fes. All merchandise; Materials. signs_ and. Iebr $11`-�e
- �- rjraoved from the outdoor area-=by10 O0 a. -m - of the day
following the closure of the event, unless extended by
the Director.
7. Holiday Lot Sales
Christmas tree sales, fireworks sales and pumpkin sales may be •
permitted to operate, subject to the following conditions:
a. Such use shall be restricted to commercially zoned property.
b. Applications must be submitted ten (10) days in advance of the
sale.
SECTION 9.1.2.06 ADULT ENTERTAINMENT USES
A. PURPOSE.
The City Council of the City of Garden Grove finds that adult
entertainment businesses, as defined in Section 9.1.1.05C, because of
their very nature, have certain harmful secondary effects on the •
community. These secondary effects include:
1. Depreciated property values, vacancy problems in commercial space
(particularly in the newer commercial buildings).
2. Interference with residential neighbors' enjoyment of their property
due to debris, noise, and vandalism.
3. Nigher crime rates in the vicinity of adult businesses.
4. alighted conditions such as a low level of maintenance of commercial
premises and parking lots.
The City Council further finds'that the restrictions and development
standards contained fn this Section will tend to .itigate, and possibly
avoid, the harmful secondary effects on the community associated with
adult entertainment businesses. The primary purpose of these regulations
is the amelioration of harmful secondary effects on the community. The
regulations contained in this section are unrelated' to the suppression of
free speech and do not limit access by adults to materials with First
Amendment potential.
4885T/1907A (31)
04/04/91
DOC.
INDEX
QD
nr•••
.
,
8. SPECIFIED SEXUAL ACTIVITIES AND ANATOMICAL AREAS.
Pursuant to Section 9.1.1.05c, an adult entertainment business is any
business or establishment that offers its patrons services, products or
entertainment characterized,by an emphasis on matter depicting,
describing or relating to "specified sexual activities" or "specified
anatomical areas."
1. For purposes of this Section, __"specified .sexual activities" .sha11__
include the following =
a. Actual or simulated sexual intercourse, oral copulation, anal
intercourse, oral -anal copulation, bestiality, direct physical
stimulation of unclothed genitals, flagellation or torture in
the context of a sexual relationship, or the use of excretory
functions In the context of 'a sexualrelationship, and any of
the following depicted sexually oriented acts or conduct:
analingus, buggery, coprophagy, coprophilia, cunnilingus,
fellatio, necrophilia, pederasty, pedophilia, piquerism,
sapphism, zooerasty; or
b. Clearly depicted human genitals in a state of sexual
stimulation, arousal or tumescence; or
c. Use of human or animal masturbation, sodomy, oral copulation,
coitus, ejaculation; or
d. Fondling or touching of nude human genitals, pubic region,
buttocks or female breast; or
e. Masochism, erotic or sexually oriented torture, beating or the
infliction of pain; or
f. Erotic or lewd touching, fondling or other contact with an
animal by a human being; or
Human excretion, urination, menstruation, vaginal or anal
irrigation.
g•
h. Dancing by one (1) or mere live entertainers in a manner
displaying specific anatomical areas.
2. For the purpose of this Section, "specifi'ed anatomical areas" shall
include the following:
a. Less than completely and opaquely covered human genitals, pubic
region, buttock, and female breast below a point immediately
above the top of the Areola; and
b. Human male gienitais in a discernibly turgid state, even if
completely and opaquely covered.
488ST/1907A (32)
04/04/91
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INDEX • t
-•
,C. SPECIAL REGULATIONS.
Yn a C-2 zone, where the adult entertainment businesses regulated by this
Part would otherwise.be permitted, it shall •be unlawful to establish any
such entertainment business without the benefit of the hearing body
approving a Conditional Use Permit and if the location is:
1. 'Within two hundred (200) feetof any area zoned for residential use
.b _within_ two ° nundre d ("200)_feet .of any building owned and occupied
t _ b a
pubti� as--=
2. Within one thousand (1,000) feet of any other "adult entertainment"
business;
3. Within one thousand (1,000) feet of any school facility, public or
private; grades K through 12; park; playground; public libraries;
licensed day care facilities; church and accessory uses.
The "establishment" of any "adult entertainment" business shall include
the opening of such a business as a new business, the relocation of such
business or the conversion of an existing business location to any "adult
entertainment" business uses.
For the purposes of this Section, all distances shall be measured in a
straight line, without regard to intervening structures or objects, from
the nearest point of the building or structure used as a part of the
premises where said adult entertainment business is conducted to the
nearest property line of any lot or premises zoned for residential use,
or to the nearest property line of any lot or premises of a church or
educational institution utilized by minors or to the nearest point of any
building or structure used as a part of the premises of any other adult
entertainment business.
D. VARIANCE OF LOCATIONAL PROVISIONS.
Any property owner or his authorized agent may apply to the hearing body
for a variance of.any locatlonil provisions contained in this Section.
The hearing body, after a hearlrg, may grant a variance to any locational
provision, if the following f1ndings,are made:
1. That the proposed use will not be'contrary to the public
interest or injurious to nearby properties, and that the spirit
and intent of this Sscti oi4 will be observed;
2. That the proposed use will not unreasonably interfere with the
use and enjoyment of neighboring property or cause or
exacerbate the develdpoent of urban blight;
3. That the establishment of an additional regulated use in the
area will not be contrary to any program of neighborhood
conservation or revitalization nor will it interfere with any
progran being carried out pursuant to the Community
Redevelopment Law; and
4885Tf19O7A (33)
04/08/9,
•
6
DOC: az
INDEX 059
4._ That /ill applicableregulations-of this Code will be:observed.
The procedure for this hearing shall
Article 6, Division 2 of the Garden
other matters, the same notice requi
the City Council, and the same fees
Development Services Department shal
form for this variance.
be the same as that provided in
Grove Municipal Code, with, among
rements. the save right of appeal to
payable by the applicant. The
1 prepare the necessary application
ADULT MERCHANDISE IN NON=ADULT USE "BUSINESS.
1. Definitions. For the purposes of this Part, "adult merchandise' is
defined as any product dealing in or with explicitly sexual material
as characterised by matter depicting, describing, or relating is
specified sexual activities or specified anatomical areas. In
'addition, "non -adult use business" means any business or
establishment not included in Section 9.11.05C,
2, Floor Space Limitations. No more than fifteen (15) percent of total
floor space area open to thepublicof a non -adult use business
shall be devoted to adult merchandise.
3. Segregation of Adult Merchandise. Retailers elassified°as non -adult
use'estaSlishments shall display adult merchandise in an area of the
business segregated and screened from the area used for the sale and
display of non -adult merchandise. Screening may be accomplished
with partitions or said adult materials may be displayed in separate
rooms.
4. Access by Minors. Non -adult use establishments shall provide -
controls sufficient to prohibit access by persons under eighteen
(18) years of age to areas screened or segregated for the purpose of
selling or displaying adult merchandise. ,
5. Certain Merchandise Prohibited. Non -adult use businesses shall not
display or merchandise adult, sexually oriented implements and
paraphernalia, including, but not limited to: dildos, auto sucks,
sexually oriented vibrators, edible underwear, benwa balls,
inflatable orifices, anatomical balloons with orifices, simulated
and battery operated vaginas, and similar sexually oriented devices.
F. NEWSRACKS.
Newsracks shall not display specified sexual activities or specified
anatomical areas.
SECTION 9.1.2.07 ALCOHOLIC BEVERAGE SALES
A. PURPOSE. To establish criteria and conditions for uses that sell, serve,
ora ow consumption of alcoholic beverages.
488S7/1907A (34)
O4/O4/9i
DOC.
INDEX
q'.
6
REAL ESTATE PROFESSIONAL SKYEY
Please complete this brief survey and return it to the City of Garden Grove, City Manager's Office. by
March 1, 1991. A postage paid envelope is enclosed for your convenience.
. -.Based upon your personal observations as a real estate professional, or on
-,thraih_:the _practice.:Qt your profession.- do you have on ig cion as to wnethe
information received
r the presence of an
aaur%booestore .affects. -t -he r�esa.le-rental-=values-�of=nearby pr",opertiis?.-- = = -- - � -
-_ - -Yes '
No opinion �r
2. Maw many years have you practiced in the real estate profession?
3. Now many years have you practiced veal estate In the Garden Crave area?
Ouestions 4 through 15:
Please read the following information about s hypothetical neighborhood and respond to a few questions in
terms of your professional.eeperience and judgment.
A u ddle-ineoew residential neighborhood borders a main street that contains various commercial uses that
serve the neighborhood. Although most of the neighborhood is Comprised of single-family homes, then are
two multiple -family residential complexes in thd..nti,ghborhood ss well. A commercial building recently has
become vacant and will open shortlyas a ttepica<l adult bookstore. (A 'typical. adopt bookstore in Carden
Grove also contains. several 'peep show booths.) '(here are me other adult bookstores or sillier
activities in the area. There is no other vacant cooercial spice presently available in the area.
eased upon'your- professional experience, how would you expect average values of the following types of
property to be affected if they are less than 200 Feet array from the new adult bookstore? (Circle the
spprvprlate number for each type of property.)
Decrease Decrease Decrease No Increase Increase Increase
20% 10-201 0-101 Effect 0-101 10-201 201
4. Single -fanny residential
5. Multiple -family residential
6. Comaer+cial
1 2
1 2
1 2
3' 4 5 6 7
4 5 6 7
3 4 5 6
Marr would you expect the average value to be affected if the properties are within 200 to 500 feet of the
new adult bookstore?
7. Single-family residential
O. Multiple -family residential
9. Commercial
Decrease Decreese 10croase do Increase Increase Increase
. 201 10-201 0-101 affect 0-101 10-201 201
1 2 3 4 5 6 7
1 2 9 4 5 6 7
1 2 3 4' 5 6 7
Assam that the new adult bookstore will be located within 1000 nett of an existing adult bookstore or
other adult entertainment use. eased upon your professional emperieeee, how mould year Meet the average
values of the following types of properties to be affected, if they are less then 200 feet away from the
new bookstore?
10. Single-family residential
11. Multiple -family residential
12. Commercial
0aereese Oecrliase
1
1
1
Der,eaw NO Iim o= increase Immerse
10-202 0-101 Effect 0-101 10-201 201
2 3 4 '5 6 7
2 3 4 5 6 7
2 3 4 5 6 7
4111111.
Dec.
INDEX qt*
19. If the area is coniaerciai: ;,:
Subic/kVA) Some No Sc.e Substantial
Increase Increase Effect Decrease Decrease
I. Crime 1
b. traffic 1
c. litter 1.
d. noise 1
e. safety of women end
children 1
J., general - dual 1 ty_ of the
77 --,Ibnsln 4 oY r
no nt, _ 1=
g;f mints .. ,-- -_ - 1
h, loitering 1 2
i. ability to attract other
businesses 1 2
J. ability of other businesses
to attract custaoers 1 2
2
2
2
2
2
3
3
3
3
3 4 5
4 5
._.3 4 - 5
3 4 5
4 5
5
4 5
4 5
3 4 5
3 4 5
20. In general, to what degree do you feel adult entertainment businesses affect property values?
21. Why do you feel this way?
22. OPTIONAL: Mee, Mame of Firm, and Address
Mould you wend if we contacted you in the future regarding your reasons's to these surrey questions?
13261/14434
02/04/91
Vas
so •
Thant you again for your assistance with this surrey.
-3-
DOC.
INDEX
# D
S
Now would you expect the average_ values to be effected if the properties are within 200 to 500 fest of the
new adult 000kStcre-Y ==
13. Single-family residential
14, Kuitiple-family residential
15. Commercial
0ueti ons -16 and 1.: -
Based upon your professional elperience, how +wile you evaluate the impact of locating se--adultbookstore
within 200 feet of an area on the following:
16. If the area is residential:
Decrease
205
•
1
1
Decrease
10-203
2
2
2
Decrease No Increase Increase increase
0-10: Effect 0.105 10_20t 20;
3 4 5 6 7
3 4 5 6 7
3 4• 5 6 7
a.
b.
.c.
•d.
e.
f.
fg
h,
crime
traffic
Titter
noise
safety of women -and
children
general quality of life
rents •
loitering
Substantial Some No Some Substantial
Increase Incrust Effect Decrease Decrease
1 2 3 4 5
1 2 3 4 S
1. 2 3 4 5
1 2 3 4 5
1 2 3 4 5
1 2 3 4 5
1 2 3 4 5
1 2 3 4 5
17. If the area if commercial:
t. crime
b. traffic
c. litter
d. noise
e. safety of women and
children
f. general quality of the
business environment
g. rents
h. loittring
1. ability to attract other
new businesses
j. ability of other businesses
to attract ensigns,*
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
4
4
4
4
3 4
3 4
3 4
3 4
3 4
3. 4
Questions 18 and 19
Beset on your professional experience. horn would you evaluate the matt of
bookstores within 1000 feet of mit other and within 200 feet of en Me an the
• A
18. If the tree is residMrrt1e1:
a.
b.
c.
d.
e.
f.
k.
crime
traffic
litter
noise
safety of waren and
children
general quality of life
rents
affect loitering
Substantial Some 0o Some
Increase Increase Effect Decrease
1 2 3 4
1 2 3 4
1 2 3 4
1 2 3 4
1 2 3 4
1 2 3 4
1 2 3 4
1 2 3 4
-2-
S
5
5
S
. 5
5
5
5
S
5
locating two or More adult
following:
Substantial
Decrease
5
5
5
5
5
5
5
5
DOC.
INDEX
# c0e
iloMe
AMENDMENTS TO YMC 15.09.200 & YMC 5.30
ADULT ENTERTAINMENT BUSINESS
Yakima City Council
Closed Record Public Hearing
December 11, 2012
CHAPTER A
EXHIBIT LIST
Table of Contents
Yakima Planning Commission (YPC)
Findings of Fact, Conclusions of Law and
Recom mendation
CHAPTER B Moratorium Documents
CHAPTER C Memos to YPC
CHAPTER D Adverse Secondary Effects Documents
CHAPTER E Public Comments & Notices
•
•
AMENDMENTS TO YMC 15.09.200 & YMC 5.30
ADULT ENTERTAINMENT BUSINESS
EXHIBIT LIST
CHAPTER A
Yakima Planning Commission Findings of Fact
:
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Yakima Planning Commission Findings of Fact, Conclusions
of Law, and Recommendation
11/28/2012
BEFORE THE PLANNING COMMISSION
OF THE CITY OFYAKIMA
In the matter of:
Proposed Regulation of Adult -
Entertainment Businesses and
Zoning
•41
Public Hearing: November 28.2012
FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND RECOMMENDATION
THIS MATTER, having come before the Planning Commission of the City of Yakima (hereafter
"Planning Commission") upon public hearing on November 28, 2012, and the Planning
Commission having considered the record herein and all evidence and testimony presented,
hereby makes the following
FINDINGS OF FACT
1. A public hearing was held before the Planning Commission on November 28, 2012
pursuant to notice duly published,all in accordance with applicable procedures of the
Yakima Municipal Code and state law.
2. No objection was made to any member of the Planning Commission hearing and
deciding all issues in this matter.
3. The City of Yakima 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.
4. The United States District Court for the Eastem 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 conform to constitutional standards" in a
manner consistent with the court's decision.
5. 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
1
DOC.
INDEX
#
entertainment the City's current code provisions do not 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 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
5. 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. Included in the record before
the Planning Commission are copies of reports compiled and/or conducted by other
cities in the State of Washington and the United States that describe increased crime
within the near vicinity of adult businesses, the detrimental effect of such uses on
residential neighborhoods located near to adult entertainment establishments, and
reduction of property values of properties located nearby to adult entertainment
businesses. The City of Yakima receives such reports as referenced in the record, and
finds and determines that the facts and circumstances detailed and described in such
reports, together with the adverse secondary impacts described therein, apply to the City
of Yakima and, if unmitigated, will adversely affect the health, safety, property and
welfare of the City and its citizens.
6 The proposed amendment of YMC 15.09.200 to permit such adult business uses in the
M-1 Light Industrial Zone, subject to compliance with objective standards, removes the
"compatibility review" provisions of the current code found to be unconstitutional by the
federal court.
7. YMC 15.09.200 is further proposed for amendment to increase the proximity limitations
for location of adult entertainment uses, from 500 feet to 800 feet, such that an adult
entertainment use shall not be located closer than 800 feet from: (a) the outside
boundary of any parcel.that contains a public -school, private school or day care facility;
(b) the outside boundary of any parcel that contains a church or other house of worship;
(c) the outside boundary of an existing public park; (d) the outside boundary of any
parcel that contains a public library; (e) a residential zoning district; and (f) the boundary
of any city adjacent to the City of Yakima. The increase of the proximity limitations by
300 feet will provide increased distance between the adult business use and surrounding
areas or uses primarily serving or accommodating children, families and members of the
public, and will provide increased buffer to further reduce the adverse effect of adult
business uses on property values of nearby properties. The imposition of an 800 foot
limitation on any boundary between the City of Yakima and any other adjacent city will
2
DOC.
INDEX
# /4-1
preserve an appropriate buffer between any adult business use within the City of Yakima
and properties within the jurisdiction of an adjoining city.
8. The Planning Commission finds and determines that permitting adult business uses
within the M-1 Light Industrial Zone, subject to the distance limitations discussed above,
will leave substantial properties available for location of adult business uses. Facts,
records and_ reaps seproduce dias ;part of -the record show that, with the imposition f-anr = _—_ —
800 foot proximity limitation standard, approximately 157 parcels and 407 acres within
the M-1 Light Industrial Zone remain available for possible development for adult
entertainment uses.
7. Existing municipal code provisions do not adequately address licensing of adult business
uses, or regulation of the operating standards of such uses. Amendments to Chapter
5.30 YMC are proposed to provide separate licensing and operational standards for
adult business enterprises, adult business managers. and adult entertainers. Specific
requirements are including regulating distances between entertainers and patrons,
establishing location standards and specifications for stages, performance areas,
lighting, security and signage. The Planning Commission finds and determines that such
amendments are necessary and appropriate to license and regulate such businesses
and performances therein and will reduce and ameliorate adverse secondary effects
such as unlawful contact between entertainers and patrons, control of unruly patrons,
and lack of adequate investigation of applicants for licenses.
8. On July 17, 2012, the City Council of the City of Yakima adopted Ordinance No, 2012-
026 imposing a moratorium from July 17, 2012 through January 15, 2013 on the
acceptance, processing and issuance of land use and building permits for adult
entertainment uses. On September 4, 2012, the City Council approved Resolution No.
2012-113 adopting Findings of Fact and Conclusions of Law supporting the adoption of
the moratorium. Such legislative enactments are part of the record before the Planning
Commission and adopted herein by reference.
9. Any Finding of Fact, or portion thereof, hereafter determined by a court of competent
jurisdiction to be a Conclusion of Law shall be construed as a Conclusion of Law without
derogation of any other Finding of Fact.
Having made the above Findings of Fact, the Planning Commission makes the following
CONCLUSIONS OF LAW
10. The Planning Commission has jurisdiction to receive all evidence and testimony in this
matter, and to make these Findings of Fact, Conclusions of Law and Recommendation
conceming all issues herein.
3
DOC.
INDEX
# ( i
11. There being no objection to any member of the Planning Commission proceeding to
hear and consider all matters herein, any and all objections arising or alleged to arise out
of the appearance of fairness doctrine or provisions related to conflict of interest are
hereby deemed waived.
-;12:AlLprocedural.requirements pertaining,tomchedulingz-and, conducting the -public
hearing have been met and'are satis if ea:
13. All procedural requirements pertaining to amendment of Title 15 of the Yakima Municipal
Code have been met and are satisfied.
14. The proposed legislation amending Chapter 5.30 YMC and YMC 15.09.200 of record
herein and incorporated by reference hereto ("proposed legislation") consists of a
proposal to adopt legislation by ordinances relating solely to govemmental procedures
and contain no substantive standards respecting use or modification of the environment,
and is therefore categorically exempt from threshold determination and EIS
requirements under the State Environmental Policy Act (SEPA) pursuant to WAC 197-
11-800(19).
15. The adoption of the proposed legislation constitutes an exercise of the general police
and regulatory powers of the city as authorized by, but not limited to: Washington State
Constitution Article XI, Section 11; Chapter 35.22 RCW, and RCW 35.22.195; Charter of
the City of Yakima, Article I; and the Yakima Municipal Code.
16. The exercise of the city's general police and regulatory power to adopt the proposed
legislation is consistent with land use and police power regulatory authority of the City of
Yakima and laws of the State of Washington, including but not limited to Title 35 RCW
and the Growth Management Act of the State of Washington.
17. The adoption of the proposed legislation is compliant with the moratorium adopted by
the City Council pursuant to Ordinance No. 2012-026 and RCW 36.70A.390 and RCW
35.63.200.
18. The adoption of the proposed legislation constitutes a land use control rationally and
reasonably related to control documented secondary effects arising from unregulated
adult entertainment uses and businesses. The city is entitled to rely on facts, reports
and studies of prepared by other jurisdictions when analyzing secondary effects
associated with adult entertainment businesses and uses. See, e.g., City of Renton v.
Playtime Theaters, Inc., 475 U.S. 41, 106 S.Ct. 925 (1986).
19. The Planning Commission concludes that the adoption of the proposed legislation
incorporated herein establishes reasonable and objective regulations governing land
use, licensing and operation of adult entertainment businesses and uses within the City
4
DOC.
INDEX
## /4-.2
of Yakima, and will provide necessary and appropriate mitigation of adverse secondary
effects associated with adult entertainment businesses and uses.
20. Any Conclusion of Law, or portion thereof, hereafter determined by a court of competent
jurisdiction to be a Finding of Fact shall be construed as a Finding of Fact without
derogation of any other Conclusion of Law.
=_ = Having; made -_the -above Findings-. of Fact d--OritItision of- Law, the Planning Commission
hereby renders its
RECOMMENDATION TO CITY COUNCIL
The Planning Commission of the City of Yakima, having received and considered all evidence
and testimony presented at public hearing, and having received and reviewed the record herein,
hereby recommends that the City Council of the City of Yakima APPROVE the proposed
legislation amending Chapter 5.30 YMC and YMC 15.09.200 referenced and incorporated
herein.
ADOPTED AND APPROVED this 28th day of November, 2012.
oval, C
5
DOC,
INDEX
AMENDMENTS TO YMC 15.09.200 & YMC 5.30
ADULT ENTERTAINMENT BUSINESS
EXHIBIT LIST
CHAPTER B
Moratorium Documents
B-1
Court Decision — Muffett v. City of Yakima, et al.
07/17/2012
B-2
Ordinance No. 2012-26 — Adopting Six -Month Moratorium
07/17/2012
B-3
Memorandum to City Council — Findings of Fact re:
Moratorium
08/07/2012
B-4
Resolution No. R-2012-113 — Adopting Findings of Fact
Supporting Moratorium
09/04/2012
RESOLUTION NO. R-2012-113
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.
2. The city council is committed to protecting the general welfare of the city through the
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
DOC.
INDEX
# ,B-ze
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
businet arVare -1e it.i�—ATte,, substantial -and- coMpelling-ea+icerns -of the- city which
dernand-r�strfa._gulation - _
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
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,
2
Dom.
INDEX
# B-4/
"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;,_, pai ip Ia ly ei=:=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
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.
3
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# R
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-weffare—orthe=citizensof Ya1ima 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
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 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 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 genera( 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,
infer alfa, 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 staffnor 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
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:
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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 --se .fartfrir-rOrdfnance. No. 2012-26, including but not _
timited to, =development of=prpOsed=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 4`h day of September, 2012.
ATTEST:
/s/ Sonya Claar Tee
Sonya Claar Tee, City Clerk
5
/s/ Micah Cawley
Micah Cawley, Mayor
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#
CITY OF YAKIMA
LEGAL
DEP R d 1E1 d 1
200 Soutfo,rhird; Y • WasOngun-96901=
(509)575 -6030 -Fac (509)575.61
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:
DCC -
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Memorandum to Honorable Mayor and Members of the City Council
August 7, 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
:r oo r eroia)?zarung:districts; and -as -a. -Class -(3) use,, requiring Type(3) review,
and only in the M=1' (fight industrial)`zonng`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
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
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# 3
Memorandum to Honorable Mayor and Members of the City Council
August 7, 2012
Page 3
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 heannt =thatthe=u omplies=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.
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.
INDEX
# 8-.3
Memorandum to Honorable Mayor and Members of the City Council
August 7, 2012 _
Page 4
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
LL
_tie _to the_CJess 2or Glass_.3 -review processes.. Consequently; _i- it =recessar to develop
objective. standards to delineate allowable locations, or z niRg--districts for=adult=entertainment
'Mid 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.
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.
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# i3 3
Memorandum to Honorable Mayor and Members of the City Council
August 7, 2012
Page 5
(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).
Bellevue;-=--1Nashington, "Location Cif—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, "Reporton 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:
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);
DOC.
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Memorandum to Honorable Mayor and Members of the City Council
August 7, 2012 -
Page 6
Cleveland, Ohio, Special Investigative Unit Report (1977);
Dallas, Texas, "An Analysis of the Effects of SOBS on the
in Dallas, Texas"-(1997)--"----,-------
Des
exas" (1997)--,- ----
Des Moines, Washington, "Des Moines Adult Use Study" (1
El Paso, Texas, "Effects of Adult Entertainment
Neighborhoods" (1986);
Ellicottville, New York, "Adult Business Study" (1998);
Surrounding Neighborhoods
984);
Businesses on Residential
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 theCCity 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).
INDEX
# B-3
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 =ante aliment`
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
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;I
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 t� adult business and adult entertainment, the City does not have code:
provisions to ,adequately address the various impacts to publichealth, 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 goveming 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
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#
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 andapprovals 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
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INDEX
impacts, mitigation requirements, zoning for potential siting, and other
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 emer9ency; ..-,,,.:._ .
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
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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
thisordinanceshall become effeetivesir mediately upon passage and approval of
this=ordinance; =and shah- remain m�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 govemmental 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
DOC.
INDEX
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,,,stgned and approved this 17th day of
-
Jujy, - _ -
ATTEST:
By
City Clerk
Effective Date: July 17, 2012
Publication Date: July 20, 2012
‘11,V1614,71.
Ordinance Approved by Unanimous Vote
of Council Members: July 17, 2012
6
Micah Cawley, Mayor
DOC.
INDEX
Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12
+,cr asceA:+. ecu-..�. sr- ert_;r.cs - .,..., „_.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
JAMIE MOFFETT, a single person,
individually and d/b/a "JLM Talent,
LLC," a Washington limited liability
company,
Plaintiff,
v.
CITY OF YAKIMA, by and through the
members of its City Council, et al.,
Defendants.
NO: CV -10 -3092 -RMP
ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANT'S SECOND MOTION
FOR SUMMARY JUDGMENT AND
GRANTING PLAINTIFF'S MOTION
FOR PARTIAL SUMMARY
JUDGMENT
Before the Court are the Defendant's second motion for summary judgment,
ECF No. 103, and the Plaintiff's motion for partial summary judgment, ECF No.
129. Oral argument on the Plaintiff's motion was heard on June 19, 2012, in
Spokane, Washington. The Defendant's motion was noted without oral argument.
The Court has reviewed the motions, the relevant filings, the file, and is fully
informed.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 1
DOM
IND
* 8.
Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12
BACKGROUND
This action arises from Plaintiff Jamie Muffett's attempts to open an adult
entertainmirifbas hiss in the City of Yakima;: Washington.- Mr.`Muffett's -
application for approval of his proposed adult entertainment business was' denied
by a hearing examiner who concluded that Mr. Muffett's proposed use violated
Yakima's Urban Area Zoning Ordinance ("UAZO").
The Yakima Ordinance and Review Procedures
Under the UAZO, Yakima has a special section addressing adult
entertainment businesses. Yakima Municipal Code ("YMC") 15.09.200. The
section places a variety of restrictions on adult businesses related to areas like
signage, operating hours, and location. YMC 15.09.200(D)(1). With regard to
location, adult businesses cannot be located within 500 feet of a school, church,
park, library, or residential zone. YMC 15.09.200(D)(1)(a)(1)(a)-(e). Nor can an
adult business be located within 1500 feet of "a parcel supporting a similar adult
entertainment use." YMC 15.09.200(D)(2).
Apart from the special restrictions set forth in the adult business section, the
section specifies that adult entertainment businesses are either a "Class (2)" or
"Class (3)" use under the UAZO, depending on whether the business is to be
placed in an area zoned for commercial or industrial uses. YMC 15.09.200(C)(1).
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 2
Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12
In this case, Mr. Muffett's proposed business would have been placed in a general
commercial zone and was a "Class (2)" use for the purposes of the UAZO.
Class (2) uses may be permitted after review by an_adminisafve official to- -
determine whether the proposed use is "compatible" with the surrounding district.
YMC 15.04.020(B). Class (2) uses typically are reviewed under "Type (2)"
review. YMC 15.04.020(B). Under Type (2) review, a person may apply in
writing to the planning department and attach a general site plan. YMC 15.14.030.
The reviewing administrative official may request further information. YMC
15.14.030 (citing YMC 15.11.020(B)). The administrative official shall issue a
preliminary decision within seven days of the receipt of a completed application or,
where additional information is required, within seven days of the receipt of the
additional information. YMC 15.14.040(A). Upon preliminary approval, the
administrative official must notify nearby landowners of the proposed use and may
solicit comments from other interested parties. YMC 15.14.040(B). After
considering any comments, the administrative official may approve the application,
deny the application, seek additional information, condition approval on
modifications to the application, or refer the site plan to a hearing examiner. YMC
15.14.040(C). The administrative official must prepare written findings and
conclusions if he or she approves or denies the application. YMC 15.14.040(E).
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING DOC.
PLAIN11lF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 3 INDEX
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An administrative official overseeing a Type (2) review may require that a
Class (2) use undergo a Type (3) review where "[i]n the opinion of the
-administrative o-fficiatiformal_p- _review-and=comment on-a°proposal will assist
in determining necessary and proper mitigation of impacts." YMC 15.14.020(A).
Type (3) review involves a public hearing in front of a hearing examiner, and the
public may submit written information to the hearing examiner. YMC
15.15.040(B). Unless otherwise agreed to, within ten days of the hearing, the
hearing examiner must render a written decision. YMC 15.15.040(C).
Within fourteen days of the mailing of the hearing examiner's decision, an
aggrieved party may appeal the decision to the city council. YMC 15.16.040. The
parties then have fourteen days to file written arguments with the council. YMC
15.16.040(B)(1). After the fourteen -day period has expired, the planning
department must deliver the hearing examiner's record to the city council within
five days. YMC 15.16.040(B)(3). Upon receipt of the record, the city council
must set a public hearing within twenty days at which it may decide the case or
remand for further proceedings. YMC 15.16.040(A), (E).
Within twenty-one days of the issuance of a land use decision from the city
council, an aggrieved party may appeal such decision to the Washington State
Superior Court. RCW 36.70C.040. The appeals process is expedited by default
ORDER GRANTING TN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING rw,
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 4 INDEX
Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12
1 and "[t]he matter must be set for hearing within sixty days of the date set for
2 submitting the local jurisdiction's record." RCW 36.70C.090.
Mr.=MuffetVs Application
4 Mr. Muffett is the sole owner ofJLM Talent, LLC. ECF No. 105 at 7. On
5 March 18, 2010, Mr. Muffett submitted an application to open a proposed adult
6 entertainment business in the City of Yakima. ECF No. 105 at 21-22. Joan
7 Davenport, the planning manager for Yakima, served as the administrative official
8 who handled Mr. Muffett's application. ECF No. 104 at 3. Ms. Davenport
9 concluded that formal public review and comment on Mr. Muffett's application
10 would be useful and opted for a Type (3) review process involving a public hearing
11 for Mr. Muffett's proposed Class (2) use. ECF No. 104 at 4-5.
12 A public hearing was held in front of Hearing Examiner Gary Cuillier on
13 May 28, 2010. ECF No. 105 at 28. On July 6, 2010, Mr. Cuillier issued his
14 written decision finding that Mr. Muffett's proposed adult business did not comply
15 with the UAZO because it was not compatible with the surrounding uses. ECF No.
16 105 at 39. Specifically, Mr. Cuillier found that the negative secondary effects of
17 Mr. Muffett's proposed use would "likely include increased crime, especially
18 prostitution, drug and assault crimes." ECF No. 105 at 93. Mr. Cuillier found that
19 the district surrounding Mr. Muffett's proposed business location constituted a
20 "family and tourist -oriented location" that would suffer lost business, decreased
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING Dom
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 5
IN
Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12
property values, and blight as a result of the negative secondary impacts of Mr.
Muffett's proposed adult business. ECF No. 105 at 93.
„MufFett_appealed-tlielearing examinee`' decision to the city_council:
ECF No. 100-01. On September 7, 2010, a public hearing was held to address Mr.
Muffett's appeal. ECF No. 105 at 105. The city council upheld Mr. Cuillier's
decision by a unanimous roll call vote. ECF No. 105 at 105. Mr. Mullett did not
timely file a Land Use Petition Action to the Washington State Superior Court.
APPLICABLE LAW
Summary judgment is appropriate "if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). A key purpose of summary judgment "is to
isolate and dispose of factually unsupported claims ...." Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986). Summary judgment is "not a disfavored procedural
shortcut," but is instead the "principal tool[ ] by which factually insufficient claims,
or defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources." Celotex; 477 U.S. at
327.
The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. See Celotex, 477 U.S. at 323. The moving party
must demonstrate to the Court that there is an absence of evidence to support the
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING D
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 6
INDEX
Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12
1 non-moving party's case. See Celotex Corp., 477 U.S. at 325. The burden then
2 shifts to the non-moving party to "set out `specific facts showing a genuine issue
for trial."' Celotex Corp., 477 U.S. at 324 (quoting Fed: R. Civ.P. 56(e)). ---
4
6(e)).- -4 A genuine issue of material fact exists if sufficient evidence supports the claimed
5 factual dispute, requiring "a jury or judge to resolve the parties' differing versions
6 of the truth at trial." T. W Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809
7 F.2d 626, 630 (9th Cir.1987). At summary judgment, the court draws all
8 reasonable inferences in favor of the nonmoving party. Dzung Chu v. Oracle
9 Corp. (In re Oracle Corp. Secs. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing
10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). The evidence
11 presented by both the moving and non-moving parties must be admissible. Fed. R.
12 Civ. P. 56(e). The court will not presume missing facts, and non-specific facts in
13 affidavits are not sufficient to support or undermine a claim. Lujan v. Nat'l
14 Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).
15 DISCUSSION
16 Defendant's Second Motion for Summary Judgment
17 In seeking summary judgment, Yakima identifies the claims it believes are
18 asserted in Mr. Muffett's first amended complaint and more definite statement.
19 Yakima identifies four claims brought pursuant to 42 U.S.C. § 1983. The claims
20 allege violations of the First Amendment, Fourth Amendment, "privacy" under the
ORDER GRANTING IN PART ANDDENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING Dom
PLAINTIFF'S MOTION. FOR PARTIAL SUMMARY JUDGMENT - 7
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Fifth Amendment, and procedural due process through the Fourteenth Amendment.
Yakima asserts that all of the claims are based on Mr. Muffett's allegation that
'`Yakima'faile followiheUA.ZO when -Yakima denied Mr. Muffett's_application_
for zoning approval of his proposed adult entertainment business.
Yakima asserts that it followed the UAZO, and, as a result, Mr. Muffett's
claims must fail. Yakima further asserts that Mr. Muffett has failed to identify an
official policy giving rise to any of his claims as is required for municipal liability
for claims brought under section 1983. Monell v. Dep't of Soc. Servs., 436 U.S.
658 (1978).
In responding to the Defendant's second motion for summary judgment,
Mr. Muffett asserts that his claim is a facial challenge to the compatibility
requirement of the UAZO. Mr. Muffett admitted that his "First Amended
complaint does contain a number of allegations that are no longer material tothe
action." ECF No. 120 at 4. Mr. Muffett identified that "[i]t is the constitutionality
of th[e] `compatibilityrequirement that remains to be determined in this
litigation." ECF No. 120 at 4-5. Accordingly, Mr. Muffett does not challenge the
City's assertions that the City complied with the UAZO, that the city's decision
was based on considerations other than those mandated by the UAZO, or that Mr.
Muffett has failed to state claims for violations of the Fourth Amendment, the right
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING DOC.
PLAINTIFF'S MOTION FOR PARTIAL SU 11v1ARY JUDGMENT 8 INDEX
Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12
to privacy, and procedural due process. Accordingly, the Defendant prevails on
those issues.
h t leaves two issues raised byY ma'-- eeontl-motiot =fof summary
judgment that are contested by Plaintiff: whether Mr. Muffett's amended complaint
states a facial challenge to the UAZO, and whether Mr. Muffett has met the Monell
pleading standard. These two inquiries collapse into one because the Monell
standard is met when a plaintiff challenges the constitutionality of a municipal
ordinance.. Monell, 436 U.S. at 690. Accordingly, if the Court concludes that Mr.
Muffett's amended complaint states a facial challenge to the Yakima zoning
ordinances, then Mr. Muffett will have necessarily met the Monell standard for
section 1983 claims.
Whether the amended complaint states a facial challenge to the Yakima
zoning scheme.
A complaint must contain, among other things, "a short and plain statement
of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). A
complaint meets this burden where it "contain[s] sufficient factual matter, accepted
as true, to `state a claim to relief that is plausible on its face.' Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the plaintiff pleads factual content
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 9 �°°
INDEX
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that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id.
his response to._Yakima's motiorrfor urn maty j.0 g lent and in;:h.is own - --
motion for partial summary judgment, Mr. Muffett asserts that the UAZO's
compatibility requirement constitutes an unconstitutional prior restraint on free
speech. The gist of Mr. Muffett's argument is (1) that Mr. Muffett's proposed
business involves nude dancing, which is protected First Amendment expression;
(2) that. Mr. Muffett needs the permission of a govemment administrator before he
may engage in this protected First Amendment speech; and (3) that the
administrator has unfettered discretion in granting the permission.
In his complaint, Mr. Muffett alleges that he "applied for a license to open a
`gentlemen's club'; that the city denied his application; and that the basis for
Yakima's denial was that the club was "not compatible" with other businesses in
the area. ECF No. 2 at 4-5. He then claims that such conduct violated the First
Amendment. ECF No. 2 at 7. The Court finds that the allegations contained in
Mr. Muffett's amended complaint are sufficient to challenge the constitutionality
of the compatibility requirement in the context of expressive conduct.
Mr. Muffett's more definite statement is consistent with his amended
complaint. While Mr. Muffett's focus remains on allegations that the City failed to
follow the UAZO, Mr. Muffett alleges that "the defendant city has frustrated [Mr.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING Doc.
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 10 IND
Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12
Muffett's] Constitutional rights for free expression by using illegal ... rules and
restrictions for [his] license application." ECF No. 89 at 4. One of the alleged
illegal restriction the-Fcofripatibility requirement -of the UAZO. ECF No. 89 at 3.
Yakima's reliance on La Asociacion De Trabajadores de Lake Forest v. City
of Lake Forest, 624 F.3d 1083 (9th Cir. 2010), and Wasco Prods., Inc. v. Southwall
Techs., Inc., 435 F.3d 989 (9th Cir. 2006), for the contention that a party may not
defeat a summary judgment motion by raising a new claim in its reply is simply
not relevant here. In both Wasco and La Asociacion, the plaintiffs failed to allege
facts in their complaints supporting necessary elements of their theories opposing
summary judgment. La Asociacion, 624 F.3d at 1088-89 (failing to allege
frustration of the purpose of the National Day Laborer Organizing Network as a
group as opposed to allegations respecting only individual members); Wasco, 435
F.3d at 992 (failing to plead the elements of civil conspiracy as necessary to toll
the statute of limitations).
Unlike the plaintiffs in La Asociacion and Wasco, Mr. Muffett has pleaded
sufficient facts to support his argument on summary judgment that the
compatibility requirement of the UAZO is an unlawful prior restraint. While the
complaint and more definite statement focus on a challenge to the application of
the zoning ordinances, the factual allegations and reference to the First
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING DOC•
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 11 1N
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Amendment were sufficient to put Yakima on notice that Mr. Muffett challenged
the compatibility requirement.
Plaintiffs Mothan _for Pairtial=Summa Jud inert -g
In his motion for partial summary judgment on his section 1983 claim, Mr.
Muffett challenges the constitutionality of the compatibility requirement of -the
UAZO. Section 1983 does not itself confer any rights, but is merely a mechanism
by which a plaintiff may enforce rights secured elsewhere. Gonzaga Univ. v. Doe,
536 U.S. 273, 285 (2002) (citing Chapman v. Houston Welfare Rights Org., 441
U.S. 600, 617 (1979)). To state a cause of action against a person under § 1983, a
plaintiff must establish (1) that the person was acting under color of state law, and
(2) that the person deprived the plaintiff of any rights, privileges, or immunities
secured by the Constitution or other law of the United States. Payne v. Peninsula
Sch. Dist., 653 F.3d 863, 872 (9th Cir. 2011). "Local governing bodies ... can be
sued directly under § 1983 for monetary, declaratory, or injunctive relief where .. .
the action that is alleged to be unconstitutional implements or executes ... a[n] .. .
ordinance [or] regulation." Monell, 436 U.S. at 690.
Nude dancing, of the type to be performed at Mr. Muffett's proposed club, is
"`expressive conduct' which falls `within, the outer ambit of the First Amendment's
19 protection.'" Dream Palace v. County of Maricopa, 384 F.3d 990, 998 (9th Cir.
20 2003) (quoting City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000)).
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING DOG.
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 12
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Accordingly, Mr. Muffett's proposed land use triggers the protections of the First
Amendment. Because Mr. Muffett challenges the constitutionality of an
ordinance; he --has appyopriateLy stated acclaim -against Yakima under section 1983.
Monell, 436 U.S. at 690.
The basis of Mr. Muffett's constitutional challenge is that the requirement
under the UAZO that proposed adult entertainment businesses must undergo a
compatibility review and be approved by an administrative official prior to their
engaging in nude dancing, a protected form of expression, is an unconstitutional
prior restraint because the administrative official is vested with too much
discretion.
"A prior restraint exists when the enjoyment of protected expression is
contingent upon the approval of government officials." Dream Palace, 384 F.ed at
1001 (citing Near v. Minnesota, 283 U.S. 697, 711-13 (1931)). In Shuttlesworth v.
City of Birmingham, 394 U.S. 147 (1969), police arrested a group of civil rights
marchers for marching without first receiving a permit. 394 U.S. at 148-19. The
permitting statute at issue required the issuance of a permit before any "parade or
procession or other public demonstration." Id. at 149. To receive a permit,
marchers were required to write an application in which they disclosed the
"probable number of persons, vehicles and animals which will be engaged in such
parade, procession or other public demonstration, the purpose of which it is to be
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING Doc
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 13 INDEX
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held or had, and the streets or other public ways over, along or in which" the event
is to be held. Id. A permit was to be issued upon application unless a commission
judged that "the public_ welfare, peace, safety, health, decency, good order,—;rnorals
or convenience required that it be refused." Id. at 149-50. The Court held that the
standard by which the commission was to determine whether a permit should be
withheld vested too much discretion in the commission and therefore constituted
"an unconstitutional censorship or prior restraint." Id. at 150-51 (internal
quotations omitted).
In opposing Mr. Muffett's motion, the City argues that the UAZO is a
constitutionally permissible time, place, and manner restriction that should not be
subject to a prior restraint analysis. ECF No. 152 at 2 (citing Renton v. Playtime
Theatres, Inc., 475 U.S. at 41 (1986)). However, "jt]he weight of authority
suggests that an unconstitutional prior restraint cannot be upheld as a `content -
neutral time, place and manner' regulation." Diamond v. City of Taft, 29 F. Supp.
2d 633, 647 (E.D. Cal 1998) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S.
215, 233 (1990)); see .also Long Beach Area Peace Network v. City of Long Beach,
574 F.3d 1011, 1025 (9th Cir. 2008) (recognizing a fourth criterion to time, place,
and manner restrictions ensuring that a permitting scheme "'may not delegate
overly broad licensing discretion to a government official."') (quoting Forsyth
Cnty. v. Nationalist Movement, 505 U.S. 123 (1992)). Shuttlesworth supports the
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S -
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING DOC
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 14 IND
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conclusion that an otherwise valid, content neutral time, place, and manner
restriction may be unconstitutional as a prior restraint as the permit requirement in
_Shuttlesworth-case _wasjatenacte to-Trestrict speech but=-vvi s a�regulat on -of
sidewalks and streets pursuant to the legitimate government interests in traffic
regulation and public safety. 394 U.S. at 152. Accordingly, even if the UAZO
complies with the requirements of Renton, and is otherwise a valid time, place, and
manner restriction, the UAZO may still be unconstitutional if it is a prior restraint
that vests too much licensing discretion in public officials.
FW/PBS does not suggest otherwise. In FW/PBS, the fact that the
procedural failings of the ordinances in FW/PBS were sufficient to decide the case,
and the fact that the Court explicitly did not reach the time, place, and manner,
issue, suggests that the procedural requirements imposed on prior restraints are
separate and in addition to the constitutional requirements of time, place, and
manner regulations. See id. at 221-22. Unlike the UAZO at issue in this case, the
portions of the licensing ordinance in FW/PBS that vested too much discretion in
licensing officials already had been stricken by the trial court and the ordinances
had been amended to remove the discretion prior to review by the Supreme Court.
493 U.S. at 223. Similarly, in Renton, the ordinance at issue involved only
objective criteria. See 475 U.S. at 43.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING Doc.
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Under the UAZO, adult businesses are treated as Class (2) or Class (3) uses
depending on where they are sited. YMC 15.09.200(C)(1). Both uses require a
compatibility review.: YMC 1-5:04:020: As:a-result;-every_proposed=adult
entertainment business must undergo a compatibility review before it may be
approved. Therefore, the compatibility requirement of the UAZO is functionally
equivalent to a licensing scheme and serves as a prior restraint. See Diamond, 29
F. Supp. 2d at 648 (because adult businesses needed to seek approval through a
conditional use permit prior to engaging in business, the conditional use permit
requirement acted as a prior restraint on protected expression) (citing
Shuttlesworth, 394 U.S. at 150-51). In addition, Yakima imposes a licensing
requirement on adult businesses. YMC 5.30." However, the issuance of a license is
contingent upon compliance with the UAZO. YMC 5.30.030(C)(3). If Mr.
Muffett cannot meet the zoning requirement in the UAZO, he cannot receive a
license under YMC 5.30. Accordingly, the compatibility requirement of the
zoning ordinance is incorporated in the licensing requirements andconstitutes a
prior restraint.
Because the compatibility requirement of the UAZO is a prior restraint, it
must sufficiently limit the discretion of the administrative official tasked with
determining the'compatibility of a proposed adult use in order to withstand
constitutional scrutiny. Discretion is sufficiently limited when administrative
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING DOC,
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officials are guided by "narrow, objective, and definite standards." Shuttlesworth,
394 U.S. at 149. "The standards must be sufficient to `render [the official's
dasisionIsubject to effective judicial -review.'" Long Beach Area Peace. Network
("LBAPN") v. City of Long Beach, 574 F.3d 1011, 1025 (9th Cir. 2008) (quoting
Thomas v. Chi. Park Dist., 534 U.S. 316, 323 (2002)).
The compatibility requirement of the UAZO obliges the administrative
official reviewing a Class (2) use to "promote compatibility with the intent and
character of the district andthe policies and development criteria of the Yakima
urban area comprehensive plan."2 YMC 15.02.020, 15.04.020. "`Compatibility'
'This requirement works in tandem with the judicial review timing
requirements of City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004).
Where discretion is too broad for effective judicial review, the prior restraint is
unconstitutional. LBAPN, 574 F.3d at 1025. Where prior restraint criteria are
objective and simple, expedited judicial review is not required. Littleton, 541 U.S.
at 783-84. However, where criteria are sufficiently objective to allow effective
judicial review but may involve some exercise of discretion, expedited review may
be appropriate. See id. at 782.
2An ordinance's terms may be further limited by "explicit textual
incorporation, binding judicial or administrative construction, or well-established
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT' S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 17
DOC.
IN
# B
1
2
4
5
6
7
8
9
10
11
12
13
14
Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12
means the characteristics of different uses of developments that permit them to be
located near each other in harmony with or without special mitigation measures."
_ YMC 1-5.02:020. _. - -
The 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 UAZO's requirement that adult businesses undergo a
compatibility review is an unconstitutional prior restraint.
The out -of -circuit cases cited to by the City are distinguishable from this
case. In Steakhouse, Inc. v. City of Raleigh, 166 F.3d 634 (4th Cir. 1999), the
15 practice." City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 770 (1988).
16 The City has not argued that the discretion of administrative officials is limited
17 beyond what the text of the UAZO provides and has not provided any judicial or
18 administrative constructions or well-established practices that would bind future
19 decision -makers in determining compatibility. Accordingly, the Court reviews the
20 plain text of the UAZO.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING DOC.
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 18
INDEX
# /3
Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12
ordinance cabined the discretion of the licensor by requiring him or her to focus on
adverse effects on such public services as "parking, traffic, and police." Id. af639.
_Such_standards constitute much more objective, criteria fora reviewing court than—
"compatibility"
"compatibility" and "harmony." In Bronco's Entm't, Ltd v. Charter Twp. of Van
Buren, 421 F.3d 440 (6th Cir. 2005), the special review requirement that was
upheld by the court involved the purely objective review whether the proposed
adult business complied with geographic requirements explicitly set forth in the
zoning ordinance. Id. at 446. In contrast, the Bronco court struck down aportion
of the adult business licensing ordinance that allowed the chief of police to deny a
license if the chief "determines that the applicant is presently unfit to operate a
sexually oriented business due to the applicant's overall criminal record." Id. at
448. Finally, the standard in Field Day, LLC v. County of Suffolk, 463 F.3d 167
(2nd Cir. 2006), was interpreted to allow the denial of mass gathering permits upon
a determination that the gathering presented "unreasonable risks to genuine issues
of life or health." Id. at 180. Again, that standard provides substantially greater
guidance to a reviewing court than the standard provided in the UAZO. In sum,
none of the out -of -circuit cases cited by the City are persuasive.
Because the Court has concluded that application of UAZO's compatibility
requirement to proposed uses involving protected expression violates the
Constitution, the Court must determine whether the offending provision is
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING DOC.
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT – 19 INDEX
,1 e_
Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12
severable from the remainder of the ordinance. Whether a municipal ordinance is
severable is a question of state law. Leavitt v. Jane L., 518 U.S. 137, 139 (1996).
Under Washington law, "[t]he test for severability is whether the constitutional and
unconstitutional provisions are so connected ... that it could not be believed that
the legislature would have passed one without the other." Kennedy v. McGuire, 38
Wn. App. 237, 242 (1984) (internal quotations omitted) (ellipses in original). "The
presence of [a] severability clause `offers to the courts the necessary assurance that
the remaining provisions would have been enacted without the portions which are
contrary to the constitution.'" City of Seattle v. Davis, 32 Wn. App. 379, 385
(1982) (quoting State v Anderson, 81 Wn.2d 234, 236 (1972)). The UAZO
contains a severability clause. YMC 15.01.070. Therefore, the Court may restrict
application of the compatibility requirement without finding the remainder of the
ordinance unconstitutional.
Accordingly, IT IS HEREBY ORDERED:
1. The Defendant's Second Motion for Summary Judgment, ECF No. 103,
is GRANTED IN PART AND DENIED IN PART.
2. The Plaintiffs Motion for Partial Summary Judgment, ECF No. 129, is
GRANTED.
3. The City of Yakima is PERMANENTLY ENJOINED from enforcing
the compatibility requirement of YMC 15.02.020 and 15.04.020 with
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 20
INDEX
Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12
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
IT IS SO ORDERED.
The District Court Executive is hereby directed to enter this Order and to
provide copies to counsel.
DATED this 17th day of July 2012.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
Chief United States District Court Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING DOC.
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 21 INDEX
## -'/
AMENDMENTS TO YMC 15.09.200 & YMC 5.30
ADULT ENTERTAINMENT BUSINESS
EXHIBIT LIST
CHAPTER C
Memos to YPC
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C-1
Memo to Planning Commission — Adult Entertainment
C-2
Memo to Planning Commission — Adult Entertainment
Proximity Standards
11/06/2012
C-3
Memo to Planning Commission — Designation. of Records
11/201201.2
-r-:_---,,-_- _1=i- •,,-.-.__-,.--- •
CITY OF YAKIMA
LEGAL
DEPARTMENT
703SoudtThird Street, Yakimma,.W 96901 (509)575.6030 Fax (509)5575.6160
MEMORANDUM
November 20, 2012
TO: Planning Commission
Steve Osguthorpe, AICP, Director, Community Development
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Adult Entertainment — Public Hearing — Designation of Record
An open record public hearing has been noted for Wednesday, November 28, 2012 at 3:30
p.m. in the Council Chambers at Yakima City Hall. The purpose of the public hearing is to
receive public comment and testimony regarding proposed amendments to YMC 15.09.200
(zoning regulations for , adult entertainment businesses) and Chapter 5.30 YMC (business
licensing regulations for adult entertainment businesses). The purpose of this memorandum is
to summarize the proposed amendments and to recite the documents relied upon to support
such proposed amendments. These documents, together with this memorandum, constitute
the record for this item.
A. Adult Entertainment — Zoning Regulations — Summary of Amendment.
YMC 15.09.200 states the existing zoning regulations applicable to adult entertainment
businesses. This code section allowed adult businesses to locate in several different zones of
the city upon recommendation of staff and/or the Hearing Examiner based upon a finding that
the use was "compatible" with neighborhood uses and met the 500 -foot buffer requirements.
The proposed amendment, in response to the judge's decision in Moffett v. City of Yakima,
Case No. CV -10 -3092 -RMP (E.D. Wash. July 17, 2012). The judge ruled that the review for
"compatibility" was unconstitutional as a restraint on freedom of speech because it was not
sufficiently based on objective standards and left too much discretion to the decision -maker.
Ordinances enacted by other jurisdictions were reviewed. Many of these cities and counties
also contained "proximity" limitations significantly greater that the provisions in YMC 15.09.200
For example, many cities have adopted provisions stating that adult entertainment uses cannot
locate closer than 1,000 feet from residentially zoned properties, schools, parks, churches and
other protected uses. YMC 15.09.200 has a 500 -foot buffer limitation. The studies of adverse
secondary effects associated with adult business uses conducted by several cities and counties
in the State of Washington and across the United States support a finding that significant
proximity limitation buffer zones reduce or ameliorate such adverse secondary effects.
DOC.
INDEX
# C -3
Memorandum to Honorable Mayor and Members of the City Council
November 20, 2012
Page 2
In response to_tbe above, the following proposed changes were made to YMC 15.09.200: -_ -- -
(a) Elimination of "Compatibility" Review.. The — "compatibility review"
mechanisms of the existing code are eliminated. Instead, adult businesses uses are
deemed permitted in the M-1 Light Industrial zones of the City. Included in the record is
a Map showing the location of the M-1 Zone, as well as those portions of M-1 zoned
property that could be available for possible siting of an adult entertainment business.
(b) Increase of "Buffer" Proximity Limitations. The proposed amendment increases
the 500 -foot buffer to 800 feet. Thus, the amended provisions provides that no adult
entertainment business can locate closer than 800 feet from the outside boundary of
any parcel that contains a public or private school, daycare facility, church or other
house of worship, public park, public library, residential zoning district. Additionally, the
amendment provides that no adult entertainment business can locate closer than 800
feet from the boundary of any city adjacent to the City of Yakima.
(c) Amended Review Procedures. The review procedures have been amended
to eliminate the review for compatibility with existing neighborhoods. Instead, the new
provisions state a series of objective criteria to be reviewed (i.e., compliance with
development standards, zoning, proximity limitations, appropriate engineering and traffic
plans).
(d) Miscellaneous. Several amendments are inserted throughout the code
section to bring such into conformity with new proposed licensing requirements in
Chapter 5.30 YMC (described below). For example, new signage requirements are
included, as well as provisions dealing with hours of operation.
B. Adult Entertainment — Regulatory Licenses — Summary of Amendment.
Chapter 5.30 YMC states the current business licensing and regulatory requirements for adult
entertainment businesses. In conformity with other codes from cities throughout the -State of
Washington, and in response to public comment previously received from citizens of the City of
Yakima, the following changes are proposed:
(a) Expanded Definitions. Several new or expanded definitions are proposed.
(b) License Prohibited to Certain Classes. New section 5.30.012 defines those
classes prohibited from receiving an adult entertainment license.. These include
persons under eighteen years of age, partnerships (unless each partner is qualified to
receive a license), a corporation (unless all officers and directors are qualified to
receive a license), persons who do not have a place of business qualifying under the
applicable fire and building codes), etc.
(c) Separate Licenses. Separate licenses are required for an adult entertainment
establishment, adult entertainment manager, and adult entertainer.
DOC.
INDEX
Memorandum to Honorable Mayor and Members of the City Council
November 20, 2012
Page 3
(d) Operation Regulations. New provisions are included: regulating distance of
entertainers from patrons; height of -stage; stage railing- requirements; -pro hibition= of`�'
"warning systems" warning of impending police or inspector entrance; display of
license; personal interviews of operators, managers and entertainers prior to
issuance of license.
(e) Standards of Operation. A new section is added defining standards of
operation. These standards regulate distance between entertainers and patrons,
prohibit direct tipping, prohibit any dance or performance unless on stage, regulate
lighting, record keeping, inspections, and other operational matters.
C. Record Documents.
The record in this matter includes the following:
(a) Copy of court decision in Muffett v. City of Yakima, et al., Case No. CV -10 -3092 -
RMP (ED. Wash. July 17, 2012).
(b) Ordinance No. 2012-26 imposing moratorium on adult entertainment uses,
adopted as an emergency ordinance on July 17, 2012.
(c) Resolution No. 2012-113 adopting Findings of Fact for Moratorium regarding
adult entertainment adopted pursuant to Ordinance No. 2012-26.
(d) Memorandum dated August 7, 2012, from Mark Kunkler, Senior Assistant City
Attorney, to City Council, regarding Findings of Fact in support of Resolution No 2012-
113.
(e) Memorandum dated October 1, 2012, from Mark Kunkler, Senior Assistant City
Attorney, to Planning Commission, adult entertainment issues.
(f) Memorandum dated November 6, 2012, from Mark Kunkler, Senior Assistant
City Attorney, to Planning Commission, regarding proximity standards for adult
entertainment businesses — adverse secondary effects.
(g) Proposed amendments to YMC 15.09.200 regarding zoning regulations for adult
entertainment business uses, together with Maps showing effects of a 500 -foot buffer
and an 800 -foot buffer.
(h) Proposed amendments to Chapter 5.30 YMC regarding licensing and regulation
of adult entertainment businesses.
(i) Materials provided by the Kittitas-Yakima Women of Vision, dated August 16,
2012.
DOC.
INDEX
Memorandum to Honorable Mayor and Members of the City Council
November 20, 2012
Page 4
(j) Notices of Public Hearing _--for-hearing before the City Council -and before the
Planning Commission and the--Minutes-of such meetings. - -
Additionally, copies of the following reports regarding adverse secondary effects associated
with adult entertainment businesses have previously been reproduced and provided to the
Planning Commission:
(a)
Centralia, Washington, "Crime Risk in the Vicinity of a Sexually Oriented
Business: A Report to the Centralia City Attorney's Office — Revised" (2004).
(b) Des Moines, Washington, "Adult Use Study" (1984).
(c) Bellevue, Washington, "Location of Adult Entertainment Uses — Background
Materials" (1988).
(d) Kelso, Washington, "Zoning for Sexually Oriented Businesses" (1993).
(e) Kent, Washington, "Adult Use Zoning Study" (1982).
(f) Seattle, Washington, "Adult Cabarets in Seattle" (2006).
(g) Fort Worth, Texas, "Effects of Land Uses on Surrounding Property Values"
(2004).
(h) Austin; Texas, "Report on Adult Oriented Businesses in Austin" (1986).
(i)
G)
Garden Grove, California, "Final Report to the City of Garden Grove: The
Relationship Between Crime and Adult Business Operations on Garden Grove
Boulevard" (1991). '
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:
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.
DOC.
INDEX
# c -.3
Memorandum to Honorable Mayor and Members of the City Council -
November 20, 2012
Page 5
Studies in other communities including but not necessarily limited to:
Adams County,`;Colorado;. "ykdains oun1yaNuefe'Enfertarrrment 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);
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);
DOC.
INDEX
# c' -3
: Memorandum to Honorable=Mayor arid Members of the City Council` --
November 20, 2012
Page 6
New York City, New York, "Adult Entertainment ---Study° 41-994); -!Report on the
__SecordarrEffects--of==the—Concenttation-=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).
Yakima County, Ordinance No. 8-2012, and Resolution No. 382-2012
DOC.
INDEX
# c -3
CITY OF YAKIMA
LEGAL
DEPARTMENT
200South Third sl ;Ya a; vashmgton 98901
TO:
MEMORANDUM
i5a9}575 10 Fa3c (509)5756160
November 6, 2012
Planning Commission
Steve Osguthorpe, AICP, Director, Community Development
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Adult Entertainment — Proximity Standards
A common regulatory control for location of adult entertainment businesses is the
enactment of "proximity" limitations. Typically, the governmental code provides that an
adult entertainment use must not be located within a certain number of feet from a
protected use. The "protected uses" most often include residential zonedproperties,
churches, schools, parks.
As shown below and in the attached codes from other cities, the "proximity distances"
can vary. Typically, such distances range from 500 feet to 1,000 feet. The current City
of Yakima Municipal Code sets this proximity limitation at 500 feet. In the Maps
included as exhibits for the November '14, 2012 meeting, two proximity .limitations are
shown: (a) 500 feet, and (b) 800 feet.
In my opinion, either choice will provide sufficient potential area for locating an adult
entertainment facility.
Here is a summary of the current proximity limitations for the City of Yakima and other
cities within Washington State:
City of Yakima: YMC 15.09.200(D) provides:
1. Adult business uses shall adhere to the following standards:
a. Separation Standards.
DOC.
INDEX
# C'
Memorandum to Honorable Mayor and Members of the City Council
November 6, 2012
Page 2
1. The parcel that contains the adult business use, and the signs relating to the use,
shall not be located within five hundred (500) feet of any of the following preexisting
uses or previously established districts:
a. The outside boundary of any parcel that contains a public school, private
school or day care facility;
b. The outside boundary of any parcel that contains a church or other house of
worship;
c. The outside boundary of an existing public park;
d. The outside boundary of any parcel that contains a public library; and
e. A residential zoning district,
2. The parcel that contains an adult entertainment use shall not be located within
one thousand five hundred (1,500) feet of a parcel supporting a similar adult
entertainment use as defined in this section, whether such similar use is located within
or outside the city limits.
3. The general site -screening requirements of YMC Chapter -15.07 shall apply.
4. The separation requirements stated in subsections (D)(1)(a)(1)(a) through (e) and
(D)(1)(a)(2) of this section shall be measured by extending a straight line from the
nearest point on the property line of the parcel containing the proposed adult
entertainment use to the nearest point on the property line of the parcel containing the
other adult entertainment use, school, day care, church, public park, or public library.
City of Everett. The City of Everett has adopted an Overlay Zone in which adult
business uses are prohibited. In a section of its municipal code entitled "adult use
business zoning regulations," the following proximity limitations apply.
An adult business use shall not be located within:
Residential zoned property: 1,000 feet
Church, synagogue, mosque, temple: 1,000 feet
Public or private school (K-12): 1,000 feet
Public park or playground: 1,000 feet
DOC.
INDEX
# c -�
Memorandum to Honorable Mayor and Members of the City Council
November 6, 2012
Page 3
Community developed blocky grant` area:
Other adult business use:
(Everett Municipal Code, Section 39.025)
1,000 feet
500 feet
City of Vancouver: VMC 20.820.020(A) provides the following limitations.
adult business use shall not be located within:
Residential zoned property:
Permanent religious institution:
Public park:
Licensed child care facility (DSHS):
Preschool, public or private school (K-12)
Other adult business use:
500 feet
1,000 feet
1,000 feet
1,000 feet
1,000 feet
1,000 feet
An
City of Des Moines: DMMC 18.99.020 provides that no adult business shall be
located within:
Residential zoned property:
Public or private school (K-12):
Day care center, nursery, preschool:
Church or institution used for religion:
Public park:
Public facility open to families,
including post offices, City Hall,
and medical clinics:
Other adult business use:
1,000 feet
1,000 feet
1,000 feet
1,000 feet
1,000 feet
1,000 feet
1,000 feet
King County: Ordinance 13546 provides that adult entertainment businesses can
locate only in the Community Business (CB), Regional Business (RB) and Office (0)
zones, and are further subject to the following proximity limitations:
Residential zoned properties:
Schools:
Licensed day care centers:
Public parks, trails, community centers:
Public libraries:
330 feet (about one block)
330 feet
330 feet
330 feet
330 feet
DOC.
INDEX
# c -a
Memorandum to Honorable Mayor and Members of the City Council
November 6, 2012
Page 4
Churches:
Other adult entertainment business
330 feet
3,000 feet
Yakima County: Yakima County has been following a path similar to the City of
Yakima. Yakima County has also adopted a moratorium and has been formulating new
code provisions regulating adult business uses. In Ordinance 8-2012, the following
proximity limitations are presented:
Public parks: 800 feet
Public library: 800 feet
Public or private nursery or preschool: 800 feet
Public or private primary/secondary school: 800 feet
Licensed day care: 800 feet
Community youth center: 800 feet
Church or other house of worship: 800 feet
Multifamily residential use (B1, B2, C Zone): 800 feet
Other adult entertainment business: 800 feet
Establishment selling/consuming alcohol: 800 feet
Any "entranceway" to the community: 800 feet
The code further provides that "[no] adult entertainment facility shall be located closer
than four hundred feet to any legally established, nonconforming single-family dwelling,
whether such dwelling is located within or outside the corporate boundaries of any
adjacent city or town."
DOC.
INDEX
# �-
CITY OF YAKIMA
LEGAL
DEPARTMENT
200 SouthStreet, Yakima, W (509)575 -6030 -Fax ( )
PRIVILEGED AND CONFIDENTIAL: COVERED BY THE ATTORNEY-CLIENT AND ATTORNEY
WORK PRODUCT PRIVILEGES
MEMORANDUM
October 1, 2012
TO: Planning Commission
Joan Davenport, AICP, Acting Director, Community Development
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Adult Entertainment
Introduction.
Attached are several documents regarding the adult entertainment moratorium adopted .
by the City Council on July 17, 2012. The moratorium as adopted was affirmed and
supported by findings of fact approved following a public hearing on September 4, 2012
pursuant to Resolution No. R-2012-113.
The moratorium prevents receipt of, and issuance of, permits for adult entertainment
businesses and land uses for a period of six months. The current moratorium is
scheduled to expire by its own terms on January 15, 2013.
This material is submitted for your review and in support of a discussion on October 101.
2012 regarding the issues and next steps. Following the October 10 Planning
Commission meeting, a public hearing will be set to allow the Planning Commission to
receive comments and evidence from the public.
Documents Attached.
A. Background Materials. The "background materials" consist of the following:
O Copy of current Adult Entertainment municipal code materials
Y Copy of Court Decision: Muffett v. City of Yakima, et al.
• Copy of Moratorium Ordinance (Ordinance No. 2012-26)
DCC.
INDEX
Memorandum to Honorable Mayor and Members of the City Council
October 1, 2012
Page 2
• Copy of Resolution -affirming moratorium and adopting findings of fact
• Memorandum to City Council regarding moratorium and proposed findings of
fact
B. Draft Legislation. We have also attached a preliminary draft of proposed
changes to the city's adult entertainment codes. These proposed changes are in two
parts: (a) amendments to YMC 15.09.200 ("Zoning Code" amendments) and (b)
amendments to Chapter 5.30 YMC ("Business License" amendments). As noted, these
are currently in preliminary draft form. These are expected to change as we further
research the laws and court decisions, and as we receive comments from the Planning
Commission and the public.
Briefly, the proposed amendments to the "Zoning Code" would limit adult business uses
to specific zones, and further subject such uses to specific "proximity" limitations. The
effect is to take administrative review of "compatibility" out of the process.
The proposed amendments to the "Business License" chapter have been drafted to
incorporate standards used by other cities in regulating the operation of adult
entertainment businesses.
Again, all proposed changes are only preliminary at this point. Comments from the
Planning Commission are welcomed and invited.
Documents Incorporated.
A further set of documents is incorporated by reference. These are the studies of
"adverse secondary effects" that have been generated by or on behalf of several cities
throughout the State of Washington and United States. A full set of copies of these
reports will be generated (and most like placed on a disc in electronic format) in
preparation for the public hearing. However, we -can provide access to these reports at
your request.
DOC.
INDEX
# c -i
•
AMENDMENTS TO YMC 15.09.200 & YMC 5.30
ADULT ENTERTAINMENT BUSINESS
CHAPTER D
Adverse Secondary Effects Documents
1
. ,
D-1
Des Moines, Washington, "Adult Use Study" (1984)
08/1984
D-2
Garden Grove, California, "Final Report to the City of
Garden Grove: The Relationship between Crime and Adult
Business Operations on Garden Grove Boulevard" (1991)
10/23/1991
D-3
Fort Worth, Texas, "Effects of Land Uses on Surrounding
Property Values" (2004)
09/2004
D-4
Seattle, Washington, "Adult Cabarets in Seattle" (2006)
03/28/2006
DEPARTMENT OF PLANNING AND DEVELOPMENT
DIRECTOR'S REPORT
ADULT CABARETS IN SEATTLE
March 28,.2006
INTRODUCTION
In May, 2005, the City Council approved a work plan for the Department of
Planning and Development (DPD) to prepare, with the assistance of the City's
Law Department, a legislative proposal defining and regulating adult cabaret
uses in appropriate zones in Seattle. DPD proposes that these uses be allowed
within the area bounded by:
South Walker Street on the north;
3rd and 4th Avenues South on the west;
Interstate 5 on the east; and
Duwamish Avenue South on the south.
(See Map Attachment 1).
DPD proposes to define adult cabarets, allowing them subject to certain
development standards, including maximum size and limits on on -premise signs.
The purpose of this report is to:
1) identify the land use impacts of adult cabarets; and
2) recommend appropriate locations for adult cabarets; and
3) recommend applicable development standards.
There are many perceptions about the impacts adult entertainment uses have on
a neighborhood or community. This report, however, focuses on impacts that
can be addressed through land use regulation. It does not intend to regulate the
activity within adult entertainment establishments. After researching current
literature, case law, and studies prepared by other jurisdictions, DPD concludes
that in addition to generating conventional land use impacts, adult entertainment
establishments have the potential for negatively impacting public safety and
welfare, and property values.
CONTEXT AND BACKGROUND
Zoning regulation of adult entertainment uses has consistently challenged many
communities across the country generally due to the perception that these uses
degrade property values and are a threat to public safety. Historically in Seattle
these uses were located in the downtown area, the majority of which were
located along First Avenue. Many citizens continue to identify adult
entertainment with this area. However, it was not until adult entertainment
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Adult Cabaret Director's Report
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businesses began locating in neighborhoods outside downtown that the City
began to specifically identify and regulate them through zoning.
Adult motion picture theaters in Seattle were the first regulated, in 1976. In 1979,
__ _ adult panorams were identified separately -and were only allowed in certain.._ ---`
downtown zones (Downtown Office Cbre1:and 2 (DOC1 & DOC2), and the
Downtown Retail Core (DRC) zones).
Over the years several "strip clubs", or adult cabaret establishments, located
outside of the downtown area in Seattle's neighborhood business districts.
Citizen concems about these uses prompted the,City Council to pass an
ordinance requiring adult cabarets to be licensed (Ordinance 114225). The
Council also placed a moratorium on the establishment of any new topless
dancing establishments in these neighborhoods (Ordinance 114254). Both
ordinances were passed in November 1988.
DPD (formerly the Department of Construction and Land Use) was directed to
make recommendations for amendments to the Land Use Code that would
minimize the adverse impacts of adult cabarets. The City Council Public Safety
Committee conducted a public hearing on proposed adult cabaret regulations in
April, 1989. The concerns expressed at that public hearing prompted the Council
to extend the moratorium on adult cabarets (Ordinance 114531). This
moratorium continued through its last extension in May, 2005. In late 2005, the
City's moratorium was overturned by the courts. DPD was once again asked to
report back to the Council and propose appropriate locations in which to allow
adult cabarets and how to regulate them.
Adult Cabarets
"Adult cabaret" refers to establishments where nude and/or semi-nude dancers
perform for adult members of the public. Food and/or beverage may or may not
be served. Liquor is generally not sold on the premises due to provisions of state
liquor laws. -
Adult Cabarets, also known as strip clubs, topless dance halls, bars, and/or
nightclubs have been regulated as "performing arts theaters" since the 1986
adoption of the Neighborhood Commercial chapter of the Land Use Code.
Before 1986, topless dancing establishments were classified as any one of
several different uses. Depending on the type of operation, they may have been
classified as restaurants, taverns, dance hails, theaters or indoor places of public
assembly. Today, as in the past, topless dancing establishments are prohibited
in residential zones, and permitted in all commercial (except NC1), industrial
(except for the Duwamish Manufacturing and Industrial Center) and downtown
zones.
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Adult Cabaret Director's Rcport
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Of the adult cabarets now in business, one is located in the Downtown Mixed
Commercial zone (DMC 125). Some form of adult entertainment use has existed
at this location intermittently for many years. This business is also licensed as a
panoram location. Two adult cabarets are located in a Neighborhood
Commercial -2 (NC2) zone, one -of -which -has been at the same_Aocation-for over-_
-30 years. -The only other adult cabaret is located in aC1 zone.- -
Regulation of Adult Uses
Over the years, the establishment of adult uses in Seattle's neighborhood
commercial areas, has generated a number of citizen complaints. Community
groups, business associations, and hundreds of individuals have testified at
public hearings or through letters and emails, expressing their concerns about:
litter; noise; traffic; the decline in property values; increases in insurance rates;
and fears about burglary, vandalism, rape, assaults, drugs, and prostitution.
Many comments.have been received on the overall detrimental influence of adult
uses on the community.
Local governments must always be cautious in regulating adult uses. Arts and
entertainment uses, regardless of whether they are intended for adult audiences
only, involve protected forms of expression under the First Amendment to the
United States Constitution. This constitutional amendment is often cited in case
law involving regulation of adult entertainment businesses. The First
Amendment has been the standard against which regulations affecting adult
entertainment uses must be measured.
Licensing is one traditional method used by local governments to regulate adult
entertainment uses. This approach often requires owners, operators, and/or
employees to provide detailed business information. Licensing regulations often
specify facility and operational standards. Seattle Municipal Code chapter 6.270
is an example of such a license regulation. This business regulation requires
topless dancing establishments to be licensed with the City. Licensing is an
effective method for addressing performance -oriented standards. As a general
rule, zoning and land use regulation is more effective at addressing locational
issues and land use impacts.
In the 1976 landmark decision of Young v. American Mini Theaters, Inc.(ref. #1), the
U.S. Supreme Court declared that adult entertainment uses can be subject to
carefully tailored local regulations. In order for a land use regulation of adult
entertainment uses to be valid, the local jurisdiction must provide adequate
opportunities for this type of expression. In other words, zoning cannot be used
directly or effectively to ban adult cabarets, or other forms of adult entertainment.
In summary, the Court determined that regulations can be imposed to minimize
adverse land use impacts of adult entertainment establishments. This can be
accomplished by specifying the zones where adult entertainment uses are most
3
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Adult Cabaret Director's Report
March 28, 2006
compatible with the surrounding neighborhood. Another land use regulation is to
require that minimum distances be maintained between adult entertainment uses
and/or other uses that may be more sensitive to the impacts of adult uses. In the
U.S. Supreme Court case, City of Renton v. Playtime Theaters, Inc. .(ref. #2), it was _
_ -3,eld_that a city is -entitled -to -rely on the expeFiehed=of ofhei cities"in enacting
regalato ylegislation: -Both the -Young and Renton decisions have been used in
many cities to support local zoning regulation of adult entertainment uses.
Seattle, like many other jurisdictions, relied on the Young decision to restrict adult
motion picture theaters to downtown. Citing Young again in 1979, the City limited
the areas where adult panorams could be located. In 1985, Seattle's new
Downtown Plan established a policy to encourage downtown residential
development. The downtown chapter of the Land Use Code reflected this policy
by authorizing adult motion picture theaters and adult panorams only in three
non-residential downtown zones: Downtown Office Core 1 (DOC1), Downtown
Office Core 2 (DOC2) and the Downtown Retail Core (DRC). To date, adult
motion picture theaters and adult panorams are the only two forms of adult
entertainment uses identified specifically in Seattle's land use regulations.
LAND USE IMPACTS
Overview
Land use regulation is based on the concept of compatibility. Generally, the
City's commercial, industrial, and downtown policies encourage a variety of
businesses that are compatible with each other and the residential areas they
serve. Some uses, however, have impacts which are not compatible with other
uses or create unavoidable impacts on surrounding properties.
Uses such as animal shelters, towing services, or construction yards are
examples of commercial uses that have objectionable impacts and are not
compatible with residential areas or other neighborhood serving businesses in a
pedestrian environment. They are specifically identified in the Land Use Code
and allowed only where the impacts they generate are minimized.
Adult motion picture theaters were determined not to be compatible near
residential neighborhoods oriented towards families with children. This
conclusion was found in a study entitled "Zoning Controls for Adults -Only
Theaters" prepared by the City Planning Commission in 1976 (Ref# 3) In order to
deterrnine.,in what zones adult entertainment uses should be permitted, it is
necessary to survey their impacts and determine with what other uses they are
compatible.
During the City Council's public hearing on licensing of adult uses, many citizens
spoke of their concerns about these businesses in their neighborhoods.
Problems with litter, noise, parking and traffic; inappropriate signage; fears about
DOO.
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-- Adult Cabaret Director's Report
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deteriorating property values, attraction of undesirable transients, and increases
in crime; potential hazards for children and personal safety; were cited. Citizens
generally protested that adult entertainment uses interfere with their ability to
raise their children in a healthy, family environment.
The :decisior y._the=City-in`I976 to allow adult motion picture theateth only in the
downtown area was based on findings that these same impacts were detrimental
to residential areas. This decision was upheld by the Washington State Supreme
Court in the Northend Cinema case (Ref #4). In another case, Village of Belle Terre
v. Borass (Ref#5), the U.S. Supreme Court recognized that local governments
have the right to use zoning based on impacts on family values to protect the
public welfare
Many studies prepared by other communities have documented that litter, noise,
traffic impacts, public safety impacts (e.g. burglaries, vandalism, assaults,
prostitution), and deteriorating property values often occur in association with
adult entertainment uses.
Conventional Impacts
Under -represented in many planning studies prepared by other communities are
the conventional land use impacts that are often generated by adult
entertainment uses. Noise, litter, parking and traffic are impacts commonly
associated with adult entertainment businesses.
Because adult entertainment businesses are generally visited late into the night,
they are often the sources of complaints about noise. The noise may come from
the starting or idling of cars on or near the premises, and from car sound
systems. It may be generated by the business's own sound system, or by
disorderly patrons. There may also be secondary noise effects. Noise may be
created by police and emergency vehicles called in and around adult
entertainment establishments in response to disturbances.
Litter is another common problem cited. Since alcoholic beverages are generally
not available at adult entertainment businesses in Seattle, neighbors report that
beer bottles/cans and other liquor containers are frequently tossed into nearby
yards. Food wrappers, condoms and other refuse were among other items
neighbors complained were discarded in and around the vicinity of existing adult
establishments.
Generally, adult cabarets are auto -oriented. The observation is made in
recognition that these businesses are frequented by patrons who wish some
degree of anonymity and ease of access and egress that limits visual contact
with surrounding uses and pedestrians. Consequently, these are uses that are
not necessarily consistent with pedestrian areas and generate a potentially
substantial amount of traffic. in addition, normal traffic flow may be disrupted by
DOC.
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Adult Cabaret Director's Report
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police and emergency vehicles that may be called to the scene of a disturbance.
On -street parking may be usurped, especially near existing adult cabarets, where
little off-street parking is provided.
—SecondaryIt facts== i
In a report published by the American Planning Association, Everything You
Always Wanted to Know about Regulating Sex Businesses, (Kelly and, Cooper,
Planning Advisory Service Report No. 495-96, Chicago 2000), many major
studies were reviewed and the following findings were synthesized from them
(Ref. #6).
1. Real estate professionals believe that there is a significant negative
impact of adult entertainment businesses and other adult -related
entertainment businesses (such as bars with live entertainment) on both
residential and business properties. The impacts are less if there is a
separation between the studied use and the other use. Beyond 1,000 feet
there may be some impact but beyond 1,500 feet there is no basis for
believing that there will be any impact on property values. (Rochester,
Indianapolis, New York City; some supporting data from Denver).
2. The greatest impacts on property values are on other properties on the
same block. (Denver, Rochester).
3. The impacts on property values affect residential properties more than
nonresidential properties. (Rochester, Indianapolis).
4. The studies showing the most significant impacts of adult entertainment
businesses on neighborhoods involved significant numbers of businesses
with live entertainment and/or direct interaction between patrons and
entertainers or other employees. (Newport News, St. Paul, Whittier).
5. There is a lower correlation of crime incidents with retail adult
entertainment businesses than with those that involve on -premises
entertainment of any kind. (Denver).
6. Although there is some evidence of an increase in crime, particularly
around concentrations of adult entertainment businesses (Phoenix,
Denver, Indianapolis, Whittier, St. Paul), the increase is not necessarily in
violent crimes (Phoenix, Denver).
7. At least two cities that studied the issue clearly had prostitution- flourishing
in some adult businesses (Denver, Whittier).
Property Values
Decline of adjacent property values is another documented land use impact
resulting from adult entertainment uses. A study of appraisers, residents and
business owners provides some key information regarding this issue.
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Adult Caharet Director's Report
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Indianapolis, Indiana
In 1984, an analysis of adult entertainment businesses undertaken by the City of
_ Indianapolis was conducted by that, city's Department of Metropolitan
Development (r it ej.:With the assistance of the Indiana University -School of -
Business, they conducted a national survey of members of the Appraisal
Institute(MAI), and the American Institute of Real Estate Appraisers. This survey
was intended to determine the market effect of adult entertainment businesses
on nearby land values. It was concluded that "adult entertainment businesses -
even a relatively passive one such as an adult bookstore - have serious negative
effects on their immediate environment." Next-door properties were most
affected, decreasing substantially in order of adjacency. Negativeimpact on
property values was substantiated for properties within three blocks of an adult
entertainment use. While respondents felt that both residential and commercial
properties were affected, residential properties were more severely impacted.
Fort Worth, Texas
A recent survey of appraisers in the Forth Worth -Dallas Metroplex carefully
documented the opinions of these real estate professionals about the effects of
sexually oriented businesses on the values of surrounding properties (Rer. #8). In a
survey submitted to .186 appraisers who carry the professional MAI certification
(Member of the Appraisal Institute) and SRA (Senior Residential Appraiser), with
41 responses, the following conclusions were drawn:
• Appraisers were nearly unanimous in responding that adult-oriented
businesses of any kind (stores, arcades, or cabarets) would decrease
single-family home property values. Other uses deemed similarly
detrimental to property values included homeless shelters, bars, and
pawnshops.
• More than 70% of the appraisers judged the influence of adult-oriented
businesses on property values to extend beyond 3000 feet (or
approximately 6 blocks). While a few suggested the influence was not felt
quite so far, even the lowest estimates put the distance at 1000 feet. The
average distance was between 2700 and 2800 feet. Only homeless
shelters were considered to influence property values that far away.
Pawnshops, bars, and gas stations were next (2300 to 2500 feet).
• The appraisers considered the property values of community shopping
centers to be equally detrimentally affected by the proximity of adult-
oriented businesses. More than 75% considered adult uses to decrease
commercial property values. The only use considered to be comparable in
its decreasing of property values was homeless shelters. Pawnshops and
bars were next in their impact onrlowering appraised values for community
shopping centers but to a much lower degree (53% and 32%,
respectively).
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• Approximately 50% of the appraisers felt adult-oriented businesses impact
shopping centers' appraised values beyond 3000 feet. As compared to
single-family homes, the distance at which appraised values would no
longer be affected by an adult use was somewhat less. Other
- = resppndents felt#hat-it only-toek=frorn° 2200 to -2300 feet before -ah adult -
use -had no irrvaef=on=the`appraiaed-value of'a shopping center: -Only
homeless shelters were suggested to have a further reach (2400 feet).
Again, pawnshops and bars were next in their influence on property
values within 2000 and 1900 feet, respectively.
• The vast majority of appraisers agreed that a concentration or cluster of
detrimental uses had a greater negative impact than isolated uses.
• Three negative uses grouped together was considered by most appraisers
to be the level at which the impact was greater. The grouping was.
considered to occur if uses were within approximately 1000 feet of each
other. They felt the concentration ceased to have an impact at an average
distance of 3800 feet (as compared to approximately 2300 to 2800 feet
single uses).
• Slightly more than 20% of appraisers felt that the answers to the survey
questions might be influenced by their "personal, moral, or ethical beliefs."
This means the findings may be slightly skewed negatively towards adult-
oriented businesses.
Because the response rate was lower than in some surveys, the margin of error
was 13.7 percent; but, in response to many of the questions, more than 80
percent (and in some cases more than 90 percent) agreed on the nature and
extent of the adverse secondary effects of sexually oriented businesses on other
properties; thus, even applying the worst-case margin of error to the findings, a
significant majority of the appraisers believed that these effects would occur.
Rochester, New York
The City of Rochester, New York, conducted a survey of 39 property appraisers
to determine their perceptions of impacts of sexually oriented businesses on
residential and commercial property values. This was important since most
ordinances deal with sexually oriented businesses by requiring them to be
separated by some specifiedkdistance (typically between 500 and 1500 feet) from
certain categories of land -use. The Rochester survey attempted to find a
relationship between distance and impacts on property.
Based on the results of the survey, appraisers in the Rochester, Monroe County
area have the following views on the impact of sexually oriented businesses:
• Bars with nude servers or live entertainers clearly have the greatest
negative impact on surrounding property values;
• Sexually oriented businesses have a measurable negative impact on the
value of some neighboring property;
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-Adult Cabaret Director's•Report _
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• There is significantly more negative impact on the value of neighboring
residential property than on commercial property;
• The greatest impact on property values is on properties located on the
same block;
The i aeton roe value is les __
—' � p p p rtY � s si arit=if-located=aldrig-the same
- = = = = -=street than if -located or, lie=sa ii black; fiowever,- it is of greater --- r -
significance than any particular distance separation;
• Based on a combination of responses, if two properties are equi-distant
from the same studied business, with one located on the same street as
the studied business and the other on another street, the property located
on the same street as the studied business will suffer greater impacts;
• The negative impact decreases with distance and stops somewhere
between 1,000 and 1,500 feet (Ref. #8).
Public Safety
In the law and planning literature on adult entertainment uses, public safety
hazards are the most often cited adverse land use impacts for surrounding
neighborhoods. Some evidence indicates that crime rates increase with the
presence of adult entertainment uses. The major crimes frequently mentioned
include: burglaries, assaults, indecent exposure, and prostitution. This criminal
activity is often associated with areas in which a concentration of adult
entertainment is allowed to prosper.
New York City police found that serious crime complaints ran almost 70% higher
on police posts that contained adult uses (Ref#9). The cities of Cleveland, Ohio
(Ref#11); Indianapolis, Indiana (Ref#7); Los Angeles, California (Ref#12); and Austin,
Texas (Ref#13); among others have documented that crime rates were anywhere
from 15% to 77% higher in areas containing adult businesses than those areas
containing no adult businesses. A study in Phoenix, Arizona (Ref #1a) concluded
that not only was there a higher rate of sex-related crimes in areas where adult
businesses were located, but that rate was significantly higher where there were
several adult businesses adjacent to one another.
Most cities prefer to disperse adult entertainment uses, where adult
entertainment uses are allowed throughout a community. There are usually
special conditions which require these businesses to maintain a certain distance
from each other and from public schools and residential zones. Law
enforcement strategies are usually less effective when a dispersed approach is
used.
A concentrated approach is one that allows adult entertainment uses in one small
compact area. This concentrated approach is often used to contain adult
entertainment businesses that are historically concentrated in an area. In such
cases studies have shown a higher incidence of crime than other business .
districts in a city (Ref Ina). While reports of crime may be comparatively high, it
should be noted that in these concentrated or historical "skid road" areas, there
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Adult Cabaret-Director`s-Report
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are generally many other potentially problematic uses, such as taverns, lounges,
and nightclubs, also concentrated in the zone.
Adult entertainment uses are, generally, auto -oriented or destination -type uses
_at ting_a_regional clientele. =Trade -characteristics studies in -Bothell;= `--` --
===f ---Washington- (Rer#16) and Austin, Texas,(Ref#13) confirmed that-at°leasfone"half of ' -
all customers frequenting adult businesses came from outside the city limits (one
investigation in Bothell found that of 321 vehicles checked, only 8 were '
registered in their city). In Austin, Tess than 5% were located within a one -mile
radius of the establishment.
While there are many businesses that may attract a regional clientele, the fact
that adult entertainment uses may have an increased potential for criminal
activity makes them more of a public safety risk to a neighborhood. People who
patronize these establishments may have no sense of identity with or regard for
the neighborhood in which these businesses may be located. They may also be
less inhibited in their personal behavior than if they were in their own community.
No known analyses or comparative studies have been conducted in Seattle to
verify a correlation between adult entertainment uses and criminal activity. It is
assumed that adult entertainment uses in Seattle are not unlike those in other
cities. It is also not assumed that all adult uses generate or are involved in
criminal conduct. But as evidenced in the foregoing discussion, there is enough
documentation to demonstrate a Zink between adult entertainment uses and the
potential for increased criminal activity.
The secondary effects of police response to a business have already been noted.
The noise from sirens, flashing lights, and traffic hazards created by police and
emergency vehicles are disturbances not conducive to healthy business or
residential environments. The increased potential for crime, together with these
effects, result in impacts that are likely to be more substantial than those of other
neighborhood commercial uses, intended to serve the needs of surrounding
residents.
ANALYSIS AND RECOMMENDATION
The recommendation to restrict adult cabaret uses to industrial zones is based
on the following analysis. Compared with the potential land use impacts of adult
cabarets in different areas of the City, adult cabaret uses would be least intrusive
and have substantially fewer impacts in industrial areas. The location of an adult
cabaret use shares greater compatibility with surrounding uses in industrial
areas, and would not have the same negative influence on property values, or
contribute to an escalation of criminal activities in and around residential
neighborhoods, and would result in the least negative impacts to pedestrians,
particularly to children.
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Adult Cabaret Director's Report
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Approximately 12% of Seattle's land area is industrially zoned. Of Seattle's
industrially -zoned land, more than 90% is contained within the City's two
manufacturing and industrial centers (MIC): Ballard/Interbay (17%) and
Duwamish (77%). An additional 295 acres is zoned industrial outside of the two
centers._
N�ra75%a,ofahe�City's ind�sf[I_y-honed land _is=used :for industrial-
.purpeses:(as_measured by the=King County�assessors office, these"inc-fiude -
industrial uses, warehousing, transportation/utilities/communications, and
institutional/public facilities). About 25% of the land is used for non -industrial
purposes, including commercial uses, 'other' uses (parking, etc), and open
space. Most entertainment uses are permitted in industrial zones. Prior to the
moratorium, adult cabarets were permitted in industrial zones, however none
have historically chosen to locate in these zones.
The Ballard/lnterbay MIC generally abuts commercial and residential
neighborhoods around the Magnolia, Queen Anne and Ballard neighborhoods.
While much of the Duwamish area is dominated by Port -related industry,
transportation and distribution activities, and borders the Pioneer Square and
Chinatown/Intemational District neighborhoods. The area also contains the
City's major league sports stadia on the north, and is bordered by significant
topography and the Interstate 5 freeway on the east. Recognizing that some
industrial areas of the city may not be suitable for adult entertainment uses, the
DPD was asked to examine the impacts of locating adult entertainment uses in a
specific portion of the Duwamish industrial area (see Map, Attachment 1). Since there
are no shoreline designations in this area, preferred water -dependent or water -
related uses are not affected. The remainder of the discussion in this section
pertains to this identified sub -area.
Warehousing, transportation, and distribution uses are critical activities in this
area. Parcels are generally Targe, often created by consolidation of half to full
blocks. The average lot size is 1.5 acres for unimproved sites and 1.1 acres
when improved. The platting pattern and the freight network make the area
especially suited for these activities and give it its working industrial identity.
Three major rail corridors subdivide the area and limit local east -west traffic.
Buildings are often Targe, and characteristic of industrial uses, having few
openings. Open sites are often devoted to parking or storage. Commercial
activity is concentrated along two major arterials, Fourth Avenue South and
Airport Way South.
Residential development is currently prohibited in industrial zones with two
exceptions: artist's studio/ dwellings in existing structures and caretaker's
quarters. There are no playgrounds, public or private schools, or other
institutions, although some vocational training may take place in this area. The
nearest school is located east of Interstate 5, approximately 1/2 mile from the
study area. The nearest residential zones, on Beacon Hill located east of
Interstate 5, which provides an effective barrier, and Georgetown to the South.
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The Seattle Comprehensive Plan recognizes the importance of industrial
businesses to the City's economy, consistent with state and regional growth
management objectives, and supports protecting the limited supply of Targe_
parcels of land zoned=for.industria4 use in the City from factors that woutd=
negatively affect -investment in -the area. The City's industrial lands policy -has- -
historically been to provide a stable industrial environment and to protect viable
industries, and family wage jobs, from competing uses.
While not a residential neighborhood, and not associated with family activity that
generally is central to the opposition to adult businesses elsewhere in the city,
the Duwamish area possesses some vulnerability to the potentially negative
impacts of adult entertainment businesses. Industrial area employers have
reported that it can be difficult to recruit employees because of perceived public
safety risks that accompany isolated areas. Pedestrian infrastructure is limited
and there is often inadequate parking. The public transportation system is limited
and does not often address the needs of shift work schedules. Outlying
suburban locations often provide more incentives at lower costs. These factors
often discourage investment in the area.
Industrial uses are also dependent on certain commercial uses for support.
Allowing the location of adult entertainment uses could negatively affect the
desirability of those sites for industrial support functions. If permitted, adult
entertainment businesses would not necessarily compete directly for sites with
industrial uses, but rather for those sites where other commercial businesses in
industrial areas prefer to locate.
Public safety issues are a concern in the Duwamish study area, not necessarily
because of proximity to residential or neighborhood commercial development,
but because the development pattern necessary for industrial activity and its
inherent isolation contribute to the more vulnerable appearance of the area.
Large lot and block configurations create a platting pattern that makes east -west
local access difficult. The combination of dead end streets, lack of pedestrian
lighting, large site layout, outdoor storage of materials, and the lack of oversight
provided by pedestrian activity, could hamper law enforcement strategies.
Allowing adult entertainment businesses throughout this large area may increase
the perception of public safety risks for people working in or visiting the area and
property values could be negatively affected, as well. However, the effect on
property values is considered far Tess likely in industrial areas due in large part to
the character of the area and the already lower property values associated with
industrial activity than would be true downtown or in other mixed use commercial
neighborhoods throughout Seattle.
While there is no historical precedent for adult entertainment businesses
operating in this area, in the past, concerns were raised about what effect the
12
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- Adult .Cabaret Director's -Report
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proximity of adult entertainment uses to traditional trades will have on businesses
and their employees.
The economic vitality of the Duwamish industrialareas is dependent on
maintaining_a ent ve_ sjor_industrial-h-usinesses,andernployees--to-remain-in the, -
-City -incentives that encourage emplgyment, customer and support services
should not be eroded. Allowing adult entertainment businesses to locate in the
study area could negatively impact these incentives and contribute to the out-
migration of industrial businesses from the City.
However, the most compelling arguments for limiting adult entertainment uses
are to reduce the potential for public safety and property value impacts on the
broadest number of citizens, in residential, commercial and mixed use
neighborhoods throughout the City, where the majority of citizens live and work.
Comparing the land use impacts of adult entertainment uses in the different
areas of the City, adult cabaret uses would be least intrusive in industrial areas
than in downtown and other Seattle, pedestrian -oriented residential and mixed
use neighborhoods.
Recommendations
Adult cabarets are proposed to be prohibited in all zones except that portion of
the Duwamish industrial area as shown on the map accompanying this report,
and defined generally as:
South Walker Street on the north;
3rd and 41h Avenue South on the west;
Interstate 5 on the east; and
Duwamish Avenue South on the south.
South Walker Street is recommended as the northern boundary because it
provides a sufficient distance from the historical and mixed use neighborhoods of
Pioneer Square and the Chinatown/International District, and from frequent
events at the city's major sports facilities.
3rd and 4th Avenues South provide a western boundary that distinguishes the
area from the retail centers on 1st Avenue South and the Port activity and
transportation corridors associated with the Duwamish.
Interstate 5 provides a formidable eastern boundary, limiting mobility between
Beacon Hill and the industrial neighborhood to the west. Interstate 5, in
combination with a substantial topographic change, effectively protects the single
family and mixed use neighborhoods to the east on Beacon Hill.
The proposed southern boundary is defined by the right-of-way for the diagonal
rail yards or Duwamish Avenue South. This boundary would provide a
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Adult Cabaret Director's Report _
March 28, 2006
necessary buffer in both distance and transition to the residential area of
Georgetown, approximately'/ to 1/2 mile to the south.
The area recommended in which to allow adult cabarets would provide adequate
_=-__-r=--Jocatioriakopporton itie"s for edult entertainment uses away from t=residential`
-, uses; grid pedestrian -oriented mixed-use neight rhoods 4 = —"`
Definition
"Adult cabaret" is proposed to be defined as a place of public assembly where
licensing as "adult entertainment premises" is required by Seattle Municipal Code
6.270.
Maximum Size of Use
The size of an establishment has some correlation with the potential for impacts
associated with the business. The larger the business the greater traffic or
parking it is likely to generate, the greater the number of patrons on site at any
one time, etc. The City's environmental laws governing traditional project or
development -related impacts (SEPA) establishes a threshold for environmental
review of establishments that exceed 12,000 square feet of gross floor area in
industrial areas.However, non -industrial uses or those that may have
unforeseen consequences on industrial use in the area, such as retail, office or
residential, are either limited in size compared to industrial use (e.g. office or
retail) or generally prohibited (e.g. residential). Restaurants are limited to 5,000
square feet of gross floor area. Given the secondary impacts associated with
adult cabarets, and their general common traits with uses such as restaurants, a
common size limit is appropriate.
Two existing adult entertainment establishments in the city are in the range of
4,000 to 6,000 square feet of gross floor area. Generally, facilities in the 4,000 to
7,000 square foot size range appear to be the norm and the proposed maximum
size limit, not to exceed 5,000 square feet, is believed to be an economically
viable maximum size for an adult cabaret use in Seattle.
Separation from Sensitive Uses
In order to minimize the impact of adult cabarets on sensitive uses, it is proposed
that any new or expanding adult cabaret be located no closer than 1,000 feet
from any religious institution, childcare facility, or any facility operated by the
Seattle Public School. System that provides public instruction to children,
community center, park, or Tight rail transit station. Of these uses from which
adult cabarets must maintain a minimum distance, only a light rail transit station
(passenger service is scheduled to begin in 2009) is currently located within the
area in which adult cabarets are proposed to be permitted. Interstate 5
14
DOC.
!NDC
t7
- — - Adult-Caharet Director's Report
March 282006
effectively separates the area in which adult cabarets would be allowed from the
residential and mixed use neighborhoods adjoining this area to the east.
Non -conforming Uses
- — 13PD crecgMmertds-thateXisting tiseTmade noriconforminglhqh-eirVeSelit -- —
location be allowed to continue. They may maintain, repair, renovate, or
structurally alter the structure to accommodate the elderly or disabled. Once a
nonconforming use is discontinued for more than a year, it cannot be re-
established or recommenced.
Signs
DPD also recommends that pole or roof signs that are visible from State Route
99, the Spokane Street Viaduct, or Interstate 5 are not permitted in conjunction
with an adult cabaret.
15
DOC.
INDEX
Adult Cabaret Director's Report
March 2s, 2006
REFERENCES
1. Young v. American Mini Theaters, Inc., 427 U.S. 50, 49 L.Ed. 2d.310, 96
S.Ct.2440 (1976).
City of#Renfo}=ry °Playtirne-Theaters, Inc., 475 -U.S. 41, 89 L.Ed. 2d:29,
106 S.Ct.925 (1986).
3. Seattle Department of Community Development, City Planning
Commission, Zoning Controls for Adults -Only Theaters; March 11, 1976
4. Northend Cinema, Inc. v. City of Seattle, 90 Wn.2nd 709.585 P2nd 1153
(1978).
5. Village of Belle Terre v. Boraas, 416 U.S. 1, 39 L.Ed. 2d.797, 94
S.Ct.1536 (1974).
6. Bibliography of cited studies on secondary impacts from:
• Kelly and Cooper, Everything You Always Wanted to Know about
Regulating Sex Businesses, Planning Advisory Service PAS Report
No. 495-96. Chicago: American Planning Association, 2000;
• Newport News: "Adult Use Study," Newport News Department of
Planning and Development, March 1996.
• Rochester: "Survey of Appraisers in Monroe County, New York,"
Summer 2000.
• St. Paul: Effects on Surrounding Area of Adult Entertainment
Businesses in Saint Pauli" June 1978, City of Saint Paul Division of
Planning, Department of Planning and Management; and
Community Crime Prevention Project, Minnesota Crime Control
Planning Board.
• Tucson: The Tucson "study" actually consists of two memos: one
from the Citizens Advisory Planning Committee, addressed to the
Mayor and City Council, and dated May 14, 1990; and the other
from an Assistant Chief of Police to the City Prosecutor, regarding
"Adult Entertainment Ordinance," dated May 1, 1990.
• Denver: "A Report on the Secondary Impact of Adult Use
Businesses in the City of Denver," prepared by multiple city
departments for Denver City Council, January 1998
16
DOC.
INDEX
Adult Cabaret Director's Report
March 28. 2006
• Whittier: "Staff Report, Whittier City Planning Commission; Subject:
Adult Business Regulations," July 11, 1994.
• Duncan Associates, Eric Damian Kelly and Connie B. Cooper,
of'Appraisers; Fort Worth and Dallas: Effects of Sexually --=-
- Oriented 13-utinessesbn Surrounding Property Values.' Conducted
for the City. of Fort Worth. September 2004.
7. City of Indianapolis, Indiana, Department of Metropolitan Development,
Division of Planning. "Adult Entertainment Businesses in Indianapolis: An
Analysis." 1984.
8. Duncan Associates, Eric Damian Kelly and Connie B. Cooper, Survey of
Appraisers, Fort Worth and Dallas: Effects of Sexually Oriented
Businesses on Surrounding Property Values. Conducted for the City of
Fort Worth, September 2004.
9. Kelly and Cooper, Everything You Always Wanted to Know about
Regulating Sex Businesses, Planning Advisory Service PAS Report No.
495-96. Chicago: American Planning Association, 2000; pages 51-57.
10. Toner, William. "U.S. Cities Face Combat in the Erogenous Zone,"
Planning, Vol.43. Chicago: American Society of Planning Officials,
September 1977.
11. And Regulating Sex Business. Planning Advisory Service, Report No.7.
Chicago: American Society of Planning Officials, May 1977
12. City of Cleveland, Ohio, Police Department. Special Investigation Unit
Report, August 1977.
13. City of Los Angeles, California, Department of City Planning. "Study of the
Effects of the Concentration of Adult Entertainment Establishments in the
City of Los Angeles." June 1977.
14. City of Austin, Texas, Office of Land Development Services. "Report on
Adult Oriented Businesses in Austin." May 1986.
15. City of Phoenix, Arizona, Planning Department. "Adult Business Study."
May 1979.
16. Pratter, Jerome and Connie Hager, "Zoning Laws, Not Obscenity Laws,
Offer the Way to Control Adult Entertainment," Nation's Cities Weekly,
Vol.3, April 21, 1980.
17. City of Bothell, Police Department Investigations. 1984.
17
DOG.
INDEX
# D_y
Adult Cabaret Director's Report
March 28, 2006
Attachment 1
Adult Cabarets
Propose -fo be
Permitted within
this area
11111111
-_�_
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#111111V
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D
INDEX
-_2
Report and
Analysis
Submitted to
Submitted by
FORT WORTH & DALLAS
EFFECTS OF LAND USES ON
SURROUNDING PROPERTY VALUES
CITY OF FORT WORTH, TEXAS
duncan
associates
13276 Research Boulevard, Suite 208
Austin, Texas 78750
Telephone: 765/289-5380
Contact Persons: Eric Damian Kelly, FAICP
Connie B. Cooper, FAICP
September 2004
DOC.
INDEX
# D •-3
TABLE OF CONTENTS
;lntrodiuction
Duncan Associates
Consultant Team 1
Regulating Sexually Oriented Businesses . 1
Scope and Design of Study 2
Findings 4
Analysis of Response Rate 10
Summary
11
Survey Instrument 12
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
D
INDEX
# --3
Duncan Associates
Introduction
CONSULTANT .TEAM
The Cid of Fort Worth, retained Duncan Associates, in association withCooper
�onsulfing'Comgany,'Ine:, to undertake a study of certain effects of sexually —
oriented businesses. Specifically, a survey of Fort Worth and Dallas appraisers
was undertaken to determine the potential impacts sexually oriented uses, as
well as other land use types, may have on residential and businesses property
values. Project manager for the study is Eric Damian Kelly, Ph.D., FAICP, vice-
president with Duncan Associates. Teamed with Eric, is Connie B. Cooper, FAICP, co-author,
with Kelly, of the American Planning Association's Planning Advisory Service Report
Everything You Always Wanted to Know About Regulating Sex Businesses. We were assisted
in the survey design and the analysis of results by David C. Keuhl, Ph.D., an Assistant
Professor of Urban Planning at Ball State University. The work was performed under the
supervision of the Office of the City Attorney, providing background for the City Council in its
consideration of amendments to the zoning regulations for sexually oriented businesses.
k4
'40.1.11
f [kjj
REGULATING SEXUALLY ORIENTED BUSINESSES
Regulation of sexually oriented businesses has become one of the more challenging tasks
facing communities today, Regulations must balance legitimate community concerns about the
businesses with the First Amendment rights of the business owners and customers.
Courts increasingly demand that local governments base their zoning regulations of sexually
oriented businesses on documented land -use effects of those businesses. Recent court decisions
indicate that a local government representing a jurisdiction of significant size is in a better
position legally if it conducts its own study of those impacts, rather than relying on published
studies or studies conducted in other communities.
Most regulations of sexually oriented businesses are directed at nude or topless bars, XXX
video stores and other establishments devoted almost entirely to sexually oriented activities.
However, many well-regarded merchants include in their stock a measurable proportion of
arguably sexually oriented material; such businesses include the video rental stores with "adults
only" backrooms, news dealers with isolated racks of adult magazines and.a variety of specialty
stores that may include certain sexually oriented items.
Although those who take the most negative view of sexually
oriented activities and materials would lump all such businesses
together, this creates an impossible situation, legally and
politically. First, any broad limitation on any business with any
"sexually oriented" materials or activities would ultimately apply to every bookstore, every
movie rental store, every news dealer and, arguably, a variety of other merchants, such as
Victoria's Secret, which trades on the fringes of this market in some of the nation's most
upscale malls. Although those who would like to see such materials and activities eliminated
completely from a community, the fact remains that there are technically x -rated scenes in
major works of literature, brief nudity and sexual activity in Academy award-winning notion
pictures.
Survey of Appraisers in Fort Worth an d Dafas, Texas, September 2004
DOC.
INDEX
# -3
Duncan Associates.
Regulation of sex businesses is one of the most litigated areas of land -use law today.
Communities that have tried to bar most or all sex businesses have generally lost court
challenges to their regulatory schemes. In that context, a community must make reasonable
provision for the existence of some sexually oriented businesses; on the other hand, it is also
clear that a community need not necessarily allow every such establishment to offer the full ..
range_of-=sexuaI1-yioiented products or activities-thatits proprietors might, like.to`offer.-Courts
`--h'avc also recognized -that a sexually oriented business (such as a book store) is different from
other businesses offering similar products that are not sexually oriented. Detroit can adopt and
implement different zoning regulations for such businesses, provided that the effect is not a
complete ban on all such businesses.
Regulations that attempt to censor specific messages or that otherwise target the message itself
are subject to "strict scrutiny" in the courts, a standard which places a heavy burden on a
government to show a "compelling state interest" that justifies the regulations. See, for
example, Boos v. Barry, 85 U.S. 312, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988). But where the
regulations arc aimed at the secondary effects of sexually oriented businesses, they will be
treated as "content neutral" and subject only to "intermediate scrutiny," a far less burdensome
standard for local governments to meet. See City of Los Angeles v. Alameda Books, Inc., 152
L. Ed. 2d 670, 122 S. Ct. 1728 (U.S. 2002).
In response to concerns of residents about the secondary effects of certain sexually oriented
businesses, particularly in parts of the community where there were multiple such businesses,
the City of Fort Worth began to consider amendments to its zoning regulations affecting
sexually oriented businesses and sought our advice on the extent of those secondary effects.
The focus of this study has been on the secondary effects of those businesses on property
values.
SCOPE AND DESIGN OF STUDY
This study consisted of a survey of MAT and SRA real estate appraisers in Fort Worth and
Dallas. There have been earlier surveys of real estate appraisers and professionals regarding
this subject, including those incorporated in studies for Indianapolis, Indiana, Austin, Texas,
Garden Grove, California, and Rochester, New York.
The most commonly cited secondary effects of sexually oriented businesses on communities
relate to incidence of crime and effects on surrounding property values. The incidence of crime
was well documented in the Garden Grove study,2 a study that would be difficult and expensive
to replicate. Efforts to model the effects of particular uses on property values have proven to be
very difficult to carry out effectively. The typical method, followed in sections of both the
Indianapolis and Austin reports, is to compare trends in property values in an area with a
sexually oriented business to trends in property values over the same period of time in a similar
area without a sexually oriented business. There are multiple levels of comparison in such a
study. One major challenge is trying to find "similar" areas. There will always be differences
other than the sexually oriented business, and, without a large enough sample size that allows
testing for other variables, it is difficult to determine how those other variables may be
increasing or offsetting the apparent secondary effects of sexually oriented businesses. One
area may have a park, while the other does not. One may have three small religious institutions
while another has only two such institutions, but one of them turns out to be very large, with
activities several days a week. The area with the sexually oriented business may also have a
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
DOC.
INDEX
� D 3
2
Duncan Associates
pawn shop or a salvage yard or another use that may also have a negative effect on property
values.
Even if researchers are able to identify truly comparable areas for the study, there is a further
problem in tracking trends in property values. A study may use values assessed for tax
purposes,, a methodology that isitselffraught with problems .and -that often -includes anumber. °
of factors other than -n arkei=valifer Tracking the -"values of properties= that actually sell may --
make sense, but there is no guarantee that similar properties will sell in the two similar areas
over any reasonable study period. The sale of one deteriorated home in one area or of a couple
of upscale homes in another can distort study results. Understanding those problems is not
particularly difficult. Solving them in the context of a specific study in a specific community is
very difficult indeed.
Given the above, we believe that the opinions of appraisers provide an excellent and reliable
measure of the effects of any kind of use or activity on property values. First, certified
appraisers are experts in their fields; people who follow professional standards in making
judgments about property values. Second, appraisers familiar with a Local market look at the
values of many properties every year and thus have a substantial data set not only in their files
but also in their heads. Third, and perhaps most important, the opinions of appraisers are
essentially self-fulfilling prophecies. The vast majority of real estate transactions that take
place in this country involve mortgage loans. The amount available for a mortgage loan on a
particular property depends on the value of the property, as determined by an appraiser. The
mortgage value of a property is typically closely correlated with the market value of the
property, because few buyers are willing to pay more for a property than mortgage lenders
believe that it is worth. Thus, to take an overly simple example, if most appraisers in a
community believe that pink and green houses are worth, in general, 10 percent less than
similar houses painted beige, the practical effect of that opinion will be to reduce the market
value of pink and green houses.
We elected;to survey only appraisers who have met the professional standards of the Appraisal
Institute as Members (holding the MAI designation) or as Senior Residential Appraisers (SRA
designation). The Institute is considered by many to be the leading organization setting the
standards for appraisers in the United States.
Previous surveys of appraisers have been criticized because the purpose of the survey was
made obvious, either in a cover letter or in the narrow focus of the instrument itself. We thus
designed a survey that asked the opinions of the appraisers about both positive and negative
effects of a variety of land uses on surrounding properties — uses including religious
institutions, parks, libraries and shopping centers, as well as uses often carrying a negative
connotation, such as sexually oriented businesses, pawn shops and homeless shelters.
We nailed the surveys to all appraisers meeting the above qualifications. We used follow-up
letters and e-mails to ask survey recipients to respond. A discussion of the response rates
follows at the end of this report.
In our report below, we include summaries of responses to the questions in which we were
most interested. The survey instrument and responses to all questions are included at the end of
the report. Although we have grouped sexually oriented businesses together in reporting the
responses, the survey instrument mixed various land uses in the questions.
Survey of Appraisers in Fort Worth and Daias, Texas September 2004
DOC.
INDEX
# DD -.
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Duncan Associates
Findings
Ouestion 3: How would the listed land uses located within 500 feet of a Single- Family Home
likely affect the home's appraised value?,. - _ __ -
Appraisers were nearly unanimous in responding that adult-oriented businesses of any kind
(arcades, stores, or cabarets) would decrease single-family home property values. Other uses
deemed similarly detrimental to property values included homeless shelters, bars, and
pawnshops. Interestingly, a convenience store with a beer and wine license was viewed as
decreasing values by 60% date respondents.
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
DOC.
INDEX
4
Affect on Single Family Home's
Appraised Value (%)
Land Uses
Decrease
No
impact
Increase
No
Opinion
Adult Arcade/Peep Booths
97.5
0.0
0.0
2.5
Adult Novelty/Media Store (Retail only)
97.5
0.0
0.0
2.5
Gentleman's Club/Cabaret
95.0
2.5
0.0
2.5
Homeless Shelter
95.0
2.5
0.0
2.5
Bar/Lounge
87.5
7.5
0.0
5.0
Pawn Shop
87.5
10.0
0.0
2.5
Convenience Store (beer/wine license)
80.0
12.5
2.5
5.0
Gas Station
60.0
32.5
2:5
5.0
Office Building
52.5
40.0
0.0
7.5
Grocery Store
47.5
25.0
25.0
2.5
Fire station
27.5
50.0
20.0
2.5
Bookstore
23.1
59.0
15.4
2.6
Religious Institution
15.4
61.5
17.9
5.1
Public Library
15.0
45.0
32.5
7.5
Neighborhood Park
5.0
15.0
77.5
2.5
Appraisers were nearly unanimous in responding that adult-oriented businesses of any kind
(arcades, stores, or cabarets) would decrease single-family home property values. Other uses
deemed similarly detrimental to property values included homeless shelters, bars, and
pawnshops. Interestingly, a convenience store with a beer and wine license was viewed as
decreasing values by 60% date respondents.
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
DOC.
INDEX
4
Duncan Associates
Ouestion 4: If you selected "Decrease Value" or "Increase Value" for any of the land uses in
Question 3, at what distance would the land use likely have No Impact on the appraised value
of the Single -Family Home?
More than 78% of the appraisers judged the negative influence of adult-oriented businesses on
property values to extend beyond 3000 feet (or approximately 6 blocks). While a few suggested
the influence was not felt quite so far, even the lowest estimates put the distance at 1000 feet.
The average distance was between 2700 and 2800 feet. Other than sexually oriented uses, only
homeless shelters were considered to influence property values that far away. Pawnshops, bars,
and gas stations were next (2600 to 2400 feet).
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
INDEX
# D-3
5
Distance Before There Is No Impact on Single Family
Home's Appraised Value (%)
Land Uses
Over
500
ft.
Over
1000
ft.
Over
1500
ft.
Over
2000
ft.
Over
2500
ft.
Over
3000
ft,
Average
Feet
Homeless Shelter
0.0
0.0
5.7
5.7
2.9
85.7
2800
Adult Arcade/Peep Booths
0.0
0.0
5.7 '
5.7
5.7
82.9
2800
Gentleman's Club/Cabaret
0.0
2.8
8.3
2.8
2.8
83.3
2700
Adult Novelty/Media Store
(Retail only)
0.0
2.7
2.7
5.4
10.8
78.4
2700
Pawn Shop
0.0
3.0
9.1
1.5.2
9.1
63.6
2600
Bar/Lounge
0.0
9.1
12.1
9.1
12.1
57.6
2400
Gas Station
3.4
6.9
13.8
13.8
17.2
44.8
2300
Convenience Store
(beer/wine license)
3.2
12.9
25.8
0.0
16 1
41.9
2100
Office Building
3 6
7.1
21.4
21 4
14.3
32.1
2100
Fire station
5.6
11.1
22.2
11.1
11.1
38.9
2100
Public Library
13.0
4.3
21 7
4 3
26.1
30.4
2000
Grocery Store
7.4
11.1
25.9
18.5
3.7
33.3
2000
Neighborhood Park
12.9
16.1
19.4
25.8
0.0
25 8
1800
Bookstore
11.8
17.6
23.5
17.6
5.9
23.5
1700
Religious Institution
13.3
20.0
26.7
13 3
6.7
20.0
1700
More than 78% of the appraisers judged the negative influence of adult-oriented businesses on
property values to extend beyond 3000 feet (or approximately 6 blocks). While a few suggested
the influence was not felt quite so far, even the lowest estimates put the distance at 1000 feet.
The average distance was between 2700 and 2800 feet. Other than sexually oriented uses, only
homeless shelters were considered to influence property values that far away. Pawnshops, bars,
and gas stations were next (2600 to 2400 feet).
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
INDEX
# D-3
5
Duncan Associates
Question 5: How would the listed land uses located within 500 feet of a Community
Shopping Center likely affect the community shopping center's appraised value?
The appraisers considered the property values of community shopping centers to be equally
detrimentally affected by the proximity of adult-oriented businesses. More than 82%
considered adult-oriented uses to decrease commercial property values. The only use
considered to be comparable in its decreasing of property values was homeless shelters.
Pawnshops and bars were next but only 54% and 36%, respectively, of the appraisers thought
they would decrease property values.
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
1OCC.
INDEX
# D-3
6
Affect on Community Shopping Center's
Appraised Value (%)
Land Use
Decrease
No impact
Increase
No
Opinion
Adult Arcade/Peep Booths
92.3
2.6
2.6
2.6
Gentleman's Club/Cabaret
89.7
2.6
5.1
2.6
Adult Novelty/Media Store (Retail only)
82.1
12.8
0.0
5.1
Homeless Shelter
82.1
12.8
2.6
2.6
Pawn Shop
53.8
35.9
5.1
5.1
Bar/Lounge
35.9
46.2
12.8
5.1
Convenience Store (beer/wine license)
7.7
59.0
25.6
7.7
Grocery Store
7.7
53.8
35.9
2.6
Bookstore
2.7
62.2
32.4
2.7
Fire station
2.6
76.3
18.4
2.6
Neighborhood Park
2.6
82.1
10.3
5.1
Religious Institution
2.6
82.1
10.3
.5.1
Office Building
2.6
64.1
30.8
2.6
Gas Station
2.6
64.1
30.8
2.6
Public Library
0.0
89.7
7.7
2.6
The appraisers considered the property values of community shopping centers to be equally
detrimentally affected by the proximity of adult-oriented businesses. More than 82%
considered adult-oriented uses to decrease commercial property values. The only use
considered to be comparable in its decreasing of property values was homeless shelters.
Pawnshops and bars were next but only 54% and 36%, respectively, of the appraisers thought
they would decrease property values.
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
1OCC.
INDEX
# D-3
6
Duncan Associates
Ouestion 6: If you selected "Increase Value" or "Decrease Value" for any of the land uses in
Question 5, at what distance would the land use likely have No Impact on the appraised value
of the Community Shopping Center?
Approximately 60% of the appraisers felt adult-oriented businesses have an impact on the value
of shopping centers' values beyond 3000 feet. As compared to single-family homes, the
distance at which appraised values would no longer be affected by an adult use was somewhat
less. Respondents felt that it took from 2300 to 2400 feet before an adult use had no impact on
the appraised value of a shopping center. Only homeless shelters were suggested to have a
further reach (2500 feet). Again, pawnshops and bars were next with an influence on property
values 2100 and 1900 feet, respectively.
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
DOC.
C.
INDEX
D-3
7
Distance Before There Is No Impact on Community Shopping
Center's Appraised Value (%)
Land Uses
Over
500 ft.
Over
1000
ft.
Over
1500
ft.
Over
2000
ft.
Over
2500
ft.
Over
3000
f1.
Average
Feet
Homeless Shelter
0.0
3.6
10.7
17.9
3 6
64.3
2500
Adult Novelty/Media Store
(Retail only)
0.0
14.3
10.7
10.7
3.6
60.7
2400
Adult Arcade/Peep Booths
2.9
8.8
11.8
11.8
5.9
58.8
2400
Gentleman's Club/Cabaret
0.0
14.7
14.7
5.9
5.9
58.8
2300
Pawn Shop
9.5
9.5
19.0
4.8
14.3
42.9
2100
Bar/Lounge
5.0
10.0
35.0
20.0
0 0
30.0
1900
Grocery Store
23.8
4.8
28.6
14.3
4.8
23.8
1700
Office Building
11.1
11.1
33.3
22.2
0.0
22.2
1700
Fire station
18.2
9.1
27.3
18.2
0.0
27.3
1700
Gas Station
31.3
6.3
25.0
0.0
0.0
37.5
1700
Bookstore
17.6
17.6
29.4
5.9
5.9
23.5
1600
Religious Institution
18.2
27.3
27.3
9.1
0.0
18.2
1500
Convenience Store (beer/wine
license)
25.0
18.8
31.3
6 3
0.0
18.8
1400
Public Library
20.0
30.0
30.0
10.0
0.0
10.0
1300
Neighborhood Park
22.2
44.4
22.2
0.0
0.0
11.1
1200
Approximately 60% of the appraisers felt adult-oriented businesses have an impact on the value
of shopping centers' values beyond 3000 feet. As compared to single-family homes, the
distance at which appraised values would no longer be affected by an adult use was somewhat
less. Respondents felt that it took from 2300 to 2400 feet before an adult use had no impact on
the appraised value of a shopping center. Only homeless shelters were suggested to have a
further reach (2500 feet). Again, pawnshops and bars were next with an influence on property
values 2100 and 1900 feet, respectively.
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
DOC.
C.
INDEX
D-3
7
Duncan Associates
Question 7: Is there a greater negative impact on property values if there is a concentration of
land uses that have a negative impact on appraised values?
Does a Concentration of Negative Uses Create a Greater Impact?
Yes
82.5%
No --__ -.
9.8-% 1 -No opinion r-/3%.
The vast majority of appraisers agreed that a concentration or cluster of detrimental uses had a
greater negative impact on property values than isolated uses.
Question 8: If you answered "YES" to Question 7, which of the following factors are
important in determining whether there is a "concentration" of uses with a possible
negative impact?
Factors Determining a Concentration
Number of uses within a specified area?
3 + (uses)
Distance between uses measured in feet?
430 feet (average)
At what separation distance would the impact of the
concentration cease to be a consideration?
3,340 feet (average)
A concentration of three or more negative uses was considered by most appraisers to be the
level at which the impact is greater. The grouping was considered to occur if uses were within
approximately 400 feet of each other. Respondents felt concentration ceased to have an impact
at an average distance of 3,340 feet (as compared to approximately 2300 to 2800 feel for single
uses listed earlier.)
Question 9: General comments on other issues related to Question 8.
• Survey did not consider condition or level of public use for several items.
• Variable that affects survey is the price range of house and size of community. In Dallas,
$300,000+ houses like to be secluded. In small towns people are happy to have a choice in uses,
have growth and acceptance of it.
• Concentration depends on size of the defined area.
• Grouping of uses may be beneficial such as West End, Deep Ellum, or Sundance Square; however,
DFW does not group their sexually oriented businesses into a single "red -Tight" district so it is
difficult to measure. Although all of the clubs near Buchman Lake had a negative effect on the
area; so it may be un -wise to cluster such uses near a residential area.
• Adult sexually oriented businesses need to be concentrated and located low-end industrial areas,
otherwise they will gradually drive down the population and desirability of the area.
• Shopping centers benefit from defined agglomerations of retail if they have high architectural and
signage standards; residential amenities within walking distance (5 - 6 blocks) are positive.
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
DOC.
INDEX
8
Duncan Associates
• Uses such as pawnshops, peep booths, etc, obviously effect single-family value. It is an open
question as to effect on commercial properties; but as always, the developer must exhibit some
cotntnon sense as to locations, area, etc., in both residential and commercial:
• The adverse land uses should be located outside the defined neighborhood in order for an adverse
use to have tittle_or no impact.
Certain'uses-tend-to increase crime rates and_probably push values downward.
• Concentrating SOBs in industrial areas is reasonable as I support the business owners' rights to do
business. Homeless shelters strike me as a big problem.due to the number of panhandlers, bums,
psychotics, etc. that leave the shelter each day. These need to be close to police stations and city
services.
• It depends — Type of uses. Type of high-rise. Type of low rise. Ugly stuff in air. Blah Blah Blah.
• It depends on various factors primary are owner's expectations for the environment they are
purchasing close to their house. Urban area negative use not a factor; suburban - everything can be
an issue. Could get more usefulness by designing a questionnaire from an appraiser's perspective. I
really think you can't understand factors without a socio-economic context.
• All of the above factors are relevant in that the noise level and traffic need to be minimal, although
services need to be still relatively close by.
• Obviously some uses detract from value but number of uses is subjective.
• Marketing time (for property) would need to be extended.
• There would be other factors to be considered such as a major street or intersection as a screening
characteristic, a Larger building that blocks, a green belt or distances between uses, etc.
• Typically, no single adverse use causes a negative impact but a negative impact use causes other
negative impact uses to move into certain areas and the combination of all negative uses creates
negative property values.
• Single-family uses should be "family" oriented - not pornographic oriented. Lower demand would
result in lower prices. Community shopping tends to be "A, B, or C" tenants etc. Generally
pawnshops and adult entertainment are the lower rents, thus in lower value areas.
• SOBs generally have a negative affect on single family uses; lesser impact on retail.
Question 10: Do you believe that your personal, moral, or ethical beliefs about certain land
uses have affected your responses to any of the questions in this survey?
Do Personal Beliefs Affect Response?
Yes
19.5%
No
80.5%
Slightly less than 20% of appraisers felt that the answers they gave to the previous questions
might be influenced by their "personal, moral, or ethical beliefs." The most commonly
mentioned uses where this occurred were in the case of adult-oriented businesses. This means
the findings may be slightly skewed negatively towards adult-oriented businesses.
Survey of Appraisers in Fort Worth and Dallas, Texas — September 2004
DOC.
INDEX
# D-3
9
Duncan Associates
Analysis of Response Rate
We mailed 186 surveys to appraisers holding the SRA or MAI designation in the cities of Fort
Worth and Dallas. After follow-ups by nail and e-mail, we received 41 completed forms.
Another 34 persons responded by indicating that they did not wish to complete the survey.
T _ _
Conservatively, that gave -us a response rate -of 22 percent, which=is a margin -of 'errorof13.7
percent. In some surveys suchds those of voters for President of the United States, where—
margins are typically narrow -- that margin of error would substantially impair if not eliminate
any validity of the survey.
In this case, however, the major findings were supported by 82 to 97 percent of the
respondents. Even if the entire margin of error were applied negatively and the resulting
responses were thus directly reduced (which is a worst-case example of possible error, not a
statistically valid technique), the results would drop to 68 to 83 percent of the respective
respondents, still a very strong and firm finding on all of the issues on which we have reported.
An argument can certainly be made that the response rate was greater than that in a typical
survey in which a response rate of 22 percent is reported; in such a survey, typically only 22
percent of the people respond in any way. In this case, 40 percent actually responded in some
way, although 18 percent were simply responding to say that they did not wish to participate.
It is also useful to compare the response rate in this study to response rates in other surveys of
appraisers. A search of the literature on appraiser's response rates to surveys revealed a range
as follows:
Author
Year
Response Rate
Chan4
2000
21.0%
Clauretie, Bible, et al.5
1989
23.9%
Diskin, Lahcv, et aL6
1988
30.0%
Dotterweich and Myers'
1995
41.5%
Fisher, Lentz, et al.'`
1993
33.0%
Kinnard and Worzala9
1999
43.0%
Lahey, Ott, et al,' °
1993
40.4%
Smolen and Hambleton) i
1997
36.5%
Waller'`
2000
50.0%
Wolverton and Epley);
2000
25.7%
Wolverton and Gallimore"
1999
31.7%
Wolverton and Gallimore15
1999a
31.8%
Although at the low end of response rates among surveys of appraisers on a variety of subjects,
the results in this survey were of the same order of magnitude. Further, most of the other
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
DOC.
INDEX
,# _3
10
Duncan Associates
surveys asked appraisers questions about their profession or practices, not hypothetical
questions about property values. As experts and consultants, we certainly understand the
reluctance of experts to respond to hypothetical questions in their area of expertise for a non -
client, without compensation and with no firm understanding of how the material will be used.
When all of those factors are considered, -we believe that the response rate is understandable.
-_ Further;` as noted the findings are so clear that the relatively high margin of error
resultingfrom the lower'tespu serate has no effect on the substantive findings of the study.
Summary
o Appraisers were nearly unanimous in responding that adult-oriented businesses of any
kind (stores, arcades, or cabarets) would decrease single-family home property values.
Other uses deemed similarly detrimental to property values included homeless shelters,
bars, and pawnshops.
❑ More than 70% of the appraisers judged the influence of adult-oriented businesses on
property values to extend beyond 3000 feet (or approximately 6 blocks). While a few
suggested the influence was not felt quite so far, even the lowest estimates put the
distance at 1000 feet. The average distance was between 2700 and 2800 feet. Only
homeless shelters were considered to influence property values that far away.
Pawnshops, bars, and gas stations were next (2300 to 2500 feet).
❑ The appraisers considered the property values of community shopping centers to be
equally detrimentally affected by the proximity of adult-oriented businesses. More than
75% considered adult uses to decrease commercial property values. The only use
considered to be comparable in its decreasing of property values was homeless shelters.
Pawnshops and bars were next in their impact on lowering appraised values for
community shopping centers but to a much lower degree (53% and 32%, respectively).
❑ Approximately 50% of the appraisers felt adult-oriented businesses impact shopping
centers' appraised values beyond 3000 feet. As compared to single-family homes, the
distance at which appraised values would no longer be affected by an adult use was
somewhat less. Respondents felt that it took from 2200 to 2300 feet before an adult use
had no impact on the appraised value of a shopping center. Only homeless shelters were
suggested to have a further reach (2400 feet). Again, pawnshops and bars were next in
their influence on property values within 2000 and 1900 feet, respectively.
o The vast majority of appraisers agreed that a concentration or cluster of detrimental uses
had a greater negative impact than isolated uses.
❑ Three negative uses grouped together was considered by most appraisers to be the level
at which the impact was greater. The grouping was considered to occur if uses were
within approximately 1000 feet of each other. They felt the concentration ceased to
have an impact at an average distance of 3800 feet (as compared to approximately 2300
to 2800 feet single uses).
❑ Slightly more than 20% of appraisers felt that the answers to the survey questions might
be influenced by their "personal, moral, or ethical beliefs." This means the findings may
be slightly skewed negatively towards adult-oriented businesses.
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
INDEX
11
Survey Instrument
°
Duncan Associates
Survey of Appraisers in Fort Worth and Dallas, Texas - September 2004
00C.
INDEX
D -.2
12
duncari
associates
-c/a ION DESIGN GROUP
2800 NORTH HENDERSON AVENUE,
SUITE 100
DALLAS, TX 75206
PH: 214-228-0211 FAX: 214-370-3083
August 15, 2004
Dear MAI and SRA Designated Appraisers,
We are writing to request your assistance. Duncan Associates is conducting a survey on
whether property values are affected by certain types of nearby land uses. We are sending
this I0 -question survey to MAI and SRA designated appraisers in Dallas and Fort Worth to gain
additional insight into better ways to regulate land uses and protect neighborhood amenities.
Please be assured that your response to this survey in no way implies that you are
undertaking an appraisal of a property. It is simply to ascertain your views on the potential
impact on property values created by certain types of land uses. Your responses are completely
confidential. We use a mailing code to follow up on surveys that have not been returned. This is
on the envelope and is discarded upon tabulation of the returned survey.
Enclosed with the survey is a stamped, self-addressed return envelope. Please use it to
return the survey. We ask that you return the survey by Monday, August 30. If you would like
to receive a copy of the tabulated survey results, please provide your name and address in the
informational block found at the end of the survey.
We thank you in advance for your participation. If you have any questions, comments, or
concerns please contact me at the number above or my associate, Connie B. Cooper, FAICP, via
phone at 214-228-0211, or via e-mail at ccconniecooper@cs.com.
Sincerely,
Eric Damian Kelly, FAICP
DOC.
INDEX
;,4 p-4
' Duncan Associates
SURVEY OF MAI AND SRA DESIGNATED APPRAISERS
DEADLINE: MONDAY, AUGUST 30, 2004
Purpose of the Survey: This survey asks Dallas and Fort Worth MAI and SRA designated appraisers your views of theimpact certain
land uses have on the appraised value of single-family homes and commercial businesses. Again, your response to this :survey in no way
implies that you are undertaking an appraisal of a property. It is simply to ascertain your views on the potential impact ori;property values
created by the presence of certain types of land uses. We recognize that it may be difficult to respond to the questions related to specific
1. Rate the following amenities as to their potential influence on a 2. Rate the following amenities as to their potential infisence on a
Community Shopping Center's appraised value. (circle response)
distances; your best effort is appreciated. Thank You!
Single -Family Home's appraised value. (circle response)
Amenities
1 = No Influence
5 = Very Positive Influence
No •
Opinion
Low Traffic Volumes
1
2
3
4
5
N/O
Tree -Lined Street
1
2
3
4
5
NIO
Nearby Elementary
School
1
2
3
4
5
N/O
Close to Local Shopping
1
2
3
4
5
N/O
Sidewalks
1
2
3
4
,5
NiO
Near Neighborhood Park
1
2
3
4
5
N/O
Underground Power
Lines
1
2
3
4
5
NIO
Street Lights
1
2
3
4
5"
N/O
On -street Parking
1
2
3
4
5
N/O
Curb and Gutter
1
2
3
4
5
N/O
Amenities
1 = No Influence
5 = Very Positive Influence
No
Opinion
Low Traffic Volumes
1
2
3
4
i! 5
N/O
Tree -Lined Street
1
2
3
4 ;'
„ 5
N/O
Nearby Elementary
School
1
2
3
4
i
5
N/O
Close to Local Shopping
1
2
3
4
5
N/O
Sidewalks
1
2
3
4
' 5
N/O
Near Neighborhood Park
1
2
3
4
5
N/O
Underground Power
Lines
1
2
3
4
5
N/O
Street Lights
1
2
3
4'}
5
N/O
On -street Parking
1
2
3
4
5
N/O
Curb and Gutter
1
2
3
4
;!;5
N/O
Survey of Appraisers in Fort Worth and Dallas, Texas — September 2004
1
Duncan Associates
3. How would the listed land uses located within 500 feet of a Single -
Family Home likely affect the home'sappraised value? (Check only
ONE box for each land use)
Survey of Appraisers in Fort Worth and Dallas, Texas — September 2004
4.1
4. If you selected "Decrease Value" or "increase Vali'ie" for any of the
land uses in Question 3, at what distance would the land use likely
have NO IMPACT on the appraised value of the Single -Family
Home? (Check only ONE box for each land use). -
.:r
Impact on
value due
Single -Family Home's
appraised
located
to the listed land uses
within 500 feet
Land Use
Decrease
Value
No
Impact
Increase
Value
No
Opinion
Neighborhood Park
Religious Institution
Religious Institution
Convenience Store
(beer/wine license)
Convenience Store
(beer/wine license)
Public Library
Bar/Lounge
Gentleman's
Club/Cabaret
Bar/Lounge
Grocery Store
Gentleman's
Club/Cabaret
Bookstore
' ;i'
:!,
1
Adult Novelty/Media
Store (Retail only)
Grocery Store -
I 1
Office Building
Bookstore
Homeless Shelter
Fire station
!i
Pawn Shop
Office building
Adult Arcade/Peep
Booths
Homeless Shelter
Gas Station
Survey of Appraisers in Fort Worth and Dallas, Texas — September 2004
4.1
4. If you selected "Decrease Value" or "increase Vali'ie" for any of the
land uses in Question 3, at what distance would the land use likely
have NO IMPACT on the appraised value of the Single -Family
Home? (Check only ONE box for each land use). -
.:r
2
Distance at which land ,ise would have NO IMPACT
on Single -Family Home's appraised value
Land Use
Over
500 ft.
Over
1000 Ft. ,
Oven-'
1500 ft ;
Over
2000 ft.
Over
2500 ft.
Over
3000 ft.
Neighborhood Park
Religious Institution
Convenience Store
(beer/wine license)
Public Library
Bar/Lounge
ll'
Gentleman's
Club/Cabaret
' ;i'
:!,
1
Grocery Store -
I 1
Bookstore
Adult Novelty/Media
Store (Retail only)
!i
Office building
',.
Homeless Shelter
Fire station
.I
Pawn Shop
;;i
Adult Arcade/Peep
Booths
1 ['
Gas Station
2
Duftcan-Associates
5. How would the listed land uses located within 500 feet of a
Community Shopping Center likely affect the community shopping
center's appraised value? (Check only ONE box for each land use)
6. If you selected "Increase Value" or "Decrease Value" for any of the
land uses in Question 5, at what distance would the land use likely
have NO IMPACT on the appraised value of the Community
Shopping Center? (Check only ONE box for each land use).
Impact on
appraised
Community Shopping Center's
value due to the listed land uses
located within 500 feet
Land Use
Decrease
Value
No
Impact
Increase
Value
No
Opinion
Neighborhood Park
' r
il,
Religious Institution
Religious Institution
Convenience Store
(beer/wine license)
Convenience Store
(beer/wine license)
Public Library
Bar/Lounge
Public Library
Gentleman's
Club/Cabaret
Bar/Lounge
Grocery Store
Bookstore
Adult Novelty/Media
Store (Retail only)
Grocery Store
Office Building
Bookstore
Homeless Shelter
Fire station
Adult Novelty/Media
Store (Retail only)
Pawn Shop
Office Building
Adult Arcade/Peep
Booths
Gas Station
6. If you selected "Increase Value" or "Decrease Value" for any of the
land uses in Question 5, at what distance would the land use likely
have NO IMPACT on the appraised value of the Community
Shopping Center? (Check only ONE box for each land use).
Survey of Appraisers in Fort Worth and Dallas, Texas — September 2004
3
Distance at which land uSe would have NO IMPACT
on Community Shopping Center's appraised value
Land Use
Over
500 ft.
Over
1000 ft.
Over '
1500 ft.,
! Over
2000 ft.
Over
2500 ft.
Over
3000 fl.
Neighborhood Park
' r
il,
Religious Institution
Convenience Store
(beer/wine license)
Public Library
Bar/Lounge
Gentleman's
Club/Cabaret
Grocery Store
Bookstore
Adult Novelty/Media
Store (Retail only)
.1;
Office Building
Homeless Shelter
Fire station
Pawn Shop
Adult Arcade/Peep
Booths
Gas Station
Survey of Appraisers in Fort Worth and Dallas, Texas — September 2004
3
Duncan Associates
7. is there a greater negative impact on property values if there is a
concentration of land uses that have a negative impact on
appraised values?
Yes: No: No Opinion:
Note: If you answered "No" or 'No Opinion" skip to Question #9
8. If you answered "YES" to Question 7, which of the following factors
are important in determining whether there is a "concentration" of
uses with a possible negative impact?
Factors Determining a Concentration
,/•
How Many or
How Many?
Number of uses within a specified area?
'
Distance between uses measured in feet?
Distance between uses measured in driving time?
At what separation distance, minutes or feet
(indicate) would the impact of the concentration
cease to be a consideration?
No Opinion
9. Provide any other comments regarding the potential impact the
surveyed land uses might have on the appraised value of a single-
family home or community shopping center.
10,Some of the types of land uses listed in this survey elicit strong
responses from some persons, both positively and negatively.
Although we believe that professionals are less likely than others to
respond to these questions from emotional or moral positions,
previous surveys of this type have sometimes been. criticized
because they did not include a question about the extent to which
ethical, religious or other personal beliefs might haveaffected
responses. In that context, we would appreciate yourresponseto
this final, two-part question.
Please provide your name and mailing address if you Would like a copy
of the survey results:
Thank You for laking the time out of tour• business day to respond to
010questionnaire. Again, if you have any questions or wish to provide
comments please include them with your questionnaire Or give us a call /
email at the nunrhers listed on the cover letter.
Eric Damian Kelly. FAICP
Connie B. Cooper, FA1CP
Survey of Appraisers in Fort Worth and Dallas, Texas— September 2004
4
YES
NO
Do you believe that your personal, moral or ethical beliefs about
certain land uses have affected your responses to any'of the
questions in this survey?
'
If yes, which types of land uses?
'I I
Please provide your name and mailing address if you Would like a copy
of the survey results:
Thank You for laking the time out of tour• business day to respond to
010questionnaire. Again, if you have any questions or wish to provide
comments please include them with your questionnaire Or give us a call /
email at the nunrhers listed on the cover letter.
Eric Damian Kelly. FAICP
Connie B. Cooper, FA1CP
Survey of Appraisers in Fort Worth and Dallas, Texas— September 2004
4
.
e 'i"II
iiiii can Associates
Austin. Texas: "Report on Adult Oriented Businesses in Austin," prepared by Office
of Land Development Services, May 19. 1986.
Garden Grove. California: "Final Report to the City of Garden Grove: the
Relationship between Crime and Adult Business Operations on Garden Grove
Boulevard," Richard W. McCleary. Ph.D.. James W. Meeker. I.D.. Ph.D.. October
23, 1991.
Indianapolis: "Adult Entertainment Businesses in Indianapolis. An Analysis." 1984
Rochester. New York: "Survey of Appraisers in Monroe County. New York."
Summer 2000, results published in Kelly and Cooper, Everything You rllwats
Wanted to Krum, about Regu/acing Sex Businesses, Planning Advisory Service Report
No. 495-96. Chicago: American Planning Association. 2000: pages 51-57.
McCleary and Mecker, op. cit.
httn:t/www.anpraisa I institutc.org
Chan, N. (2000): "How Australian appraisers assess contaminated land." The
Appraisal Joumal 687(4): 432-439.
` Clauretie. T. M.. D S. Bible. et al. (1989). "Appraisal Regulation And Certification_
Appraisers' Views." The Appraisal Journal 57(3): 317-326.
r' Diskin, B. A., V. M. Lahey, et al. (1988). "Appraisers Utilization Of Computer
Technology." The Appraisal Joumal 56(2): 179-189.
7 Dotterweich, D. and G. Myers (1995). "Appraiser Attitudes toward Industry
Changes." The Appraisal Journal 63(3): 291-297
x Fisher, J. D., G. H. Lentz, et al. (1993). "Effects of Asbestos on Commercial Real
Estate: A Survey of MAl Appraisers." The Appraisal Joumal 61(4): 587-599.
"Kinnard, W N. and E. M. Worzala (1999). "How North American Appraisers Value
Contaminated Property and Associated Stigma." The Appraisal Joumal 67(3): 269-279.
10 Lahey, K. E., D. M. Ott, et al. (1993). "Survey of the effects of state certification on
appraisers." The Appraisal Journal 61(3): 405-413.
1I Smolen, G. E. and D. C. Hambleton (1997). "Is the Real Estate Appraiser's Role Too
Much To Expect?" The Appraisal Journal 65(1): 9-17
Waller. B. D. (2000). "A Survey of the Technology Astuteness of the Appraisal
dustry." The Appraisal Journal 68(4): 469-473.
11 Wolverton, M. L. and D Epley (2000). "National Survey of Residential Appraisers
Shows SRAs Have More Earning Power." The Appraisal Journ l:6S(4): 395-405.
g '6
t' Wolverton, M. L. and P..Gallimore (1999). "Client feedback ar d''the role of the
appraiser." The Journal of Real Estate Research 18(3): 415-431.
" Wolverton. M. L. and P. Gallimore (1999). "A cross-culntral comparison of the
appraisal profession." The Appraisal Journal 67(1): 47-56.
1'.
1
I'.
Survey of Appraisers in Fort Worth and Dallas, Texas — September 2004
5
1
1
1
1
1
1
1
1
1
1
1
1
1
DES MOINES
ADULT USE STUDY
AUGUST 19134
Robert W. Thorpe, AICP
R. W. Thorpe & Associates, inc.
Seattle / Anchorage
-1,
- - ^
DOM
INDEX
# -
LR
2.0000
D44
A38
1993
MUNICIPAL RESEARCH CENTER
iiiiti
0011 997
ADULT
ENTERTAINMENT
MATERIAL
'MUNICIPAL RESEARCH & SERVICES
CENTER OF WASHINGTON LIBRARY
1200 5th AVENUE, SUITE 1300
SEATTLE, WA 98101-1159
DOC.
INDEX
-'-
‘jini 2 9 194
ADMINISTRATION REPORT -ADULT USES
I - SUMMARY
To: City Council/,"1
From: City Manage
Subject: Recommended Actions - Adult Uses
June 7, 1984
On October 27, 1983, the City Council conducted Public Hearings on two questions.
1. Should adult businesses be allowed in the Revitalization Area?
2. Should adult businesses which are allowed be grouped or dispersed?
The City Council took testimony and was presented extensive study data and reports
on the effects of adult businesses on the Revitalization Area. The Council
instructed Administration to prepare a recommendation by June 7, 1984. In the
meantime, Council, Administration and consultants have had the entire record
available for study.
I have utilized Administrative staff (principally myself, Special Projects
Assistant Dave Crow and City Attorney Gorham) to prepare a recommendation as
instructed. I also commissioned Robert Thorpe and Associates to conduct an
independent evaluation of the same adult use subject as related to the downtown
Revitalization area.
This report represents only a brief summary of the entire record and base of
facts and studies used by Administration. The Administrative report is also
summarized with this memo.
An independent summary report from R.W. Thorpe and Associates is attached. A
detailed report from R. W. Thorpe will follow in a few weeks.
Recommended findings and conclusions are contained in the detailed Administrative
report. The following recommended actions are summarized for easy reference.
1. Should adult businesses be allowed in the Revitalization area? - - NO.
Recommendation - Schedule a special Public Hearing for the
purpose of considering the wording of an ordinance eliminating
the showing of adult movies from the Revitalization area and
allowing a final opportunity to speak, with a special notice
given, to the operator of the Des Moines Theater. The hearing
is recommended for September. The proposed Ordinance should
also eliminate all other adult uses from locating in the
Revitalization area.
Recommendation - After adoption of the proposed ordinance, order
cessation of all adult movies at the Des Moines Theater.
-1-
DOC.
INDEX
Recommended Actions - Adult Uses
June 7, 1984
Recommendation - Adopt a policy to promote and fund a cooperative
local improvement district in the Revitalization area when the
theater has permanently ceased to show adult movies or has moved
to another location.
2. Should Adult businesses which are allowed be grouped or dispersed? - -
THE ADULT BUSINESSES SHOULD BE DISPERSED AND SEPARATED.
Recommendation - Adult businesses which locate on Pacific Highway
South should be separated by distances of 500 to 1,000. feet
from any other adult use, Church, school or public facility.
It is the recommendation of the City Manager and the City Attorney that the
City Council take this summary report and detailed report under advisement
for individual study and that the Council place the item on an August agenda
for the purpose of scheduling a Public Hearing in September to consider the
wordage of an Ordinance implementing the above recommended actions.
SEM:do
Stan E. McNutt
City Manager
-2-
DOC-
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Adm. Rpt. 6-7-84
II. BACKGROUND
The purpose of this report is to summarize the impact of the Des
Moines Theater on nearby business and residential areas and on the City
-of Des Mo1nesr as -UwPiole.. This report will focus on -this adult theater
and -within the -framework -of findings previously determined of adult uses
in general. This report will especially look at land use impacts
associated with adult theaters and make recommendations to mitigate any
adverse impacts.
The Des Moines Theater is located at 22333 Marine View Drive in
the Central Business District of Des Moines. The structure housing the
theater is well over 50 years old, and has been used continuously as a
movie theater since its completion. The building consists of a motion
picture theater on the first floor with approximately 380 seats, three
store fronts with warehouse space below and offices on the second floor.
The theater was first issued a business license in 1960, when
the Des Moines business license ordinance went into effect. The theater
began showing adult movies in 1971. The present owner, Mr. Richard J.
Pappas, has operated the theater since October, 1976. According to
community impact statements produced by Mr. Pappas in accordance with
City of Des Moines ordinances, adult movies are shown because other
types of movies do not produce sufficient ticket sales for a profitable
business. The correlation between the amount of business at the theater
and the showing of adult movies , however, is difficult for the City of
Des Moines to document. The only figures available on tickets sold are
on admission tax reports submitted quarterly by the theater. This 5%
admission tax, however, was not enacted until 1974, three years after
the theater began showing adult movies. Appendix A is a summary of
admissions at the Des Moines Theater since the enactment of the
admissions tax.
Over the years, there has been a great deal of objection by Des
Moines area residents to adult uses and the showing of adult movies in
the community. The City has hundreds of letters and petition signature
on file objecting to these uses dated from 1974 to the present. These
letters and petitions represent over 600 households, and all but two are
opposed to adult businesses. Many of these express that they and the.
people they know or influence will not shop adjacent businesses because
the theater creates the image of an adult use zone. . Additionally, in
the Community Opinion Survey conducted in March, 1978, the adult theater
was among the most frequent features of Des Moines' that elicited
negative responses (Appendix 8). The appearance (deterioration) of
business establishments was the Number 1 negative comment regarding
business in Des Moines. The evidence gathered since the survey clearly
shows a correlation between deterioration of business neighborhoods and
the presence of adult uses. Taken in combination, the negative
responses on the "X-rated theater", "appearance of business
establishments", "hippy shops" (drug paraphernalia) and "massage
parlors" was 18.3% (This is a tie for first concern among the subjects
under City jurisdiction.)
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III. HISTORY
The City has been carefully studying impacts related to adult
uses including the theater since the enactment of Ordinance No. 464 on
April 9, 1979 :(copy _encosed -as Appendix C). Ordinance No. 464
requires impact studies on all adult business. The City has acquired -a=
great deal of information on adult business and their -impact through the -
application of this ordinance and the resultant Community Impact
Statements, studies and testimony. The theater voluntarily complied
with the requirements of the ordinance by submitting a Community Impact
Statement. Although no final decision has been made on the theater
under Ordinance No. 464, the impact studies on the theater and other
adult uses have been exhaustive. It is important to note that the
Ordinance does not address the morality••. of any legal business
transaction. It does address the "third party" impacts, especially
economic, that a particular business may have on the immediate
neighborhood and the community at large.
In the Washington Supreme Court decision of October 19, 1978,
upholding the City of Seattle's zoning enactments requiring that adult
motion pictures be located in certain areas of town, the Court noted
"much effort and money have been invested. in ,long-range improvement
plans for these areas". The City of Des Moines and its business leaders
have spent over $37,000 on studies and efforts at revitalizing downtown.
Another $20,000 has been budgeted by the_. City for 1984. Other expenses
include many hours of city staff time, volunteer work, and the
commissioning of a consultant for an independent follow up study on the
specific question of adult uses. A critical question for all of those
involved in revitalization is: could the continuing efforts and
effectiveness of revitalization be affected by the presence of the adult
movie theater and any new adult businesses in the heart of the downtown
area?
Although there are federal and state laws that are concerned
with adult publications and movies, they do not in any way regulate
where adult businesses may locate. The location issue is left to local
government.
Besides Ordinance No. 464, the only other local regulations and
ordinances directly affecting adult theaters as a use are local zoning
regulations. The following inventory itemizes all relevant Zone Code
sections pertaining to the location and development standards of
theaters in the City:
18.06.010 Purpose of classifications. The basic
purpose of this title is to classify uses and to
regulate the location of such uses in such manner as
to group as nearly as possible those uses which are
mutually compatible, and to protect each such group of
uses from the intrusion of incompatible uses which
would damage the security and stability of land and
improvements and which would also prevent the greatest
practical convenience and service to the citizens of
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Des Moines. It is also recognized that intrusion of
uses in one zone upon uses in another lighter zone may
also result from effects reaching across boundary
lines separating contiguous zones due to noise, smoke,
equipment, open air activity_.or other features. To
further .accomplish the goal, of compatibility, varying
-'"degrees of regulations are established for certain
---uses- in the business---commercfal and industr=i l-- =
classifications when such uses are contiguous to
lighter zones . . . A further purpose of this title is
to establish required minimum lot areas, yards and
open spaces as a means of providing a suitable
environment for living, business and industry, and to
maintain reasonable population densities and
reasonable intensities of land use, all for the
general purpose of conserving public health, safety,
morals, convenience and general welfare.
18.24.020 Permited uses. (B.C. Zone)
(5) Enterprises providing entertainment and
recreation;
18.24.030 Limitations on uses. (B.C.Zone)
(9) Establishments . . . .providing commercial
recreational facilities (except commercial swimming
pools) shall not be located closer than five hundred
(500) feet to the exterior boundary property line of
any school grounds, public park or playground;
(13) If a building site has a boundary line which
is a common line with R classified property, a wall or
view -obscuring fence or hedge not less than five (5)
feet nor more than six (6) feet in height shall be
installed and maintained for screening purposes and
controlling access. Where the wall of a building is
on such common property line, no separate wall or
fence need be installed along that portion of the
common property line occupied by the wall of the
building. . . ;
18.28.020 Permitted uses. (C.G. Zone)
(1) Any use permitted in the B -N and B -C
classification . . . (see 18.24.020 above).
Limitations on permitted uses. Only 18.24.030 (13)
applies to the General Commercial Zone. The specific
citation i.s 18.28.030 (3).
18.32.030 Uses requiring a conditional use permit.
(3) (G) Open-air theaters,
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A conditional use permit is granted by the Board of
Adjustment after evaluating potential adverse impacts.
Such impacts can be mitigated through conditional
approval.
_Permitted signs. (Chapter 18.42) No speci_al._ :-
_limitations:= -_-_ _
1. Temporary signs not exceeding 32 square feet
in area, except as authorized through the granting of
a Special Use Permit. Special Use Permits are limited
to 2 per year for a 10 day period and may include
pennants, banners and other devices of a carnival -like
nature.
2. Downtown, if the theater is a single use
structure, a 50 foot freestanding sign ISpermittedin
addition to two square feet of sign area for each
lineal foot of street frontage, up to a maximum of 150
square feet (building mounted signage). On SR 99 the
ratio is 100 square feet of freestanding sign area to
3 square feet per lineal foot of street frontage to a
maximum of 300 square feet total sign area.
3. Downtown, if a part of a multiple -tenant
building, a portion of a freestanding sign may be used
by the theater, or all of it with: permission of the
property owner, to a maximum of 100 square feet. The
property manager divides up the building mounted sign
area among tenants from a total allowable sign area,
exclusive of freestanding signage, of two hundred and
fifty (250) square feet. On SR 99, a freestanding
sign may be wholly or partially used by a theater with
a maximum of 120 square feet sign area. Total
allowable sign area may not exceed three square feet
per lineal foot of street frontage.
4. A theater in a multiple building complex,
downtown, is permitted part or all of a freestanding
sign a maximum of 100 square feet and are allowed
building mounted (or painted) signage equivalent to
one square foot of signage for each linear foot of
wall frontage with a minimum of thirty-two square
feet. On SR 99 a freestanding sign may be 200 square
feet, though it is •assumed that other uses would use
the sign as well. Flushed mounted sign use permitted
at one square foot of signage per lineal foot of wall
frontage.
5. All signs must reflect the City's
architectural theme of "Contemporary Northwest
Nautical", particularly downtown.
Parking Requirements. Theaters are required to
provide one parking space for each three seats or if
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fronting on a north south street, must setback 60 feet
in lieu of the prescriptive requirement. Note: In
effect, only the 60 foot setback would apply given the
orientation of streets in the B.C. and C.B. zones
potentially creating a severe parking problem.
-_i__tt,t4es5UnReview.;•--Destgn='.-review, is required of all
,signage and-neW theater ConstriktIon.
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IV. IMPACT OF ADULT THEATER
Appendix D is a summary of police activity in Des Moines related
to the adult theater as stated inPart_ I of _this report.
Des Moines residents have time and time again expressedtiieir
concerns regarding the negative impact of the adult theater on adjacent
commercial businesses on and nearby residential properties and on the
City in general. Among the concerns expressed are the following:
1. Decreasing property values
2. Refusal to shop in an area in which an "adult" use exists
3. Deterioration of the district, including deferred
maintenance
4. Parking and traffic problems
5. Attraction of transients
6. Interference with parental responsibilities for children
7. Increased crime
This perception by the public, based on documented testimony at
public hearings and letters to City Officials, is a legitimate impact on
the community, regardless of the basis for this perception.
This public perception has led to numerous business failures in
the commercial areas near the Des Moines Theater. This is indicated by
new business licenses being issued. Business turnovers around the
theater is approximately four times the average in other comparable
areas of downtown. Comparison blocks were chosen for study because of
similar building and business development factors (1.e., all buildings
with a zero side yard, similar retail shops, similar traffic
orientation, etc). Appendix E is a compilation of business turnover in
the area near the theater.
The theater has clearly had these impacts on adjacent
businesses:
1. Type: Marginal - often adult uses prior to 464
2. Deterioration: Existing or former businesses, according to
public testimony; noticeably deteriorated.
3. High number of business turnovers.
Additionally, according to the previously. mentioned public
testimony, non -adult businesses are being perceived as adult uses by the
public. This "guilt by association" is probably a factor in the high
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Adm. Rpt. 6-7-84
number of business failures near the theater. The citizen's desire to
shop local businesses is vital to those businesses' survival—This
perception, then, is creating a substantial negative impact on nearby
businesses. The citizens also have a right to safety and security. A
business that reasonably bears on a. citizen's security or perception of
secur-ity_isa legit:imate-Amp-actr. _ - . - _ _ .. -
Public testimony, staff studies and independent consultant
studies all confirm the following findings:
1. The presence of the adult theater deters many people from
shopping in the immediate area in particular and in downtown
Des Moines in general resulting in serious negative economic
impact.
2. Overwhelming public testimony. and planning studies conclude
that the downtown business area is severely deteriorated due,
in part, to the adult movie theater.
3. The benefits of community investment in revitalization and
future revitalization efforts may be nullified by the
continued presence of the adult theater.
The negative effect of adult businesses is also evidenced in
other states and communities by their enormous effort and expense to rid
themselves of or at least control adult businesses, including adult
movie theaters. Some of these examples include: _
North Carolina's "single use law" which allows only one kind of
"adult entertainment" in a building. Thus an adult movie theater may
not sell adult books or an adult bookstore run automated peep shows.
Also in North Carolina, no adult drive-ins may locate within 2,000 feet
of residence or within viewing range of juvenile, and no adult films may
be shown until after 11:00 p.m.
In Detroit, Michigan, adult uses cannot locate within 1,300 feet
of each,other or within 500 feet of a residential area unless 51% of the
local residents and businesses approve.
In Prince Georges County, Maryland, adult uses are not allowed
within 1,000 feet of school and within 500 feet of a church, and doors
and windows of all adult enterprises must be blackened.
Significant efforts in controlling adult theaters in Washington
will be discussed in Section V.
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Adm. Rpt. 6-7-84
V. SOLUTION
Based upon the facts brought out in this report and the findings
herein established, several conclusions and recommendations can be made
regarding adult movie theaters in Des Moines.
Basically, it has been established by the U. S. Supreme Court
that every community has a right to protect its values. A 1973 U. S.
Supreme Court decision recognized that legitimate community interests
are at stake in protecting their values and that these interest may be
applied through ordinances and regulations against adult movies and
uses. Such interests include the interest of the public in the quality
of life and the total community environment, ... and possibly the public
safety itself.
As has been seen in Section IV of this report, the negative
impact has been found significant. There are two basic questions (asked
at public hearings) that must be addressed regarding adult uses.
1. Should adult businesses be allowed in the revitalization
area, or relegated to other locations?
2. Should adult businesses which are allowed be grouped or
dispersed?
Through the data gathered in community Impact studies produced
in compliance with Ordinance Na. 464 and through public testimony, it
must be concluded that it is not in the community's interest to retain
an adult movie theater in the downtown area of Des Moines. Findings
have shown the following reasons to support this conclusion:
1. The public's perception of existing downtown Des Moines
deters business investments, retail sales and building
maintenance and improvements because of the presence of the
theater.
2. Businesses locating near the theater have a failure or
turnover rate approximately four times that of other
businesses in other comparable downtown areas.
3. Economic viability of the downtown and community are
negatively impacted by the theater and Revitalization efforts
will probably fail to produce the desired improvement to the
downtown business image overwhelmingly preceived by the
public. Such revitalization efforts include renewal,
beautification, image promotion, and attraction of new,
viable retailing, professional and other compatible
establishments.
4. Community goals include a revitalized downtown area that is
attractive to pedestrian orientated business and family
activities.
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The tremendous effort and expense of the City toward improving
the downtown is indicative of a large community commitment to the long
range improvement of downtown. It has also been seen that other cities
have spent a great deal of time, energy, effort and money in
establishing ordinances to control adult uses, .particularly adult
theaters.
Perhaps the effort of most interest in controlling --the -location-
of adult theaters is that of the City of Seattle. That City's zoning
ordinances restricting adult theaters to a particular part of the Cit
was upheld by the Washington Supreme Court in 1978 (See Appendix F))
(Wash., 585 P.2d 1153 Oct. 19, 1989). The Court summarized this case by
stating:
The validity of zoning enactments requiring that adult
motion picture theaters be located in certain downtown
areas was upheld by the Superior Court, King County,
Frank J. Eberharter, J., and theater operators appealed.
The Supreme Court, Horowitz, J., held that: (1) the
ordinance was fully adequate to give operators notice of
regulated use, and they had no standing to challenge it
for vagueness; (2) the operators had no standing to
assert First Amendment rights of others so as to
challenge the ordinance for facile. overbreadth; (3) the
theaters failed to establish that the ordinance was
impermissible prior restraint on protected First
Amendment Speech, in view of a finding that the
ordinance did not have any significant deterent effect
on exhibition or viewing of such films; city's most
important interest in regulating use of its property for
commercial .pur-poses was sufficient to justify .such
zoning regulation; (4) there was reasonable
classification, no violation of equal protection, by the
ordinance, and (5) the ordinance was reasonable, not
denying due process of law, insofar as terminating all
nonconforming theater uses within 90 days, in view of
the fact that the theaters were not bound to show adult
films as opposed to any other type of film and did not
come forward with any clear evidence of economic harm."
(Emphasis added).
This zoning of the City of Seattle was the culmination of a long
perfod of study and discussion of the problems of adult movie theaters
in other areas of the City.
Similarly, the City of Des Moines has had the opportunity,
primarily through its Community Impact Ordinance, Revitalization Study
and activities and public testimony to study and discuss and analyze at
length the entire question of an adult movie theater in the central
business district of the community.
If, then, the City should not allow adult theaters in the
downtown, where, if at all, should the City allow such a use? It is
quite clear from the Seattle case and other city ordinances and court
DOC.
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Adm. Rpt. 6-7-84
findings that banning adult theaters altogether might be successfully
challenged as an infringement of the U. S. Constitution's First
Amendment. A major factor in the State of Washington's Supreme Court
upholding the Seattle Ordinance was the fact that adult theaters were
allowed in another part of the City.
The: on_l y...- other. com_ mere i al area. --i n_ t$_ of ne__in 'which any kind
of"movie=theater would be compatible with other permitted uses is in the
CG zone along Highway 99 (Pacific Highway South). An adult theater on
Highway 99 would clearly have less of an impact than in the central
business district. Highway 99 is less concentrated with much more
parking available.
In addition, over the years Des Moines Comprehensive Plan has
distinguished between their two commercial areas. The downtown is
perceived as a pedestrian and community -family oriented shopping service
area. Because of higher speed limits, wore traffic, and lower density,
the 99 commercial strip, on the other hand, is seen as automobile
oriented shopping of a more regional nature. The current Des Moines
sign ordinance distinguishes between these two areas, and the Des Moines
City Council is just now beginning discussion on a new zoning district
for the downtown.
In its Community Impact Statement, the theater claimed much of
its clientele came from the City. The preponderance of administrative
and public study and testimony refutes this. It is concluded that the
"survey" referred to was either "flawed" Or that the clientele changed
drastically in the last 3 or 4 years to mostly out of town. Highway 99,
from a pure business sense, is a better location for the owner of such a
use. Public testimony regarding the theater also reflects the attitude
that if adult theaters are to be allowed in Des Moines, they should be
on Highway 99.
If, then, the City's zoning code should be amended to allow
motion pictures along Highway 99 and not allow them in the downtown
area, should they be "concentrated" or dispersed along the highway?
Chief of Police Martin Pratt, in his memo of 1-4 recommends that
adult uses be dispersed. He feels that dispersed would greatly reduce
the crime and patrol problem:
"If the council decides to zone adult businesses to
one geographical area of the City it is my opinion and
recommendation that these adult businesses be dispersed
rather than grouped together in one small area.
... it is my opinion that if the adult businesses
are grouped together in one area, it will place a
burden on the police services of the City and will have
the potential for many volatile situations. As in the
past, I can foresee not only police time being spent on
handling numerous complaints at the location, but also
many, many hours being spent in monitoring and/or
watching these businesses because of the potential for
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Adm. Rpt. 6-7-84
problems that are associated with these businesses.
With regard to potential for volatile situations, I
base my opinion on pat experiences and/or knowledges.
Many times when adult businesses are located in very
close proximity to each other, they develop a
camaraderie which seems to "join forces" to try and
help or pr_otect., ._==each `other"_by _ "obstructing_'_,:
"hinderi-hg"='"intruding"_ - or : --"harrassing" - poi ice
officers as they try to carry out their duties.
Additionally, often tines the customers of a business
produce the same affect and/or actions mentioned when
police are trying to perform their duties at an
adjoining or relatively close location. Conversly,
though, often times adult businesses develop an
"adversary" posture toward other adult businesses
rather than the "camaraderie" posture. If the
"adversary" posture were to develop, I foresee a far
greater potential for more serious problems or
situations occurring which would not only place more
danger in existance for my officers, but also for
citizens who happen to be in the area at the time.
Granted, dispersment will not negate police services to
these businesses, but I feel our involvement would be
at a lesser rate than if they were grouped together.
Not only would the dispersal reduce crime potential, but
should lessen its impact. By the same token, in order to safeguard
family oriented activities, minimum distances should be established
between adult theaters and such uses as churches, schools and public
parks.
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1 38 QTRS. 147,953 Total Admissions
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APPENDIX A
Admissions - Des Moines Theater
(Interpolated from Theater Revenue Reports)
YEAR QUARTER = ADMISSIONS -
1974 4 1259
1975 1 985
1975 2 954
1975 3 1120
1975 4 2279
1976 I 3784
1976 2 4129
1976 3 4870
1976 4 3191
1977 1 3378
1977 2 3827
1977 3 3840
1977 4 3195
1978 1 3496
1978 2 3453
1978 3 3583
1978 4 3327
1979 1 3468
1979 2 3299
1979 3 3668,
1979 4 3837
1980 1 5552
1980 2 4717
1980 3 5135
1980 4 4799
1981 1 5511
1981 2 4889
1981 3 4851
1981 4 5131
1982 1 5066
1982 2 4377
1982 3 4507
1982 4 4557
1983 1 4909
1983 2 5056
1983 3 4409
1983 4 4463
1984 1 5082
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APPENDIX B
From City of Des Moines Community Opinion Survey March, 27, 1978
Questions 31, 32 and 33
Negative Comments: No. of Responses
-ter 1-A.ir__pl ane -Noise _ - - 150 _ 21.6
127 18.3
3. Appearance of Business Establishments * 78 11.2
4. Apartments 68 9.8
5. Businesses Lack Variety 51 7.3
6. Traffic Congestion/Safety 45 6.5
7. X-rated Theater * 40 5.8
8. (Tie) Police Department 28 4.0
Dogs Running Loose 28 4.0
10. Rundown Housing 17 2.5
11. Metro Bus Service 12 1.7
12. (Tie) "Hippie Shops" * 8 1.2
(was a drug paraphernalia shop)
Concorde 8 1.2
14. Local Government 7 1.0
15. Marina 6 0.9
16. Trees Obstructing Views 5 0.7
17. Postal Service 4 0.6
18. (Tie) Overhead Wiring 3 0.4
Smell from Dump 3 0.4
20. (Tie) Administration of Water District #54 2 0.3
Mobile Homes 2 0.3
22. (Tie) Massage Parlors - Adult * 1 0.1
Newspaper 1 0.1
2. Condition of Streets/Sidewalks
TOTALS 695 100.0%
* Note.- total negative comments directly or indirectly related to addemC es - 18.3%.
INDEX
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rgalo IRAN. Thorpe & Associates
Planning • Environmental Analysis • Economics
June 7, 1984
Mr. Stan McNutt
City Manager
City of Des Moines
Des Moines, WA
Associates:
Deborah Krouse, APA
Kathryn Figon, ASLA
RE: Independent Planning Consulting Report pa. Adult Uses in the City of
Des'Moines
Dear Mr. McNutt:
At your request, ve did an independent study for recommendations to the
City Council concerning policy directions to be undertaken by the Council
relative to adult uses within the City. As you and the Council are aware
from our previous efforts on the Revitalization Study, ve are familiar with
the community, the citizens and the character of its business district.
Our study set forth to look at adult uses and consider the following
elements:
1. Zoning Study
2. Land Use Impacts
3. Impacts on the Revitalization Plan
In order to do this we set forth the methodology with steps including the
following elements:
1. Reobservation of current land uses within Des Moines, with particular
attention to the revitalization area, existing land uses and the
potential for additional adult uses within the Revitalization area.
2. Review of studies, reports, and technical documents on adult uses by
various communities, professional organizations such as the American
Planning Association, Trial Lawyers Association, City Manager's
Association, etc.
3. Court cases and case studies on other communitiesexperiences in
providing areas for this use within their community while controlling
the impacts on certain elements of the citizenry, particularly
children.
4. Discussion with other city officials who have been involved in the
reviews of this type of use within their communities.
5. A review of the record of the hearings by the City Council on this
matter in Des.Moines.
6. Site visits of areas that have adult theaters, bookstores, and similar
uses in other suburban communitiesin Western Washington as well as
downtown Seattle.
Our efforts have been concentrated in the last couple of weeks to review
these items listed above. However, it is complemented by my 8 years of
officing at 3rd and University at Seattle, whereby I have observed land use
impacts of.adult type uses on 1st, 2nd and 3rd Avenues near my office. And
the impact on adjacent land uses,signage, street treatment, and the general
character of the urban area. This effort was supplemented by a review of
Beattie: 1315 Seattle rower • 3rd G Uruverstcy • Seattle, WA sa 101 • 12061 624.8238
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Mr. Stan McNutt
June 7, 1984
- page _Two
locations such as Bremerton, Redmond, Renton, Northend Seattle, Aberdeen,
etc., to ascertain the general character of land uses and the economic
impacts of this type of use in any given area of a community.
Following work efforts, a detailed report shall be provided the Council in
the -near future. However, some of the conclusions and observations may be
appropriate. They -are' as follows:
1. There appears to be a- definite .impact on adjacent uses by adult uses
in the Revitalization Area of. Des Moines.
Z. In terms of Number 1, there are, in my opinion, identifiable impacts
on the Entente, goala and long term objectives of the Des Moines
Revitalization Study, which may be largely counter purposes.
3. In other communities, there has been an impact on adjacent land uses
do to either a single adult use or a concentration of these uses
occurring on adjacent properties, land uses and things such as
deferred maintenance, and character of the area.
4. A review of the cases such as those involving the cities of Detroit,
Boston, New Orleans, Los Angeles in other cases from a laymens stand—
point, indicates that a cumber of communities have approached methods
for addressing through the zoning code, or through other methods such
as licensing, the need to provide for some locations to respond to the
real or perceived demand for this type of use while controlling it,
eliminating its exposure to areas that have children, such as parks,
•schools, residences and other community activity areas.
5. The standards utilized in dispersal of this type of activity by other
communities appears to be an appropriate one and more successful than
a concentration approach which appears more appropriate for a highly
concentrated urbanized area, if at all. However, the distance
standard be it 500, 1000, 1500, 2000 or whatever, is a policy decision
that appropriately rests with the legislative body of the City of Des
Moines. However, some communities are moving towards a 1500 foot
standard and it may be just as appropriate es 1000 feet or any other
standard.
6. It appears that the dispersal method eliminating two adult uses in any
location, with a minimum distance between is the most effective and
widely used method of providing some zoning control of these uses.
7. That the area most appropriate in the City of Des Moines for these
uses is not the Revitalization area (the business district) which is
surrounded in close proximity by schools, residential areas, parks,
playfields, etc., but rather Highway 99. This observation is
supported not only for the reason of access of children but conversely
for more easy access by potential users of these facilities from a
state designated highway.
Soetee ei 5 Seetc.le Tower • 3r0 S. LJr.wersnw • Seetoe. WA 98101 • [2060 624.0238
I
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Mr. Stan McNutt
Jun.e_7, 1984
Page -Three-'--
8. It should be noted that this study is limited in its scope to those
work items listed above. There was no review of economic data,
vacancy rates, etc., of the area visited for an analysis of the im—
pact, but rather just utilizing a real estate appraisers techniques)
to observe functional obeolesence, deferred maintenance, etc., in
areae immediately adjacent to the study areae.
9. And -the study's observations and conclusions are not based on moral or
obscenity issues, that is they are specifically excluded from
consideration, but rather the study focuses on impacts of land use,
economic or urban design nature related to public health, safety and
welfare.
I hope this Memorandum is helpful to the Council as a statue report of my
study observations and conclusions. A full report will follow.
Respec
submitted
rt W. Thorpe, 'SCP
RWT : me
1 Report Writer is an appraiser (MAI) candidate as well as a certified
planner.
Smaccie. Bi 5 Saws Tower • 3rd & Univemity • seam.. WA De, c, - t2O8) B24•O239
DOC.
INDEX
APPENDEX C
• ORDINANCE NO. 464
AN ORDINANCE OF THE CITY OF'OES MOINES requiring a study of the impact
certain types of business will have on the Des Moines conanonity if they are issued
a license, authorizing denial of a business license on a finding of significant
adverse community impact. and providing appellate procedures.
WHEREAS, the City of Des Moines Is prtinarlly a residential community
providing a labor force for nearby industrial areas; and.
YHEREAS. the traditional orientation of the community. and that which is
planned for the future, i-s_for family commerce, recreation, education and warship;
and bu`sine5ses and act_ivitiesWhich are not --family oriented ere inconsistent:with
the existing -development and future plans for -the Des Moines community. andliay -
have an adverseimpact upon the same; and,
WHEREAS, such businesses have been found to appeal to special populations
and often bring outside influences into the community which increase the crime rata
and undermine the moral and social values. of the family area+bers; and,`
WHEREAS. existing businesses find that as the character of the commercial
envirerweet changes, their business drops off. property values decrease and merchants
serving the. general community are forced to move out of the central business district.
leaving it in a vacant and deteriorating condition; and.
WHEREAS, businesses which are not family oriented. and which would contribute
to this adverse situation, should be encouraged to locate in other communities where
their patronage would be more probable"and profitable. and where their impact would be
more acceptable; now. therefore;
THE CITY COUNCIL OF THE CITY OF DES MOINES DO ORDAIN AS FOLLOWS:
Section 1. The City of Des Moines shall require a study and review of the
probable impact on the coMMunity pf any proposed business activity oriented towards
serving or attracting a special Population of customers, and not oriented toward
activities reasonably related to the health, education and welfare of the family.
Section 2. No business license or renewal of business license shall be
-issued to any business which is determined by the City''Manager to be oriented toward
serving or Attracting a special population of customers. and not, oriented towards
activities reasonably related to the health, education and welfare of the family, until
such proposed business has first prepared and submitted to the City Manager a
Community impact Statement. as described in Section 3 below; provided that thm
following businesses shall be exempt from this requirement:
(1) Businesses regulated and/or licensed by special legislation of the
State or Federal Government.
(2) Businesses which the City Manager determines would have an insignificant
adverse impact on the community, and which are not significantly
inconsistent with the purposes of this Ordinance, as stated in the
preamble hereof.
Section 3. A Community Impact Statement shall contain, at a minimum. the
following elements:
(1) Detailed description of proposed business; names and addresses of all
owners thereof; proposed location; description of building and
facilities; description of merchandise or services to be sold; proposed
hours of operation; profile of expected customers; projected market area;
references to other similar business operations.
(2) Analysis of existing business community within 300 feet of proposed
location. including the following factors, at a minimum:
a) Type of businesses;
bj Profile of customers;
c Market area;
d Economic growth/deterioration
e) Property values;
f) Proximity of residential neighborhoods;
g) Proximity of schools, churches and public facilities.
DOC.
INDEX
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WwW . mut.
• Eager of 2�
(3) Iapact of proposed business upon the factors described in sub -paragraph
2 above.
(4) impact of proposed business upon the social environment of the Des Moines
community.
(5) Alternative locations for the proposed business;. and/or alternative
business for the proposed location.
Section 4. A completed -Community impact Statement shall be filed by the
applicant with the City Clerk. Copies of the same shall -be distributed by the Clerk
to all Council e,embers, all City facilities. Secretary of the Highline School District,
Secretary of the Des Moines Chamber of Commerce, and to any other parties requesting the
same. The City„Clerk may assess a charge for, the:cost of copying any statements
issued to private parties. Within thirty days of the date the statement is filed with
the Clerk. the•,City Manager shall either grant the business license, or shall call a
hearing for the purpose of considering the same. At the conclusion of the hearing.
and any continuances thereof, the City Manager shall either grant or deny the business
.:rense, enterinn written findings of fact supporting his decision should such decision
be to deny the business license.. It shall be valid grounds for denial of a busleess
license if the city Manager finds that a proposed business will have a significant
adverse impact upon the community and will be significantly inconsistent with the
purposes of this Ordinance, as stated in the preamble hereof. The possibility of •
mitigating aeasires shall be taken into account. if a denial is ruled, the applicant
may appeal the decision to the City Council by filing an appeal request within ten days
of the date of such written decision with the City Clerk. The Council. must schedule a
Public Hearing to consider the appeal no later than ninety days after the filing of the
appeal request. After hearing the appeal. the decision of the Council shall be final.
Section 5. All procedural elements of this Ordinance shall have retroactive
as well as prospective application to any and all businesses that have not received a
final and unconditional business license on the date of enactment hereof. The substantive
ale:lents of this ordinance are deemed to be necessary for .:he immediate protection of the
public health. safety. and welfare. and shall also apply to said businesses.
Section 6. If any provision of this Ordinance. or its application to any
person or circumstances 1s held by a Court of competent jurisdiction to be invalid.
the remainder of this Ordinance. or the application of the provision to other persons
or tiro, stances, shall not be affected and shall remain enforceable as originally
enacted.
PASSED BY the City Council of the City of Des Moines this 9th day of
April , 1979 and signed In authentication thereof this 9th day of
pril , 1979.
APPROVED AS TO fORI1
ATTEST:
�iy ark
Published: April 1 1 1x74
DOC,
INDEX
# P~'t
1
CITY OF DES MOI NES.
BUSINESS LICENSE CHECKLIST
Ord. 39,:.454, 460. 463
' and 464
Name of Applicant Date '
Name_of=Business _.`..;:
Location
Description of Business Activity
Review Checklist: (Please comment and initial)
Zoning Planning Dept
Building Code Eng. Dept.
Parking Eng. Dept.
Traffic Eng. Dept.
Fire Fire Dept.
Health Health Dept.,
(if applicable)
Police
Police
Ordinance #464 "Threshold" determination (check one)
L/ Business is found to be oriented towards actiarities reasonably
related to the health, education and welfare of the family. (exempt from
Ordinance #464)
Ci Business is regulated and/or licensed by special legislation of the State
or Federal government. (exempt from Ordinance #464)
17 Business is found to have an insignificant wdverse impact on the community
and is not significantly inconsistent with the purposes of Ordinance f454.
(exempt from Ordinance 4`454)
/-7 Business is found to be oriented towards serving or attracting a special
population of customers and not oriented towards activitiesreasonably
related to the health, education and welfare of the family. ('Community
Impact Statement required)
Ordinance €464 threshold determination made on
date
By:
signature
DOC.
INDEX
Wit" 064 tiii4temik
THE "9eR4t!<ad" CITY
DES MOINES, WAZNINeTOf , lt1Nm
ORDINANCE NO. 464
HOW DOES THE CITIZEN PARTICIPATE?
READ THE ORDINANCE.
Copies are available at City Hall. The City will mail copies on request and
provide copies when fnvited to give briefings at'group or community meetings.
The City will be happy to explain any and all details of the Ordinance to all
parties pro or con.
UNDERSTAND THE ORDINANCE.
Ordinance 464 does not address the morality of first and second party
transactions in le al`business operations. The Ordinance is concerned
with third party innocent-nonconsenting) impacts only.
AVOID THE FRUSTRATION OF UNPRODUCTIVE ACTIVITY.
Anonymous letters, petitions and even political pressures are totally
ineffective during the time a specific business license is being considered
under Ordinance 464. All decisions must be made solely on the basis of the
accumulated information as provided in the Ordinance. Confine your activities
where possible to documenting the impact or potential impact to you or your
family or business. When others are impacted, have them provide the information.
PROVIDE SPECIFIC INFORMATION.
If a hearing is called provide testimony as to how the proposed business would
effect you.
1. What is your opinion of the business area or location?
2. Have you shopped there in the past?
3. Would you shop there if the proposed business license were granted?
4. Would the proposed business affect you in any other manner; that is your
concept of this community, your social and recreational expectations, your
feeling of security, and the like? If so, how?
If you have been witness to something which might have a pro or con bearing on
a Community Impact Statement, gather specific information. Write down all details
such as dates, times, persons, places, situations and all other circumstances
which have a bearing. Be sure your facts are truthful, accurately stated and
opinions are represented as opinions. The City will advise you as to protection
of privacy in cases where information may be personally delicate.
HELP EDUCATE OTHERS AND URGE THEM TO HELP GATHER INFORMATION IF A HEARING IS CALLED
Ordinance 464 represents a relatively new approach to protection for family
communities. If a hearing is called, participate!
a T iwy.I. ALM VIM SI MMGPps NNW N MIN . OVILIC NUM a MIs. NOM
" elMM1f VITU Alin. M. 1'1MS 1111i iW. ti. tId 111V M. MM. snn OM M. W. 1
11164•11 10111.11161 7 1.147111 DOC. INDEX
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•
APPENDIX D
DES MOINES THEATER
DATE TIME INCIDENT # CASE NUMBER SUMMARY
04-22-74 2302
08-07-74
08-09-74 1350
08-26-75 2013
-Unfounded, subject attemptedto
get another ,to pctr4ctaseiquor
subject agreed, taking money but
never returning with liquor
74-0595 Obscene motion picture investigation
Search warrant
Normandy Park Police Department
reported possible drug deal tonight,
unable to determine if valid
03-13-76 1852 Fight, solved on arrival
05-17-76 2125 76-0597 Assault with a firearm case taken
05-20-76 2309 Follow up to 76-0597
07-01-76 0002 76-0786 Malicious Mischief 3rd
07-18-76 2119 Juvenile disturbance, gone on
arrival
01-04-78 1737
Abandon vehicle found to be King
County's stolen, no case, vehicle
returned
11-02-79 0023 Intoxicated male, gone on arrival
11-04-79 2259 Woman screaming behind theater,
solved on arrival
03-03-79 0930 #0818 79-0281 Theft 3rd
03-06-79 0004 #0849 Intoxicated subjects, solved on
arrival
04-22-79 2133 #1430 79-0481 Minor in possession of alcohol,
one cited
11-22-79 0853 #4968 79-1670 Commercial burglary case taken
11-22-79 2007 #4978 79-1670 Follow up to above case.
DOC.
INDEX
1 APPENDIX E Page One
BUSINESS ACTIVITY SINCE 1973
22300 Block - Wes Side of Marine_Yiew Drive _
1 ,
- ADDRESS---- 'YEAR
22303 1973 NAME OF BUSINESS --
Grocery Store
1974 Empire Marine Service*
I 1980
Fo C'sle Inc.
1981
D'Andrea's*
22307 1978 Des Moines News Office
1 1981
1981 Millheisler & Johnson*
Parker Typing Service
1982 Des Moines Secretarial Service*
1 22311 1973 College Typewriter Shop*
• 22315 1973
1975 Des Moines Furniture
1 Des Moines Stereo Center
1978 La Lanterna Italian Rest.
1981 Martin's Manor House Rest.
1 22317 1973 End of the Trail Antiques
1 22319 1973 Circuit Rider Book Store*
22325 1973 Glen L. Brown & Sons
I• 1980
Foreign Bird International
1981
The Clothes Menagerie
1982 Your Square Dance Shop*
W & W 2nd Hand Shop
1 22331 1973 Des Moines Theater*
I 22333 1973
Dr. Larry Siemon
1973
Hank's Barber Shop
1974 Earl's Barber Shop
1975 Raine's World of Coins
I 1976
1978 Des Moines Camera & Sound
Rebound Records
1982 Happy Thoughts T -Shirts
1 1983 Intersound*
22341 1973 Des Moines Texaco*
I
1 * Business is still In operation.
DOC.
INDEX
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APPENDIX E PageTwo
BUSINESS ACTIVITY SINCE 1973
2250011ock - West
ADDRESS YEAR
NAME OF BUSINESS
22501 1973 Ranch House Meats (Same Business)
1975 B & E Meats* (Same Business)
22507
22509
1973
1978
1976
Dale's Appliance
Alix's Sporting Goods*
Des Moines Auto Parts
22515 1973 C. J.'s Pizza
1975 Alix's Sporting Goods (Expansion)
22517
1973
Des Moines Realty*
22513 1973 Snure & Gorham (Name Change)
1973
1973 H. B. Hunting*
Creative Candlecraft
1973 Baker Mfg.
1974 Jack Kniskern*
1980 Snure & Fleck*
22519 1973 U -Do -Em Laundormat*
225151/2 1973 Daro Industries
1974 J. C. Mfg. Co. *
22525 1973 Dr. Menashe*
1973 Dr. Wylie
1973 Dr. Geria
1980 Dr. Wilson*
22531 1978 Moby Doug's Seafood*
* Business is still in operation.
DOC.
INDEX
# D-
_AP.RENDEX_ F_ _
NORTHEND CINEMA, INC. v. CITY OF SEATTLE Wash.
Cite ss, Wish, 585 Ptd 1153
90 Wash.2d 709
NORTHEND CINEMA, INC., and A. M.
Mushkin, Appellants,
v.
CITY OF SEATTLE, a Municipal
Corporation, Respondent
GAIETY THEATERS, INC., a Wash-
ington Corporation, Appellants,
v.
CITY OF SEATTLE, a Municipal
Corporation, Respondent.
APPLE THEATER INC, a Washington
Corporation, Appellants,
v.
CITY OF SEATTLE, a Municipal
Corporation, Respondent.
No. 45156.
Supreme Court of Washington,
En Banc.
Oct. 19, 1978.
The validity of zoning enactments re-
quiring that adult motion picture theaters
be located in certain downtown Areas was
upheld by the Superior Court, King County,
Frank J. Eberharter, J., and theater opera-
tors appealed. The Supreme Court, Horow-
itz, J., held that: (1) the ordinance was
fully adequate to give operators notice of
regulated use, and they had no standing to
challenge it for vagueness; (2) the opera-
tors had no standing to assert First Amend-
ment rights of others so as to challenge the
ordinance for facial overbreadth; (3) the
theaters !tiled to establish that the ordi-
nance was impermissible prior restraint on
protected First Amendment speech, in view
of a finding that the ordinance did not have
any significant deterrent effect on exhibi-
tion or viewing of such films; city's most
Important interest in regulating use of its
Property for commercial purposes was suffi-
cient to justify such zoning regulation; (4)
there was reasonable classification, not vio-
4tive of equal protection, by the ordinance,
•ad (5) the ordinance was reasonable, not
denying due
w r='a process of law, insofar as Ler-
1153
minating all nonconforming theater uses
within 90 days, in view of the fact that the
theater'' were not bound to show adult
films as opposed to any other type of film
and did not come forward with any clear
evidence of economic harm.
Temporary injunction dissolved, and
judgment affirmed.
1. Municipal Corporations 4=1'121
In action for declaratory judgment,
brought to challenge constitutionality of or-
dinances which required all adult motion
picture theaters to be located in certain
downtown areas, trial court's refusal to en-
ter plaintiff theaters' proposed findings was
not. error where the same were either un-
supported by the record or were not related
to ultimate facts concerning material issue.
2. Constitutional Law 0=18
It was not necessary to construe provi-
sions of State Constitution identically with
corresponding provisions of Federal Consti-
tution, but, where appropriate, court would
apply general rule that language in State
Constitution be given same interpretation
as that given federal constitutional provi-
sion by the United States Supreme Court.
U.S.C.A.Const. Amends. 1, 5, 14.
3. Municipal Corporations X594(2)
City ordinance definition of adult thea-
ter use, being identical in all relevant re-
spects to definition upheld by United States
Supreme Court, was fully adequate to give
notice of regulated use, and complaining
theaters which showed adult films almost
exclusively and claimed no desire to show
any other type of film had no standing to
challenge ordinance for vagueness. U.S.C.
A.Const Amends. 1, 5, 14.
4. Constitutional Law X42.2(1)
Special rule giving standing to one
whose own rights are not violated to chal-
lenge ordinance for overbreadth applies
only if deterrent effect of ordinance on
protected First Amendment speech is both
real and substantial and if ordinance is not
easily susceptible to narrowing construc-
tion. U.S.C.A.Const. Amend. 1.
1154 Wash.
585 PACIFIC REPORTER, 2d SERIES
5. Municipal_ Corporations 4-121-•
Theaters showing :adult filmsliarfio
standing to assert First Amendment .rights
of others, to challenge city ordinance for
official overbreadth, when; ordinance,
which required location of such theaters in
certain downtown areas, was found by trial
court not to have any significant deterrent
effect 'on exhibition or viewing of adult
motion picture films and where any lan-
guage in ordinance which was uncertain
was readily subject to narrowing and con-
stitutionally sound construction. U.S.C.A.
Const. Amend. 1.
6. :Constitutional Law e990.1(6)
Theaters showing adult films failed to
establish that city ordinance restricting' 10 -
cation 'of adult motion picture theaters to
certain downtown areas was impermissible
prior restraint on protected First Amend-
ment speech, in view of finding that ordi-
nance did not have any significant deter-
rent effect on exhibition or viewing of such
films; city's most important interest in reg-
ulating use of its property for commercial
purposes was sufficient to justify such zon-
ing regulation. U.S.C.A.Const. Amend. 1.
7. Constitutional Law p240(4)
In view of fact that city ordinance reg-
ulated only place where adult films could be
shown and in view of city's great interest in
protecting and preservi..g quality of its
nei hborhoods through effective land -use
planning, there was reasonable classifica
tion, not violative of equal protection, by
ordinance which required adult motion pic-
ture theaters to be located in certain down-
town areas. U.S.C.A.Const. Amends. 1, 14.
•8. Municipal Corporations a=43, 63.1(2)
City's Tannin efforts must be accord-
ed sufficient degree of flexibility or exper-
imentation and innovation. and court can-
not substitute itsjdgment of what would
'-be most effective method of regulation in
such regard.
9. Municipal Corporations e=594(1)
City's power to regulate location of
adult movie theaters was not dependent in
any way on existence of possible waiver for
existing theater locations, nor was there
any showing_#hat>operatorr of _existing the,
aters were constitutionally<:entitted rto ex-
emptions from zoning `restriction 1i case
before the court, and thus no constitutional
deficiency in such regard was shown. U.S.
C.A.Const. Amends. 1, 14.
10. Zoning a=.231
Calculation of reasonable termination
period for zoning purposes depends upon
facts and circumstances of particular case,
and equal protection analysis does- not ap-
ply. U.S.C.A.Const: Amend. 14.
11. Constitutional Law X296(2)
Ordinance requiring that adult motion
picture theaters be located in certain down-
town areas was reasonable, not denying due
process of law, insofar as terminating all
nonconforming theater uses within 90 days,
in view of fact that theaters were not
bound to show adult films as opposed to any
other type of film and did not come forward
with any clear evidence of economic harm.
U.S.C.A.Const. Amends. 1, 5, 14.
Victor V. Hoff, Charles S. Stixrud, Seat-
tle, for appellants.
Dona M. Cloud, Asst. Corp. Counsel, Seat-
tle, for respondent.
HOROWITZ, Justice.
The issues raised here involve the validity
of two Seattle city zonin ordinances which
have the effect of
.74
ar eaar.'ana= etfgrming•; .
theater,' u w0mi',90:r clays:, The three
Seattle theaters prohibited from showing
their normal adult fare at their present
locations by these ordinances challenge the
constitutionality of the zoning enactments
in this declaratory judgment action. The
court below heard extensive testimony at
trial and upheld the validity of the City's
action. We affirm.
The amendments to the City's zoning
code which are at issue here are the tnhm1-'.
nation of a long period of stndy;and alit -' .
•
DOC.
INDEX
1
NORTHEND CINEMA, INC. v. CITY OF SEATTLE Wash. 1155
chess, Wash., 333 Pad 1133 - - —
•
C... + The Planning Commission subse-
quently voted to recommend that the City
zoning code be amended to confine adult
theaters to downtown areas and phase out
nonconforming uses. The Commission op-
posed any conditional use plan for other
zones.
The neighborhoods in which the three
appellant theaters are located have a dis-
tinctly residential chara
1 cal resident protests against the opening
of such a theater in the Greenwood district,
the City's Department of Community De-
velopment made a study of the need for
zoning controls of adult theaters at the
request of both the City Planning Commit-
tee and the City Council Committee on
Planning and Urban Development. The
study analyzed the City's zoning scheme,
comprehensive plan, and land uses around
existing adult motion picture theaters. Of
the 46 motion picture theaters operating
within the City, 13 showed adult motion
pictures exclusively, or almost exclusively.
Tett of those 13 were located in downtown
areas where such uses are now permitted by
the challenged ordinances. The other three,
the Ridgemont, the Northend, and the Ap-
ple Theater, are in areas outside the desig-
nated zones which are characterized by resi-
dential uses. These three theaters show
"x -rated" films almost exclusively and dis-
play advertisements indicating the nature
of the films on the theater marquees or
fronts.' The Department's study concluded
that zoning action should be taken to con-
fine adult motion picture theaters to down-
town Seattle, and recommended that a con-
ditional use approach be adopted for adult
theaters in other areas.
The Department's study and recommen-
dation were taken up by the City Planning
Commission, which held public meetings
and a joint public hearing with the City
Council Committee on the subject. Al the
public hearing Greenwood residents. spoke
of their concerns regarding the deteriora-
tion of residential neighborhoods that ac-
companies location of adult movie theaters.
The concerns expressed were very specific
and included .the at,;`�; ort,,., pof •transients,
l? 'kiisg i• d:, ic. 1ems :
increased
crime, decreasing�-propdai values . and- in -
The Mel court found: Films rated "X" are
identified in the Code of Self Regulation of the
Motion Picture Association of America as "pic•
Laren submitted to the Code and Rating Admin-
istration which , . . are rated X because
of the treatment of sex, violence, crime or pro-
fanity."
:witii _pai!en :Peapo �l� 4or `t
reenwood community, in which the
Northend and Ridgemont are located, has
been the subject of major development
plans for years. Millions of dollars of de-
velopment funds have been invested to im-
prove the quality and conditions of the com-
munity. Ongoing, projects include im-
proved sidewalks, lighting, and traffic con-
trol, and a new shopping mall. The First
Hill Community, in which the Apple Thea-
ter is located, has not been the subject of
such elaborate development plans, but has
received substantial funds for neighborhood
improvement and is designated a residential •4
area in the City's long range plans. In
short, tFi O4l'tol~i' :{�l ..r°. �
zonfrieMeTihinix
:Roe
, ' ntial�. t' nt�ttnieig}t;
b orlioods; aswspecifical]y found by the court
Below, • A secoi�dirld:related goal, the court
found was to
frbn a }
sive and. de tumannan influence. y
octttio>jyof adult.moveaters In' residen-
NiY•.t..: ..
tial areas. These goals are an integral part
of the City's long-range land -use planning
effort.
Thus in May and June of 1976 the Seattle
r City Council amended the Zoning Ordinance
with Ordinance 105565, enacted on May 28
. and effective on or about June 27, 1976, and
The advertisements generated by these thea-
ters and the displays on their marquees and
fronts indicate the film fare therein is sexually -
explicit end exploits a market for the shocking
and bizarre sexual experience. The films are
one sequence of explicit sexual activity after
another, almost completely uninterrupted by
any plot.
DOC.
INDEX
It
1156 wash..,:, 585 PACIFIC REPORTER, 2d SERIES
inane 1Q5584, enaeted'.tlune`7 and.-.ef-..
dectiveennor about July 7,--1976.- The com-
-•. Appellants make three constitutional ar-
holed effect of the 'rdrnances is to •,
Yt
f
a ` ''-4- t pit'''li•:f-4.•,r,.,
.-...:t.
•. ,•
;..y:
'•rbc.'.'.. r�i).v .:•+h�`�-•3::%fS,kiC ..
S.1 Y i ..O v:L... 1 ._.ilii ". • e
an• area compnsing t e permitted zones is
approximately,,250 acres. No provision is
made. in the;oidinanees for conditional uses
in'_other zones:
[1], 'At,,the trial on appellant theaters'
declaratory judgment action the court
heard `extensive testimony regarding the-
'history- and purpose of these ordinances?
,It,heard expert testimony on the adverse
effects of the presence of adult motion pic-
ture theaters on neighborhood children and
community improvement efforts. The
court's detailed findings, which include a
finding that the location of adult theaters
has a harmful effect on the area and con-
tribute to neighborhood blight, are sup-
ported by substantial evidence in the rec-
ord. Its refusal to enter appellant Apple
Theater's proposed findings was not error,
as .these were either unsupported by the
record, or not related to ultimate facts con-
cerriing a material issue. In re Kennedy, 80
Wash.2d 222, 492 P.2d 1364 (1972).
The central question raised is whether, in
view of -these facts, the action of the City in
creating the adult motion picture theater
use and confining that use to certain zones
within the downtown area is constitutional.
A. second question is whether the City may
constitutionally impose a 90 -day termina-
tion period on nonconforming uses. We
answer both questions affirmatively, for
the reasons discussed hereafter. We turn
first to the constitutionality of the creation
and confinement of the adult motion pic-
ture theater use.
" gumenta against the Seattle zoning provi-
sions. First, they claim the definition of an
adult motion picture theater is so vague as
to deny them due process of law. Second,
they claim the confinement of such theaters
to designated zones is an impermissible pri-
or restraint on protected First Amendment
speech. Third, they argue the classification
of theaters based on the content of the
films shown there violates First Amend-
ment and equal protection guarantees.
[2] In response to these contentions we
find the decision of the , iced tates S
2. in view of the extensive record developed at
the trial of the City's planning studies. meet-
ings and hearings. we find the Clcy has fully
sustained its burden of demonstrating the con-
ditions and need for its zoning action. Appel -
427 U.S. 50, 96 S.Ct. 2440, 49
L.Ed.2d 810 (1976) (hereinafter referred to
as Young) dispositive. In that. case the
court approved the creation and definition
of an adult theater zoning use identical in
all relevant respects to the Seattle zoning
use. It also approved regulation of location
for that use. Although appellants argue
the .Seattle ordinance differs from the De-
troit ordinance, those differences do not
have constitutional significance, as dis-
cussed below. We need not, of course, con-
strue the provisions of our, state constitu-
tion identically with the corresponding pro-
visions of the federal constitution. Darrin
v. Gould, 85 Wash.2d 859, 868, 540 P.2d 882
(1975). In this case, however, we find the
reasoning of Young persuasive. It ac-
knowledges and accommodates the impor-
tant interest of the state in exercising its
police power to protect city neighborhoods
against degradation, while preserving the
democratic principles the constitutional pro-
visions were designed to protect. We
therefore find it appropriate to apply the
general rule that language in our state con-
stitution will be given the same interpreta-
tion as that given the federal constitutional
provision by the United States Supreme
'ant Apple Theater's objection to'the record in
this regard is unfounded. See Parkridge v.
Seattle, 89 Wash.2d 454. 573 P.2d 359 (1978).
See also Abbenhaus v. Yakima, 89 Wash.2d
855, 576 P.2d 888 (1978).
DOC.
INDEX
NORTHEND CINEMA, INC. v. CITY OF SEATTLE Wash. 1157
Cpe rS Wash, gas Pad 11 ft3
ourt. Sec Noosing Authority�_v.. la s-Nof_ the;_r_cetlated use, and they have no
,1 W ash.2d- _732, 734,: 557 - P -.2d42_1 ilg75 _ sstandingT to. `_challenge-it=forLiagueness
=Young, supra, 427--U—.S.-at 59, 96:&-CL::24-41t-'.'
A. Vagueness
[3] Appellants' first argument is that
Fe definition of Adult Motion Picture The-
er (set out in the margin ° ) is so vague as
) deny them due process of law. They do
t attach the included definitions of "Spec -
led Sexual Activities" or "Specified Ana-
mical Areas," but argue they are not ade-
uately informed of (1) how much "depict -
kg, describing, or relating" to the specified
yeas is necessary before a film is "distin-
vished or characterized by an emphasis"
ereon; (2) what "depicting, describing or
elating to" means; or (3) how frequently
uch films must be shown before a building
s "used" for the purpose.
We note at the outset that the definition
f adult theater use contained in the Seattle
)rdinance is identical in all relevant re-
Ipects to the definition upheld in Young.'
urthermorc, as in Young, the complaining
.heaters show adult films almost exclusive -
y. They do not claim they desire to show
m ocher type of film. Therefore, the ordi-
ance is fully adequate to give them notice
T. Ordinance 105565 Definition of Adult Motion
Picture Theater (§ I)
"An enclosed building used for presenting
motion picture films distinguished or charac-
tenzed by an emphasis on matter depicting,
describing or relating to 'Specified Sexual
Activities or 'Specified Anatomical Areas',
as hereinafter defined, for observation by pa-
trons therein:
"'Specified Sexual Activities' "
"1. Human genitals In a state of sexual
stimulation or arousal;
"2. Acts of human masturbation. sexual
intercourse or sodomy:
"3. Fondling or other erotic touching of
human genitals, pubic region, buttock or fe-
male breast.
"'Specified Anatomical Areas'"
"I, l..ess than completely and opaquely
covered:
"(a) human genitals. pubic region, (b) but-
tock. and (c) female breast below a point
immediately above the top of the areola: and
"2. Human male genitals in a discernibly
turgid state. even if completely and opaquely
covered."
4. Adult Motion Picture Theater
(4,5] Nor do appellants have standing
to assert the First Amendment rights of
others and challenge the ordinance for fa-
cial overbreadth. The special rule giving
standing to one whose own rights are not
violated to challenge an ordinance for over -
breadth applies only if the ordinance's de-
terrent effect on protected First Amend-
ment speech is "both real and substantial"
and the ordinance is not easily susceptible
to a narrowing construction. Eranoznik v,
Jacksonville, 422 U.S. 205, 216, 95 S.Ct.
2268, 45 L.Ed.2d 125 (1975). We are not
persuaded those elements are present here.
First, there is no evidence that the effect of
this ordinance will be a subatantial deter-
rence to protected First Amendment
tit or stgnl scan£ y in 'if 'ewers rum
gaining access to the films. The court be-
low specifically found the ordinance does
not have any "significant deterrent effect
on the exhibition or viewing of adult mo-
tion picture films? Second, any language
"'An enclosed building with a capacity of SO
or more persons used for presenting material
distinguished or characterized by an emphasis
on matter depicting. describing or relating to
'Specified Sexual Activities' or 'Specified Ana-
tomical Areas.' (as defined below) for observa-
tion by patrons therein.
"For the purpose of this Section, 'Specified
Sexual Activities' is defined as:
"I. Human Genitals in a state of sexual
stimulation or
"2. Acts of human masturbation. sexual in-
tercourse or sodomy.
"3. Fondling or other erotic touching of hu-
man genitals. pubic region. buttock or female
breast.
"And 'Specified Anatomical Areas' is defined
as:
"1. less than completely and opaquely cov-
ered: (a) human genitals, pubic region, (b) but-
tock, arid (c) female breast below a point imme-
diately above the top of the areola: and
"2. Human male genitals in a discernibly
turgid state, even if completely and opaquely
covered."
5. Since we hold the ordinance does not place.4
substantial burden on First Amendment
DOC.
INDEX
•
•
•
•
1
1
1
1
1
1
1
1
1
1
1
1
115$ Wash. 585 PACIFIC REPORTER, 2d SERIES
n -the ordinance tvhich•is uneertain .is xeatii
• _ J subject to a narrowing afs l =e nsti[iition='
ally sound` consruciion: These' conclusions
• =
accord with those of the court in Young
under substantially identical circumstances.
Appellants' due process claim must there-
fore be dismissed forlackof standing
ryB. Prior Restraint
.[6] Appellants next argue the ordinance
is, an impermissible prior restraint on pro-
tected First Amendment speech because it
prohibits the screening of nonobscene films
e., protected speech) outside the desig-
nated ,zones.
As pointed out above, appellants make no
showing that the market for distribution
and exhibition of these films is in fact re-
strained under the ordinance.
7C gt u wu
0'''
[x • .l• doa • �a. e.. • > seer ithe-
-1?9 „ ti ud low arm, ;s t
tto,4gvltritipe eat, this��i cg�s� any hurt en on' ,
the'.aduli movie market,: •
C. Classification based ofhCoa.lent; ="'""
[7] -The-final-objection made to the con-
stitutionality of the zoning scheme is that it
classifies theaters on the basis of the con-
tent of the films shown, and treats adult
movie theaters differently from other thea-
ters showing films protected by the First
Amendment. This, appellants claim, vio-
lates both the First Amendment and equal
protection guarantees.
The United States Supreme Court, con-
sidering this argument in Young, departed
from traditional First Amendment jurispru-
dence and upheld both the classification of
films based'on sexually explicit content and
the different treatment accorded the thea-
ters showing them. The majority in Young
did not reach agreement on a rationale for
this result, but two elements appear to have
been dispositive. We find those elements
present here, and are persuaded the Seattle
scheme does not deny or infringe on the
rights of free speech and equal protection.
tit. ,.element . 4p� tj� '
•
has; •only. a slights:. an ; neutr a ect 'an
i o eked a
p peech.� No real restraint or de-
torrent effect -iso evident. The ordinance
regulates only the place where these films
can be shown. it demonstrates a reasona-
ble decision that the public welfare is best
served by having this particular type of
. speech take place only in certain ureas of
the community. The ordinance thus re-
mains neutral regarding the content of the
films ---it neither approves nor- disapproves
of that. content, and neither promotes nor
inhihits exhibition of the films s
The second element is the City's great
interest' pit protect rig: and; preserving the.
quality -o1' its 'neighborhoods through effec
tive land -use planning, The record demon-
• , ti N+�t u„,. ,.,.y.a a, eel ;�. view
Under these circumstances, 'here there
is no restraining effect on the market, and
no substantial deterrent effect on individual
rights of free speech, the City's most impor-
tant interest in regulating use of its proper-
ty for commercial purposes is clearly suffi-
cient to justify the zoning regulation here.
We'conclude the zoning regulation of loca-
tion of adult •movie theaters is, a ieasonaole
regulation of place for First Amendrnent
speech which does not violate First Ame
'fnd-
ment reedoms. See Young, 427 U.S. at
page 63, 96 S,Ct. 24-10. The different treat-
ment accorded adult movie theaters as dis-
tinguished from other types of movie thea-
ters is a different issue, which µc discuss
nex 1.
speech. no presumption of unconstitutionality
is raised Appellants" argument the ordinance
is presumptively invalid must therefore Fre re-
jected Nor newt the Cay choose the least
reslricnve alternative available to accomplish
Us purpose as alleged by altpi•Itants• since
there is nu substantial burden nn free Speech
6. Four of the justice~ in Young reasoned thin
society has less interest in protecting sexually
explicit expression than other types of protect-
ed speech. This reasuning•is not essential to
the result reached, and we do not adopt it as
the basis for the result reached here. We note.
moreover, that our decision is confined in its
effect to regulation by zoning of sexually eN:
plica speech in films under the particular cir•
cumstances of this case.
1
1
1
1
1
1
1
1
1
1
1
1
1
1
NOHTIJENO U1N1-..1A, INC. v. CITY OF SF-TTI.K. -''tr'ash. 1159
. .. k;.,..,...wash45/4%r.2‘1115:1
:•.trai.‘”4 tlii• (ry'-. sincurc and -iistainvii ef 'sting thratcr locations Th: 1.)t.trort ll ;tit.-
ft,r; to cnhance and Aripro,,e !lic !plaid.) of er pro ision Iihvicise IL '1 no part in thc
in Seattle. Zoning- is an cNircinciy ini- reasoning of ilimajori:y in l'oung. Nor is
p,,rtant :mil 1-r acha.: nig land-ic2c e-oi,k in there any showine thi, apiK.11ants are consti-
a mitniciim:il. Svc Vil!.ugt• of ;iciie, Torre Loimri;dly untilloo ip evornptions :pin the
i !kir1 _ 4 1 ti.. _.1.1.ii ._1....-91, .St.t1113e-,-,-.4ill'f;77-7.-thning
1-797.(19-141.• rh-us -1.1i'l .'.Iyi,:i.,int.t.'ir-- - Appel:oils
est in attempting to pri•st.r, 1. tilt` till:1111y iir N111ultona1 deficiency m this regard.
krtian lif, is one :bat must lia• aceordvii high
We conclude the city's paramount inter-
S.Ct. .it 2-153
r-spi.4•1 - Youn,Lnitri,r,t, 421' I S. at ;1, %a..6_1,715:n0...!..:,:e:e•Lein•z-..,,-17,e6s.:, ...,.erving, adimproving
, " 4. • tYS'0"citaric ter ant ciii:i/ity'bi'lts'Yesidential' •
:4 ,,,,,,,, &
the: perPese ei ' tee- :1 neigh ti.4;76."'n'txis is suf f iliiiit'terilai tt ts
•,, •
ordinEge. is i:tot to .rezu tate ' the con rit o ,..' rignetiiserirrina tory. zoninktteura.‘Oon Cr tilt_
_so., ,,.„.,. -...,..L....,4,,,,,,,,,,i,•,.;,.;,44,4-047.7„aa,,, •,/2-,1. 6 ..41,•.:t.....-..c.........-
spech.:::.._Contra:g..to the assertione4 et„ . ..„ ,,,,..n nrZtilri?riotietireittrierit-7,.: fi'n'tl
*"".--,..,_,_""Vt. -,-,:r.--:,., , ..- - , ••:-.-.7-.... ‘,-....-1....,,,,,,r„. ,,,.
/IQ VVItnIni;"7"rrrst -A.'",',TL;ri7F,Thri4,7:A`in- eilula
, - .441v. . -
fo'rrrido teertsorsnijks"'Tfirtd4L4-o.....fjq... j'atte-r= protection gu:tralltees
WItgi• .0......., 7P.
VirnOrtr 7.1* ,inCtliiiii'''iLiALI f44.et:11.4*-1' - \ye ihervfore turn to the final ssilt
iiiiiire.Mov.irfleftte .3t.„,iiiapLzAitcv."---•-ii-fe-sfMlitia ,'... , . 1 t t t , 1 • f tl , ),.„.
--ne4-4,, •
:94"Mr 000s tt ev,hien 'is -more -I an., • • • ..
dresenter . I..ie const, u lona it3 o .it 1
a.;:t..4tO-Stipport"t he IfindinLsirlow:that -..-.. ,,,,,vithir, f.,10
vlsinn fur terminiLion of noncsinforming
the; ' l'oriheiet.ina.hee pggerve-th ....
............,se.V. •
ehltra. rs....anlitIcLu4rt;:orrsr Tent trrre.-"."4:irt.i..4...
tha I,:
[] The choice of mho lit: ('r locating -
:v{414 r0f,vie theaters, :hat is to conci,titraly
(renn the ILJ1f arcus of • ht. rit,
er than ilkper.:-Lt 'hem las dill th..• Detroit
rad:a:am:is.). a. not of constitutair...1
Tne p 0•Ining qiust Ile
4.:(•erplt,1 a soff.cwr.1 ,It -gree
rim..ntaLion
;."t 71, 73, 95 S rt.
ran not ;oil -taut'. ou- :tabznicn of tk hal
kk1/..ill LI% 111•11,1, nit -,1111.1 re-
in this rcgia-i! also
nr. LeI Lila :1:1: ma jor: in 'peel f .ea 1-
1:.
approi :1: tin n tra an -1 nod
Youni,r. supra at. Q. 71, ..11; S.(
[91 •A,• flrid Et s4..t.lit'ci an: that
:Ile Detroit ordinants ?iolirid 11
a pri1. ruin atli,15 1112 r 111. on 11-
r.11:11V I-v.471'1'00n t 1'1:t.' 1.)10 ordl-
nar.re (ica. not Otir vont:P.1,nm that t!:i
Cit.! May rc;rulaii. 'n? Ineatio7. .if aduit.
1, ,,„: in ;irl:. way
c.n the t xis:A-two of ob.., rt•x•
7 Thy trilert• ,t prtivt. tmg
cl..1!,:ser. A .1 J.0,11Et, allUn :,`•
W1.1 lit .11 .1
ti'br hitt,'41 ott tt:t. •••,t 1.11.1 ..1 .1-.1 tf.1/1.7
J.1( k..mit /Re% 4:".t. •!! t Ci
11
Appc!lunte contcr.41 the 9u-liay tertr.ina-
tlon pfl/Nr 1:4011k tht ni ...qua) protection
in that nu other nonconforming. nse must nt.•
tvrminatet: in surit 1 hort pi-riod. and' ile•
;tics them iiue process }iv rrt•ating an
mimic harcIsliiii 00 twrighing the public ti,n-
(*fit to 1, gainctl 1;. er11{Inilt1111i
1101 11; Iht. equal
0reltrnt-11, :111pC1111:11.1: rail 10 Show thcy are
similarl:, situated with other noneonforn.-
Ina J-4...rs This is particularly e' 1110711 he-
caiise TaltulataIti of .1
nation pori(01, 01:
0/1 till- and circona-tanci-s Lhu. par-
ticular ca- Since cat h .lvtor-
rninuil on its okk n IlItFit., th‘ 1,11101, proloc-
t:un 311:41.0-1 C10ez.. 001 11pp;:1.
11 St:,.iaron. 51 Wt,h21
5.11, 112 P 2.1 'it/2 (1959) tiii$ courl raw-
nized the powvr or 0 :nlInicipality Li i require
ter-min.:tier) of nonconforming use •4.1.1iin
Rilson.112:e pt. rind iir ‘A'e atinibto:
balancing it.st Li •!,-Lt-rrnim tho rotc-rinald,
.2l1- 45 I. 1:11.2(1 125 t ;PT:»
ho‘ve•cr 17011 ihe pa:1ur11:11 nei.d.2 .11 riiiii!rvn
Jre elymeitt LI 1 dt.tcrirantrg the
quAltt., 111 .1111i111 1S:1.411:1.11 Ile0.11101'hf.01.),
•
00
114./
•
DOC.
INDEX
0.
1160 Wash. 585 PACIFIC REPORTER, 2d SERIES
ness of the termination period, that is,
whether the harm or hardship to Lhe user, _
outweighs- the benefitto the publico be
gained from termination of the use. ' Seat-
tle v. Martin, supra at 544, 342 P.2d 602.
As pointed out above, this test is applied on
a case-by-case basis, looking to the circum-
stances of each nonconforming user. Ap-
plying this test to each of the appellants
here, we conclude the 90 -day termination
period is not unreasonable and does not
deny appellants due process of law.
Northend Cinema, Inc. has the license to
operate the Northend Theater. The evi-
dence at trial showed the owner and lessor
of the building is an officer of the corpora-
tion.
•
V is -tri -..a• Yet r.acs ..,,+
es. ere ore, 'r o en• is not ..and
by any lease obligation to remain at its
present location. NO is it bound by its
lease or its license to show adult films as
opposed to any other type of film. Fur-
thermore, whatever costs it has expended
for improvements to the building or neces-
sary equipment have either been completely
recovered through depreciation or were con-
templated to be left as properly of the
lessor.
Gaiety Theaters, Inc., operator of the
Ridgemont Theater, is similarly situated.
Its lease is Lhe individual obligation of its
president, and does not bind the corporation
to remain at its present location. It is not
bound by its lease or its license to show
adult films. Furthermore, it has expended
no funds on physical improvements.
Apple Theater, Inc., is the lessee and op-
erator of the Apple Theater. Apple entered
into a new 3 -year lease just prior to
adoption of the ordinance, and while public
hearings were being held on the proposal.
It is not obligated by its lease, or by its
license, to show adult films. Furthermore,
all costs it has expended in improvements to
the building or necessary equipment have
either been recovered through depreciation
or were contemplated to be left as property
of the lessor.
In the face of these facts, the court below
_found appellants had not co__me forward
with -any, clear -evidence of economic herrn.'
The main thrust of their objection, that
simply having to move W another location
or show a different type of film is substan-
tial economic harm, is unsupported by any
clear evidence. The court had a right to
conclude that appellants' allegations they
will suffer economic harm were speculative
at best.. The record thus supporta the find-
ing of the court below that Northend and
Gaiety will incur no economic damage, and
Apple will incur no clear economic damage,
by enforcement of the ordinance.
..i!ft
y� triJ'rV 4:
This . •nefit is we supporte. .y t record.
We conclude the benefit to the public
through termination of these uses within 90
days outweighs the harm appellants will
sustain thereby. The termination period is
reasonable, and appellants have suffered no
violation of due process.
We are mindful that this ordinance was
passed in 1976, A temporary injunction
against enforcement of the zoning restric-
tions pending this appeal has allowed appel-
lants Lo continue normal business operations
in the intervening months. Much more
than 90 days' time has elapsed. Appellants
have therefore had more than ample time
to prepare for the contingency of having to
terminate their present adult movie theater
use.
The temporary injunction is dissolved and
the judgment below is affirmed.
WRIGHT, C. J., ROSELLINI, STAF-
FORD, UTTER, BRACHTENBACH, DOL -
LIVER and HICKS, JJ., and PRICE, J. pro
tem., concur.
DOC.
INDEX
# D--
1
1
1
1
DES MOINES
ADULT USE STUDY
1
1
AUGUST 1984
1
1
1
1
Robert W. Thorpe. A1CP
R. W. Thorpe & Associates, Inc.
Seattle / Anchorage
DOC.
INDEX
# D-
TABLE OF CONTENTS
I.
Pane
SUMMARY OF FINDINGS 1
; RECOMMENDATIONS..
III. INTRODUCTION 7
A. State Lax
B. Local Law
C. Literature
1. Strom - Zoning Conti 1 Sex B_ugtneAnes
2. Tower - Regulating Sex Businesses
3. Weinstein - "Regulatory PornograohY
4. City of Kent - Adults ,Rat Zoniing Study
IV. REVIEW OF LITERATURE AND ORDINANCES 9
1. Detroit
2. New Orleans
3. New York
4. Seattle
5. Auburn
6. Blaine
7. Kirkland
6. Renton
V. SITE VISITATIONS 13
1. Seattle - 2nd and Union
2. North Seattle
3. Renton
4. Bremerton
5. Aberdeen
6. Redmond
7. Des Moines
VI. IMPACTS 16
VII. ZONING APPROACHES 19
VIII. CONCLUSIONS/RECOMMENDATIONS 21
DOC.
INDEX
R.W. Thorpe & Associates
Planning • Environmental Analysis • Economics
August illf9161k1
1984
1
1
1
Mr: `Stan :McNutt— ,—_
City Manager
City of Des Moines
21630 11th Avenue South
Des Moines, WA 98188
Associate*:
Deborah Krouse, APA
Kathryn Figon, ASLA
RE: Independent Planning Consulting Report on Adult Uses in the City of
Des Moines, WA
1 Dear Mr. McNutt:
1
1
1
1
1
1
1
1
1
1
1
1
1
SUMMARY OF FINDINGS;
At your request, we conducted an independent study for recommendations to
the City Council concerning policy directions to be undertaken by the
Council relative to adult uses within the City. As you and the Council are
aware from our previous efforts on the Revitalization Study, we are
tamiliar With the community, the citizens and the character of its business
district.
Our study set forth to look at adult uses and consider the following
elements:
1. Zoning Study
2. Land Use Impacts
3. Impacts on the Revitalization Plan
In order to do this we set forth the methodoloy with steps including the
following elements:
1. Reobservation of current land uses within Des Moines, with particular
attention to the Revitalization Area, existing land uses and the
potential for additional adult uses within the Revitalization area.
2. Review of studies, reports, and technical documents on adult uses by
various communities, professional organizations such as the American
Planning Association, Trial Lawyers Assooiation, City Manager's
Association, etc.
3. Court cases and case studies on other communities experiences in
providing areas for this use within their community while controlling
the impacts on certain elements of the citizenry, particularly
children.
4. Diseussion with other city offioiala who have been involved in the
reviews of this type of use within their communities.
5. A review of the record of the hearings by the City Council on this
matter in Des Moines.
6. Site visits of areas that have adult theaters, bookstores, and similar
uses in other suburban communities in Western Washington an well as
downtown Seattle.
DOC,
1 INDEX
Seattle. 1315 Seatcre rawer • 3ro b Unrvere,cy • Svetcte WA 28301 • (208) 9 # D24.6239 ^ 1
Crr-f,frwrfw .Rt 1.•4 +.nom • - . r1 t•/a6� c ��� 6- n•+. . • K bPCr•v? • Of"'-• ',1C
Oq� a
1
1
1
1
1
1
i
Hr. Stan McNutt
August 1984
Page Two
Our efforts were concentrated in May -July to review these items listed
above. Hoyeverr_it_.is_complemented by my 8 years of occupying office space
- `-att3rd- 3 -Univer-sity- i n Seattle, - wrhere_by 1 have observed land use `impacts of `
-= `ad=ult-types-uses"on 1st, 2nd and- 3rd Avenues near my office. --I also ave
observed the impact on adjacent land uses, signage, street treatment, and
the general character of the urban area. This effort was supplemented by a
review of locations such as Bremerton, Redmond, Renton, Northend Seattle,
Aberdeen, etc., to ascertain the general charaoter of land uses and the
economic impacts of adult entertainment in any given area of a Community.
Following further work efforts, a detailed report shall be provided the
Council in the near future.
However, some of the conclusions and observations may be appropriate. They
are as follows:
1.
There appears to be a definite impact on adjaoent uses by adult uses
in the Revitalization Area of Des Moines.
2. In terms of Number 1, there are, in my opinion, identifiable impacts
on the intent, goals and long term objeotives of the Des Moines
Revitalization Plan. Adult uses are acting at largely counter
purposes to the objectives of the plan.
3. In other communities, there has been an impact on adjacent land uses
do to either a single adult use •gr or a concentration of these uses.
The impaota occur on adjacent properties, reflected in deferred
maintenance, character of the area, turnover of rental properties,
etc.
4. A review of the cases such as those involving the pities of Detroit,
Boston, New Orleans, Los Angeles and other cities, from a laymens
viewpoint, indicates that a number of communities have approached
methods for addressing adult use:: through the zoning code, or through
other methods such as licensing. Some communities have tried to
respond to the need to provide for some locations to respond to the
real or pe. ceived demand for this type of use while controlling it,
eliminating its exposure to areas that have ohildren, such as parks,
schools, residences and other community activity areas, appears to be
the most coonsistent approach.
5. The standards utilized in dispersal of this type of activity by other
communities appears to be an appropriate one and more successful than
a concentration approach which appears more appropriate for a highly
concentrated urbanized area, if at all. However, the ¢ist-anoe
standard, be it 500 ft.,. 1000 ft., 1500 ft., 2000 ft., or whatever,
A, ooliFy that anoroori.ately pests with Ina legislative ,body el: the
City at peg Manes. However, some communities are moving towards a
1500 Leet standard and it may be just as appropriate as 1000 feet or
any other standard.
6. II aooears that t.11g. diseeesa1 method eliminating 130. adult uaea j , env
;ooation. with a minimum distance between. j .the most effective and
widely used method At Providing some zoning control these uses.
7. That the area most appropriate in the City of Des Moines for these
uses is not the Revitalization area (the business district) which is
surrounded in close proximity by schools, residential areas, parks,
aaeccge 615 Seecria Tower • 3rcf S Jl+•vers.cy •.Seactie WA BB 1 C • 12053 6$4.6239
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Mr. Stan McNutt
August 1984
Page Three
-playfieldi, etc., but rather Highway 99. This observation is
supported not only, for reanon-of--- obildren, but
-codOersely f6rno're-eatuaCeess'hi4otential users of these facilities -
from a state designated highway.
8. It should be noted that thia.etudyis.j,imitedlatitt.sonoelg-Inose
work „items Listed Above. There was no review of economic data,
vacancy rates, etc., of the area visited for an analysis of the
impact, but rather just utilizing a real estate appraisers techniques
to observe funotional obsolesence, deferred maintenance, etc" in area
immediately adjacent to the study areas.
9. And the study's observations Agloonclusions Are= based on moral .or.
obscenity iseues, that is they are specifically excluded from
consideration, but rather rat study focuses og impacts land. jase
economic pz urban teal= nature related j public bealth, safety and
welfare.
Respectfully submitted,
Robert W. Thorpe, AICP
RWT:mc
enclosure
1Writer is Institute of Real Estate Appraisers (MAI) Candidate.
Seattle
On =HIM
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El" M Seams • 3,0 5 an.vers,tv • Seetzle, WA 9E310' • 2C5 24-6235
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RECOMMENDATIONS
CITY OF DES MOINES ADULT USE
ZONING ANALYSIS
_
The following study is a revilfw--of available literature and analysis of the
impact on sites in similar communities throughout Washington and impacts
on the Des Moines Central Business District as well as a review of various
approaches in other communities. The review of over 600 pages of reference
material studies, court oases and transcription of public testimony leads
one to the conclusion that adult businesses are both by their actual impact
and their perception, distinguishable from other businesses in terms of
their land use impaots. They are further distinguished in terms of the
character of the product, and the service they are providing. This fact is
pointed out through detailed analysis in similar studies by various
communities in State of Washington in which this report is largely based,
as well as first hand observations. Adult uses may have adverse impacts on
surrounding land uses, business turnover, deferred maintenance, quality of
environment, and perception of the desire of people to frequent that area.
Various approaches have been utilized by a number of communities throughout
the State of Washington as well as throughout the country in oities such as
Detroit, New York, New Orleans, Denver, Seattle, etc. Although the
experience is mixed in cities nationwide and throughout Washington, zoning
has been utilized as one tool in containing, controlling or directing the
various impacts which adult uses may have, on a community's viability, its
opportunity for revitalization and the quality of lifestyle.
This study is an overview analysis of the regulation of adult uses in the
City of Des Moines and their impact on revitalization efforts that are on-
going in the City. The study includes a review of literature and a look at
six or more sites in the State of Washington for the impact of adult
businesses. It -reviews, in brief summary, the impact of ordinances in
other communities, zoning alternatives for mitigating the adverse impacts
and sets the ground work for analysis by the City Attorney as toadultuse
law and legal guidelines.
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The goals and purposes of the Des Moines CBD Revitalization have been well
documented through the Phase I and Phase II Study and completed in 1983 by
R.W. Thorpe & Associates, Mundy/Jarvis, the TRANSPO Group, and the Makers
with close cooperation of the _ entire city_ and. .businew.d-iatri.ct
tei%an_t.�-L o: tiers-.The_goala and-polic_1.4-,lithe=-eo mUdity-are further
identified in various planning documents such as the Comprehensive Plan,
Shorelines Master Program, Park and Recreation Plan, and other statements
of general community intent, direction and purpose. Through the use of
Subdivision Ordinances, Capital Improvements Program, and Zoning Codes,
these Comprehensive Plan and revitalization studies are implemented. It
appears appropriate that some of the adverse land use impacts of adult uses
are appropriately addressed through city policies, zoning code
requirements, design review and adult use permit approval procedures. It
may be summarized that some various approaches may be appropriate for the
City Council in its future deliberations on this matter. Some of the
alternatives or options may include:
Option
Do-nothing. Maintain existing review of adult uses under Ordinance 4641.
Option 2
Allow adult uses to continue or expand in the Revitalization Area along
Marine View Drive, and on Highway 99 in commercial zones, which are
separated from other uses.
Alternative 3.
Allow adult uses only in along Highway
99 where there is a minimum distance
setback from residential, religious, educational and recreational
environments,
OAtioQ =.
Limit adult uses to commercial zones provided that they have a conditional
use permit,
Although prohibition of all adult users altogether, may be perceived by some
as an option, the experience of review of all of the literature,
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ordinances, court cases and experiences, -is that this is not a viable
alternative and that some provision needs to be made for their locating
somewhere within the community while protecting the goals and policies of
_ : _ -the--Comprehensive ;Plan-- m e -rte -amready-Drell-positioned act .-vities,_ for-;
r.-eaidential, educational, --,recreational, religl.ouS and -other-pursuits.~
In terms of allowing uses, the question then may become one of two
approaches or a modification of the two:
a. Provide for concentration of the uses or;
b. Dispersal;
o. Modified concentration or dispersal.
The conclusions of this report is that Alternative C is more appropriate
with a standard set for a minimum distance, say 1000 feet (or some other
distance standard) from residential zones, churches, parks, schools, etc.
In order for,thia to be implemented, the City Council would need to direct
the Planning staff or the City Attorney to develop regulations for amending
the. zoning code and codeffication of that amendment to the City ordinances.
Also, goals and objectives would need to be part of the ordinance and it
would be necessary to include the following:
1. A definite distance for separation of uses.
2. Specific zones where the adult business would be permitted (Note: a
specific zone may be established' for this type of use).
3. Strict definitions of the types of adult uses be set forth in the
Code, with Fairly specific terminology and definitions.
4. That clarification as to whether establishments serving alcoholic
beverages or providing gambling would be permitted in the same zone.
5. Procedures for rezones, conditional use permits or special permits be
identified.
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INTRODUCTION
The Purcose And.5come .. rr_ W Zaging Studs.
Forthe-past beveral years there has been lengthy_ discussions within the
City of Dei __Mo1a - o=.tiie-merits^or: demerit:-of_`in-olusion of =adult .uses .
within the City of Des Moines. This was particularly brought to light
during the recent Revitalization Study where the impacts of these uses were
identified and considered as part of the goals and objectives with
improving and revitalizing Des Moines Central Business District. In order
to review this type of use, the City has set forth certain procedures
whereby the review of these uses shall be by an established procedure and
public testimony as taken as to their value to the community. Further, the
City has requested that a consulting planner, R.W. Thorpe h Associates,
Inc., review existing literature, the record of hearings before the City of
Des Moines, visit sites of various other adult uses, and provide a summary
report as the -impact of adult uses on those communities. The Study, as
with other communities, past and on-going study efforts establishes that
the impact Qg adult isea both, actual ln.terms gl,'_ ,hg imoact on adjaoent
uses and the community, as well gra nereeived. The focus of this Study is
to identify those impacts by site visits, explore how other communities
have provided for areas to respond to the demand for this type of use,
while at the same time, protecting the health, safety, general welfare of
the community and specific land uses devoted to residential, recreational,
education and religious purposes. The City of Des Moines has been
endeavoring to evaluate its current zoning regulations as to differentiate
the adult uses from general business activities.
The purpose of this analysis, the report to the City Council as authorized
by the City Manager at the direction of the Des Moines City Council to
determine if the testimony being received by the City could be supplemented
or complemented by a special study by a consultant planner with appraisal
background to ascertain the impact on the Central Business District
Revitalization Study, residential neighborhoods, religious uses,
and recreational facilities, in the community in general. If these effects
can be identified, the City may be able to utilize an analysis of those
impacts as well as the experience of other communities to devise methods to
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offset the adverse land use impacts through regulatory changes. One of the
methods utilized is that other alternate zoning approaches of other
communities will be considered in their broad range where their potential
polipationto the Kent community.
The scope of the study focuses largely on adult motion picture theaters,
and adult bookstores. However, because of the nature of the activities in
the Des Moines environment, particularly along Highway 99, north of the
city, the study also includes a cursory look at adult motels, massage
parlors, body painting studios, ahead shop&' and other similar uses. The
writer in reviewing other reports, particularly the Kent Adult Use•Study,
has chosen to exclude places
gambling establishments.
where alcoholic beverages are served and
Although a portion of the testimony given to the City of Des Moines centers
on a perception of whether adult entertainment is distasteful, immoral,
unethical, or disruptive, it Is not within the scope az this studv,
evaluate adult uses based upon moral 2r. pornoxrayhio terms. Clearly this
should be left to the advice of the City attorney and the courts. The
focus ,off this atudv i .lend ase impacts associated with adult uses, not
matters of personal discretion and taste or that of one individual choioes
of services or goods obtained.
In sum, the purpose of this study is to see if these uses can be located
where their impact, or be minimal to other elements of the community and
further that their impacts of the specific sites can be mitigated through
zoning regulations or conditional use approval processes.
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REVIEW OF LITERATURE AND ORDINANCES
In order to prepare for this summary report the author has reviewed over
—800 -pages of documen-t=sj,--Eirariscripts- tt at-Ifhave conducted as a -basis -for
public input at the City Council meeting, ordinances, and conducted six
"adult uses" site visits. This report is a summary of the writer's
observations and conclusions and is written with the intent that the
background data is available for public testimony or research information
for ordinance writing. The review includes a review of several documents
listed in the reference list at the end of this report. A brief review of
the State laws, the local laws, information available from American Society
of Planning Offioials, Presidential Commission on Obscenity and
Pornography, Land Use Law, Digest, and ordinances from several cities in
the State of Washington as well as review of State and Washington community
lava.
State Law
Based on our review of several local ordinances, their citations indicate
that regulation of adult businesses through zoning or businesses license is
part of the local police power. The federal and state laws address adult
publications and films but are not speoific in terms of administration of
the location of adult businesses. RCW 9.68.050 sets forth requirementa for
books and films to be labeled as "adults only" attempting to limit the
exposure to minors. The definitional section under this is as follows:
"Being patently offensive, upfronting contemporary community
standards, appealing to the prudent interests of minors and
sex and are utterly without redeeming social value."
Thus, persons under the age of 18 are attempted not be exposed to explicit
films and publications. State Law also provides for review of massage
parlors, under RCW 18.108 and topless dancing under the Washington Criminal
Code RCW Title 9A. Massage parlors prohibit minors working in such
activities and topless dancing and nude entertainment cover such illegal
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acts such as prostitution, indecent liberties, or public indecency.
)ashinxton State Communities Laws
A review of approximately 8 regulations within the State of Washington
shoals==..that-wart ue approaches are =used in regulating. The prlia r one
appears to be the zoning approach whereby the businesses are 1)
concentrated, 2) dispersed or 3) in a modified dispersal pattern at
specific areas designated on a zoning map.' In addition, several
communities have used licensing requirements, conditional use permits, or
general welfare provisions to regulate these matters. In summary, it
appears that most communities have taken slightly different directions
based upon public testimony, their advice of their City Attorney, and
Planning staffs reoommendations as to the regulation of adult uses and
their location. -
Most of the adult use ordinances have been adopted in the last eight to ten
years following public response and demonstration over the inclusion of
these land uses in various communities. Noteworthy examples are the North
End Cinema in Seattle (Greenwood), the Forbes Theater in Redmond, the
Forbes Theater in Renton, and the adult movie theaters in Bremerton and
Aberdeen. However, each communities zoning regulations differ somewhat and
those in Washington differ from national examples of Boston, New Orleans,
Detroit, etc. Seattle follows the Boston example of concentrating adult
uses throughout the commercial areas of downtown. The City of Redmond has
utilized an ap,,roach based upon the combinations of the court cases from
Detroit and Boston which sets up specific distance requirements in
designated commercial areas. The City of Jienton is following a similar
pattern in their ongoing court action with Forbes Theaters, use of the Boxy
Theater in downtown Renton.
Two key examples are Boston, which concentrates adult businesses in a small
zoning district located in the commercial oore, and conversely, Detroit.
The latter allows adult uses in designated oommercial zones as long as a
1000 ft. distance between each individual use is maintained.
The North End Cinema - City of Seattle (Wa 585 p.2d 1153) case provides
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some guidelines for zoning standards and the regulation of the adult
theaters, The Supreme Court of Washington in October of 1978 set forth the
following pointe:
=- *That-fthe ordinance was fully adequate to give-operat=orsnottee of`
regular use and they had no standing to challenge for vagueness;
2. The operators had no standing to assert the First Amendment rights of
others so as to ohallenge the ordinance for facial overbreadth;
3. The theaters failed to establish that the ordinance vas impermissible
prior restraint on protected First Amendment speech. In view of the
finding, the ordinance did not have any significant deterrent effect
on exhibit or viewing of such films; the city's most important
interest in regulating use of its property for commercial purposes was
sufficient to justify such zoning regulation;
4. There was reasonable classification, not violative of equal protection
by the ordinance; and
5. The ordinance was reasonable, not denying due process law, insofar as
determinating all non -conforming uaes within 90 days, in view of the
fact that the theaters were not bound to show adult films, as opposed
to any other types of films, it did not come forth with any clear
evidence of any economic harm."
The City of Blah,, Washington inoludes in its ordinance adult bookstores,
adult motion theaters, adult mini -motion picture theaters, and shoeshine
parlors, and sets forth the standard of minimum distance of 1000 ft.,
between each use and 500 ft., from any residential dwelling or rooming
unit.
The City of girkland. seta up a specific zone by an overlay district and
performance standards can be reviewed in a public hearing process. First
the property owner must apply for a rezone to place an "AES' designation on
the zoning map for the subject property. This requires a public hearing
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before the Planning Commission and final action by the City Council.
Requests must correspond to one of the City's commercial zones, The City
of Kirkland utilizes a standard of 1500 ft., away from the school, park, or
other establishments which caters primas iy to_ minora,,_ _.,-Xt_ can be proven
th'e-City Council has t i�rah`ac oa =taken -before :them. _This`
approach plaoes the burden of application and proof on the individual
proponent and providea•proteotion for those places Where young people
congregate such as schools, parks, and youth clubs.
The City of Mix, Orleans. utilizes a historic landmark district and
ascertains the impact on adjacent uses and the character of the area,
particularly as it applies to the French Quarter in New Orleans which has a
specific planned area with special development standards as does the
Revitalization Area in Des Moines,
It appears that the City of Des Moines zoning policies are being prepared
to differentiate adult uses from similar business establishments and
activities. That is, an adult movie theater would be distinguished from
simply a movie theater as far as existing zoning regulations are permitted.
This would be a step away from allowing adult bookstores to be treated as
general bookstores and, adult movie theaters as movie theaters as far as
the Zoning Code is concerned.
This type of adult use is concentrated on Des Moines Nay in the adult movie
theater and the adult movie bookstore, and in the past some small shops
selling materials that may be utilized in some people's viewpoint as drug
paraphernalia. The other area that appears that this'use might occur is
along Highway 99.
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SITE VISITATIONS TO OTHER AREAS
TO VISUALLY ASSESS THE IMPACT OF THE
INCLUSIQN_OF—ADULT USES IN OTHER COMMUNITIES
•
A review of the record of testimony by individuals involved in the
North End Cinema indicated that the property owners sited noise, late
hour use, vandalism, increased crime, and other faotors in their
concern about the nuisance element of this theater. Since the removal
of this theater, the intent to preserve the quality of the
neighborhood through effective land use planning appears to have been
achieved. Discussions with City of Seattle staff indicate that no
complaints,of the nature previously received have occurred within the
area of this theater.
2. Seattle: First Avenue ,end 3rg. Avenue A Union, Site, _ Adult Cinemas.
Most of these uses are concentrated in approximately a six square
block area between Seneca Street on the South and Pike Street on the
Horth, and between 1st and 3rd Avenues in downtown Seattle. At the
time of this report, there were discussions to revise the 3rd Avenue
Cinema to remove the adult pictures and revise this into "legitimate
theater" and restaurant use. Conservations with Carma Developers
concerning their use and other developers along 1st Avenue (at Union)
indicated that the number of those uses would be phased out as those
buildings were rehabilitated. The .general observation of these
buildings is that -these buildings and their use oreate deferred
maintenance, functional obsolesence and some general decline in upkeep
and visual appearance of the existing buildings and adjacent uses.
A discussion with a Seattle police officer assigned to this area
indicated that the highest incidents of crime (evening hours) in
Seattle occur on 1st and 2nd Avenues in this area, particularly among
teenagers.
Some associated decline in contributory value may be able to be
ascertained by a review of rents of these facilities. These Seattle
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areas are frequented by heavy foot traffic due to the desire of people
to go from the office areas of 3rd through 6th Avenues to the Pike
Place Market and the :Waterfront, therefore people pass through these
areas. However, people passing through do not appear to be those
req_u.ela a €r-tl eeatabl_i`shments =The= magern-f these streets far
different in the minds of people of Seattle than that of 4th, 5th and
6th Avenues in terms of cleanliness, quality of shops, safety and
economic return for these types of uses in the building.
3. Renton.
Renton has two theaters located across the street from each other on
4th Avenue in the downtown area -- the Renton and the Roxy. One
theater was converted to an adult theater use. Litigation by the City
against Robert Forbes for the use of this theater for adult movies is
pending at the time of this report. Contact with Dave Clemons, Policy
Planning Director and Roger Blaylock, provided a review of the history
of the development with Renton's Ordinance and their legal argument.
This information has been available to the Des Moines City Attorney.
Renton is attempting to utilize a modified diversion method to locate
theaters away from schools, housing and recreational areas. This
subject theater is located approximately 3 1/2 blocks from the Renton
High School, 3 blocks from the Catholic grade school, and is close to
several parks. The City of Renton i$ attempting to base their case
upon their new ordinance for dispersion of use, minimum setbacks from
schols and residents and establishing a standard abatement schedule
time period.
4. Bremerton.
This theater located on Calisan Street, in the Charleston area of
Bremerton outside of the Central Business District, has, due to the
adult theater nature, encouraged adult bookstores and similar uses on
the west side of the block in the area. The east side is occupied by
two strong neighborhood "anchor" tenants, an appliance store and a
shoe store. There is a marked difference in the maintenance and
general character of the two sides of the street. At the time of the
writing of this report, there was some understanding by City officials
that this theater would be converted to non -adult theater, family
motion picture use.
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5. AberdeeD.
Discussions with the City Planner reviewed the history of their
attempts to remove an adult theater use from downtown Aberdeen. The
City Planner cited_ increased instance of c_r_ime,_negati_veimpact on -
_" adjacent-A:and uses, increases vacancy in adjacent -shops and that the
use was counter to the general purposes and objectives of the
comprehensive plan in their reasons for seeking abatement of that use.
6. AMAMOZWL.
This site like Renton was in the process of being reviewed by the
City. Discussions, with members of the City Planning Staff indicate
that problems similar to the North End Cinema were cited related to
crime, late night disturbances, and impact on adjacent uses in terms
of desirability of tenants to remain in the area.
7. Adis es llJ Ko_,, +ince.
The primary adult use in Des Moines is the adult theater on Marine
View Drive, (and previously a *Head Shop") in the heart of the Des
Moines revitalization distriot. Review of the public testimony
indicates that a significant percentage of the community reduces their
shopping tripe to the business district area to avoid these uses. Due
to the turnover in shops adjacent to these uses in the same block,
some difficulty was encountered by the consultants on the
Revitalization Study as to the future use of this block. The uses not
only provide a perceptual problem with people desiring to shop in the
area, they provide somewhat of a *deadhand" in the planning process
for the upgrading of thisarea and the revitalization of the Des
Moines Business District.
The police record provides a review of various other adult type uses
such as the selling of drug paraphernalia, at a "head shop" and other
historic uses in both the. Business District area and along Highway 99
that have provided complaints and requirements for increased police
activity.
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IMPACTS
Based upon my review_-pf,the literature from various_. communities=and visual
observations of several other"s1iea-aa Well as an in-depth understanding
of the Des Moines Business District through the Revitalization Study, some
overview summary comments as a basis for public testimony can be set forth
here as to the special impacts of adult uses. In order for the City
Council to better plan for the regulation and location of adult uses, these
special impacts provide certain insights. Although only part of the data
is taken from the City of Des Moines, the majority of the information comes
from other communities in Western Washington that provides some basis for
policy direction by the City of Des Moines.
1. Crime.
The City of Kent Adult Use Zoning Study has a thorough discussion of
the incidence of crime in several other communities and is a good
reference for the City Council in their review.
2. Lang. Uses.
The writer of this report is a certified planner (AICP) with
educational and work experience in the real estate appraisal field,
and presently is a candidate for the MAI appraisal designation.
Utilizing this combined background in my visits to various other
sites, some general observations concerning land use, social impacts
and land economics can be made of most of the sites. There appears to
be a definite impact on adjacent land uses, the turnover of tenants,
deferred maintenance, functional obsolesence, maintenance of access
areas such as streets and parking Iota surrounding these uses. The
improvement or decline of business areas or neighborhoods has been
well documented in many planning studies as having both physical and
"perceived* elements. That is, if people perceive an area as
improving, they may work to invest money and improve the overall area.
That is, a strong new anchor tenant that comes in and improves a key
piece of property encourages other owners and tenants to do the same.
Conversely, a tenant that in other peoples perception is creating a
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deoline in property values or *image", contributes to their management
decisions to defer maintenance, defer upgrading of buildings and put
less emphasis on that piece of property as an investment part of ,their
T _por--tf_olio. 'This :secondary impact appears_ t beace N .ng =-in _several
communities where this type of location has oeourred. Noteworthy are
Bremerton, Seattle, and Aberdeen. Some small impact appears to be
occurring in Des Moines in a similar vein.
3. Economic „lament.
There appears to be some increased turnover in tenants adjacent and
near these uses. And further, a location of similar type of uses in
the area. My discussion with some seven real estate appraisers leads
to some different conclusions that that of the survey of the City of
Kent. The appraisers perception of various communities of which they
are located, (Renton, Bremerton, Seattle, Redmond) indicates that they
feel that this type of use when included next door to other healthy
businesses may result in a reduction of property values and/or rental
income stream. Most appraisers felt that there is a negative impact
on residential property values as well as an impact on business
property values. Several felt that the change in key anchor tenants
on 3rd, 2nd and 1st Avenues in downtown Seattle would possibly induce
these areas to upgrade and provide stronger office use on upper floors
and comparison shopping on retail floors that had street access.
Therefore, my discussions and interviews arrived at a slightly
different conclusion that that of the Kent Land Use Study.
4. Community Impact.
The proliferation of adult uses has occurred in the Puget Sound area
in the last six to ten years. City staffs, Planning Commissions, and
City Councils have been wrestling with zoning and comprehensive
planning approaches to address these uses and the perceptions of
residences as to their impacts. A number of communities have reviewed
these matters and there is on-going discussions by the association of
suburban mayors, city attorneys, city planners and other groups.
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The general consensus appears to be that adult uses are incompatible
with residential, religious, educational and recreational usee where
minors may meet collectively. As sited in several other studies, and
in» particularly in _- the"'rent - study, the -Greenwood area atm 85th A_v nue -'T
N.E., was impacted in 1975 and 1976 when a local theater began shoving
x -rated films. The record shows that the residents discussed crime,
traffic, and undesirable patrons, litter, maintenance and potential
impact on small shops, businesses and residences in the area. In
response to this outcry, the City of Seattle Council adopted an
ordinance that provided for concentration of these uses in downtown
Seattle area and not in outlying neighborhoods, and set an abatement
schedule. The owner sued the City'and through a series of court
appeals, from the Superior Court to the Court of Appeals, and finally
to the Supreme Court of Washington in 1978, the City vas able to
demonstrate by a well documented public record that the adult theater
had a harmful effect on the Greenwood area business district,
religious areas, residential and recreational areas. The Washington
State Supreme Court agreed that the goal of preserving the quality of
residential neighborhoods including their supporting business
districts by prohibiting disruptive of adult uses, was a valid and
substantial public interest.
5. Compatibility with Other Uses.
Much of tl:s public testimony comes from church organizations and
recreational proponents and residents. It appears that these three
user groups have testified as to the incompatibility of adult uses
with residences, schools, churches and park areas. Residents of the
area testified as to the adverse affects of such uses on family
orientation of the neighborhood. These findings were made part of the
court record in the Greenwood case and helped form the basis for a
decision in favor of the City. A similar line of testimony appears in
the Des Moines transcripts.
Le
DOC„
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1
APPROACHES
As previously cited, several examples have been utilized. Seattle
ooncentr-ales--adult uses as oek'Hast-ott: - Redmond and Renton -have -used a
modified dispersal approach. Detroit utilizes a dispersal approach. Kent
is considering a modified dispersal approach. Blaine utilizes a dispersal
approach, and Aberdeen, a concentration approach. Although there is no
precise standard that applies to every city, in eaoh city's approaoh must
be based upon the City Council's and Planning Commission's perception of
the community's desires, it must be based on a clear public record on the
impacts of these uses and not be based on moral or personal preference
grounds. j combination
ung,. special permits And zgp�g Qraflts.ees
Ip, mitigate impacts. appears BDorooriAte.
As noted in other cities, studies such as Renton, Redmond, Seattle and
Kent, there appear to be four generalized approaches to land use
regulations which are in common use:
1. Dispersal ordinances; (zoning)
2. Concentration ordinances; (zoning)
3. Modified dispersal concentration ordinances and; (zoning)
I. Special ordinances including licensing and special use
approaches. (zoning and licensing)
Theseapproaches
below:
have been
discussed previously but
1. P.11Dersal Orman pea,
Seeks to spread adult uses
throughout
concentrating the minimum standards of 1000
utilized'in various communities. It does not
than Blaine is utilizing a total dispersion
is using a modified dispersion approach with
rezone approach,
permit
are summarized briefly
the city as opposed to
to 1500 feet have been
appear that anyone other
19
type approach.
Kirkland
a special use permit and
DOC.
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# D-\
2. Concentration ADDrV;ones .
These seek to cluster or concentrate adult uses in certain uses and
similar to the Boston approach. The idea here is that by confining
impacts to small areas, this insulates the balance of the community.
Theity=-of,Seet.t-le utilizes -ti- a'pproacl as -well-as--tie' City of
Lynnwood. In terms of the City of Des Moines, this concentration
approach that if the theater was located on Highway 99 might be more
apropriate than the present situation.
1
3. Modified Disperaiyn _Concentration Approaches.
Most communities utilize one of these approaches. According to
several sources and by review of the'court activities, the` courts in
the State of Washington have allowed a variety of regulatory
approaches as long as the regulations are valid. The City of Tukwila
and Renton have similar ordinances that employ a modified dispersion
approach of adult theaters. The City of Redmond followed their suit
in 1982 of modified dispersion in certain commercial districts.
4. Special Approaches.
The City of Kirkland is an example of the special approach which
appears to me to be one of the best examples of any community. The
City Planning staff has had a long history of developing overlay zones
for waterfront districts, -sensitive areas, and special use districts
which have been implemented by Planning Commission, City Council
action. Therefore, their comprehensive plan and implementing
legislation provides a strong basis to establish a special zone for
adult uses and provide for a rezone and special permit process and
clear showing of burden on the applicant.
20
DOC.
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# D--
RECOlMENDATION
From my review of all of the readings, several planning criteria were
established in the Kent Study which may be appropriate for the City of Des
Moines. These criteria could be developed by the Planning staff, with the
assistance of this consultant as a basis for adopting one of the approaches
cited in the previous chapter.
I would recommend that lb& City g€ Biticiand's anyfggch appears 19.1M lilt
most viable one for, @ City gg yes jiQ}mian. The City of Des Moines has
established a Special District, that is the CBD Revitalization District.
Within this District special zones and uses are set up. An additional zone
could be established for this type of use or established for the Highway 99
area. This combined with the "dispersal method" or "modified dispersal
method" would provide for location of these uses in certain areas. These
sites would need to be 800 to 1000 feet2 from residences, schools, play-
grounds and/or churches. It would further regulate them by providing a
requirement for a rezone for this type of use and conditional use permit
with the burden of proof being upon the applicant_ This would be an
expansion of the present licensing protea that the City now utilizes.
`Note: Report revised in February 1985 to reflect findings of "Cocentric
rings/zoning map" study by Des Moines Planning Staff that establishes
areas available in the City for Adult uses if different standards (ie;
1500, 1200, 1000, 800, are utilized).
21
DOC.
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Fecommemded Stens
1.
Review planning staffs zoning map with minimum distance standards
available. Establish modified dispersal method.
2. Establish -an "AEA - Adult Entertainment Zone.
3. Permit adult use in this zone upon approval of:
a. Rezone
b. Site plan/conditional use permit approval
c. License for adult entertainment business use
d. Clear shoving of "burden of proof" by applicant that there is a
demand for use, the impaots of the use and that these impacts oan
be reasonably controlled and/or mitigated.
4. Establish procedures for:
a. Application/Staff recommendation permit fees
b. Planning Commission review
c. Final action by City Council
22
DOC.
INDEX
MEMORANDUM
To: City Manager June 10, 1985
City Attorney
c= -_Planning Director
Re: Adult Theater Overlay Map
1
1
1
1
1
1
1
1
1
1
As requested, the adult theater overlay series has been com-
pleted. The objective has been to illustrate where, along Pacific
Highway South, adult theaters could situate given a requirement to main-
tain a distance from churches; schools, through high school; day care
centers; libraries; public parks and other adult uses. TWo radaii were
employed:
1. 500 feet (Overlay 2), and
2. 1000 feet (Overlay 3).
By plotting where commercial properties are developed, suitable for
redevelopment and vacant, then overlaying these with acetate sheets
illustrating the variable radaii, properties available become more appar-
ent.
Vacant and redevelopable General Commercial zoned properties
along Pacific Highway are depicted on Overlay. 1. Redevelopable proper=
ties were defined as lots presently supporting a business but by virtue
of being a non -conforming use, such as a single family residence or
mobile home park or upon which a deteriorating structure is located,
are candidates for redevelopment in the forseeable future. This is a
broad category embracing lots with no permanent structure where mobile
home sales are occurring to mobile home parks which are non -conforming
in the C.G. zone and subject to conversion as development pressures
mount. The latter's inclusion into the redevelopable classification
stems from an assumption that these maps are to denote potential sites
for future application as well as portray present conditions. Conversion
of existing structures to theater use was not assessed, however, the
particular needs of the theater developer could allow an occupied build-
ing to be remodeled.
• Whether an adult theater can be practically located on Pacific
Highway will be a function of the size of the facility desired and accord-
ingly the amount or parking and landscaping required. My intent has not
been to provide a market analysis or potential site survey, but rather
to provide a guide to the amount of redevelopable and vacant properties
on Pacific Highway, presenting information critical to a determination
of which radial variable should apply in regulating adult theaters. Even
cursory examination of the overlays demonstrate that application of a
1000 foot radius requirement, removes most of the C.G. zoned property.
Given a 500 foot radius, several locations become potential theater
sites.
DOC.
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i
Adult Theater Overlay Map June 10, 1985
Page 2
More precise figures for the Pacific Highway South commercial
zone were developed as a result of mapping activity. Additionally a
breakdown of developed, redevelopable and vacant parcels in square
footage has been provided as follows:
Square Feet _ Percentage -
Vacant 446,156 15.7%
Developed 926,454 32.5%
Redevelopable 1,474,372 51.8%
Total 2,846,932 100.0%
No detailed mapping and calculation was undertaken to provide data
on the square footage remaining after application of the variable
radaii.
Attachments:
Churches with proximity to Pacific Highway South
Schools with proximity to Pacific Highway South
Public Facilities with proximity to Pacific Highway
Adult Use Survey
DOC,
INDEX
# p-1
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1w
1
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1
CHURCHES
(With proximity to Pacific Highway)
Assembly of God
Church of Des Moine-
21650 -24th Aveccue outh
Soundview Baptist Church
2045 South 216th Street
Seacoma Community Baptish Qzruch
24800 Pacific Highway South
Kent WA
Midway Covenant Church
22460 24th Avenue South
Des Moines
South Seattle Foursquare Church
2038 South 222nd St.
Des Moines
Christian Faith Center
21024 24th Avenue South
Seattle (unincorporated King County)
Grace Lutheran Church
22956 24th Avenue South
Des Moines
Eternal Temple of Truth & Light
25040 Pacific Highway South
Kent
Marcus Whitman Murch
2130 South 248th St
Des Moines
St. Philamena
1815 South 220th Street
Des Moines
St. Columba Episcopal Qiurch
2031 South 216th Street
Des Moines
First Baptist Church of Des Moines
22421 19th Avenue South
Des Moines
DOC.
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PUBLIC FACILITIES
(With proximity to Pacific Highway)
Iies:Mbinet Library
-,-228I5 24th AvenueSout177---,_
'Des Moines
King County Fire District #26
2238 South 223rd Street
Des Moines
Des Moines Park (Kiddy Park)
24th Avenue South & Kent -Des Moines Road
Des Moines
Parkside Park (King County)
South 242nd Street & 16th Avenue South
Des Moines
Mount Rainier Swimming Pool
22722 19th Avenue South
Des Moines
DOC.
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Adult Use Survey
Page 2
215640 - 0203: A. J. French
Vacant 41,250 sq. ft.
0201: Callow - Printers, etc.
Developed - 47,700 sq.
0180: Used Mobile Homes - L. B. Properties
Redevelopable 60,372 "
S.W. corner of South 224th and SR 99
250060 - 0005: C.G. only
Vacant 42,200
0012: Vacant 30,000
0011: Vacant 11,190
0015: Seatac Auto Sales
Redevelopable 19,515 "
11
11
0018: Seatac Auto Sales
Redevelopable
S.W. corner of South 226th and SR 99
250060 - 0025: Furniture House
Redevelopable 32,750 "
0020: Burger Kitchen
Developed 29,512 "
0040: Burger Kitchen (parking)
and vacant 51,280 "
0050: Shepard & Nelson
Redevelopable 8,000 "
0051: Single Family Residence.
Redevelopable 11,800 "
18.950 "
0052: Single Family Residence
Redevelopable
0060: Warehouse and Office
Redevelopable
0070: Single Family Residence
Redevelopable
0072: Duplex and Shop
Redevelopable
0071: Offices
Redevelopable
8,750 "
34,248 "
17,112 "
7,000 "
11,700 "
DOC.
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215640 - 0268: Mobile Home Sales
American Cable TV
Radevelopable
0262: Single family_residence-
Redevelopable- - •
0269: Mobile Home Sales
Redevelopable 18,174 "
Adult -Use Survey
Page 4
19,500 sq. ft.
- 23,500 "
S.E. corner of South 222nd and SR 99
215640 - 0241: Mobile Home Sales
Redevelopable 37,668 "
0242: Single family residence
Redevelopable 28,595 "
0250: Mobile Hane Sales - Redevelop. 19,904 "
0220: Legend Motel
Developed 42,521 "
0202: Hearthside Antiques
Redevelopable 24,576 "
0200: Moongate Motel
Developed 22,304 "
0181: Vacant 15,675 "
S.E. corner of South 224th and SR 99
250060 - 0125: 'Mailer Sales
Redevelopable
0136: Trailer Sales
Redevelopable
01/0: Trailer Sales
Rotievelopable
006: Ar i l i que Shop
Re 4 Ic •velopable
Antique Shop
Rem l' •velopable
n02: que Shop
It`'' 1 'velopable
i 1. ;5:
'' 11 .~wagon Repair
I" " 1. •velopable
24,748 "
16,500 "
24,750 "
12,375 "
4.125 "
15,750 "
22,500 "
DOC.
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1
Adult Use Survey
Page 6
South of Kent -Des Moines Rd.
S.W. corner of intersection of Kent -Des Moines Road and SR 99
250060 - 0605: Picture Frame Slip - -_
Aedevelopable 25,409 sq. ft.
0611: Single family residence
Redevelopable 15,458 "
1
0612: Vacant 15,504 "
1 0615: Scott's Appliance Repair
Redevelopable 45,588 "
1 0622: Auto Parts Store
Redevelopable 8,568 "
0625: Shell Station
1 Developed
0630: Shell Station
1 Developed 33,000 "
0641: Warehouse and SF
1 Redevelopable 15,000 " (C.G. only)
0650: Canopy Mart
1 Redevelopable 15,000 " (C.G. only)
0655: Canopy Mart
Redevelopable 15,000 " (C.G. only)
1 0660: Skippers/Baskin Robbins
Developed
27,150."
1 0665: Tool Town
Redevelopable 30,313 "
1 0701: Kentucky Fried Chicken
Developed 38,337. "
1 0705: Union Oil Co.
Developed 16,393 "
1 360300 - 0024: Midway Manor
Developed 42,300 "
1 0030: Recyclying Center
Redevelopable 25,680 "
DOC.
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MEMORANDUM July 28, 1985
TO:
Planning Director
_FROM:_ _ Planning Administrative Aide„
Re: Adult Entertainment -Facilities - Available C.G. Zoned Property
Along Pacific Highway South
The following is the amount of General Commercial (C.G.) zoned property
along Pacific Highway South in Des Moines after application of a 500 foot
radius from the property lines of churches, schools and public facilities:
Square Footage Percentage
Vacant 112,979 6.4 %
Developed 662-,250 37.7 %
Redevelopabl:e 981,181 55.9 %
Total 1,756,410 100:0 %
This indicates that 1,094,160 square feet of land along Pacific Highway
South is potentially suitable for adult entertainment facilities, even after
restricting the location of such businesses to bufferchurches, schools and
other public facilities.
The attached King County Assessor's Maps cover the length of Pacific Highway
South within the Greater Des Moines Planning Area. Together with this data, they
should provide a complete description of appropriate and available property for
adult entertainment facilities in Des Moines.
Attachments
DOC.
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MEMORANDUM
March 31, 1987
To: Members of the City Council
From: City Attorney �Qr
Re: Request for Final Supplemental Findinas. Adult Use Proiect
The newly adopted Highway Commercial Zoning is found in DMMC
18.29. DMMC 18:29.020(2) lists as one of the permitted uses adult
entertainment facilities, provided that such facilities are
prohibited within five hundred (500) feet of the property lines of
churches, schools, day care centers, public facilities, adult motion
picture theaters or other adult entertainment facilities. Adult
entertainment facilities means adult book stores, adult cabarets,
adult video stores, adult retail 'stores, adult massage parlors, 'adult
sauna parlors, and adult bath houses. DMMC Z8.29.020(55) lists as
one of the permitted uses theaters, provided that adult motion
picture theaters are prohibited within five hundred (500) feet of the
property lines of churches, schools, preschool through high school,
public facilities, adult entertainment facilities or other adult
motion picture theaters. Adult motion picture theaters are defined
as an enclosed building used for presenting motion picture films or
video tapes or other visual media distinguished or characterized by
an emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas has further defined
in the Zoning Code] for observation by patrons thefein.
Thus, the approach taken by the City Council in regulating
adult entertainment facilities and adult motion picture theaters is
the dispersal/concentration approach. It is "concentration" by
limiting such uses to the highway commercial area on Highway 99, and
it is "dispersal" by requiring the five hundred (500) foot separation
from other similar uses. Both the concentration and dispersal
methods were approved by the United States Supreme Court in 1986 in
the case of City of Renton v. Playtime Theatres, Inc. (hereinafter
"laytime"). In Playtime the court stated: "Cities may regulate
adult theaters by dispersing them, as in Detroit, or by effectively
concentrating them, as in Renton. It is not our function to appraise
the wisdom of the city's decision to regulate adult theaters to be
separated rather than concentrated in the same areas. The city must
be allowed a reasonable opportunity to experiment with solutions to
admittedly serious problems."
DOC.
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2.
The Renton Ordinance prohibited adult motion picture theaters
from locating within one thousand (1,000) feet of any residential
toner. single'"nr multi -family _dwel]ing,- -church,-- park, or school. - The,
Des =Moineir=n_Ordinance diminishes the- -o re, thousand=(4000) foot
separation to a five hundred (500) foot separation, thus being less
restrictive than the Renton Ordinance. The reason for the five
hundred (500) foot separation in Des Moines was based on an extensive
scientific study that a five hundred (500) radius provides adequate
real property for an adult motion picture theater to exist on Pacific
Highway .South, to -wit: 18.13 acres. This conclusion was incorporat-
ed in supplemental findings adopted by the City Council on August 22,
1985.
The public hearings and the study engaged in by the City
Council, which resulted in the June 13, 1985 and August 22, 1985
findings, were conducted prior to the decision in the Playtime case.
Prior to playtime, the law was unclear as towhether a city must make
specific scientific studies of , its own community, or whether it could
rely on the studies conducted by other cities. The playtime case
resolved that question. In Playtime the Supreme Court stated:
f°The Court of Appeals ruled, however, that because
the Renton Ordinance was enacted without the benefit of
studies specifically relating to 'the particular
problems or needs of Renton' the city's justifications
for the ordinance were 'conclusory and speculative.' We
think the Court of Appeals imposed ' on the city an
unnecessarily rigid burden of proof. The record in this
case reveals that Renton relied heavily on the
experience of, and studies produced by, the city of
Seattle. In Seattle, as in Renton, the adult theater
zoning ordinance was aimed at preventing the secondary
effects caused by the presence of even one such theater
in a given neighborhood."
The Supreme Court went on to say that the Renton City Council had the
Northend Gema case before it when it enacted the ordinance in
question. The r orthend Cinema case detailed Seattle's experience as
as follows:
"The amendments to the City's zoning code which are
at issue here are the culmination of a long period of
study and discussion of the problems of adult movie
theaters in residential areas of the City. . . (T)he
City's Department of Community Development made a study
of the need for zoning controls of adult theaters . . .
The study analyzed the city's zoning scheme,
comprehensive plan, and land uses around existing adult
motion picture theaters. . . .R
DOC.
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3.
"[T}he trial court heard extensive testimony
regarding the history and purpose of these •ordinances.
It heard expert testimony_ on the adverse effects of the
presence ` }ag` "-. adult ' ffiotion picture theaters on
neighborhood ' children' " and- ' community- --improvement -
efforts. The court's detailed findings, which include a
finding that the location of adult theaters .has a
harmful effect on the area and contribute to
neighborhood blight, are supported by substantial
evidence in the record."
The record is replete with testimony regarding the
effects of adult movie theater locations on residential
neighborhoods." . Id., at 719, 585 P. 2d, at 1159
The Supreme Court then went on to say that Renton was entitled to
rely upon the experience of Seattle and other cities, and in
particular on the "detailed findings" summarized in the Washington
Supreme Court's Northend Qinema opinion, in enacting its adult
theater zoning ordinance. The Supreme Court stated that a city is
not required, before enacting such an ordinance, to conduct new
studies or produce evidence independent of that already generated by
other cities, so long as whatever evidence the city relies upon is
reasonably believed to be relevant to the problem that the city
addresses.
The minutes of the City Council meeting of June 13, 1985
contain the initial set ' of findings adopted by the City Council with
respect to adult uses. One of the items of "evidence presented" was
"a photocopy of the leading Washington Supreme Court case on the
subject of adult use zoning, Korthend Cinema, Inc. v. City of
,Seattle." There are an additional twelve other items under the
heading of "Evidence Presented". To refresh the Council's
recollection, I am attaching a copy of the minutes of the June 13,
1985 meeting.
While it is clear from the findings of the
the City Council did rely upon experience and
cities, along with specific studies relative to
Moines, I think it may be appropriate to
supplemental findings in accordance with the new
municipalities 'by the Playtime case. Accordingly, -
City Council enter the following:
City Council that
studies in other
the City of Des
enter some final
direction given to
I request that the
Final Supplemental Findings
Based on all the materials presented to the City
Council at the numerous public hearings on adult uses,
professional evaluations and materials, and the findings
of the City Council previously entered, along with the
direction given to municipalities by the United States
Supreme Court in the case of Renton v. Playtime
Theatres. Inc , the City Council makes the followin
Final Supplemental Findings:
C
INDEX
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IP -
4.
I1. The approach - to control of adult uses through zoning
adopted _byity -Cottnci3_ 'of __the :may----of---DDes--Moines -::r7
r -Gari-=-ise=-=char-acteriied --as--=a -= 4conaentration/dispersal"
method.
I
2. The "concentration" aspect limits adult uses,
including adult motion picture theaters, to the
Pacific Highway South (or SR 99) area of the City of
Des Moines.
I3. The "dispersal" aspect requires separation of adult
uses from each other by a minimum of five hundred feet
(500*).
4. In adopting the "concentration" aspect, the City
I Council relies upon all studies and public hearings
described in previous Findings, and further upon the
experience 4nd findings of the City of Renton and the
City of Seattle, described respectively in City of
I Renton v. Playtime Theaters, Inc. (the United States
Supreme Court Case) and )dorth_snd Cinema. Inc. v. City
of Seattle.
5. In adopting the "dispersal" aspect, the City Council
relies upon all studies and public hearings described
1 - in previous Findings, and further upon the experience
and findings of the Detroit Common Council described
in young v. American Mini Theaters.
I 6. In adopting the five hundred foot (500') setback from
the property lines of churches, schools, (pre-school
through high school) and public facilities, the City
I Council relies upon all studies and public hearings
described in previous Findings and the experience and
studies of Renton and Seattle described in city of
1 Renton v. 'playtime Theaters. Inc. (The United States
Supreme Court case).
JBG:ds
1 cc: City Manager
INDEX
52ne 13, 1985
age 2
MOTION Motion -was made by Councilman Mannard, seco.•ded by Councilman Clement. that
Administration hold in abeyance enforcement of the contract provision requiring
the building of a berm to inhit.it traffic from using South 234th Street. Motion
passed unanimously by voice vote.
BOARD & COMMITTEE REPORTS
Marina Committee, Chairman Davis informed Council that City Manager will be conducting
a -biological survey for the Diver's reef in July and August. This is necessary
before the Dept. of Fisheries will approve the dumping of rocks.
Publt=5aexy'A TranSpor.tation--Committee, Chairman Clemendi=sed„Counetha.t tt?ey — __
are"continuing discussion- as to the potenti-aaeed==for�a-fund =t -o finance=lone range- _
improvements in -the transportation -area. -
Environmental Committee - Councilman'Root informed Council he will be pursuing contact
with outside agencies, ie. Fisheries, Metro, regarding environmental enhancement of
City's streams.
ADMINISTRATION REPORTS
City Service Center Roofing Problems - Acting City Manager Hayes related that Architect
Kniskern has received another estimate and requests more time to study the
conflicting estimates.
Marina Restroom Bids - Acting City Manager reported bid opening for Marina restroom
addition yesterday. Requested item be placed on agenda under Old Business. Request
granted.
APPROVAL OF WARRANTS
MOTION Motion was made by Councilman Davis. seconded by Councilman Root and passed, that
the following warrants be approved for payment:
Payroll Warrants 013061 through 013141 in the amount of $69,007.65
Claim Warrants 111954 through 1.12957 in the amount of 52,002.35
Marina Warrants 010435 through 010472 In the amount of 20,822.26
OLD BUSINESS
Proposed Ordinance No. 630 - Washington Natural Gas Franchise Agreement
City Attorney Gorham informed Council that the proposed ordinance has been reviewed
by staff members and is recommended to be approved.
Councilman Clement noted he was pleased with the portion that held the City harmless.
MOTION Motion was made by Councilman Mannard, seconded by Councilman Root, to suspend
the rules an act on the proposed ordinance on first reading. Motion passed.
MOTION Motion was made by Councilman Mannard, seconded by Councilman Root, to approve
Ordinance No. 630. Motion passed unanimously by voice vote.
Propor!d Ordinance - Approving_ Street Vacation So. 244th Between 20th Ave. South and 22nd
IEe
PTSouth - file 1269-8 - 1st Reading
City Attorney noted that the ordinance has been prepared at Council's direction.
He read the ordinance by title.
MOTION Motion was made by Councilman Clement, seconded by Councilman Mannard and passed,
that the proposed ordinance be passed onto a second reading.
Presentation of Adult Use Zoning Findings
City Attorney Gorham directed Council's attention to his memo of June 13, 1985,
suggesting a change in wording in the previously prepared Adult Use Findings.
MOTION Motion was made by Councilman Root, seconded by Councilman Carter, that the
Adult Use Findings, including the wordage change as noted in Attorney's memo
of 6-13-85, be adopted.
Discussion:
Councilman Root questioned the advisability of using the word "religious", in the
second paragraph on page 8. City Attorney noted that it is used in,the context
of zoning and the implication is "what the public" thinks.
Councilman Davis noted that the word religious is a category listed in Zoning Code
as acceptable land use.
VOTE DI
POTION Potion passed unanimously by voice vote. (Findings as adopted are attached as part
of these minutes.)
DOC.
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Attachment City Council EVIDENCE PRESENTED
Minutes 6-13-85
The Des Moines City Council considered the following'evidence:
1. Comments from the public at five public hearings occurring
between October 27, 1983 to March 14, 1984. Verbatim typed transcripts of
of such hearings.
2. Written comments from the public received by the City Council
during the same time frame.
3. A general administration report dated June 7,, 1984, prepared
by the- Des._Moines _ty-- Mana,g.er. and his_ staff:= Included in this report were
the foT1°owingappendices Des-Moi;nes`Theater admission data, communis Y
opinion survey, Cominunify Impact Ordinance (Ordinane -No;µ464� 'background
and information, Des Moines Police Department Incident Reports, a complete
list of business activity and failures in the area in close.proximity to
the Des Moines Theater over a ten year period, and a photocopy of the
leading Washington Supreme Court case on the subject of adult use zoning,
Northend Cinema, Inc. v. City of Seattle.
4. A legal memorandum from the Des Moines City Attorney, dated
March 14, 1985, and entitled Control of Adult Uses Through Zoning.
5. Reports by R. W. Thorpe & Associates. The preliminary report
dated June 7, 1984 and the final study rendered in August 1984,
6. Reports by the City of Des Moines Planning Department.
7. A report by Chief Pratt of the Des Moines Police Department,
dated January 4, 1984.-
8. The Greater Des Moines Comprehensive Plan, 1981-1990.
9. The Des Moines Revitalization Study, Phase I, dated October
30, 1982, prepared by R. W. Thorpe & Associates and the City of Des Moines
Business Area Improvements, Phase Two Report, dated December 1982, prepared
by Makers.
10. The City of Kent Adult Use Zoning Study, dated November, 1982.
11. The state and federal court decisions in the litigation bet-
ween the City of Renton and Playtime Theaters, Inc.
12. Ordinances and proposed ordinances of several municipalities
in the State of Washington relative to the control of adult uses through
zoning.
13. National studies, including a study by the Planning Advisory
Service, a study by the Zoning and Planning Law Report, and psychological
studies.
FINDINGS OF FACT
Based on the totality of evidence presented and material compiled
in the public hearing file, the City Council makes the following Findings
of Fact:
Revitalization and Land Use Planning
The area of the City of Des Moines encompassing Marine View Drive
and West of Marina View Drive to Puget Sound has been designated the City
of Des Moines Revitalization Area. This designation arose out of a
Revitalization Study and recommendations which evolved out of the Greater
Des Moines Comprehensive Plan 1981-1990, adopted September, 1981. At the
Comprehensive Plan public hearings before the Planning Commission there was
a call for a study of the area later to be designated the Revitalization
Area. The specific language of the Comprehensive Plan is as follows:
The City of Des Moines .and its businesscommunityshall
explore the redevelopment or revitalization of the down-
town area. Studies should embrace:
a. Creating incentives for stimulating new business
development and enhancing existing businesses;
b. Enhancing pedestrian facilities through sidewalk & DOC.
walkway improvements; 'NDE II
# D ' 11
c. Formulating a downtown design plan reflecting the
=unique marina -atmosphere prestnt—in =our`=city;- -. .
d. Exploring the possibility of providing transpor-
tation to and from neighborhoods to our business
district.
A great effort was mounted in the business community to raise funds for the
Revitalization Study, and the business community through the Chamber of
Commerce requested the City of Des Moines to contribute matching funds-:
Ultimately, $30,000.00 in public funds and $6,500.00 in funds raised by the
—715usiness -commun:i.ty._wa.r-e conI butted -to 7the,Revi_talizat on=Study. This
study—was -done- by -_R -W Thorpe-and--Associatet:-and==Ttie _itsiers- `[`Phase I, of
the Revitalization Study was rendered to the Des Moines Revitalization
Steering Committee and the City of Des Moines on October 30, 1982. The
study dealt with a number of subjects related to land use in the Revitalization
Area, and the study placed strong emphasis on developing the Revitalization
Area as a pedestrian -oriented business community. Phase II of the
Revitalization Study was rendered in December, 1982." It concentrated on
the need for and the building of a identity for the Revitalization Area.
Phase 1I of the Revitalization Study also emphasized a pedestrian -oriented
business community for the Revitalization Study. Public hearings were held
before the Des Moines Planning Commission and the Des Moines City Council
with respect to adoption of the Revitalization Study. These studies were
ultimately adopted as policy by the Des Moines City Council on June 7,
.1984. Goals of the Revitalization Study were the development of a viable
and centralized downtown business district, development and encouragement
of growth of a downtown business district which is expressive of its
. waterfront location, and providinga more pleasant visual and functional
shopping and business district. In connection with the Revitalization --
Report the City of Des Moines embarked upon a number.of projects to imple-
ment the recommendations. As of this date these projects are in various
stages of development, and include design review process, a new parking
code, a landscaping code, a comprehensive sign code, a revision of the
permitted uses through a "community commercial" zoning, a revision of BC
zone uses, traffic revision projects, and public hearings. to determine
whether or not adult uses were compatible with the recommendations Of the
Revitalization Study.
Public Comment Relative to Adult Uses in the Revitalization Area.
The City Council began public hearings on October 27, 1983 and held
additional public hearings on January 12, 1984,.February 23, 1984, March 8,
1984, and March 14, 1985. Large numbers of the public testified that the
presence of the adult movie theater deterred them from shopping in the
Revitalization Area, which they conceived to be a community -oriented and
family-oriented pedestrian shopping area. These opinions were based on
perceptions of the public that the present use of the theater is a threat
to public safety and a threat to family-oriented values. Whether the pre-
sence of adult theater constitutes such a threat is immaterial. The impor-
tant consideration is that the evidence shows that a significant portion of
the public is avoiding the Revitalization Area in its shopping habits
because of the existence of the adult movie theater. The public views the
Revitalization Area as "downtown" Des Moines, which is the "walking" part
of town. Many parents testified that children were forbidden to walk in
the Revitalization Area as long as the adult movie theater was there. As
pointed out by one City Councilman, whether the public is right or wrong in
this regard is immaterial, for the consuming public is not going to do what
it doesn't want to do. Members of the public "stepped forward to point out
that in parts'of the state os distant as Eastern Washington the existence
of the adult theater in the City of Des Moines is known and is the spb ecct
of substantial derisive comment.
INDEX
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The public, furthermore, expressed itself in a substantial amount
of correspondence to the Des Moines City Council, This correspondence was
entered into the public record and expresses an overwhelming public atti-
tude that the presence of the adult movie theater deters individuals from
shopping in the Revitalization Area. The following samples of public com-
ment are representative of attitudes expressed in this massive correspon-
dence:
1. Ruth E. Stewart (1-11-84) "... I will never venture into the
down town area to patronize a business establishment in its [Des Moines
'4,T=� Theater]•prexmity.' ;
2. Richard T: Kennedy{- =24 -83=')= -'Adult" use 'business_ activities-
should be prohibited in the central business district of Des Moines. This
area is the economic heart of our city. It is in everyone's best interest
to only allow business activities that promote economic health and consumer
acceptance. Adult use business activities do not meet these criteria."
3.. Mr. & Mrs. Herb Dieterich (2-21-84) "We find the posters and
general theme of the theater so offensive and vulgar that we go to Burien
to shop instead of patronizing the Circuit Rider Bookstore and the
typewriter shop."
4. Mrs. B. A. Serfling (2-20-84) '... I will not go farther South
than that because I refuse to walk past the movie building. As an elderly
woman. I would feel very insecure in the vicinity of that movie house."
5. Ellena Watson (1-27-84) 'I think it is a blight on our com-
munity being in the location where it is [The Des Moines Theater]. That
block where it is located is one of the most important blocks in our city
and it will never be upgraded or revitalized while that theater is there."
6. Judy C. Taylor (2-20-84) "... in the almost eight years my
husband and I and our four children have lived in this area I have not once
shopped or used any business in the block that the theater occupies. In
fact, I have avoided the entire area around the theater. I did this
without thought simply because the theater and its advertisements offended
me and I did not wish to view them.'
7. Hellen H. Johnson (2-21-84) "I am uncomfortable, as a women
walking or shopping in the area though I have done it at times. 1 hesitate
to take visitors that far on our main street as it gives a sleazy and unsa-
vory impression to strangers."
8. H. C. Christopher, M.D., Resident of Wesley Gardens (3-1-84)
"Many of us residents are reluctant to pass adult entertainment sites or to
do business in close proxmitity to one, so feel they:should be located in
out of the way places and not on main streets."
9. Margaret Christopher (3-1-84) "I avoid that block whenever
possible and only go there when it can't be avoided."
10. Mr. & Mrs. Robert K. McGuire (2-20-84) "We thought it would be
fun to browse throe the little shops further down the street until,we
noticed the movie titles at the theater. We skip that area now and shop in
a more 'family' oriented area. Until a recent Council meeting, we didn't
realize that the bookstore close to the theater was not an 'adult'
bookstore,"
11. Mrs. Julia Neal (3-4-84) "... My shopping habits in Downtown
Des Moines are definitely curtailed by the presence of the Des Moines por-
nographic theater."
12. Bob Roach, President, Des Moines Chamber of Commerce (4-18-84)
"The Board of Directors of the Des Moines - Midway Chamber of
Commerce voted unanimous disapproval of the Des Moines Theatre
being located in the downtown area of Des Moines.
The Board felt that the.- theatre does not lend itself to the quality
of life in Des Moines for its young people, senior citizens and
families living here. The subject of sex illustrated on posters on
the main street of our city does not give Des Moines the type of
image that is being pursued by the City of Des Moines and the Board
of Directors of the Chamber of Commerce.
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The_Des Moines_ Theatre__is not consistentwith the Des Moines
Downtown Revitalization Program. With our long range plans of
uniform signage, landscaping, zoning and beautification, the
theatre does not blend itself in with our total program. Thousands
of dollars have already been spent in the planning stages of our
revitalization efforts.
The Des Moines -Midway Chamber of Commerce encourages the City of
Des Moines City -Council to take. the necessary steps to solve this
-issue.•--= -_- -_-_ :_ _- - _ -
Studies of Business Activity in the 22300 block of Marine View Drive.
Through its business license records the City Clerk presented to
Council a summary of business activity since 1973 in the area of Marine
View Drive in close -proximity to the adult theater. The adult theater is
located at 22331 Marine View Drive. At 22333 Marine View Drive there have
been eight (8) different businesses between 1973 and 1983. On the other
side of the adult theater at 22325 Marine View Drive there have been four
(4) separate businesses during that period of time. A similar pattern
exists throughout the entire West side of the 22300 block of Marine View
Drive. At 22303 there have been four (4) businesses, at 22307 there have
been four (4) businesses, at 22315 there have been four (4) businesses
during this period of time.
Independent Professional Studies
In addition to the general Revitalization Area Study, the City
Council.commissioned a separate study by R. W. Thorpe and Associates, Inc.
to report specifically on the impact of adult uses in the Revitalization
Area. This report was based on a number of sources, including general
planning literature with respect to the impact of adult uses on land use
planning, studies and ordinances from other communities, some of which were
in close proximity to the City of Des Moines and others national in scope,
site visitations to communities experiencing land use issues as related to
adult uses, and professional evaluations, conclusions and recommendations.
This study suggests that there appears to be a definite impact of adult
uses -on adjacent land uses, including turnover of tenants, deferred main-
tenance, and functional obsolescence. The report states that the improve-
ment or decline of business areas or neighborhoods has been well documented
in many planning studies as having both physical and "perceived" elements.
If there is a perception that an area is improving a tendency exists on the
part of other owners and tenants to participate in such revitalization, and
conversely if the perception exists that an anchor use is creating a
decline in property values or image, there is a tendency to defer main-
tenance, defer upgrading of building, and less emphasis is placed on adja-
cent properties as they relate to a general investment portfolio. Turnover
of tenants and decline of real estate values occur in uses in close proxi-
mity to adult uses.
The perception of the public is that adult uses are incompatible
with residential, religious, educational and recreational uses where minors
may meet collectively.
City of Des Moines Staff Studies
Revitalization Area History
Through implementation of Ordinance No. 464 (Community Impact
Studies) City staff has acquired substantial planning information on the
impact of adult businesses on adjacent "family-oriented" business activi-
ties. These studies suggest a general incompatibility of the two, espe-
cially in a pedestrian -oriented setting.
_Planning studies, the proposed revision of uses in _the
Revitalization Area,"" umei-ous-nus-c revision experiments and projects and
the: general trend of development in the Revitalization Area establish
conclusively that conditions have substantially changed in the Revital-
ization Area in the past fifteen years. In 1971 Marine Yiew Drive could be
characterized as an underdeveloped, auto -oriented state'highway link'bet-
ween Burien and the Midway -Zenith area. In 1971 the area west of Marine
View Drive consisted substantially of non-developed areas, under -developed
areas,- and deteriorating single family -:non -conforming uses which -were .--_ .,w
yclrearTrin tcansiti-on=to`comiaercial"and=rmulti-famiTy' 'In"1971
-pedestrian facilities were practically non-existent in the Revitalization
Area. Today, through policy of the City Council requiring sidewalks or
walkways as a condition of construction, and expenditure of public funds in
building walkways, the entire Revitalization Area is linked by pedestrian
access. Today, Marine View Drive has become developed to a substantially
higher degree and the businesses found there are overwhelmingly of a general
population nature; Today, the area west of Marine View Drive contains
quality housing, quality general population businesses, and is continuing
to develop.
The memorandum of the City Attorney establishes, that the type of
use found at the Des Moines Theater may be a use protected by the First -
Amendment. The United States Constitution protects and promotes the free
exchange of ideas and artistic expression, and local government is forbid-
den from suppressing such activities. However, local government is not
without authority to protect the character and quality of residential life
in its neighborhoods and further a compelling governmental interest
through sound land -use policies.
CONCLUSIONS
. From the foregoing Findings, the City Council draws the following
conclusions:
1. Conditions in the Revitalization Area have substantially changed
since 1971.
2. The presence of the adult move theater at its present location
is substantially retarding the projected development of the Revitalization
Area and substantially contributes to blight, deterioration, deferred main-
tenance, business failures and a general unwillingness of property owners
in its general vicinity to participate financially in upgrading the area.
3. The City Council directs the City Administration to conduct
research to determine if areas ekist in the City of Des Moines which,
constitute reasonable and practical alternatives for the location of the
adult theater in a manner which does not place any burden on the potential
viewer or deter free expression.'
DOC.
INDEX
.48.010
Chapter 5.48
ADULT ENTERTAINMENT
Sections
5.48:010 = Definitions.
5.48.020 e -License frit- business required . - Fee.
5.48.030 License for managers and entertainers
required - Fee.
5.48.040 Due date for license fess.
5.48.050 Renewal of license, registration, or
permit - Late penalty.
5.48.060 License applications.
5.48.070 Manager on premises.
5.48.080 License nontransferable.
5.48.090 License - Posting and display.
5.48.100 License - Name of business and place
of business.
5.48.110 Adult entertainment business license -
Revocation.
5.48.120 Permit - Revocation or suspension.
5.48.130 License - Sale, transfer, or relocation.
5.48.140 Standards of conduct and operation.
5.48.150 Business hours.
5.48.160 Public nuisance.
5.48.170 Violation - Penalty.
5.48.180 Additional enforcement.
5.48.190 Minimum age of patrons - Violation -
Pcnalty.
5.48.010 Definitions.
(1) Use of Words and Phrases. As used in
this chapter, unless the context or subject mat-
ter clearly requires otherwise, the words or
phrases defined in this section shall have the
indicated meanings.
(2) "Adult entertainment" includes adult
entertainment facilities defined in the zoning
code and an exhibition or dance of any type
conducted in premises where the exhibition or
dance involves a person who is unclothed or in
such attire, costume, or clothing as to expose to
view any portion of the breast below the top of
the areola or any portion of the pubic region,
anus, buttocks, vulva, or genitals.
(3) "Employee" means all persons.
including entertainers and independent con-
tractors, who work in or at or render services
directly related to the operation of a public
place of amusement, that offers, conducts, or
maintains adult entertainment
(Revised 10,93)
5-38
(4) "Entertainer" means a person who pro-
vides adult entertainment within a public place
of amusement as defined in this section
whether or not a fee is charged or accepted for
the entertainment.
=(5)- "F-nt.-rtainment" means an exhibition
or dance of any type; pantomime 'inodeling, or
any -Other performance.
(6) "Manager" means a person appointed
by the operation who manages, directs,admin-
isters, or is in charge of, the affairs and/or the
conduct of any portion of any activity involv-
ing adult entertainment occurring at any place
offering adult entertainment.
(7) "Operator" means a person operating,
conducting, or maintaining an adult entertain-
ment business.
(8) "Public place of amusement," "public
amusement/entertainment," and "public enter-
tainment" mean an amusement, diversion,
entertainment, show, performance, exhibition,
display, or like activity, for the use or benefit
of a member or members of the public, or
advertised for the use or benefit of a member
of the public, held, conducted, operated or
maintained for a profit, either direct or indi-
rect. [Ord. 1050 § I,1993: Ord. 746 § 2, 1988.)
5.48.020 License for business required -
Fee.
(1) No public place of amusement, includ-
ing but not limited to places which offer adult
entertainment, shall be operated or maintained
in the city unless the owner or lessee thereof
has obtained a license from the city clerk; pro-
vided, however, that it is unlawful for an enter-
tainer, employee, or operator to }mowing!),
work in or about, or to knowingly perform any
service directly related to the operation of an
unlicensed public place of amusement/enter-
tainment.
(2) The annual fee for such a license is
$750.00.
(3) This license expires annually on
December 31st and must be renewed by Janu-
ary 1st.
(4) There is no prorating of the fee.
(5) The applicant must be 18 years of age
or older. [Ord. 746 § 3. 1988.)
DOC.
INDEX
# D--\
Des Moines Municipal Code 5.48.060
5.48.030 License for managers and
entertainers required — Fee.
(1) No person shall work as a manager or
entertainer at a public place of amusement
offering adult entertainment without having
fust obtained a manager's or an entertainer's
_" se f±bh tite:40 'clerkpiwsuant..to.DMMC
- _-�_luxn
5.48.060. = - -
(2) The annual fee for such a licensc.shall
be $200.00,
(3) This license expires annually on
December 31st and:must be renewed by Janu-
ary 1st
(4) There will be no prorating of the fee.
(5) The applicant must be 18 years of age
or older. [Ord. 746 § 4;19881
5.48.040 Due date for license fees.
All licenses required by DMMC 5.48:020
must be issued and the applicable fees are due
and payable to the city clerk at least 14 calen-
dar days before the opening of the adult enter-
tainment business. [Ord. 746 § 5, 1988.]
5.48.050 Renewal of license, registration,
or permit - Late penalty.
A late penalty shall be charged on all appli-
cations for renewal of a license, received later
than, 10 calendar days after the expiration date
of such license. The amount of such penalty is
fixed as follows;
(1) For a license requiring a fee of $:50 or
more, but less than or equal to $200.00, 20 per-
cent of the required fee;
(2) For a license requiring a fee of more
than $200.00, 10 percent of the required fee.
[Ord. 746 § 6, 1988.]
5.48.060 License applications.
For the .purposes of this chapter, the words
"license" and "permit" shall be considered
coextensive terms.
(1) Public Adult Entertainment License.
All applications for a public amusement/enter-
tainment license for places which offer adult
entertainment shall be submitted in the name
of the person or entity proposing to conduct
such public amusement/entertainment on the
business premises and shall be signed by such
person and notarized or certified as true under
5-39
penalty of perjury. All applications shall be
submitted on a form supplied by the city clerk,
which shall require the following information:
(a) The name, home address, home
telephone number, date and place of birth,
driver's license number, if any, and Social
Sccuritb i tth o thc applicant,if
cant is sn=irdividualo -- °
(b) The business name, employer
identification number, address, and telephone
number. of the establishment;
(c) The names, addresses, telephone
numbers, and Social Security numbers of any
partners, including limited partners, corporate
officers, shareholders who own 10 percent or.
more of the' • business, or other persons who
have a substantial interest or management
responsibilities in connection with the busi-
ness, specifying the interest or management
responsibility of each. For the purpose of this
subsection "substantial interest" means owner-
ship of 10 percent or more` of the business, or
any other kind of contribution to the business
of the same or greater size;
(d) Tams of any loans, leases, secured
transactions, and repayments therefor relating
to the business;
(e) Addresses of the applicant for the
five years immediately prior to the date of
application;
(f) A description of the adult entertain-
ment or similar business history of the
applicant; whether such person or entity, in
previously operating in 'this or another city,
county, state, or country has had a business
license revoked or suspended, the reason
therefor, and the activity' or occupation subse-
quent to such action, suspension or revocation;
(g) Any and all criminal convictions
or forfeitures other than parking offenses or
minor traffic violations including dates of con-
viction: nature of the crime, name and location
of court and disposition for each owner, part-
ner or corporation;
(h) A description of the business,
occupation, or employment of the applicant for
the three years immediately preceding the date
of application;
(i) Authorization for the city, its
agents, and employees toseek information to
DOC.
INDEX
# )-
S.48.060
confirm any statements set forth in the applica-
tion;
pplication;
(1I) Supplemental identification and/or
information necessary to confirm matters set
forth in the application.
(2) Manager _ or Entertainer License. A
MIF�.i`� L-•
separate license shall be o rained' ror each and=-
every establishment -lit -which the applicant will
practice. All applications for a manager's or
entertainer's license shall be signed by the
applicant and notarized or certified to be true
under penalty of perjury. All applications shall
be submitted on a form supplied by the city
clerk, which shall require the following infor-
mation:
(a) The applicant's name, home
address, home telephone number, dare and
place of birth, fingerprints taken by the city
clerk; Social Security number, and any stage
names or nicknames used in entertaining,
(b) The name and address of each
business at which the applicant intends to
work;
(c) The applicant shall present docu-
mentationthat he or she has attained the age of
18 years. Any of the following shall be
accepted as documentation of age:
(i) A. motor vehicle operator's
license issued by any state bearing the appli-
cant's photograph and date of birth; or
(ii) A state -issued identification
card bearing the applicant's photograph and
date of birth; or
(iii) A valid passport bearing the
applicant's photograph and date of birth;
(d) A complete statement of all con-
victions of the applicantfor any misdemeanor
or felonyviolations in this or any other city,
county, state, or country, except parking viola-
tions or minor, traffic infractions;
(e) A description of the applicant's
principal- activities or service to be rendered;
(f) Resident addresses and telephone
numbers for five years immediately prior to
the date of application specifying the period of
residence at each address;
(g) The name and address of employ-
ers or individuals or businesses for whom the
applicant was an employee or independent
contractor for the three-year period immedi-
5-40
ately prior to the date of application, including
the period of employment;
(h) Supplemental information and/or
identification deemed necessary by the clerk
or her or his designee to confirm any - state-
ments set forth in the application;
(i.) __Authorization for the = city,- = its
agents and employees to investigate and con-
firm any statements set forth in the application.
(3) If any person or entity acquires, subse-
quent to the issuance of a public amusement/
entertainment license for places offering adult
entertainment, a substantial interest in the
licensed premises, immediate noticeof such
acquisition shall be provided in writing to the
city clerk, and in no event, not later than 21
days following such acquisition. Further, the
person or entity acquiring such an interest shall
furnish to die city clerk such equivalent infor-
mation as if they were an applicant for an orig-
inal license under this chapter. The
information required to be provided pursuant
to this subsection shall be that information
required pursuant to subsections (1) and (2) of
this section.. -
(4) Copies of an application shall, within
five calendar days of receipt thereof, be
referred by the city clerk to the city manager,
planning, building, fire district, or other apprri-
priate departments. The departments shall,
within 30 business days, inspect the applica-
tion, the premises proposed to be operated as
an adult entertainment place and shall make
written verification to the city clerk that such
premises complies with the codes of the city.
No license may be issued without such verifi-
cation. The application shall also be referred to
the police department for a criminal records
check and verification of the information pro-
vided by the applicant on the application for a
license.
(5) Upon completion of the investigation
and review by the departments, a review of the
recommendations and verifications, and a
determination that all matters contained in the
application are true and correct and that this
chapter has been complied with, the city clerk
shall issue such license applied for in accor-
dance with the provisions of this chapter; pro-
vided, however, that the applicable license fee,
DOC.
INDEX
Das Moines Municipal Code
together with any delinquent fees that may
then be due shall first be paid to the city. [Ord.
746 § 7, 1988]
5.48.070 Manager on premises.
__ --A_licensed .-maiagershall.be ort the_grem-
ises ofa public Aar a of am ent=at-all ill neu
shat adult- cn rtauuneiit is being provided. -
[Ord. 746 § 8, 1988.]
5.48.080 License nontransferable.
No license or permit shall be transferable.
[Ord. 746 § 9, 1988.]
5.48.090 License — Posting and display.
(1) Every adult entertainer shall post his
or her permit in his or her work area so it Ls
readily available for public inspection.
(2) Every person, corporation, partner-
ship, or association licensed under this chapter
shall display such license in a prominent place.
The name of the manager on duty shall be
prominently posted during business hours.
[Ord. 746 § 10, 1988.]
5.48.100 License — Name of business and
place of business.
No person granted a license pursuant to
this chapter shall operate the adult entertain-
ment business under a name not specified in
his/her license, nor shall he/she conduct busi-
ness under any designation or location not
specified in his/her license. [Ord. 746 § 11,
19881
5.48.110 Adult entertainment business
license — Revocation.
Any license issued for an adult entertain-
ment business may be revoked or suspended
by the city councilafter notice of not less than
10 calendar days, and a subsequent -hearing for
good cause, or in any case where any of the
provisions of this chapter are violated, or
where any employee of the licensee is engaged
in any conduct which violates any state or local
laws or ordinances at licensee's place of' busi-
ness and of which the licensee has actual or
constructive knowledge. Such permit may also
be revoked or suspended by the city council
after notice and hearing, upon the recommen-
5.48.140
dations of the city health official that such
business is being managed, conducted, or
maintained without regard to.proper sanitation
and hygiene. [Ord. 746 § 12,. 1988.]
5.48.120 Permit - Revocation or
-_ -_ =
An adult entertainment rnafrager 'or enter=
tamer license issued by the city clerk shall be
revoked or suspended where it appears that the
holder has procured such license by fraud,
material misstatement, or omission or by other
deceptive means, or has committed an act in
violation of this chapter. [Ord. 746 § 13, 1988.]
5.48.130 License — Sale, transfer, or
relocation.
Upon sale, transfer, or relocation of an
adult entertainment business, the license there-
for shall be null and void; provided, however,
that upon the death or incapacity of the lic-
ensee or any colicensee, any heir or devisee of
a deceased licensee, or any guardian of an heir
or devisee of a deceased licensee may continue
the adult entertainment for a reasonable period
of time not to exceed 60 calendar days to allow
for an orderly renewal of the license, if such
new licensee fulfills all requirements of this
chapter. [Ord. 746 § 14, 1988.]
5.48.140 Standards of conduct and
operation.
(1) The following standards of conduct
must be adhered to by employees of any public
place of amusement which offers, conducts, or
maintains adult entertainment.
(a) No employee or entertainer shall
be unclothed or in such attire, costume, or
clothing so as to expose to view any portion of
the breast below the top of the areola or of any
portion of the pubic region, anus, buttocks,
vulva, or genitals except as provided for in
subdivision (e) of this subsection and subsec-
tion (3)(c) of this section.
(b) No employee or entertainer min-
gling with the patrons shall be unclothed or in
such attire, costume, or clothing as described
in subdivision (1) of this subsection.
(c) No employee or entertainer shall
encourage or knowingly permit any person
DCC.
5-41 INDEX
1
1
$.48.140
upon die premises to touch, caress, or fondle
the breasts, buttocks, anus, or genitals of any
other person.
(d) Except as provided in subdivision
e of this subsection and subsection (3)(c) of
-Y =kaon, employees or -cu ®t -;in
conformance with subdivision -(a) of this sub- - _.
section shall not perform acts of or acts which
simulate:
(i) Sexual intercourse, masturba-
tion, sodomy, bestiality, oral copulation,
flagellation, or any sexual acts which are pro-
hibited by law; or
(ii) The touching, caressing, or
fondling of the breasts, buttocks, or genitals; or
(iii) The displaying; of the pubic
region, anus, buttocks, vulva, or genitals.
(e) No employee or entertainer shall
be unclothed or in such attire, costume, or
clothing so as to expose to view any portion of
the breast below the top of the areola, or any
portion of the pubic region, vulva, or genitals,
anus and/or buttocks exposed to view except
upon a stage at least 18 inches above the
immediate floor level and removed at least six
feet from the nearest patron.
(f) No employee or entertainer shall
use artificial devices or inanimate objects to
depict any of the prohibited activities
described in this subsection_
(g) No employee or entertainer shall
remain in. or upon the public place of amuse-
ment who exposes to public view any portion
of his or her genitals or anus except as
expressly provided for in subdivision (e) of
this subsection and subsection (3)(c) of this
section.
(h) No entertainer of any place offer-
ing adult entertainment shall be visible from
any public place during the hours of his or her
employment, or apparent hours of his or her
employment, on the premises.
(i) No entertainer at a place offering
adult entertainment shall demand or collect all
or any portion of'a fee from a patron for enter-
tainment before its completion.
(j) A sign shall be conspicuously dis-
played in the common area of the premises,
and shall read as follows:
5-42
THIS ADULT ENTERTAINMENT
ESTABLISHMENT IS REGULATED
BY THE CITY OF DES MOINES;
ENTERTAINERS ARE:
Not_permitted=to engage in.any type
Ofiexial cocduct; " - -
b. Not permitted to be unclothed or in
such attire, costume or clothing so as
to expose to view any portion of the
breasts below the top of the areola,
any portion of the pubic region, but-
tocks,
uttocks, genitals or vulva and/or anus ex-
cept upon a stage at least eighteen,
Inches from the immediate floor level
and removed at least six feet from the
nearest patron; and
c. Not permitted to demand or collect
all or any portion of a fee from a patron
for entertainment before its comple-
tion.
(2) At any public place of amusement
which offers, conducts, or maintains adult
entertainment, the following are required:
(a) Admission must be restricted to
persons of the age of 18 years or more; and
(b) Neither the performance nor any
photograph, video, drawing, sketch, or othcr
pictorial or graphic representation thereof dis-
playing any portion of the breasts below the
top of the areola or any portion of the pubic
hair, buttocks, genitals, and/or anus may be
visible outside of the public place of amuse-
ment so Iiccnsed.
(c) Sufficient lighting shall be pro-
vided in and about the parts of the premises
which are open to and used by the public so
that all objects are plainly visible at all times.
(3) This chapter shall not be construed to
prohibit
(a) Plays, operas, musicals, or other
dramatic works which are not obscene;
(b) Classes, seminars, and lectures
held for serious scientific or educational pur-
poses; or
DOC.
INDEX
# p --1
Des Moines Municipal Code
(c) Exhibitions or dances which are
not obscene.
(4) For purposes of this chapter, an activ-
ity is "obscene" if:
(a) Taken as a whole by an average
person pplying_-contemporary_,:_community
"stair lards ti e=activity ppealil b a —prurient
interest in sex;
(b) The activity depicts patently offen-
sive representations according to Des Moines
community standards of
(i) Ultimate sexual acts, normal or
perverted, actual or simulated; or
(ii) Masturbation, fellatio, cunni-
lingus, bestiality, excretory functions, or lewd
exhibition of the genitals or genital area; or
violent or destructive sexual acts, including
but not limited to human or animal mutilation,
dismemberment, rape or torture; and
(c) The activity taken as a whole lacks
serious literary, artistic, political, or scientific
value.
(5) For purposes of this chapter, an activ-
ity is "dramatic" if the activity is of, relating to,
devoted to, or concerned specifically or pro-
fessionally with current drama or the contem-
porary theater. [Ord. 746 § 15, 1988.]
5.48.150 Business hours.
No public entertainment shall be con-
ducted between the hours of 2:30 a.m. and
10:00 a.m. [Ord. 746 § 16, 1988.]
5.48.160 Public nuisance.
An adult entertainment business operated,
conducted, or maintained contrary to the pro-
visions of this chapter or a law of the city or
state shall be, and the same is, unlawful and a
public nuisance and the city attorney may, in
addition to or in lieu of prosecuting a criminal
action under this chapter, commence an action
or actions, for the abatement, removal, and
enjoinment thereof, in the manner provided by
law; and shall take such other steps and shall
apply to such court or courts as may have juris-
diction to grant such reliefs as will abate or
remove such adult entertainment business, and
restrain and enjoin any person from operating,
conducting, or maintaining an adult entertain -
5 -43
5.48.190
nient business contrary to the Feons of this
chapter. [Ord. 746 § 17, 1988.]
5.48.170 violation —Penalty.
(1) No person, except those persons who
are specifically`'= eixemptect - by is eha iter"
whether acting as an individual'dwner, opera-
tor, employee, or agent or independent con-
tractor for the owner, employee, or operator,
or acting as a participant or worker in any way
directly or indirectly who works in or operates
an adult entertainment business, or any of the
services defined in this chapter shall conduct
the same without first obtaining a license or
permit, and paying a fee to do so, from the
city.
(2) A violation of or failure to comply
with this section is a class 1 civil infraction.
[Ord. 1009 § 41, 1993: Ord. 746 § 18, 1988.]
5.48.180 Additional enforcement.
Notwithstanding the existence or use of
any other remedy, the city may seek legal or
equitable relief to enjoin any acts or practices
which constitute or will constitute a violation
of any business license ordinance or other reg-
ulations adopted in this code. [Ord. 746 § 19,
1988.]
5.48.190 Minimum age of patrons —
Violation — Penalty.
(1) No person under the age of 18 years
shall loiter in or about, or be found in a public
place of amusement offering adult entertain-
ment.
(2) No person shall allow a person under
the age of 18 years to enter or remain upon the
premises where adult entertainment is offered.
(3) A violation of or failure to comply
with this section is a class 1 civil infraction.
(4) If a greater minimum age is specified
by state law then such provision shall prevail
as to enforcement of state law. [Ord. 1009 §
42. 1993: Ord. 746 § 20, 1988.]
DOC.
INDEX
# E-
(Revised 4193)
AMENDMENTS TO YMC 15.09.200 & YMC 5.30
ADULT ENTERTAINMENT BUSINESS
EXHIBIT LIST
CHAPTER -E
Public Comments & Notices
— iif '
„
,
1 1 p
'.rt ', al,,•1.?:4'
E-1
Comments received by Tina Powers, Kittitas-Yakima Women
of Vision
08/16/2012
E-2
Legal Notice — Yakima Planning Commission Open Record
Public Hearing
11/16/2012
E-3
Legal Notice — City Council Closed Record Public Hearing
11/28/2012
YAKIMA-CITY-COUNCIL
NOTICE OF CLOSED RECORD PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the Yakima City Council will conduct a closed record
public hearing to consider the City of Yakima Planning Commission's recommendation
regarding Amendments to Municipal Code Pertaining to Adult Entertainment. Closed Record
Hearing means the public is invited to testify on the existing City Planning Commission's
recommendations but will not be allowed to introduce any new information.
Said public hearing will be held Tuesday, December 11, 2012 at 3400 7 p.m. in the
Council Chambers at City Hall located at 129 North 2nd Street, Yakima Washington.
For additional information, please contact Mark Kunkler, Senior Assistant City Attorney,
575-6030 or e-mail at mkunkler(a ci.vakima.wa.us. Any citizen wishing to comment on any
matter within the record in this issue is welcome to attend the public hearing or contact the City
Council in the following manner:
1) Send a letter via regular mail to "Yakima City Council, 129 N. 2' Street, Yakima, WA
98901," or,
2) E-mail your comments to ccounciIc ci.yakima.wa.us. Include in the e-mail subject
line, "adult entertainment." Please also include your name and mailing address.
Dated this 28th day of November, 2012.
Sonya Claar Tee
City Clerk
DOC.
INDEX
# E-3
CITY OF YAKIMA
NOTICE OF OPEN RECORD PUBLIC HEARING
URBAN AREA ZONING ORDINANCE AMENDMENTS TO THE ADULT BUSINESS
--RDINANCE
NOTICE IS HEREBY GIVEN that the City of Yakima Planning Commission will conduct an open
record public hearing to consider amendments to the Adult Entertainment Codes in the Yakima
Municipal Code. The open record public hearing will be held on Wednesday November 28 at
3:30 p.m., or soon thereafter, in the Council Chambers at Yakima City Hall, 129 N. 2nd Street,
Yakima, Washington.
Any citizen wishing to comment on the ordinance amendments is welcome to attend the open
record public hearing or contact the Planning Division in the following manner:
1) Send a letter via regular mail to "Planning Division, 129 N. 2nd Street, Yakima, WA
98901"; or,
2) E-mail your comments to ask.planning@yakimawa.gov. Include in the e-mail subject
line, "Adult Business Amendments." Please also include your name and mailing
address.
DATED this 16I' day of November, 2012.
Rosalinda lbarra
Planning Technician
DOC.
INDEX
# E- --_
women
(vision
August 16, 2012
City Hall Council Members
c/o City of Yakima
129 North Second Street
Yakima, WA 98901
RE: Proposed Adult Entertainment Venue/Strip Club in Yakima
Dear Council Members:
Distributed a the
Meeting :)-/;:,
Kittitas Yakima Chapter
On behalf of Kittitas-Yakima Women of Vision,1 am writing to you to express my grave
concern and strong opposition to the proposed strip club in Yakima. The location of this
sexually explicit business in our community will have severe consequences for the economic and
social well-being of surrounding neighborhoods and undermine and destabilize the quality of life
of our community.
The Yakima business community and non-profit organizations have worked diligently to create a
positive environment and encourage the further economic growth and prosperity of the area. The
inclusion of such a sexually explicit business undermines this work and hurts the possibility of
attracting more businesses and residents to the area.
Adult entertainment businesses generate "adverse secondary impacts" and have been linked to
sex trafficking of girls. Several jurisdictions within the state of Washington have documented
their findings of these adverse impacts. The venue will undoubtedly bring loitering,
drunkenness, drugs, prostitution and an increase in personal and property crimes to our area.
City of Yakima ordinances governing adult entertainment are designed to provide balance and
are, or should be, sect to a minima sense test: Owners of the proposed strip club seek to
meet a rigid interpretation of an ordinance and by doing so circumvent any application of
common sense, which should be the ultimate test.
As you seek further public comment on this issue, please consider all the relevant impacts that
this type of business will have on our community, our neighborhoods, and most importantly, our
children. Z funily and expressly oppose the operation of this club in our community,
Sincerely,
Tina Powers, Chapter Co -Chair
Kittites-Yakima Women of Vision
6702 Crestfields Road
Yakima, WA 9g903
DOC.
INDEX
Alarm Systems
Yakima Municipal Code — Includes no mention of alarm systems of watchers to sound an alarm when
police are approaching
OakHarbor MunicipaiFCode - 5.20.320 - Alarfn system at entrance-= Untawf ll: -
it is unlawful for any person to construct or cause to be constructed, or to suffer or permit to continue
or be maintained, any alarm or system of alarms in connection with the entrance or entrances leading to
any room or place in any adult entertainment establishment.
5.20.330 - Warning of approach of police - Lookouts.
It is unlawful for the owner or any person having the management or control or charge of, or in the
employment of the owner of, any place in the city of Oak Harbor, or where an adult entertainment
establishmentis maintained, to employ, station, post, keep, maintain, suffer or permit any person or
persons at or near the entrance or entrances thereto, or in any place so as to command a view of the
approach thereto, for the purpose or with the object of giving any advice, information or warning in any
manner whatsoever that police officers are approaching, are about to enter, are entering, or have
entered such place.
5.20.34.0 - Warning that police are approaching - Unlawful.
it is unlawful for any person to give any advice, information or warning, in any manner whatsoever, that
police officers are approaching, are about to enter, are entering or have entered, any place in the adult
entertainment establishment.
5.20.350 - Presence in place where warning given.
ft shall be unlawful for any person to be with one (1) or more other persons in any adult entertainment
establishment, when, with the knowledge of such person at such time any person is employed,
stationed, kept, maintained, suffered or permitted at or near the entrance or entrances thereto or in
any place so as to command a view of the approach thereto, for the purpose or with the object of giving
any advice, information or warning in any manner whatsoever that police officers are approaching, or
are about to enter, are entering, or have entered, such place.
5.20.380 - Permitting alarm system unlawful.
It shall be unlawful for the owner of, or any agent or other person or persons -having the charge or rental
of, any premises occupied by any adult entertainment establishment, to knowingly suffer or permit to
be constructed, or to be continued or maintained, any alarm or system of alarms in connection with the
entrance or entrances leading to any room or place in such adult entertainment establishment.
Since the purpose of these types of alarm systems is to thwart the efforts of the police in enforcing the
ordinance, we think it is worthy to consider including similar information in the Yakima Ordinance.
DOC.
INDEX
# I
Barriers
Yakima Municipal Code — includes no mention of railings or barriers between dancers and patrons
To prevent the encroachment of patrons onto the stage area, several cities in Washington include a
barrier/railing between dancers -and patrons. :
Mulkiteo - 5.06.200 Regulations specifically applicable to adult cabarets.
B. Separation of Entertainers From Patrons. No ... A continuous fixed -barrier railing, of sufficient
construction to prevent encroachment by patrons onto the stage, at least three feet in height and
located at least ten feet from all points of the stage, shall seporate the stage from all patron areas.
Bellevue -5.08.070 Standards of conduct and operation —Adult cabarets.
0. Premises — Specifications.
1. Performance Area...... A continuous railing at least three feet in height and located at least eight
feet from all points of the performance area shall separate the performance area and the patron
seating areas.
Renton — 5-12-21 Facility Specifications for Adult Entertainment Businesses Providing Adult Live
Entertainment:
A continuous railing at least three feet (3') in height, attached to the floor, and located at least six feet
(6') from all points of the adult live entertainment performance area shall separate any performance
area and patron areas.
Renton - 5-12-24 Standards of Conduct Applicable to Employees, Entertainers, Patrons and Customers
in Adult Entertainment Businesses Providing Adult Live Entertainment:
2. No patron or customer shall go into or upon an adult live entertainment performance area.
Snohomish County — 6.25.115 Additional requirements for adult entertainment dance studios.
Every adult entertainment dance studio shall be physically arranged in such a manner that:
(1) Performance Area.... A continuous railing three to five feet in height above the floor and located
at least six feet from all points of the performance area shall separate the performance area and the
patron seating areas.
Since the protection of the dancers is of primary importance, we would like to ask that the inclusion of a
barrier or railing between the dancers and customers be added to the Yakima ordinance.
Further we would like the Yakima ordinance to specifically state clearly that no customers can go up on
the stage or any other performance area.
DOC.
INDEX
Entertainer's License
Yakima Municipal Code - 5.30.070 Entertainer—License issuance.
A. It is unlawful for any person to be employed as or act as an entertainer, as defined in Section 5.30.010 (3), unless
that person is the holder of a valid entertainer's license issued pursuant to this chapter. The fee for an entertainer's
license shall be one hundred dollars per calendar year, or portion thereof. Application for such license or renewal shall
be made to the code administration manager. - _ - --- -- -. -
B. All applications and requirements for issuance of an entertainer's license shall be the same as for a manager license,
as set forth in Section 5.30.060except that any license issued under the provisions of this section shall be valid for
employment in any adult entertainment establishment licensed under this chapter.
C. If the code administration manager finds that such application for license or renewal is in proper form, the code
administration manager shall refer all applications with photographs to the chief of the Yakima police department who
shall cause an investigation to be made of the applicant, including the statements in the application, and who shall
furnish a report to the code administration manager of the results of such investigation, including a recommendation as
to whether a license should be issued.
5.30.060 Manager—License issuance.
All applications for issuance or renewal of a manager's license shall be made to and filed with the code administration
manager on forms furnished by the code administration manager for such purpose, and be accompanied both by a
certified copy of applicant's birth certificate and a color photograph of the applicant approximately one inch square....
This application shall state the true name of the applicant and any other names the applicant may have used, together
with such other information as the code administration manager may deem necessary or desirable for the purpose of
enforcing or otherwise administering this chapter.
Other Cities' Requirements:
Bellevue: a. The applicant's name, home address, home telephone number, date and place of birth, fingerprints taken
by Bellevue police department employees, social security number, and any stage names or nicknames used in
entertaining. A complete statement of all convictions of the applicant for any misdemeanor or felony violations in this or
any other city, county, or state within five years immediately preceding the date of the application, except parking
violations or minor traffic infractions.
e. A description of the applicant's principal activities or services to be rendered.
f. Two two-inch by two-inch photographs of applicant, taken within six months of the date of application, showing only
the full face.
g. Authorization for the city, its agents and employees to investigate and confirm any statements set forth in the
application.
Renton: A. The applicant's name, any aliases or previous names, any stage names or nicknames used in entertaining,
home address, home telephone number, date and place of birth, and optional disclosure of Social Security number.
B. .Whether the applicant had any criminal activity, defined herein, within a five (5) year period immediately preceding
the date of the application, and, if so, the criminal act involved and the date and place of the criminal activity.
C. The names and addresses of all employers or individuals or businesses for whom the applicant was an employee or
independent contractor for the period of two (2) years immediately prior to the application date, and the time period of
such employment.
D. The name and address of each adult entertainment business at which the applicant intends to work asasan
entertainer,
INDEX
E. "Satisfactory documentation," as defined herein, that the applicant is eighteen (18) yearsaof age or older.
F. Evidence of the applicant having been fingerprinted from the Police Department.
Kent: All applications for a manager's or entertainer's license shall be signed by the applicant and notarized or certified
to be true under penalty of perjury.
1. The applicant's name, any aliases or previous names, home address, home telephone number, date and place of birth,
driver's license number, if any, social security number and, for entertainers, any stage names or nicknames used in
entertaining.
- 2:. The. name ansstaddress of_each business at which.theTapplicant inte s-to=work: - - =-_ - -
3. Documentation that the applicant has attained the age of eighteen (18) years. -
4. A complete statement of all convictions of the applicant for any misdemeanor or felony violations in this or any other
city, county or state, except parking violations or minor traffic infractions.
5. A description of the applicant's principal activities or service to be rendered.
6. Resident addresses and telephone numbers for the period of three (3) years immediately prior to the date of
application specifying the period of residence at each address.
7. The names and addresses of employers or individuals or businesses for whom the applicant was an employee or
independent contractor for the period of three (3) years immediately prior to the date of application, including the
period of employment.
8. Two (2) two (2) inch by two (2) inch color photographs of each applicant, taken within six (6) months of the date of
the application, showing only the fullface of the applicant. The photographs shall be provided at the applicant's
expense. Alternatively, the applicant may be required to submit to a photograph taken at the direction of the clerk.
9. Complete sets of fingerprints of each manager and entertainer on forms prescribed by the chief of police.
10. Authorization for the city, its agents and employees to investigate and seek information to confirm any statements
set forth in the application.
The license application is the first time that city officials will come into contact with dancers. It is a
crucial moment to ensure that the police have been provided all information needed for their
background check and that the dancer is fully aware of all provisions in the ordinance. The issuance of
this license is as important as (or more important than) the issuance of a food handler's permit, which
requires materials be given to the applicant and testing to ensure that the information in the,materials
are understood.
We would like to suggest that full and complete information needed in the application be detailed in the
Yakima ordinance. The primary goals of seeking this information are to determine identity,. verification
of age and determination of any past criminal history.
We further ask that as a part of the application process, the applicant appear for an in-person interview
with a police officer. At the time of this interview, the police officer will provide a copy of the current
ordinance and explain relevant parts that relate to dancer and customer behaviors controlled by the
ordinance. The officer may also ask a pre -determined list of questions to try to determine if the dance
has been lured, forced, coerced or trafficked.
We ask that the cost of the manager's and entertainer's license be reviewed to ensure that the full cost
to process the license and conduct the police interview and background check is paid by the business
making the application and therefore not subsidized by the taxpayer.
DOC.
INDEX
Inspection
Yakima Municipal Code - 5.30.050 Inspection.
A. Any police officer of the Yakima police department may visit and inspect all portions of any dance
_�_ _studio which are open to the public or to: which a person may gain entrance for=a fee, charge or other
consideration at any time when such establishment appears open for business for the purpose of
ascertaining if such establishment is being operated in compliance with this chapter and Section
6.04.375 of the Yakima Municipal Code.
B. It is unlawful for a person to hinder or obstruct in any way an officer in the performance of his or
her duty under subsection A of this section. (Ord. 2081 § 1 (part), 1977).
Oak Harbor Municipal Code — 5.20.100 License— Posting and display
1. Every adult entertainer shall post his or her license in his or her work area so it is readily available
for inspection by city authorities responsible for enforcement of this chapter.
Kent Municipal Code —5.10.010 - Findings of fact
6. It is necessary to license entertainers in the adult entertainment industry to prevent the exploitation
of minors, to ensure that each such entertainer is an adult, to ensure that such entertainers have not
assumed a false name which would make regulation of the entertainer difficult or impossible and to
ensure that such entertainers are not involved in criminal activity.
We are concerned that the arrival of a known undercover cop may instigate the signaling to underage
dancers that they need to leave` public areas so that their age/identity isn't detected by the police
officers who are there for an inspection. (see also separate notes on Alarm Systems)
We'd like the city attorney to consider a provision that allows a female police officer to enter the
dressing room of the strip club for the purpose of: verifying identity and age of dancers, verifying that
all dancers present have valid entertainer's licenses.
It would also be important to add that all entertainer's licenses must be posted in their dressing area, or
other gathering area at all times, in order to aid in the inspection of their licenses.
DOC.
INDEX
# a -r
interior Signage
Yakima Municipal Code - 5.30.040 - Unlawful conduct
S. Conduct or operate an adult entertainment establishment unless a clearly readable sign is
conspicuously.posted at:or near each public entrance to the studio, which sign is printedin letters. -at -
last one=incii tail and which reads substantially"as:follows:
THIS ADULT ENTERTAINMENT ESTABLISHMENT IS REGULATED BY THE CITY OF YAKIMA;
Bellevue Municipal Code - 5.08.070 Standards of conduct and operation — Adult cabarets
D3. Signs. A sign at least two feet by two feet, with letters at least one inch high shall be conspicuously
displayed in the public area(s) ofthe premises stating the following:
THIS ADULT CABARET 1S REGULATED BY THE CITY OF BELLEVUE. ENTERTAINERS ARE:
A. NOT PERMITTED TO ENGAGE IN ANY TYPE OF SEXUAL CONDUCT
B. NOT PERMITTED TO APPEAR SEMi-NUDE OR NUDE, EXCEPT ON STAGE
C. NOT PERMITTED TO ACCEPT TIPS OR GRATUITIES IN ADVANCE OF THEIR PERFORMANCE
D. NOT PERMITTED TO ACCEPT TIPS DIRECTLY FROM PATRONS WHiLE PERFORMING UPON ANY STAGE
AREA
Kent Municipal Code — 5.10.110 Specifications — Exotic dance studios.
E. Signs. Signs of sufficient size to be readable at twenty (20) feet shall be conspicuously displayed in the
public area of the establishment stating the following:
THIS ADULT ENTERTAINMENT ESTABLISHMENT IS REGULATED BY THE CITY OF KENT. ENTERTAINERS
ARE:
(A) Not permitted to engage in any type of sexual conduct;
(B) Not permitted to dance or appear nude, except on stage;
(C) Not permitted to solicit or demand or to directly accept, or receive any gratuity or other payment
from a patron.
Similar (stronger) wording for signs (as above) can be found in the Municipal Codes of Snohomish
County, Mulkiteo, Oak Harbor, and other cities. Larger sizes of font and sign size are specified as well.
We would like to request that the - 5.30.040 section of the ordinance be revised to reflect these new
standards for the posting of customer conduct provisions from the ordinance on the signs.
We would further request that the ordinance require that a poster with the National Human Trafficking
Hotline be posted in the dressing rooms. This is mandated by state law in several states now (California,
Texas, soon in Oregon) and several other states are working on new legislation to support this national
trend.
DOC.
INDEX
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Proximity of Dance to Patrons
Yakima Municipal code - 5.30.040 Unlawful conduct.
37. A licensed entertainer, only, may _be unclothed or in such attire, costume ,or clothing -so -as to.
-exposetaview anyportion of the breasts below the topoof-t-he=.areola,"or any portion of_the-pabtc aiif,
vulvagenitals, anus-orbuttocks, but only when upon a stage at least eighteen inches above the
immediate floor level and removed by at least six feet fromthe nearest patron.
B10. a. An entertainer mingling with a member of the public may not conduct a dance, performance,
or exhibition on or about the nonstage area of the adult entertainment establishment unless that dance,
performance, or exhibition is performed at a distance of at least four feet from the member of the
public for whom the dance, performance, or exhibition is performed. The distance of four feet is
measured from the torso of the dancer to the torso of the member of the public.
Kent - 5.10,110 - Specifications — Exotic dance studios.
A. Separation of adult entertainment performance area. The portion of the exotic dance studio
premises in which dancing and adult entertainment by an entertainer is performed shall be a stage
or platform at least twenty-four (24) inches in elevation above the level of the patron seating
areas and shall be situated so that no dances, performances, or exhibitions by an entertainer shall
occur closer than ten (10) feet to any patron.
Mulkiteo — 5.06.200 Regulations specifically applicable to adult cabarets.
B. Separation of Entertainers From Patrons. No entertainer shall appear to patrons except on a stage
or platform at least twenty-four inches in elevation above the patron seating areas. The stage shall
be separated by a distance of at least ten feet from al! areas of the premises to which patrons have
access.
In Colacurcio v City of Kent, the 10 foot distance from patrons was ruled permissible under the First
Amendment because it is justified without reference to the content of the regulated speech, prevents
public sexual contact, and leaves open alternative channels for the protected speech.
in D.C.R., Inc. v Pierce County— the court's requirement of a 10 -foot separation between the dancer
and patron was found to be constitutional with the court holding that proximity is not an expressive
component of erotic dance entitled to protection under either the First Amendment of the State
Constitution.
KEV, Inc v Kltsap.County— Upheld provisions which prohibited touching and require dancers to perform
on a two -foot high stage 10 feet away from patrons.
The trend towards increased distancing and protection of dancers Is evident in ordinances from other
cities, to create a better separation and wider "safe zone" between dancer and patron.
We request that the Yakima ordinance be revised to include a stage height of 24 inches and a minimum
distance of 10 feet between dancers and customers.
DOC.
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