Loading...
12/11/2012 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 1 1 1 III r I 1 I 1 1 1 1 L—E— I_ I • Ott//irr��c�Ci�f no unite /11■. ILIMMEN tuum N■ �J�z qtr; 1 -■ .,.... ii�,� rlirif litTei�J� r rq ff�uutii s... M R= �i�iLI mirk" 1111111111 11-- 1•i! ■A ■ rte— -■i■■+. 111111iliill1►..r= 11 1 r s ■' :iIV ' iiill l 11117 _''� �+#4,..) !!k!&4j1�� ■■ � �rs>r>��r 1 1 � a � : I r Existing Store 1500 Ft Buffer M1 Zoning Residential Zone 800 ft Park 800 ft Child Care 800 ft ���i Church 800 Ft' Library 800 ft Schools 800 Ft ____ Union Gap 800 Ft 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. 7 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. DOC. INDEX # 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 DOC. INDEX 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). DOC. 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. DOC. INDEX # - 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. DOC" INDEX #__-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. DOC. INDEX # '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. DOC. INDEX # 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). • DOC. INDEX # '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). DOC. INDEX # �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. Doc. INDEX # D 7 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. DOC. INDEX • # 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. INDEX 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 -- zi 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 DOC. INDEX # O- 2,2 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. INDEX 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. INDEX #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. INDEX . # D 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. DOC., INDEX # D a 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. INDEX # D 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. INDEX # D 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 DOC. INDEX # 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. DOC. INDEX # 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. DOC. INDEX # O 9 LC 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. DOC. INDEX # D - c q 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. DOC. INDEX # 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 DOC, INDEX # D 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. DOC. INDEX # 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. INDEX # 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. INDEX 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. DOC. INDEX # 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 DOC. INDEX • # 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 DOC. 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 : I7f�Yi�r.:„'r !i -' Y•,H.^."Jl3.un.,d"A.,��fr.-l.�f�?.'•" .y'.r•a. �ldur,u.4}p.,fi ,d7t`.'0e' "�iJ,.r1kq`.!� ?Y•.iF�<'a�,.L;,yl.ia�7� h��:9tiytHa,"4';, :,;.ti,i (y w�Yw%Nr4N- ���P. .. ,rrr.•: 8 =am� _o_}•. .ya ...`,uqt.yl+(iP'.^::� 5.3inlr'-�^•4ry�,a�fia»r1 k.2�"tRi�:•r:a3• r"Y•"�,u.' �3 *Yi'.Y �( t�t r7SII'1'('::�",� Y(•,'."k'khk=g^:ikJ+AF�i �.r,,,a�,"%��r�i.�t%f,7iti�'.j.�., l it .i�•"��Cy'%�h�k�t,e��"r�,L",at��;;t w,�, h1J" ":a ,$kp. 'i$, 9t;tr;3td'•Xf9 �.i Ae , ,i' ^dC'q �al�,l ,a y�}r�5' dl'�lili(eFY .r`�uYh";' w`, }siesry�p�q .1..�_m�:y,C..'I �{iitli '��}v`�..laaiw1r•� fi rT''V )�«�°Na'ii' �+,V i-..I�t,' , .,:, .-.• (v.�. ,.,,. : . .]� fjp�a'{�•' N Vi, A-1 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 DOC. INDEX # 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: 4 DDC. INDEX 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 DOC. INDEX # 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 - INDEX 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 DOC. INDEX # 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. DOC. INDEX # 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. INDEX 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 1 DOC. INDEX ;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 DOC. INDEX # 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 DOC. 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 DOC. INDEX 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 I 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Case 2:10-cv-03092-RMP Document 226 Filed 07117/12 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 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12 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 l,� Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12 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 IN Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12 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 Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12 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 Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12 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. PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT — 15 INDEX Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12 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, PLAIN I FF' S MOTION FOR PARTIAL SUMMARY JUDGMENT -- 16 1N Case 2:10-cv-03092-RMP Document 226 Filed 07/17/12 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 C1Iiir...v ' } .L��..,''i �m t tll . .�. ex •, r -n .r..re .. li,'�N,�'1%AS( q J•"hT5 `ifr„Y ^ 77 L�'u4�^eF:rh� �ugytnuM4'•j - Il%'f ��'ld'FT']���%-�+i"+� rN'..�,YA44. ��Y%�'Ma'SJu„ni t E.N" 1�„x"Y'eti ki `� YrGf'%af1 ! 6:b e`:t ^t'L�m.a CL I -H C'°'i � �tY �+� fys_., F4 ...fdf'+s dry .=:rt"� '�.�w.w.�,.5u..v7 I! 41'4�r{ (�1tj k i9<J i 10/01/2012 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 INDEX # D, -y Adult Cabaret Director's Report March 28, 2006 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. 2 DOC. INDEX # D `�' Adult Cabaret Director's Rcport March 28, 2006 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 DOC. INDEX 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. 4 INDEX # ,v--' -- Adult Cabaret Director's Report March 28. 2006 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. 5 INDEX # x--14 Adult Cabaret Director's Report March 28, 2006 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. 6 DOC. INDEX Adult Caharet Director's Report March 28. 2006 — 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). 7 DOC. INDEX D- -Adult Cabaret Director's Report March 28, 2006 • 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; R DOC. INDEX ,71 o -z-1 -Adult Cabaret Director's•Report _ March 28. 2006 • 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 9 DOC. INDEX # p -y Adult Cabaret-Director`s-Report March 28, 2006 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. 10 DOC. INDEX # b-}-4 Adult Cabaret Director's Report March 28, 2006 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. 11 DOC. INDEX Adult Cabaret Director's Report 'March 28.2006 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 DOM 1NDEX # - Adult .Cabaret Director's -Report March 28, 2006 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 13 DOC. INDEX 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 -_�_ ,q 1:1% UI.111 is MINA tusopsi In NOE NS •• IOU II r tuniwista swirolintl itimetaa -1 'xIiU\U #111111V I8 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 -. 3 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- INDEX 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.) 3 DOC. INDEX # Adm. Rpt. 6-7-84 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 4 DOC. INDEX # -- Adm. Rpt. 6-7-84 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, 5 DOC„ INDEX # D--1 1 1 i 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 Adm. Rpt. 6-7-84 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 6 DOC. INDEX # b-- k ; - 1 1 1 1 1 1 1 4 Adm. Rpt. 6-7-84 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. 7 DOC. INDEX # - 1 1 1 1 1 1 1 1 1 1 1 Adm. Rpt. 6-7-84 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 DOC. INDEX # 0-\ 8 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. 9 INDEX 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. 10 INDEX # D 1 1 1 1 1 1 1 1 Adm. Rpt. 6-7-84 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. INDEX # 0- 11 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 12 1 DOC. INDEX # D- 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. 13 DOC. INDEX 1 1 1 1 1 1 38 QTRS. 147,953 Total Admissions 1 i 1 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 DOC. INDEX 1 1 1 1 1 • I 1 1 1 1 1 1 1 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 # p-1 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 •-�.-.--�-.-• a urw MCV3 • 1 110 Wese Shan Avenue • Anchorage, AK 99503 • t907) 276.es413 I 1 1 1 1 1 I. 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 1 1 1 1 1 1 1 1 1 1 1 1 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 # 1 1 1 1 1 1 1 1 1 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 p--1 i 1 1 1 1 1 w 1 1 1 • 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 &JD 1, 1 1 1 1 1 1 1 1 1 1 1 1 1 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 1 1 1 1 1 1 1 1 1 1 1 1 1 1 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 DOC. INDEX 3 El" M Seams • 3,0 5 an.vers,tv • Seetzle, WA 9E310' • 2C5 24-6235 5.. t, xr:n • .r.-• . • ----- • Cc() • • • 1 1 1 1 1 1 1 1 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. 4 DOC. INDEX 1 1 1 1 1 1 1 1 1 1 1 1 1 1 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, 5 DOC, INDEX 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. DOH. INDEX # \ 6 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 7 DOC. INDEX # D- 1 1 1 1 1 1 1 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. 8 DOC. INDEX # D- 1 I 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 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 9 DOC. INDEX # o --t 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 10 DOC. INDEX # D-1 1 1 1 1 1 1 1 1 1 1 1 1 1 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 DOC. INDEX # D -- 11 1 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. DOG. INDEX 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 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 DOC. INDEX 1: # 1) 1 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. DOC. INDEX # D --- 1 i 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 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. 15 DOC. INDEX # D --j 1 1 1 1 1 1 1 1i 1 1 1 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 DOC. INDEX # V 16 1 1 1 1 1 1 1 1 1 1 1 1 1 1 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. 17 DOC. INDEX # �- I 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„ INDEX # D --1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 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. INDEX # 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. INDEX # 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. INDEX # D- 1 1 1 1 e 1 1 1 1 1 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. INDEX # D--- 1 1 1 i 1 1 1 1 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 1 1 1 1 1 1 1 1 1 1w 1 • 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. INDEX #i D-- 1 1 1 1 1 1 1 1 1 1 1 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. INDEX #D-- 1 1 1 1 1 1 1 1 1 1 1 1 1 1 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. INDEX # D 1 1 1 1 1 1 1 1 1 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. INDEX 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. INDEX 1 1 I 1 1 1 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. 1 INDEX 1 1 1 1 1 1 1 1 1 1 1 1 1 1 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. INDEX # D--1 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. INDEX # D \ 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 # D-`( 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. INDEX # D-} 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 1 1 1 1 1 1 1 1 1 1 1 1 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. 0 MI ZCI 4 1 1 1 S 1 1 1 1 1 1 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 # e-� 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. INDEX