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Ordinance - 1906URGENCY ORDINANCE NO. 1906 AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WEST COVINA, PERTAINING TO REQUIREMENTS FOR THE ESTABLISHMENT AND OPERATION OF ADULT ORIENTED BUSINESSES AND AMENDING ARTICLE VI OF CHAPTER 15 OF THE WEST COVINA MUNICIPAL CODE • RELATING TO PUBLIC INDECENCY WHEREAS, the City Council of the City of West Covina wishes to promote the City of West Covina's very significant interest in protecting and preserving the quality of its neighborhoods, commercial, manufacturing, and industrial districts, and quality of urban life through effective land use planning; and WHEREAS, the City Council of the City of West Covina is informed of the existence of studies conducted in the Cities of Seattle and Tacoma, Washington; Detroit, Michigan; Garden Grove, California; and Indianapolis, Indiana showing that the location of Adult Oriented Businesses causes secondary impacts which degrade the quality of the areas of the City in which they are located, causes a blighting effect on the City, and increases crime; and WHEREAS, the City Council of the City of West Covina is aware of the following comments received in other communities regarding Adult Oriented Businesses: a. Areas within close walking distance of single and multiple family dwellings should be free of Adult Oriented Businesses; b. Areas where children could be expected to walk, patronize or recreate should be free of Adult Oriented Businesses; C. Adult businesses should not be located in areas of a city which are in the vicinity of residential uses, churches, parks other public facilities, and schools; d. The image of a city as a pleasant, safe and attractive place to reside may be adversely affected by the presence of Adult Oriented Businesses in close proximity to residential land uses, churches, parks, other public facilities, and schools; e. Regulation of Adult Oriented Businesses should be developed to prevent deterioration and/or degradation of the vitality of the community • before the problem exists, rather than waiting for a problem to be created; f. Commercial areas of a city patronized by young people and children should be free of Adult Oriented Businesses; g. The location of Adult Oriented Businesses in areas of a city which are in close proximity to schools and commercial areas patronized by students and young people may have a detrimental effect upon the quality of education which the school districts are providing for their students; h. The education of students may be negatively affected by location of Adult Oriented Businesses in the vicinity of schools; i. Adult Oriented Businesses should be regulated by developing zoning which will separate such land uses from incompatible uses; j. The location of Adult Oriented Businesses in proximity to residential uses, churches, parks, schools, and other public facilities, has been shown to lead to increased levels of criminal activities, including prostitution, rape, incest and assaults in the vicinity of such Adult Oriented Businesses; k. The experience of numerous other cities, including Seattle and Tacoma, Washington; Detroit, Michigan; Garden Grove, California; and Indianapolis, Indiana has shown that location of Adult Oriented Businesses degrades the quality of the area of a city in which they are located and causes a blighting effect upon such cities; 1. A reasonable regulation of the location of Adult Oriented Businesses will provide for the protection of the image of the community and its property values, and will protect its residents from the adverse secondary effects of such Adult Oriented Businesses, while providing to those who desire to patronize Adult Oriented Businesses such an opportunity to do so in areas within a city which are appropriate for the location of Adult Oriented Businesses; M. The community will be an undesirable place to live if it is known on the basis of its image as the location of Adult Oriented Businesses; -2- n. A stable atmosphere for the rearing of children cannot most effectively be achieved in close proximity to Adult Oriented Businesses; o. The location of Adult Oriented Businesses on the main commercial thoroughfares of a city would give an impression of legitimacy to, and • cause a loss of sensitivity to the adverse affect of pornography upon children, established family relations, respect for marital relationship, for the sanctity of marriage relations of others, and the concept of non -aggressive consensual sexual relations; p. Property values in the areas adjacent to the Adult Oriented Businesses may decline, thus causing a blight upon the commercial area of a city; q. The location of Adult Oriented Businesses in the vicinity of residential uses, churches, parks, other public facilities, and schools, will cause a degradation of the community standard of morality; and WHEREAS, the City Council intends to examine the above - referenced studies and comments from other communities to determine if it believes them to be true and accurate; and WHEREAS, the City Council intends to determine if the City of West Covina is faced with the possibility of incurring detrimental secondary effects from Adult Oriented Businesses such as those other communities apparently believe they have incurred; and WHEREAS, the City Council is considering the adoption of a zoning ordinance upon completion of its review of all relevant materials to regulate any detrimental secondary effects from Adult Oriented Businesses that it may find the City is potentially exposed to; and WHEREAS, the City Council believes there is a possibility that Adult Oriented Businesses may seek to establish themselves within the City prior to such time as it may determine whether a zoning ordinance specifically designed to regulate their secondary effects is warranted; and furthermore, the Council believes such Businesses may pose a threat to the health, safety and welfare of the citizens of West Covina if, indeed, such a zoning ordinance is warranted, yet no valid regulation on Adult Oriented Businesses is in place prior to its adoption and, therefore, intends to adopt this urgency measure under Govt. Code S 65658; and -3- WHEREAS, it is not the intent of the City in adopting this urgency ordinance to suppress any activities protected by the First Amendment, but to enact a content neutral Urgency ordinance which addresses the secondary effects of Adult Oriented Businesses. NOW, THEREFORE, the City Council of the City of West Covina hereby ordains as follows: • erection 1: Definitions. The following definitions shall apply for purposes of this urgency ordinance: "Adult Bookstore": Any establishment having as one of its principal business purposes the display and/or distribution of books, periodicals, magazines, photographs, drawings, sculpture, motion pictures, or films, or other visual representations which are distinguished or characterized by an emphasis on matter depicting, describing or related to Specified Sexual Activity or Specified Anatomical Areas. "Adult Hotel/Motel": A hotel or motel, which provides, through closed-circuit television, or other media, material which is distinguished or characterized by the emphasis on matter depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Areas. "Adult Merchandise": sexually oriented implements and paraphernalia, 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. "Adult Oriented Business": Adult Bookstores, Adult Theaters, Massage Parlors, Adult Dancing Establishments, Escort Services, Sexual Encounter Centers, Strippers, Figure Modeling Studios, Adult Motels or Hotels, Drug Paraphernalia Business, any other business or establishment which offers to its patrons services or entertainment characterized by an emphasis on matters depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Areas but not including those uses or activities, the regulations of which are preempted by state law. "Adult Oriented Business" shall also include any establishment which, on a regular basis, provides or allows performers, models, or employees to appear in any place in lingerie or in any opaque covering which is altered to become non - opaque such that Specified Anatomical Areas become visible. For the purposes of this Section, "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 -4- following conditions exist: a. The area devoted to Adult Merchandise or Adult Oriented Material 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 Oriented Business 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 Oriented Business 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 15 percent of total operations or revenues received. d. "Adult Merchandise" is displayed or merchandised. "Adult Oriented Material": any book, periodical, magazine, photograph, drawing, sculpture, motion picture film, or other visual representation characterized by an emphasis on matter depicting, describing, or relating to Specific Sexual Activity or Specified Anatomical Areas. "Adult Theater": an establishment which presents live entertainment or motion pictures or slide photographs, which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to Specified Sexual Activity or Specified Anatomical Areas. Adult Theater shall include cabaret. "Drug Paraphernalia": that equipment, products, and other materials defined in California Health and Safety Code 11014.5. "Escort": a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person. -5- "Escort Service": a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip, or other considerations. "Model Studio": 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, sculpted, photographed, or similarly depicted by persons paying such consideration or gratuity. "Sexual Encounter Center": 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 purposes of engaging in Specified Sexual Activities or exposing Specified Anatomical Areas. "Specified Anatomical Areas": a. Less than completely and opaquely covered human genitals; pubic region; buttock; or female breast below a point immediately above the top of the areola; or b. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. "Specified Sexual Activities": a. Human genitals in a state of sexual stimulation or arousal; or b. Acts of human masturbation, sexual stimulation or arousal; or C. Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast; Section 2: The Following Regulation of Adult Oriented Businesses is hereby adopted for the duration of this urgency ordinance. A. Purpose. The purpose of this urgency ordinance is to regu- late Adult Oriented uses which, because of their very nature, are apparently recognized in other communities as having significant secondary effects on the community which include, but are not limited to: depreciated property values; vacancies in commercial areas in the vicinity of Adult Oriented Businesses; interference with residential neighbors' enjoyment of their property when such property is located in the vicinity of Adult Oriented Businesses due to increased debris, noise and vandalism; higher crime rates in the vicinity of Adult Oriented Businesses; and blighting conditions such as low level maintenance of commercial premises and parking lots which thereby have a deleterious effect upon adjacent areas. Special regulation of these uses is believed to be necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the neighborhoods in the vicinity of the Adult Oriented Businesses within West Covina. It is • neither the intent, nor effect of this Ordinance to impose limitations or restrictions on the content of any communicative material. Similarly it is neither the intent, nor effect of this Ordinance to restrict or deny access by adults to Adult Oriented Materials protected by the First Amendment, or to deny access by the distributors or exhibitors of adult oriented entertainment to their intended market. Nothing in this Section is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which violates any City ordinance or statute of the State of California regarding public nuisances, sexual conduct, lewdness or obscene or harmful matter or the exhibition or public display thereof. B. Adult Oriented Business Permit Required. No Adult Oriented Business shall be permitted to operate within the City unless the owner first obtains an Adult Oriented Business Permit from the Planning Director or his or her designee ("Planning Director"). C. Adult Oriented Business Permit Application. Any person, association, partnership, group, or corporation wishing to operate, engage in, conduct or carry on any Adult Oriented Business shall submit an application, with the applicable application fee to the Planning Director. An application for an Adult Oriented Business Permit shall be signed by the Applicant, which signature shall be notarized, and shall contain the following information: (1) the full name of the applicant as well as any other names used by the applicant. (2) the current residential and business addresses and current residential and business telephone numbers of the applicant. (3) previous business and residential addresses of the applicant, if any, for a period of -7- five years immediately prior to the date of the application and the dates during which the applicant operated at each address. (4) written proof that the applicant is at least 18 years of age. (5) two photographs of the applicant at least two inches by two inches in size (2" x 2") taken within six months of the filing of the application. (6) the applicant's birth date and place of birth. (7) business, occupation, or employment history of the applicant for the past five years. (8) the business license history of the applicant, whether the applicant has ever had a license or permit for an Adult Oriented Business revoked or suspended in this or any other city or State, and the circumstances surrounding such a revocation or suspension. (9) all convictions, including ordinance violations exclusive of traffic violations within the past 10 years, as well as the dates and jurisdictions of any such convictions. (10) If the applicant is a corporation, the name of the corporation exactly as shown in its articles of incorporation or charter, together with the place and date of incorporation, the names and addresses of each of its current officers and directors, and the names of each stockholder holding more than 5% of the stock in the corporation. If the applicant is a partnership, the name, residence address, and the dates of birth of the partners, including limited partners. If the applicant is a limited partnership, a copy of its certificate of limited partnership filed with the County Clerk. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporations shall apply. The applicant, whether it is a corporation or partnership, shall designate one of its officers or general partners to act as the "applicant." Such designated persons shall complete and sign all application forms required of an individual appli- cant under this Section, and shall be the person responsible for managing and operating the Adult Oriented Business. (11) The name and addresses of the owner and lessor of the real property upon which the business is to be conducted, and a copy of the lease or rental agreement. (12) A description of the proposed business activity including a list of the activities the business intends to undertake and interior and exterior plans for the Adult Oriented Business. • D. Approval of Permit. The Planning Director shall approve or deny the Adult Oriented Business Permit within thirty (30) days of determining that the application is complete. The application shall be determined to be complete upon receipt of all required documentation and fees. E. Conditions of Issuance. An Adult Oriented Business Permit shall be issued if each of the following criteria are satisfied: (1) Zoning - the Adult Oriented Business is to be located in the Manufacturing, M1 Zone. (2) Proximity to other uses - the Adult Oriented Business is not: a. within three hundred (300) feet of any residential zones or any lot upon which a residential use is legally occurring at the time this ordinance is adopted; b. within three hundred (300) feet of any lot upon which there is located a church or other religious facility or institution, public park, or educational institution which is utilized by minors; and C. within 500 feet of another Adult Oriented Business unless such Adult Oriented Business is within a single tract shopping center or mall, in which case the Adult Oriented Business shall not be within one hundred feet of another Adult Oriented Business. (3) Traffic - The Adult Oriented Business shall not be located in an area where the traffic from the Adult Oriented Business shall increase the volume capacity ratio below level of service E; or, will worsen the existing condition at level of service F; or increase the volume capacity ratio by .02, all as determined by the City Engineer. (4) Development Standards - the Adult Oriented Business shall comply with the Development Standards, including signage standards, for the M1 zone. (5) Display of Adult Oriented Material or Merchandise - The Adult Oriented Business shall not display any Adult Oriented Material or Merchandise in such a manner so as to be visible from any dolocation other than within the Adult Oriented Business. (6) Exclusion of Minors - The Adult Oriented Business shall not be accessible to any person under the age of 18. (7) Areas Open to Public View - No Area within the Adult oriented business shall be visible from its exterior. All areas within the Adult Oriented Business which are accessible to the public shall be open to public view from within said Business at all times, with the exception of lavatory facilities, which facilities shall be free from Adult Materials and Merchandise. (8) Business Hours - No Adult Oriented Business shall operate from the hours of 2:00 a.m. to 7:00 a.m. (9) Exterior Appearance - The exterior appearance of the structure shall not be inconsistent with the external appearance of other commercial or industrial structures already constructed or approved for construction within the immediate area so as to cause blight, deterioration, or substantially diminish or impair property values within the immediate area. The exterior design and decor of the Business will not be conspicuous relative to other commercial uses, nor will the exterior lighting and signage be dissimilar to those of nearby businesses. (10) Criminal History and License - The applicant has not been found guilty of a felony within the past seven (7) years and has never violated any of the provisions of an Adult Oriented Business Permit or similar permit or license in the City of West Covina or in any other City or State. F. Inspections. The Permittee shall permit officers of the City of West Covina to inspect the premises of the Adult Oriented Businesses for the purpose of ensuring compliance with the law at any time the Adult Oriented Businesses is open for business or -10- occupied. G. Permit Renewal. Adult Oriented Business Permits shall only be valid for a period of one year from the date of issuance. Adult -oriented Business Permits may be renewed on a year to year basis provided that the permittee • continues to meet the requirements set forth in this section. The renewal fee for an Adult Oriented Business Permit shall be established by resolution of the City Council. H. Permits Non -Transferable. No Adult oriented Business Permit may be sold, transferred, or assigned by any permittee or by operation of law, to any other person, or persons. Any such sale, transfer, or assignment or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of such Permit and such Permit shall thereafter be null and void. An Adult Oriented Business Permit held by an individual in a corporation, partnership, or limited partnership is subject to the same rules of transferability as contained above. I. Permit Issued for One Location Only. An Adult Oriented Business Permit shall only be valid for the location specified on the Permit. J. Permit Revocation. The Planning Director may, based on evidence that any provision of this Section has been violated, revoke an Adult Oriented Business Permit. Written notice of the proposed revocation shall be furnished to the permittee. Such notice shall summarize the principal reasons for the proposed revocation and shall be delivered both by posting the notice at the location of the Adult Oriented Business and by sending the same, certified mail, return receipt requested and postage pre -paid, addressed to the permittee as that name and address appears on the Permit. Within ten (10) days after the latter of the mailing or posting of the notice, the permittee may file a request for hearing with the City Clerk. If the request for a hearing is timely received by the City Clerk, the hearing shall be provided as contained in Subsection K below. K. Permit Revocation Hearing. -11- Upon receipt of a written request for a hearing, the Planning Director shall appoint a hearing officer who shall conduct a hearing within ten (10) days of receipt of such request. The permittee shall be notified by certified mail, return receipt requested and postage pre -paid, of the time and place of the hearing. At the hearing, the permittee and the City shall be entitled to present • relevant evidence, testify under oath, and call witnesses who shall testify under oath. The hearing officer shall not be bound by the traditional rules of evidence in the hearing, except that hearsay evidence may not be the sole basis for the determination of the hearing officer. Within ten (10) days of the termination of the hearing, the hearing officer shall submit a written report to the Planning Director. Such written report shall contain a brief summary of the evidence considered and shall state findings, conclusions and recommendations. All such reports shall be filed with the City Clerk, and shall be considered public records. A copy of such report shall be forwarded by certified mail, return receipt requested and postage pre -paid, to the permittee on the day it is filed with the City Clerk. If the hearing officer determines that the applicant has violated any of the provisions of this Section, the Planning Director, based upon the report of the hearing officer, or if no hearing is conducted, based upon the report of the City staff, shall revoke the permittee's Adult Oriented Business Permit. The decision of the Planning Director shall be final. L. Measurement of distances. For the purpose of this Section, measurements shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where the Adult Oriented Business is conducted to the nearest property line of the premises of the religious institution, educational institution utilized by minors, park or other Adult Oriented Business, or to the nearest boundary of a Residential district or if the other Adult Oriented Business is in the same mall or shopping center, the distance shall be measured in a straight line between the front doors of each business. M. Violation and penalty. 1. Every person, whether acting as an individual owner, employee of the owner, permittee, or operator or employee of the permittee, or whether -12- acting as a mere helper for the owner, permittee employer, or operator, or whether acting as a participant or worker in any way, who operates or conducts an activity referred to in this Section without first obtaining an Adult Oriented Business Permit from the City, or who shall violate any provisions of this Section, shall be guilty of a misdemeanor. Any person violating any of the • provisions of this Section shall be fined not more than One Thousand Dollars ($1,000.00) for each offense nor imprisoned for more than six (6) months in the county jail or both for each offense. Each day such violation shall continue shall be regarded as a separate offense. 2. Any establishment operated, conducted or maintained contrary to the provisions of this section is unlawful and a public nuisance, and the City Attorney may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings 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 jurisdiction to grant such relief as will abate or remove such Adult Oriented Business and restrain and enjoin any person from operating, conducting or maintaining such an establishment contrary to the provisions of this chapter. Section 4: Section 15-121 of the West Covina Code entitled, "Exposure by Waiters, Waitresses and entertainers" is hereby amended to read in its entirety as follows: Sec. 15-121. Exposure by waiters, waitresses and other food and beverage handlers or servers. Every person is guilty of a misdemeanor who, while acting as a waiter, waitress, or in any other employment capacity wherein food and/or beverages are handled or served in an establishment which serves food, beverages or food and beverages, including but not limited to alcoholic beverages, for consumption on the premises of such establishment: 1. Exposes his or her genitals, pubic hair, buttocks, natal cleft, perineum, anal region or pubic hair region; or 2. Wears any device, costume or covering which exposes, or reveals, as by its non-opague nature, or gives the appearance of or simulates the genitals, pubic hair, buttocks, natal cleft, perineum, anal region or pubic hair region; or -13- 3. Exposes any portion of the female breast at or below the areola thereof. Section 5: Section 15-126 of the West Covina Municipal Code entitled "Employment or payment not necessary for offense" is hereby amended to read in its entirety as follows: A person shall be deemed to be a waiter, waitress, or • other employee who handles or serves food and/or beverages if such person acts in that capacity without regard to whether or not such person is paid any compensation for that purpose by the management of the establishment in which the activity is performed. Section 6: West Covina Municipal Section 15-127 entitled Exposure by Performers in Public, Section 15-128 entitled Counseling or Assisting, and Section 15-129 entitled Exemption of Theatrical Establishments are, during the existence of this urgency ordinance, hereby repealed and of no force or effect. These three sections of. the City's Municipal Code shall once again have effect upon the expiration of this urgency ordinance, unless repealed, modified or otherwise amended by a permanent ordinance of the City Council. Section 7: Severability. Should any section, subsection, clause, or provision of this urgency ordinance for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this urgency ordinance; it being hereby expressly declared that this urgency ordinance, and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved and ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 8: Immediately Effective. This ordinance is for the immediate protection of public health and safety by preventing such businesses from being located without standards during the adoption of a permanent zoning ordinance and, as such, shall be effective immediately and shall be effective for 45 days under Govt. Code § 65658. PASSED, APPROVED AND ADOPTED this 30th day of June , 1992. MAYOR ATTEST: CITY CL IR -14- I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the City Council of the City of West Covina at a special meeting thereof, held on the 30th day of June , 1992, by the following vote of the Council: AYES: COUNCILMEMBERS Manners, Jennings, Herfert, Wong NOES: COUNCILMEMBERS McFadden • ABSENT: COUNCILMEMBERS None CITY CLERK APPROVED AS TO FORM AND CONTENT: 8/384/014125-0003/025 -15- CERTIFICATION I, JANET BERRY, Deputy City Clerk of the City of West Covina, State • of California, do hereby certify that a true and accurate copy of Ordinance No. �9D� was published, pursuant to law, in the San .Gabriel Valley Tribune, a newspaper of. general circulation published and circulated in the City of West Covina. DATED:��- Janet Berry, City Clerk City of West Covina, California r