HomeMy WebLinkAbout1281ORDINANCE NO. 1281 (1995 Series)
AN EMERGENCY INTERIM ORDINANCE OF THE
CITY OF SAN LUIS OBISPO PROHIBITING THE
ESTABLISHMENT OF AN ADULT ENTERTAINMENT BUSINESS
AND REPEALING SAN LUIS OBISPO MUNICIPAL CODE
CHAPTER 5.40
WHEREAS, the City of San Luis Obispo currently regulates adult
entertainment businesses by requiring the operator to obtain a
license from the City Council and imposing significant locational
restrictions, but does not require specific design and performance
standards for adult entertainment businesses; and
WHEREAS, numerous recent decisions from the state and federal
courts have invalidated municipal license procedures for adult
entertainment businesses based on the courts' concerns that
requiring such licenses often operates as unlawful prior restraint
on commercial free speech rights and violates the constitutional
principle of due process; and
WHEREAS, numerous recent decisions from the state and federal
courts have held that locational restrictions cannot entirely rule
out reasonable locations where adult - oriented businesses may exist
or compete in the marketplace; and
WHEREAS, based upon the studies submitted; the City Council
finds and determines that there are substantial negative adverse
secondary effects of adult bookstores, adult movie theaters or
other adult oriented businesses including live adult entertainment,
which include, among other things, an increase in crime and a
decrease in property values and retail trade; and
WHEREAS, under Section 605 of the City Charter, the City
Council may adopt an emergency measure for preserving the public
peace, health or safety which may be adopted at once if passed by
at least four affirmative votes; and
WHEREAS, based on the concerns over the validity of the
current locational criteria, the lack of design /performance
standards for adult entertainment businesses and questions
concerning the enforceability of the license provisions in
Municipal Code Chapter 5.40, the City Council finds and determines
that there is a current and immediate threat to the public health,
safety, or welfare from the secondary effects of adult- oriented
businesses that could be located in the City, such as reduction of
the quality of urban life, increase in crime, diminished retail
trade, diminished property values, diminished tourism and urban
blight; and
WHEREAS, the City Council finds that the immediate imposition
of a one hundred twenty (120) day moratorium on the establishment
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Ordinance No. 1281 (1995 Series)
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of any adult entertainment businesses by adoption of this emergency
ordinance will prevent the influx of applications for adult
entertainment business licenses, under the existing license and
locational provisions, that may otherwise occur while new
locational criteria and design /performance standards are under
review.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of
San Luis Obispo as follows:
SECTION 1: San Luis Obispo Municipal Code Chapter 5.40 is
hereby repealed in its entirety.
SECTION 2: Interim Prohibitions. No "adult entertainment
business" as defined in Section 3(A) of this Ordinance shall be
established in any area of the City of San Luis Obispo during the
120 calendar days following the adoption of this Ordinance.
SECTION 3: Definitions: For purposes of this Emergency
Interim Ordinance, the following terms shall be defined as follows:
A. "Adult entertainment business" shall mean those
businesses defined as follows:
1. Adult bookstore, adult novelty store, or adult video
store is an establishment with more than 25% of: (a) its floor
area devoted to; or (b) stock -in- trade consisting of; or (c) gross
revenues derived from, and offering for sale for any form of
consideration, any one or more of the following:
a. Books, magazines, periodicals or other printed
matter, photograph's, drawings, motion pictures, slides, films,
tapes, video cassettes, records, or other visual or audio
representations which are characterized by an emphasis upon the
depiction or description of "specified sexual activities" or
"specified anatomical areas."
b. Instruments, devices or paraphernalia which are
designed to be used in connection with "specified sexual
activities;" or
C. Goods which are replicas of, or which simulate
"specified anatomical areas," or goods which are designed to be
placed on or in "specified anatomical areas," or to be used in
conjunction with "specified sexual activities ".
2. "Adult live entertainment theater" means any place,
building, enclosure or structure, partially or entirely used for
"live adult entertainment" performances or presentations
characterized by an emphasis on depicting, exposing, displaying,
describing or relating to "specified sexual activities" or
Ordinance No. 1281(1995 Series)
Page Four
transferable to a college, junior college, or university supported
entirely or partly by public revenue; or
(3) In a structure operated either as a profit or
not - for - profit facility
(a) which has no sign visible from the exterior of
the structure and no other advertising that indicates a nude person
is available for viewing; and
(b) where, in order to participate in a class a
student must enroll at least three days in advance of the class.
C. The practice of massage in compliance with Chapter
5.56 of this Code.
B. "Establish." "Establish" shall mean and include any of
the following:
1. The opening or commencement of any adult entertainment
business as defined in this Section; or
2. The conversion of an existing business, whether or not an
adult entertainment business, to any adult entertainment business
as defined in this Section; or
3. The relocation of any adult entertainment business; or
4. The addition of any of the "adult entertainment
businesses" defined herein to any other existing adult
entertainment business.
C. "Specified anatomical areas." "Specified anatomical
areas shall include the following:
1. Less than completely and opaquely covered human
genitals, pubic region, buttock, anus, and /or the 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.
D. "Specified sexual activities." "Specified sexual
activities" shall include the following:
1. Actual or simulated sexual intercourse, oral
copulation and intercourse, oral -anal copulation, bestiality,
direct physical stimulation of unclothed genitals, flagellation or
torture in the context of sexual relationship, or the use of
excretory functions in the context of a sexual relationship, and
Ordinance No. 1281 (1995 Series)
Page Three
"specified anatomical areas" for observation by patrons or
customers therein.
"Live adult entertainment" means any physical human body
activity, whether performed or engaged in alone or with other
persons, including but not limited to singing, walking, speaking,
dancing, acting, posing, simulating, wrestling or pantomiming, in
which the performer or performers expose to public view without
opaque covering "specified anatomical areas" for entertainment
value for any form of consideration.
3. "Adult motion picture or video arcade" means any business
wherein coin, paper, note, or token operated or electronically,
electrically, or mechanically controlled still or motion picture
machines, projectors, or other image - producing devices are
maintained to show images to four or fewer persons per machine, at
any one time, and where the predominant character or theme of the
images so displayed is distinguished or characterized by its
emphasis on matter depicting, or relating to "specified sexual
activities" or "specified anatomical areas."
4. "Adult motion picture theater" means any business, other
than a hotel or motel which provides closed circuit viewing to each
individual room as a secondary service to its motel customers, with
the capacity of five or more persons where, for any form of
consideration, films, motion pictures, video cassettes, slides, or
similar photographic reproductions in which the predominant
character and theme is distinguished or characterized by its
emphasis on matter depicting or relating to "specified sexual
activities" or "specified anatomical areas" as defined in this
section. This incudes, without limitation, showing any such
slides, motion pictures or videos by means of any video tape system
which has a display, viewer, screen, or a television set.
5. "Exceptions." An "adult entertainment business" shall
not include:
a. Bona fide medical establishments operated by
properly licensed and registered medical and psychological
personnel with appropriate medical or professional credentials for
the treatment of patients.
b.- Persons depicting "specified anatomical areas" in a
modeling class operated:
(1) By a college, junior college, or university
supported entirely or partly by public revenue; or
(2) By a private college or university which
maintains and operates educational programs in which credits are
Ordinance No. 1281(1995 Series)
Page Six
City Clerk on and after the date following passage and shall be
available to any interested member of the public.
INTRODUCED AND FINALLY PASSED by the Council of the City of
San Luis Obispo at a meeting held on the 5th day of September ,
1995, on motion of Council Member Smith , seconded by Vide Mayor
Romero , and on the following roll call vote:
Ayes: Council Members Smith, Romero, Roalman, Williams and Mayor Settle
Noes: None
Absent: None
Mayor Allen Settle
ATTEST:
Git/ Cl rk
By Kim kondmen, Assistant City Clerk
APPROVED:
City Adminis ative ff cer
Ordinance No. 1281(1995 Series)
Page Five
any of the following sexually oriented acts or conduct: anilingus,
buggery, coprophagy, coprophilia, cunnilingus, fellatio,
necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty;
or
2. Clearly depicted human genitals in a state of sexual
stimulation, arousal or tumescence; or
3. Human or animal masturbation, sodomy, oral
copulation, coitus, ejaculation; or
4. Fondling or touching of nude human genitals, public
region, buttocks or female breast; or
5. Masochism, erotic- or sexually oriented torture,
beating or the infliction of pain; or
6. Erotic or lewd touching, lewd fondling or other lewd
contact with an animal by a human being; or
7. Human excretion, urination, menstruation, vaginal or
anal irrigations.
SECTION 4: Duration. This Emergency Interim Ordinance shall
terminate and be of no further force or effect 120 calendar days
from the date of adoption unless extended by action of the City
Council.
SECTION 5: Severability. If any provision, section,
subsection sentence, clause or phrase of this ordinance, or the
application of same to any person or set of circumstances if for
any reason is held to be unconstitutional., void or invalid, the
invalidity of the remaining portions of this Ordinance shall not be
affected thereby, it being the intent of the City Council in
adopting this Ordinance that no portion thereof, or provisions, or
regulations contained herein, shall become inoperative, or fail by
reason of any unconstitutionality of any other portion hereof, and
all provisions of this Ordinance are declared to be severable for
that purpose.
SECTION 6: Effective Date. This Ordinance is, for the
reasons specified in Section 1 of the Ordinance, declared to be
necessary as an emergency measure for preserving the public peace,
health and safety, and is therefore adopted as emergency
legislation and shall be effective immediately. The City Clerk
shall cause a summary of this Ordinance, approved by the City
Attorney, to be published within five (5) days of passage in a
newspaper of general circulation, but delay in publication, or even
failure to publish, shall not affect its validity. A copy of the
full text of this ordinance shall be on file in the office of the