HomeMy WebLinkAbout1979-05-15; City Council; 5846; Adult entertainment ordinance.CITY OF CARLSBAD
Initial
AGENDA BILL NO: <5~ & *7 Lp \ Dept. Hd.
DATE: May 15, 1979 Cty* Atty —3
Cty. Mgr. ~K
DEPARTMENT ^Redevelopment (Planning) . ~J
SUBJECT:
Report on Adult Entertainment Ordinance -'/; ///)
Statement of the Matter
At its meeting of August 2, 1977, the City Council adopted Ordinance No.
9486, an interim urgency ordinance, prohibiting certain uses in the
downtown redevelopment study area. At its meeting of August 1, 1978,
the Council extended the ordinance provision for one year, as provided by
law, to permit completion of regulatory documents. Those documents are
now complete and ready to begin the hearing process.
As noted in the attached staff report, the.proposed ordinance is based
upon the Detroit technique and is structured in the basic zoning regulations
format. The Detroit technique, simply stated, merely prevents any new
regulated use from locating within a prescribed distance of an existing
regulated use or within a prescribed distance of any parcel of land with
a residential zoning classification or which contains certain specified
land uses. The Detroit ordinance does not contain an abatement provision,
although abatement of existing uses, as part of the ordinance, would be
permissible to achieve the goal of dispersal of regulated uses.
The ordinance goes further in separating adult uses which have a sexual
nature from those adult uses which do not have a sexual nature. In
addition, certain other types of uses, which are not strictly limited to
adult entertainment, are also included within the regulatory provisions.
By permitting these uses conditionally, greater control can be exercised
to ensure that these uses do not lead to deterioration of the neighborhood.
In summary, this ordinance balances the need of the City to protect
the health, safety and welfare of its citizens with an individual's
ability to utilize his property.
Exhibit: Report of the City Manager, dated April 30, 1979
Recommendation: It is recommended that if the proposed ordinance fulfills
the intent of the City Council, that it direct that it be presented to
the Planning Commission for public hearing pending final Council
consideration.
JEH:ms
AGENDA BILL 5846 Page 2
Council Action:
5-15-79 Council directed that the proposed ordinance be presented
to the Planning Commission for public hearing pending final
Council consideration.
MEMORANDUM
DATE: April 30, 1979
TO: City Manager
Planning Director
FROM: Redevelopment Coordinator
SUBJECT: ADULT ENTERTAINMENT ORDINANCE
Background
At its meeting of August 2, 1977 the City Council adopted
Ordinance No. 9486, an interim urgency ordinance, prohib-
iting certain uses in the downtown redevelopment study area.
At its meeting of August 1, 1978 the Council extended the
ordinance provision for one year, as provided by law, to
permit completion of regulatory documents.
The attached ordinance addresses two categories of use which
should be regulated to ensure that the operation will not
contribute to the downgrading of the surrounding neighborhood
and to preserve and protect public health, safety and welfare
in the City of Carlsbad. The ordinance amends the C-l and
C-2 zone classifications to permit liquor stores, bars and
cocktail lounges by conditional use permit and adds several
other uses to the conditional use permit provisions of Title
21. Additionally, the ordinance creates an adult entertainment
chapter—Chapter 21.43—which addresses uses not open to the
general public by virtue of age restriction and those which
are sex oriented.
The ordinance contains a list of definitions, including the
basic descriptive definition of "specified sexual activities"
and "specified anatomical areas", which are the keystones of
the regulatory approach. In addition, the draft ordinance
defines those adult entertainment establishments which are
regulated by its provisions, including adult bookstores,
adult motion picture theatres and cabarets, and various
other uses. Also defined are those uses, including motion
picture theatres and bookstores, which are not considered to
be adult entertainment establishments.
Justification:
The City of Carlsbad is currently involved in efforts to
stabilize and revitalize its existing neighborhoods. Recent
activity in the areas of redevelopment, housing, rehabilitation
and replacement of deteriorated public improvements are
indicative of the City's commitment to maintaining and
Planning Director -2- April 30, 1979
upgrading the social and aesthetic environment of its
neighborhoods. The City is also committed to protecting the
public health, safety and welfare of all the neighborhoods
in the City, including newer neighborhoods and developments.
The City Council has determined that regulation of both
sexually related and nonsexually related adult entertainment
in other establishments is necessary to protect the health,
safety and welfare and the social and aesthetic environment
of the City's neighborhoods.
While case law recognizes the broad power of cities to
regulate the use of property within city limits to protect
not only the health,safety and welfare, but such matter as
aesthetics, a balance must be reached between the public's
need for protection and an individual's ability to use his
property as he sees fit. This ordinance seeks to balance
the City's police power and the desire to project its citizenry
with constitutional protections afforded by the First Amendment
to individuals. In addition, consideration is given to
permitting individuals to utilize their property in a manner
they see fit yet which is consistent with the general public's
need to regulate certain uses by distinguishing between two
types of adult uses; that is, those related to sexual
activities and those not related to sexual activities, this
ordinance achieves the desired regulatory balance.
The proposed regulations treat the adult entertainment uses
as proper commercial uses but in a manner that might well be
termed a preventive regulation. Although there has been
some concentration of certain of these uses in certain
areas, it appears to be advisable to use this technique to
prevent further concentration or expansion of existing
concentrations rather than waiting until such concentrations
have reached such proportions that corrective actions become
difficult,if not impossible, to develop. It has been well
documented by cities (Detroit, Boston, New Orleans, San
Diego, Santa Barbara, Oceanside) and recognized by the
courts that land use regulation is a reasonable approach to
eliminating the adverse affects resulting from concentration
of adult type uses. It has been established that unregulated
concentration of the uses identified in this ordinance
create discernible adverse impacts on the community. Examples
of the blighting affects of unregulated concentrations
include:
1. The California Youth Authority Psycologist's testimony
in Santa Barbara that concentration of the types of
uses identified in the adult entertainment ordinance
tend to have an adverse impact on children.
Planning Director -3- April 30, 1979
2. Expert land use testimony declaring that concentrations
of unregulated adult uses result in economic deteri-
oration and blight.
3. Testimony by an economic consultant during a hearing in
Oceanside that the concentration of these uses results
in the decline of maintenance and improvement of property
in and adjacent to the areas of concentration.
It is therefore reasonable for the City Council to determine
that concentrations of unregulated uses as identified in
this ordinance will contribute to social, economic and
physical decline in the City of Carlsbad. This ordinance
attempts to preclude the establishment of "skidrows" in one
or more areas of the city. This approach would contribute
to ensuring the maintenance and enhancement of the quality
of life which is currently found in the City of Carlsbad.
Carlsbad is fortunate to have recognized the dilatory effect
of concentration of adult uses before they were firmly
established within the city. This ordinance will establish
a policy which will discourage and possibly prevent deterioration
and devaluation of the City's neighborhoods. The goal of
this ordinance is to prevent the decline of property values,
increased incidents of crime and decreased usage of certain
neighborhoods by the general public which can result from
concentrations of unregulated adult entertainment uses.
Techniques for regulation
There are two basic techniques for the regulation of adult
entertainment establishments. The first approach is Boston's
"adult entertainment district", also referred to as "the
combat zone". This technique used a special purpose overlay
district imposed over a portion of downtown Boston. This
overlay district is the only area of the City in which adult
entertainment uses are permitted and was originally envisioned
as a method in preventing the spread of these uses throughout
the City. The second technique is that utilized by the City
of Detroit. This technique is essentially a method of
dispersal. Since the constitutionality of the Detroit
technique was upheld by the United States Supreme Court, its
popularity, as a model ordinance for a large number of cities
throughout the nation, has grown. Major California cities,
including Los Angeles, San Francisco, San Jose, Santa Barbara
Planning Director -4- April 30, 1979
and San Diego, all have either adopted an ordinance based on
the Detroit model, or are in the process of preparing and
considering one.
The Detroit technique, simply stated, merely prevents any
new regulated use for locating within a prescribed distance
of an existing regulated use or within a prescribed distance
of any parcel of land with a residential zoning classification
for which contains certain specified land uses. The Detroit
ordinance does not contain an abatement provision, although
abatement of existing uses, as part of the ordinance, would
be permissible to achieve the goal of dispersal of regulated
uses.
Proposed Ordinance
This proposed ordinance is based upon the Detroit technique
and is structured in the basic zoning regulations format.
It also goes further in separating adult uses which have a
sexual nature from those adult uses which do not have a
sexual nature. In addition, certain other types of uses,
which are not strictly limited to adult entertainment, are
also included within the regulatory provisions. By permitting
these latter uses, through the conditional use permit procedures,
greater control can be exercised to ensure that these uses
do not lead to deterioration of the neighborhood.
The remainder of this memo will deal specifically with the
provision of the new ordinance dealing with adult entertain-
ment uses of a sexual nature.
The ordinance contains a list of definitions, including the
basic descriptive definition of "sexual conduct" and "specified
anatomical areas" which are the keystones of the regulatory
approach. In addition, the ordinance defines those adult
entertainment establishments which would be regulated by
its provisions, including adult bookstores, adult motion
picture theatres and cabarets, as well as various other
uses. Also, defined are motion picture theatres and book-
stores which are not adult entertainment establishments. In
order to formulate these definitions we have utilized an
approach incorporated into a San Francisco draft ordinance.
This approach requires that a significant percentage of film
presentation time or bookstore floor area be devoted to
other than "sexual conduct" and "specified anatomical areas"
recognizing that many first run feature films and many best
selling books have portions of their contents which some
individuals or organizations may interpret as falling within
the "sexual conduct" and "specified anatomical areas"
Planning Director -5- April 30, 1979
categories. Therefore, in the option of the Planning Department,
this approach would probably preclude any hardships being
placed upon theatres and bookstores which have no intent of
becoming adult entertainment enterprises.
The ordinance also lists specific permitted adult entertain-
ment establishments and indicates specifically exempted uses
which are not intended to be confused with adult entertainment
establishments.
Insofar as regulatory provisions are concerned, the draft
ordinance provides for spacing between regulated uses and
spacing between regulated uses and residential zones and
certain public uses such as churches and schools.
The regulations also provide for a waiver of regulatory
provisions upon a fifty-one percent petition from surround-
ing residents, property owners and business people. In
addition, the public hearing body would have to make certain
findings before granting a waiver.
The ordinance contains provisions which prohibit the visual
display of signs and materials pertaining to "sexual conduct"
and "specified anatomical areas".
Conclusion
By enacting the ordinance the Council will be declaring that
concentration or location of those uses in various areas
would adversely affect public health, safety and welfare.
But, Council will not be imposing moral standards of oper-
ation upon these uses.
In summary, this ordinance balances that need of the City to
protect the health, safety and welfare of its citizens with
an individual's ability to utilize his property.
The Planning Department has reviewed the regulations and has
determined that they are exempt from the provisions of the
California Environmental Quality Act (CEQA).
Recommendation
It is recommended that the proposed ordinance be sent to the
City Council for their comments and recommendations before
it is sent to the Planning Commission for public hearing.
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ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFORNIA AMENDING
TITLE 21 OF THE CARLSBAD MUNICIPAL CODE
BY THE AMENDMENT AND ADDITION OF VARIOUS
SECTIONS TO PROVIDE FOR THE ORDERLY
REGULATION BY CONDITIONAL USE PERMIT
OF VARIOUS USES AND BY THE ADDITION OF
CHAPTER 21.43 TO PROVIDE FOR THE REGU-
LATION OF CERTAIN "ADULT ENTERTAINMENT"
USES. .
The City Council of the City o.f Carlsbad, California,
does ordain as follows:
SECTION 1: In the development and execution of this
ordinance it is recognized that there are certain uses which
possess unique operational characteristics, making impractical
their automatic inclusion in any class of uses set forth in
the various zones defined by Title 21. Special regulation
of these uses is necessary to ensure that their operation
will not contribute to the downgrading of the surrounding
neighborhood and to preserve and protect public health,
safety and welfare in the City of Carlsbad. The best method
to protect the public health, safety and welfare is to
prevent the concentration of certain of these uses in any
one area. The City Council also, deems these regulations
necessary to protect the unique aesthetic, environment of the
City of Carlsbad and to preserve the economic and social
benefits, including tourism, arising from that environment.
SECTION 2: That Title 21, Chapter 21.04 of the Carlsbad
Municipal Code is amended by the addition of Sections 21.04.041,
21.04.056, 21.04.057, 21.04.091, 21.04.141, 21.04.201,
21.04.266, 21.04.291, 21.04.292, 21.04.301 and 21.04.356
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to read as follows:
"21.04.041 Bars or Cocktail Lounges. "Bar or Cocktail
Lounge" means any establishment serving an alcoholic beverage
not meeting the requirements of bona fide public eating
establishment as defined in Section 21.04.056.
21.04.056 Bona fide public eating establishment.
"Bona fide public eating establishment means any establishment
at which the primary business is the preparation, service
and retail sale of meals comprising a varied selection of
foods and nonalcoholic beverages prepared, served and consumed
on the premises.
To be classified as a bona fide public eating establish-
ment, an establishment which engages in the sale of beer,
wine or distilled spirits for consumption on the premises
shall meet the following requirements:
(1) Be designed and operated in such a way that the
sale of alcoholic beverages is incidental to the primary
restaurant operation.
(2) On any day the restaurant is open to the public
for business and engaged in the incidental sale of alcoholic
beverages, restaurant services shall be available to the :
public for the evening meal for a period of not less than
five hours, or for not less than four hours, if the morning
or noon meal is also served to the public for a period of
not less than two hours.
(3) Restaurant service shall include, but not be
limited to, an offering of a varied menu of foods or not
less than five main courses with appropriate nonalcoholic
beverages, desserts, salads and other attendant dishes.
(4) The sale of any food prepared for consumption off
the premises shall be occasional only and clearly incidental
and subordinate to the on-premises restaurant operation.
(5) No more than twenty-five percent of the interior
area of the restaurant shall be designed, arranged or devoted
to a use commonly associated with a bar or other establishment
primarily engaged in the on-premises sale of alcoholic
beverages. The interior area shall include only those
portions of the establishment devoted to regular use by the
public.
(6) A minimum of twenty percent of the gross floor
area of the establishment shall be used solely for food
storage, preparation, maintenance and storage of eating
utensils, dish and glassware and shall include refrigeration,
cooking, warming and dishwashing equipment, and any other
equipment necessary for a fully equipped restaurant kitchen.
(7) During the above specified minimum hours for
restaurant services, there shall be not less than one employee
per two hundred and fifty square feet of floor area devoted
to food service use. Said employee or employees shall be on
the job during the specified minimum hours for restaurant
service as described in subsection (2)-.
The City Council may waive the above requirements
relating t;o hours, menus, alcoholic beverage area, kitchen
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area, employees and equipment if they find a proposed restaurant
will provide equivalencies, meets the other requirements of
this section and will, in fact, be operated as a bona fide
restaurant.
Uses not specifically named in this section but which •
are of substantially the same general type and character and
are within the intent and purpose of this section may be
permitted, provided, however, that the burden of proving the
same shall rest with the person seeking to establish that
use.
21.04.057 Bowling alley. "Bowling alley" means any
structure in which a ball or balls are rolled on a green or
down an alley or lane at any object or group of objects.
21.04.091 Coin operated arcade. "Coin operated arcade"
means any place wherein coin or slug operated or electronically,
electrically or mechanically controlled machines, shooting
galleries, or any other amusement devices, are maintained
for use by five or fewer persons per machine at any one
time.
21.04.141 Escort service. "Escort service" means any
place where patrons can purchase the social company or
companionship of another person to be given either on or off
the premises, excluding any use regulated by Chapter 21.43
of this code.
21.04.201 Liquor store. "Liquor store" means any
store designed and operated for the selling of alcoholic
beverages with the selling of any other merchandise being
incidental to the primary operation of selling liquor.
21.04.266 Massage establishment. "Massage establishment"
means any place regulated by the provisions of Chapter 5.16
of this code, but excluding any massage parlor as defined in
Section 21.43.020 of this code.
21.04.291 Pawnshop. "Pawnshop" means any place engaged
in the business of loaning money to any person, upon any
personal property, personal security, or purchasing personal
property and reselling such articles to the vendor or other
assignee at prices previously agreed upon.
21.04.292 Pool hall or billiard parlor. A "pool hall
or billiard parlor" is any place of business where billiards
or pool is played, and a fee is charged to those playing for
the use of the equipment. The billiard room shall not be
connected with any other business nor shall any other business
be permitted to be carried on, except that the billiard room
may have therein ordinary merchandise vending machines and
no more than four coin operated games of skill, including
pinball machines.
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21.04.301 Secondhand or thrift shops. "Secondhand or
thrift shop" means a place of business that engages in
buying and selling, trading or accepting for sale on consignment,
previously sold property, excluding bona fide antique shops.
Secondhand property means personal property of which prior -
use has been made. A bona fide antique shop is one in which
all the merchanidse are antiques. Antique means objects of
art, bric-a-brac, curios, household furniture or furnishings
offered for sale upon the basis, expressed or implied, that
the value of the property, in whole or in substantial part,
is derived from its age or from historical associations.
21.04.356 Tattoo parlors. "Tattoo parlor" is any
place of business that engages in tattooing persons by any
method of placing designs, letters', scrolls, figures,
symbols or any other marks upon or under the skin with ink
or colors, by the aid of needles or instruments."
SECTION 3: That Title 21, Chapter 21.26 of the Carlsbad
Municipal Code is amended by the amendment of Section 21.26.010
to delete Subsection(18), Liquor stores (offsale), and
renumber the remaining subsections accordingly.
SECTION 4: That Title 21, Chapter 21.26, Section
21.26.015 of the Carlsbad Municipal Code is amended by the
deletion of the words "as defined in Section 23038 of the
Business and Professions Code, State of California," and by the
addition of Subsection (3) to read as follows:
"(3) Packaged liquor stores (off-sale) subject to the
following conditions:
(A) That the Planning Commission makes the same
findings as required by this section for on-premises sales
of liquor from bona fide eating establishments.
(B) An opening "shall be provided through which an
unobstructed view of the interior of the premises can be
obtained from the street upon which the business fronts.
(C) Such establishment shall not be located
within five hundred feet of any other licensed liquor
dispensing establishment not meeting the definition of a
bona fide eating establishment. "
SECTION 5: That Title 21, Chapter 21.28, Section
21.28.010 of the Carlsbad Municipal Code is amended by the
deletion of Subsection (3), Bars and Cocktail.Lounges (On-sale),
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and renumbering the remaining subsections accordingly.
SECTION 6: That Title 21, Chapter 21.28, Section
21.28.015 of the Carlsbad Municipal Code is amended by the
addition of Subsection (4) to read as follows:
"(4) Bars, cocktail lounges and other licensed (on-sale)
liquor dispensing operations not meeting the definition of a
bona fide eating establishment, subject to the following
conditions:
(A) An opening shall be provided through which an
unobstructed view of the interior of the premises can be
obtained from the street upon which business fronts.
"(B) Parking shall be provided at the rate of not
less than one space per fifty square feet of gross floor area.
(C) Surrounding grounds, including parking areas,
shall be maintained in a neat and orderly condition at all
times.
(D) Any structure housing such operation shall
meet all applicable code provisions prior to occupancy.
(E) Licensee or agent shall not permit open
containers of alcoholic liquor to be taken from the premise.
(F) No licensed liquor dispensing operation shall
be located within five hundred feet of any other licensed
liquor dispensing operation not meeting the definition of a
bona fide eating establishment.
SECTION 7: That Title 21, Chapter 21.42, Section
21.42.010, Subsection (5) of the Carlsbad Municipal Code is
amended by the addition of Subparagraphs (T), (U) , (V) , (W) ,
(X), (Y) , .(Z) and (AA) to read as follows:
"(T) Bowling alleys subject to the following con-
ditions:
( i) No noise shall be audible outside of
the confines of the structure.
( ii) If alcoholic beverages are offered for
consumption on-site, no open container shall be permitted to
be taken from the premises.
(iii) Parking requirements for any bar area
not meeting the definition of bona fide eating establishment
shall be computed at one space per fifty square feet of
gross floor area.
(U) Coin operated arcades subject to the following
conditions:
( i) No alcoholic beverages shall be
permitted on premises.
( ii) All activities shall be conducted
within the confines of a structure designed to contain the
noise created by such operation.
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(iii) Construction shall be such as to permit
unobstructed view of the interior from the street upon which
the business fronts.
(V) Escort services subject to the following
conditions:
( i) Construction shall be such as to permit
an unobstructed view of the interior of the premises from
the street upon which the business fronts.
( ii) No such business shall be located
within five hundred feet of any residential zone.
(iii) An applicant shall submit his appli-
cation for conditional use permit to the Chief of Police,
which application shall be under oath, and shall include,
among other things, the true names and addresses of all
persons financially interested in the business. The past
criminal record, if any, of all persons financially interested
in the business shall be shown on such application. The term
"persons financially interested" shall include all persons
who share in the profits of the business, on the basis of
gross or net revenue,, including landlords, lessors, lessees,
the owner of the building, fixtures or equipment. The application
shall also be accompanied by fingerprints of persons financially
interested.
The Chief of Police shall make such investigation as is
necessary to determine the background of the applicant and
other persons financially interested. The Chief of Police
shall report to the Planning Commission his findings and
recommendations based on these findings and upon his judgement
of potential enforcement problems from the proposed use, as
to whether to approve, deny, or conditionally approve of
•deny the conditional use permit in writing within thirty
days after the application is submitted. Failure to so
report shall be deemed approval of the application.
The Planning Commission may deny an application based
on the findings and recommendations of the Chief of Police.
(W) Pawn shops subject to the following conditions:
( i) No pawn shop shall be located within
five hundred feet of any establishment licensed to dispense
(for on-siteor off-site consumption) alcoholic beverages.
( ii) No pawn shop shall be located within
five hundred feet of any residentially zoned property.
(iii) Every structure housing such operation
shall be constructed so as to provide an unobstructed view
of the interior of the premises from the street upon which
the business fronts.
(X) Pool halls or billiard parlors subject to the
following conditions:
( i) No such establishment shall be located
within five hundred feet of any establishment licensed to
dispense alcoholic beverages for consumption on-site or off-
site.
( ii) No establishment 'shall be permitted to
dispense alcoholic beverages for consumption on-site or off-
site.
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(iii) All structures housing such operation •
shall be constructed so as to permit unobstructed views of
the interior of the premises from the street upon which the
business fronts.
( iv) Each structure housing such operation
shall be constructed so as to contain within the confines
of such structure, all noise and all other objectionable
by-products of such operation.
(Y) Secondhand or thrift shops subject to the
following conditions:
( i) An applicant shall submit his application
for a conditional use permit to the Chief of Police, which
application shall be under oath, and shall include, among other
things, the true names and addresses of all persons financially
interested in the business. The past criminal record, if any,
or all persons financially or otherwise interested in the
business shall be shown on such application. The term "persons
financially interested" shall include all persons who share in
the profits of the business on the basis of gross or net revenue,
including landlords, lessors, lessees, the owner of the
building, fixtures or1 equipment. The application shall also
be accompanied by fingerprints of persons financially interested.
The Chief of Police shall make such investigation as is
necessary to determine the background of the applicant and
other persons financially interested. The Chief of Police shall
report to the Planning Commission his findings and recommendations
based on these findings and upon his judgement potential
enforcement problems from the proposed use, as to whether to
approve, deny or conditionally approve or deny the conditional
use permit, in writing within thirty days after the application
is submitted. Failure to so report shall be deemed approval of
the applicaton.
The Planning Commission may deny an application based on
the findings and recommendations of the Chief of Police.
Charitable organizations shall be specifically exempt from
bhe report provisions of this section.
( ii) No goods shall be taken on a consign-
.ent basis.
(Z) Tattoo parlors subject to the following
conditions :
. ( i) No tattoo parlor shall be located within
five hundred feet of any licensed alcoholic beverage dispensing
operation offering said beverages for on-site or off-site consumption.
( ii) No Tattoo parlor shall be operated in
conjunction with nor share any operating space with any other
business.
(AA) Massage .establishments subject to the following
conditions:
( i) No massage establishment shall be located
within five hundred feet of any other massage establishment or any
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licensed alcoholic beverage dispensing operation offering said
beverage for on-site or off-site consumption.
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VINCENT f. BlONDO. JR. 'CITY ATTORNEY - CITY OF CARLSBAD1200 ELM AVENUECARLSBAD, CALIFORNIA 920081
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( ii) The applicant shall have complied
with the requirements of Chapter 5.16 of this code,
(iii) Massage establishments exempt from
the requirements of Chapter 5.16 are exempt from this
section.
( iv) This section shall not apply to any
athletic club, health club, school, gymnasium, reducing
salon, spa or similar establishment where massage or
similar manipulation of the human body is offered as an
incidental or accessory service unless Section 21.43.020
applies. "
SECTION 8: That Title 21 of the Carlsbad Municipal
Code is amended by the addition of Chapter 21.43 to read
as follows:
"Chapter 21.43
ADULT ENTERTAINMENT
Sections:
21.43.010 Purpose and intent.
21.43.020 Definitions.
21.43.030 Zones, for adult entertainment
establishments .
21.43.035 Adult entertainment permit required
21.43.040 Permitted adult entertainment
establishments .
21.43.050 Exempt establishments.
21.43.060 Minimum spacing requirements.
21.43.070 Minimum proximity requirements.
21.43.080 Waiver of regulatory provisions.
21.43.090 Proposed establishments.
21.43.100 Suspension and revocation of permit.
21.43.110 Referral of applications for licenses
and permits, to other departments and
agencies.
21.43.120 Regulations of signs.
21.43.130 Visibility from the street.
21.43.140 Severability.
21.43.150 Violation — Penalty.
21.43.010 Purpose and intent. It is the purpose and
intent of this chapter to provide for the orderly regulation
of adult entertainment establishments. It is recognized
that these establishments by their very nature have serious
objectionable operational characterics which, when allowed
to concentrate, contribute to the blighting or downgrading
of the surrounding neighborhood. In order to protect and
preserve the public health, safety and welfare in the City
of Carlsbad special regulation of these uses is necessary.
These regulations are in addition to any other applicable
regulations established by this code.
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21.43.020 Definitions. It is the purpose of this
section, together with its subsections, to provide clear and
concise definitions of those words, terms and phrases most
commonly utilized in the regulations and provisions of this
chapter in order to assist in the uniform interpretation of
said regulations and provisions and to insure uniformity of
their application. It is intended that the following words,
terms and phrases, whenever used in this chapter, shall be
construed as defined in the following subsections, unless
from the context a different meaning is specifically defined
and more particularly directed to the use of such words,
terms or phrases:
(1) "Adult entertainment establishment" means
any establishment which is customarily open only to one or
more classes of the public, excluding any minor by reason of
age.
(2) "Specified sexual activities" includes the
following:
(A) The fondling or other touching of human
genitals, pubic region, buttocks, or female breasts;
(B)
actual or simulated,
and sodomy;
(C)
(D)
Ultimate sex acts, normal or perverted,
including intercourse, oral copulation,
Masturbation, whether actual or simulated;
Excretory functions as part of or in
connection with any of the activities set forth in (A)
through (C) above.
(3) "Specified anatomical areas" as used herein shall
mean and include any of the following:
(A) Less than completely and opaquely
covered human genitals, pubic region, buttocks, anus or
female breasts below a point immediately above the top of
the areolae; or
(B) Human male genitals in a discernibly
turgid state, even if completely and opaquely covered.
' (4) "General bookstore" means any retail establish-
ment devoted in whole or in part to the selling, buying
or trading of new or used books, manuscripts or periodicals
or general interest, and which.does not devote more than a
significant or substantial portion of its gross floor area to
the selling, displaying, storing or trading of books, films,
magazines or other periodicals or other materials which are
distinguished or characterized by an emphasis on depiction
or description of specified sexual activities or specified
anatomical areas.
(5) "Adult bookstore" means any establishment which
has as a substantial or significant portion of its stock
in trade:
(A) Books, films, magazines or other
periodicals, or other forms of audio or visual representation
which are distinguished or characterized by an emphasis on
depiction or description or specified sexual activities or
specified anatomical areas:
(B) Instruments, devices or paraphernalia
which are designed for use in connection with specified
sexual activities.
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(6) "Adult newsrack" means any coin-operated
machine or device which dispenses material substantially
devoted to the depiction of specified sexual activities
or specified anatomical areas.
(7) "Adult motion picture theater" means an »
enclosed or unenclosed building with a capacity of fifty or
more persons used for presenting any form of audio or
visual material, and in which a substantial portion of the
total presentation time is devoted to the showing of material
which is distinguished or characterized by an emphasis on
depiction or description of specified sexual activities or
specified anatomical areas.
(8) "Adult mini motion picture theater" means an
enclosed or unenclosed building with a capacity of more
than five, but less than fifty, persons used for presenting
any form of audio or visual material, and in which a sub-
stantial portion of the total presentation time is
devoted to the showing of material which is distinguished
or characterized by an emphasis on depiction or description
of specified sexual activities or specified anatomical areas.
(9) "Adult motion picture arcade" means any place
to which the public is permitted or invited wherein coin
or slug operated or electronically or mechanically con-
trolled 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 chacter-
ized by an emphasis on depiction or description of specified
sexual activities or specified anatomical areas.
, (10) "Adult theater" means a theater, concert
hall, auditorium or other similar establishment, either
indoor or outdoor in nature which regularly features live
performances which are distinguished or characterized
by an emphasis on specified sexual activities or by
exposure of specified anatomical areas for observation
by patrons.
(11) "General theater" means an enclosed or unenclosed
building or part of a building intended to be used for the
specific purpose of presenting live entertainment or dis-
playing motion pictures, slides or closed circuit television
pictures or any other form of audio or visual representation
before an individual or assemblage of persons, whether such
assemblage be of a publict restricted or private nature,
except a home or private dwelling where no fee by way of an
admission charge, is charged; provided, however, that said
theater does not devote more than a substantial or significant
portion of its presentation time measured on an annual basis,
for the exhibition or display of entertainment which is
distinguished or characterized as specified sexual activities
or specified anatomical areas as defined herein.
(12) "Adult cabaret" means a nightclub, theater, bar
or other establishment which features live or media
representations of performances by 'topless or bottomless
dancers, go-go dancers, exotic dancers, strippers, or
similar entertainers, where such performances are distinguished
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• OC fsiSE < o>VINCENT F. BIONDO, .VJTORNEY • CITY OF C1200 ELM AVENUEkRLSBAD, CALIFORNIA^* *•*.
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or characterized by an emphasis on specified sexual activities
or specified anatomical areas.
(13) "Massage parlor" means any massage establishment
(as defined in Section 21.04.266 of the Carlsbad Municipal
Code)or other place where for any form of consideration or .
gratuity, massage, alchohol rub, administration or fomentations,
electric or magnetic treatments, or any other treatment or
manipulation of the human body occurs as part of or in
connection with specified sexual activities or where any
person providing -such treatment, manipulation or service
related thereto exposes specified anatomical areas.
(14) "Adult model studio" means any place 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 consideration
or gratuity, except that this provision shall not apply to
any "figure studio" or "school of art" or similar establish-
ment which meets the requirements established in the Education
Code of the State of California for the issuance or conferring
of, and is in fact authorized thereunder, to issue and confer
a diploma.
(15) "Sexual encounter center" means any business,
agency, or person who, for any form of consideration or gratuity,
provides a place where two or more persons, not all members
of the same family, may congregate, assemble or associate
for the purpose of engaging in specified sexual activity or
exposing specified anatomical areas, excluding psychosexual
workshops, operated by professional persons, licensed by the
State, to engage in sexual therapy.
(16) "Body painting studio" means any establishment
or business which provides the service of applying paint or
other substance whether transparent or nontransparent to or
on the human body when specified anatomical areas are exposed.
(17) "Adult motel" means a motel or similar
establishment offering public accommodations for any consid-
eration, which provides patrons with material distinguished
or characterized by an emphasis on depiction or descreption
or specified sexual activities or specified anatomical areas.
(18) "Outcall service activity" means any establish- .
ment or business which provides an outcall service which
consists of indivuals leaving the premises upon request or
by appointment to visit other premises for a period of
time for the purpose of providing any service during which
time specified anatomical areas are displayed or specified
sexual activity occurs.
(19) "Bath house" means an establishment or business
which provides the services of baths of all kinds, including
all forms and methods of hydrotherapy during which specified
anatomical areas are displayed or specified sexual activity
occurs. This section shall not apply to hydrotherapy treatment
practiced by, or under the supervision of a medical practitioner
or practiced by a professional massage technician. A medical
practioner, for the purpose of this chapter, shall be a medical
doctor, physician, chiropractor or similar professional licensed
by the State of California.
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NCENT F. BIONDO, JR.ORNEY • CITY OF CARLSBAD1200 ELM AVENUESBAD, CALIFORNIA 92008>fc «'
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(20) "Massage technician" means any individual
complying with the provisions set forth in Sections 5.16.010
through 5.16.350 inclusive of the Municipal Code.
(21) "Massage establishment" means an
establishment which is exclusively devoted to the practice *
of scientific massage, as defined in Chapter 5.16 of this code,
by a professional massage technician or by a medical practitioner
licensed by the State of California.
(22) "School" means an institution of learning for
minors, whether public or private, which offers instruction
in those courses of study required by the California Education
code or which is maintained pursuant to standards set by
the State Board of Education. This definition includes a
nursery school, kindergarten, elementary school, junior
high school, senior high school or any special institution
of learning under the jurisdiction of the State Department
of Education, but it does not include a vocational or
professional institution or an institution of higher education,
including a community or junior college, college or university.
21.43.030 Zones for adult entertainment establishments.
Adult entertainment establishments are permitted only in
areas with C-l, C-2, C-M, M, P-M, or P-U zoning classifications.
No such establishment shall be permitted to be established
in any area outside such zoning classification.
21.43.035 Adult entertainment permit required. No person
shall operate an adult entertainment establishment without
first obtaining an adult entertainment permit as provided in
this chapter. .
21.43.040 Permitted adult entertainment establishments.
Any adult entertainment establishment not specifically permitted
by the provisions of this section shall be prohibited until
such time that this section may be amended to permit such
establishment. The establishments specifically permitted are
as follows :
(1) Adult book store;
(2) Adult mini motion picture theater;
(3) Adult motel;
(4) Adult motion picture arcade;
(5) Adult motion picture theater;
(6) Cabaret;
(7) Massage parlor;
(8) Model studio;
(9) Adult newsrack;
(10) Sexual encounter center (including massage
or rap parlor) ;
(11) Body painting studio;
(12) Outcall service;
(13) Bath house;
(14) Adult theater.
All permitted adult entertainment establishments shall comply
with all regulations and provisions of this chapter except
as otherwise provided herein.
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21.43.050 Exempt establishments. The following establish-
ments are specifically exempted from the regulations and
provisions of this chapter provided that they comply with
the requirements set forth in Section 21.43.020:
(1) General theater;
(2) General book store;
(3) Massage establishment.
21.43.060 Minimum spacing requirements. No adult
entertainment establishment shall be located within one thousand
feet of any other adult entertainment establishment.
21.43.070 Minimum proximity requirements. No adult
entertainment .establishment shall be located within specified
distances of certain specified land uses as set forth below:
(1) No such establishment shall be located
within one thousand feet of any parcel of land zoned for
residential use.
(2) No such establishment shall be located within
one thousand feet of any parcel of land which contains any
one or more of the following specific land uses:
(A) Amusement park;
(B) Camp (for children's activity);
(C) Church or other similar religious facility;
(D) Child care facility;
(E) Community center;
(F) Museum;
(G) Park;
(H) Playground;
(I) School;
(3) No such establishment "shall be established
within five hundred feet of any parcel of land which contains
any one or more of the following land uses:
(A) Bars/cocktail lounges;
(B) Convalescent homes;
(C) Courthouse (or other public building
utilized on a consistent basis by the
public);
(D) Hospital;
(E) Nursing home;
(F) Retirement hotel;
(G) Sanitarium;
(H) Senior citizen activity center.
(4) The distance between any two adult entertain-
ment businesses shall be measured in a straight line, without
regard to intervening structures, from the closest point on
the exterior parcel line of each business. The distance
between any adult entertainment business and any school shall
be measured in a straight line, without regard to intervening
structures, from the closest point on the exterior parcel
line of the adult entertainment business to the closest point
on the property line of the school.
21.43.030 Waiver of regulatory provisions. The Planning
Commission may grant a conditional use permit for an adult
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entertainment establishment under which the provisions of
Sections- 21.43.060 and 21.43.070 may be waived if all of the
following conditions are met:
(1) That a petition validated by the City Clerk of
the City of Carlsbad containing the signature of fifty-one •
percent of the total of owners-of-record, holders of business
licenses and residents within the specified distances
set forth in Section 21.43.070 is presented to the Planning
Department. For purposes of this chapter a "resident" shall
be any individual* who has been,a registered voter within the
prescribed area for thirty days prior to said individual having
signed any such petition.
(2) That a public hearing be conducted in accordance
with the provisions of Section 21.52.040 of this code.
(3) That all of the following findings are made:
(A) The proposed use will not be contrary
to the public interest;
(B) The proposed use will not be injurious
to nearby properties;
(C) The proposed use will not encourage the
development of an adult entertainment area-
(D) The proposed use will not interfere with
any program of neighborhood preservation or revitalization;
(E) The proposed use will not interfere with
any governmental program of general urban redevelopment;
(F) The proposed use will not be contrary to
the spirit and intent of this chaptef?
(G) The harm created by the proposed use
is outweighed by its benefits;
(H) All applicable regulations and provisions
of this code will be observed by the proposed use.
21.43.090 Proposed establishments issuance of adult
entertainment permit. Any proposed adult entertainment
establishment found to be in conformance with all regulations
and provisions of this chapter shall be entitled to an adult
entertainment permit which shall be issued by the Planning
Commission upon satisfactory completion of the review process
set forth in Section 21.43.110.
21.43.100 Suspension and revocation of permit. The
Planning Commission shall suspend or revoke any conditional use
or adult entertainment permit issued under the provisions of this
chapter if it is found after a noticed public hearing, that
any of the following conditions exist:
(1) The operation as conducted by the permittee does
not comply with all applicable laws, including, but not
limited to, the City's building, health, zoning and fire
ordinances as set forth in this code; or
(2) The permittee or manager has knowingly made
any false, misleading or fraudulent statement of fact in
the application for a permit;
(3) The permittee, manager or any employee or agent
of the permittee or manager has violated any provision of this
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chapter pertaining to the adult entertainment establishment in
question-.
(4) That the permittee, manager or any agent or employee
of the permittee or manager, has been convicted in a court of
competent jurisdiction of: •
(a) An offense involving the use of force or
violence upon the person of another, or
(b) A crime requiring registration under Section
290 of the California Penal Code, or of any violation of Sections
2661, 315, 316, 318 or Subdivision (b) of Section 647 of the
Penal Code, or
(c) Any felony offense involving the sale of a
controlled substance specified in Sections 11054, 11055, 11056,
11057, or 11058 of the Health and Safety Code, or
(d) Any of the above substantive offenses as
defined inthe laws of any jurisdiction other than the State
of California, if the factual basis for suclrconviction stems
from the operation of the adult entertainment establishment
in question.
21.43.110 Referral of applications for licenses and
permits to other departments and agencies.
(1) The Planning Department, upon receiving an
application for a conditional use permit as provided in
Section 21.43.080 or an adult entertainment permit, and the
City Clerk, upon receiving an application for a business license,
shall refer any such application to €he Department of Building
Inspection, the Police Department, the Fire Department and
the Planning Department, which departments shall inspect
the premises proposed to be operated as an adult entertainment
establishment, and shall make written recommendations to the
Planning Department concerning compliance with the codes that
they administer. The San Diego County Department of Health shall
also be requested to make written recommendations. All-
recommendations shall be considered during the permit review
process or during any public hearing required prior to the issuance
of any permit. A permit shall not be issued if it is found that
the proposed establishment does not conform to the requirements
of this chapter or any state or local law.
(2) An application shall be under oath, and shall
include among other things, the true names and addresses of all
persons financially interested in the business. The past
criminal record, if any, Qf all persons financially interested
in the business shall be shown on such applicaton. The term
"persons financially interested" shall include all persons
who share in the profits of the business, on the basis of gross
or net revenue, including landlords, lessors, lessees, the owner
of the building, fixtures or equipment. The application shall also
be accompanied by fingerprints of persons financially interested.
The Chief of Police shall make such investigation as is necessary
to determine the background of the applicant and other persons
financially interested. The Chief of Police shall report to
the Planning Commission his findings and recommendations
based on his findings and judgement of potential enforcement
problems from the proposed establishment, as to whether the
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f~ ~ O UIU 2 CM «(" SE "" S
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adult entertainment permit or conditional use permit should
be approved or denied, in writing within thirty days after the
application is submitted. The report shall be considered by the
Planning Commission in making finding required by Section 21.43.080
or in issuing adult entertainment permit pursuant to Section :
21.43.090. Failure to so report shall be deemed recommendation
of approval of the permit.
(3) Upon denial of any applicaton for an adult
entertainment permit the Planning Commission shall set forth the
reasons for the denial in writing. The written reasons for denial
shall be sent to the ^applicant at the address specified on the
application by means of certified or registered mail or by hand
delivery. The denied applicant shall, at his election, have
the right to a hearing before the City Council. The City Council
may/approve, deny or conditionally approve or deny the applicaton.
The decision of the City Council shall be final. If the
j applicant does not request a hearing within ten days of notice
of denial the decision of the Planning Commission shall be final.
21.43.120 Regulations of signs. No person granted a
permit to operate an adult entertainment establishment
pursuant to this chapter shall place or cause to be placed
or maintained in such a location as can be viewed by persons
on any public street any sign or signs, photographic, pictorial
or other graphic representations, that depict in whole or in
part the following:
(1) Act or simulated acts of sexual intercourse,
masturbation, sodomy, bestiality, oral copulation, flagellation,
or any sexual acts which are prohibited by law.
(2) Scenes wherein a person displays the vulva or
the anus or the genitals.
(3) Scenes wherein artifical devices are employed
to depict, or drawings are employed to portray any of the
prohibited signs, photographs or graphic representations
described above.
(4) Any other graphic illustration pertaining to
specified sexual activities and specified anatomical areas
as specified herein.
21.43.130 Visibility from the street. No operator of
an adult entertainment establishment shall permit, or cause
to be permitted, any stock in trade which depicts, describes
or relates to specific sexual activities and/or specified
anatomical areas as defined herein, to be viewed '. from the
street, sidewalk, or highway.
21.43.140 Severability. If any section, subsection,
sentence, clause or phrase of this ordinance is for any
reason held to be invalid or unconstitutional by the decision
of any court of competent jurisdiction, such decision shall
not affect the validity of the remaining portions of this
ordinance. The City Council hereby declares that it would
have passed this ordinance, and each section, subsection,
sentence, clause, and phrase hereof, irrespective of the
fact that any one or more of the sections, subsections,
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sentences, clauses or phrases hereof be declared invalid or
unconstitutional.
21.43.150 Violation—Penalty. Violation of this
ordinance is punishable pursuant to Section 21.62.010 of
this code."
EFFECTIVE DATE: This ordinance shall be effective
thirty days after its adoption, and the City Clerk shall
certify to the adoption of this ordinance and cause it to be
published at least once in the Carlsbad Journal within
fifteen days after its adoption.
INTRODUCED AND FIRST READ at a regular meeting of the
Carlsbad City Council held on the day of
1979 and thereafter
PASSED AND ADOPTED at a regular meeting of said City
Council held on the _day of , 1979 by
the following vote, to wit:
AYES:
NOES:
ABSENT:
RONALD C. PACKARD, Mayor
ATTEST:
ALETHA L. RAUTENKRANZ , City Clerk
(SEAL)
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