HomeMy WebLinkAbout1994-09-20; City Council; 12872; Adult EntertainmentAB # /a, 87~
MTG. g/20/94
DEPT.PLN @
-.TY OF CARLSBAD - AG- - i
-ADULT ENTERTAINMENT ORDINANCE
ZCA 94-02
RECOMMENDED ACTION:
Adopt City Council Resolution No. *d’fapproving the Negative Declaration and Introduce
Ordinance No. /t/s--47& APPROVING ZCA 94-02, an amendment to the City’s Adult
Entertainment Ordinance.
ITEM EXPLANATION:
The proposed amendment deletes adult newsracks from the regulatory provisions of the City’s
Adult Entertainment Ordinance (Chapter 21.43 of the Carlsbad Municipal Code). This change
is being proposed pursuant to a recent appellate court opinion regarding the regulation of adult
newsracks. The City Attorney’s Office has determined that adult newsracks should not be
designated “adult entertainment establishments” as defined in Chapter 21.43 because the
secondary effects associated with adult entertainment establishments are not associated with
adult newsracks. The City’s Newsrack Ordinance (Chapter 11.36) regulates the placement of
newsracks in public rights-of-way and establishes standards and location criteria for newsracks.
This ordinance requires 2/3 blinder racks for adult newsracks as of April 1994. The City
Attorney’s Office has indicated that, with the adoption of the proposed amendment to the Adult
Entertainment Ordinance, the City will be regulating adult newsracks to the maximum extent
possible under State and Federal regulations.
FISCAL IMPACT
No fiscal impact will result from the adoption of the proposed Adult Entertainment Ordinance
Amendment.
EXHIBITS
1. City Council Resolution No. H-ddf
2. City Council Ordinance No. fly?&
3. Planning Commission Resolution Nos. 3684 and 3685
4. Planning Commission Staff Report dated July 20, 1994
5. Excerpts from Planning Commission Minutes dated July 20, 1994.
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RESOLUTION NO. 94-268
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A NEGATIVE DECLARATION FOR A ZONE CODE AMENDMENT AMENDING TITLE 21, CHAPTERS 21.43, SECTIONS 21.43.020 AND 21.43.040, OF THE CARLSBADMUNICIPAL CODE, BY THE DELETION OF ADULT NEWSRACKS FROM THE REQUIREMENTS OF THE ADULT ENTERTAINMENT ORDINANCE. CASE NAME: ADULT ENTERTAINMENT ORDINANCE CASE NO: ZCA 94-02
WHEREAS, pursuant to the provisions of the Municipal
Code, the Planning Commission did, on July 20, 1994, hold a duly
noticed public hearing as prescribed by law to consider said
request; and
WHEREAS, at said public hearing, upon hearing and
considering all testimony and arguments, examining the initial
study, analyzing the information submitted by staff, and
considering any written comments received, the Planning
Commission considered all factors relating to the Negative
Declaration: and
NOW, THEREFORE, BE IT HEREBY RESOLVED by the City
Council of the City of Carlsbad as follows:
1. That the above recitations are true and correct.
2. That the findings and conditions of the Planning
Commission Resolution No. 3684, on file with the City Clerk and
incorporated herein by reference constitute the findings of the
City Council in this matter and that the Negative Declaration is
hereby approved.
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PASSED, APPROVED AND ADOPTED at a regular meeting of
the City Council of the City of Carlsbad, California, on the
20th -day of SEPTEMBER , 1994, by the following vote, to wit:
AYES: Council Members Lewis, Stanton, Kulchin, Nygaard, Finnila
NOES: None
ABSENT: None
ATTEST:
ALETIiA L. EN-Z, City Cler)t
(SEAL)
-2-
1 ORDINANCE NO. NS-2%
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AMENDING TITLE 21, CHAPTER
I 21.43 OF THE CARLSBAD MUNICIPAL CODE BY THE
AMENDMENT OF SECTIONS 21.43.020 AND 21.43.040 TO
DELETE ADULT NEWSRACKS FROM THE REQUIREMENTS OF
THE ADULT ENTERTAINMENT ORDINANCE.
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The City Council of the City of Carlsbad, California, does ordain as follows:
SECTION 1: That Title 21, Chapter 21.43, section 21.43.020 of the Carlsbad
9 Municipal Code is amended by the repeal of subsection (6) and the renumbering of the
lo succeeding subsections accordingly.
11 SECTION 2: That Title 21, Chapter 21.43, section 21.43.040 of the Carlsbad
12 Municipal Code is amended by the deletion of item number (9) and the renumbering of the
13 succeeding items accordingly.
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EFFECTIVE DATE: This ordinance shall be effective thirty days after its
16 adoption; and the city clerk shall certify the adoption of this ordinance and cause it to be
l7 published at least once in a newspaper of general circulation in the City of Carlsbad within
18 fifteen days after its adoption.
19 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City
20 Council on the day of , 1994, and thereafter
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PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council
of the City of Carlsbad, California, on the - day of , 1994, by the following
vote, to wit
AYES:
NOES:
ABSENT:
APPROVED AS TO FORM AND LEGALITY
RONALD R. BALL, City Attorney
CLAUDE A. LEWIS, Mayor
ATTEST:
ALETHA L. RAUTENKRANZ, City Clerk
(SEAL)
EXHWT 3
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PLANNINGCOMMISSION RESOLUTIONtiO.36&t
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF CARLSBAD, CALIFORNIA RECOMMENDING
APPROVAL OF A NEGATIVE DECLARATION FOR A ZONE
CODE AMENDMENT AMENDING TITLE 21, CHAPTER 21.43,
SECTIONS 21.43.020 AND 21.43.040, OF THE CARLSBAD
MUNICIPAL ‘CODE, BY THE DELETION OF ADULT
NEWSRACKS FROM THE REQUIREMENTS OF THE ADULT
ENTERTAINMENT ORDINANCE.
CASE NAME: ADULT ENTERTAINMENT ORDINANCE
CASE NO: ZCA 94-02
a WHEREAS, the Planning Commission did on the 20th day of July, 1994,
9 hold a duly noticed public hearing as prescribed by law to consider said request, and
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WHEREAS, at said public hearing, upon hearing and considering all
testimony and arguments, examining the initial study, analyzing the information
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submitted by staff, and considering any written comments received, the Planning
Commission considered all factors relating to the Negative Declaration.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission
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as follows:
A) That the foregoing recitations are true and correct.
B) That based on the evidence presented at the public hearing, the Planning
Commission hereby recommends APPROVAL of the Negative Declaration according
to Exhibit “ND”, dated June 1, 1994, and “PII”, dated May 10, 1994, attached
hereto and made a part hereof, based on the following findings:
Fin-:
1. The initial study shows that there is no substantial evidence that the project may
have a significant impact on the environment.
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PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning
Commission of the City of Carlsbad, California, held on the 20th day of July, 1994, by
the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Chairperson Savary; Commissioners Welshons, Erwin, Noble,
Compas, Monroy and Nielsen.
None.
None.
None.
CARLSBAD PLANNING COMMtSSION
MICHAEL J. FHLZMIIXER
PLANNING DIRECTOR
7 PC RESO NO. 3684 -2-
NEGATIVE DEcILARAnON
PROJECT ADDRESS/LOCATION: Citywide
PROJECT DESCRIPTION: Revisions to Chapter 21.43 of the Municipal Code to delete
adult newsracks from the regulatory provisions of the adult
entertainment ordinance.
The City of Carlsbad has conducted an environmental review of the above described project
pursuant to the Guidelines for Implementation of the California Environmental Quality Act
and the Environmental Protection Ordinance of the City of Carlsbad. As a result of said
review, a Negative Declaration (declaration that the project will not have a significant
impact on the environment) is hereby issued for the subject project. Justification for this
action is on file in the Planning Department.
A copy of the Negative Declaration with supportive documents is on file in the Planning
Department, 2075 Las Palmas Drive, Carlsbad, California 92009. Comments from the
public are invited. Please submit comments in writing to the Planning Department within
30 days of date of issuance. If you have any questions, please call Elaine Blackburn in the
Planning Department at (619) 438-1161, extension 4471.
DATED: JUNE 1,1994
CASE NO: ZCA 94-02
MICHAEL J. H
Planning Director
CASE NAME: ADULT ENTERTAINMENT ORDINANCE
PUBLISH DATE: JUNE 1,1994
2075 Las Palmas Drive l Carlsbad, California 92009-l 576 l (619) 436-l 161
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ENVIRONMENTAL IMPACX ASSESSMENT FORM - PART II
(TO BE COMPLETED BY THE PLANNING DEPARTMENT)
BACKGROUND
CASE NO. ZCA 94-02
DATE: Mav 10.1994
1. CASE NAME: Adult Entertainment Ordinance
2. APPLICANT: Citv of Carlsbad
3. ADDRESS AND PHONE NUMBER OF APPLICANT: 2075 Las Pabnas Drive
(619) 438-1161 extension 4471
4. DATE EIA FORM PART I SUBMITTED:
5. PROJECT DESCRIPTION: Revisions to Chanter 21.43 of the Municipal Code to delete adult
newsracks from the rezulatorv nrovisions of the adult entertainment ordinance.
ENVIRONMENTAL IMPACTS
STATE CEQA GUIDELINES, Chapter 3, Article 5, section 15063 requires that the City conduct an
Environmental Impact Assessment to determine if a project may have a significant effect on the environment.
The Environmental Impact Assessment appears in the following pages in the form of a checklist. This
checklist identifies any physical, biological and human factors that might be impacted by the proposed project
and provides the City with information to use as the basis for deciding whether to prepare an Environmental
Impact Report or Negative Declaration.
* A Negative Declaration may be prepared if the City perceives no substantial evidence that the project or
any of its aspects may cause a significant effect on the environment. On the checklist, “NO” will be
checked to indicate this determination.
* An EIR must be prepared if the City determines that there is substantial evidence that any aspect of the
project may cause a significant effect on the environment. The project may qualify for a Negative
Declaration however, if adverse impacts are mitigated so that environmental effects can be deemed
insignificant. These findings are shown in the checklist under the headings “YES-s@” and “YES-insig”
respectively.
A discussion of potential impacts and the proposed mitigation measures appears at the end of the form under
DISCUSSION OF ENVIRONMENTAL EVALUATION. Particular attention should be given to discussing
mitigation for impacts which would otherwise be determined significant.
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PHYSICAL ENvIRoIvMENr
WILL THE PROPOSAL DIRECI’LY OR INDIRECTLY: YES
WI
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9.
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Result in unstable earth conditions or
increase the exposure of people or property
to geologic hazards?
Appreciably change the topography or any
unique physical features?
Result in or be affected by erosion of soils
either on or off the site?
Result in changes in the deposition of beach
sands, or modifkation of the channel of a
river or stream or the bed of the ocean or
any bay, inlet or lake?
Result in substantial adverse effects on
ambient air quality?
Result in substantial changes in air
movement, odor, moisture, or temperature?
Substantially change the course or flow of
water (marine, fresh or flood waters)?
Affect the quantity or quality of surface
water, ground water or public water supply?
Substantially increase usage or cause
depletion of any natural resources?
Use substantial amounts of fuel or energy?
Alter a significant archeological,
paleontological or historical site,
structure or object?
YES
(ins@
NO
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BIOLOGICAL ENVIRONMENT
WILL THE PROPOSAL, DIRECI’LY OR INDIREClXYz YES
Affect the diversity of species, habitat
or numbers of any species of plants (including
trees, shrubs, grass, microflora and aquatic
plants)?
Introduce new species of plants into an area,
or a barrier to the normal replenishment of
existing species?
Reduce the amount of acreage of any
agricultural crop or affect prime, unique
or other farmland of state or local
importance?
YES
Affect the diversity of species, habitat
or numbers of any species of animals (birds,
land animals, all water dwelling organisms
and insects?
Introduce new species of animals into an
area, or result in a barrier to the
migration or movement of animals?
HUMANENVIRONMENT
WILL THE PROPOSAL DIRECTLY OR INDIRECTLY: YES YES
(sigl (ins@
NO
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NO
17. Alter the present or planned land use
of an area? x
18. Substantially affect public utilities,
schools, police, fire, emergency or other
public services? x
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HuMANENvIRo-
WILL THE PROPOSAL DIRECI’LY OR INDIRECIZY: YES YES NO
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Result in the need for new or modified sewer
systems, solid waste or hazardous waste
control systems?
Increase existing noise levels?
Produce new light or glare?
Involve a significant risk of an explosion
or the release of hazardous substances
(including, but not limited to, oil,
pesticides, chemicals or radiation)?
Substantially alter the density of the
human population of an area?
Affect existing housing, or create a demand
for additional housing?
Generate substantial additional traffic?
Affect existing parking facilities, or
create a large demand for new parking?
Impact existing transportation systems or
alter present patterns of circulation or
movement of people and/or goods?
Alter waterborne, rail or air traffic?
Increase trafhc hazards to motor
vehicles, bicyclists or pedestrians?
Interfere with emergency response plans or
emergency evacuation plans?
Obstruct any scenic vista or create an
aesthetically offensive public view?
Affect the quality or quantity of
existing recreational opportunities?
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MANDATORY FINDINGS OF SIGNIFICANCE
WILL THE PROPOSAL DIRECI’LY OR INDIRECTLY: YES YES
(W (ins@
33. Does the project have the potential
to substantially degrade the quality
of the environment, substantially
reduce the habitat of a fish or wild-
life species, cause a fish or wildlife
population to drop below self-sustaining
levels, threaten to eliminate a plant or
animal community, reduce the number or
restrict the range of a rare or en-
dangered plant or animal, or eliminate
important examples of the major periods
of California history or prehistory.
34. Does the project have the potential
to achieve short-term, to the dis-
advantage of long-term, environmental
goals? (A short-term impact on the
environment is one which occurs in a
relatively brief, definitive period of
time while long-term impacts will
endure well into the future.)
35. Does the project have the possible
environmental effects which are in-
dividually limited but cumulatively
considerable? (“Cumulatively con-
siderable” means that the incremental
effects of an individual project are
considerable when viewed in connection
with the effects of past projects, the
effects of other current projects, and
the effects of probable future projects.)
36. Does the project have environmental
effects which will cause substantial
adverse effects on human beings,
either directly or indirectly?
NO
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_ DISCUSSION OF ENVIRONMENTAL EVALUATION
Item Description: This item is a zone code amendment to the adult entertainment ordinance. The
amendment will delete adult newsracks from the regulatory provisions of the adult entertainment
ordinance. This change is being made at the request of the City Attorney. The result of the amendment
is that adult material newsracks will be treated like all other newsracks rather than as adult
entertainment establishments. There is no site specific project associated with this change.
PHYSICAL ENVIRONMENT
No site-specific project is proposed as part of this zone code amendment. Therefore, there will be no
resulting changes in land form, earth conditions, sand deposits, air quality, climate, water resources,
or cultural resource sites.
BIOLOGICA&
This zone code amendment proposes no actual development. Therefore, no impacts to the diversity of
flora or fauna, condition of ecosystems, or agricultural areas or farmlands are anticipated. Each site-
specific will be reviewed for possible biological-related impacts on a project-by-project basis.
HUMAN ENVIRONMENT
This zone code amendment does not propose any changes in land use patterns. The amended
regulations will not directly alter the present or planned land use of a specific area. Any future
development application processed pursuant to these regulations, will be required to undergo specific
environmental review.
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- ANALYSIS OF VIABLE ALTERNATIVES TO THE PROPOSED PROJECT SUCH AS:
a) Phased development of the project,
b) alternate site designs,
c) alternate scale of development,
d) alternate uses for the site,
e) development at some future time rather than now,
f) alternate sites for the proposed project, and
g) no project alternative.
Project alternatives are required when there is evidence that the project will have a sign&ant adverse
impact on the environment and an alternative would lessen or mitigate those adverse impacts. Public
Resources Code Section 21002 forbids the approval of projects with significant adverse impacts when
feasible alternatives or mitigation measures can substantially lessen such impacts. A “significant effect”
is defined as one which has a substantial adverse impact. If the project has “NO” significant impacts
than there are no substantial adverse impacts and no justification for requiring a discussion of
alternatives, (There is no alternative to no substantial adverse impact). This project has no significant
impacts. Therefore no alternatives are required.
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- DETERMINATION (To Be Completed By The Planning Department)
On the basis of this initial evaluation:
X I find the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE
DECLARATION will be prepared.
- I find that the proposed project COULD NOT have a significant effect on the environment, because the environmental effects of the proposed project have already been considered in conjunction with previously certified environmental documents and no additional environmental review is required. Therefore, a Notice of Determination has been prepared.
- I find that although the proposed project could have a signikant effect on the environment, there will not be a significant effect in this case because the mitigation measures described on an attached sheet
have been added to the project. A Conditional Negative Declaration will be proposed.
- I find the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required.
LIST MITIGATING MEASURES (IF APPLICABLE1
ATTACH MITIGATION MONITORING PROGRAM (IF APPLKABLE~
APPLICANT CONCURRENCE bVlTI3 MITIGATING MEASURES
THIS IS TO CERTIFY THAT I HAVE REVIEWED THE ABOVE MITIGATING MEASURES AND CONCUR WITH THE ADDITION OF THESE MEASURES TO THE PROJECT.
Date Signature
EB:lh
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PLANNING COMMISSION RESOLUTION NO. 3685
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A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING
APPROVAL OF A ZONE CODE AMENDMENT, AMENDING
TITLE 21, CHAPTER 21.43, SECTIONS 21.43.020 AND
21.43.040, OF THE CARLSBAD MUNICIPAL CODE, BY THE
DELETION OF ADULT NEWSRACKS FROM THE
REQUIREMENTS OF THE ADULT ENTERTAINMENT
ORDINANCE.
CASE NAME: CITY OF CARLSBAD
CASE NO: ZCA 94-02
WHEREAS, the Planning Commission did on the 20th day of July, 1994, hold
a duly noticed public hearing as prescribed by law to consider said request; and
WHEREAS, at said public hearing, upon hearing and considering all testimony
and arguments, if any, of all persons desiring to be heard, said Commission considered all
factors relating to the Zone Code Amendment.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission
as follows:
A) That the foregoing recitations are true and correct.
B) That based on the evidence presented at the public hearing, the Commission
recommends APPROVAL of ZCA 94-02, according to Exhibit “g’, dated July 20,
1994, attached hereto and made a part hereof, based on the following findings and
subject to the following findings.
Findinzs:
1. The proposed zone code amendment is consistent with the goals and objective of
the Carlsbad General Plan.
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PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning
Commission of the City of Carlsbad, California, held on the 20th day of July, 1994, by the
following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Chairperson Savary; Commissioners Welshons, Erwin, Noble,
Compas, Monroy and Nielsen.
None.
None.
None.
CARLSBAD P&NING COMMISSION
ATTEST:
MICHAEL J. MLZMIQLER
Planning Director
PC RESO NO. 3685 -2-
DATE:
TO:
FROM:
SUBJECT:
JULY 20, 1994
PUWNING COMMISSION
PLANNING DEPARTMENT
ZCA 94-02 - ADULT ENTERTAINMENI ORDINANCE - Recommendation of
approval of a Negative Declaration and an amendment to Title 21, Chapter
21.43 (Adult Entertainment) of the Carlsbad Municipal Code to delete adult
newsracks from the regulatory provisions of the adult entertainment
ordinance.
I. RECOMMENDATION
APPLICATl:q L~MPLETE DATE: EXHIBIT 4
APRIL 13. 1994 STAFF PLANNER: ELAINE BLACKB
0 4 P ST-AFF REPORT
That the Planning Commission ADOPT Planning Commission Resolution No. 3684,
recommending APPROVAL of a Negative Declaration issued by the Planning Director, and
ADOPT Planning Commission Resolution No. 3685, recommending APPROVAL of ZCA 94-
02 based on the findings contained therein.
II. PROJECT DESCRIKIlON AND BACKGROUND
The proposed zone code amendment will delete adult newsracks from the regulatory
provisions of the City? Adult Entertainment Ordinance (Chapter 21.43 of the Carlsbad
Municipal Code). This change is being proposed pursuant to a recent appellate court
opinion regarding the regulation of adult newsracks.
III. ANALYSIS
1. Is the proposed zone code amendment consistent with the Carlsbad General Plan?
2. Is the proposed zone code amendment consistent with all relevant chapters of the
Carlsbad Municipal Code?
ZCA 94-02
ADULTENTERTAINMENTORDINANCE
JULY20,1994
PAGE2
DISCUSSION
GENERALPLAN
The adopted General Plan has no specific objectives or policies which address adult
entertainment uses or newsracks. The Housing element contains one policy (Policy I)
which directs that the “City should preserve its existing character and protect residential
communities, which could be susceptible to blight or deterioration, from the encroachment
of conditions or uses which would have a negative impact or degrade the environmental
quality of those communities”. The proposed zone code amendment does not violate this
policy. No use changes are proposed.
The draft General Plan Update document also contains no specific objectives or policies
which specifically address adult entertainment uses or newsracks. The Public Safety
Blement contains an objective (B.4) to “encourage crime prevention through the planning
process by establishing specific design criteria and standards to be used in the review of
land use development”. The proposed zone code amendment does not change any design
criteria or standards which are used in the review of land use development.
Therefore, the proposed zone code amendment is consistent with both the current
(adopted) and the draft General Plan.
MUNICIPAL CODE
Section 21.43.010 currently includes adult newsracks among the uses determined to be
“adult entertainment establishments”. Other such uses include adult motion picture
theaters, adult motels, adult bookstores, and massage establishments, among others. As
an adult entertainment establishment, adult newsracks are permitted in the C-l, C-2, C-M,
M, P-M, and P-U zoning districts and are required to obtain an adult entertainment permit
(Section 21.43.035). As an adult entertainment establishment, adult newsracks must meet
the same minimum spacing and minimum proximity requirements as other adult
entertainment establishments. (The minimum spacing requirement is at least 1000 feet
from another adult entertainment establishment. The minimum proximity requirements
are, generally, at least 1000 feet from residentially zoned parcels or specific uses such as
parks, playgrounds, churches, schools, child care facilities, etc. and at least 500 feet from
other specified uses.)
Cities are allowed to regulate adult entertainment businesses because there are secondary
effects associated with these businesses. However, a recent appellate court opinion holds
that adult newsracks should not be regulated as adult entertainment businesses. The
rationale is that adult newsracks are substantially different from adult entertainment
businesses because the secondary effects typically associated with adult entertainment
establishments (e.g., crime, blight) are not associated with adult newsracks. Therefore, the
ZCA 94-02
ADULT ENTERTAINMENT ORDINANCE
JULY 20, 1994
PAGE 3
City Attorney’s office has determined that adult newsracks should be deleted from the City’s
“adult entertainment establishment” classification and regulations.
Chapter 11.36 regulates the placement of newsracks in general on public rights-of-way.
This chapter requires that a right-of-way permit be obtained for such newsracks and
establishes standards (size, maintenance conditions, etc.) and location criteria for
newsracks. New language for this chapter was heard by the City Council in April. This
language adopts the State’s definition of “harmful matter” and makes it unlawful to display
“harmful matter” in a newsrack unless a blinder rack has been installed. “Harmful matter”
is material which is considered to be obscene from the point of view of a minor. The
blinder rack must cover the lower two-thirds of the material. This new wording
incorporates the maximum regulation which the City can adopt relating to this type of
material because State Law preempts local regulation of “harmful matter”.
The proposed amendment would result in adult newsracks being subject to the regulations
of Chapter 11.36 when placed on the public right-of-way, as are all other newsracks. Adult
newsracks would also, however, be subject to the blinder rack requirement.
In addition, new State legislation effective January 1, 1995, requires that newsracks
containing harmful material be supervised by an adult. This may result in such newsracks
being removed from the streets.
ENVIRONMENTAL REVIEW
The Planning Director has determined that the proposed zone code amendment will not
create any significant adverse environmental impacts and has, therefore, issued a Negative
Declaration on June 1, 1994.
ATTACHMENTS
1. Planning Commission Resolution No. 3684
2. Planning Commission Resolution No. 3685
3. Exhibit “A”, dated July 20, 1994.
EB:lh
JUNE 20, 1994
EXHIBIT “A”
21.43.040&:
0 CCIafiECTED EXHIBIT 5
PLANNING CoMMISSIoN July 20,1994 PAGE 9
rwfn stated that he will be voting against the CUP because of its location. He
ar the site. Although there may be more peopl
into a relatively small rmore, Sunday is a very big day in aviat
Commissioner Nielsen wonders is limiting the CUP to thr 8 thinks five years would
save the church money a noz, Associate Planner,
replied that staff is a little have recommended three
years. They were trying t since the church is
non-profit, the fee& to renew the CUP AM is onl ormally a CUP renewal would cost in the
area of 624060 $400.
ACTION: Motion was mad missioner Noble, and nded to adopt Planning
n No. 3666, approvin e Declaration and
94-03, based on the
endment that the
airman Savary, Commissioners Monroy, Nielsen, and Noble
issioners Compas, Erwin, and Welshons
4. ZCA 94-02 - ADULT ENTERTAINMENT ORDINANCE - Recommendation of approval of a
Negative Declaration and an amendment to Title 21, Chapter 21.43 (Adult Entertainment) of the
Carl&ad Municipal Code to delete adult newsracks from the regulatory provisions of the adult
entertainment ordinance.
Elaine Blackburn, Associate Planner, reviewed the background of the request and stated that the proposed
zone code amendment to Chapter 21.43 of the Carl&ad Municipal Code will delete adult newsracks from
the regulatory provisions of the City’s Adult Entertainment Ordinance. This amendment is being processed
in order to comply with state and federal limitations on City authority. Currently, the City’s municipal code
includes adult newsracks as adult entertainment establishments similar to adult bookstores and massage
parlors which are governed by the Adult Entertainment Ordinance. However, a recent appellate court
opinion has held that adult newsracks cannot be regulated as adult entertainment businesses because the
negative secondary effects typically associated with such businesses are not associated with newsracks.
The City does have some limited authority to regulate material which is defined as harmful matter, i.e.
generally, material wftich would be considered obscene from the viewpoint of a minor. As discussed in the
written staff report, regulations are in place to address the placement of newsracks in the public right of
way and which require a 2/3rd’s blinder for those newsracks containing such harmful matter. There are
also state and federal laws in place which regulate adult ,materials, including a law which becomes effective
January 1,1995 which requires an attendant to be present to prevent minors from having access to
harmful matter when it is located in a pubfic place. It is staffs opinion that the adoption of this proposed
zone code amendment will put City regulations in compliance with federal and state restrictions on our
regulating authority while regulating the adult newsracks to the maximum extent possible. Staff
recommends approval.
Commissioner Monroy requested staff to explain the law requiring an attendant to be present. Ms.
Blackburn replied that at the current time the newsracks do not require the services of an attendant. The
state preempts a lot of local authority for regulating this type of thing. With Chapter 11.36 which governs
newsracks in the public right of way, there is a requirement for certain size and locational criteria for
MINUTES
/ -I
PLANNING COMMISSION July 20, 1994 PAGE 10
newsracks. As of April 1994, if the newsrack contains harmful matter, those things which would be
obscene for a minor, there must be a 2/3rd’s blinder on the front of the newsrack. The law which requires an attendant to prevent minors from having access to harmful matter, is actually a state law which has
been approved for the penal code but it does not go into effect until January 1,1995. Staff believes that
the net effect of that law may be to remove the newsrack simply because it wouldn’t be very expedient to
hire an attendant to stand over a coin-operated newsrack. However, that is only conjecture.
Commissioner Erwin inquired if this is approved tonight, these adult newsracks can be placed anywhere in
the City with a blinder until January 1, 1995. Ms. Blackburn replied that these newsracks could be placed
like any other newsrack. If they are on the public right of way, they would still have to meet all of the
criteria contained in Chapter 11.36 in order to obtain an encroachment permit. The key factor is that the
requirement for a blinder is now part of Chapter 11.36.
Commissioner Erwin inquired if the restrictions on Chapter 11.36 pertain to all newsracks. Ms. Blackburn
replied that all of the other requirements are typical for any newsrack. The only distinction is the
requirement for a blinder on newsracks containing harmful material.
Chairman Savary opened the public testimony and issued the invitation to speak.
Harry E. Ekdahl, Jr., 1630 James Drive, Carlsbad, addressed the Commission and stated that he would
like to know what can be done to mitigate the effects of these racks in the interim between now and
January 1, 1995 when the attendant is required. He believes that by allowing obscene material to be in
view of the public is immoral and should be stopped by any means available. Ms. Blackburn replied that
given the federal and state regulations which restrict some authority for cities, this is the maximum
regulation Carlsbad can have in place for these newsracks. The state and federal regulations supersede
our regulations.
Scott Koop, 1970 Magnolia, Carlsbad, addressed the Commission and pleaded with them to not approve
the zone code amendment. He is concerned about the change in verbiage because the word obscene has
been changed to harmful. Although both definitions appear to be identical, if we have been unable to
remove newsracks containing “obscene” material, what makes us think that we will be able to remove
newsracks containing “harmful” material. Although staff may be trying to do their job, he does not feel that
the deregulation of obscene adult newsracks is right for Carlsbad. Even with the existing ordinance, there
are adult newsracks in Carl&ad at the post office which are in violation of the code. They are too high,
there is no name of a distributor visible on the racks, and they are within 3 ft. of landscaping. This line of
newsracks extends for a distance of 10 ft.
Marion Azara, 3730 Longview, Carl&ad, addressed the Commission and stated that she just recently
learned about the adult newsracks. She went there today to verify what she had heard, and it turned out to
be more appalling that she expected. She is not knowledgeable about legal matters, but she hopes we will
go to the utmost length to have those newsracks removed from our City. She purchased some of those
publications just to see what they contained and she couldn’t get through two pages of the first two
newspapers before she became visibly ill. She has a 12 year old son and she knows full well that nothing
will stop those children from riding their bikes along Roosevelt, putting in their three quarters, regardless of
the blinders, and getting their hands on those publications. We owe it to our children to do whatever it
takes to have those newsracks removed. She passed the publications on to the Commission so they could
see the extent of the obscenities. The only other place she has seen such obscene material is on the
streets of Las Vegas alongside the hookers on the street corner.
Mary Watts, 1530 Chestnut, Carlsbad, addressed the Commission and stated that the Commissioners
should put themselves in the place of a tourist who comes to Carlsbad. They expect that sort of thing in
Las Vegas but they don’t expect it here. Since the City has just spent a small fortune for a streetscape to
0 .
PLANNING COMMISSION July 20, 1994 PAGE 11
attract visitors, the City officials should be embarrassed that these newsracks are sitting along side it on the
sidewalk. She reiterates everything that has been said previously and hopes the Commission will concur.
Brooks Worthing, 1156 Larksburg, Carlsbad, addressed the Commission and stated that it sounds as
though we are hamstrung. He thinks the City needs to enforce the code we already have on the books.
The City employs a code enforcement officer and that is his job.
There being no other persons desiring to address the Commission on this topic, Chairman Savary declared
the public testimony closed and opened the item for discussion among the Commission members.
Karen Hirata, Deputy City Attorney, advised the Commission that they have no jurisdiction over the
newsrack ordinance contained in Chapter 11.36 of the municipal code because it is not a zoning
ordinance. Amendments to Chapter 11.36 can only be made by the City Council. The matter before the
Commission tonight is an amendment to the adult entertainment establishment ordinance which is
contained in the zoning ordinance. The amendment deletes the definition of a newsrack containing adult
magazines as an ‘adult entertainment establishment.’ This amendment is required because an appellate
court has held that cities cannot regulate newsracks as adult entertainment establishments because there
are no secondary effects associated with the newsracks. Other adult establishments such as topless bars,
bookstores, and movie houses have documented secondary effects such as prostitution, drug dealing, and
robbery surrounding the businesses.
For the benefit of the persons in the audience who gave testimony concerning proposed amendments to
the newsrack ordinance in Chapter 11.36, Ms. Hirata gave a brief summary of the law in this area. State
law prohibits the sale, distribution, or possession of ‘obscene’ publications. Cities are not allowed to pass
ordinances regulating these materials. The state has also passed laws regarding ‘harmful matter,’ which is
material considered obscene from the point of view of a minor. State law also preempts cities from passing
regulations regarding harmful matter, but the state has allowed cities to require blinder racks on newsracks
containing harmful matter. The City of Carlsbad has done this, and this is the maximum that can be done
by the City at the present time. The state legislature has passed statutes which will become effective on
January 1, 1995 which require newsracks containing harmful matter that are located in a public place to be
supervised by an adult, in an effort to stop minors from purchasing the material. The practical effect of this
will be to eliminate this type of newsrack from the street. Assemblyman Steve Peace is the author of the
legislation and any questions about it should be directed to him. Although the City already has the
maximum regulations which are allowed, the City can enforce the regulations which are already in the
newsrack ordinance, as suggested by Mr. Worthing. Any complaints about a particular newsrack should
be reported to the code enforcement officer.
Commissioner Erwin inquired about Mr. Koop’s comments and the violations that are apparently occurring
unchecked. Mr. Worthing stated that we should enforce the code we have on the books. He thinks that a
Minute Motion would be in order to bring the problem to the attention of the code enforcement officer.
ACTION: Motion was made by Commissioner Erwin, and duly seconded, to adopt Planning
Commission Resolution No. 3684, recommending approval of a Negative Declaration
issued by the Planning Director, and adopt Planning Commission Resolution No. 3685,
recommending approval of ZCA 94-02, based on the findings contained therein. VOTE: 7-O
AYES: Chairman Savary, Commissioners Compas, Erwin, Monroy, Nielsen, Noble, and
Welshons
NOES: None
ABSTAIN: None
u d - -*
PLANNING COMMISSION July 20,1994 PAGE 12
ACTION: A Minute Motion was made by Commissioner Erwin, and duly seconded, for the code
enforcement officer to inspect newsracks in the vicinity of the U. S. Post Office on
Roosevelt Street, Carlsbad, for compliance with Section 11.36, based on complaints
received at the Planning Commission meeting of July 20, 1994.
VOTE: 7-O
AYES: Chairman Savary, Commissioners Compas, Erwin, Monroy, Nielsen, Noble, and
Welshons
NOES: None
ABSTAIN: None
Commissioner Noble stated that the telephone number for the code enforcement officer is 438-l 161,
ext. 4215. Action is taken on a complaint basis.
ociate Planner, reviewed the background of the request and stated that LF
d the circulation and school facility sections of the Local Facilities Manag
in the southwest quadrant of the City, west of El Camino Real and nort
The Zone 21 LFM ally approved in September 1991. At that tim
added to both the circulation sections of the plan. These specia
circulation requirement t r to final map, the ultimate alignment for Poins ane be established.
Recently, the City has r opment proposals in Zone 21, altho perties are not located
along the alignment for
burdensome and difficult to r evelopment is not
affected by the alignment. T tion be revised to require that
the alignment be established lternative alignments comes in
prepared so that all property
owners within Zone 21 pay their fair sha a staff memo dated July 19, 1994
ve requested permission for a fee
owners to develop a financing
plan for Poinsettia Lane and they are uncertain I be a fee program so they have requested
this change to allow for another financing mech mes necessary.
Staff is also recommending a change nt to recent Council direction on
Zone 20. This condition basically add uld be handled at the LFMP level.
Chairman Savary opened the pu mony and issued the invit
There being no persons desir address the Commission on this toprc, irman Savary declared the
public testimony closed a ed the item for discussion among the Co
was made by Commissioner Erwin, and duly second
contained in staff memo dated July 19, 1994.
Chairman Savary, Commissioners Compas, Erwin, Monroy, Nielsen, Noble, a
Welshons
ABSTAIN: None
MINUTES .
PROOF OF PUBLICATION
(2015.5 C.C.P.)
STATE OF CALIFORNIA
County of San Diego
I am a citizen of the United States and a resident of the County aforesaid: I am over the age of eighteen years, and not a party to or interested in the above-entitled matter. I am the principal cierk of the printer of
Blade-Citizen
9 a newspaper of general circulation, printed and published daily in the City of Oceanside and qualified for the City of Oceanside and the North County Judicial district with substantial circulation in Bonsatl, Fallbrook, Leucadia, Encinitas, Cardiff, Vista and Carlsbad, County of San Diego, and which newspaper has been adjudged
a newspaper of general circulation by the Superior
Court of the County of San Diego, State of California.
under the date of June 30, 7989, case number 171349; that the notice, of which the annexed is a printed copy (set in type not smaller than nonpareil), has been published in each regular and entire issue of said
newspaper and not in any supplement thereof on the
following dates, to-wit:
September 10, 1994
I certify (or declare) under penalty of perjury that the
foregoing is true and correct.
Dated at Oceanside,Califomia, this l2 day Of September, 1994 ****** ~/+&dLk;;;!~~ ***********
BLADE-CITIZEN
Legal Advertising 1722 South Hill Street
P.O. Box 90
Oceanside, CA 92054
(619) 433-7333
This space is for the County Clerk’s Filing Stamp
Proof of Publication of
Notice of Public Hearing
***************_*_***********-*********************--*
****-***--*****-************************-***********---
I
Paste Clipping of Notice
SECURELY
In This Space.
ORDINANCE
NOTICE IS HEREBY GIVEN that the City Council of the City of Carlsbad will hold a pubhc hearmg at the City Council Chambers, 1200 Carl&ad Village Drive, Carlsbad, California, at 6:00.P.M., on Tuesday, September 20,1994, to consider a recommendation for approval of a Negative Declaration and an amendment to-Title 21, Chapter 21.43 of the Carlsbad Municipal Code to delete adult newsracks from the regulatory
P rovisions of the adult entertainment ordinance. f you have any questions regardin lease call Elame Blackburn m the B this.matter,
be lannmg partment, at (619) 438-l 161, ext. 4471. If you challenge the Negative Declaratton Mr- Zone Code Amendment in court, you may be limited to raising only those issues raised by you or someone else at the public hearmg described in this notice, or in written correspondence delivered to the City of &&bad City Clerk’s Office at, or prior, to the public hearing.
CARLSBAD CITY COUNCIL
Legal 40388 September lo,1994
APPLICANT: City of Carlsbad
NOTICE OF PUBLIC HEARING
ZCA 94-2
ADULT ENTERTAINMENT ORDINANCE
NOTICE IS HEREBY GIVEN that the City Council of the City of Carlsbad will hold a public hearing at the City Council Chambers, 1200 Carlsbad Village Drive, Carlsbad, California, at 6:00 P.M., on Tuesday, September 20, 1994, to consider a recommendation for approval of a Negative Declaration and an amendment to Title 21, Chapter 21.43 of the Carlsbad Municipal Code to delete adult newsracks from the regulatory provisions of the adult entertainment ordinance.
If you have any questions regarding this matter, please call Elaine Blackburn in the Planning Department, at (619) 438-1161, ext. 4471.
If you challenge the Negative Declaration and/or Zone Code Amendment in court,
you may be limited to raising only those issues raised by you or someone else at the public hearing described in this notice, or in written correspondence delivered to the City of Carlsbad City Clerk's Office at, or prior, to the public hearing.
APPLICANT: City of Carlsbad PUBLISH: September 10, 1994 CARLSBAD CITY COUNCIL
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the Planning Commission of the City of Carlsbad will hold a public hearing at the Council Chambers, 1200 Carlsbad Village Drive, Carlsbad, California, at 6:00 p.m. on Wednesday, July 20, 1994, to consider recommendation of approval of Negative Declaration and an amendment to Title 21, Chapter 21.43 (Adult
Entertainment) of the Carlsbad Municipal Code to delete adult newsracks from the regulatory provisions of the adult entertainment ordinance.
Those persons wishing to speak on this proposal are cordially invited to attend the public
hearing. Copies of the staff report will be available on and after July 14, 1994. If you
have any questions, please call Elaine Blackburn in the Planning Department at (619) 438-
1161, ext. 4471.
If you challenge the Negative Declaration and/or Zone Code Amendment in court, you may
be limited to raising only those issues you or someone else raised at the public hearing
described in this notice or in written correspondence delivered to the City of Carlsbad at or prior to the public hearing.
CASE FILE: ZCA 94-02 CASE NAME: ADULT ENTERTAINMENT ORDINANCE PUBLISH: JULY 8, 1994
CITY OF CARLSBAD
PLANNING COMMISSION
EB:vd
(Form A)
TO: CITY CLERK’S OFFICE
FROM: PLANNING
RE: PUBLIC HEARING REQUEST
Attached are the materials necessary for you to notide
ZCA 94-02 - ADULT ENTERTAINMENT ORDINANCE
for a public hearing before the City Council.
Please notice the item for the council meeting of
.
Thank you.
Assistant City Man-
.-
August 16, 1994
Date
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ZCA 94-02 ADULT ENTERTAINMENTORDINANCE LABELS 7-~$9g.LS+&
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