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Home My WebLink AboutORD NO 3217ORDINANCE NO. 3217 , NEW SERIES AN ORDINANCE OF THE COUNCIL OF THE CITY OF BAKERSFIELD AMENDING SUBSECTIONS B. AND C. OF SECTION 5.06.010 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO ADULT BOOKSTORES. BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. Subsections B. and C. of Section 5.06.010 of the Bakers- field Municipal Code are hereby amended to read as follows: 5.06.010 Definitions. B. "Harmful matter" shall have the same meaning and the same definition as that phrase defined in Chapter 7.6 of Title 9 of Part 1 of the California Penal Code. C. "Matter" shall have same meaning and the same defini- tion as that word is defined in Chapter 7.6 of Title 9 of Part 1 of the California Penal Code. SECTION 2. This ordinance shall be posted in accordance with the City Charter provisions and shall become effective thirty (30) days from and after the date of its passage. .......... o0o .......... I HEREBY CERTIFY that the foregoing Ordinance was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on April 26, 1989 , by the following vote: AYES: COUNCILMEMBERS: ~ OeM/~NO. $MI1~. RATTY~ PE'~.~O#, McDI~RMOTr.~ALVAGI~O NOES: COUNCILMEMBERS: ~one ABSENT: COUNCILMEMBERS: None ABSTAINING: COUNCILMEMBERS: None ~ ~ CITY CLERK and Ex Officio Clerk of the Council of the City of Bakersfield APPROVED April 26, 1989 MAYOR of the City of Bakersfield APPROVED as to form: 00RD 4 ADULT.1 4/24/89 - 2 - AFfiDAVIT OF POSTING DOCUMENT5 STATE OF CALIFORNIA) SS. County of Kern) CAROL WILLIAMS, Being duly That she is the duly appointed, of Bakersfield; and that on the sworn, deposes and says: acting and qualified City Clerk of the City 3.rd day of May , 19 89 she posted on the Bulletin Board at City Hall, a the following: Ordinance No. 3217 City Council at a meeting held on the 26th and entitled: full, true and correct copy of , passed by the Bakersfield day of April , 19 89 , AN ORDINANCE OF THE COUNCIL OF THE CITY OF BAKERSFIELD AMENDING SUBSECTIONS B. AND C. OF SECTION 5.06.010 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO ADULT BOOKSTORES. NSAOPD /s/ CAROL WILLIAMS CITY CLERK of the City of Bakersfield BV:D PUT~C e~r~ Justices Search [;or Nc v Test Adult Theater of fly Philit, Carrions. and Blchnrd Reuben When is ;n adult theater ant an adult Is it when the theater shown primarily pornographic fihTl"? ' Or is jUSt one pornographic film Thal's (he question that the CaliDrnia Supreme Court stn~ggled with Tuesday Long Beach thealer that clevc~ y has been avoiding prosecntion I~y sho~ng non-pof 1981 that a theater nmat show a "p~epon- legate" of potnog~ aphie fihnu to be con- sidered an adult theater, thc l~kewood T~n Einemas has bccn mixing up lection of adult and non-adult films avoid prosecution for violating Long Beach zoning orfiinanccs. Under thc Long Beach o~dinance, adurf theaters cannot he within 5~ feet of a residential area or 1.000 feet of a public school or chin ch, The I.akewood ~ heater is within 1,~10 {ecl of Long Bcad~ City College as we]~ as the Religious Institule o{ the Church of Jesus Ch6st, Latter day 1977 by Wahmt l'.q,ertiea, also the own- ers of the wmM4amous "Pu;sycat' the- At fi~st, the thcalcr showed X-rated movies Friday ti. hugh Smaby. During the ;emaining fonr days ol the week, the theater exhibited nou po~ nog~aphic fihns. Late;, the theater experimented with dating alternate weeks. just X-areal films on one screen and trna- er. R- or PC-rated movies on the other That so;t of gamesmanship i~dtates Deputy City Art.they Geny L. En~ey, who urged the slate high coua Tuesday to dump the "p;epnnde~nt use" test in (avar o{a "single usc" sbandard. Experimentation U~gcd "1hat's the bcaaty of the single-use siaadmd," he ~ohl the jn~ficc~ T.e~day. "We ought to allow single nsc in order to to iakingc on the First Amendment, then we can ~o bark and look at it later." Bat LOs An~ch'a lawyc~ Stanley Flei~h- told Um juslJce~ that the zoning mdinan,~e Wednesday, April 12, lORD "This is nothing more than an and mn. an unconstitntional attempt to regulate something that cannot be regulated, and everyone knows that," he'said, describ- ing the ordinance as "conlent-based." Fleisinnan m ged tim jtmtlces tn find the law illegal under the state Constitution, which he said was "more protective" than the federal Constitution. AIt¢~ native- ly, he urged the court lo find it overbwod and to send it back to the Long Beach City Council to redraft and redefine the term lng on factual grounds. Appeal Courts Split The coutta have been anything hut clear on the general issue of pornographic theaters and "porn zoning" in pat ticular. Its 197G, the U.S. Supreme Court ap- proved a Detroit ordinance that is virtnal- ly identical to the one adopted in Long Beach. In fact, an attempt by the Lake- wood's owner to challenge the Long Beach ordinance was rejected in Il'al, ut Properties l.c.v, l~ng Beach City Co.n. oil, 100 CaI.App.3d 1018 (1980), and the Ihcater stopped showing adult films. But in 1981, another appeal conk ruled that "a preponderance of the films sho~ must have as their dominaul theme the depiction of... sexual activities in order Dr a theater to be deenmd au 'adult mo- lion picture theater' within the ambit the zoning ordinance." That decision, ~.gle v. Ci~ of Corian, 115 CaI.App.3d 151 (1981), has been bflowed by at least two o~her appellate conrts. In 1986, Di~sinn One of ~e 2nd Dis- ~ict Cou~ of ~ppeal [eh~sed ~te and said even a single, isolaled sho~ng of an X-~t~ film pe~iRed a ~ter to ~ c~ss~ as ~ ad~t ~ter under a city's zoning ordinances. The state Supreme Co~, ~en ~der foyer CNe~ Jus6ce Rose Bird, rehaed to renew ~e ~se in June 1986, but ~e co~ "dece~ed" ~e op~on h Walnut ~ Inc. o. ~ss~, 178 C~.A9p.3d 1~, mean~g it co~d not ~ dted an precedent in ~y o~er mae. Alter Ensley filed his complaints aoinat ~e ~ew~ ~ter and mm- ager Jose Ro~o ~oodo Lucern in tem~r 1986, he ~ to ~e to ~s ~gules Su~fior CouK Judge Jack Ne~ and ~e 2nd Dis~ct appeal co~ ~at U~ should be bllow~ ~ther ~an ~ b~use ~e ~ss~ ~ae ~volved ~e same p~e5 on an identi~l issue. But ~th Ne~an and ~e 2nd Dis~ ~rfy feinted Enshy's at.meat, saying that ~e ~ngle d~slon consfitut~ ~e only relev~t ~w on ~e sublet. The problem with F'ringie, Ensley ar- gued in his brief, ia that it destroys the whole concept of "porn-zoning" by ignor- ing the basic theories underlying zoning it- serf. Under t~ditional zoning theory, he says, one and only one use is permitted for land and there must be 100 percent compliance or zoning becomes irrelevant. In response, Flelshman said Ensley's argument ignores the fact that the Long Beach ordinance impinges on First Amendment rlghts~ Furthermore, the Prlngle court used a "preponderance" standard to save the ordinance from being struck down as unconstitutional, he said. During Tuesday's 40-mlnute argument in People v. Superior Court (Lttcero), S002438, members of the state Supre_m_.e Court see~cl ii'6U51~it and .the. ~_o~-e stringent preponderance. s__.t~__~d.~. Chief Justice Malcolm Lucius, who lives in Long Beach, asked Ensley: "Is it possible to have a constRutonal standard between single use and prepon- derance, or is it all or nothing? In other words, do you have a fall-back posi6nn?" "Quite frankly, l've gone for broke here," Ensley said. Justice Edward Panelli wondered whether an ordinance can offer such mid- die-ground guidance as "ordlnnry use," "reasonaNe use" or "customary use." Ii:van Justice Joyce Re~nird, in her first day of oral m guments as a member of the high court, seemed to be searching for something more than single use. "In sum, counselor, is the single-use argu- ment your only argument?" she asked Ensley. Ensley replied that the court could draw the line at "substantial stock-in- trade," but he said that standard is more vague than single-use and less precise. Fleishman urged the justices to resist any such efforts to find a middle ground. "That is a legislative problem, and with all due deference not something this court should be involved in," he said. Instead, if the court is looking for stan- dards, he said, "send it back to the Long Beach City Council to define it and then take a look at it." Philil~ Carri~osa rt~orted from San Francisco end Rict~ard ~d from Los A~efrs. MEMORANDUM April 24, 1989 TO: FROM: SUBJECT: HONORABLE MAYOR AND CITY COUNCILMEMBERS ARTHUR J. SAALFIELD, CITY ATTORNEY.~~ AGENDA ITEM NO. 11.a (ORDINANCE RE: ~ULT BOOKSTORES) FOR COUNCIL MEETING OF APRIL 26, 198~ Section 17.69.020 E. and F. define "adult motion picture theater" and "adult mini-motion picture theater" as theaters where sexually explicit materials are shown "on any ten or more days in any thirty consecutive day period." At least two California appellate court decisions have ruled that a preponderance ~f films shown must depict explicit sexual activity in order for a theater to be deemed "adult" for zoning regulation purposes. In those cases, the cities had maintained that a single showing of an explicit film brought the theater into the "adult" category. I recently recommended that we amend our code defini- tions and incorporate the preponderance standard found necessary by the appellate court rulings. My recommendation was accepted by the Urban Development Committee (Report No. 6-89) and first reading was given the ordinance amendment on April 12, 1989. The day before, the California Supreme Court tackled the issue, faced with arguments for a single use standard by one side rs. the preponderance standard on the other. An article describing the Court's hearing (attached) indicates that the Court seemed to be looking for a middle ground between such standards. (I have under- lined that portion of the article.) Our "any ten or more days in any thirty consecutive day period" is arguably a defensible middle ground. Pending the decision of the Supreme Court, I recommend that the Council not revise the ~efini- tion of "adult motion picture theater" or "adult mini-motion theater," that Section 2 of that ordinance given first reading on April 12, 1989 be deleted prior to adoption, and that the issue addressed in Section 2 be referred back to me pending the decision of the Supreme Court. ! further recommend that the Council proceed to adopt Section 1 of that ordinance which incorporates State Penal Code definitions by reference. The ordinance as recommended, with Section 2 deleted, has been revised and a copy is attached. AJS/meg M.CC1 Attachments cc: J. Dale Hawley Jack Hardisty R. A. Patterson