5656ORDINANCE NO. 5656
AN ORDINANCE OF THE CITY OF ANAHEIM AMENDING
VARIOUS SECTIONS OF CHAPTER 18.89 OF TITLE 18
OF THE ANAHEIM MUNICIPAL CODE RELATING TO
SEX -ORIENTED BUSINESSES.
WHEREAS, the City Council of the City of Anaheim
incorporates herein those recitals contained in Ordinance Nos.
5399, 5568 and 5649 by this reference as if set forth in full;
and
WHEREAS, City Attorney, Planning Department and Police
Department staff regularly review the provisions of Chapter 18.89
to determine if clarification or modification of its provisions
is appropriate in view of changes in the law and have been
processing this amendment to Chapter 18.89 since September, 1998;
and
WHEREAS, in Freedman v. Maryland 380 U.S. 51 (1965) the
United States Supreme Court held that a decision denying First
Amendment speech must have prompt judicial review so as to not be
an unconstitutional prior restraint on speech; and
WHEREAS, on September 10, 1998, the United States Court
of Appeals for the Ninth Circuit issued its opinion in Baby Tam &
Co.. Inc. V. City of Las Vegas, 98 Daily Journal D.A.R. 9789,
holding that sexually -oriented businesses' licensing ordinances
were required to note the provision of prompt judicial review for
persons whose license or permit applications have been denied;
and
WHEREAS, the City Council declares that it would have
adopted the locational and operational provisions of Chapter
18.89 even in the absence of the permit issuance provisions of
that Chapter; and
WHEREAS, as provided in the severability clause of this
ordinance, in the event of invalidation of any provision of
Chapter 18.89, including the provisions relating to permit
issuance, any sex -oriented business which operates in the City
will be deemed to be operating subject to the requirements of
Chapter 18.89, including but riot limited to the locational and
operational requirements, which would have been adopted
independent of the permit issuance provisions; and
WHEREAS, the continuing application of the locational
and operational provisions of Chapter 18.89 is necessary in order
to protect the public health, safety and welfare by providing a
mechanism to address the harmful secondary effects associated
with the establishment and operation of unregulated or
underregulated Sexually Oriented Businesses in the event the
City's permit issuance procedures are invalidated by a court of
competent jurisdiction.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM
HEREBY ORDAINS AS FOLLOWS:
SECTION 1.
That paragraph .0403 of subsection 18.89.030.040 of
Section 18.89.030 of Chapter 18.89 of Title 18 of the Anaheim
Municipal Code be, and the same is hereby, amended to read as
follows:
.0403 Within ten (10) calendar days following the
completion of the public hearing specified in paragraph
.0402 above, the Hearing Officer shall approve such
application if it is determined that the requirements of
this chapter have been met and if the application and
evidence submitted show that such sex -oriented business will
be conducted in compliance with the requirements of
subsection 18.89.030.050 as hereinafter set forth; otherwise
the application shall be denied. The Hearing Officer shall
impose conditions upon such approval as are reasonably
necessary to assure compliance with the requirements of this
chapter. In the event of denial of the application, the
Hearing Officer shall specify in writing the grounds upon
which the application is denied. Notice of the decision of
the Hearing Officer shall be given in writing to the owner,
and to any other person or entity expressly requesting
notice thereof, in the same manner as provided for the
giving of notices in paragraph .0401 above. The decision of
the Hearing Officer shall also be immediately transmitted to
the License Collector for issuance or denial of the permit.
The decision of the Hearing Officer shall be deemed final
notwithstanding any other provision of this Code to the
contrary."
SECTION 2.
That paragraph .0406 be, and the same is hereby, added
to subsection 18.89.030.040 of Section 18.89.030 of Chapter 18.89
of Title 18 of the Anaheim Municipal Code to read as follows:
.0406 notwithstanding anything herein to the contrary,
whenever the United States or California Constitution
require that prompt judicial review is necessary for a
decision impinging on First Amendment expression, prompt
judicial review shall be afforded as provided by law. The
City shall prepare the administrative record within 14 days
of the date the record is requested to expedite review."
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SECTION 3.
That the introductory language of subsection
18.89.030.050 of Section 18.89.030 of Chapter 18.89 of Title 18
of the Anaheim Municipal Code be, and the same is hereby, amended
to read as follows:
050 Requirements for Sex -Oriented Businesses. It shall
be unlawful for any person or entity to own, operate or
conduct any sex -oriented business, or for any person to
engage or participate in any specified sexual activities or
display or expose any specified anatomical parts except in
compliance with the requirements of this subsection .050 as
hereinafter set forth."
SECTION 2.
That new subsection 18.89.080.070 be, and the same is
hereby, added to Section 18.89.080 of Chapter 18.89 of Title 18
of the Anaheim Municipal Code to read as follows:
" .070 The status quo shall be maintained pending
conclusion of the revocation hearing. If a judicial action
is commenced challenging the revocation, the status quo
shall be maintained until such time as a judicial decision
is rendered from the court in which the action is filed.
Notwithstanding the foregoing, if operation of the business
constitutes a danger to public health or safety, the City
may seek an order from a court of competent jurisdiction
authorizing immediate closure of the business."
SECTION 4. SEVERABILITY
The City Council of the City of Anaheim hereby declares
that should any section, paragraph, sentence or word of this
ordinance of the Code, hereby adopted, or of Chapter 18.89 of the
Code, be declared for any reason to be invalid or
unconstitutional, such invalidity or unconstitutionality shall
not affect the validity or constitutionality of the remaining
portions of this ordinance or the remaining portions of Chapter
18.89; it being the intent of the Council that it would have
passed all other portions of this ordinance, and all other
portions of Chapter 18.89, independent of the elimination of any
such portion as may be declared invalid. In the event a court of
competent jurisdiction renders a decision facially invalidating
the permit issuance process contained in this Chapter, any Sex -
Oriented Business which operates in the City shall be deemed to
be operating subject to the locational and operational
requirements contained in Chapter 18.89, as the same may be
amended from time to time.
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SECTION 5. SAVINGS CLAUSE
This ordinance is declarative of existing law for
reasons which include, without limitation, the existing provision
establishing that the hearing officer's decision on a permit for
a sex -oriented business is final, thereby expediting review (AMC
18.89.030.040.0403). Neither the adoption of this ordinance nor
the repeal of any other ordinance of this City shall in any
manner be construed as a waiver of any license or penalty or the
penal provisions applicable to any violation thereof, including
violations committed prior to the effective date hereof. The
provisions of this ordinance, insofar as they are substantially
the same as ordinance provisions previously adopted by the City
relating to the same subject matter, shall be construed as
restatements and continuations, and not as new enactments.
THE FOREGOING ORDINANCE is approved and adopted by the
City Council of the City of Anaheim thi 3rd day f November
1998.
OR OF HE ITY F ANAHEIM
ATTEST-
CITY
TTEST:CITY CLERK OF THE CITY OF ANAHE PC
0028264.01
11
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF ANAHEIM )
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing
Ordinance No. 5656 was introduced at a regular meeting of the City Council of the City of
Anaheim, held on the 27th day of October, 1998, and that the same was duly passed and
adopted at a regular meeting of said City Council held on the 3rd day of November, 1998, by
the following vote of the members thereof:
AYES: MAYOR/COUNCIL MEMBERS: McCracken, Tait, Zemel, Lopez
NOES: MAYOR/COUNCIL MEMBERS: None
ABSENT: MAYOR/COUNCIL MEMBERS: Daly
PRO TEIvi
AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Ordinance No.
5656 on the 3rd day of November, 1998.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City
of Anaheim this 3rd day of November, 1998.
CITY CLERK OF THE CITY OF ANAHEIM
(SEAL)
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing
is the original of Ordinance No. 5656 and was published once in the North County News on
the 12th day of November, 1998.
CITY CLERK OF THE CITY OF ANAHEIM
W