Loading...
5655ORDINANCE NO. 5655 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 AND DECLARING THAT THIS ORDINANCE IS AN URGENCY MEASURE WHICH SHALL TAKE IMMEDIATE EFFECT. 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 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 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 i,icense 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." 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 4. 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 5. SEVERABILITY 6 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. SECTION 6. 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. SECTION 7. DECLARATION OF URGENCY. The City Council declares that this Ordinance is necessary as an emergency measure for the immediate protection of the public safety, health and welfare and the reasons for its urgency are as follows: 1. 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, held 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. 2. The Ninth Circuit's recent decision in the Baby Tam case could detrimentally impact the City's ability to regulate sex -oriented businesses, thereby prohibiting the 3 City from furthering its substantial governmental interest in protecting the public from the harmful secondary effects the unregulated operation of Sex -Oriented Businesses has been found to create. SECTION 8. EFFECTIVE DATE OF ORDINANCE. This Ordinance shall take effect immediately. THE FOREGOING ORDINANCE is approved and adopted by the City Council of the City of Anaheim this 27th day of October 1998. MAYOR OF THE CITY OF ZVrAHEIM ATTEST � a:2 CITY CLERK OF E CI OF ANAHEIM 0028238.01 4 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 urgency Ordinance No. 5655 was duly passed and adopted at a regular meeting of the City Council of the City of Anaheim held on the 27th day of October, 1998 by the following vote of the members thereof: AYES: MAYOR/COUNCIL MEMBERS: NOES: MAYOR/COUNCIL MEMBERS ABSENT: MAYOR/COUNCIL MEMBERS: McCracken, Tait, Zemel, Lopez, Daly None None AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Ordinance No. 5647 on the 27th day of October, 1998. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim this 27th day of October, 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. 5655 and was published once in the North County News on the 5th day of, November, 1998. CITY CLERK OF THE CITY OF ANAHEIM