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2004-05-05 Council Packet
Kenai City Council Meeting Packet May 5, 2004 AGENDA KENAI CITY COUNCIL- REGULAR MEETING MAY 5, 2004 7:00 P.M. KENAI CITY COUNCIL CHAMBERS http://www, ci.kenai, ak.us. ITEM A: CALL TO ORDER 1. Pledge of Allegiance 2. Roll Call 3. Agenda Approval 4. Consent Agenda *Ail items listed with an asterisk (*) are considered to be routine and non- controversial by the council and will be approved by one motion. There will be no separate discussion of these items unless a council member so requests, in which case the item will be removed from the consent agenda and considered in its normal sequence on the agenda as part of the General Orders. ITEM B: SCHEDULED PUBLIC COMMENTS (10 minutes) . ITEM C: Sadie Moore -- ICAN Program, Comtnunity At-Reach Program I~-_PORTS OF KPB ASSEMBLY, LEGISLATORS AND COUNCILS ITEM D: PUBLIC HEARINGS , Ordinance No. 2037-2004-- Amending KMC 23.40.080 to Provide for a Five Year Maximum Period of Reemployment for Those Persons Participating in the PERS Opt-Out and Reemployment Provisions of AS 39.35.150(b). , Remove from table. Consideration of ordinance. Substitute Ordinance No. 2037-2004 -- Amending KMC 23.40.080 to Provide for a Five Year Maximum Period of Reemployment for Those Persons Participating in the PERS Opt- Out and Reemployment Provisions of AS 39.35.150(b). Ordinance No. 2038-2004-- Finding That Certain City-Owned Airport Land, Described as Tract A, Baron Park No. 12 (Prehmina~ Plat), Consisting of Approximately 16 Acres Adjacent to Marathon Road, is Not Required for a Public Purpose and Can Be Sold, Providing a Deed of Release is Obtained from the Federal Aviation Administration. , Ordinance No. 2039-2004-- Finding That Certain City-Owned Airport Land, Described as Baron Park No. 6, Consisting of Approximately 15 Acres Adjacent to Marathon Road, is Not Required for a Public Purpose and Can Be Sold. , . . , . , 10. 11. ITEM E: ,, , 2. 3. 4. 5. 6. 7. ITEM F: . ITEM G: Ordinance No. 2040-2004 -- Amending KMC 7.05.010 to Provide for a Flat Tax on Aircraft. Resolution No. 2004-18 -- Increasing the Water and Sewer Rates and Deposits. Resolution No. 2004-19 -- Awarding the Bid to Noms & Sons for 8,000 Cubic Yards of Street Maintenance Sand for the Total Amount of $43,920. Resolution No. 2004-20 -- Transferring $2,500 in the General Fund for a Reception for Northern Dynas~ Ltd. and the Pebble Mine Project. Resolution No. 2004-21 -- Transferring $30,000 in the Water and Sewer F~nd for Construction of a Vactor Truck Dump Station. Resolution No. 2004-22 -- In Support of the Immediate Construction of a Fiber Optic Cable Linking Anchorage, Kenai, Homer and Kodiak. Resolution No. 2004-23 -- Approving a Contract to Quality Electric for the Project Entitled Kenai Municipal Airport Security System - 2004 for Individual Lump Sum Amounts Totaling $281,101 Which Includes the Basic System and Additive Alternates 1 Through 4. *Liquor License Renewal-- Mr. D's/Bevera§e Dispensary Tourism COMMISSION! COMMITTEE REPORTS Council on Aging Airport Commission Harbor Commission Library Commission Parks & Recreation Com?n_Jssion Planning & Zoning Commission Miscellaneous Commissions and Committees Beautification Committee Kenai Convention & Visitors Bureau Board Alaska Municipal League Report Kenai Chamber of Commerce Arctic Winter Games Stranded Gas Committee *April 19, 2004 Budget Work Session Notes. *Regular Meeting of April 21, 2004. *April 27, 2004 Budget Work Session Notes. CORRESPONDENCE ITEM H: OLD BUSINESS ITEM I: NEW BUSINESS , Bills to be Paid, Bills to be Ratified. e Purchase Orders Exceeding $2,500 . *Ordinance No. 2041-2004-- Finding Certain City-Owned Land, Described as Tract A-5, Dena'ina Point Estates, Consisting of 9.630 Acres, is Not Required for a Public Purpose and Can Be Sold. . *Ordinance No. 2042-2004 -- Increasing Estimated Revenues and Appropriations by $672 in the General Fund Library Department for a State Grant. . *Ordinance No. 2043-2004 -- Increasing Estimated Revenues and Appropriations by $30,000 in the Airport Terminal Enterprise Fund for Short Term Parking Lot Renovations. e *Ordinance No. 2044-2004-- Amending Title 14 of the Kenai Zoning Code by Adopting KMC 14.20.175 for the Regulation of Adult Businesses. , Discussion -- Schedule Joint Work Session with Kenai Visitors & Convention Bureau Board of Directors. , Discussion -- Lawton Acres Preliminary Review. . Discussion -- Improvements to Airport Lots 5 and 6, FBO Subdivision. ITEM J: REPORT OF THE MAYOR ITEM K: ADMINISTRATION REPORTS 1. City Manager 2. Attorney 3. City Clerk ITEM L: DISCUSSION,,. 1. Citizens (five minutes) 2. Council EXECUTIVE SESSION- Annual evaluations of City Attorney and City Clerk. ITEM M: ADJOURNMENT MAYO R'S REPORT MAY 5, 2004 REGULAR COUNCIL MEETING CHANGES TO THE AGENDA REOUESTED BY: SUBSTITUTE PAGES: ADD TO: Item D-5~ Resolution No. 2004-18~ Pa~es 1 and 7 of Public Utility Regulations and Rates I-8, Discussion/Lawton Acres Preliminary Review -- 5/4/04 Brief analysis of the feasibility of rezonin§ and developin§ the parcel between Lawton Drive and the Spur Highway. FINANCE DIRECTOR ADMINISTRATION ADD TO: J-l~ Mayor's Report -- Draft letter of no objection to State Pipeline Coordinator's Office re§ardin§ Happy Valley Extension Amended Right-of-Way Lease application. CLERK CONSENT AGENDA MAYOR'S REPORT LAWTON ACRES/NOTE: Telephone call received from Kim Beck (335-3399) this afternoon at approximately 2:35 p.m. She lives along Lawton, between Rogers and Walker and expressed her opposition to rezoning Lawton Acres. Beck was informed tonight's discussion was preliminary and if council wants to continue with the process, public hearings to rezone the area would take place at both the Planning & Zoning Commission and Council levels. Z 0 0 Suggested by: Councilwoman Porter CITY OF KENAI ORDINANCE NO. 2037-2004 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING KMC 23.40.080 TO PROVIDE FOR A FIVE YEAR MAXIMUM PERIOD OF REEMPLOYMENT FOR THOSE PERSONS PARTICIPATING IN THE PIERS OPT-OUT AND REMPLOYMENT PROVISIONS OF AS 39.35.150(B). WHEREAS, in 2001 the Alaska Legislature enacted AS 39.35.150(b) that allows persons who take normal retirement in the PERS system to be re-employed by the state or a municipality participating in the PERS system while keeping their retirement benefits; and, WHEREAS, the option allowed under AS 39.35.150(b) expires in June 30, 2005. Therefore, persons eligible for normal retirement after June 30, 2005 are not eligible under AS 39.35.150(b); and, WHEREAS, re-employment of persons participating in AS 39.35.150(b) will save the city thousands of dollars per employee per year since the city will not have to pay PERS or medical insurance for the re-employed workers; and, WHEREAS, adding a five-year limitation on re-employment for persons participating in AS 39.35.150{bl will save the city money on persormel costs while limiting the disparity in treatment in those eligible for retirement before and after June 30, 2005. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA that KMC 23.40.080 is amended as follows: KMC 23.40.080 Retirement L~ Employees are required to participate in the State Public Employees Retirement System (PERS) unless the employee participates in the opt- out provision of AS 39.35.150(b}. See PERS Handbook for details. [bi An employee who participates in the opt-out provisions of AS 39.35.150(b) shall work no more than five years in any capacity after the date of bis/her reemplo _ym__ent with the City. This section does not prohibit a former employee from serving as a council, commission or. committee member. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this fifth day of May, 2004. JOHN J. WILLIAMS, MAYOR ATTEST: Carol L. Freas, City Clerk Introduced: Adopted: Effective: April 7, 2004 May 5, 2004 June 5, 2004 MEMORANDUM: TO' City Council THROUGH' Linda Snow, City Manager FROM' Larry Semmens, Finance Director DATE' April 14, 2004 SUBJECT: PERS Opt out. Ordinances 1995-2003 and 2037-2004 Ordinance 1995-2003 was passed by the council March 19, 2003 and was implemented by the administration in January 2004. Prior to implementation we contacted other governments that had already implemented this program and obtained written confirmation from the State auditor, Kay Gouyton, that social security did not have to be paid. The primary reason that the ordinance was brought forward by the administration was to save money while retaining qualified staff. This memo is to summarize the cost savings and to address certain other issues. 1. What are the cost savings? Cost savings are generated for each position that chooses this option because the City does not pay for the employee's health insurance and there is no PERS contribution. The City is required to pay medicare at 1.45% of salary. The City also saves money the first year because the employee is required to take a month off work. All accrued leave is cashed out at the employee's current rate of pay. The cost savings for the four people who have opted to retire and return to work in FY 2004 will be $36,000 compared to if the people continued to work without taking this option. For the first full year, FY 2005, the savings for these four positions will be $61,588. In order to estimate future cost savings we projected medical insurance costs to increase 10% and PERS to increase to 18.67%. Therefore the estimated savings for the 5th year for these four positions alone are $108,057. The savings will continue to increase if health insurance and PERS cost continues to increase. For each additional employee that chooses this option the savings are estimated to be $14,522 in FY 2005 and $23,605 in the 5th year. There are eight additional positions meaning the additional savings in FY 2005 could be $116,176 for a ® maximum total savings of $177,764 for the year. We do not expect all eight persons to choose the option. If half of them do the total FY 2005 savings would be $119,676. If a total of eight positions worked in this status for the current year and the next 5 years the savings would be over $940,000 or over 2 mills of property tax. Will there be a increase in the City's PERS rate due to the fact that the PERS is paying retirement benefits earlier than they otherwise would have if the employee would not have retired at this time? The fiscal note on the authorizing legislation - SB242, which passed the legislature in 2001, indicated that there would not be a cost for this provision. I am not able to vouch for the accuracy of this fiscal note. But, it is a fact that the longer a City employee works the higher the monthly cash benefit the person will receive at retirement. So if the person keeps working and does not retire, the liability for furore 'wages' will be higher. The flip side to this is that the PERS system will pay out the benefits over a shorter time period, so the liability could be less for that reason. The full liability for a person eligible for retirement is included in the actuarial liability (and therefore it is included in the City's PERS rate) at the time the person is eligible for retirement. If he/she retires exactly on that date and all of the actuarial assumptions are accurate, there would be no impact on the PERS rate of the employer by virtue of the person retiring. If there is an actuarial savings when an eligible employee does not retire on the date they become eligible, then fi'om PERS rate perspective we would benefit if employees would work a long time past their eligibility date. Although I cannot calculate this, my best estimate is that there is not going to be a significant backend cost due to the impact on the PERS rate of these opt outs. I doubt that the front-end savings will be overcome by the baekend cost of an increased PERS rate, if any. 3. Will employees that choose the option work longer than they otherwise would have thereby reducing upward mobility? The answer to this question is conjecture, but history shows that some people have worked well beyond the date they were eligible to retire without this program. In fact, of the four people that have chosen this option one has worked 7 years past their retirement eligibility date, one 5 years and the average is 3.25 years. So there is no guarantee that there would be upward mobility even if this program were not available. It is just as likely that this program will make it financially feasible for employees to quit working sooner than they otherwise could have because they are able to meet their financial goals sooner. 4. Ordinance 2037-2004 - Five year contract period. This ordinance would limit the maximum contract period to five years. In order to estimate the cost of this provision we used a range 15 position because it is close to the average salary of the remaining 8 positions. At range 15CC, the sixth year of the contract would cost $74,176. This assumes a 7% salary increase from the FY 2004 schedule. If the contract was terminated at the end of the 5th year and the position was filled at range 15A, the bottom of the range, the cost would be $89,565. This also assumes a 7% increase in the salary schedule and assumes that health insurance costs will have increased to $15,433 and the PERS rate would be 18.67%. Therefore the implementation of a five year contract term would cost the city an additional $15,389 in the first year of the new employee's tenure. That additional cost will escalate with future increases in PERS, health insurance and due to regular step increases for the new employee. 5. What impacts could the 5 year contract requirement have? One potential problem is a situation where the employee is performing a needed function and the city is forced to terminate the contract at an inconvenient time, like in the middle of a project, for the sole reason that the 5 year period ends at that time. Another potential is that some employees will not chose this option because they are not comfortable with the fact that their employment with the City will absolutely end in five years. So if upward mobility is the issue this 5 year contract provision may actually limit upward mobility because some employees will not choose to take the option and will end up staying on the job longer than 5 years. Further, the cost of each person not taking the option is about $20,000 per year and $100,000 for five years. From a cost perspective I would strongly recommend against requiting a 5 year contract term. MEMORANDUM' · TO' FROM: All Employees Larry Semmens, Finance Director DATE: January 12, 2004 SUBJECT: PERS Waiver Option - Reemployed Retiree This is to notify all employees who are curremly eligible for normal retirement under PERS of the option to retire and continue to work for the City. This option is available, per state statute, until June 30, 2005. People electing this option will collect both their retirement from PERS and regular wages fi'om the City. Please comact Robin Feltman, or me, for the details of this program. ~NAI CITY COUNICL MEETING MINUTES MARCH 5, 2003 PAGE 7 I-3. Ordinance No. 1995-2003 -- Amending KMC 23.40.080 and 23.40.120 to Allow Employees to Elect the Opt-Out Provision of the Public Employees Retirement System (PERS) as Stated in AS 39.35.150(b) and/or Opt Out of Municipal Medical and Hospital Insurance. troduced by consent agenda. Discussion -- Schedule Volunteer Appreciation Event A memorandum was included in the packet regarding National volunteer Day and council's desires whether to hold a Volunteer Appreciation event, what type of event, and when. The memorandum also questioned whether council wanted an advertisement listing all the city's volunteers to run. After a brief discussion, the date for the event was set for April 25 at the Senior Center. The type of event will be discussed further at the March 19 council meeting. Council also approved the newspaper advertisement. ITEM J: REPORT OF THE MAYOR-- No report. ITEM K: ADMINISTRATION REPORTS K-1. City Manager-- City Manager Snow reported the following: · Referred to the Public Works Report (Information Item No. 3) indicating DEC has stated the old antenna site has been determined as clean and the transfer of ownership can be made as soon as a written report is completed. · The water rate study is available for review. A memorandum noting Administration's findings from the study will be included in the next council packet. · A report has been issued indicating there is $500,000 in federal fun~g for the Kenai River, though it has not been identified dearly whether the funds are for Kenai or perhaps a Soldotna trail project. Administration is investigating. · She has received from the Corps of Engineers the study plans for determining the scopes of work for the areas at issue in regard to the coastal trail (hydrological, sedimentation, bank stabilization, etc.). Snow added, the Corps had also indicated target dates for the studies to be completed. K-2. Attorney -- Attorney Graves reported the following: · He, Parks Director Frates and Public Works Manager La Shot met with a representative from the Anchorage Solid Waste Department to review the plans of the proposed use of the Section 36 property. He has prepared a sum_m_ary of the meeting and it will be included in the next meeting's packet. Graves noted, several suggestions were made in regard to the placement of the parking lot and the only problem now is funding. ~NAI CITY COUNCIL ME~ING MARCH 19, 2003 PAGE 2 MOTION: Councilman Bookey MOVED to approve the consent agenda as amended. There were no objections. SO ORDERED. ITEM B: SCHEDULED PUBLIC COMMENTS-- None. ITEM C: I~'-PORTS OF I~PB ARSE_MRLY~ LEGISLATORS AND COUNCILS Assemblywoman Glick reported actions taken during the Borough Assembly meeting of March 11. She noted in particular, the following: · The Assembly set 10:00 a.m. on April 1 for a tour through the Emergency Operations Center at the Alaska Regional Fire Training Facility. Council also scheduled the date and determined lunch would be offered at the facility immediately after the tour. It was also dete _rm__ined letters of invitation be sent individually to the Borough Assembly members, as well as Borough Mayor Bagley, members of the LEPC, Borough Emergency Management Director, State Troopers, and media. ITEM D: PUBLIC HEARINGS D-Xo Ordinance No. 1995-2003 -- Amending KMC 23.40.080 and 23.40.120 to Allow Employees to Elect the Opt-Out Provision of the Public Employees Retirement System (PERS} as Stated in AS 39.35.150{bi and/or Opt Out of Municipal Medical and Hospital Insurance. MOTION: Councilman Bookey MOVED for adoption of Ordinance No. 1995-2003 and Councilwoman Swarner SECONDED the motion. There were no public comments. Finance Director Semmens explained, including this amendment would allow the city and employees the option and can potentially allow the city to retain qualified people at a lower cost (the city wouldn't be paying PERS or insurance} ff they opt out. He also noted, to be eligible, the employee would have to meet requirements and the option will be sunsetted in 2005. VOTE: IWilliams {Yes [Bookey lYes Swarner lYes Moore Yes Porter Absent . Jackman Yes MOTION PASSED UNANIMOUSLY. SUBb~ ~ ~c, Suggested by: Councilwoman Porter CITY OF KENAI ORDINANCE NO. 2037-2004 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASICA, AMENDING KMC 23.40.080 TO PROVIDE FOR A FIVE YEAR MAXIMUM PERIOD OF REEMPLOYMENT FOR THOSE PERSONS PARTICIPATING IN THE PERS OPT-OUT AND REMPLOYMENT PROVISIONS OF AS 39.35.150(b). WHEREAS, in 2001 the Alaska Legislature enacted AS 39.35.150(b) that allows persons who take normal retirement in the PERS system to be re-employed by the state or a municipality participating in the PERS system while keeping their retirement benefits; and, WHEREAS, the option allowed under AS 39.35.150(b) expires in June 30, 2005. Therefore, persons eligible-for normal retirement after June 30, 2005 are not eligible under AS 39.35.150(b); and, WHEREAS, re-employment of persons participating in AS 39.35.150(b) will save the city thousands of dollars per employee per year since the city will not have to pay PERS or medical insurance for the re-employed workers; and, WHEREAS, adding a five-year limitation on re-employment for persons participating in AS 39.35.150(b) will limit disparity in treatment in those eligible for retirement before and after June 30, 2005, while still saving the city money on personnel costs. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA that KMC 23.40.080 is amended as follows: KMC 23.40.080 Retirement {al Employees are required to participate in the State Public Employees Retirement System {PERS) unless the employee participates in the opt- out provision of AS 39.35.150(b). See PERS Handbook for details. [bi An employee who participates in the opt-out provisions of AS 39.35.150{b) shall work no more than five years in any capaci _ty after the date of his/her reemployment with the CiW, unless that person terminates employment with the City and is reemployed as an employee within the PERS system. This section does not prohibit a former employee from serving as a council, commission or committee member. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 3rd day of May, 2004. JOHN J. WILLIAMS, MAYOR ATTEST: Carol L. Freas, City Clerk Introduced: Adopted: Effective: April 7, 2004 May 5, 2004 June 5, 2004 Suggested by: Adminis CITY OF KENAI ORDINANCE NO. 2038-2004 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, FINDING THAT CERTAIN CITY-OWNED AIRPORT LAND, DESCRIBED AS TRACT A, BARON PARK NO. 12 {PRELIMIN~Y PLAT), CONSISTING OF APPROXIMATELY 16 ACRES ADJACENT TO MARATHON ROAD, IS NOT REQUI~D FOR A PUBLIC PURPOSE AND CAN BE SOLD, PROVIDING A DEED OF RELEASE IS OBTAINED FROM THE FEDERAL AVIATION ADMINISTRATION. WHEREAS, the City of Kenai owns the property identified as Tract A, Baron Park No. 12; and, WHEREAS, the City has received a request asking that the referenced property be made available for sale; and, WHEREAS, KMC 22.05.010 and 22.05.030 require that disposal or sale of lands shall be made only when, in the judgment of the City Council, such lands are not required for a public purpose; and, WHEREAS, the Kenai Planning and Zoning Commission has reviewed the attached map and has determined that the property is not needed for a public purpose and recommends the property be made available for sale, providing a deed of release is obtained from the Federal Aviation Administration, and, WHEREAS, the City Administration is working with the Federal Aviation Administration to obtain a deed of release for sale of the property, and recommends the property be made available for competitive bid sale at not le~s than the fair market value. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that certain City-owned Airport land, described as Tract A, Baron Park No. 12 (Preliminary Plat), consisting of approximately 16 acres adjacent to Marathon Road, is not required for a public purpose and can be sold, providing a deed of release is obtained from the Federal Aviation Administration. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA this fifth day of May, 2004. ATTEST: JOHN J. WILLIAMS, MAYOR Carol L. Freas, City Clerk Introduced: Adopted: Effective' April 21, 2004 May 5, 2004 June 5, 2004 Attachment {4/15 / 2004)kh CITY OF KENAI 210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611-779,~ TELEPHONE 907-283-7535 FAX 907-283-3014 ~ Memorandum Date: April 15, 2004 To: From: RE Linda L. Snow, City Manager Kim Howard, Assistant to City Manager ~~ Ordinance No. 2038-2004, Finding that Tract A, Baron Park No. 12 is Not Needed for a Public Purpose The City has received a request asking that approximately 16 acres adjacent to Marathon Road be made available for sale. KMC 22.05.010 states, "Disposal or sale of lands shall be made only when, in the judgment of the City Council, such lands are not required for public use." Sale would be by competitive bid at not less than the fair market value. The property was originally conveyed to the City in 1963 by the FAA for lease for aviation use only. In January the FAA was notified that a request to purchase has been made. The City can formally request a release to lease or sell the property for non-aviation use once a plat is recorded. A preliminary plat of Tract A, Baron Park No. 12 was approved at the February 23rd Kenai Peninsula Borough Planning meeting. The Kenai Planning and Zoning Commission reviewed the attached map and recommended the parcel be made available for sale. Attached is an ordinance for Council consideration that would allow the property to be sold, providing a deed of release is obtained fi'om the Federal Aviation Administration. Cc: Aspirations, Inc. Attachment 3 Proposed Baron Park No. 12 BARON PARK SUBD. FIRE ADDN. · . Youth De~.e~ntion "~ Facility / .,", '~..-~ ---./ I I .... "' ' ,.~., , ; ... 3 4' "'-. ' ' ,0 'i"-"' ... '~'....., . - .. !1 '"' '" ' OK tI~LET" ' '" >" ,USZi'RIAL~.~ '-'.. '~-.,..~..'-- .. ,,, " ~'RO N , PAR,,,~ . U BD IVaN/?~/" 3 ~ i ,., -, "< NO 3 ' ~ '" ' ; i /.c...,,/ .. ~...'~..." ,. , _ ........... ; n,.~ ,~'" NO. 6 ,,,, ,; .. Kenai Spur Hwy ~ .. - ........................... NO. 5 ,., 2 4 3 2 : ~1 IS 14, 13 '"-" '_'_:il "":' ' ' i -:i,_J i ,- . , , ~, ~ ! .... , ,, ;--,~ :-,-- iR D ~t~'q' . .. ' , .__.__j. sP~,-,~p,T, ~' ' ..q..,Z''~ ..:' ~' .. ".. '"' -~ / ' ' ' ~ ~' "-'~":"'--~-~ ~ : LEASE PROPERTY ,,,~,,~ . ...........,,,,.... ... ~~ , ~ ~, ~ . ,... ., . ~,. _ .~ ~ i ..,-.... ~. ~ "" ,~ ..... .,,..- ,,.., · .... 'X-., ,';.,' ,..-. ~-~,..W~ .~." ...... .,' : . ,,.,,.,!.. ~ ,-,,, ",:GLEN-: ~- ! -,- .,.,-- ._.~.,.? ,_." I --' ' ~,' ..... ' ....... .'~' '" . _~.,~.' 03. i '4/ ,.".,,,, !I ,,',,'. '-'"'"~::' ~, ' '-,-',', .... ';-,? .... '-",' · ~ .... : :--:'~ '"-~'-:"': ;:-'" ~" ?'"~"" ' .: .'.' ; ' . LU~.__~~ -..- ,', ..... ..:~-' .:. , .. ~,~,.',.-' . '. ~../.~i"~'.'~...." ,'.. -' \~"' "" .a:L~" \..! ,,;;,,~.o'- k'.,, t .... ' t ' Suggested by: Admire CITY OF KENAI ORDINANCE NO. 2039-2004 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, FINDING THAT CERTAIN CITY-OWNED AIRPORT LAND, DESCRIBED AS BARON PARK NO. 6, CONSISTING OF APPROXIMATELY 15 ACRES ADJACENT TO MARATHON ROAD, IS NOT REQUI~D FOR A PUBLIC PURPOSE AND CAN BE SOLD. WHEREAS, the City of Kenai owns the property identified as Baron Park No. 6; and, WHEREAS, the City has received a request asking that the referenced property be made available for sale; and, WHEREAS, the City Administration recommends the property be made available for competitive bid sale at not less than the fair market value; and, WHEREAS, KMC 22.05.010 and 22.05.030 require that disposal or sale of lands shall be made only when, in the judgment of the City Council, such lands are not required for a public purpose; and, WHEREAS, the Kenai Planning and Zoning Commission has reviewed the attached map and has determined that the property is not needed for a public purpose and recommends the property be made available for sale. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that certain City-owned Airport land, described as Baron Park No. 6, consisting of approximately 15 acres adjacent to Marathon Road, is not required for a public purpose. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA this fifth day of May, 2004. ATTEST: JOHN J. WILLIAMS, MAYOR Carol L. Freas, City Clerk Attachment (2/3/2004)kh Introduced: Adopted: Effective: April 21, 2004 May 5, 2004 June 5, 2004 CITY OF KENAI 210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611-7794 TELEPHONE 907-283-7535 FAX 907-283-3014 ~ M emoranClum Date: To: From: April 15, 2004 minda L. Snow, City Manager Kirn Howard, Assistant to the City Manager Ordinance No. 2039-2004, Finding that Baron Park No. 6 is not Required for a Public Purpose In ! 992 the City received a deed from the Federal Aviation Administration allowing the lease or sale of the above referenced property. Baron Park No. 6 consists of Lot A-1 (1.997 acres) and Lot A-2 (12.787 acres) located adjacent to Marathon Road. In 1997 the Council approved a lease application for the property to Hertzl Benyamini. However, Mr. Benyamini did not sign the lease and his application was withdrawn. The City recently received a request asking that the property be made available for sale. KMC 22.05.010 states, "Disposal or sale of lands shall be made only when, in the judgment of the City Council, such lands are not required for public use." Sale would be by competitive bid at not less than the fair market value. The Kenai Planning and Zoning Commission reviewed the ordinance and attached maps and recommended the parcel be made available for sale. Attached is an ordinance for Council consideration that would allow the property to be sold. Attachments Cc' James Shill, North Star Behavioral Health System /kh 7A-1 2 ~O BARON PARK SUBD. FIRE ADDN. 'BO FBO NO. 5 TR. A (5) 3 TR. 5-B-1 NO. 6 'R. A-2 J R-Al RP~,~T..2 'RTY B-1 TR. A NO. 5 TR. 1-B-2 B2 B1A SPRUCEWOOD 1 ~"*" GLEN Kenai Spur Highway 'm ~ BAIL! TR A~ ~ (8) ~ ,. _- 14 2 (7) ~ . ?. Suggested by: Council Member Joe Moore CITY OF KENAI ORDINANCE NO. 2040-2004 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING KMC 7.05.010 TO PROVIDE FOR A FLAT TAX ON AIRCRAFT. WHEREAS, KMC 7.05.010 currently provides that all personal property within the corporate limits of the City is subject to an annual ad valorem tax; and, WHEREAS, creating a competitive tax structure for aircraft is expected to encourage owners of all types of aircraft, especially commercial operators, to locate and obtain services for their aircraft at the Kenai Municipal Airport; and, WHEREAS, the Kenai Peninsula Borough currently imposes a flat tax on aircraft, which provides a more favorable tax status for highly valued aircraft than does the City; and, WHEREAS, imposing a flat tax on aircraft situated within the City is authorized by Alaska Statute 29.45°055. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA that KMC 7.05.010 is hereby amended to read as set out in Attachment A. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this fifth day of May, 2004. ATTEST: JOHN J. WILLIAMS, MAYOR Carol L. Freas, City clerk Introduced: Adopted: Effective: April 21, 2004 May 5, 2004 June 5, 2004 (4/14/04 sp) SECTION I. 7.05.010 Property subject to taxation. (a) All real and personal property not expressly exempt by law shall be subject to annual taxation at its full and true value based upon the actual value of the property assessed. This shall not apply to property subject to a flat tax and exempted fi'om the ad valorem tax in this chapter. (b) The rate of levy of tax shall be fixed by resolution of the City Council, but the aggregate thereof shall not exceed three percent (3%) of the assessed value of the property assessed. (c) In addition to exemptions presently authorized by the Kenai Peninsula Borough, the inventory of a business held for resale in the normal course of that business is hereby classified as personal property exempt from taxation for the City of Kenai. SECTION II. 7.05.080 Personal proper.ty tax--Assessments-Aircraft. (a) For purposes of taxation, aircraft that have been issued .an N number by the Federal Aviation Administration ("FAA") by January_ 1 of the tax year shall be totally exempted from ad valorem taxes and shall be taxed in accordance with the following schedule. AIRCRAFF FLAT TAX SCHEDULE BASED ON (MGWIL) Manufacturers Gross Weight with an Intemal Load Fixed Wing I! gotorcraft/Rotary Wind Annual Annual Class Weight Tax Class Weight Tax than 2,000 lbs II $o, II x llL than,!, 00 II $o' 2,000 to less than 2 4,000 lbs $0 2 1,500 to less than 3,500 $0 4,000 to less than 3 6,000 lbs $0 3 3,500 or more in weight $0 4 6,000 to less than 12,500 lbs $0 i2,500 or more in 5 weight $0 Co) The owner of record of an aircrai~ that have been dismantled, destroyed or crashed and the FAA N number has been retained by the aircrafts owner of record may submit to the assessor on an approved form "Aircraft Statement of Condition" that would allow for ad valorem taxation of that aircrai~ if Ordinance 2040-2004 Attachment A Page 1 of 2 approved. Aircraf~ for which such registration or licensing has lapsed or that has not passed the annual inspection required by the FAA shall not qualify, on this basis alone for ad valorem taxation unless it has been dismantled. destroyed or crashed. (c) Commercial aircraft operated under a regular schedule by a scheduled airline shall be exempt from the flat tax and shall be taxed on an ad valorem basis in accordance with the KPB landing schedule formula. The KPB landing schedule formula provides for the prorated calculation of scheduled aircraft bv dividing the total hours per .year into the total time aircraft operated .by a scheduled carder are in the KPB, and multiplying the result by the assessed value of each aircratt. (d) Definitions. 1. "Aircraft" means any engine powered contrivance invented, used, .or designed to navigate, or fly in, the air and that is capable of being manned and is required by the FAA to be registered and certified in order to be manned. 2. "Aircraft engine" means an engine used, or intended to be used, to propel an aircraft, except the tail rotor of a helicopter. 3. "Commercial aircraft" means any aircraft transporting passengers and/or cargo for some payment or other consideration, including money or services rendered. 4. "Crashed" means aircraft for which only parts remain that, due to their condition, can no longer be assembled to create any contrivable aircraft. This shall be evidenced by a FAA accident report and/or copy of an insurance claim that determines the aircraft to be a total loss. 5. "Destroyed" means aircraft that have been damaged by age, .weather, neglect and/or external influences outside the owner's control, and only. unusable parts remain that, due to their condition can no longer be assembled to create any contrivable aircraft. This shall be evidenced by.. photographs and a physical inspection by the KPB Assessing staff appraiser if deemed necessary by the borough assessor. 6. "Dismantled" means aircraft that have been voluntarily disassembled and only _~arts remain that can no longer be assembled to create any contrivable aircraft. Evidence such as photo~aphs and a physical inspection by the KPB Assessing staff appraiser shall be provided or allowed if deemed necessary_ by the borough assessor. 7. "Scheduled airline." A "scheduled airline" is any' individual, partnership. corporation or association: a. Engaged in air transportation under regular schedules to, over, away. from, or within the U.S.; and b. Holding a Foreign Air Carder Permit or a Certificate of Public Convenience and Necessity_, issued by the Department of Transportation pursuant to 14 CFR Parts 201 and 213. (e) An aircraft owner may appeal the determination of the borough assessor under this section using the procedures set out in KPB 5.12.050 - 060. Ordinance 2040-2004 Attachment A Page 2 of 2 SUPPORTING INFORMATION FROM ASSESSING DEPARTMENT REGARDING KPB ORDINANCE 2003-45 AIRCRAFT FLAT TAX SCHEDULE AIRCRAFT SCHEDULE BASED ON (MGWlL) FLAT TAX Manufactureres Gross Weight with an Internal Load Fixed Win~ Rotorcraf~/Rotary Win~ Class Weight Annual Tax Class Weight .annual Tax I Less than 3000 lbs $50 I Less than 1500 lbs $I00 2 3000 to less than 5000 lbs $300 2 1500 to less than 3500 $600 3 5000 to less than 15000 lbs $600 3 3500 or more in weight $1,000 4 15000 or more in weight $1,000 (THIS FLAT TAX SCHEDULE WOULD EXCLUDE ALL COMMERCIALLY SCHEDULED CARRIE~) Each class of aircraft is catagorized by weight for particular user groups FIXED WING I Primarily personal use aircraft Light Commercial upper end personal Commercial usage Heavy Commercial & Private Jets ROTARY WING Private Kits & light Comm Mid range Commercial Heavy Commercial 2004 FAA BREAKDOWN OF AIRCRAFT N#S IN THE ~B AIRCRAFT LOCATION ANCHOR POINT COOPER LANDING FRITZ CREEK HALIBUT COVE HOMER HOPE KASILOF KENAI MOOSE PASS NIKISKI NINILCHIK SELDOVIA SEWARD SOLDOTNA STERLING TOTAL # ~t~gs AIRCRAFT TYPE 18 9 3 4 162 12 46 225 9 56 13 16 36 248 65 922 [Fixed Wing 1 engine HOMER KASILOF KENAI MOOSE PASS NIKISKI SELDOVIA SEWARD SOLDOTNA STERLING Total HOMER HOMER KASILOF KENAI SEWARD SOLDOTNA Total HOMER SOLDOTNA SOLDOTNA I , 4 2 10 1 3 1 1 12 2 36 7 1 3 1 7 19 ! Fixed Wing Multiple ! Fixed Wing Multiple [Rotary Wing [6 Rotary Wing [1 Glider 986 KPB A/C RECORDS AS REPORTED BY FAA Oklahoma Flat Tax Example Less than 1,750 $20.00 1,751 through 2,500 2,501 through 3,500 3,501 through 4,500 4,501 through 5,500 6,501 through 6,500 6,501 through 8,500 2,501 through 10,000 10,001 through 13,000 13,001 through 17,000 17,001 through 20,000 20,001 through 25,000 25,001 through 30,000 30,001 through 40,000 40,001 through 50,000 $35.00 $55.00 $75.00 $95.00 $115.00 $135.00 $185.00 $230.00 $265.00 $300.00 $375.00 $500.00 $625.00 $750.00 50,001 through 75,000 $1,000.00 75,001 through 100,00 100,001 and over $ !,5 Juneau Alaska (Commercial only) Flat Tax 0-999 $0 1000-1499 $160 1500° 1999 $250 2000-2499 $330 2500°2999 $410 3000-3499 $480 3500-3999 $570 40004499 $650 45004999 $810 50005499 $980 5500-5999 $1030 6000-6499 $1070 6500-6999 $1110 7000..7499 $1150 7500-7999 $1190 8000-8499 $1240 8500-8999 $1280 9000-9499 $1320 9500-9999 $1360 10(X)0-12500 $1440 Juneau Rotary Wing 0-200O $54O 2001-3000 $1080 3001- 4000 $1630 4001-7000 $2160 7001-12500 $2750 Advaiorum over 12500 lb SUPPORTING INFORMATION FROM ASSESSING DEPARTMENT REGARDING ORDINANCE 2003-45 AIRCRAFT STATISTICS Taxable Airplane Count by TCA from 1998 to Current 2003 TCA 1998 10 5 20 71 30 81 40 8 53 32 55 44 57 5 58 112 63 32 65 21 67 14 68 5 70 82 80 1 1999 2000 2001 2002 2003 10 10 7 6 ~ 20 26 24 25 22 99 86 67 61 47 15 16 20 20 16 11 4 4 6 4 3 2 2 2 2 0 0 0 0 0 26 19 16 16 8 0 1 1 3 1 2 0 0 0 0 2 2 3 3 ~ 1 1 1 1 1 25 25 23 21 23 0 0 0 0 0 214 192 168 164 133! TOTAL 513 1133 Taxable Aircraft in 2003 102 Fixed Wing single engine 6 Fixed Wing Twin Engine 10 Rotary Wing 15 On Landing Schedule Plane Value I $ 13,558,872.00 12004 FAA REPORTS 986 PLANES IN KPBi 922 Fixed Wing Single engine 36 Fixed Wing Multi engine 25 Rotary Wing 1 Glider Aeet Value 15 ,5,262,604.00I NEW I LOSS I PRoJ LOSS $ 2003 Tax $ $ $ City Portions KPB FLAT (e) 143,834.91 ! $ 39,764.62 I s 25,941.27 I 65,705.89 (City Plus new KPB Flat Tax) ,,, 78,129.02 I(Estimated Loss to KPB) 25,000.00 (500 (e)new planes added (~ $50) 53,129.02 ] TCA 3O 30 3O 30 20 20 20 20 30 30 30 3O 30 30 30 AIRCRAFT TO REMAIN ON A LANDING SCHEDULE $ 1,256.00 $ 1,663,597.00 $ 51,486.00 $ 330,820.00 $ 555,100.00 $ 1,712.00 $ 20,548.00 $ 776,956.00 $ 24,883.00 $ 17,184.00 $ 20,576.00 2003 LANDING SCHEDULE TOTAL 49440 ERA 49440 ERA 49440 ERA $ 2,047,158.00 $ 24,750.0249440 ERA 66830 ERA 66830 ERA 66830 ERA $ 1,354,316.00 $ 17,431.8466830 ERA 69028 FEDX 69028 FEDX $ 82,028.00 $ 410.24 69028 FEDX 76972 EVERTS 76972 EVERTS 76972 EVERTS $ 132,831.00 $ 897.26 76972EVERTS I$ 43,489.36 ] " //a3e with a Pas ,O, with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611-7794 Telephone: 907-283-7535/FAX: 907-283-3014 '~llt' 199Z KENAI, ALASKA MEMORANDUM' TO' FROM: City Council Larry Semmens, Finance Director .'~ DATE: April 30, 2004 SUBJECT: Flat Tax on Aircraft The Borough passed a fiat tax on aircraft that uses the manufacturers gross weight to create various c~togories and flat tax rates. The ordinance is effective January 1, 2005 and will affect FY 2006 revenue. The proposed City Ordinance follows the same scheme as the Borough ordinance except that all of the categories have a flat tax of zero. Essentially, this will eliminate the ad velorum tax and replace it with a flat tax of zero. The Borough assessing department supplied me with information about the aircraft that are Ioc~tod in Konai that would be affected by this ordinanco. My estimate is that if the ordinance is enacted it would reduce FY 2006 revenue by $7,500. The FY 2004 tax was close to $20,000, however, a helicopter and a large account will not be on the 2004 roll so revenue will be reduced even if this flat tax ordinance is not enacted. I recommend that the Council consider options to the proposed ordinance that include a flat tax for each mtegory. The amount does not have to be related to the Borough schedule at all, but the total tax on aircraft in the City should be competitive with alternative sites available to aircraft owners. D-5 Suggested by: Administrat____ City of Kenai RESOLUTION NO. 2004-18 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA INCREASING THE WATER AND SEWER RATES AND DEPOSITS. WHEREAS, the City of Kenai commissioned a study of water and sewer rates; and, WHEREAS, CH2M Hill performed the study and recommends water rates be increased 30% and sewer rates be increased 35% effective for fiscal year 2004; and, WHEREAS, it is in the best interest of the City of Kenai to phase in this increase over more than one year; and, WHEREAS, the water and sewer rates were increased 10% and 12% respectively in FY 2004; and, WHEREAS, the water and sewer system is seN-supporting and in order to have sufficient funds for capital improvements and operations it is in the best interest of the City to increase rates effective June 15, 2004; and, WHEREAS, an approximate increase of 10% for water and 12% for sewer would provide adequate resources for the Water and Sewer Fund for FY 2005; and, WHEREAS, Water and Sewer deposits have not increased since 1981; and, WHEREAS, the current deposit amount covers less than one month of billing and should be increased to about two months billing. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that the rates and deposits identified in the Public Utility Regulations and Rates be changed'as per attached, effective June 15, 2004. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this fifth day of May, 2004. JOHN J. WILLIAMS, MAYOR ATTEST: Carol Freas, City Clerk Approved by Finance' ~ (4/27/04) hl ~" CITY OF KENAI PUBLIC UTILITY REGULATIONS AND RATES A. Regulations The following regulations of the City of Kenai, pertaining to the water and sewer system, have been issued under the authority of Title 17 of the Kenai City Code of Ordinances. Regulations issued prior to this date are superseded by the regulations that follow: 1. Application for Service: It shall be the responsibility of the property owner to apply for utility service or discontinuance of service by signing a service order at the City Administration Building, Kenai, Alaska. 2. Water and Sewer Connections and Extensions: a. The property owner or his contractor may apply for a water and sewer permit for a connection and/or extension of service lines. The entire cost of water or sewer service connection and extension will be borne by the property owner. b. At the time the new service is provided, all connections to existing private systems, wells, septic tanks, cesspools, etc., shall be physically disconnected from the City system and their use discontinued. e. All water tum-ons and mm-offs and the operations of the key box at the property line shall be made by City personnel only. A fee of ten dollars ($10.00) will be levied on requests for mm-on and turn- off (after initial turn-on) during normal duty hours. A fee of twenty dollars ($20.00) will be levied on requests for mm-on during periods other than normal duty hours, and whenever such action is required due to delinquent account. d. All customers shall be required to provide a separate valve, if it does not exist, inside a building being served. The valve shall be located on the service entering the building ahead of any branch lines where it is readily accessible in event of emergency. e. Each and every building served by the water utility shall have a separate outside shut-off. In the event it is impossible to get a separate outside shut-off within the public fight-of-way, the property owner shall provide the shut-off within private property and execute, in favor of the City, an easement providing access for the City personnel to the key box. In the event that a functional shut-off valve cannot be located by City personnel, the City may install a shut-off valve and charge the property owner for related labor, equipment, and material costs. 3. Deposits for Service: For domestic and commercial customers, a deposit is required of twenty dollars [($20.00)] (50.00) for water service and twenty dollars [($20.00)] (50.00) for sewer service. These deposits may be refunded upon request after two years of timely payment history. 4. Hydrants: The use of fire hydrants is permitted only in special situations when approval, in writing, has been obtained from the City, and upon payment of the use charge. A deposit of One Hundred Fifty Dollars ($150.00) is required to assure careful use of the hydrant and will be refunded if no maintenance is required when hydrant use is completed. The use charge, which is non-refundable, is $30 per day. As an alternative charge, the City reserves the right to require metering in circumstances involving high volume usages, in accordance with rates provided in the rate schedules. Failure to obtain written authorization from the City, failure to follow written instructions of the City, or any improper use of a fire hydrant is subject to penalty provisions of KMC 13.05 and KMC 17.20.050. (Res. 92-13, 5/19/92) 5. Common Connections: There shall be no common connections for use by several properties or families. No connection will be permitted across property lines unless assessments or lump sum payment has been paid. 6. Location of Key Box: It shall be the property owner's responsibility to know the location of, and have marked, the key box and thaw wire on the water service connection. The standard key box marker shall be a 4" x 4" wood post, four feet in height, painted white with black top and the word "water" stenciled in black letters no smaller than two inches high. Property owners who do not use the standard marker should have some other method of locating their key boxes or be prepared to stand the cost of location in time of necessity. 7. Sewer Service Clean-Out: No person shall install a sewer extension to a building without placing in the line near the building and at every change of direction of the sewer line, a sewer line clean-out of four inch minimum diameter. The property owner shall mark or be familiar with the location of such clean-outs. 8. Rental Properties: All bills are in the name of the property owner. Bills may be mailed to the renter, but the owner is responsible for all payments. Be RATES The charges to users of water and sewer systems within the City of Kenai are as follows: 1. SCHEDULE A--GENERAL DOMESTIC SERVICE RATES (NON-METERED) One or two-family residence, per family unit Per Month Water Sewer $[11.39] 12.5,4 $[32.14] 36.03 Single or double unit apartment, per family unit [11.39] 12.54 [32.14] 36.03 Apartment, three or more units under one roof, per family unit--single bill assumed by owner. [8.58] 9.44 [24.19] 27.09 Separate billing [11.39] 12.54 [32.14] 36.03 Trailers, one or two on single lot or court (each). [11.39] 12.54 [32.14] 36.03 Trailers, three or more on lot or court, per trailer unit: Single billing Separate billing [8.581 9.44 [24.19] 27.09 [11.39] 12.54 [32.14] 36.03 Boarding houses, per available room [3.03] 3.33 [8.68] 9.72 Minimum Charge: Each month's minimum charge is one full month's service, without proration. The minimum monthly charge is applicable to each service location, whether or not the location is occupied. Special Conditions' The above schedule is restricted to service used exclusively for general domestic purposes, as distinguished from commercial or other uses of water or sewer service. 2. SCHEDULE B--COM~vIERCIAL SERVICE (NON-METERED) Per Month Water Sewer Demand Charge: (Applicable to individual customers where water connection is one inch or larger, and is rated on the equivalent line size. This is in addition to the Use Charge.) 1.00 inch service 1.25 inch service 1.50 inch service 2.00 inch service 3.00 inch service Larger than 3.00 inch service Use Charge: Bakery Bath House, tub or shower, each $[11.551 12.71 $[32.48] 36.38 [17.60] 19.36 [48.161 53.94 [29.15] 32.07 [81.76] 91.5.7 [44.00] 48.40 [122.08] 136.73 [66.00] 72.60 [184.80] 206.98 [99.00] 108.90 [277.76] 311.10 [33.551 36.91 [94.081 105.37 [7.70] 8.47 [21.281 23.83 Bottling Works, per bottling machine [265.101 291.61 [745.92] 835.43 Bowling Alleys, Amusement Parks [31.90] 35.09 [90.161 100.98. Car Lot, with car wash facilities [15.95] 17.55 [44.80] 50.18 Car wash, automatic, per facility [143.00] 157.30 [400.961 449.08 Car wash, self-service, per stall [21.451 23.60 [59.921 67..!.1 Churches, lodges, clubs, banquet rooms (no bar or restaurant facilities), per seat Cleaners and commercial laundries, per facility. $ [.121 .13. $ [.34] 0.3..8 [91.85] 101.04 [257.60] 288.51 Per Month Water Se~wer Dairies--Installation of water meter required. Day Care Center or Preschool (in addition to other applicable domestic or commercial charge). Per child, maximum capacity [.46] .51 [1.29] 1.44 Doctors' and dentists' offices, per room or chair (Psychiatrists and Optometrists, apply office rate). [6.88] 7.57 [19.32] 21.64 Garage, service stations Additional charge for recreational vehicle dump stations (May through September only) [13.75] [ 5.95] 15.13 17.55 [39.20] [44.80] 43.90 50.18 Hangar, airplane repair: with washing facilities [13.75] [15.94] 15.13 17.53 [38.921 [44.80] 43.59 50.18 Hospitals, per bed [9.08] 9.99 [25.76] 28.85 Hotels, motels, resorts, per room [7.]5] 7.87 [ 9.88] 22.27 Laundry, self-service, per machine [12.93] 14.22 [36.12] 40.45 Markets, meat [ 17.60] 19,36 [49.28] 55.19 Office buildings where single bill is assumed by owner, $[15.40] per business 16.94 $[42.561 47.67 Office, in multiple office building where individual tenants are billed, per business [17.601 19.36 [49.28] 55.19 Restaurants, cafes, lunch counters, foumains, taverns and bars (with kitchens) for each seat (Note 2) [0.99] 1.09 [2.86] 3.20 Public office building, per restroom [3.961 4.36 [11.2o1 12.54 Recreation facility, per restroom, sauna or shower, etc. [7.70] 8.47 [21.561 24.15 Per Month Water Sewer Recreational vehicle/camper park, per parking space (demand charge only from October through April) Schools, per seating capacity Shopping centers (depends on stores included in shopping center, Note 1) Shops, beauty, per station or chair Shops, miscellaneous (including barber shops), per shop [7.70] 8.4__..27 [21.56] 24.15 [.46] .51 [1.291 1.44 [7.98] 8.78. [22.40] 25.09 [7.981 8.7__.~8 [22.40] 25.09 [7.98] 8.78 [22.40] 25.09 Sleeping room, per room (without facilities for [3.031 3.33. [8.68] 9.72 housekeeping) Studios, photo or photo lab Supermarkets (grocery stores) [37.68] 41.45 [106.40] 119.17 $[90.48] 99.53 $[254.24] 284.75 Theaters: [0.02] [0.08] .09 Indoor, per seat [0.06] 0.07 [0.15] .17 Outdoor, per stall [0.06] 0.07 [0.15] .1._27 Taverns, lounges, bars (without kitchens), per seat X-ray or laboratory office [0.94] 1.03,, [2.691 3.01 [22.55] 24.81 [63.281 70.87 Note 1' Additional for other facilities such as restaurant, beverage dispensary, etc., are at the applicable use charge for each facility. Note 2: When a restaurant serves liquor and has no separate bar, no additional charge for a bar will be applied. However, when a restaurant has a separate bar, the bar stools will be charged at the given rate. Minimum Charge: Each month's minimum charge is one full month's service, without proration. The minimum monthly charge is applicable to each service location, whether or not the location is occupied. Special Condition: Where more than one customer is served from the same service line between the City's water main and the customer's premises, the City reserves the exclusive right to determine how the demand charge under this rate schedule shall be applied and apportioned between said customers. Cesspool Pumper Charge' The fee charged for acceptance at the sewer treatment plant of septic material collected within the City of Kenai shall be ten dollars ($10.00) per one hundred gallons. The gallons delivered shall be as estimated by the sewer treatment plato operator. 3. SCHEDULE C--INDUSTRIAL SERVICE (NON-METERED) Per Month Water Sewer Concrete mixing plant $[145.20] 159.72 $[408.80] 457.86 Concrete products [72.60] 79.86 [203.84] 228.30 Confectioner [48.40] 53.24 [ 135.52] 151..78 Greenhouse, commercial [48.40] 53.24 [135.52] 151.78 Ice cream plant [72.60] 79.86 [203.84] 228.30 Cold storage plant or [34.10] 37.51 [95.20] 106.62 lockers Demand Charge: Note: Schedule B Demand Charge also applies to Schedule C Services. Minimum Charge: Each month's minimum charge is one full month's service, without proration. The minimum monthly charge is applicable to each service location, whether or not the location is occupied. 4. SCHEDULE D--FIRE PROTECTION SERVICE For automatic sprinkler system: NO CHARGE Special Conditions: (a) Water service under this schedule shall be available, at the option of the City, to "dry type" automatic sprinkler systems for fire protection only. (b) All fire protection lines, sprinklers, pipes, and valves on private property shall be owned, installed, and maintained by the owner and/or customer. (c) All connections between the City's main and privately owned facilities will be made at the expense of the customer. (d) At the option of the City, sprinkler service may be metered. The meter and the installation thereof shall be at the expense of the customer. (e) No tap or outlet for use other than fire protection shall be permitted on fire lines or mains, unless approved by the City. (0 In times of emergency, the right is reserved by the City to turn off any fire hydrant and/or sprinkler system at the discretion of the City Fire Chief or other authorized person. (g) No drains from fire sprinkler systems shall be directly connected with the City sanitary sewers, and no cross-connection whatsoever will be permitted between fire protection facilities connected to the City's system and possible sources of contaminated water. 5. SCHEDULE E--METERED SERVICE Per Month Water Sewer General usage, per thousand gallons of water Hydrant use and other use, per 1000 gallons of water (Res. 92-13, 5/19/92) MINIMUM MONTHLY CHARGE: All usage, 15,000 gallons of water $[1.10] 1.21 $[3.19] 3.57 [1.65] 1.82 [16.50] 18.15 [47.881 53.63 The City reserves the right to determine the size, type, and manufacturer of the meter to be installed. Meter and remote reading shall be purchased and installed by owner and inspected by the City. Meter repair as necessary, shall be made by the City with costs billed to the owner. 6. SCHEDULE F--TEMPORARY MISCELLANEOUS WATER SERVICE (Repealed) 7. SCHEDULE G--WATER SERVICE FOR BUILDING CONSTRUCTION One Time Service Charge: For ground floor area of 2,000 sq. ft. or less $12.00 For each additional 1,000 sq. ft (or portion thereof) 8. SCHEDULE H--PERMIT FEES 6.00 One time charge. a. Water $100.00 b. Sewer 100.00 c. The permit fees set herein are to reimburse the City for the cost of inspecting connections. Adopted by City Manager on May 5, 2004 (via Resolution No. 2004-18) to become effective on June 15, 2004. /s/ Linda Snow City Manager Approved by City Council on May 5, 2004. /s/ Carol L. Freas City Clerk Prepared by Keith Kornelis 5/5/2004 Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 CITY OF KENAI WATER AND SEWER RATES 1993-2003 2004 2005 Water 10.35 11.39 12.54 Sewer 28.70 32.14 36.03 Total $ 39.05 $ 43.53 $ 48.57 Increase 2003-04 $ 4,48 2004-05 $ 5.04 Residential Rate Comparison Black and Veatch 2001 Survey Water Sewer Total Valdez 8.50 7.75 16.25 King Cove 12.00 13.50 25.50 Skagway 19.00 10.75 29.75 Sitka 12.00 24.00 36.00 Craig 15.75 21.35 37.10 Kenai 10.35 28.70 39.05 Wrangell 15.01 28.12 43.13 Anchorage 25.95 21.33 , '47'.28 Ketchikan 23.00 32.35 55.35 Wasilla 23.63 33.38 57.01 Juneau 19.95 37.28 57.23 Kodiak 25.30 32.20 57.50 Seward 24.10 34.00 58.10 Haines 1 21.85 38.75 60.60 Petersburg 31.81 32.93 64.74 Dillingham 30.45 37.54 67.99 Klawock 40.10 37.70 77.80 Homer 55.18 49.90 105.08 Haines 2 23.00 89.77 112.77 Average 23.00 32.17 55.17 CITY OF KENAI PUBLIC UTILITY REGULATIONS AND RATES A. Regulations The following regulations of the City of Kenai, pertaining to the water and sewer system, have been issued under the authority of Title 17 of the Kenai City Code of Ordinances. Regulations issued prior to this date are superseded by the regulations that follow: 1. Application for Service: It shall be the responsibility of the property owner to apply for utility service or discontinuance of service by signing a service order at the City Administration Building, Kenai, Alaska. 2. Water and Sewer Connections and Extensions: a. The property owner or his contractor may apply for a water and sewer permit for a connection and/or extension of service lines. The entire cost of water or sewer service connection and extension will be borne by the property owner. b. At the time the new service is provided, all connections to existing private systems, wells, septic tanks, cesspools, etc., shall be physically disconnected from the City system and their use discontinued. c. All water tum-ons and turn-offs and the operations of the key box at the property line shall be made by City personnel only. A fee of ten dollars ($10.00) will be levied on requests for turn-on and turn- off (after initial turn-on) during normal duty hours. A fee of twenty dollars ($20.00) will be levied on requests for mm-on during periods other than normal duty hours, and whenever such action is required due to delinquent account. d. All customers shall be required to provide a separate valve, if it does not exist, inside a building being served. The valve shall be located on the service entering the building ahead of any branch lines where it is readily accessible in event of emergency. e. Each and every building served by the water utility shall have a separate outside shut-off. In the event it is impossible to get a separate outside shut-off within the public right-of-way, the property owner shall provide the shut-off within private property and execute, in favor of the City, an easement providing access for the City personnel to the key box. In the event that a functional shut-off valve cannot be located by City personnel, the City may install a shut-off valve and charge the property owner for related labor, equipment, and material costs. 3. Deposits for Service: For domestic and commercial customers, a deposit is required of [twenty] fifty, dollars [($20.00)] (50.00) for water service and [twenty] fifty dollars [($20.00)] (50.00) for sewer service. These deposits may be refunded upon request after two years of timely payment history. 4. Hydrants: The use of fire hydrants is permitted only in special situations when approval, in writing, has been obtained from the City, and upon payment of the use charge. A deposit of One Hundred Fifty Dollars ($150.00) is required to assure careful use of the hydrant and will be refunded if no maintenance is required when hydrant use is completed. The use charge, which is non-refundable, is $30 per day. As an alternative charge, the City reserves the right to require metering in circumstances involving high volume usages, in accordance with rates provided in the rate schedules. Failure to obtain written authorization from the City, failure to follow written instructions of the City, or any improper use of a fire hydrant is subject to penalty provisions of KMC 13.05 and KMC 17.20.050. (Res. 92-13, 5/19/92) 5. Common Connections: There shall be no common connections for use by several properties or families. No connection will be permitted across property lines unless assessments or lump sum payment has been paid. 5. SCHEDULE E--METERED SERVICE General usage, per thousand gallons of water Hydrant use and other use, per 1000 gallons of water' (Res. 92-13, 5 / 19/92) MINIMUM MONTHLY CHARGE: All usage, 15,000 gallons of water Per Month Water Sewer $[1.10] 1.21 $[3.19] 3.57 [1.65] 1.82 The City reserves the right to determine the size, type, and manufacturer of the meter to be installed. Meter and remote reading shall be purchased and installed by owner and inspected by the City. Meter repair as necessary, shall be made by the City with costs billed to the owner. 6. SCHEDULE F--TEMPORARY MISCELLANEOUS WATER SERVICE (Repealed) 7. SCHEDULE G--WATER SERVICE FOR BUILD1NG CONSTRUCTION One Time Service Charge: For ground floor area of 2,000 sq. ft. or less $12.00 For each additional 1,000 sq. fi (or portion thereof) 6.00 8. SCHEDULE H--PERMIT FEES One time charge. a. Water $100.00 b. Sewer 100.00 c. The permit fees set herein are to reimburse the City for the cost of inspecting connections. Suggested by: Admini~,,~,.~.. CITY OF KENAI RESOLUTION NO. 2004-19 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AWARDING THE BID TO NORRIS & SONS FOR 8,000 CUBIC YARDS OF STREET MAINTENANCE SAND FOR THE TOTAL AMOUNT OF $43,920. WHEREAS, the following bids were received on April 27, 2004: BIDDER Norris & Sons Best Transit Mix, Inc. 2 Bears Trucking North Star Paving & Construction, Inc. Per Cubic Yard $5.49 $6.49 $8.45 $8.45 8~000 Cubic Yards $43,920 $51,920 $67,600 $67,600 WHEREAS, Norris & Sons' bid meets the bid specifications; and, WHEREAS, the recommendation from the City Administration is to award the bid to Norris & Sons; and, WHEREAS, the Council of the City of Kenai has determined that Norris & Sons' bid is a responsible bid and award to this bidder would be in the best interest of the City; and, WHEREAS, sufficient monies are appropriated. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that the bid for 8,000 cubic yards of Street Maintenance Sand be awarded to Norris & Sons at $5.49/CY for the total amount of $43,920. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this fifth day of May 2004. ATTEST: JOHN J. WILLIAMS, MAYOR Carol L. Freas, City Clerk Approved by Finance' Suggested by: City of Kenai RESOLUTION NO. 2004-20 Administration A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA TRANSFERRING $2,500 IN THE GENERAL FUND FOR A RECEPTION FOR NORTHERN DYNASTY LTD. AND THE PEBBLE MINE PROJECT. WHEREAS, the Pebble Mine project is being pursued by Northern Dynasty Ltd.; and, WHEREAS, this project has the potential to provide major economic growth to the City of Kenai; and, WHEREAS, the reception will show support for the Pebble Mine project as well as introduce Northern Dynasty Ltd. to local business people and support service companies; and, WHEREAS, funds are available in the Contingency account. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that the following budget transfers be made: General Fund From: Non-Departmental- Contingency $2,500 To: Legislative- Miscellaneous $2,500 PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this fifth day of May, 2004. JOHN J. WILLIAMS, MAYOR ATTEST: Carol L. Freas, City Clerk Approved by Finance: (4 / 29 / 2004) hl Gold! Pebble sparks a rush BONANZA: lliamna deposit may be the continent's richest. By PAULA DOBBYN Anchorage Daily News (Published: April 25, 2004) Gold fever is sweeping the hills near Iliamna, home to a massive mineral deposit called Pebble. A whirlwind of claim staking is under way at Pebble, a mining frenzy Alaska hasn't witnessed since statehood, officials at the Department of Natural Resources said last week. Since drilling results identified Pebble as possibly the largest gold deposit in North America and the second largest copper deposit, prospectors have staked claims on 365,000 acres, or 570 square miles, the most anywhere in the state, said Kerwin Krause, a property manager with DNR. "It's a beehive of activity as we speak," Krause said. Crews for Liberty Star Gold Corp. in December staked what the company called "the largest, one-event block of state mineral land staking in Alaska's history." That's tree, Krause said. "It was the largest claim-staking effort by one company" ever in Alaska and has helped make Pebble the largest mining district in the state, he said. Dave Lappi, an owner of Anchorage-based Alaska Earth Resources Inc., spent the past few months staking claims on 82,000 acres near Pebble. The company plans to ramp up its geophysical and sampling work this summer. "We're excited about the potential," Lappi said. As staking continues, companies hoping to turn Pebble into a working mine by later this decade are flying in crews and equipment by helicopter for what's expected to be a busy season of exploratory drilling, baseline studies and engineering. A camp is being constructed to house dozens of workers who will operate drilling rigs 24 hours a day, seven days a week, Krause said. Pebble has been a mining prospect for years. But in January, mineral test results came back indicating that the the deposit was much larger than previously thought, said Bruce Jenkins with Northern Dynasty Minerals, a company based in Vancouver, British Columbia, that hopes to develop a mine. The deposit is thought to contain at least 26 million ounces of gold, 16 billion pounds of copper and 900 million pounds of molybdenum. If developed, Pebble would be Alaska's largest mine, Krause said. At current metal prices, the mine has an estimated value in the $28 billion range. "It's massive," Jenkins said. Cominco Inc., now Teck Cominco, hoped to developed the deposit more than a decade ago. But depressed gold and copper prices shelved the plans. Since then, prices have greatly rebounded and in October 2001, Northern Dynasty jumped in, acquiring the right to earn up to a 100 percent interest in the property from Teck Cominco. The option expires at the end of November when the company is expected to take over the property. "We know it's a mine," Jenkins said. The only question is if it's a really big mine or an off-the-charts, mammoth one, he said. While there's plenty of enthusiasm in mining circles about Pebble, people close to the project note that it's early in the process and there's still years of analysis, design work and permitting to be done. The goal is to have a feasibility study finished by mid-2005. Getting permits will take three to four years. With luck, Pebble could go into production in 2009, Jenkins said. Northern Dynasty plans to spend $10 million on geological work this year, he said. The company has just leased office space in Anchorage for its Alaska operations and is hiring consultants. Bill Popp, oil and gas liaison for the Kenai Peninsula Borough, says he's "cautiously optimistic" that Pebble will evolve into a first-class, open-pit mine. But when Popp speaks, his voice resonates not caution but enthusiasm about the project. He notes the 2,000 construction jobs the project may create and the 1,000 workers who would potentially be needed to run the mine, which has a life expectancy of 25 to 50 years. "If it gets developed, it could have decades of impact in terms of economic growth for the Kenai Peninsula and broadened economic ties with the Bristol Bay region," Popp said. "We believe there's tremendous opportunity for hundreds of workers to be put to work." A host of questions remain about how Pebble would get its power and where the needed deep-water port and haul road would be built. One way or another, Pebble would require more energy than the entire Kenai Peninsula currently consumes, Popp said. Popp hopes that whoever ends up developing Pebble will use Cook Inlet natural gas, build a power plant on the lower Kenai Peninsula, and lay subsea cable across the Inlet to carry electricity to the mine. That's one of the options being talked about, he said. While bullish on Pebble, Popp is also realistic. "Obviously, when you're talking about a $1 billion project, any number of things can trip it up," he said. Despite the hurdles and potential obstacles, the prospects at Pebble look good, according to Jenkins. "It's early days, but it's exciting. We know we have a mine," he said. Suggested by: Administ City of Kenai RESOLUTION NO. 2004-21 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA TRANSFERRING $30,000 IN THE WATER AND SEWER FUND FOR CONSTRUCTION OF A VACTOR TRUCK DUMP STATION. WHEREAS, constructing the dump station this fiscal year will enable sewer line cleaning to begin a month or more sooner; and, WHEREAS, there is currently no place for the city to dump sewer line waste; and, WHEREAS, funds are available in the contingency accounts. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that the following budget transfers be made: Water and Sewer Fund From' Water- Contingency Sewer- Contingency Sewer Treatment- Contingency $10,000 10,000 10,000 $30,000 To' Sewer Treatment- Improvements other than Buildings $30,000 PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this fifth day of May, 2004. J O HN J. WILLIAM S, MAYO R ATTEST: Carol L. Freas, City Clerk Approved by Finance: (4/28 / 2004) hl MEMORANDUM CITY OF KENAI 2111 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611-7794 TELEPHONE 907-283-7555 FAX 907-283-3014 ~ TO: FROM' DATE: SUBJECT: Larry Semmens, Finance Director Keith Kornelis, Public Works Manager April 29, 2004 Vactor Truck Dump Station The new 2004-05 Budget for the STP has an item to construct a badly needed Vactor Truck Dump Station. Would you ask the City Council to consider allowing us to build this sewer dump station now using 2004 contingency funds from Water, Sewer, and Sewer Treatment Plant accounts? If we could use this year's budget and start now, we may be able to complete an additional month or more time in cleaning our sewer mains. If the Council agrees, they can pass a resolution transferring the funds. KK/jet Suggested by: City Adm__~nistration City of Kenai RESOLUTION NO. 2004-22 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA IN SUPPORT OF THE IMMEDIATE CONSTRUCTION OF A FIBER OPTIC CABLE LINKING ANCHORAGE, KENAI, HOMER AND KODIAK. WHEREAS, the City of Kenai recognizes the importance of utilizing the latest in technological advances including high speed communications; and WHEREAS, a fiber optic cable will promote sustainable economic development, and enhance access to public services such as education, telemedicine, research, and broadcasting throughout the community; and WHEREAS, the addition of a fiber optic cable will improve homeland security and emergency response services for rural Alaska; and WHEREAS, the addition of a fiber optic line would greatly improve the City of Kenai's communication capabilities with the rest of the State, the Lower 48 and the world. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that the City of Kenai supports the immediate development and construction of a fiber optic cable connecting Anchorage, Kenai, Homer and Kodiak. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 5th day of May, 2004. JOHN J. WILLIAMS, MAYOR ATTEST: Carol L. Freas, City Clerk Attachments (4/29/04) kh Kodiak-Kenai Cable Company 1007 W. 3rd Avenue, Suite 201 Anchorage, Alaska 99501 907.278.6100 April 26, 2004 Linda L. Snow, City Manager City of Kenai 210 Fidalgo Avenue Kenai, AK 99611-7794 ge~ Anehorage-Kenai-Homer-Kodiak Marine Fiber Optic Cable Link Dear Ms. Snow: We are writing to update you on the status of the Anchorage-Kenai-Homer-Kodiak Fiber Optic Cable Link project and to request a renewed expression of your community's interest and support for this project. As you know, the Kodiak-Kenai Cable Company has been engaged for several years in a project to extend fiber optic backbone infxastrucmre from Anchorage directly to the Kenai Peninsula and to Kodiak Island. This will be accomplished through the installation of a robust and reliable marine fiber optic cable down Cook Inlet with landing points at the cities of Kenai and Homer on the Peninsula, and at Mill Bay in the City of Kodiak. We are also hopeful that the cable can be extended to the Kodiak Missile Launch Facility and thereby help enhance our nation's defense. The offshore marine hydrographic survey of the cable route was completed this past October; we are very pleased with the apparent seabed conditions of the intended route. Additional nearshore survey work at each of the landing sites is scheduled for early this summer in order to complete the route engineering. We have secured a letter of intent fi'om a well- established Alaska private bank to issue the full mount of project debt, with appropriate third party loan guarantees. The City of Kenai has been very encouraging and helpful to our efforts on this project. Your continuing support in the form of a resolution would be very helpful now as we work toward project implementation. It is clear that, for something of this magnitude to be achieved, it takes a team approach. Your participation is therefore critical to the success of this effort. Once you have been able to produce a resolution for your City, we request that a copy of it be faxed to us as soon as possible so that it can be included in our work to advance this project. Linda L. Snow April 26, 2004 Page 2 We are very excited about the long-term positive effects that this fiber optic cable project will have on the region and the state. It will help to grow Alaska's economy, to create distance education opportunities and telemedicine programs, to improve homeland security missile defense, and to enhance emergency response and search and rescue capabilities, and numerous other facets of life in the affected communities, including oppommities for jobs that otherwise would not be available. We look forward to receiving your resolution. It will be a great help in seeing that this project becomes a reality. You can contact Ik Icard at (360) 2974889 or icard~cenmryt_ el.net or myself if you have any questions or concerns. Best regards. Very truly yours, KODIAK-KENAI CABLE COMPANY, LLC cc: Carol Freas Emil Christiansen President September 23, 2003 CITY-OF KENAI 210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611-7794 TELEPHONE g07-283-7535 FAX 907-283-3014 Emil Chrisfiansen, Sr., President Kodiak Kenai Cable company, LLC 1007 West Third Avenue, Suite 201 Anchora§e, AK 99501 RE: KE~ PENINSUL~ FIBER-OPTIC INFRASTRUCTURE Dear Mr. Christiansen: This letter is written in support of the development and construction of a fiber optic communication cable project proposed to place a fiber optic link from Anchorage to the Kenai Peninsula. The development of an information infrastructure would provide our communities with acces~ to broadband connectivity and provide enh~ced teleco_mmur~cation~, health care, education, homeland security, and economic development oppommities. As we work to diversify and strengthen our economy, the need for secure, high speed, broadband telecommunication capacity becomes ever more urgent. A project of this nature would dramatically expand our communications and interact capabilities. Again, the City of Kenai supports efforts in developing and constructing a fiber-optic infrastructure to the Kenai Peninsula. C_..~~OF KENAI ~ J0W/clf CITY OF KENAI RESOLUTION NO. 2004-23 Suggested by: Admini: A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, APPROVING A CONTRACT TO QUALITY ELECTRIC FOR THE PROJECT ENTITLED KENAI MUNICIPAL AIRPORT SECURITY SYSTEM - 2004 FOR INDIVIDUAL LUMP SUM AMOUNTS TOTALING $281,101 WHICH INCLUDES THE BASIC SYSTEM AND ADDITIVE ALTERNATES 1 THROUGH 4. WHEREAS, design/build proposals were received from the following two companies on March 30, 2004: Quality Electric Kachemak Electric ;and, WHEREAS, following the FAA approved evaluation procedure, Quality Electric was determined to be the most qualified and will provide the most complete, highest quality security system; and, WHEREAS, it would be in the best interest of the City to award the bid to Quality Electric; and, WHEREAS, this resolution is contingent upon FAA approval and funding; and, WHEREAS, Additive Alternates 1 through 4 are contingent upon receiving further FAA funds; and, WHEREAS, the recommendation from the Evaluation Committee and the City Administration is to award the contract to Quality Electric; and, WHEREAS, sufficient monies are appropriated for the Base Bid and FAA has programmed grant monies for Additive Alternates 1 through 4; and, WHEREAS, separate Notices to Proceed for construction of the Base Bid and each Additive Alternate will be issued. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that the contract for the design/build project entitled Kenai Municipal Airport Security System- 2004 be awarded to Quality Electric for individual lump sum amounts totaling $281,101 which includes the Basic System and Additive Alternates 1 through 4. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this fifth day of May 2004. ATTEST: JOHN J. WILLIAMS, MAYOR Carol L. Freas, City Clerk .~ Approved by Finance: '~'~ ~, --~.~ ~ 144 N. BINKLEY SOLDOTNA, ALASKA ~ 99669-7599 ! BUSINESS (907) 262-8608 FAX (907) 262-8615 ': · EMAIL: assemblyclerk@borough.kenai.ak.us April 15, 2004 LINDA MURPHY, MMC BOROUGH CLERK Ms. Dawn Holland-Williams Records & Licensing Supervisor Alcoholic Beverage Control Board 5848 E. Tudor Rd. Anchorage, AK 99507-1286 Re'. Application for Renewal of Liquor License Dear Ms. Holland-Williams: Please be advised that the Kenai Peninsula Borough has no objection to the approval of the application(s) for renewal of the liquor license(s) for the following establishment(s), located in the City of Kenai, Alaska: Beverage Dispensary_ Tourism Mr. D's #2457 The Kenai Peninsula Borough Finance Department has reviewed its files and has raised no objection based on unpaid or delinquent taxes. Sincerely, Linda S. Murphy, MMC' Borough Clerk CC.' applicant City of Kenai KPB Finance Department File S:\WPW1N~2)ATA~BCBXAbc-lenerskRENEWALSXRenewal in City.wpd Carol Freas From: Jane Hannan [jane_hannan@dps.state.ak.us] Sent: Tuesday, April 13, 2004 4:10 PM To: Carol Freas; Kenai Peninsula Borough Essert, Sue Ellen; Laurie Lingafelt Subject: ABC Board - Renewal Notification Dear Local Goveming Body: We have received the following application(s) for renewal of liquor license(s) within your jurisdiction. You are being notified as required by AS 04.11.520. Additional information conceming filing a "protest" by a local governing body under AS 04.11.480 is included below. Type: .Beverage Dispensary Tourism License: Mr. D's- #2457 'Location: .1.0352 Kenai Spur Hwy Owner: Kings Inn Property Management LLC Agent: James S. Yang Phone: 907-283-6060 Mailing Address: 10352 Kenai Spur Hwy Kenai, AK 99611 We have received an application for renewal of a liquor license(s) within your jurisdiction. This is the notice as required under AS 04.11.520. Additional information concerning filing a "protest" by a local governing body under AS 04.11.480 is included in this letter. A local governing body as defined under AS 04.21.080(11) may protest the approval of an application(s) pursuant to AS 04.11.480 by furnishing the board and the applicant with a clear and concise written statement of reasons in support of a protest within 60 days of receipt of this notice. If a protest is filed, the board will not approve the application unless it finds that the protest is "arbitrary, capricious and unreasonable". Instead, in accordance with AS 04.11.510(b), the board will notify the applicant that the application is denied for reasons stated in the protest. The applicant is entitled to an informal conference with either the director or the board and, if not satisfied by the informal conference, is entitled to a formal hearing in accordance with AS 44.62.330-44.62-630. IF THE APPLICANT REQUESTS A HEARING, THE LOCAL GOVERNING BODY MUST ASSIST IN OR UNDERTAKE THE DEFENSE OF ITS PROTEST. Under AS 04.11.420(a), the board may not issue a license or permit for premises in a municipality where a zoning regulation or ordinance prohibits the sale or consumption of alcoholic beverages, unless a variance of the regulation or ordinance has been approved. Under AS 04.11.420(b) municipalities must 4/13/2004 KENAI AIRPORT COMMISSION SPECIAL MEETING APRIL 29, 2004 KENAI CITY COUNCIL CHAMBERS 7:00 P.M. AGENDA ITEM 1' CALL TO ORDER AND ROLL CALL ITEM 2: AGENDA APPROVAL ITEM 3: NEW BUSINESS Recommendation -- Lease Application/Bellair, Inc. -- Tract A, General Aviation Apron No. 2. ITEM 4: ADJOURNMENT KENAI AIRPORT COMMISSION SPECIAL MEETING APRIL 29, 2004 KENAI CITY COUNCIL CHAMBERS 7:00 P.M. CHAIR HENRY KNACKSTEDT, PRESIDING M~TrNG StrMMA~Y. ITEM 1: C_~LL TO ORDER AND ROLL CALL The meeting was called to order at approximately 7:08 p.m. Roll Call was confirmed as follows: Commissioners Present: Jim Bielefeld, Henry Knackstedt, Doug Haralson and Jed Watkins Commissioners Absent: Jim Zirul and Chip Versaw Others Present: Airport Manager Cronkhite, Airport Operations Supervisor Hicks, Council Member Moore ITEM 2: AGENDA APPROVAL The following items were requested to be added to the agenda: ADD TO: Item 3-a, Recommendation/Bellair Lea~e Application -- 4/23/04 Mike Spisak, Bellair, Inc. informational letter. ADD AS: Item 3-b, Recommendation/Lease Application-- State of Alaska, Division of Forestry with packet information. MOTION: Commissioner Haralson MOVED to approve the agenda as amended and Commissioner Watldns SECONDED the motion. There were no objections. ~O ORDERED. ITEM 3: NEW BUSInEss -ae Recommendation -- Lease Application/Bellair, Inc. -- Tract A, General Aviation Apron No. 2. Dwight Kramer -- Kramer introduced himself noting he was there to represent Mike Spisak. He noted Spisak is building a home in Kenai and would like to move his base of operations to Kenai. Kramer was asked if Spisak would be operating from the terminal and he stated Spisak had indicated he would operate from the terminal until his project is complete. Ram Air was started in the late '70's. Airport Manager Cronkhite noted the proposed use did not meet with the Airport Master Plan. Earl Hicks, Airport Operations Supervisor, noted difficulties with drainage and snow removal that would arise with using this particular property. Airport Manager proposed an alternative plan and noted Spisak also looked at lots five and six north of the terminal but was concerned about the cost of removing overburden and bringing in fill. Cronkhite stated she has looked into the possibility of using airport personnel and equipment to do some of the work on these lots. The cost would be minimal and done with airport personnel and equipment and within the current budget. The improved lots would then appraise for a higher value, allowing the airport to recover costs over time. Discussion followed and Kramer indicated he wa~ not knowledgeable enough about Spi~ak's plans to say ff thia would be acceptable or not. Cronkhite indicated, if Council was willing, this work could start almost immediately and be completed by the end of May. Even if Spisak did not lease lots five and six, the work would be a permanent improvement and make the lots more attractive to other businesses. MOTION: Commissioner Watkins MOVED to recommend council approve the lease as presented and Commissioner Haralson SECONDED the motion. VOTE: Zirul Absent [ Bielefeld No Knackstedt No Versaw Absent Haralson Yes Watkins Yes MOTION FAILED. Recommendation -- Lease Application State of Alaska, Division of Forestry Commission reviewed the memorandum and back-up materials which indicated the applicant had not executed the lease agreement within the thirty days required by Kenai Municipal Code. A new lease application was submitted by the Division of Forestry and included in the documents, along with an explanation of several changes to the original lease application. The Commission was requested to review the application and determine if the intended use complies with the Airport Master Plan. MOTION: Commissioner Bielefeld MOVED to recommend approval of the Division of Forestry lease application as submitted and Commissioner Haralson SECONDED the motion. There were no objections. SO ORDERED. ITEM 4: ADJOURNMENT The meeting adjourned at approximately 8:25 p.m. Meeting Summary prepared by: Carol L. Freas, City Clerk SPECIAL AIRPORT COMMISSION MEETING APRIL 29, 2004 PAGE 2 CITY OF KENAI PLANNING & ZONING COMMISSION AGENDA CITY COUNCIL CHAMBERS April 14, 2004- 7:00 p.m. 1. CALL TO ORDER: a. Roll Call b. Agenda Approval c. Consent Agenda *All items listed with an asterisk (*) are considered to be routine and non-controversial by the Commission and will be approved by one motion. There will be no separate discussion of these items unless a Commission Member so requests, in which case the item will be removed from the Consent Agenda and considered in its normal sequence on the agenda as part of the General Orders. o *APPROVAL OF MINUTES' a. *March 24, 2004 3. SCHEDULED PUBLIC COMMENT' 4. CONSIDERATION OF PLATS: 5. PUBLIC HEARINGS: a. PZ04-13~An application for a Conditional Use Permit for Townhouses (Condominium Development) for the property known as 570 Devray Street (Lot 5, Block 4 Three W's Subdivision Addition No. 1), Kenai, Alaska. Application submitted by Clint Chappell, 40205 Frogberry Road, Kenai, Alaska. b. PZ04-14--An application for a Conditional Use Permit for Townhouses (Condominium Development) for the property known as 920 Strawberry Road-North (Lot 7, Block 4 Strawberry Hills Estate), Kenai, Alaska. Application submitted by Clint Chappell, 40205 Frogberry Road, Kenai, Alaska. 6. OLD BUSINESS: a. Kenai Peninsula Borough Chapter 21.18 - Anadromous Streams Habitat Protection- Discussion and Recommendation 7. NEW BUSINESS' a. Request to purchase Lot A-1 and Lot A-2 Baron Park No. 6 - Discussion and Recommendation b. Request to purchase 16 acres adjacent to Marathon Road (Proposed Baron Park No. 12) - Discussion and Recommendation c. Request to purchase Tract A-5 Dena'ina Point Estates - Discussion and Recommendation 8. PENDING ITEMS' a. Amendment of KMC 14.20.320 - Modular Homes 9. CODE ENFORCEMENT: 10. REPORTS' a. City Council Agenda April 14, 2004 Page 2 b. Borough Planning c. Administration 11. PERSONS PRESENT NOT SCHEDULED: 12. INFORMATION ITEMS: a. Board of Adjustment Decision- Jones Appeal b. Planning & Zoning Commission roster c. Zoning Bulletin (3/25/04) d. Building Permits Quarterly Report e. P&Z Quarterly Report f. City Council Roster 13. COMMISSION COMMENTS & QUESTIONS: 14. ADJOURNMENT: PLANNING/h ZONING COMMISSION MEETING CITY COUNCIL CHAMBERS APRIL 14, 2004 - 7:00 P.M. CHAIR CARL GLICK, PRESIDING MINUTES ITEM 1' CALL TO ORDER Chairman Glick called the meeting to order at approximately 7:00 p.m. 1-a. Roll Call The roll was confirmed as follows: Commissioners present: Commissioner absent' Staff/Others present: N. Amen, C. Glick, P. Bryson, J. Barrett, J. Hamme!man B. Eldridge City Clerk Freas, City Manager Snow, Council Member Bookey, City Planner Kebschull, Planning Assistant Carver X-bo Agenda Approval MOTION: Commissioner Bryson MOVED to approve the agenda as submitted and requested UNANIMOUS CONSENT. Commissioner Hammelman SECONDED the motion. There were no objections. SO ORDERED. 1 'C. Consent Agenda MOTION: Commissioner Amen MOVED to approve the consent agenda as submitted and requested UNANIMOUS CONSENT. Commissioner Bryson SECONDED the motion. There were no objections. SO ORDERED. ITEM 2- APPROVAL OF MINUTES -- March 24, 2004 Approved by consent agenda. ITEM 3' SCHEDULED PUBLIC COMMENT-- None. ITEM 4: CONSIDERATION OF PLATS-- None. ITEM 5: PUBLIC HEARINGS PZ04-13--An application for a Conditional Use Permit for Townhouses (Condominium Development) for the property known as 570 Devray Street (Lot 5, Block 4 Three W's Subdivision Addition No. 1), Kenai, Alaska. Application submitted by Clint Chappell, 40205 Frogberry Road, Kenai, Alaska. MOTION: Commissioner Bryson MOVED for approval of PZ04-13 and Commissioner Amen SECONDED the motion. Staff had nothing additional. The public hearing was opened. With no one requesting to speak to the resolution, the public hearing was closed. It was noted the applicant was in the audience and available to field questions ff necessary. After reviewing the difference between a condominium vs. townhouse, City Planner Kebschull noted the following: · Kenai Municipal Code does not include a definition for a condominium. · As in the past, the city attorney recommended the most similar use in the city code is "townhouse." She noted, typically one owning a townhouse owns the property underneath and it can exist independently with its own utilities. In this instance, the owner will own the residence, but the parcel will be jointly owned by the association as well as the utilities. The Horizontal Property Regimes Act defines the requirements to do this. · Staff recommendations included approval of the Conditional Use Permit but that prior to the issuance and the sale of any unit, proof the development meets the Horizontal Property Regimes Act must be submitted to the City. · In this situation, the lot size is not large enough to provide for two septic systems pursuant to DEC regulations. If there would have been, it would have been a townhouse situation. · City wanted the septic system restrictions and Proof of DEC approval for the use. · No additional construction will occur and the Building Official has verified the structure was built according to standard for condominiums. Clint Chappel, 40205 Frogberry, Kenai -- Chappel stated Kebschull is correct regarding the difference between a townhouse and condominium. When he built the structure, he had in mind to eventually subdivide them. The fourplex is built so there is a living unit-garage-living unit-garage, etc. and set up like a condominium. The structures are built to fire code for condominiums. He has contacted an attorney who is setting up the paperwork for him. Kebschull noted, this permit is for the duplex. Chappel agreed and added, his efforts were the same for the fourplex. PLANNING & ZONING COMMISSION MEETING APRIL 14, 2004 PAGE 2 VOTE: Amen Yes Glick Yes Bryson Yes Barrett Yes Hammelman Yes Eldrid§e Absent MOTION PASSED UNANIMOUSLY. 5-b. PZ04-14--An application for a Conditional Use Permit for Townhouses (Condominium Development} for the property known as 920 Strawberry Road-North (Lot 7, Block 4 Strawberry Hills Estate), Kenai, Alaska. Application submitted by Clint Chappell, 40205 Frogberry Road, Kenai, Alaska. MOTION: Commissioner Hammelman MOVED to approve PZ04-14 with the inclusion of staff recommendations and Commissioner Bryson SECONDED the motion. Kebschull stated she had no additional comments. The public hearing was opened. Clint Chappell, 40205 Frogberry, Kenai-- Chappell stated he has an attorney setting up requirements relating to the Horizontal Regimes Act and it will be submitted to the city as soon as it is prepared in order to receive pre-approvE. Glick asked if there was a difference between this structure and the previous structure discussed. Chappell stated no, other than this is a fourplex and the other is a duplex. Amen asked if there were any different parking requirements for a fourplex and Kebschull answered no, the building was constructed with sufficient off-street parking. Bryson asked if the city had any area requirements to apply to the structure and Kebschull answered, there is not separate water and sewer. Without separate utilities, townhouses are not allowed. Additionally, if they had been constructed as townhouses, denser development would have been allowed. VOTE: AInen Bryson Eldrid§e Yes Yes Glick Yes Yes Barrett Hammelman Yes Absent MOTION PASSED UNANIMOUSLY. PLANNING & ZONING COMMISSION MEETING APRIL 14, 2004 PAGE 3 Chairman Glick noted the appeal process for the record and added, appeals must be received by the City Clerk within 15 days. ITEM 6: OLD BUSINESS Discussion/Recommendation-- Kenai Peninsula Borou§h Chapter 21.18 -- Anadromous Streams Habitat Protection Kebschull referred to the memorandum from City Manager Linda Snow, which was included in the packet with attachments. Snow referred to Kenai Borough Code, 21.18.100(c) which describes what the city would have to do if it decided to take over the responsibility of enforcing the protection. She noted the city had not yet drafted an ordinance to this effect as no request had been made by Council Member Bookey to date. Council Member Bookey explained he wanted to hear comments from the Planning & Zoning Commission as well as the Harbor Commission prior to requesting an ordinance be drafted. He added, his request for the council to consider taking over the enforcement was not to weaken the Borough ordinance -- the city may want to strengthen it and/or make it more restrictive. He added, he believed, with the political situations across the Borough, it would be far better for the city to manage its own portion of the river and it is important for the city to control its destiny, i.e. at this time, permits and appeals, etc. are taken to the Borough Planning Commission and the Assembly for review, a change in the code would allow city entities to make those reviews, etc. Bookey also noted, he did not anticipate the additional work load to be overwhelming. Joe Moore, 1006 Inlet Woods, Kenai -- Noted, at one time, the Kenai River Special Mana§ement Area wanted to include the lower five miles of the river in their plan. The council fou§ht to keep it out in order for the city to mana§e its property within the city limits. The city has the ability to enforce the same rules and regulations now bein§ enforced. Moore stated he is in favor of doin§ that and would like to see the issue explored further. A lengthy discussion followed in which comments included: Administration would be able to write permits for allowable use, but the Planning & Zoning Commission would be the body who would grant or deny applications for conditional use permits. · Administration would report to the Commission what allowable permits are written. · City Council would act as a Board of Adjustment for appeals. · The ordinance will offer the process and benchmarks for deciding whether permit applications are allowable. PLANNING & ZONING COMMISSION MEETING APRIL 14, 2004 PAGE 4 · The reports will require some environmental expertise which the staff may or may not have; there will be cost involved with staffing; and, there will be risks in making determinations by the Commission. Discomfort with the direction the city is proposing to go, i.e. there are specific issues in the estuary area that don't occur elsewhere in the borough (brackish or salt water), the city area includes industrial areas and the rest of the borough does not, and special criteria will be needed if the city really wants to protect the fiver. · Sometimes agencies are better off being an ally to other agencies instead of being the agency itself, the Borough has the best interest of the city in mind, and the ordinance cannot be less stringent. The Borough should continue doing the enforcement and the city should not take over something that is working frae. · What are the advantages, other than having the control? · The Kenai River Center will be completely accessible to city staff for any environmental issues or other permitting issues that may come up. · Wants the city to be the contact for developers who propose projects within the city. · In terms of time, staff time for accepting, review for completeness, processing, filing and mailing a permit application takes 30 minutes and 75 minutes for a conditional use permit. Since 1996, there have been only two conditional use permits that came before the River Center and the rest were allowable use pe _rrnits. Staff time for adjudicating existing and allowable use permits without a field visit, an ..additional 60 minutes and with a field visit an additional 120 minutes plus travel time. Adjudicating a conditional use permit with a field visit is approximately six hours plus travel time and Planning & Zoning Commission meeting. · Training time for staff will be extensive, but will not be overwhelming. · It's difficult to decide on something without having a draft ordinance to know what the requirements will be, etc. The Commission was polled as to whether they objected to the process to consider amending the code and it should go forward. The consensus was to move ahead to consider an amendment, but they requested a draft ordinance be made available for review to obtain a better feel for what the direction would be. ITEM 7: NEW BUSINESS Discussion/Recommendation -- Request to purchase Lot A-1 and Lot A-2 Baron Park No. 6. Kebschull referred to the memorandum from Kim Howard, included in the packet and noted a request was made to make the above-referenced property available for sale. In order to do so, the property must be designated as not required for public use. Sale would be by competitive bid at not less than the fair market value. PLANNING & ZONING COMMISSION MEETING APRIL 14, 2004 PAGE 5 MOTION: Commissioner Barrett MOVED to recommend Lot A-1, Baron Park No. 6 is not needed for public use and requested UNANIMOUS CONSENT. Commissioner Amen SECONDED the motion. Bryson noted his concern the sale of the property would be a one-time amount of money into the Airport Land Fund, while a lease would be a long-term income. City Manager Snow reported the area in which this property lies was originally developed to sell so that it could be developed. Amen asked if a green strip is required for this type of development. Kebschull stated there are only landscape site plan and parking requirements. Barrett noted, the funds from the sale would go to the Airport Fund in which the principal cannot be touched by the city. There would still be a revenue stream from property taxes. VOTE: Amen Yes Glick Yes Yes Barrett Yes B19rson Eldridge Absent Yes MOTION PASSED UNANIMOUSLY. 7-bo Discussion/Recommendation -- Request to. purchase 16 acres adjacent to Marathon Road (Proposed Baron Park No. 12). MOTION: Commissioner Amen MOVED to recommend this parcel is not needed for public use and Commissioner Barrett SECONDED the motion. Commissioner Bryson stated he would abstain from voting due to conflict of interest as he may have a potential contract with the potential purchasers. Glick had no objection to Bryson's abstention. He also noted, this was the same situation as the previous property. VOTE: Amen Yes Glick Yes Bryson Abstain Barrett Yes Hammelman Yes Eldrid§e Absent MOTION PASSED UNANIMOUSLY. PLANNING & ZONING COMMISSION MEETING APRIL 14, 2004 PAGE 6 -Co Discussion/Recommendation -- Request to purchase Tract A-5 Dena'ina Point Estates Kebschull noted a memorandum explaining the request and particulars of the property was included in the packet. After reviewing the memorandum with the Commission, Kebschull added, Administration is requesting a recommendation of whether the property is or is not needed for public use. MOTION: Commissioner Amen MOVED to recommend Tract A-5 Dena'ina Point Estates is not needed for public use and Commissioner Hammelman SECONDED the motion. Bryson stated his encouragement for developing the property but noted problems in that area with heavy erosion, etc. Bryson stated he supported the request. Amen asked if the other properties in that area are developed in the future, will there be recourse to recommend a green area for a playground, etc. Kebschull noted interest by the Parks & Recreation Commission to develop property across the highway for softball fields, etc. Barrett asked if extending water/sewer lines will be an issue as noted in the third paragraph of the memorandum. Kebschull answered, it would be the responsibility of the developer to work out those issues. VOTE: Amen Yes Glick Yes Yes Barrett Yes Hammelman Yes Absent Bryson Eldrid~e MOTION PASSED UNANIMOUSLY. ITEM 8: PENDING ITEMS Amendment of KMC 14.20.320/Modular Homes -- No discussion. ITEM 9' CODE ENFORCEMENT-- None. ITEM 10' REPORTS 10-a. in March. City Council -- Bookey reported the following: He attended the Arctic Winter Games in Wood Buffalo, Alberta, Canada PLANNING & ZONING COMMISSION MEETING APRIL 14, 2004 PAGE 7 · Council began the budget review work sessions and projections for sales tax look very encouraging. 10-b. Borough Planning -- Bryson reviewed actions taken during the April 12 Borough Planning Commission meeting. 10-c. Administration -- Kebschull reported the following: · The annual gravel pit report was included in the packet. All are in compliance with the city code. Pit monitoring is complaint driven. · The building permit first quarter report was included in the packet. · The city's updated Comprehensive Plan will be introduced to the Borough Assembly at their April 20 meeting with the public hearing scheduled for May 18. · She will be out of town and will miss the April 28 Commission meeting. The adult-oriented business ordinance will be before the Commission for public hearing during that meeting. The Airport Plan Assessment is out to bid. Proposals are due May 6. · Kenai Landing has been issued three building permits (restaurant and three cottages). · A fish and chips restaurant is to open in ten days. · Ron's Rent-All is moving into the Professional Building on Willow. That building is being renovated. Jersey Subs has picked up information for a building permit to place a store in Kenai by McDonald's. Bookey noted the process for Mr. Lowe (Dena'ina Point Estates) will be quite lengthy and asked if administration had advised him of the total process. Kebschull stated all issues were reviewed with Lowe by herself, Klm Howard and Public Works Manager La Shot. ITEM 11: PERSONS PRF.~EBIT NOT SCHEDULED -- None. ITEM 12: INFORMATION ITEMS 12-a. 12-b. 12-c. 12-d. 12-e. 12-f. Board of Adjustment Decision - Jones Appeal Planning & Zoning Commission roster Zoning Bulletin (3 / 25/04) Building Permits Quarterly Report P&Z Quarterly Report City Council Roster ITEM 13: COMMISSION COMMENTS/h QUESTIONS-- None. ITEM 14: ADJOURNMENT PLANNING & ZONING COMMISSION MEETING APRIL 14, 2004 PAGE 8 The meeting adjourned at approximately 8:45 p.m. Minutes transcribed and prepared by: Carol L. Freas, City Clerk PLANNING & ZONING COMMISSION MEETING APRIL 14, 2004 PAGE 9 CITY OF KENAI PLANNING & ZONING COMMISSION AGENDA CITY COUNCIL CHAMBERS April 28, 2004 - 7:00 p.m. 1. CALL TO ORDER: a. Roll Call b. Agenda Approval c. Consent Agenda *All items listed with an asterisk (*) are considered to be routine and non-controversial by the Commission and will be approved by one motion. There will be no separate discussion of these items unless a Commission Member so requests, in which case the item will be removed from the Consent Agenda and considered in its normal sequence on the agenda as part of the General Orders. 2. *APPROVAL OF MINUTES: a. *April 14, 2004 3. SCHEDULED PUBLIC COMMENT: 4. CONSIDERATION OF PLATS: 5. PUBLIC HEARINGS: a. PZ04-15 - A resolution of the Planning and Zoning Commission of the City of Kenai, Alaska, recommending to the Council of the City of Kenai, Alaska, that Title 14 of the Kenai Zoning Code be amended by adopting KMC 14.20.175 for the regulation of adult-oriented businesses. b. PZ04-16 - An application for a variance permit for a 15-foot rear setback variance for the property described as Lot 6, Block 1, VIP Ranch Estates, Part Three (840 Sand Dollar Drive), Kenai, Alaska. Application submitted by Gary Hershberger, 840 Sand Dollar Drive, Kenai, Alaska. 6. OLD BUSINESS: 7. NEW BUSINESS: a. *PZ04-17 - An application for a Home Occupation Permit for a daycare for the property known as Lot D, Davidson Subdivision (1506 Bumblebee Avenue), Kenai, Alaska. Application submitted by Emma Lee Whitaker, 1506 Bumblebee Avenue, Kenai, Alaska. b. Discussion Item- City of Kenai ANNEX to the Kenai Peninsula Borough Local All Hazard Mitigation Plan Draft ® PENDING ITEMS: a. Amendment of KMC 14.20.320 - Modular Homes 9. CODE ENFORCEMENT: 10. REPORTS: a. City Council b. Borough Planning c. Administration 11. PERSONS PRESENT NOT SCHEDULED: 12. INFORMATION ITEMS: a. PZ04-18 - Landscape Site Plan - 905 Cook Avenue (Lot 4A, Block 15 Original Kenai Townsite) - Leif Carlson d/b/a Batir Construction for Central Peninsula Counseling Services b. KPB Administrative Plat Approval - Kenai Townsite ACS Replat c. KPB Administrative Plat Approval- Shankel Subdivision d. US Army Corps of Engineers- Public Notice- General Permit GP 2003-1 e. Zoning Bulletin (4/10/04) 13. COMMISSION COMMENTS & QUESTIONS: 14. ADJOURNMENT: CITY OF KENAI PLANNING/~ ZONING COMMISSION CITY COUNCIL CHAMBERS APRIL 28, 2004- 7:00 P.M. CHAIRMAN CARL GLICK, PRESIDING MINUTES ITEM 1' CALL TO ORDER Chairman Glick called the meeting to order at 7:00 p.m. 1-a. Roll Call Members Present: C. Glick, P. Bryson, N. Amen, B. Eldridge, J. Hammelman, and J. Barrett Others Present: Councilman Rick Ross, City Attorney Cary Graves, Fire Chief Scott Walden, Department Assistant Nancy Carver, City Planner Marflyn Kebschull and Contract Secretary Barb Roper 1-b. AEenda Approval MOTION: Commissioner Amen MOVED to approve the agenda and requested UN~OUS CONSENT. Commissioner Eldridge SECONDED the motion. There were no objections. SO ORDERED. Consent AEenda MOTION: Commissioner Eldridge MOVED to approve the consent agenda and requested UNANIMOUS CONSENT. Commissioner Bryson SECONDED the motion. There were no objections. SO ORDERED. ITEM 2: APPROVAL OF MINIFI'ES -- April 14, 2004 Approved by consent agenda. ITEM 3: SCHEDULED PUBLIC COMMENT -- None. ITEM 4: CONSIDERATION OF PLATS-- None. ITEM 5: PUBLIC HEARINGS PZ04-15 - A resolution of the Planning and Zoning Commission of the City of Kenai, Alaska, recommending to the Council of the City of Kenai, Alaska, that Title 14 of the Kenai Zoning Code be amended by adopting KMC 14.20.175 for the regulation of adult-oriented businesses. MOTION: Commissioner Hammelm~ MOVED to approve PZ04-15 and Commissioner Bryson SECONDED the motion. Staff had nothing additional. There were no comments from the public during the public hearing. Commissioner Eldridge agreed the issue needed to move forward but still felt 500 feet was not sufficient enough to keep adult oriented businesses from operating within the City of Kenai. MOTION TO AMEND: Commissioner Eldridge MOVED to amend the main motion and change the 500 foot location limit to 700-feet. Commissioner Hammelman 8~20~~D the motion. Commissioner Bryson requested supporting argument for the modification and also requested the City Attorney provide statement regarding the concerns of the City. Eldridge stated his feeling was the downtown area should not be made available to adult oriented businesses and would prefer to have as few downtown areas available for such businesses as he felt there were more appropriate locations on the Spur Highway or on the North Road. Eldridge also questioned the area off Bridge Access as he believes the area is an old designated Russian Native gravesite. Eldridge added, there is a lot of case history on the location lknit and the Supreme Court supported as much as 1000-feet from schools and churches but he would request the limit for Kenai be limited to at least 700 feet. City Attorney Graves stated, while the Supreme Court has approved a protective zone up to 1,000 feet around churches and schools, it is not a uniform 1,000-foot protective zone. Graves continued, it is variable upon the area in which the 1,000-foot protective zone allows an adult oriented business to locate. Graves added, these businesses need reasonable access to the community and in some areas the 1,000-foot !~m~t would leave them no place to locate. Graves continued, staff felt the 500-foot zone was probably easier to defend and noted the higher the zone limit the more difficult it is to defend in court. Commissioner Barrett thanked staff for the work on the map. Barrett stated, even if the circles were doubled in size, there is still a sizable amount of downtown that would not be in any of the circles. Barrett continued, while he may see the need for a 1,000- foot or 700-foot zone, he was not sure it would accomplish what Commissioner Eldridge was seeking, i.e. to keep downtown basically off limits to adult oriented businesses. PLANNING & ZONING COMMISSION MEETING APRIL 28, 2004 PAGE 2 Discussion ensued regarding the gravesite in Millennium Square and Eldridge noted the land was deeded to the Russian Orthodox Church. Attorney Graves pointed out there is no church structure on the property. Kebschull added, this location is in fact owned by the Church and there is also a few residential parcels owned by churches that would show up on the Borough maps but are not noted with the City's. Kebschull continued, staff had to manually go out and identify some daycares and preschools the Borough does not designate as schools so if the ordinance goes through, the City would have to manually determine all the locations. Commissioner Bryson confn'med the parcel was identified as a graveyard in the early 1900's and did not think there were any structures on it; however, there was a village nearby that was destroyed. VOTE ON THE AMENDMENT: Hammelman No Eldridge Yes Amen No MOTION FAIl,ED. VOTE ON THE MAIN MOTION: Glick [Yes Bryson Yes ]Barrett Yes Hammelman Yes l/;ldridge Yes Amen . Yes MOTION PASSED UN~OUSLY. PZ04-16 - An application for a variance permit for a 15-foot rear setback variance for the property described as Lot 6, Block 1, VIP Ranch Estates, Part Three (840 Sand Dollar Drive), Kenai, Alaska. Application submitted by Gary Hershberger, 840 Sand Dollar Drive, Kenai, Alaska. MOTION: Commissioner Bryson MOVED to approve PZ04-16. Commissioner Hammelman SECONDED the motion. Staff had nothing additional. There was no public comment during public hearing. Barrett asked staff what the __m_inimum variance would be based on the recommendation from staff. Kebschull stated the Commission would have to determine what that would be but the applicant is asking for 15-feet; however, he did say he could move the structure. PLANNING & ZONING COMMISSION MEETING APRIL 28, 2004 PAGE 3 Eldridge suggested the applicant relocate the structure to the other side of the lot. Glick stated he could not speak for the applicant but he is familiar with the lot and if the structure was moved, it would obstruct the view from the dwelling. Eldridge asked if staff received comments from any of the neighbors. Kebschull replied they did not and noted the area is zoned rural residential and requires a 15- foot side setback. Bryson noted the description of the application stated it is a rear setback and asked staff if that was their determination as well. Kebschull replied a rear setback was the determination. VOTE: Glick No I Bryson No Barrett No Hammelman Yes [ Eldrid§e No Amen No MOTION FAILED. ITEM 6: OLD BUSINESS-- None. ITEM 7: NEW BUSINESS *PZ04-17 - An application for a Home Occupation Permit for a daycare for the property known as Lot D, Davidson Subdivision (1506 Bumblebee Avenue), Kenai, Alaska. Application submitted by Emma Lee Whitaker, 1506 Bumblebee Avenue, Kenai, Alaska. Approved by consent agenda. Discussion Item - City of Kenai ANNEX to the Kenai Peninsula Borough Local All Hazard Mitigation Plan Draft. Fire Chief Scott Walden presented the Mitigation Plan and provided an additional handout. Walden reported the Annex seriously affec~g the City of Kenai is about one third of the overall plan. Walden noted Chapter III would require Planning and Zoning consideration and he encouraged the Commission to review the website and participate in the survey. The timeline for completion of the overall plan is June 30, which doesn't give the City much time for public comment. After further discussion, staff was requested to schedule a public hearing for the next Planning and Zoning meeting. ITEM 8: PENDING ITEMS Amendment of KMC 14.20.320 - Modular Homes - no discussion. PLANNING & ZONING COMMISSION MEETING APRIL 28, 2004 PAGE 4 ITEM 9' CODE ENFORCEMENT-- sNone. ITEM 10: REPORTS 10-a. City Council -- Councilman Ross reviewed the April 21st agenda and discussed action taken. 10-b. Borough Planning-- Commissioner Bryson reviewed the Borough Planning Commission agenda for the April 26th meeting and discussed actions taken. 10-e. Administration -- Kebschull reported the following: * She just returned from a planning conference in Washington D.C. · She noted the pending item will be discussed with the City Attorney and it may just require an update to the existing ordinance. ITEM 11' PERSONS PRESENT NOT SCHEDULED -- None. ITEM 12: INFORMATION ITEMS 12-a. 12-b. 12-c. 12-d. 12-e. PZ04-18- Landscape Site Plan- 905 Cook Avenue (Lot 4A, Block 15 Original Kenai Townsite) - Left Carlson d/b/a Batir Construction for Central Peninsula Counseling Services KPB Administrative Plat Approval- Kenai Townsite ACS Replat KPB Administrative Plat Approval- Shankel Subdivision U.S. Army Corps of Engineers - Public Notice - General Permit GP 2003- 1 Zoning Bunetin (4/10/04) ITEM 13: COMMISSION COMMENTS/is ~UESTIONS Commissioner Barrett once again thanked staff for the maps provided for the adult oriented businesses. Barrett invited everyone to the annual summer art show reception at the Visitors Center scheduled for April 30. ITEM 14: ADJOURNMENT MOTION: Commissioner Eldridge MOVED to adjourn and Commissioner Bryson SECONDED the motion. There were no objections. SO ORDERED. PLANNING & ZONING COMMISSION MEETING APRIL 28, 2004 PAGE 5 The meeting adjourned at approximately 7:45 p.m. Minutes transcribed and prepared by: Barbara Roper, Contract Secretary PLANNING & ZONING COMMISSION MItErING APRIL 28, 2004 PAGE 6 Council Present' Council Absent: Staff Present: K~NAI CITY COUNCIL, BUDGE~I~ WORK SF, SSION I~NAI CITY COUNCIL CHAMBERS APRIL 19, 2004 6:00 P.M. VICE MAYOR JAMF~ C. BOOK.Y, III, PRF, SIDING Jim Bookey, Pat Porter, Linda Swarner, Joe Moore, Blaine Gilman and Rick Ross John Williams Carol Freas, Linda Snow, Cary Graves, Ewa Jankowska, Scott Walden, Jack La Shot, Chuck Kopp, Kim W~~aker, Larry Semmens, Rachael Craig, Keith Komelis, Earl Hicks, Rebecca Cronkhite, Bob Frates Vice Mayor Bookey opened the work session at approximately 6:02 p.m. Finance Director Semmens noted $13,000 had been added back into the budget during the April 12 work session through consensus of the council. Discussion followed in which some council stated they felt the consensus was to add the amounts into the budget, but all the changes would be reviewed at the end of the work sessions at which time it would be determined the ramifications of the suggested changes and whether the changes should stay in. Bookey suggested a fourth work session be added to review all changes made, etc. Finding: Consensus of council was to list suggested changes which would be reviewed after review of the entire budget. The list could then be prioritized and a consensus would be used to decide whether the changes should remain or not. It would take four members to agree to add a change to the list which will be discussed at the end of the work sessions. Airport Funds: A~rport Land System Special Revenue Fund · M&O -- Airport Manager Cronkhite and Operations Supervisor Hicks reviewed this budget and discussed the request for funds to purchase a tractor/mower/brushhog and the merits in doing so. Discussion also took place regarding sale of airport lands versus leasing, and what the mi~_~mum fund balance should be. Findings: Council consensus was not to make any changes to this budget and to discuss the fund balance _m__~nimum during a work session. Administration -- Cronkhite reviewed the budget. Highlights of discussion included transportation increase, insurance costs and advertising, i.e. the Milepost advertisement. BUDGET WORK SESSION APRIL 19, 2004 PAGE 2 Findings: Council consensus was to remove the $3,000 for the Milepost advertisement and to add the $3,000 for the advertisement on the list of suggested expenditures. There were no other changes. * Airport Land -- FindinEs: There were no changes. · Airport Terminal -- Cronkhite noted the contract for wall/sign advertisements in the terminal would end in three years and there are local businesses in the community who are not pleased with the company because of the high cost for the advertising space. Findings: There were no changes. Senior Center Funds: Senior Citizens Title IIII Grant Fund -- Director Craig reported the/n-kind match had to be raised which was covered by the increase in the rate of rentals. Findings: There were no changes. Choice Waiver Fund Findings: There were no changes. Senior Citizens Borough Grant Fund -- It was noted the fund balance continually increases in this fund. It was noted, the fund balance is used to cover the purchase of vehicles or pay utilities, i.e. items not paid for by the General Fund. Findings: There were no changes. Congregate Housing Enterprise Fund -- Craig noted the estimated cost for maintenance to the siding of the building is $125,000. Council discussed the need to have the work done and whether it should be held until next year. It was noted the cost of maintenance could be paid for by the housing's equipment replacement fund which would take approximately three years to build back up after this expenditure. Findings: Council consensus was to put the building siding maintenance on the list and bring back to council as much information as possible for their review, i.e. what will $125,000 buy, will the process include sandblasting or steam, etc. Vintage Pointe building maintenance needs will be included on the building maintenance schedule. There were no other changes. BUDGET WORK SESSION APRIL 19, 2004 PAGE 3 BREAK TAKEN: 7:29 P.M. WORK SESSION RESUMED: 7:40 P.M. Water and Sewer Fund: Water -- It was noted administration was supporting an increase in the rate to fund forthcoming projects. A lengthy discussion followed related to printing and binding costs for the Consumer Confidential Reports (CCR's) and the budgeted purchase of a new vactor truck. Findings: Consensus of council was for the budgeted amount for printing of CCR's be left in the budget but to do the project in the cheapest manner (which could be doing in-house} and to remove the vactor truck purchase from this budget. Sewer -- Findings: Consensus of council was to remove the purchase of vactor truck (2/3 coat ~ $163,333). There were no other changes. Water/Sewer Treatment Plant -- Findings: There were no changes. General Fund: Safety -- Findings: There were no changes. · Streets -- Findings: Consensus of council was to include $60,000 for dust control. There were no changes. Street Lighting-- Findings: There were no changes. · Dock -- Findings: There were no changes. BUDGET WORK SESSION APRIL 19, 2004 PAGE 4 · Recreation -- Director Frates reviewed the budget and noted funds were included for the purchase of a new snow machine for trail grooming. Porter suggested the funds for this purchase be taken from the Daubenspeck account. Findings: Place the funding of the snow machine (Recreation or Daubenspeck account) on the list, though the machine will be purchased. No other changes to this budget. Parks -- The addition of sidewalks to Memorial Park were discussed. Frates reported he had received an estimate of $30,000 which would add two loops and an extended sidewalk. Those funds were removed from the draft budget, however. Porter and Swamer suggested a compromise of $15,000. Gilman and Moore agreed. Findings: Consensus of council was to add $15,000 to the list for placement of additional sidewalks at Memorial Park. Frates is to bring back the cost for one loop. There were no other changes. * Beautification -- Findings: Consensus was to not make any changes to this budget. Wrap-Up: * Sem~ens was requested to provide a print out of the list of changes for the next work session · Ross requested a year-end report for the ice facility. · A fourth work session was scheduled for May 3. The work session concluded at approximately 9:00 p.m. Notes prepared by: Carol L. Freas, City Clerk AGENDA KENAI CITY COUNCIL- REGULAR MEETING APRH, 21, 2004 7:00 P.M. KENAI CITY COUNCIL CHAMBEI~ http' / / www. ci.kcnai, ak.u ,s,, ITEM A: CALL TO ORDER 1. Pledge of Allegiance 2. Roll Call 3. Agenda Approval 4. Consent Agenda *Ail items listed with an asterisk (*) are considered to be routine and non- controversial by the council and will be approved by one motion. There will be no separate discussion of these items unless a council member so requests, in which case the item will be removed from the consent agenda and considered in its normal sequence on the agenda as part of the General Orders. ITEM SCHEDULED PUBLIC COMMENTS (10 minutes) ITEM C: REPORTS OF KPB ASSEMBLY, LEGISLATORS AND COUNCILS ITEM D: PUBLIC HEARINGS . Ordinance No. 2037-2004 -- Amending KMC 23.40.080 to Provide for a Five Year Maximum Period of Reemployment for Those Persons Participat~g in the PERS Opt-Out and Reemployment Provisions of AS 39.35.150(b). Substitute Ordinance No. 2037-2004 -- Amending KMC 23.40.080 to Provide for a Five Year Maximum Period of Reemployment for Those Persons Participating in the PERS Opt- Out and Reemployment Provisions of AS 39.35.150(b). e Resolution No. 2004-15 -- Awarding a $19,800 Contract for Professional Services at Vintage Pointe Manor. e . Resolution No. 2004-16 -- Transferring $15,000 in the General Fund From Non-Departmental Contingency for Purchase of a Telephone System in the Public Safety Building. Resolution No. 2004-17 -- Approving a Contract to Proco_mm Alaska for a Vehicle Repeater System Not to Exceed $50,000. ITEM E: COMMISSION/COMMI~EE REPORTS lo Council on Aging , 3. 4. 5. 6. 7. ITEM F: , ITEM G: ITEM H: ,, ITEM I: . . , . , ITEM J: Airport Commission Harbor Commission Library Commission Parks & Recreation Commission Planning & Zoning Commission Miscellaneous Commissions and Committees a. Beautification Committee b. Kenai Convention & Visitors Bureau Board c. Alaska Municipal League Report d. Kenai Chamber of Commerce e. Arctic Winter Games MIlqUTF~ *Regular Meeting of April 7, 2004. CORRESPONDENCE OLD BUSINES~S NEW BUSINESS Bills to be Paid, Bills to be Ratified Purchase Orders Exceeding $2,500 *Ordinance No. 2038-2004-- Finding That Certain City-Owned Airport Land, Described as Tract A, Baron Park No. 12 (Preliminary Plat), Consisting of Approximately 16 Acres Adjacent to Marathon Road, is Not Required for a Public Purpose and Can Be Sold, Providing a Deed of Release is Obtained from the Federal Aviation Adm/nistration. *Ordinance No. 2039-2004 -- Finding That Certain City-Owned Airport Land, Described as Baron Park No. 6, Consisting of Approximately 15 Acres Adjacent to Marathon Road, is Not Required for a Public Purpose and Can Be Sold. *Ordinance No. 2040-2004 -- Amending KMC 7.05.010 to Provide for a Flat Tax on Aircraft. Discussion -- Request to Purchase Tract A-5 Dena'ina Point Estates. Discussion -- Set Schedule for City Manager, City Attorney and City Clerk Annual Evaluations. Discussion -- Possible Amendment and the Official Kenai Zoning Map by Rezoning and Re-Platting Several Lots in the Lawton Acres Subdivision from Conservation (C). REPORT OF THE MAYOR ITEM K: ADMINISTRATION REPORTS ,, 1. City Manager 2. Attorney 3. City Clerk ITEM L: DISCUSSION 1. Citizens (five minutes) 2. Council EXECUT~ SESSION- None Scheduled ITEM M: ADJOURNMENT KENAI CITY COUNCIL- REGULAR MEETING APRIL 2 !, 2004 7:00 P.M. KENAI CITY COUNCIL CHAMBERS http://www, ci.kenai, ak.us MAYOR JOHN J. WILLIAMS, PRESID~G MINUTES ITEM A: CALL TO ORDER ! Mayor Williams called the meeting to order at approximately 7'02 p.m. in the Council Chambers in the Kenai City Hall Building. A-1. PLEDGE OF ALLEGIANCE Mayor Williams led those assembled in the Pledge of Allegiance. A-2. ROLL CALL ,, Roll was taken by the City Clerk. Present were: Pat Porter James C. Bookey, III Rick Ross Linda Swarner John J. Williams, Mayor Joe Moore Absent was: Blaine Gilman Williams noted members of the Kenai Central High School government class were present along with their teacher, Nate Kiel. AGENDA APPROVAL Mayor Williams requested the following changes to the agenda: ADD AS: REMOVE: ADD TO: B-l, Person Scheduled to be Heard-- Mark Schrag/Dust Control D-2, Resolution No. 2004-15 -- Awarding a $19,800 Contract for Professional Services at Vintage Pointe Manor. 1-2, Purchase Orders Over $2,500 -- Drawing/Finance Department Proposed Walls MOTION: Council Member Bookey MOVED to approve the amended agenda and Council Member Swamer SECONDED the motion. There were no objections. SO ORDERED. A-4. CONSENT AGENDA KENAI CITY COUNCIL ME~ING APRIL 21, 2004 PAGE 2 MOTION: Council Member Bookey MOVED to approve the consent agenda as presented and Council Member Swamer SF~ONDED the motion. There were no objections. ~O ORDERED. ITEM B: SCHEDULED PUBLIC COMMENTS S-Xo Mark Schrag-- Request for Dust Control Mark Schrag, 312 Princess, Kenai -- Schrag stated he was an advocate for dust control applications to his neighborhood for the coming summer. He reported he spoke to several council members and understood the budget concerns, but was hoping applications could be made throughout the summer. He suggested some creative thinking, including how to partner with members of his neighborhood and others, adding, he believed the city would be receiving other complaint calls over the next few weeks. Will~ams and Public Works Manager Komelis explained the process of budgeting and arranging for use of the truck to the dust control applications, noting to do it in May and June, the funding would be needed from the current budget and there were no monies budgeted for this use in the current budget. Additionally, arrangements for the use of the truck, the product, and permits must be done early in the year. It was also noted council would be discussing the issue during budget work sessions and Schrag was encouraged to attend the work sessions in regard to his request. ~my Brask-- Student at Kenai Central High School. Brask questioned the use of oil product and asked if it was a pollutant. Komelis explained the product is a clean refined oil product and there are Department of Environmental Conservation restrictions on how much, where it is placed, the type of equipment used to applying the product, etc. ITEM C: REPORTS OF KPB ASSEMBLY, LEGISLATORS AND COUNC~ No reports. ITEM D: PI~LIC HEARINGS D-Xo Ordinance No. 2037-2004 -- Amending KMC 23.40.080 to Provide for a Five Year Maximum Period of Reemployment for Those Persons Participating in the PERS Opt-Out and Reemployment Provisions of AS 39.35.150(b). MOTION: KENAI CITY COUNCIL MEETING APRIL 21, 2004 PAGE 3 Council Member Porter MOVED for approval of Ordinance No. 2037-2004 and Council Member Moore SECONDED the motion. Fred Mcvie -- Mcvie introduced himself as a supervisor employed by the City of Kenai at the Waste Water Treatment Plant and thanked the council for adopting the ordinance to participate in the opt-out program which would save the city $10,000- $20,000 for each of thc eligible employees of the city per year who participate in the program. M cvie stated he believed amending the ordinance to a five-year max/mum period of employment would be counterproductive. He noted, if the five-year maximum is adopted, the employee will not be able to change his mind to stay longer than the five years. Because the future is an unknown, many issues could come up that would be a reason to postpone retirement. Additionally, there could be other issues come up that would make it difficult for the city to lose the employee at the end of the five-year period (shortage of qualified applicants, etc.). Mc~e also noted, if he chooses not to take the option, he could work another ten to fifteen years, which would negate the concerns expressed that participation in the opt-out program stifles upward mobility for other employees. Mc~e noted he had already started the process, compiling information, planning, doing calculations, and paperwork in order to participate in the opt-out program and was surprised by councirs decision to place a moratorium on the program. Mc~e also noted concerns stated the program produces unequal pay for the participants from the other employees. He atated, those who are eligible at this time to participate are mostly supervisors and their pay is already higher than the other employees. Council Member Moore stated the ordinance is far-reaching and when it was adopted, he did not think he fully understood what was happening. He added, he would like to include Finance Director Se_m__mens in the discussion and because Se_m__mens was absent he offered a motion to table the ordinance until the May 5, 2004 meeting. MOTION: Council Member Moore MOVED to table the ordinance until the May 5, 2004 council meeting and Council Member Porter $~OI~ED the motion. Williams noted, he understood administration was not supporting the five-year maximum period of re-employment. VOTE: I Porter Yes Gilman Absent I Ross Williams Yes Bookey Yes Swamer Moore Yes Yes Yes KENAI CITY COUNCIL MEETING APRIL 21, 2004 PAGE 4 MOTION PASSED UNANIMOUSLY. Moore reported a motion was passed to place a moratorium on the opt-out program currently adopted by council and needed to be extended past the passage date of Ordinance No. 2037-2004. MOTION: Council Member Moore MOVED to extend the moratorium to June 5, 2004, which is 30 days past the passage date of May 5. Council Member Porter 8F~ONDRD the motion. There were no objections. $O ORDERED. D-la. Substitute Ordinance No. 2037-2004 -- Amending KMC 23.40.080 to Provide for a Five Year Maximum Period of Reemployment for Those Persons Participat~g in the PERS Opt-Out and Reemployment Provisions of AS 39.35.150(b). Due to the tabling motion, no action was taken on the substitute. 9-2. Resolution No. 2004-15 -- Awarding a $19,800 Contract for Professional Services at Vintage Pointe Manor. Removed from the agenda. 9-3. Resolution No. 2004-16 -- Transferring $15,000 in the General Fund From Non-Departmental Contingency for Purchase of a Telephone System in the Public Safety Building. MOTION: Council Member Bookey MOVED for approval of Resolution No. 2004-16. Council Member Swamer SECONDED the motion and requested U~ARIMOUS CONSENT. There were no public comments. 'City Manager Snow explained the telephone system in the Public Safety Building crashed the week prior. She noted she emailed all council members, reporting an emergency existed to have repair work begin prior to consideration of a resolution. She thanked council for their understanding. Police Chief Kopp agreed the situation was critical; the 911 system continued to work; the repair/replacement work was accomplished though some problems were still be worked out, however he believed the system would be working smoothly by the next week. VOTE: KENAI CITY COUNCIL MEETING APRIL 21, 2004 PAGE 5 There were no objections. SO ORDERED. Resolution No. 2004-17 -- Approving a Contract to Procomm Alaska for a Vehicle Repeater System Not to Exceed $50,000. MOTION: Council Member Bookey MOVED for approval of Resolution No. 2004-17 and Council Member Moore SECONDED the motion. There were no public comments. Fire Chief Scott explained grant funds were received in the amount of $45,000 to purchase the repeater system and the repeaters would be installed in all emergency vehicles. Each emergency vehicle then will act as a repeater for other radioed vehicles and would enhance the broadcast from each vehicle throughout the city and outside the city limits as well. VOTE: There were no objections. SO ORDERED. ITEM E: COMMISSION!COMMITTEE REPORTS E-1. Council on Aging -- Council Member Swamer reported the Center would be hosting a lunch for volunteers on April 22. The next meeting will be held in May. E-2. Airport Commission -- Council Member Moore reported a meeting was held on April 8 at which the main topic was the result of the Borough Assembly passing a fiat tax ordinance. The Co_re_m_ ission recommended the City of Kenai forward a similar ordinance for council consideration. Other items noted were the change in the air fair's name to Kenai Peninsula Air Fair (to be held May 22); a plan was presented for a new parking system at the airport long and short term areas; and, a suggestion was made to address land sales versus leasing of airport lands. Harbor Commission -- No report. E-4. Library Commission -- Library Director dankowska noted the meeting summary of the April 6 meeting was included in the packet. Parks/is Recreation Commission -- No report. E-6. PLanning/is Zoning Commission -- Council Member Bookey reported on the meeting held on April 14 at which two public hearings were held on conditional use permit applications and both were passed. Also, a lengthy discussion wa~ held on KEN~ CITY COUNCIL ME~ING APRIL 21, 2004 PAGE 6 the anadromous stream protection ordinance. The Commission's consensus was to move ahead with a draft ordinance. Bookey noted, the Harbor Commission will hold a similar discussion at their May meeting. Bookey also reported the Commission reviewed a request to purchase Baron Park Subdivision Lots 6 and 12 and found them not needed for public purpose as well as properties in Dena'ina Point Estates. E-7. Miscellaneous Commissions and Committees E-7a. Beautification Committee -- Council Member Porter reported the Committee chose a theme at their April 13 meeting; heard a presentation from Jeff Kipp relating to his family's upgrade of property at the comer of the Spur Highway and South Spruce Street; and, discussed an area in the back of Inlet Woods Subdivision to consider for a beautification project. E-7b. Kenat Convention tk Visitors Bureau Board-- Michelle Glass, Executive Director of the KCVB reported on the meeting held on April 12 and noted the minutes of the meeting were included in the packet. She also noted, a copy of her report of her first 60 days in Kenai was included in the packet. Glass reminded council and the audience of the reception scheduled for April 30 to celebrate the opening of the su_m_mer's art show. E-7c. Alaska Municipal League Report -- Council Member Swamer and Mayor Williams reported on their attendance at the recent AML/Alaska Conference of Mayors meeting in Juneau and meetings held with area legislators. E-7d. Kenai Chamber of Commerce -- No report. E-7e. Arctic Winter Games -- Council Member Moore reported the following: · Until the by-laws arc changed, Council Member Bookey will not be able to be added as a second alternate to the Board. · A request was presented from the dog-mushers group to change the venue from the Kenai Golf Course to the Soldotna Airport area. A 30-day stay was requested by Moore to be able for the city to meet with the general manager and discuss the matter further. · Display signage was discussed for placement in Kenai and questions were asked relating to the city's sign code. City Manager Snow will be discussing the matter further with the AWG. · He was appointed to the administrative committee on finance. E7-f. Stranded Gas Committee -- Council Member Ross reported on the last meeting held and noted additional meetings will be held in Anchorage in three weeks as well as teleconferenced meetings. He noted, currently there is only one formal proposal on the table. KENAI CITY COUNCIL MEETING APRIL 21, 2004 PAGE 7 Clerk Freas was requested to add the Stranded Gas Committee as a regular committee report on the council meeting agenda. ITEM F: MINUTES F-Xo Regular Meeting of April 7, 2004 -- Approved by consent agenda. ITEM G: CORRF~PONDENCE-- None. ITEM H: OLD BUSINESS-- None. BREAK TAKEN: BACK TO ORDER: 8:23 P.M. 8:37 P.M. ITEM I: NEW BUS]NF~S I-1. Bills to be Paid, Bills to be Ratified MOTION: Council Member Bookey MOVED to pay the bills and Council Member Moore SECONDED the motion. There were no objections. SO ORDERED. Purchase Orders Exceeding $2,500 MOTION: Council Member Bookey MOVED to approve the purchase orders exceeding $2,500 and Council Member Swarner SECONDED the motion. A lengthy discussion took place relating to the purchase order for the construction of office walls for the Finance Director and Accountant. Comments included: · A request for a one-page explanatory memorandum to accompany the list for purchase orders and resolutions. · Placement of walls for the Finance Director's office was discussed in 2002, but at that time, council did not approve walls to be placed for two offices. · Quotes were requested from several people and only one person responded. · Funding for exterior painting at the library and public safety building comes from a different account than the funding for this project. · Due to confidential paperwork, discussions, telephone calls, etc. related to personnel issues, it is important for council to approve the addition of walls around KEN~ CITY COUNCIL ME~ING APRIL 21, 2004 PAGE 8 the accountant's area. It is not practical to move to another area to discuss confidential issues when the materials, information, files, etc. are in that area. Ross noted, the new federal confidentiality rules require an area where confidentiality can be obtained and he supported the project. Porter stated she was concerned the approval was made in 2002 for one office and the time it has taken for the project to be carried out. She stated she would support the project, but wanted a guarantee the cost would not exceed $6,270. Williams stated he was in full support of moving ahead with the project for both offices as soon as possible. VOTE: There were no objections. SO ORDERED. I-3. Ordinance No. 2038-2004-- Finding That Certain City-Owned Airport Land, Described as Tract A, Baron Park No. 12 (Prelim/nary Plat), Consisting of Approximately 16 Acres Adjacent to Marathon Road, is Not Required for a Public Purpose and Can Be Sold, Providing a Deed of Release is Obtained from the Federal Aviation Administration. Introduced by consent agenda. 1-4. Ordinance No. 2039-2004-- Finding That Certain City-Owned Airport Land, Described as Baron Park No. 6, Consisting of Approximately 15 Acres Adjacent to Marathon Road, is Not Required for a Public Purpose and Can Be Sold. Introduced by consent agenda. Ordinance No. 2040-2004-- Amending KMC 7.05.010 to Provide for a Flat Tax on Aircraft. Introduced by consent agenda. Discussion -- Request to Purchase Tract A-5 Dena'ina Point Estates. Concerns were noted by council of storm drain easements on the property and the purchase applicant, Bryan Lowe stated he was aware of the easements and was satisfied the property would be large enough for his proposed use, i.e. a restaurant. Lowe also noted he understood there was no access to water/sewer unless he obtains approval from the neighboring property owners. He stated, if that is not possible, he intended to place a DEC-approved well and sewer system. KI~N~ CITY COUNCIL ME~ING APRIL 21, 2004 PAGE 9 Williams noted an ordinance would need to be prepared stating the property was not required for public purpose for council consideration. He requested the ordinance be introduced for the May 5 meeting with public hearing set for May 19. He also requested a report indicating the adjacent properties and their ownership be included with the Illiamna Road lots listed as well. Bookey stated he wanted Lowe to be aware of the problems that could arise with his project. Lowe stated he was aware. Attorney Graves advised it would not be known if Lowe will be the purchaser at the May 5 or 19 meeting becauae the property will need to go out to bid. If Lowe is the purchaser, he will need a conditional use permit for the use of the property as well. Discussion -- Set Schedule for City Manager, City Attorney and City Clerk Annual Evaluations. Council set evaluations for the City Attorney and City Clerk for May 5, 2004. The City Manager's evaluation was set for May 19, 2004. Discussion -- Possible Amendment and the Official Kenai Zoning Map by Rezoning and Re-Platting Several Lots in the Lawton Acres Subdivision from Conservation (C). Council Member Swamer explained she requested this discussion be placed on the agenda because of the recent denied request made to purchase a portion of property known as the "Dust Bowl." She noted, there is a problem of availability of property on that side of town for small businesses. She noted, the Lawton Acres area could provide lots for small businesses, however that property is currently zoned conservation. Discussion followed regarding whether the process should begin to rezone a portion of Lawton Acres to allow commercial development. Comments included: Porter suggested it was time to move forward to rezone the area from the gully to the comer of Walker and Spur Highway to allow retail businesses to develop in that area. The zoning to conservation took place in 1984 and a lot has changed since then. · Bookey referred to the historical information included in the packet regarding the rezone to conservation and noted concerns that opening a small area could be problematic with spot-zoning issues; the property would require platting; prior use of some of the Lawton Acres property, could be problematic; there were many good reasons why the rezone to conservation was done; and he believes there will still be many who will not support a change. ·. Moore stated he was willing to discuss the matter further because the property is prime commercial property in Kenai. KENAI CITY COUNCIL MEETING APRIL 21, 2004 PAGE 10 · Ross stated he was willing to forward the issue to the Planning & Zoning Commission for review; suggested administration put together preliminary ideas of how the property could be platted, as well as whether the property is deep enough to place a frontage road or whether access would have to be off Lawton Drive. · Swarner stated, if the property is rezoned, she would want it to be developed within two to three years of purchase. · Williams requested the frontage road information be prepared and added, he was personally opposed to opening the property to commercial development because of reasons stated when the property was original zoned conservation. Nate Kiel, 404 Lawton Drive, Kenai -- Kiel stated he has mixed emotions about development around the area where he lives. He and his wife put in a proposal to purchase property across the highway from Lawton Acres and were unsuccessful. He added, he believed development on that side of the road would have less impact on residential areas, however he understood why council did not want to proceed with that sale. Kiel added, his frusWafion had been in finding commercial real estate on the east side of town, i.e. either it is not available or not for sale. He stated, he felt the rezoning and responsible development of a portion of Law-ton Acres would be worth exploring. The discussion continued, but without knowing where access would be, it was the consensus of council to place the issue on the next agenda for preliminary discussion after exploring depth of the properties, access suggestions, etc. ITEM J: REPORT OF THE MAYOR -- Mayor Williams noted the following: · He will travel to Washington, DC to attend the Police Memorial dedication and meet with congressional delegation staff on several issues, i.e. pursuing a different strategy for funding for the bluff restoration/protection project (reallocation of funds from other grant projects; a 20-year bond, to be repaid by raising the cap on sales tax to $1,000; funds available upon paying off the current bond which is scheduled for October, etc.; because of new Corps representatives and the project design already prepared by Petratrovich, Nottingham & Drage, encourage funds to come directly to the City instead of through the Corps, etc.) Council had no objections to Williams discussing these ideas with congressional staff. · Attended the "Real Heroes Breakfast" at which Richard and Mary Warrington received the "Educator Award" for their work with the brain injury awareness group. · Will meet with Borough representatives relating to the Pebbles Mine project. ITEM K: ADMINISTRATION REPORTS KENAI CITY COUNCIL MEETING APRIL 21, 2004 PAGE 11 K-1. City Manager-- City Manager Snow reported the following: · She attended a meeting with Borough Mayor Bagley and other Peninsula city managers at which they discussed several issues, i.e. E-911, sales tax cap raise (Bagley is to bring the issue forward in May and they will need input from the dries); South Peninsula Ferry proposal; animal control issues; statewide sales tax; PERS opt- out program, etc. · She will be out of town from April 28-May 2 and Chief Kopp will be Acting City Manager. · The department head monthly reports were included in the packet. She noted the memorandum from Airport Manager Cronkhite in which she discussed the proposed changes to parking areas at the airport terminal. She requested coundl to contact her if they would like additional information and with their comments. The design and bid information will be brought back for council consideration. Porter stated she was in favor of the changes. Cronkhite stated she would provide a rough cost estimate and drawing. There were no objections from council to discuss the matter. Williams noted a comment from Assembly Member Superman relating to contracting law enforcement with the City for the Nikiski area. Snow stated she and Chief Kopp had already done some preliminary review. Chief Kopp stated a lot of thought had gone into the issue already and the city would not.do it unless it is in the city's interest to do so. A formal discussion on the issue had not yet taken place. Swarner stated she liked the statistical information included with some of the reports, but would like comparisons from the prior year included. Moore asked Library Director dankowska for a report on the progress of the software changeover at the library. Jankowska stated the changeover was progressing and training would begin next week. Additionally, they would be transferring to the new server and going live by June 6. K-2. Attorney -- Attorney Graves reported the following: · Planning & Zoning Commission's public hearing on the adult-oriented businesses was scheduled for April 28. The ordinance should be included on the next council meeting agenda for introduction at the May 5 meeting. · They have received calls from Palmer and Valdez relating traffic citation processing. Porter stated her concerns the pond along Marathon Road has had orange mesh left in it from when blocks of ice were removed for use at the Peninsula Winter Games. She noted she was very concemed about safety of those who swim in the pond. Williams suggested a representative of the Peninsula Winter Games be called to attend to the issue. Snow reported she investigated the issue the last time it had been brought up. KEN~ CITY COUNCIL ME~ING APRIL 21, 2004 PAGE 12 She learned the property is controlled by the University of Alaska Fairbanks and she spoke to a representative there about the issue. She was told a local representative would be in contact to discuss the matter. City Clerk-- No report. ITEM L: mSCUSSXON, L-1. Citizens Marion Nelson -- She noted the following: · She has been appointed to a Scenic By-Ways committee and she is strongly encouraging the loop to Nikiski be added. · The Milepost will begin round table discussions about highway partners and request the mile markers be replaced. · Asked for help in identifying property the traveling carnival might be able to use. L-2. Council Bookey-- No comments. Swarner- Questioned the sweeping of the bike paths and Public Works Manager Komelis gave an update of the progress. Moore -- No comments. Porter -- Questioned ff the Glad Realty building in Old Town had been condemned. Williams reported the owner plans on moving the building. Public Works Manager La Shot was asked to investigate the issue and report back. Ross -- No comments. EXF~UTIVE SESSION- None Scheduled ,,! ITEM M: ADJOURNMENT The meeting adjourned at approximately 10:16 p.m. Minutes transcribed and prepared by: Carol L. Freas, City Clerk Council Present: Staff Present: Others: KENAI CITY COUNCIL BUDGET WORK SESSION KENAI CITY COUNCIL CHAMBERS APRIL 27, 2004 6:00 P.M. MAYOR JOHN J. WILLIAMS, PRESIDING Jim Bookey, Pat Porter, Linda Swarner, Joe Moore, Blaine Gilman, Rick Ross, John Williams Carol Freas, Linda Snow, Larry Se~mens, Cary Graves, Ewa Jankowska, Scott Walden, Jack La Shot, Chuck Kopp, Wannamaker, Rachael Craig, Keith Komelis, Bob Frates, Scott McBride, Mike Wichman, Randy Komfield, Lee Gattenby Michelle Glass (KVCB) The work session opened at approximately 6:04 p.m. Mayor Williams gave an update on the Pebble Mine Project and suggested a reception be planned for 60-80 people, including all the contractors, company officials, Chambers of Commerce representatives, elected officials, etc. He also suggested the contractors and company officials be toured around the area, including the airport facilities and perhaps Rig Tenders Dock, etc. Williams suggested the cost for the reception be split between the Airport and General Funds. Williams added, he'd like the reception scheduled as soon as possible. General Fund~ Continued.'. · Library -- Jankowska reviewed the budget and its changes from the current budget, i.e. increases in books, funds for replacement of two computers, increase in travel, increase in Miscellaneous. Porter suggested $5,000 be taken from the travel budget and the removal of additional library hours as she wanted to find funds for additional overtime in the Police Department budget and dust control applications. A brief discussion took place relating to lapse and cuts made in the current year's budget. Bookey stated he also would like to cut funds in travel and the 290 additional hours. Swarner and Gilman stated their preference to have the library open on Sundays. It was pointed out, opening the library on Sundays would require a half-time position and $25,000 to cover those salary costs. Bob Peters -- Stated his support of the library budget and noted the participation of the Friends of the Library and volunteer program helps to support the library and in doing so, there is less requested from the General Fund. Findings: Consensus was to not fund Sunday openings. There were no changes made to this budget. COUNCIL BUDGET WORK SESSION APRIL 27, 2004 PAGE 2 · Fire Department -- Chief Walden reviewed changes made to the budget compared to the current budget. It was noted $5,000 would be removed from the Machinery/Equipment account which had been earmarked for the Fire Department's portion of a new phone system. Since the phone system has already been replaced, the funds will not be required. Similar reductions will also be made in the Police and Communications budgets. It was also noted much of the equipment in the old ambulance will be removed and placed in the new ambulance. Also, some funds will come from the Borough for spruce bark beetle mitigation, however the level of funding is not know. Walden noted the Department of Forestry will have a Hot Shot crew working around some neighborhoods and trails removing trees. The Forestry Department is also appl.ving for a grant to fund removal of trees in the gullies. Findings: There were no changes (except the new phone system funding). · Kenai Police Department -- Chief Kopp reviewed the changes in the budget and noted the increases included were officer-safety related, i.e. cell phones, · two new patrol cars, taser purchases, etc. A brief discussion took place relating to whether an additional officer position or additional overtime funds should be added to this budget. It was noted, there are funds included in the personnel services portion of the budget to cover additional overtime needs. If those funds are depleted, administration would bring forward a resolution to transfer funds from contingency to cover additional costs. Discussion also took place regarding the purchase and tra/ning/use of a canine unit. Kopp stated, though they were not requesting a dog, there is department support and they would not object if that is the direction council wants to go. Findings: There were no changes (except the new phone system funding). Communications -- There were no changes (except the new phone system funding). Animal Control -- Chief Kopp noted a fee schedule is being developed for a~_imals taken in from outside the city. He also noted, one of the department trucks will be replaced in this budget. Findings: There were no changes. BREAK TAKEN: RESI~ED: 7:55 P.M. 8:05 P.M. COUNCIL BUDGET WORK SESSION APRIL 27, 2004 PAGE 3 Planning & Zoning-- Findings: There were no changes. · FindinEs: Public Works Adm/nistration -- There were no changes. Shop -- Findings: There were no changes. · Buildings -- Public Works Manager La Shot noted it was his intention to do the exterior library and public safety building painting from the current budget. Then use the new year's budget for pa/nting the gym floor at the recreation center and painting of the Visitor Center's exterior. Findings: There were no changes. Legal -- Attorney Graves noted the budget included funds to cover the hiring of a code enforcement officer. Findings: There were no changes. City Manager-- Findings: There were no changes. · Lands -- Findings: There were no changes. · Non-Departmental -- Council Member Swamer suggested the city's website be updated completely. An estimate for an overhaul was suggested as $10,000. Findings: There were no changes. · Finance -- Findings: There were no changes. COUNCIL BUDGET WORK SESSION APRIL 27, 2004 PAGE 4 · Clerk -- Clerk Freas noted council had briefly discussed a desire to restore commission/committee meetings to a monthly schedule. She added, if council desired to change the schedule to monthly and have an attendant to take notes instead of the department representative, this budget did not reflect funding to cover those costs. She added, the amount of funding would also depend on the style of minutes they preferred, i.e. semi-detailed or meeting summaries. Findings: Consensus was to add contract secretary/meeting schedule on the list to discuss further at the May 3 work session. Funding information for both scenarios was requested. There were no changes to the budget presented. Kenai Visitors & Convention Bureau -- Findings: There were no changes to this budget. · Equipment Replacement Fund Schedule -- It was noted the Fund did not include funds for police car replacements. It was also noted the bucket truck would need replacing in the future due to inadequate lift capacity, cracks in the boom, etc. Findings: There were no changes to this budget. WRAP-UP: Comments included: · A letter of request for a $5,000 donation for CARTS was reviewed. Consensus of council was to not fund the request. · Suggested additions on the list totaled $70,000. · An ordinance will be brought forward to appropriate funds to cover the cost for exterior maintenance of the Vintage Pointe facility. · The list of changes and costs was requested to be prepared and distributed to council prior to the budget work session. · A brief discussion took place relating to public relations and marketing of the city and their importance to its future. The work session ended at approximately 9:45 p.m. Notes prepared by: Carol L. Freas, City Clerk Z 0 ul u.J z LU ILl 0 0 0 0 0 Z o ~ ~ ~ o o z z o 0 _~ z w ::::) ~ o_ ~ w n,' 1~ L~ LU LU LU o LU a. ~: ,~. r~ Z~ IJJ H- Z o n,,' :::) 0 w c/') I- if, LU "1'- 0 c/) :::) z '1 co 0 '~' 0 Ijj IJJ ~ LU III Z uJ (.) Z Z u.I I- Z Z u.I n,' ILl I-- I-- r'~ 0 Z ILl Z W X Z CITY OF KENAI ORDINANCE NO. 2041-2004 Suggested by: City Co~, ..... AN ORDINANCE OF THE COUNCIL OF THE CITY OF KEN~, ALAS~, FINDING CERTAIN CITY-OWNED LAND, DESCRIBED AS TRACT A-5, DENA'INA POINT ESTATES, CONSISTING OF 9.630 ACRES, IS NOT REQUIRED FOR A PUBLIC PURPOSE AND CAN BE SOLD. WHEREAS, the City of Kenai owns the property identified as Tract A-5, Dena'ina Point Estates; and, WHEREAS, Ordinance No. 927-84 set the property aside for public use and declared that it not be made available for sale; and, WHEREAS, the City has received a request asking that the designation be changed and the referenced property now be made available for sale; and, WHEREAS, the Kenai Planning and Zoning Commission has determined that the property is not needed for a public purpose and recommends it be made available for sale; and, WHEREAS, KMC 22.05.010 and 22.05.030 require that disposal or sale of lands shall be made only when, in the judgment of the City Council, such lands are not required for a public purpose; and, WHEREAS, the property would be made available for competitive bid sale at not less than the fair market value. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that certain City-owned land, described as Tract A-5, Dena'ina Point Estates, consisting of 9.630 acres, is not required for a public purpose. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA this 19th day of May, 2004. ATTEST: JOHN J. WILLIAMS, MAYOR C~rol L. Freas, City Clerk Attachment (4/26/2004)kh Introduced: Adopted: Effective: May 5, 2004 May 19, 2004 June 19, 2004 Property in Dena'ina Point Estates .... . ... JETTISON JUNCTION SUBDIVIS ON REDOUBT Shaded Lots - City Owned 'I- LU Z 0 Z ZZ 0 -- -- ooo~oooowwooooo~ ~~~~ooo -- _ ~~~_ ~xxo~x~x ~~~ ~~ooooooo~~ T18 NEll4SEI/4 uJ 30 7 '26 2a ~ 18 ... 15 '}21 16 .~ 17 2'3 22 24 TR. A.,, CHdRCH O~ .G.'OD REPLAT . _,.G'~' ,.,..~ ' 14. I ./~..0.~,,~.. -'"' / 5 T. LT. AMNA Rb 26 2,~ ~-.... 11 12 ~ '" ' t,2",10 ' , 22 ..~<.____~_~, , /'"'21 _ 8 ..--" /' 20/' "14 ~, 15 19 ... .. 17' 10 3 12 %~.' ' , 29 · ~'' 28 27 26 25 ,, 15 35 8 ,~ 8 ;.,,3''9 14 2 ........ ~"'~ 13 34 9 $ ,~. 33 10 32 ~ 31 12 PARK 33 . 36 y ,.. '., 13 24 123:2221201918 i '9~ 5PUI~ DR ,,,' 28 i27, t20 i 25.24 23 i22 · j. 2120 '.~ 40 !41 1421 '43 44 45!46 47 48 .49 50 UNSUBDIVlDED REMAINDER Property Owners & Shaded - 300 foot radius TR. B-4 "'\ "'X TR. B-1 ' TR. C-3 Suggested by: Administr~ City of Kenai ORDINANCE NO. 2042-2004 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA INCREASING ESTIMATED REVENUES AND APPROPRIATIONS BY $672 IN THE GENERAL FUND LIBRARY DEPARTMENT FOR A STATE GRANT. WHEREAS, the City of Kenai received a $672 grant from the State of Alaska for interlibrary book loans; and, WHEREAS, it is in the best interest of the City of Kenai to purchase library books with this grant. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA that estimated revenues and appropriations be increased as follows: General Fund Increase Estimated Revenues: State Grants $ 672 Increase Appropriations: Library- Books $ 672 PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 19th day of May, 2004. ATTEST: JOHN J. WILLIAMS, MAYOR Carol L. Freas, City Clerk Approved by Finance: (o4/ 7 / o04) hl Introduced: Adopted: Effective: May 5, 2004 May 19, 2004 May 19, 2004 Suggested by: Administr ~ ~ 5 City of Kenai ORDINANCE NO. 2043-2004 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA INCREASING ESTIMATED REVENUES AND APPROPRIATIONS BY $30,000 IN THE AIRPORT TERMINAL ENTERPRISE FUND FOR SHORT TERM PARKING LOT RENOVATIONS. WHEREAS, the long-term parking lot at the Kenai Airport Terminal is often overcrowded; and, WHEREAS, more than 20% of the vehicles parked in long-term are there less than two days; and, WHEREAS, the short term parking lot is under utilized; and, WHEREAS, the proposed changes will provide improved customer service and increased parking revenue; and, WHEREAS, funds are available in retained earnings. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA that estimated revenues and appropriations be increased as follows: Airport Terminal Enterprise Fund. Increase Estimated Revenues: Appropriation of Retained Earnings $30,000 Increase Appropriations: Improvements other than Buildings $30,000 PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 19th day of May, 2004. ATTEST: JOHN J. WILLIAMS, MAYOR Carol L. Freas, City Clerk Approved by Finance' (04/28 / 2004) hl Introduced: May 5, 2004 Adopted: May 19, 2004 Effective: May 19, 2004 nal Municipal Airport Memo To: From: Larry Semmens- Acting City Manager Rebecca Cronkhite- Airport Manager Date: April 29, 2004 Subject: Terminal Vehicle Parking Lot Changes At the Apdl 21 Council meeting, City Manager Snow reported on a proposed project to reconfigure the short-term parking lot at the Kenai Municipal Airport Terminal. This proposal was fon~arded in response to Council's request to assess possible revenue sources and the ongoing issue of overcrowding in the terminal long-term parking lot. The changes depicted in the attached drawing modify the parking configuration and provide 19 short-term spaces directly in front of the terminal. I propose to sign these spaces 'limit 2 hours free parking". The remaining 80 spaces will be reserved for 2-48 hour parking with a cost of $2.00 for 2-24 hours and an additional $2.00 for 24-48 hours. Vehicles parked in this lot over 48 hours will be fined or towed. Pay boxes installed at the ends of the rows will have slots for the parking space number that allows payment without the hassle of filling out a payment envelope. Them are several commercial products available for this type of parking. A review of parking lot receipts from the long term-parking lot revealed over 30% of the cars in long-term are them for one or two days. The proposed system will move those cars to the short-term lot; freeing up spaces in the very crowded long-term lot. An informal count of vehicles in the short-term lot revealed 20-50 cars a day utilizing the lot for a period of 2 - 18 hours. Charging for parking in excess of 2 hours will earn somewhere between $15,000 and $30,000 additional revenue in the first year. Revenue gains in the first year will be offset by the cost of modifications that are estimated at $30,000. Airport and City employees will provide as much of the equipment and labor as practical in the interest of reducing that amount by up to one third. There will also be the issue of employee time for enforcement. New employees are not requested. Current employees, myself included, will conduct monitoring, enforcement, and ticketing. If Council approves the funding, bids will be solicited for painting, signage, and asphalt work. Attachment www.ci.kenai.ak, us. ONDllWd i~13J, J,1101~ ~0 0~ o~. - ' ii ,/ - 3AItiQ .o~:1: r .'*;' //'-- .&! -" .0~ .0~ .0~ .0; .0~ .. // .,., - - ,- - ! ....... -~i, -o ° i -J ~.. - - - "',,, · ' ~ "ii i ; -;; : : iu = : :: · --~ .-fl. -- -- .... :: ~ z .~ ; - - . , - _ · , o o =_ ~ '.~'- :: : ; ~_ ~ ~- I - - l! '" ' j ~ al111 IIM ' ! ' a I'l " : ~ . _ - :; _3 - ! ' , .1 - _u - :: ;; , ; U~ ~ - . . . : . :: " . -4 ~//////////~ ~ ~,,,,,,,,,i,,,~,,,,,i~' ~ ~,,,,,,,,,i,,,,,,,~,~ iti :-1 ~ ~_ ~_ ~ '=. '= i'oI ~ : ~ r"l//:.".", ill -. .. ., ..., l. ~ · · .:,, I i! ¢i li i:i.-...- I I: m '- '- '-- ~ ~' "Z : - ::~ ' - t ' -- :: : -..' · · ,,, .-~!: : ii ,. , .] :::: !il 'J! " :-I'~*- 1~ ~- I\~-° I~ ?/ .' .- .-' .' ill _ ~I .: - - T - ~':::'.....~ ;; . ~ , ,,. :o..., , ',,, \ .,, ~' - ..... ~ ~. ~:::: ~,: i:' d-lC--.- ~ a~ ~o~ \ i ~; :.:.:: :' /! m e: """'.'- ' -- · ---' .--. --'.--' .--. --". ,"'T''--. --' --- ::" , '/ ' [~ '.::: :::::':'-':.'.:'..~'..'.z.":'.'__'..z.£'.".~'.'i::;'~:~.:::':.::~.:.';:::::. ~ · .. '" i J '. i -..'.-.! 0 Suggested by: Administration CITY OF KENAI ORDINANCE NO. 2044-2004 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING TITLE 14 OF THE ~NAI ZONING CODE BY ADOPTING KMC 14.20.175 FOR THE REGULATION OF ADULT BUSINESSES. WHEREAS, adult businesses require a special supervision from the public safety agencies of the City in order to protect and preserve the health, safety, and welfare of the patrons of such businesses, as well as citizens of the City; and, WHEREAS, the United States Supreme Court held in Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) that communities were entitled to rely on the experience and finding of other communities in dealing with adult businesses and on the findings of Northend Cinema, Inc. v. Seattle, 90 P.2d 709 (1978); and, WHEREAS, the city has relied upon the following studies in addressing the need for an adult business ordinance' 1) Crime Impact Studies by Municipal and State Governments on Harmful Secondary Effects of Sexually Oriented Business, National Law Center for Children and Families (summarizing the experience and fmding of 32 communities throughout the nation); 2) Report of the Minnesota Attorney general's Working Group on the Regulation of Sexually Oriented Business (June 6, 1989); and 3) Dana M. Tucket, Preventing The Secondary Effects of Adult Entertainment Establish- ments: Is Zoning The Solution?, Journal of Land Use and Environmental Law, Vol. 12.2, 1997; 30 Kelly Holsopple, Stripclubs According to Strippers: Exposing Workplace Sexual Violence (1998} available at ualao, uri. edu/ artsci/ wms/ huqhes/ stripc l . htm; and, WHEREAS, there is convincing, documented evidence that adult businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the residential areas adjacent to them, causing increased crime and downgrading of property values, and, WHEREAS, it is recognized that adult businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are located in dose proximity to each other, thereby contributing to urban blight and downgrading the quality of life in the adjacent area; and, WHEREAS, the City Council desires to minimize and control these adverse effects, thereby protecting the health, safety, and welfare of the citizenry; protecting the citizens from increased crime; preserving the quality of life; and preserving the property values and character of surrounding neighborhoods; and, WHEREAS, the City Council has determined that locational criteria alone do not adequately protect the health, safety and general welfare of the citizens of Kenai; and, Ordinance No. 2044-2004 Page 2 of 5 WHEREAS, it is not the intent of this ordinance to suppress any speech activities protected by the constitutions of the United States or the State of Alaska but rather to enact a content-neutral ordinance, which addresses the secondary effects of adult- oriented businesses. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA that KMC 14.20.175 is enacted set out as follows. Title 14 PLANNING AND ZONING 14.20.175 Adult Businesses (a) Defmitions. For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning: 1) "Adult bookstore" means a commercial establishment where at least 51 percent of its interior floor area or retail merchandise is devoted to the sale, rent, lease, inspection, or viewing of books, films, video cassettes, DVD's, magazines, other periodicals or digital presentations whose dominant theme is the actual or simulated specified sexual activities, display or exhibition of specified anatomical areas, removal of articles of clothing, or total nudity. 2) "Adult cabaret" means a restaurant, coffee house, bar or cabaret which features topless dancers, strippers, male or female impersonators, or similar entertainers who provide live adult entertainment for commercial purposes. 3) "Adult entertainment" means any motion picture, live performance, display, or dance of any type whose dominant theme is actual or simulated specified sexual activities, display or exhibition of specified anatomical areas, removal of articles of clothing, or total nudity, offered for commercial purposes. 4) "Adult mini-theater" means an enclosed building with a capacity of less than 50 persons used for displaying adult entertainment through films, video, or other motion pictures for commercial purposes. 5) "Adult motion picture theatre" means an enclosed building with a capacity of 50 or more persons used for displaying adult entertainment through films, video, or other motion pictures for commercial purposes. 6) "Adult business" means any adult bookstore, adult cabaret, adult mini-theater, or adult motion picture theater. 7) "Commission" means the City of Kenai Planning and Zoning Commission. 8) "Operator or manager" means any natural person responsible for the actual operation and management of an adult business. 9) "Sexual conduct" means acts of: i. Sexual intercourse within its ordinary meaning, occurring upon any penetration, however slight; or Ordinance No. 2044-2004 Page 3 of 5 (b) (c} ii. Any penetration of the vagina or anus, however slight, by an object; or iii. Any contact between persons involving the sex organs of one person and the mouth or anus of another; or iv. Masturbation, manual or instrumental, of oneself or of one person by another; or v. Touching of the sex organs or anus, whether clothed or unclothed, of oneself or of one person by another. 10) "Specified anatomical areas" means: i. Less than completely and opaquely covered human genitals, pubic region, buttocks, and female breast below a point immediately above the top of the areola; and ii. Human male genitals in a discernible erect state, even if opaquely covered. 11) "Specified sexual activities" means simulated or actual: i. Display of human genitals in a state of sexual stimulation or arousal; ii. Acts of masturbation, sexual intercourse, sodomy, bestiality, necropbi!ia, sadomasochistic abuse, fellatio, or cun~ilingus; and iff. Fondling or erotic touching of human genitals, pubic region, buttocks, or female breasts. Location Requirements. 1} Adult Businesses may be located only in the CC, CO, IL and IH zones. Additionally, no adult business may be located within five hundred {500} feet of another adult business, a church or other place of worship or public or private school. The distances specified in this section shall be measured in a straight line, without regard to intervening structures, from the nearest point of the premises in which the proposed adult business is to be established to the nearest property line of a use listed above. Development and Operation Standards. The following development and operation standards shall apply to adult businesses: 1) No adult business shall be located in any temporary or portable structure. 2) Trash dumpsters shall be enclosed by a sc~eenin§ enclosure so as not to be accessible to the public. 3) No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque coverin§ at all times. Permanent barriers shall be installed and maintained to screen the interior of the premises from public view for each door used as an entrance or exit to the business. S} The entire exterior grounds, including the parking lot, shall be lighted in such a manner that all areas are clearly visible at all times. Signage shall be govemed by KMC 14.9.0.220 (Signs). 4) Ordinance No. 2044-2004 Page 4 of 5 7) 8) 9) 10) 11} 12) 123) 14) 15) 16) 17) All entrances to an adult business shall be clearly and legibly posted with a notice indicating that persons under 18 are prohibited from entering the premises. No adult business shall be operated in any manner that permits the observation of any persons or material depicting, describing or related to specified sexual activities or specified anatomical areas, inside the premises, from any public way or from any location outside the building or area of such establishment. This provision shall apply to any merchandise, display, decoration, sign, show window or other opening. Each adult business shall conform to all applicable laws and regulations. The adult business shall not operate or be open between the hours of 2:00 a.m. and 9:00 a.m. Amplified sound may not be broadcast outside the building and structures used for the adult business. No tip or gratuity offered or accepted by an adult entertainer may be offered or accepted prior to any live performance, dance or exhibition provided by the adult enterta~er. No adult entertainer performing live upon any stage shall be permitted to accept any form of gratuity offered directly to the entertainer by any member of the public. Any gratuity offered to any adult entertainer performing live upon any stage must be placed into a receptacle provided for receipt of gratuities by the business or through a manager on duty on the premises. Any gratuity or tip offered to any adult entertainer conducting any live performance, .dance or exhibition in or about the non-stage area of the adult business shall be placed into the hand of the adult entertainer or into a receptacle provided by the adult entertainer, and not upon the person or into the clothing of the adult entertainer. No live entertainer shall engage in acts of sexual conduct. An adult cabaret shall provide separate dressing room facilities for performers, which are exclusively dedicated to the performers' use. And adult cabaret shall provide an entrance/exit for performers, which is separate from the entrance/exit used by patrons. An adult cabaret shall provide access for performers between the stage and the dressing rooms, which are completely separated from the patrons. If such separate access is not physically feasible, the cabaret shall provide a minimum three- foot wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers that is capable of preventing any physical contact between patrons and performers. All indoor areas of the adult cabaret where patrons or members of the public are permitted, excluding restrooms, shall be open to view by management at all times. Ordinance No. 2044-2004 Page 5 of 5 (d) (e) If any portion of this chapter, or its application to any person or circumstances, is held invalid, the validity of this chapter as a whole, or any portion thereof, and its application to other persons or circumstances, shall not be affected. Non-conforming Use: Any adult business operating at the time of the effective date of this ordinance shall be considered a non-conforming use under KMC 14.20.050. However, a business that only periodically engages in adult business activity may continue to operate as a non-conforming use at the same level of activity it operated for the one-year period prior to the adoption of this ordinance. For example, a bar or restaurant that operated as an adult cabaret five times in the previous one-year period would be allowed to operate as a non-conforming use five times per year. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 19th day of May, 2004. ATTEST: 'Carol L. Freas, City clerk JOHN J. WILLIAMS, MAYOR Introduced: Adopted: Effective: May 5, 2004 May 19, 2004 June 19, 2004 (4129/04- sp) CITY OF KENAI PLANNING & ZONING COMMISSION PZ04-15 A RESOLUTION OF THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI, ALASKA, RECOMMENDING TO THE COUNCIL OF THE CITY OF KENAI, ALASKA THAT TITLE 14 OF THE KENAI ZONING CODE BE AMENDED BY ADOPTING KMC 14.20.175 FOR THE REGULATION OF ADULT-ORIENTED BUSINESSES. AMENDING TITLE 14 OF THE KENAI ZONING CODE BY ADOPTING KMC 14.20.175 FOR THE REGULATION OF ADULT BUSINESSES. WHEREAS, adult businesses require a special supervision from the public safety agencies of the City in order to protect and preserve the health, safety, and welfare of the patrons of such businesses, as well as citizens of the City; and WHEREAS, the United States Supreme Court held in Renton v. Playtime Theatres, Inc., 475 U.S. 41 {1986} that communities were entitled to rely on the experience and finding of other communities in dealing with adult businesses and on the findings of North. end Cinema, Inc. ~. $,attle, 90 P.2d 709 (1978}; WHEREAS, the city has relied upon the following studies in addressing the need for an adult business ordinance: 1) Crime Impact Studies by Municipal and State Governments on Harmful Secondary Effects of Sexually Oriented Business, National Law Center for Children and Families (summarizing the experience and finding of 32 communities throughout the nationl; 2) Report of the Minnesota Attorney general's Working Group on the Regulation of Sexually Oriented Business (June 6, 1989); 3) Dana M. Tucker, Preventing The Secondar~ Effects of Adult Entertainment Establishments: Is Zoning The Solution.>, dournal of Land Use and Environmental Law, Vol. 12.2, 1997; 30 Kelly Holsopple, Stripclubs According to St~ppers: Exposing Workplace Sepal Violence (1998) available at www. uri. edu/ artsci/ wms/ hughes/ stripc l . htm WHEREAS, there is convincing, documented evidence that adult businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the residential areas adjacent to them, causing increased crime and downgrading of property values, and WHEREAS, it is recognized that adult businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to urban blight and downgrading the quality of life in the adjacent area; and WHEREAS, the Planning and Zoning Commission desires to minimize and control these adverse effects, thereby protecting the health, safety, and welfare of the citizenry; protecting the citizens from increased crime; preserving the quality of life; and preserving the property values and character of surrounding neighborhoods; and ?ZC4.- ! - [:'age 2 of 5 WHEREAS, the Planning and Zoning Commission has determined that locational criteria alone do not adequately protect the health, safety and general welfare of the citizens of Kenai; and WHEREAS, it is not the intent of this resolution to suppress any speech activities protected by the constitutions of the United States or the State of Alaska but rather to enact a content-neutral ordinance, which addresses the secondary effects of adult- oriented businesses. NOW, THEREFORE, THE PLANNING AND ZONING COMMISSION RECOMMENDS THAT THE COUNCIL OF THE CITY OF KENAI, ALASKA AMEND KMC 14.20.175 set out as follows. Title 14 PLANNING AND ZONING 14.20.175 Adult Businesses (a) Definitions. For the purpose of this chapter, the follow/ng definitions shall apply unless the context clearly indicates or requires a different meaning: 1) "Adult bookstore" means a commercial establishment where at least 51 percent of its interior floor area or retail merchandise is devoted to the sale, rent, lease, inspection, or viewing of books, f~ms, video cassettes, DVD's, magazines, other periodicals or digital presentations whose dominant theme is the actual or simulated specified sexual activities, display or exhibition of specified anatomical areas, removal of articles of clothing, or total nudity. 2) "Adult cabaret" means a restaurant, coffee house, bar or cabaret which features topless dancers, strippers, male or female impersonators, or similar entertainers who provide live adult entertainment for commercial purposes. 3) "Adult entertainment" means any motion picture, live performance, display, or dance of any type whose dominant theme is actual or simulated specified sexual activities, display or exhibition of specified anatomical areas, removal of articles of clothing, or total nudity, offered for commercial purposes. 4) "Adult mini-theater" means an enclosed building with a capacity of less than 50 persons used for displaying adult entertainment through films, video, or other motion pictures for commercial purposes. 5) "Adult motion picture theatre" means an enclosed building w/th a capacity of 50 or more persons used for displaying adult entertainment through films, video, or other motion pictures for commercial purposes. 6) "Adult business" means any adult bookstore, adult cabaret, adult mini-theater, or adult motion picture theater. 7) "Commission" means the City of Kenai Planning and Zoning Commission. PZ04-15 Page 3 of 5 (b) (c) 8) "Operator or manager" means any natural person responsible for the actual operation and management of an adult business. 9) "Sexual conduct" means acts of: i. Sexual intercourse within its ordinary meaning, occurring upon any penetration, however slight; or ii. Any penetration of the vagina or anus, however slight, by an object; or iii. Any contact between persons involving the sex organs of one person and the mouth or anus of another; or iv. Masturbation, manual or instrumental, of oneself or of one person by another; or v. Touching of the sex organs or anus, whether clothed or unclothed, of oneself or of one person by another. 10) "Specified anatomical areas" means: i. Less than completely and opaquely covered human genitals, pubic region, buttocks, and female breast below a point immediately above the top of the areola; and ii. Human male genitals in a discernible erect state, even if opaquely covered. 11) "Specified sexual activities" means simulated or actual: i. Display of human genitals in a state of sexual stimulation or arousal; ii. Acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio, or cunnilingus; and iii. Fondling or erotic touching of human genitals, pubic region, buttocks, or female breasts. Location Requirements. 1) Adult Businesses may be located only in the CC, CG, IL and IH zones. Additionally, no adult business may be located within five hundred (500) feet of another adult business, a church or other place of worship or public or private school. 2) The distances specified in this section shall be measured in a straight line, without regard to intervening structures, from the nearest point of the premises in which the proposed adult business is to be established to the nearest property line of a use listed above. Development and Operation Standards. The following development and operation standards shall apply to adult businesses: 1) No adult business shall be located in any temporary or portable structure. 2) Trash dumpsters shall be enclosed by a screening enclosure so as not to be accessible to the public. 3) No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times. PZ04-15 Page 4 of 5 4) S) 6) 7) S) 9) 10) 11) 12) 13) 14) 15) 16) Permanent barriers shall be installed and maintained to screen the interior of the premises from public view for each door used as an entrance or exit to the business. The entire exterior grounds, including the parking lot, shall be lighted in such a manner that all areas are clearly visible at all times. Siinage shall be governed by KMC 14.20.220 (Signs). All entrances to an adult business shall be clearly and legibly posted with a notice indicating that persons under 18 are prohibited from entering the premises. No adult business shall be operated in any manner that permits the observation of any persons or material depicting, describing or related to specified sexual activities or specified anatomical areas, inside the premises, from any public way or from any location outside the building or area of such establishment. This provision shall apply to any merchandise, display, decoration, sign, show window or other opening. Each adult business shall conform to all applicable laws and regulations. The adult business shall not operate or be open between the hours of 2:00 a.m. and 9:00 a.m. Amplified sound may not be broadcast outside the building and structures used for the adult business. No tip or gratuity offered or accepted by an adult entertainer may be offered or accepted prior to any live performance, dance or exhibition provided by the adult entertainer. No adult entertainer performing live upon any stage shall be permitted to accept any form of gratuity offered directly to the entertainer by any member of the public. Any gratuity offered to any adult entertainer performing live upon any stage must be placed into a receptacle provided for receipt of gratuities by the business or through a manager on duty on the premises. Any gratuity or tip offered to any adult entertainer conducting any live performance, dance or exhibition in or about the non-stage area of the adult business shall be placed into the hand of the adult entertainer or into a receptacle provided by the adult entertainer, and not upon the person or into the clothing of the adult entertainer. No live entertainer shall engage in acts of sexual conduct. An adult cabaret shall provide separate dressing room facilities for performers, which are exclusively dedicated to the performers' use. Ad adult cabaret shall provide an entrance/exit for performers, which is separate from the entrance/exit used by patrons. An adult cabaret shall provide access for performers between the stage and the dressing rooms, which are completely separated from the patrons. If such separate access is not physically feasible, the cabaret shall provide a minimum three- foot wide walk aisle for performers between the dressing room PZ04- i 5 Page 5 of 5 area and the stage, with a railing, fence or other barrier separating the patrons and the performers that is capable of preventing any physical contact between patrons and performers. 17) All indoor areas of the adult cabaret where patrons or members of the public are permitted, excluding restrooms, shall be open to view by management at all times. (d) If any portion of this chapter, or its application to any person or circumstances, is held invalid, the validity of this chapter as a whole, or any portion thereof, and its application to other persons or circumstances, shall not be affected. (e) Non-conforming Use: Any adult business operating at the time of the effective date of this ordinance shall be considered a non-conforming use under KMC 14.20.050. However, a business that only periodically engages in adult business activity may continue to operate as a non-conforming use at the same level of activity it operated for the one-year period prior to the adoption of this ordinance. For example, a bar or restaurant that operated as an adult cabaret five times in the previous one-year period would be allowed to operate as a non-conforming use five times per year. PASSED BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI, ALASKA, this 28th day of April 2004. Chairman ATTEST: E 0 0 0 0 (D 0 0 ""E 2004 N EET N SCHEDULE 16 3O 3 4 10 Harbor Commis- sion, 7p, Coun- cil Chambers 17 24 18 $ COUNCIL MEET- ING, 7p, Coun- cil Chambers 12 Planning & Zoning Commis sion, 7p, Coun- cil Chambers 19 COUNCIL MEET- ING, 7p, Coun- cil Chambers Planning & Zoning Commis sion, ?p, Coun- cil Chambers Council on Aging, 10a, Senior Center Parks & Rec., 7p, Council Chambers 2o 27 31 HOLIDAY/CITY OFFICES CLOSED Apr~ S MT WT F S I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Printed by Calendar Creator Plus on 10/27/2003 21 15 Z2 29 June S MT WT F S I 2 3 4 5 6 7 8 9 !0 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 I I · = . . .. ,Tune 2004 MEETING 5CHEbULE 13 20 27 May S MT WT F S i 2 3 4 5 6 7 8 9 !0 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 14 21 1 Library Commis. sion, 7p, Coun- cil Chambers 15 22 29 2 COUNCIL MEET- IN(}, 7p, Coun- cil Chambers 9 Planning & Zoning Commis sion, 7p, Coun- cil Chambers 16 COUNCIL MEET- lNG, 7p, Coun- cil Chambers 23 Planning & Zoning Commis~ sion, 7p, Coun- cji Chambers 30 10 Airport Commis- sion, 7p, Coun- cil Chambers 24 11 18 25 12 19 26 Printed by Calendar Creator Plus on 10/27/2003 July ..... · ' ·. S MT WT F S . ~ .,. i 2 3 ..~... ...,..i 4 $ 6 7 8 9 !0 ...... 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 CITY OF KENAI 210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611-7794 TELEPHONE 907-283-7535 FAX 907-283-3014 ~ MEMORANDUM TO' FROM' Linda Snow, City Manager La Shot, Public Works Manager Jack Keith Kornelis, Public Works Marilyn Kebschull, City Planner DATE' May 4, 2004 SUBJECT: Lawton Acres As requested at the last council meeting, we have gathered information and prepared a brief analysis of the feasibility of rezoning and developing the parcel between Lawton Drive and the Spur Highway. Attached is a suggested simple development that tries to keep in mind various restrictions. Keith discussed access to Lawton Acres with Ken Morton, a State of Alaska Department of Transportation Design Engineer on Monday, May 3, 2004. The State Design Engineer discouraged the construction of a frontage road and actually thought that from the standpoint of traffic safety the best access would be from Lawton Drive. That doesn't appear to be attractive to commercial developers. It may be possible, with appropriate spacing, to develop access driveways from the Spur Highway to one or more lots, with approval through the State of Alaska Department of Transportation permitting procedure. One access driveway to two lots would minimize the entrances to the Spur Highway and should be economically feasible. The access driveways should be built and maintained by the new property owners. This plan meets recommendations of the City of Kenai Comprehensive Plan (November 5, 2004) pg. 37. Due to numerous underground and overhead utilities, the location of the bike path, and a vegetated swale, a frontage road would most likely not be feasible within the Spur Highway R/W and would limit lot depths if placed outside the R/W. Another issue with development of a frontage road is that the road would be maintained by the City of Kenai. The attached layout provides the approximate required spacing of driveways and provides two lots over an acre and four interior lots less than an acre. Considering the Lawton Acres Page 2 May 4, 2004 present zone designation of conservation, it may be appropriate to require maintaining a buffer strip along Lawton Drive to encourage separation of businesses by maintaining a higher level of natural vegetation. However, the buffer strip may be breached when extending sewer and water utilities from Lawton Drive. The city's comprehensive plan identifies neighborhood concern regarding commercial development near residential areas through rezones along the Kenai Spur Highway. The plan recommends adopting landscaping and buffering/screening standards and requiring separation of commercial development from residential areas (City of Kenai Comprehensive Plan, November 5, 2003) pp. 36-37.) A development plan that requires meeting the buffering and access as noted above may meet the city's comprehensive plan recommendations. At this time, Mr. and Mrs. Kiel, have stated they would be interested in one of the smaller interior lots for their business. Attachment nal Municipal Airport Memo To: From: Date: Subject: Larry Semmens - Acting City Manager - Airport Manager~C--- Rebecca Cronkhite April 30, 2004 BELLAIR, Inc. Proposed Lease Airport Commission held a spedai meeting last night to d~ a lease application submitted by Mike Spisak of BELLAIR, INC. The property in question is south of the terminal and designated for future romp expansion. The property curren~j serves as a snow dump and is integral to the overall drainage system for the south raT~. During the db(zssion of problems assodated with developing the lot Mr. Spisak applied for, I sug~ the Airport could use some of its pasonnd and equipment resources to rrake improve~ts t~ Iols 5 & 6 which Mr. Spisak has also looked at. This ~ing I received the atta~ letter from Mr. Spisak stating that he is willing to take Lots 5 & 6 if impmvema'~ are made. I called to darifythat I made the s~eslJon but did not have the aulhodty to make in33'overnents to that lot without direction of Administration and Coundi. The long slar~ing policy is that tenants are responsible for improvements. I also told him if he was interested I would follow proper channeb for approval. Mr. Spisak's letter indicates that he expects the entire lot would be brought up '1o grade with the paved apron". Our proposal is to use airport resou~, induding the sand pile, stay within the constraints of our exisling budget and provide a good sub base. ~ Airport Operations Supervisor and City Engineer am ga~ng add~ cost infom~tion to provide Administmtia3 and Coundl with rough estimates of the cost difference between our proposal and Mr. Spisak's. While it is true that the City does not usually develop lease lots for prospective tenants, lhere has been a conceded effort to attract new business and air service to Kenai and this may be the approprbte time to 'put our rrx3r~y ~ our rrx3uth is'. I have confi~ with the Rnance Director and City Attomey that this is permissible under the guidelines because lhe appraisal to set the lease rote indudes imp~ts provided by the City and therefore the cost is recove~ over time by an increased lease rote. www.ci.kenai.ak.us. BELLAIR, INC. Bminess Office: 6601 South Airpmk Anchoml~, Alaaka 99~2 Phone: (907)245-0271 Fax:. (907) 245.0276 April 30, 2004 To: Rebecca Cronkhite From: Mike Spisak Subject: Leas~ Lots I wns advised by Dwight Kramer today that at the meeting last night you stated that the airport would remove the over burd~ from Lots 5 & 6 and bring in fiH for the entire lots to bring lots 5 and 6 to grade with the paved apron in time for consm~tion in the near ftmu~. If this is correct, I would be intctrsted in lots $ & 6 for developmenc I have complct~ another Lease Application and would like to rescind my previous application for Tract A and submit this application for Lots 5 & 6. Please schedule another airport meetin~ ASAP so that we can still have this brought before the Planning and Zoning and the City Council az pr~dously scheduled. Sincerely, CITY OF KENAI 210 Fidalgo Aveuu¢, Suite 200 Kcnai, Alaska 99611-7794 (907) 283-7535 Ext. 223 LEASE APPLICATION Name of Applicant .._ Addr~s q g'd '7... Business Name and Address ~'~ Telephone ~ t~ c~ O Kenai Peninsula Borough Sales Tax No. (if applicable)___ Statc of Alaska Business License No. (if applicable) C "- / o! ~' Legal Description ' ' Purposc of Proposcd Lease T~-m of Proposed Lease Description of Proposed Dev¢lopmem (type, construction materials, size, etc.) Time Schedule for Proposed Dcvelopmcnt · Beginning Date sot ~ ~ · Completion Date (m'aximum oftw~ ye~--s)___ ~ Esthnatcd Value of Improvemen~ $___ (.s, o O, 0o0 - APPLICANT'S SIGNATURE: Date: _~/'A_O/~~ ~' APPLICANT'S SIGNATURE: Date: BELLAIR, INC. 100' ~ Back 200' Wide Block I Lot 5 & 6 Paved Ramp Aircraft Parking & Tie Down Gravel Parking BRL m · : _ m m Immm m m m IIIIIII Han~ar Door 80' Wide · 20' High 10' ~a~ Hangar 80' Wide x 60' Deep Concr, te Floor · II II II 80 x 24" Ollk'~ Fr~,ht li~,~g & A~oM~ I! I ! ............. Parking & Tie Down - -- . il mi ..... 11 i, m Gravel Parking Customer & Employee Parking Lot Gravel Parking 392.0' e CITY OF KENA 1-0 210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611-7794 TELEPHONE 907-283-7535 FAX 907-283-3014 ~ 1992 MEMORANDUM TO: FROM:~/ DATE' RE' Mayor Williams and Councilors Cary R. Graves, City Attomey April 29, 2004 Spot Zoning During the discussion of the potential rezoning of conservation property near Walker Lane, the issue of spot zoning came up. The portion of the green strip being considered for rezoning is approximately 6.3 acres. The property would be rezoned from conservation to commercial. This memorandum is intended to give Council a general overview of the issues and roles regarding spot zoning to help you in considering the rezoning request. Spot zoning is defined as a zoning amendment that "reclassifies a small parcel in a manner inconsistent with existing zoning patterns, for the benefit of the owner and to the detriment of the community, or without any substantial public purpose." 1 Robert M. Anderson American Law of Zoning 3rd {}5.12 at 362 (1986). The Kenai City Code (KMC 14.20.270(b)(2)) limits rezoning to areas of one acre or more unless the amendment enlarges an adjacent zoning district boundary. The state's spot zoning guidelines must be followed, in addition to those set forth in the city code. The analysis used by the Alaska Supreme Court is: 1) Is the rezoning consistent with the comprehensive plan? 2) What are the benefits and detriments to the owners, the adjacent landowners and the community? 3) What is the size of the parcel? Griswold v. City of Homer, 925 P.2d 1015, 1020 (Alaska 1996). I® The first part of Alaska's spot zoning test is different than the one used in most other places. It uses consistency with the comprehensive plan, whereas most courts look at whether the new use is very different fi'om the prevailing use in the surrounding area. McQuillen Mun Corp {}25.83 (3rd Ed), Williams Am Land Plan {}27 (1988). The City's Comprehensive Plan generally seeks to focus commercial development in the existing central business area rather than expand the John J. Williams and Councilors April 29, 2004 Page 2 of 2 central business area. City of Kenai Comprehensive Plan (Nov. 5, 2003) pp. 26-33. However, consistency or inconsistency with the Comprehensive Plan in itself does not determine whether an action is spot zoning in Alaska. Griswold at 1021. In this case, the parcel would have property zoned GC (general commercial) across the Spur Highway and Walker Lane so there would be commercial property nearby. While not a specific factor in Alaska's spot zoning analysis, that fact would tend to mitigate against a spot zoning determination. II. The second part of Alaska's test analyzes the benefits and detriments of the reclassification to the developer, the adjoining property owners and the community. This is probably the most important factor the courts will consider in a spot zoning analysis. Griswold at 1021. In this case, there appears to be a genuine desire for commercial property on the Spur Highway. Just because an owner or developer of property requests the rezoning of property does not mean the court will automatically consider it was done to primarily benefit a private individual and that there is no general public benefit. GriswoM at 102. However, elimination of a community green strip as a buffer could be viewed as a detriment to the community and adjacent residential landowners. III. The third part of the test is the size of the parcel. Generally, parcels under three acres are found invalid whereas parcels of thirteen acres or more are found valid. Griswold at 1025. This parcel of 6.3 acres is in the gray area. In Griswold, the parcel in question was 7.29 acres in the central business district. Because it was in the gray area, the court looked at the size of the rezoned area relative to the total size of the central business district. The court ultimately held it was not spot zoning. It is too early in the planning process to determine whether the proposal would constitute spot zoning. Hopefully, this memorandum will help you identify some of the issues with regard to reclassification of this parcel and spot zoning. Please let me know if you have any questions. CRG/sp KENAI PENINSULA BOROUGI_ ~ N. BINKLEY · SOLDOTNA, ALASKA · ~966~-?§9~ BUSINESS (907) 262-4441 FAX (907)262-1892 · April 26, 2004 DALE BAGLEY MAYOR The Honorable John Williams Mayor, City of Kenai 210 Fidalgo Ave. Ste. 200 Kenai, Alaska. 99611 Dear Mayor Williams: RECEIVE"' ,, APR , :,..,.? ,, .,TY CLERK. Mr. Philip Bryson has represented the City of Kenai on the Kenai Peninsula Borough Planning Commission, and his term will expire on July 31, 2004. In accordance with AS 29.40.020, appointments to the Borough Planning Commission are made by the Borough Mayor. Commission members from a home mle city shall be selected by the Borough Mayor from a list of recommendations submitted by the City Council. 'i 'WOuld aPPreciat~' a list of candidates, which may include Mr. Bryson, to fill the vacancy for this post. 'Candidates must be qualified voters of the Borough who reside within the City. It would be most helpful if I could receive your suggestions by June 1, 2004. Assembly confirmation of appointments to the Planning Commission is tentatively scheduled for July 6. Thank you for your participation in this matter. Sincerely, Dale Bagley Kenai Peninsula Borough Mayor DB/bd cc: Planning Commission Chair. - KpB,-, Planning Department . Kenai City Clerk- via fax -' , .. ':' .. ....... , .,. , . i,,.,,L(.;tw ! ', ....-. ',., ,.. "':'. ...... May 5, 2004 210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611-7794 TELEPHONE 907-283-7535 ., FAX 907-283-3014 l~J~2 Anthony J. Braden, Acting State Pipeline Coordinator State of Alaska 411 West Fourth Avenue Anchorage, AK 99501 RE' PUBLIC NOTICE OF ANALYSIS OF A.4~NDMF.,NT APPLICATION AND PROPOSED DECISION & DRAFT RIGHT-OF-WAY I~ASE AMENDMENT FOR THE HAPPY VALLEY EXTENSION TO THE KENAI-KACHEMAK PIPELINE RIGHT-OF-WAY LEASE, ADL 228162 Thank you for your letter of April 14, 2004 in which you invited comments on the approval of the amendment application for the Happy Valley Extension to the Right-of- Way Lease for the Kenai-Kachemak Pipeline, ADL 228162. In December, 2003, the Kenai City Council reviewed the original fight-of-way lease for the Happy Valley Extension and had no objections and a letter of support was forwarded to you. At their regular meeting of May 5, 2004, the Kenai City Council briefly discussed your letter and without objection, stated their support of ADL 228162 as amended and requested this letter of support be forwarded to you for your record. CITY OF KENAI John J. Williams Mayor JJW/clf STATE PIPELINE COORDINATOR'S OFFICE FRANK H. MURKOWSKI, GOVERNOR 411 West 4'h Avenue Anchorage, Alaska 9950 PHONE: (907) 257-1300 FAX: (907) 272-0690 Department of Natural Resources Department of Labor ~Department of Public Safety Fire Marshal's Office ETDepartment of Environmental Conservation April 14, 2004 Letter No.: 04-057-AW Case File Serial No.: ADL 228162 File Code: (63a) 0.1.1 (30) 1.3.3 ection/Stipulation: 0.1.1 Facility Code: Fl010 DD.: N/A Mr. John Williams Mayor City of Kenai 210 Fidalgo Avenue, Suite 200 Kenai, AK 99611 Re: Public Notice of Analysis of Amendment Application and Proposed Decision & Draft Right-of-Way Lease Amendment for the Happy Valley Extension to the Kenai- Kachemak Pipeline Right-of-Way Lease, ADL 228162 Dear Mr. Williams' The Commissioner, Department of Natural Resources, invites the public to provide written comments on the approval of the amendment application for the Happy Valley Extension to the Right-of-Way Lease for the Kenai-Kachemak Pipeline, ADL 228162 and offer of the amendment to the Right-of-Way Lease. Comments or concerns regarding the proposed action should be directed to the State Pipeline Coordinator's Office, 411 West 4th Avenue, Suite 2C, Anchorage, Alaska 99501-2343. Sincerely, Anthony J! Acting State Pipeline Coordinator Enclosure: Public Notice (2 Pages) "Develop, Conserve, and Enhance Natural Resources for Present and Future Alaskans." STATE OF ALAS KA DEPARTMENT OF NATURAL KESOURCES STATE PIPELINE COORDINATOR'S OFFICE 411 WEST 4TM AVENUE, SUITE 2C ANCHORAGE, ALASKA 99501 (907) 257-1300 PUBLIC NOTICE Analysis of Amendment Application And Proposed Decision ADL 228162 Subject to the provisions of AS 38.35.015 and pursuant to re~lations promulgated thereunder, the State Pipeline Coordinator's Office received application from Kenai- Kachemak Pipeline, LLC that proposes to modify the description of the RIGHT-OF- WAY LEASE FOR THE KENAI-KACHEMAK PIPEL~, ADL 228162, to inciude State land to construct and connect to the existing pipeline an approximately 12-inch diameter natural gas transmission line. During construction, the applicant requests adding approximately 48 acres of State lands to the current right-of-way lease area. '['he construction fight-of-way would then be reduced to approximately 16 acres for the permanent fight-of-way. These lands are described in a southerly direction and are located within Sections 5, 8, 7, Township I South, Range 13 West; and Sections 12, 13, 24, 23, 26, 35 & 34, Township 1 South, Range 14 West, Seward Meridian, Alaska. Pursuant to AS 38.35.070, public notice of the application was published in the Peninsula Clarion and Anchorage Daily News on December 17, 2003. A copy of the application was filed with coordinate agencies. Pursuant to AS 38.35.080, the State Pipeline Coordinator prepared an Analysis of Amendment Application and Proposed Decision to approve the application. The proposed modification was determined to be a substantial amendment to the existing lease. Copies of the Analysis of Amendment and P.r?posed De.e!sio~_~d_t.h_e Draft Rig3t-of- Way Lease Amendment are available at cost oy request ~o me a~ow office, Monday tlarough Friday, between the hours of 7:30 AM and 5:00 PM. Any comment, objection or expression of interest pertaining to the proposed action must be received in writing by the State Pipeline Coordinator's Office at the above address on or before 5:00 PM, May 13, 2004, in order to ensure consideration. If public comment indicates the need for significant changes in the decision, additional public notice will be ~ven on or about June 11, 2004. If no significant change is required, the Proposed Decision, including any minor changes, will be issued as the Final Decision of the Department of Natural Resources on or after May 13, 2004. witSout further notice and the Right-of-Way Lease for the Kenai-Kachcmak Pipeline, .'-~D. L 228162, will be amended. The State of Alaska, Department of Natural Resources, State Pipeline Coordinator's Office, complies with Title II of the .am~ericans with Disabilities Act of 1990. Individ::als with disabilities who may need auxiliary aids, services, or special modifications to participate in this review may call (907) 257-1300 or 269-8411 TTY/TDD. Please provide sufficient notice in order for the Department to accommodate your needs by the closing date. The State Pipeline Coordinator's Office reserves the right to waive technical defec:s in this publication /s/ Anthony J. Braden Acting State Pipeline Coordinator 210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611-7794 TELEPHONE 907-283-7535 FAX 907-283-3014 ~ MEMORANDUM I~J~2 TO: Mayor Williams and Council Members FROM: Linda L. Snow, City Manager DATE: April 22, 2004 SUBJECT: Telephone Poll ,,/-./-,~' ,,,, _./, Administration is requesting Com~c~ to approve a p _ rchase order to Alaska Communications System for the~urpose of phone system repair and/or replacement at the Kenai Police Department/The purchase order is in the amount of $15,008.00. (Resolution No. 2004-16 was approved at the April 21, 2004 council meeting and it was an oversight a corresponding purchase order was not included on the Purchase Orders Exceeding $2,500 list.) Authorized By: Manager D artme t .~ Attest: . ,. Carol L. Freas, City Clerk Mayor John Williams Pat Porter James C. Bookey, III Blaine Gilman Linda Swarner Rick Ross Joe Moore Yes No 3' , , , Comments OLDENROD - ACCOUNTING I ANARY. ACCOUNTING LUE- SHIPPING & RECEIVING ~,. A~,o,~0 co~, INK - RE?,UISITIONER CITY KENAI 210 FIDALGO AVENUE -SUITE 200 KENAI, ALASKA 99611 PHONE 283-7535 VENDOR NO. ¶81~IA? TO AK CO~UNICATION$ SYSTEMSP O BOX 198886 ANCHORAGE AK 9951g l _j TI'dIS PuI~HASE ORDE~ NUMBER MUST APPEAR ONI ALL PACKAGES AND PAPERSI tRELATING TO THIS PI JR. Ne ........ Kenmi Poll~ Depja'ne~ 107' $. Vtilllow St Kmld, ~ 99611 BY DIRECTCHI PURCHASES AUTHORIZED ONLY WHEN SIGNED ABOVE BY THE FINANCE DIRECTOR OR AUTHORIZED AGENT ITEM NO. DESCRIPTI°N C~R ARTICLE ORDER~ UNIT UNIT PlaICE AMOUNT 21.4~ Pro~~~~ 1 _ ii i PREPAY SHIPPING- SEPARATE CHARGE ON INVOICE TOTAL DEPARTMENT HEAD INFORMATION ITEMS KENAI CITY COUNCIL MEETING MAY 5, 2004 . Kenai Multipurpose Facility Annual Report, 2003-2004. o 4 / 27 / 04 Public Works Department, Project Status Report. . Flea Market Operator Request for Proposals. . 5 / 4 / 04 Kenai Peninsula Borough Assembly Meeting Agenda. , 4 / 30/04 Larry Semmens, Finance Director memorandum regarding the audit contract. KENAI MULTIPURPOSE FACILITY ANNUAL REPORT 2003-2004 GENERAL OVERVIEW The 2003-04 skating season began October 1st. Two differences that separate this season from the previous is the installation of ice at the end of September rather than August, and a 56-hour per month reduction in contracted hours. Limited September use the previous season and high utility costs justified a later start. This decision ultimately led to a reduction in associated costs, namely contract labor and utilities. It is anticipated that the ice season will begin October 1st next season as well. As in years past, rink operators were again challenged with warm weather conditions and condensation throughout most of the early season. Dripping from the ceiling and ice formation on the dasher board glass were common occurrences throughout October and November. The formation of "turtles" on the ice caused by the dripping created frustration and challenges for ice maintenance personnel while the frosting of the glass created difficulty for scorekeepers and spectators. Despite the challenges presented during this time Dr. Ice was able to provide safe and reliable ice and meet deadlines; user groups generally accepted the circumstances and expressed a high degree of satisfaction with respect to maintenance and effort. Vandalism to the facility was minimal with only minor incidents being reported. The mistreatment of the facility this year appeared to be isolated and very infrequent. DR. lee personnel and City staff have done a great job at establishing positive rolationships with patrons, which fosters pride, and helps promote an atmosphere of "self policing". SEASON HIGHLIGHTS Several key developments occurred throughout the season, including the development of a Special Use Permit for the sale of dasher board advertisements, construction of a handicap accessible viewing platform, purchase of a second zamboni, and minor upgrades to the storage room. A Request for Proposals was developed for lease of the storage room, however, the individual interested in leasing the space for a small retail business decided to hold-off until next season. All the dasher boards designated for sale were sold resulting in $3,477.32 in revenue. Plans are under way to include the remaining boards, in addition to the sale of ice loges and zamboni advertisements. The Kenai Peninsula Hockey Association once again successfully organized the Peninsula Winter Games Hockey Tournament, which was split between Soldotna and Kenai. This event has traditionally provided a solid revenue stream, although this year's tournament was considerably smaller compared to last season. The KPHA Tournament Director indicated that more tournaments might be pursued next season. Homer Electric installed a "recording" meter during October in order to collect utility data. Russ Milstein (DR Ice) and I reviewed the information with HF__~ employee Mr. Brad Hibberd. Mr. Hibberd indicated that the facility was being operated efficiently considering the type of operation and equipment used. The biggest draws appear to be the lights, warming shack heaters, and whenever the compressors are running simultaneously, which creates a higher demand charge. Fortunately this season was relatively cold, thus, in most cases one compressor was sufficient to maintain the ice throughout the season. Switching from electric heaters in the warming shacks to gas may help control costs. REPAIR & MAINTENANCE Refrigeration System This season marked the first significant repairs made to the refrigeration system. Although unexpected, it wasn't a total surprise considering the compressors have a total combine run time of approximately 8,000 hours. The shaft seal failed on compressor #2 causing us to contract repairs with Joel Anderson. A new shim kit and inner springs (routine maintenance) were also replaced at this time. Additionally, a pressure control switch on the condenser tower failed and was replaced. Cost of these repairs totaled $4,367.03. No down time was experienced during this time. Water jackets were installed on the compressors in November. This helped regulate the amount of water usage, which is evident when comparing last year's water and sewer costs to this season. Total compressor run time for 2003-04 was approximately 2,400 hours compared to 3,700 hours in 2002-03. The difference is attributed to starting a month later, colder weather, and keeping the ice temperature set points one degree warmer than last season. Zamboni The zamboni ran exceptionally well this season largely in part due to Dr. Ice and City Shop Personnel's attention to detail and expertise. The LP gas converter/regulator, three hydraulic lines, horizontal auger, governor/throttle assembly and drive chain sprockets were replaced. $1,628.45. Total cost of these repairs was Facility (structure) In addition to condensation problems, water dripping from the ceiling in the compressor room, storage room and zam room developed over the course of the winter. Heavy snow accumulation along the slightly pitched roof above these spaces contributed to the leaking. City staff and a private contractor spent several days removing snow and Building Maintenance added heat tape. Dripping ceased after this work was performed. Building Maintenance and Parks & Recreation are exploring both short-term and long- term solutions along with associated costs in order to prevent this from happening in the future. Short-term solutions include resealing flashing, reducing interior heat, and more heat tape. Long-term possible solutions include adding extra insulation or possibly extending the roofline, both of which are costly. Several exterior panels along the front of the facility were removed near the beginning of the season in an attempt to lessen the condensation problems. The result of this effort was inconclusive and no outstanding benefit was observed. Passive venting with louvers is another option; however, the cost is estimated to be approximately $30,000. Rubber Matting The rubber matting showed signs of lifting in a couple areas this winter and will need to be glued prior to next season. Dasher Boards The dasher boards are beginning to develop cracks on the exterior side. This is quite possibly a warranty issue and discussions with the supplier are on going. Puck damage on the interior side behind the goals is becoming more pronounced, as well. Lexan should be installed in these areas for added protection. Roof Drains The south roof drain froze in mid-February and throughout the thawing process caused considerable leaking alongside the #A warming shack. A small water pump was used for several days, which made the leak manageable until the roof drain completely thawed. The drainpipe "elbows" will need to be inspected this spring to determine if repairs are needed or not. It is suspected that the cause of this was due to the heat trace being inadvertently left off during a cold spell. EXPENSE COMPARISON 2002-03 (Sept.-Mar. 31) 2003-04 (Oct.-Mar. 31) Electric $42,303.64 $26,964.05 Gas $ 2,118.48 $ 2,443.15 Water/Sewer $4,061.75 $1,398.54 Ice Maint. $80,168.23 $59,679.36 Zambon i $91.50 $1,628.45 Refrigeration 0 $4,367.03 TOTAL: $128,743.60 $96,589.58 !,NCOME COMPARISON 2002-03 (Sept.-Mar 31 ) 2003-04 (Oct.-Mar 31) Ice Rental $80,745.00 $75,162.45 Figure Skating $654.00 0 Public Skate $894.65 $569.13 Advertisements 0 $3,477.32 TOTAL: $82,293.65 $79,208.9 ASSET TO OUR COMMUNITY It is difficult to determine the positive economic impact that this facility had on local businesses throughout the winter season. Nevertheless, the Kenai Multi- Purpose Facility is truly an asset to our community and definitely is an important niche in terms of fulfilling skating needs. More hockey games were played at this facility than in previous years and essentially became the "home" ice for Kenai Central High School Hockey. Their success along with KPHA's representation in Florida in many ways validates this facility. Perhaps more importantly, the facility has provided our youth (and adults!) a healthy alternative to self- destructive behavior. Although the 24-hour use policy creates challenges, the benefits probably outweigh the negatives. One factor that may slightly affect revenue next season is the completion of Homer's rink. Homer has traditionally used our rink extensively for games and weekend practices, which will naturally change as their facility becomes a reality. Weather obviously is another important factor as indicated by last seasons increased use due to warmer temperatures and lack of ice at other facilities. On the other hand, utility costs also go up drastically. The Kenai Parks & Recreation Department along with the facility contractors will continue their efforts toward managing these costs. Project status Report A/NC/F/ City Contact Project Name STI) A JL Airport Security Fencing A=Active NC=Non-Construction F=Future STIP=State Trans. imp Status KK- Keith Kornelis JL - Jack La Shot RS - Robert Springer MK - Marilyn Kebschull Jet - Jan Taylor Engineering work progressing. Will set tentative bid dates soon. a JL Airport Security System Negotiating with Quality Electric. A MK Airport Supplemental Planning Assessment RFP being drafted by Airport Manager and Planner. KK Bridge Access W & S Feasibility Study Received final report evaluating different routes from Wince-CorthelI-Bryson. Report sent to DEC & EDA. JL/RS MK City Hall HVAC Comprehensive Plan Documents complete. Final plan at KPB for adoption. Scheduled for introduction on 4/20, public hearing on 5/18. A JL Contaminated Soils - Shop Work plan submitted. Received ranking for loan fund - could be funded if City chooses to. Asking to reappropdate $151,314. A JL Daubenspeck Environmental Site Assessment Final report has been received. UST removal report received and submitted to ADEC. A JL FAA Site Land transfer complete. A JL Kenai AP ARFF/SRE Facility Closing out. A KK Kenai Boat Launch Improvements Received $350,000 grant. Nelson & Associates are working on the design. The City is working on possible land acquisition for exit road. Tuesday, April 27, 2004 Page 1 of 3 A/NC/F/ S1~ city Contact Project Name Kenai Coastal Trail Status The Corps study is scheduled to be completed next month. It will then be reviewed by all agencies. Hopefully, the City will get additional funds to complete design and answer any questions from the study and agencies including obtaining the Corps Permit. A JL Library Improvements Schematics complete - awaiting further direction. A JL Maintenance Shop Preliminary plans and specifications complete. Grant funds to lapse in '04. Passed resolution to amend grant to do environmental, a KK McCollum & Aliak, Set Net Dr., S. Ames Rd. LID's These LID projects are on a list for consideration by Council at a later date. Projects on hold until changes made or funding found. City Clerk has sent letters requesting information from each property owner about the future of these LID projects. A JL A JL Multi-Purpose Facility Runway Extension Environmental Assessment Will seek funding as described by Resolution 2004- 09. Project on hold until AP Supplemental Planning Assessment complete. A JL Senior Kitchen Senior Director has submitted Rasmusson grant request. a KK Title 17 Review and W & S Regulations Completed revisions to W & S regulations and sent draft out for everyone to review. Adding a grease prevention regulation. Plan to make changes to KMC and regulatings including water and sewer rate changes for July 1, 2004. A JL Underground Storage Tank- Airport Extra soils removed and stockpiled. Report to ADEC finished and submitted. May spread soils on airport. Requested ten times rule for water table. A KK Wastewater Facility Master Plan City received the final report which ADEC has approved. GeoNorth is updating the City's GIS as part of this project. Tuesday, Apdl 27, 2004 Page 2 of 3 A/NC/F/ STP A KK City Contact Project Name WH 4 Status We have good quality water with a few exceptions. The new arsenic MCL will require treatment at this well and Well Houses No. I and 3. Working with DNR on land purchase or lease issues. STIP KK DOT- Bridge Access Pathway Pathway along Bridge Access Road from K-Beach to Spur 3.3 miles... Project in environmental assessment. Design scheduled FFY08. Construction after FFY09. STIP KK DOT- Kenai River Flats Interpretive Site This is the rest stop and Birch Island Facility near the Warren Ames Bridge. This project has been moved out of the recent STIP time frame. Tuesday, April 27, 2004 Page 3 of 3 CITY OF KENAi 210 FIDALGO AVENUE KENAI, ALASKA 99611-7794 (907) 283-3692 .REQUEST FOR PROPOSALS The City of Kenai is soliciting proposals for a Flea Market Operator to manage and administer a summer Flea Market located at the Kenai Multi-Purpose Facility located at 9775 Kenai Spur Highway. Proposals will be received until 5 p.m. local time May 14, 2004 and should be delivered in a sealed envelope addressed to the City Manager at the above address. Envelopes shall be clearly marked "Flea Market Proposal." Please contact the Parks & Recreation Department at (907) 283-3692 or the above address for additional information. Proposals may be picked up at Kenai City Hall. CITY OF KENAI 210 Fidalgo Ave Kenai, Alaska 99611 REQUEST FOR PROPOSAL Flea Market Management PROJECT Flea Market Management at Multi-Purpose Facility I1. Iil. PROJECT MANAGER BACKGROUND Bob Frates, Parks & Recreation Director City of Kenai 210 Fidalgo Ave Kenai, Alaska 99611 Telephone: (907) 283-3692 The City of Kenai is requesting proposals in order to contract for the management and administration of a summer Flea Market located at the Kenai Multi-Purpose Facility. The Multi-Purpose Facility is owned by the City of Kenai and is located at 9775 Kenai Spur Highway. The facility is a covered metal structure (three sides and a roof) with a total square footage of approximately 28,000 sq. ft. Facility contains a large parking area, concrete floor space, lights, restrooms, and storage units. Floor space for booth set-up is approximately 17,000 sq. fro The City would like to receive proposals for the right to market, manage, and administer a summer flea market. All interested parties, including community clubs, service organizations, firms and businesses are encouraged to submit proposals. No Person shall be excluded on the basis of race, color, religion, sex, age, national origin or disabilities. IV. SCOPE OF SOLICITATION The City wishes to encourage creative proposals, however, the following are requirements for this solicitation: a. At a minimum, the flea Market shall be conducted on Saturdays from June 1st, 2004 through September 1 lt", 2004. b. Permittee shall have full responsibility for administering this program, including, but not limited to, marketing, managing, and supplying all material, supplies, and labor. c. All local, State and Federal laws governing the selling of goods, wares, or merchandise shall be followed, including taxation. d. Guns, ammunition, weapons, knives, animals, and adult material (pornography) are prohibited. e. Permittee shall have responsibility for removal of refuse, keeping the facility clean during, and for keeping restrooms sanitized and stocked. f. Personnel furnished by the Permittee will be volunteers or employees of Permittee. If using employees, Permittee shall carry (and provide proof of) workmen's compensation insurance as required by Alaska law for such employees. Ve DURATION OF CONTRACT The term of this contract will be one summer season (June lS~ through September 11~) and may be extended for additional one-season terms by mutual written consent of the City and the Permittee. In the event of a summer hockey clinic, the rink would be unavailable for flea market use for approximately a two-week period. VI. MINIMUM ACCEPTABLE BID: The following will be the minimum acceptable rent for the use of the Multi-Purpose Facility: $30.00 per hour VII, PROPOSAL SUBMISSION REQUIREMENTS ao Proposals will be received until 5 p.m. local time on May 14, 2004 and must be delivered to: City of Kenai Attn: City Manager 210 Fidalgo Ave. Kenai, Alaska 99611 b. The Permittee must submit one original written proposal in a sealed envelope, which is clearly marked on the outside with the Bidder's name and the following label: "FLEA MARKET PROPOSAL" c. No late, telegraphic, or faxed bid proposals will be accepted. When received by the City, all proposals become the property of the City. When opened, all proposals and supporting documents and statements become public information. d. An outline of the Permittee's background and examples of previous work related experience or community service projects. e. A recommended workplan, including but not limited to, organizational capacity, proposed flea market dates and times, booth space sizes and fees, vendor registration process, policy, and advertising. VIII. EVALUATION OF PROPOSALS ao The award will be made by the City on the basis of that proposal from the highest responsible bidder. The minimum number of events accepted is four Saturdays per month (June through September 11"~) with a minimum duration of 6 hours each. IX, REJECTION OF PROPOSALS The City reserves the right to reject any or all bid proposals and waive any defects when in its opinion such rejection or waiver will be in the best interest of the City. To be awarded the contract, the proposed Permittee must demonstrate to the satisfaction of the City the experience, ability, and resources to perform the contract. The right is reserved by the City to re-advertise for bid proposals if such action is desired by the City. CITY OF KENAI 210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611-7794 TELEPHONE 907-283-7535 FAX 907-283-3014 ~ I~J2 MEMORANDUM TO: Linda Snow, City Manager; and Bob Frates, Parks & Recreation Director FROM: cft~,~ Cary R. Graves, City Attorney DATE: April 29 2004 RE' Flea Market Gun Sales I was requested to research potential liability for gun sales at proposed flea market sales at the Multi-Purpose Facility. AS 09.65.155 states in part, "A civil action to recover damages or to seek damages...may not be brought against a person who manufactures or sells firearms or ammunition if the action is based on the lawful sale, manufacture or design of firearms or ammunition." (Emphasis added). That immunity is based on a lawful sale. A person who illegally sells a gun in violation of state or federal law would have liability. Torts and Gun Control: Sealing Up the Cracks and Helping Licensed Dealers Avoid Gun Sales to Unqualified Buyers, 48 Oklahoma Law Review 593 (1995). Thus, for example, a sale of a handgun to a felon, a firearm to an intoxicated person, commercial firearms sales without a federal firearms license (FFL), or sale of stolen weapons would not receive immunity. There have been problems with illegal gun sales at flea markets. (See attachment.) Also, the statute applies to sellers and manufacturers~not the owners of the premises, as we would be. The potential liability problem would be for an unlawful gun sale at the flea market. The City should not have any liability unless it knew or should have known of unlawful gun sales on the premises. Sauve v. Winfree, 985 P.2d 997, 999-1003 (Alaska 1999), Kimbler v. Stillwell, 734 P.2d 1344 (Or. 1987), 62A Am Jur 2d, Premises Liability § 513. However, if someone were injured from a gun purchased illegally at a city flea market, the City could be an attractive target if the seller did not have the finances or insurance to pay any judgment. Summonses tend to be attracted to entities with deep pockets. I recommend that gun/ammunition sales be prohibited at any flea market in the Multi-Purpose Facility. The best way to avoid liability is to prohibit gun/ammunition sales. My unscientific Mayor John Williams and Councilors April 29 2004 Page 2 of 2 research on the Intemet indicated to me that municipally sponsored or sanctioned flea markets generally prohibit gun/ammunition sales. However, if the City does not wish to prohibit such sales, limiting sellers to FFL holders would reduce our potential liability. The regulatory process involved with FFL holders makes it less likely that illegal gun sales at a city flea market would occur. Please let me know if you have any questions regarding this memorandum. CRG/sp State: Agents seize 344 guns at. V olus~a tlea market Page 1 of 1 %t. etersburg tmes ©N LI I'q E TAMPA BAY ii i ii iiiiiii I Weather I Sports [ Formns I Comics i Classifieds I Calendar [ Movies Agents seize 344 guns at Volusia flea market By Associated Press Published April 9, 2004 DELAND - Agents seized 344 guns in an investigation into suspected illegal weapons sales at a Volusia County flea market, a spokesman for the Bureau of Alcohol, Tobacco, Firearms and Explosives said Thursday. ATFE investigators, with the help of Volusia deputies, DeLand police officers and federal marshals, served search warrants at three stalls at a farmer's market at the Volusia County Fairgrounds and five others at homes in DeLand, Jacksonville and Sanford. Special Agent Carlos Baixauli said the gun sellers have been using a legal loophole to sell the weapons without being licensed gun dealers. Agents have investigated the dealers for about 15 months, Baixauli said. "They would go to the flea market under the guise of selling their own personal collection, but in essence they were operating like dealers," he said. The benefit to doing business that way is that buyers would not be required to submit to a background check, the agent said. Federal law requires licensed dealers to mn a background check to make sure that prohibited buyers, including felons, don't buy guns. Because the sellers targeted in this investigation were not thought to be selling off their own collections, the sales they made were illegal, he said. Baixauli said he expects federal indictments in the case. © Copyright 2003 St. Petersburg Times. All rights reserved http ://www. stpetetimes, com/2004/04/09/news_p f/S tate/Agents_s eize_344_guns, shtml 4/21/2004 Kenai Peninsula Borough xv~ay 4, 2004 - 7:00 p.m. Regular Meeting City Council Chambers, Seward, Alaska Pete Sprague Assembly President Seat 4- Soldotna Term Expires 2004 Gary Superman Assembly Vice President Seat 3- Nikiski Term Expires 2004 Dan Chay Assembly Member Seat 1- Kalifornsky Term Expires 2006 Paul Fischer Assembly Member Seat 7- Central Term Expires 2004 Betty Glick ~bly Member - Kenai · _. tn Expires 2005 Ron Long Assembly Member Seat 6- East Peninsula Term Expires 2006 btilli Martin Assembly Member Seat 9- South Peninsula Term Expires 2006 Grace Merkes Assembly Member Seat 5 - Sterling/Funny River Term Expires 2005 Chris Moss Assembly Member Seat 8- Homer Term Expires 2005 A® Be C® De ge F® Go He Io J® CALL TO ORDER PLEDGE OF ALLEGIANCE INVOCATION ROLL CALL COMMITTEE REPORTS APPROVAL OF AGENDA AND CONSENT AGENDA (All items listed with an asterisk (*) are considered to be routine and non-controversial by the Assembly and will be approved by one motion. There will be no separate discussion of these items unless an Assembly Member so requests, in which case the item will be removed from the Consent Agenda and considered in its normal sequence on the agenda. APPROVAL OF MINUTES *1. April 20, 2004 Regular Assembly Meeting Minutes ........... 1 April 21, 2004 Board of Equalization Hearing Minutes ....... 14 COMMENDING RESOLUTIONS AND PROCLAMATIONS le Proclamation Declaring May 2004 as Motorcycle Awareness Month (Mayor) ....................................... 18 *2. A Resolution Commending Sarah Glaser for Receiving Regional, State and National Recognition in the National PTA Reflections Program (Long) ........................ 19 *3. A Resolution Commending Chelsea Lechner for Receiving Regional, State and National Recognition in the National PTA Reflections Program (Long) ........................ 21 PRESENTATIONS WITH PRIOR NOTICE (Limit to 20 minutes total) lo Finance Director Scott Holt, presentation of the Fiscal Year 2004-2005 proposed budget PUBLIC COMMENTS ON ITEMS NOT APPEARING ON THE AGENDA (3 minutes per speaker; 20 minutes aggregate) May 4, 2004 Page 1 of 6 REPORTS OF COMMISSIONS AND COUNCILS L® Me Ne MAYOR'S REPORT ................................................... 23 Agreement and Contracts Spruce Bark Beetle Mitigation Program: Approval of contract with Segesser Surveys for Sprucewood Surveying Project ..................................... 24 be Approval of contract with Norris and Sons for Calcium Chloride Application- North Region ................................... 33 Approval of contract with 2 Bears Trucking for Calcium Chloride Application- Central & South Region .......................... .35 de Approval of contract with Metco for Calcium Chloride Application- East Region ............................................... 37 ee Approval of contract with Integrity Surveys for Surveying and Platting of Exit Glacier Subdivision No. 2 ....................... 39 Approval of contract with Rider Hunt Levett Bailey Ltd. for Third Party Cost Estimation Services - CPGH Expansion, Remodel and Renovation ................................................ 42 ge Approval of contract with Segesser Surveys, Inc. for Surveying and Platting Lakeview Estates Subdivision Addition No. 1 .............. 44 he Approval to waive formal bidding procedures and utilize Trane Unit Ventilators for Kenai Central High School ....................... 47 Approval to waive formal bidding procedures and utilize Beluga Lake Lodge for appraiser lodging during the reappraisal of the Homer area 48 ITEMS NOT COMPLETED FROM PRIOR AGENDA- None PUBLIC HEARINGS ON ORDINANCES (Testimony limited to 3 minutes per speaker) Ordinance 2003-19-42' Appropriating $120,000 from the General Fund for the Replacement of the Gymnasium Floor at Kenai Central High School (Mayor) (Referred to Finance Committee) ............................. 57 May 4, 2004 Page 2 of 6 O® Pe o Ordinance 2003-19-43' Appropriating $293,091.15 from South Peninsula Hospital Service Area Fund Balance for Interest Amount Due on the South Peninsula Hospital Service Area General Obligation Bonds That Were Sold as Part of the Hospital Improvement Project (Mayor) (Referred to Finance Committee) ..................................................... 60 ge Ordinance 2003-19-44: Appropriating $30,000 for Cook Inlet Aquaculture Association for a Coho Enhancement Project in the Homer and Seward Areas (Martin, Moss, Long) (Referred to Finance Committee) ................... 62 e Ordinance 2004-08' Authorizing a Land Exchange with Offshore Systems - Kenai to Acquire Land to Support the North Peninsula Recreational Service Area Cross-Country Ski Trail (Mayor) (Referred to Lands Committee) ....... 65 UNFINISHED BUSINESS NEW BUSINESS 1. Bid Awards *a. Resolution 2004-045' Authorizing Award of a Contract for the Seward Middle School Phase 2 Site Finishing and Building Construction (Mayor) (Referred to Finance Committee) ............. 86 e *b. Resolution 2004-046: Authorizing Award of a Contract for the Soldotna Middle School Fire System (Mayor) (Referred to Finance Committee) ............................................... Resolutions 89 *a. Resolution 2004-047' Determining the Amount to be Provided From Local Sources for School Purposes During Fiscal Year 2004-2005 (Mayor) (Refe~ed to Finance Committee) ....................... 92 3. Ordinances *a. Ordinance 2003-19-48: Accepting and Appropriating $168,000 from the Alaska Department of Environmental Conservation to Purchase Decontamination Showers and Trailers and Associated Equipment (Mayor) (Shortened Hearing on 05/18/04) (Referred to Finance Committee) ............................................... 95 May 4, 2004 Page 3 of 6 *b. Ordinance 2003-19-4..9.' Amending Ordinance 2001-19-35 by Authorizing the Use of Spruce Bark Beetle Funds for Utility Right of Way Clearing in the Area South of the Kenai River (Mayor) (Shortened Hearing on 05/18/04) (Referred to Finance Committee) .... 99 *¢. Ordinance 2004-13' Amending KPB 5.18.430, Sales Tax Computation- Maximum Tax, by Increasing it from $500 to $1,000 (Mayor) (Hearings on 05/18/04 & 06/01/04) (Referred to Policies and Procedures Committee) ..................................... 102 *d. Ordinance 2004-14.' Amending KPB 21.18.080 to Increase Authorized Conditional Use Permit Terms from Two Years to a Maximum of Six Years (Mayor) (Hearing on 06/01/04) (Referred to Lands Committee) ......................................... 107 *e. Ordinance 2004-19' Appropriating Funds for the Fiscal Year 2004- 2005 (Mayor) (Hearings on 05/18/04 & 06/01/04) (Referred to Finance Committee) ........................................ 110 4. Other Petition to vacate the entire Forestline Drive and associated utility easements as dedicated and granted by Forestline Subdivision (Plat KN 79-194 and 83-230) and Cozy Comer Subdivision (Plat KN 84- 193); and vacate that portion of Aspen Drive and associated utility easements as dedicated and granted by Forestline Subdivision; within Section 9, Township 5 North, Range 9 West, Seward Meridian, Alaska; and within the Kenai Peninsula Borough; KPB File 2004- 061; Location: Robinson Loop (Referred to Lands Committee) ...... 115 [Clerk's Note: The Planning Commission approved the referenced vacation by unanimous consent subject to the following staff recommendation during its regularly scheduled April 12, 2004 meeting. Staff Recommendations: Submittal of a final plat in accordance with Chapter 20 of the KPB Code plat within one year of vacation approval.] May 4, 2004 Page 4 of 6 Q® 0 T® *b. Petition to vacate a portion of High Seas Court and associated utility easements dedicated by Gillean's Inlet View Subdivision Part One (Plat HM 86-18); within Section 8, Township 5 South, Range 15 West, Seward Meridian, Alaska; and within the Kenai Peninsula Borough; KPB File 2004-059; Location: East of Old Sterling Highway in Anchor Point (Referred to Lands Committee) .......... 134 [Clerk's Note: The Planning Commission approved the referenced vacation by unanimous consent during its regularly scheduled April 12, 2004 meeting] PUBLIC COMMENTS AND PUBLIC PRESENTATIONS (3 minutes per speaker) ASSEMBLY MEETING AND HEARING ANNOUNCEMENTS May 18, 2004 7:00 PM Regular Assembly Meeting Soldotna ASSEMBLY COMMENTS PENDING LEGISLATION (This item lists legislation which will be addressed at a later date as noted.) Ordinance 2004-05 (Mayor's Substitute): Amending the Kenai Peninsula Borough Code Chapter 5.12 by Revising Procedures for Appeals to the Board of Equalization (Mayor) (Hearing on 08/03/04) (Referred to Policies and Procedures Committee) e Ordinance 2004-09: Adopting a Revised Comprehensive Plan for the City of Kenai (Mayor) (Hearing on 05/18/04) (Referred to Policies and Procedures Committee) 3~ Ordinance 2004-10' Establishing the Nikiski Law Enforcement Service Area (Superman) (Hearing on 05/18/04) (Referred to Policies and Procedures Committee) e Ordinance 2004-11' Repealing KPB Chapter 14.32, Deleting References to KPB 14.32 in Other Areas of the Code, and Amending KPB Chapter 14.31 Relating to Road Improvement Assessment Districts (Mayor) (Heating on 05/18/04) (Referred to Policies and Procedures Committee) e Ordinance 2004-12.: Amending Service Area Code Provisions Regarding Appointment of Administrators (Mayor) (Hearing on 05/18/04) (Referred to Policies and Procedure Committee) May 4, 2004 Page 5 of 6 Ge Ordinance 2003-19-46' Appropriating $175,000 in Supplemental Funding from the Borough Equipment Replacement Fund to Purchase a New Point of Sale System for the School District (Mayor) (Heating on 05/18/04) (Referred to Finance Committee) e Ordinance 2003-19-47.: Appropriating $585,000 from the South Peninsula Hospital Service Area Fund Balance to Provide Supplemental Funding to Cover Losses on Operations of the South Peninsula Hospital (Mayor at the request of the South Peninsula Hospital Service Area Board) (Hearing on 05/18/04) (Referred to Finance Committee) ge Resolution 2003-094: In Support of CS for HB 240 and SB 186, Acts Relating to Charitable Gaming Through Implementation of Electronic Gaming Machines (EGM) in the State of Alaska (Superman) (Referred to Legislative Committee) (Tabled on 02/17/04) Ue INFORMATIONAL MATERIALS AND REPORTS V® NOTICE OF NEXT MEETING AND ADJOURNMENT The next meeting of the Kenai Peninsula Borough Assembly will be held on May 18, 2004, at 7:00 P.M. in the Borough Assembly Chambers, Soldotna, Alaska. This meeting will be broadcast on KDLL-FM 91.9 (Central Peninsula), KBBI-AM 890 (South Peninsula), K201A O-FM 8& 1 (East Peninsula). Copies of agenda items are available at the Borough Clerk's Office or outside the Meeting Roomjustprior to the meeting. For further information, please call the Clerk's Office at 714-2160 or toll free within the Borough at 1-800- 478-4441, Ext. 2160. Visit our website at www. borough, kenai, ak. us for copies of the agenda, meeting summaries, ordinances and resolutions. May 4, 2004 Page 6 of 6 210 Fidalgo Avenue, Kenai, Alaska 99611-7794 Telephone' 907-283-7535/FAX: 907-283-3014 '~llt' 1992 KENAI, ALASKA MEMORANDUM' · TO' FROM- City Council Larry Semmens, Finance Director/~ DATE: April 30, 2004 SUBJECT: Audit Contract At the April 21, 2004 meeting Council approved a purchase order for $8,000 to Mikunda Cottrell for the FY 2004 audit. I want to make sure Council understands that we did not request proposals for the audit comract this year as originally planned. The Borough recemly awarded a three year comract to Mikunda Cottrell. They only received two proposals. The Anchorage firm's cost bid was substamially higher. There is one other qualified firm that is imerested in the City audit. I comacted the partner in charge and he told me that they would not submit a proposal for the City audit this year. Therefore the outcome of requesting and evaluating proposals would almost certainly be a contract award to Mikunda Cottrell. Since we are not required to bid professional services there is no compelling reason to request proposals for the FY 2004 audit. The $8,000 PO to Mikunda Cottrell will cover the imerim audit work scheduled for May 2004. The $15,000 remainder of the audit work will be paid from the FY 2005 budget after it is approved. The total audit cost will be $23,000, which is a $500 increase over FY 2004. The phone system is only partially operatio~nal. The original system had 16 phone lines (8 Police/Fire department lines, Police Fax and Police Data, Crime stoppers, 3 ring down lines from city hall during after hours and 2 elevator lines) The system we have now can only support 12 lines until additional phone hardware is installed. Because of this, we have had to drop the crime stopper line, the ring down lines and the elevator lines until we get this hardware from ACS. Additionally, most of the programming for the phone system (speed dial, ect) was lost in the switch over. Lee is awaiting the installation of the additional parts before programming the new system. ACS has had to ship hardware from the Seattle. The new hardware will give the department a 24 line capability (doubling the mount of lines currently available). Stephanie Carroll (from ACS) has assured me the parts are enroute. The new system has digital line capability (which will save the department $150 a month in line charges) and has voice mail integrated. Normally, ACS ensures all the parts are local before beginning an installation of a new system. However, due to failure of the public safety building Meridian 324 phone board (which was 12 years old at failure), they had to do a partial, emergency repair installation. MAKE 26 PACKETS COUNCIL PACKET DISTRIBUT]:ON lCOUNCIL MEE'I'~NG bATE: I Mayor/Council Attorney Clerk Police Department / Finance Senior Cente~ / Airport Library Fire Deportment 5chmidt VISTA A6ENDA DISTRTBUT~ON Sewer Treatment Plant Streets Shop Dock Building Maintenance Animal Control Wate~/Sewe~ Counte~ DELIVER Council Packets to Police Department Dispatch desk. The Chamber, Clarion, tAellish & 5chmidt'$ Office will pick their packet up in my office. The portion of the agenda published by the Clarion should be emailed as soon as possible after Noon on packet day. The camera-ready agenda c:/myfiles/document$/minutes/agenda form for paper)is emailed to Denise at Peninsu/a ~/a~ion (at email folder Work Session/Special Meetings, or Composition in Contacts or Ibell~acsalaska.net). Home Page documents (agenda, resolutions, ordinances for public hearing, and ordinances for introduction) are usually emailed to me and I hold them in my HT/~L file. Place them onto the city's web$ite with Front Page from there as soon as possible before leaving the office for the weekend. AGENDA KENAI CITY COUNCIL- REGULAR MEETING &~ MAY 5, 2004 ~.. 7:00 P.M. KENAI CITY COUNCIL CHAMBERS ............ ~ h ttp ://www.ci. kenai.ak, us ITEM B: SCHEDULED PUBLIC COMMENTS (10 minutes) 1. Sadie Moore -- ICAN Program, Community At-Reach Program ITEM C: REPORTS OF KPB ASSEMBLY, LEGISLATORS AND COUNCILS ITEM D: PUBLIC HEARINGS 1. Ordinance No. 2037-2004-- Amending KMC 23.40.080 to Provide for a Five Year Maximum Period of Reemployment for Those Persons Participating in the PERS Opt-Out and Reemployment Provisions of AS 39.35.150(b). a. Substitute Ordinance No. 2037-2004-- Amending KMC 23.40.080 to Provide for a Five Year Maximum Period of Reemployment for Those Persons Participating in the PERS Opt-Out and Reemployment Provisions of AS 39.35.150(b). 2. Ordinance No. 2038-2004-- Finding That Certain City-Owned Airport Land, Described as Tract A, Baron Park No. 12 (Preliminary Plat), Consisting of Approximately 16 Acres Adjacent to Marathon Road, is Not Required for a Public Purpose and Can Be Sold, Providing a Deed of Release is Obtained from the Federal Aviation Administration. 3. Ordinance No. 2039-2004-- Finding That Certain City-Owned Airport Land, Described as Baron Park No. 6, Consisting of Approximately 15 Acres Adjacent to Marathon Road, is Not Required for a Public Purpose and Can Be Sold. 4. Ordinance No. 2040-2004 -- Amending KMC 7.05.010 to Provide for a Flat Tax on Aircraft. 5. Resolution No. 2004-18 --Increasing the Water and Sewer Rates and Deposits. 6. Resolution No. 2004-19 -- Awarding the Bid to Norris & Sons for 8,000 Cubic Yards of Street Maintenance Sand for the Total Amount of $43,920. 7. Resolution No. 2004-20 -- Transferring $2,500 in the General Fund for a Reception for Northern Dynasty Ltd. and the Pebble Mine Project. 8. Resolution No. 2004-21 -- Transferring $30,000 in the Water and Sewer Fund for Construction of a Vactor Truck Dump Station. 9. Resolution No. 2004-22 -- In Support of the Immediate Construction of a Fiber Optic Cable Linking Anchorage, Kenai, Homer and Kodiak. 10. Resolution No. 2004-23 -- Approving a Contract to Quality Electric for the Project Entitled Kenai Municipal Airport Security System - 2004 for Individual Lump Sum Amounts Totaling $281,101 Which Includes the Basic System and Additive Alternates 1 Through 4. 11. *Liquor License Renewal -- Mr. D's/Beverage Dispensary Tourism ITEM H: OLD BUSINESS ITEM I: NEW BUSINESS 1. Bills to be Paid, Bills to be Ratified 2. Purchase Orders Exceeding $2,500 3. *Ordinance No. 2041-2004 -- Finding Certain City-Owned Land, Described as Tract A-5, Dena'ina Point Estates, Consisting of 9.630 Acres, is Not Required for a Public Purpose and Can Be Sold. 4. *Ordinance No. 2042-2004 -- Increasing Estimated Revenues and Appropriations by $672 in the General Fund Library Department for a State Grant. 5. *Ordinance No. 2043-2004 -- Increasing Estimated Revenues and Appropriations by $30,000 in the Airport Terminal Enterprise Fund for Short Term Parking Lot Renovations. 6. *Ordinance No. 2044-2004 -- Amending Title 14 of the Kenai Zoning Code by Adopting KMC 14.20.175 for the Regulation of Adult Businesses. 7. Discussion -- Schedule Joint Work Session with Kenai Visitors & Convention Bureau Board of Directors. 8. Discussion -- Lawton Acres Preliminary Review. 9. Discussion --Improvements to Airport Lots 5 and 6, FBO Subdivision. EXECUTIVE SESSION -- Annual evaluations of City Attorney and City Clerk. ITEM K: ADJOURNMENT The public is invited to attend and participate. Additional information is available through the City Clerk's office at 210 Fidalgo Avenue, or visit our website at http://www, ci.kenai.ak.us. Carol L. Freas, City Clerk D599/211 CITY OF KENAI 210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611-7794 TELEPHONE 907-283-7535 FAX 907-283-3014 ~ 1992 MEMORANDUM TO: FROM: DATE: RE: Mayor John Williams and Councilors Cary R. Graves, City Attomey ~({~ April 29, 2004 Backup Information for the Adult Entertainment Ordinance Attached to the proposed adult entertainment ordinance is a packet of backup information regarding adult entertainment businesses. It was included to provide information and justification to support the need for regulation of that type of business. The information is comprehensive and, at times, quite graphic. The graphic nature of some of the information was necessary to provide an accurate portrayal of adult entertainment businesses. CRG/sp '~t of N~)RI'I[i::'([~ ('INEM.~.. INC. v. CITY ()F SEATTLE ('lie a.s, Wa.,,h.. 5145 P.2d I 153 90 \V~si~.2d NORTIIEND CIN'E:~'!,~, ~N .... and A. 3I. Mushkin, ^ppellants, CITY OF SEATTI.E, a Municipal Corporation, Respondent. GAIETY THEATERS, INC., a Wash- inglon Corporation, Appellants, w~sh. I153 minuting all nonconforming theater uses within 90 days, in view of the fa. ct that t}:e theaters were n(,t bound to show adult films as opposed to any other type of film and di~i not come forward ~;'ith any clear evidence of economic harm. Temporary injunction dissolved, and judgment affirmed. CITY OF S' ' ~ EA rTLE, a Municipal Corporation, Responde~.t. APPLE TItEATER INC., a Washiv. gton Corporation, Appellants, CITY OF SEATTLE, a l~lunicipai Corpcration, Respondent. No. 45155. Supreme Court of Washingtnn, En Bane.- Oct. 19, 1978. The validity of zoning enactments re- quiring that adult motion picture theaters be located in certain downtown areas was upheld by the Superior Court, King County, Frank J. Eberhart. er, J., and theater opera- tors appealed. The Sut:reme Court, ttorow- itz, J., held that' (1) the ordinance was fully adequate to give operators notice of regulated use, and they had no standing to challenge it for vagueness; (2) the opera- tors had no standing to assert First A~nend- ment rights of others so as to challenge the ordinance for facial overbreadth; (3) the theaters failed to establish that the ordi- nance was impermissible prior restraint on protected First Amendment speech, in view of a finding that the ordinance did not have any significant deterrent effect on exhibi- tion or viewing of such films; city's most important interest in regulating use of its property for commercial purposes was suffi- cient to justify such zoning regulation; (.t) there was reasonable classification, not vio- lative of equal protection, by the ordinance, and (5) the ordinance was reasonable, not denying due process of law, insofar r,s ter- 1. Munic,.'pal Corporations e=,121 In action for declaratory judgment, brought to ehaIleng-.e constitutionality of or- dinances which required all adult motion picture theaters to be located in certain downtown areas, trial court's refusal to en- ter plaintiff theaters' proposed findings was not error where the same were either un- supported by the record or were not related to ultimate facts concerning material issue. 2. Constitutional Law e=~18 It was not necessary to construe provi- sions of State Constitution identically with corresponding provisions of Federal Consti- tution, but, where appropriate, court would apply general rule that language in State Constitution be Wen same interpretation as that given federal constitutional provi- sion by the United States Supreme Court. U.S.C.A.Const. Amends. 1, 5, 14. 3. Municipal Corporations ~:~594(2) City ordinance definition of adult thea. ter use, being identical in all relevant re- spects to definition upheld by United States Supreme Court, was fully adequate to give notice of regulated use, and complaining theaters which showed adult films almost exclusively and claimed no desire to show any other t3q~e of film had no standing to challenge ordinance for vagueness. U.8.C. A.Const. Amends. 1, 5, 14. 4. Constitutional Law 0=,42.2(1) Special rule giving standing to one whose own rights are not violated to chal- le;~ge ordinance for overbreadth applies only if deterrent effect of ordinance on protected First Amendment speech is both real and substantial and if ordinance is not easily susceptible to narrowing construe- tion. U.S.C.A.Const. Amend. 1. 5~ PAL'It-i,C l{J-;l'(.)R'l'Ek, '-'d 5. Municipal Corporations c=, 121 Theaters showing adult films hint no standing Lc assert First A~nendmcnt rights of others, to challenge city ordinance for official overbreadth, where ,'>rdinanee, which required location of such thcat(.,rs in certain downtown areas, was found by tri:tl court not to have any significant deterrent effect on exhibition or viewing of adult motion picture films and where any lan- guage in ordi~anee which was uncertain was readily subject to narrowing and con- stitutionaily sound construction. U.S.C.A. Const. Amend. 1. 6. Constit;,',ional Law ~=~90.1(6) Theaters showing adult films failed to establish that city ordinance restricting 1o- cation of adult motion picture theaters to certain downtown areas was impermissible prior restraint on protected First Amend- ment speech, in view of finding that ordi- nance did not have any significant deter- rent effect on exhibition or viewing of such films; city's most important interest in reg- ulating use of its property for commercial purposes was sufficient to justify such zon- ing regulation. U.$.C.A.Const. Amend. 1. 7. Constitutional Law ~=~240(4) In view of fact that city ordinance reg- ulated only place where adult films could be shown and in view of city's g~'eat interest in protecting and preserving quality of its neighborhoods through effective land-use planning, there was reasonable classifica- tion, not violative of equal protection, by ordinance which required adult motion pic- ture theaters to be located in certain down- town areas. U.S.C.A.Const. Amends. 1, 14. 8. Municipal Corporations ~=~43, 63.1(2) City's planning efforts must be accord- ed sufficient degree of flexibility for exper- imentation and innovation, and court can- not substitute its judgment of what would be most effective method of regulation in such regard. 9. Municipal Corporations ~594(I) City's power to regulate location of adult movie theaters was not dependent in any way on existcnce of possible waiver for existing theater locations, nor was there any showinK that {,},crators of existing the- au'rs weft constitutionally entitled to ex- empti~ms from zuning restriction in case before the court, and thus no constitutional deficiency in such regard was shown. U.S. C.A.Const. Amends. 1, 14. 10. Zoning ~2:11 Calculation of reasonable termination period for zoning' purposes depends upon facts and circumstances of particular case, and equal protection analysis does not ap- ply. U.S.C.A.Const. Amend. 14. 11. Constitutional Law ~=,296(2') Ordinance requiring that adult motion l~icture theaters be located in certain down- town areas was reasonable, not denying due process of law, insofar as terminating ali nonconforming theater uses within 90 days, in view of fact that theaters were not bound to show adult films as opposed to any other type of film and did not come forward with any clear evidence of economic harm. U.S.C.A.Const. Amends. 1, 5, 14. Victor V. Hoff, Charles S. Stixrud, Seat- tle, for appellants. Dona M. Cloud, Asst. Corp. Counsel, Seat- tle, for respondent. H OROW ITZ, Justice. The issues raised here involve the validity of two Seattle city zoning ordinances which have the effect of requiring all adult mo- tion picture theaters as defined in the ordi- nances, to be located in certain downtown areas, and terminating all nonconforming theater.uses within 90 days. The three Seattle theaters prohibited from showing their normal adult fare at their present locations by these ordinances challenge the constitutionality of the zoning enactments in this declaratory judgment action. The court below heard extensive testimony at trial and upheld the validity of the City's action. We affirm. The amendments to the City's zoning code which are at issue here are the cuimi- nation of a long period of study and discus- ,~f existinK thc- :it:ion 'n case ') co nstitut ional .s shown. U.S. lo terrnination ~lepends upon ~artieular case, ; does not ap- l4. ~s(2) adult motion certain down- .t denying due rminating all i thin 90 (lays, :rS were not pposed to any come forward :)nomie harm. .tixrud, Seat- ounsel, Scat- the validity ances which [1 adult mo- in the ordi- ~ downtown monforming The three m showing eir present allenge the. enactments :tion. The stimony at the City's y's zoning the culmi- md discus- NGi.,'TIIEND ('INE3I.~., IN('. v.: ITY CF SEATTLE Che as, Wash., 585 F.Zd 1153 sic-n of the problems of adult movie theaters in residential are::s of the City. Following lo::al resident t~rotests against the Ol~cning of such a theater in the (;reenwood ~tistriet, the City's Department of Community De- velopment made a study of the need for zoning controls of adult theaters at the request of both the City Planning Commit- tee and the City Council Committee on Planning and Urban Development. The study analyzed the City's zoning scheme, comprehensive plan, and lamt uses around existing adult motion picture theaters. Of the 46 motion picture theaters otmrating within the City, 13 showed adult motion pictures exclusively, or almost exclusively. Ten of those 13 were located in downtown areas where such uses are now permitted by the challenged ordinances. The other three, the Ridgemont, the Northend, and the Ap- ple Theater, are in areas outside the desig- nated zones which are characterized by resi- dential uses. These three theaters show "x-rated" films almost exclusively and dis- play advertisements indicating the nature of the films on the theater marquees or fronts.~ The Department's study concluded that zoning action should be taken to con- fine adult motion picture theaters to down- town Seattle, and recommended that a eon- ditional u:.'e approach be adopted for adult theaters in other areas. The Department's study and recommen- dation were taken up by the City Planning Commission, which held public meetings and a joint public hearing with the City Council Committee on the subject. At the public hearing Greenwood residents spoke of their concerns regarding the deteriora- tion of residential neighborhoods that ac- companies location of adult movie theater~. The concerns expressed were very specific and included the attraction of transients, parking and traffic lwoblems, increased crime, decreasing property values, ami in- 1. The trial court found: Films rated "X" are identified in the Code of Self Regulation of the Motion Picture Association of America as "pic- tures submitted to the Code and Rating Adrain. istration which . . are rated X because of the treatment of sex, violence, crime or pro- fanity.'' Wash. 1155 tcrference with parental responsibilitic~ for children. The Planning Commission suk. sc- qucntly voted to recommend that the ¢'~y zoning comte be amended to confine adult theaters to downtown areas and phase mit nonconforming uses. The Commission op- posed any conditional use plan for other ZOIICS. The neighborhoods in which the three al)pellant theaters are located have a dis- tinctly residential character. Much effort and money have been invested in long- range improvement plans for these are.~. The Greenwood ,'ommunity, in which the Northcnd and Ridgemont are located, has been the subject of major development plans for years. Millions of dollars of de- velopment funds have been invested to im- prove the quality and conditions of the munity. Ongoing projects include im- proved sidewalks, lighting, and traffic con- trol, and a new shopping mall. The First Hill Community, in which the Apple Thea- ter is located, has not been the subject of such elaborate development plans, but has received substantial funds for neighborhood improvement and is designated a residential area in the City's long range plans. In short, the goal of the City in amending its zoning code was to preserve the character and quality of residential life in its neigh- borhoods, as specifically found by the court below. A second and related goal, the court found, was to protect neighborhood children from increased safety hazards, and offen- sive and dehumanizing influence created by location of adult movie theaters in residen- tial areas. These goals are an integral part of the City's long-range land-use planning effort. Thus in May and June of 1976 the Seattle City Council amended the Zoning Ordinance with Ordinance 105565, enacted on May 28 and effective on or about June 27, 1976, and The advertisements generated by these thea- ters and the displays on their marquees and fronts indicate the film fare therein is sexually- explicit and exploits a market for the shocking and bizarre sexual experience. The films are one sequence of explicit sexual activity after another, almost completely uninterrupted by any plot. 'i 11.56 ;;.~5 PAt'IFIC REI'ORTER. 2d SER~ES Ordinance 105584, el;act.ed June 7 anti ef- fective on o:' at,out July 7, 1976. Thc eom- bleed effect of the ordinances is to crc. ate a land usc known as Adult Motion Picture Theaters, to prohibit that usc in all City zones except the C5I (Metropolitan Com- mercial), BM (Metrol~olitan Business), and CMT (Temporary Metropolitan Commercial) zones, and to require termination of all nonconforming uses within 90 days of the date the use becomes nonconforming. The land area comprising the permitted zones is approximately 250 acres. No provision is made in the ordinances for conditional uses in other zones. [1] At the trial on appellant theaters' declaratory judgment action the court heard extensive testimony regarding the history and purpose of these ordinances.: It heard expert testimony on the adverse effects of the presence of adult motion pic- tore theaters on neighborhood chihlren and community improvement efforts. The court's detailed findings, which include a finding that the location of adult theaters has a harmful effect on the area and con- tribute to neighborhood blight, are sup- ported by substantial evidence in the rec- ord. Its refusal to eh:er appellant Apple Theater's proposed findings was not error, as these were either unsupported by the record, or not related to ultimate facts con- cerning a material issue. In re Kenred.¥, 80 Wash.2d 222, 492 P.2d 1364 (1972). The central question raised is whether, in view of these facts, the action of the City in creating the adult motion picture theater use and confining that use to certain zones within the downtown area is constitutional. A second question is whether the City may constitutionally impose a 90-day termina- tion period on nonconforming uses. We answer both questions affirmatively, for the reasons discussed hereafter. We turn first to the constitutionality of the creation and confinement of the adult motion pic- ture theater use. 2. In view of the extensive record developed at the trial of the City's planning studies, meet- ings and hearings, we find the City has fully sustained its burden of demonstrating the con- ditions and need for it:; zoning action. Appel- I AppellanLs n:ake three constitutional ar- guments against the Seattle zoning prori- sloes. First, they claim the definition o.,' an adult mntion lfieture theater is so vaLq~e as t.o deny them due process of lax,,'. Second. they claim the confinement of such theaters to designated zones is an impermissible pri- or restraint on protected First Amendment speech. Third, they argue the classification of theaters based on the content of the films shown there violates First Amend- ment and equal protection guarantees. [2] In response to these contentions we find the decision of the United States Su- preme Court in Young v. American Mini Theatres, Inc., 427 U.S. 50. 96 S. Ct. 2440, 49 L. Ed.2d alO (197~) (hereinafter referred to as Young) dispositive. In that ease the court approved the creation and definition of an adult theater zoning use identical in all relevant respects to the Seattle zoning use. It also approved regulation of location for that use. Although appellants argue the Seattle ordinance differs from the De- troit ordinance, those differences do not have constitutional significance, as dis- cussed below. We need not, of course, con- strue the provisions of our state constitu- tion identically with the corresponding pro- visions of the federal constitution. Darrin ~: Gould, 85 Wash.2d 859, 868, 540 P.2d 882 (1975). In this ease, however, we find the reasoning of Young persuasive. It ac- knowledges and accommodates the i~npor- rant interest of the state in exercising its police power to protect city neighborhoods against degradation, while preserving the democratic principles the constitutional pro- visions were designed to protect. We therefore find it appropriate to apply the general rule that language in our state eon- stitution will be given the same interpreta- tion as that given the fe~leral constitutional provision by the United States Supreme lant Apple Theater's objection to the record in this regard is unfounded. See P:.~rkddge r. Seattle, 89 Wash.2d 454, 573 P.2d 359 (1978). See also Abbenhaus ~: Y~kima. 89 Wash.2d 855, 576 P.2d 888 {1978). zoning iefizaition of is so vague law. Second, f such theaters mrmisnible pti- st A~nendment c classification ~ntcnt of th~ First Amend- ara n tees. ontentions we .ed States Su- , merican Mini S.Ct. 2440, 49 er reflnTed to '_hat case the tad definition :e ide. ntical in :cattle zoning on of location eilants argue from the De- ~nees do not nee, as dis- f CO!ll'l;e, corl- ate constitu- ponding pro- t. ion. Dar:in 540 P.2d 882 we find the [ ye. It ac- ; the impor- xcrcising its :ighborhoods .~serving the Lutional pro- · otect. We o apply the ~r state con- , interpreta- ,nstitutional :s Supreme the record in Parlu'idge v. ~ 3,59 (1978). 89 W'asi~.2d NORTtti.'NI) t'iNE.:'.4, IN('. v. CITY CF 5, E.kTTLE Cite as. Wash., 5,~5 P.2d 115:1 Court. See ttousin.ff Autho:.it~. :.. 87 Wash.2d 732, 739, 557 P.2~] 221 (i97,;~. A. Vagueness [3] Appellants' first argument is that the definition of Adult Motion Picture The- ater (set out in the rnarg4n '~ ) is so vague as to deny them due process of law. They do not attack the included definitions of ified Sexual Activities" or "Specified Ana- tomical Areas," but argue they are not ade- quately informed of (1) how much "depict- lng, describing, or relating" to the specified areas is necessary before a film is "distin- guished or characterized by an emphasis" thereon; (2) what "depicting, describing or relating to" means; or (8) how frequently such films must be shown before a building is "used" for the purpose. We note at the outset that the definition of adult theater use contained in the Seattle ordinance is identical in all relevant re- spects to the definition upheld in Furthermore, as in Young, the complaining theaters show adult films almost exclusive- ly. They do not claim they desire to show any other type of film. Therefore, the ordi- nance is fully adequate to give them notice 3. Ordinance 105565 Definition of Adult Motion Picture Theater (§ 1) "An enclosed building used for presenting motion picture films distinguished or charac- terized by an emphasis on matter depicting, describing or relating to 'Specified Sexual Activities' or 'Specified Anatomical Areas', as hereinafter defined, for observation by pa- trons therein: "'Specified Sexual Activities'" °'!. Human genitals in a state of sexual stimulation or arousal; "2. Acts of human masturbation, sexual intercourse or sodomy; "3. Fondling or other erotic touching of human genitals, pubic region, buttock or re.. maJe breast. "'Specified Anatomical Areas'" "1. Less than completely and opaquely covered: "(a) human genitals, pubic region, (b) but- tock, and (c) female breast below a point immediately above the top of the areola; and "2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered." 4. Adult Motion Picture Theater Wash. 1157 (,f the rcg::latcd usc, a~:d t}:t,y have no stamting to t:ha:lcngc it for vag'acness ]'ounck; scpra, 427 U.S. at 59, 96 S.Ct. 2440. [.t, 5] Nor do appellants have standing to assert tile First Amendment rights of others anti challenge the ordinance for fa- cial ovcrhrcadth. The special rule ~ving standing to one whose own rights are not violated to challenge an ordinance for over- l)readth apl)lies only if the ordinance's de- terrent effect on protected I"[rst Amend- ment speech is "both real and substantial" and the ordinance is not easily susceptible to a narrowing construction. Erznoznik v. Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 45 L. Ed.2d 125 (1975). We are not pemuaded those elements are present here. First, there is no evidence that the effect of this ordinance will be a substantial deter- rence to protected First Amendment speech. It does not limit the total number of adult theaters which may operate in the City, or significantly inhibit viewers from gaining access to the films. The court be- low specifically found the ordinance does not have any "significant deterrent effect on the exhibition or viewing of adult mo- tion picture films) Second, any language "'An enclosed building ,aqth a capacity of 50 or more persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to 'Specified Sexual Activities' or 'Specified Ana- tomical Areas,' (as defined below) for observa- tion by patrons therein. "For the purpose of this Section, 'Specified Sexual Activities' is defined as: "1. ltuman Genitals in a state of sexual stimulation or "2. Acts of human masturbation, sexual in- tercourse or sodomy. "3. Fondling or other erotic touching of hu- man genitals, pubic region, buttock or female breast. "And 'Specified Anatomical Areas' is defined as: "1. l.ess than completely and opaquely cov- ered: (a) human genitals, pubic region, (b) but- rock, and (c) female breast below a point imme- diately above the top of the areola; and "2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered." 5. Since we hold the ordinance does not place a substantial burden on First Amendment iy .~t:~jeet to a n'.,-rre,v,':ni~' :~n,.i c~,nstitu:.i~;:~- al}3, strand construction. 'I'l,csc c'onclusi¢:ns accord wi~.h those of the court in l'oung under substantially i¢lentieai circumstances. Appellants' due process claim must there- fore t~e dismissed for lack of stan~ting. B. Prior t",estraint [6] Appellants next argue tl;e ordinance is an impermissible prior restraint on pro- tooted First A~nen~lment at,ouch because it prohibits the screening of no,mbscene filn~s (L e., protected speech) outside the desig- nated zones. As pointed out above, appellan',s make no showing that the market for distribution and exhibition of these films is in fact re- strained under the ordinance. There was testimony at trial that adult movie theaters would easily be able to find a location in the designated zones. Furthermore, although potential viewers would be able to see the films only in those downtown areas, there, is no evidence that this places any burden on the adult movie market. Under these circumstances, where there is no restraining effect on the market, and no substantial deterrent effect on individual rights of free speech, the City's most impor- tant interest in regulating use of its proper- ty for commercial purposes is clearly suffi- cient to justify the zoning regulation here. We conclude the zoning regulation of Iota- tioa of adult movie theaters is a reasonable regulation of place for First Amendment speech which does not violate First Amend- meet freedoms. See Young, 427 U.S. at page 63, 96 S.Ct. 2440. The different treat- meet accorded adult movie theaters as dis- tinguished from other types of movie thea- ters is a different issue, which we discuss next. speech, no presumption of unconstitutionality is raised. Appellants' argument the ordinance is presumptively invalid must therefore be re- jected. Nor must the City choose the i,ast restrictive alternative available to accomplish its purpose, as alleged by appellants, since there is no substantial burden on free speech. Four of the justices in You.g reasoned that society has less interest in protecting sexually C. ('ia:;si."','ati.~:~ ba~ed o.q Con:cot [71 The fi:;al objection made to :.he stitutionaiil, y of the zoning scheme is that classifies theaters on the basis of the tent of the films shown, and treats ada movie theaters differently from other the; ters showing films protected by the Fir. Amendment. This. appellants claim, vk lares Imt.h the First Amendment and eqm protection guarantees. The United States Supreme Court, eoe sidering this argument in Young, departe from trmlitional First Amendment jurisprt denee and upheld both the classification films based on sexually explicit content an the different treatment accorded the thee ters showing them. The majority in Your. did not reach agreement on a rationale fo this result, but two elements appear to hay, been dispositive. We find those element preseat here, and are persuaded the Seatti, scheme does not deny or infringe on th, rights of free speech and equal protection The first element is that the ordinane, has only a slight and neutral effect protected speech. No real restraint or de. terrent effect is evident. The ,.0rdinane¢ regulates only the place where these film., can be shown. It demonstrates a reasons. hie decision that the public welfare is beat served by having this particular type ot speech take place only in certain areas the community. The ordinance thus re- mains neutral regarding the content of the films--it neither approves nor disapproves of that content, and neither promotes nor inhibits exhibition of the films? The second element is the City's great interest in protecting and preserving the quality of its neighborhoods through effec- tire land-use planning. The record demon- explicit expression than other types of protect- ed speech. This reasoning is not esser, tial to the result reached, and we do not adopt it as the basis for the result reached here. We note, moreover, that our decision is confined in its effect to regulation by zoning of sexually ex- plicit speech in fihns under the particular cir- cumstances of this case. on Can t,'nt magic to the con- 5 scheme is that it basis of the con- and treats adult frorn other then- 'ted by the First :lants claim, vio- ;dmcnt and equal reme Court, con- Youn.g., departed :ndmcnt jurispru- .' classification of pli¢it content and :cord. cd the thca- ~ajority in Young' n a rationale for cs appear to have ! those elements laded the Seattle infringe on the equal protection. at the ordinance · :utral effect on : restraint or de- ?be ordinance · 'here these films .:rates a reasona- c welfare is best .rtieular type of certain areas of :inance thus re- :e content of the nor disapproves er promotes nor ilms.s the Ci,y's great preserving the s through effee,- e record demon- r types of protect- is not essential to 1o not adopt it as ed here. We note, ~s confined in its ~g of sexually ex- the purticular cir- ,, ~ t!EN'*'~ CINEMA, IN(:. v. (:I?'f OF SEATTLE Cite as, ~'aM~., 585'F.2d 1 stratos tl~e City's sincere ~nd sustaine{l cf- fort to enhance and impr,,'. ,., the quality of 1~% in Seattle. Z:~ning is an extremely im- lmrtant too! for achieving lan{l-use goals in a municipality. See Villa~e of Belh. 7k'rre v. Boreas,-116 U.S. 1 94 S.Ct. 1536, ~ l~.Ed.2d 797 (1974). Thus, "the City's inter- esl in attempting to preserve the quality of Ill'ball life is one that must }.}c accor~tc~l high respect." Younassupra, 427 U.S. at 71, 96 S. CL. at ' ~' We emphasize that the lmrlmse of the ordinance is not to regulate the content of speech. Contrary to the assertions of the atq)ellants, the ordinance is not a {lisguised form of censorship. The record is relfiete with testimony rt'garding t}m effects of adult movie theater locations on residential neighborhoods. The evidence is more than adequate to suI~port the finding below that the goal of the onti,utnee is to preserve the character and quality of residential life in the City. [8] The choice of methods for locating t:dult movie theaters, that is l.o concentrate them in the business areas of the City rath- er than disperse them (as did the Detroit ordinance), is not of constitutional signifi- cance. The City's planning effort must be accorded a sufficient degree of flexibility for experimentation and innovation. Young, supra at 71, 73, 96 S.Ct. 2440. We cannot substitute our judgment of what would be the most effective method of reg- ulation in this regard. It should also be noted that the majority in Young specifical- ly approved the concentration ~nethod. Young, supra at 62, 71, 96 S.Ct. 2440. [9] Nor do we find it significant that the Detroit ordinanee upheld in Young had a provision allowing waiver of the ordi- nance restriction while the Seattle ordi- nance does not. Our conclusion that the City may regulate the location of adult movie theaters is not dependent in any way on the existence of possible waiver for ex- 7. The City also asserts an interest in protecting children as a justificati~m for the ordinance. This interest alone will not support a classifica- tion based on ~he content of .qpcech. Erznoz. nik ~: Jacksom,iih,, 422 U.S. 205, 213, 95 S.Ct. wash. 1159 i:~ting theater locations. Tile Detroit waiv- er provision likewi:,'e played no part in the reasoning of the rn:tjority in Young.. Nor is there any showing the appellankq are consti- tutionally entitled to exemptions from the zoning restriction in this particular ease. Appellants therefore fail to show any eon- stitutional deficiency in this regard. We conclude the City's paramount inter- est in protecting, preserving, and improving the character and quality of its residential neighborhoods is sufficient to justify this nonediseriminatory zoning regulation of the location of adult movie theaters.? We find no violation of Pirst Amendment or equal l~roteetion guarantees. We therefore turn to the final issue presented, the constitutionality of the pro- vision for termination of nonconforming uses within 90 days. II Appellants contend the 90-day termina- tion provision denies them equal protection in that no other nonconforming use must be terminated in such a short period, and de- nies them due process by erecting an eeo- notate hardship outweighing the public ben- efit to be gained by termination. [10] With regard to the equal protection argument, appellants fail to show they are similarly situated with other nonconform- ing users. This is particularly evident be- cause the calculation of a reasonable termi- nation period, as discussed below, depends on the facts and circumstances of the par- tieular case. Since each case must be deter- mined on its own merits, the equal protec- tion analysis does not apply. [I1] In Seattle v. Martin, 5,1 Wash.2d 541, 849. P.2d 602 (1959) this court recog- nized the power of a municipality to require termination of nonconforming uses within a reasonable perio~l-~f time. We adopted a balancing test to determine the reasonable- 2268, 45 L. Ed.2d 125 (1975). We recognize, however, that the particular needa of children are a significant element in determinin§ the quality of urban residential neighborhoods. ness of Ibc termination pcrio(t, that i. whether the harm or hardshit~ to tile user outweighs the benefit to the pul~lic to be gained from termination of tile use. Seat- tie v. Martin, supra at 544, 342 P.2d 602. As pointed out above, this test i; applied on a ease-by-case basis, looking to the circum- stances of each nonconh~rming user. Ap- plying this test to each of the al~pellants here, we conclude tile 90-day termination period is not unreasonable and does not deny appellants due process of law. Northend Cinema, Inc. has the license to operate the Northend Theater. The evi- dence at trial showed the owner and lessor of the building ia an officer of the corpora- tion. The leasing arrangement is thus very informal and may be characterized as ter- ruinable at will or on short notice by the parties. Therefore, Northcnd ia not bound by any lease obligation to remain at its present location. Nor is it bound by its lease or its license to show adult films as opposed to any other type of film. Fur' thermore, whatever costs it has expended for improvements to the building or neces- sary equipment have either been completely recovered through depreciation or were con- templated to be left as property of the lessor. Gaiety Theaters, Inc., operator of the Ridgemont Theater, is similarly situated. Its lease is the individual obligation of its president, and does not bind the corporation to remain at its present location. It is not bound by its lease or its license to show adult films. Furthermore, it has expended no funds on physical improvements. Apple Theater, Inc., is the lessee and op- erator of the Apple Theater. Apple entered into a new 3-year lease just prior to adoption of the ordinance, and while public hearings were being held on thc proposal. It is not obligated by its lease, or by its license, to show adult films. Furthermore, all costa it has expended in improvements to the building or necessary equipment have either been recovered through depreciation or were contemplated to be left as property of the lessor. In the face of '!:ese facts, tim court belt f:,und aPl~::llanL~ had not come forwa~ with any clear evidence of economic har~ The main thrust of their objection, th: simply having t'~ move to another locati~ or show a different typo of film is subs~. l.ial economic harm, is unsupported by ar clear evidem~e. The court had a right conclude that aplmilants' allegations th~ will suffer economic harm were speculati~ at best. The record thus aup~rL~ the lng of the court below that Northend Gaiety will incur no economic damage, an Apple will incur no clear economic damag by enforcement of the onlinan~. The public benefit to ~ g~ned hy term nation, we have said, is a step toward eo~ trolling deterioration of City neighborhomi. and toward productive land-use planninl This benefit is well suplmr~d by the mcor~ We conclu~ie the benefit to the publi through termination of these uses within 9 days outweighs the harm appellan~ wi~ sustain thereby. The termination pefi~ i reasonable, and appellan~ have suffered violation of due proee~. We are mindful that this or~iinance wa. p~sed in 1976. A temporary injunctim against enforcement of the zoning restric tions pending this appeal has allowed appel lan~ to continue normal business operation: in the intervening months. Much mo~ than 90 days' time has elapsed. Appellan~ have therefore had mom than ample tim~ to prepare for the contingency of having terminate their present adult movie theater uso. The temporar7 injunction is dissolved and the judgment below is affirmed. WRIGHT, C. J., ROSELLINI, STAF- FORD, UTTER, BRACHTENBACll, DOL- LIVER and HICKS, JJ., and PRICE, J. pro tern., concur. ,Stnpctubs. ~ .... ~, .... Stripctubs According to Strippers: Exposing Workplace Sexual Violence Part 1, Typical Activities © Kelly iIolsoPple, 1998 !~ o I_s o ¢}{} 2 ~.te._um ~..~_: e_d.u Kelly Holsopple is a co-founder of the Me..trop_o_!jt...a.n _C._o_.a..li.ti_o.n.. Ag~inst.P!'0.st. itut. ion in Minneapolis, Minnesota. Currently, she is a Program Manager for the Freedom and Justice Center for Prostitution Resources, Volunteers of America, Minnesota. She is the author of P.i~.n_ps_,..T_ricks_..ag)..,.d__F__e. nainists. INTRODUCTION The purpose of this paper is to investigate women's experiences in stripclubs and to describe the activities in stripclubs from the women's point of view. The format approach is collective story narrative with the author as part of the Collective voice. The research was inspired by the author's experiences in stripping over the course of thirteen years. The author's intention is to examine the conditions of stripclubs by describing the fundamental xvay stripclubs are organized. The description features bar activities focused on stripper-customer interactions, survey data on sexual violence in stripclubs, and women's thoughts on stripping. THEORETICAL FOUNDATION Stripclubs are popularly promoted as providing l.~armless entertainment and as places where respectful men go to watch and talk to women (Reed 1997). Stripclub customers are described as normal men who use stripclubs to avoid adultery and therefor fi~ti a safe outlet for their sexual desires in balance with their marital commitments (Reed 1997)..In contrast, stripclubs are criticized for being environments where men exercise their social, sexual, and economic authority over women who are dependent on them and as places where women are treated as things to perform sex acts and take commands from ~llen (Ciriello 1993). Stripclubs are or,.zanized~.~ accox'di~(,= to gender and reflect gender power dynamics in greater society. "Gendered spaces are social arenas in which a person's gender shapes the roles, statuses, and interpersonal dynamics and generates differential political and economic outcomes and interaction .e.xpectations and practices" (Ronai, Zsembik, and Feagin 1997'6). Stripclubs are more specifically organized according to gender inequality, which is perpetuated by gendered spaces and consequently sexualized (ROnai, et al 1997). The typical stripclub scenario displays young, nude or partially nude women for fitlly clothed male customers (Thompson and Harred 1992). The entire analysis of stripclubs is located within the context of men's domination over women. When organizations are produced in the context of the structural relations of domination, control, and violence, they reproduce those relations (Hearn 1994). These organizations may also make explicit use of gendered forms of authority with unaccountable and unjustifiable authority belonging to men (Heam 1994). The stripclub elicits and requires direct expressions of male domination and control over women (Prewitt 1989). In order to dominate or control and secure mt.~'s domestic, emotional and sexual service interests, male dominated institutions and individual men utilize violence (Hanmer 1989). Furthermore, male dominated institutions and individual men "forge alliances and strengthen the notion of group masculinity and power through forced access to the female body', (Brownmiller 1976:211). Stripclubs turn acts of violence against women into entertainment and enterprise for men. Men associated with stripclubs use force and coercion to establish sexual contact with women in stripping and inflict harm upon the women. Violence against women is identified as physical, sexual, e~notional, verbal, and representational, but all violence fi'om men against women should be understood as sexual violence (Heam 1994). This definition and the concept of a continuum are useful when discussing sexual violence, especially in stripclubs. Continuum is defined as a basic characteristic underlying many different events and as a series of elements or events that pass into one another (Kelly 1987). The common underlying element in stripclubs is that male customers, managers, staff, and owners use diverse methods of harassment, manipulation, expl:';~tation, and abuse to control female strippers. LITERATURE REVIEW Despite a substantial amount of' research on the topic of strippers, stripping, and stripclubs, none focuses on sexual violence in stripclubs perpetrated httlJ:llwww.uri.edu/artsci/wms/hughes/stripc 1 .hr m 1/14/200 ,Smpciubs, ...... ' '- against strippers. Iilstead the sI~dies focus on sociological and psychological profiles of the v,'c, rnen and the wome"~'s strategies for interaction with ct~sto~ners. Articles that £ocus on the women investigate the cultural space of' the female ~ude dancer, her perforrnance and auxiliary roles, test identity theory within the socially devalued role of the exotic dancer, and explore the effect ol'self-discrepancy on stripteasers' emotional stability (Forsylh and Deshotels 1997; Reid, Epstein, and Benson 1994; (Peretti and O' Connor 1989). Other articles about the women are concerned with contingencies for women's initiation and commitment to the deviance of striptease a~d xx'ith techniques topless dancers use to manage the stigma of a deviant occupation (Skipper and McCaghy 1970; Thompson and Hatred 1992). Studies focused on stripper and custorner relationships analyze counterfeit intimacy utilized by strippers and customers in interaction and perlbrmance and compare stripper and customer interactions with mainstream negotiation and sales strategies (Boles and Garbin 1974; Enck and Preston 1988; Ronai 1989) Although most studies mention male sexttal violence and exploitation, fl~e research regarding stripping fails to investigate and account for the problem of sexual violence in establishments that feature female strippers. The gap is the rationale for my study. METHOD Data for this research were obtained through interviews, a survey, and the researcher's participant observation ',vhile involved in stripping (Berg 1998; Babbie 1998; Lofland and Lc, fland 1984). Women in this study stripped in the local stripclubs in the Midwest metropolitan area where the researcher lives, in local nightclubs in the same area, in metropolitan and rural stripclubs and nightclubs across the United States, at private parties, in peep shows, and in saunas. The stripclubs featured a variety of attractions including topless dancing, nude dancing, table dancing, couch dancing, lap dancing, wall dancing, shoxver dancing, and bed dancing. In addition, some clubs had peepshows, female boxing and wrestling with customers, offered photographs of'the dancers, or i~ired pornography models and actresses as headliners. The study was conducted in two phases. In 1994, I conducted fi'ee'flowing qualitative interviews for one to l'bt~r hours each with forty-one women while I was still involved in stripping and compiled participant observer- notes about the activities in stripclt~bs. The women ranged in age from nineteen to f'orty years old and xx'ere involved in stripping from three months to eighteen years. All ol'the women identified themselves as Caucasian. In 1996. I proceeded to design ~ txx'enty-six-question survey according to themes derix'ed fi'om the intcrvicxx's to investigate sexual violence in stripclubs. My long-time inx'olvemcnt in the strip industry allowed an association with strippers that xx'as invaluable for administering in-depth surveys regarding sensitive issues. The surveys were administered face-to- face to insure the information was indeed fi'om the women in stripping. Again, the surveys and consequent discussions lasted from one to four hours. Many won'ten explained that they had never talked about their experiences so extensively because no one had ever asked them the right questions. Participants were asked to say whether they had experienced different abusive and violent actions in stripclubs, to estimate how often each action happened, and then to identify which men associated with stripcl'ubs perpetrated the action. The categories of men were defined as customer, owner, staff, and massager. Since I exited stripping, snowball sampling xvas employed to recrt~it the eighteen participants for the survey (Babbie 1998). Participants in tl~e survey were asked to pass on postcards to other women. The range of ages was eighteen to thirty-five years old. The age of entry into stripping ranged fi'om fifteen to twenty-three years old, with a mean age of eighteen years and ten months. The length of time the women in this study were involved in stripping ranged from three months to eighteen years with an ax'erage length of six years and seven months. Women predominantly identified tl~emselves as Caucasian. Only one woman identified herself as Hispanic. Twelve of the women described their sexual orientation as heterosext~al, two as lesbian, and four as bisexual. The survey data was analyzed on thc Statistical Program for Social Sciences (Norusis 1988). After the data was compiled, a l'ocu$ group of 4 women currently in stripping and with no prior association with the study positively evaluated the relevancy of the study and approved the collective story (Berg 1998). Statements in quotations througl~out this paper are derived from the 41 interviews and the interviews that often followed the administration of the 18 surveys. '--~- PART 1' 'FYPICAL STRII'CI~Ull ACTIVITI.E..S Recruitment · · -- Women find out about stripping fi'om a variety of sources. Upscale .. stripclub fi'anchises recruit in new cities by having managers and imported dancers scout in nightclubs. Most women find out about stripping from girlfi'iends already in stripping, ~nale associates, the media, and some from htlt~://www.uri, edu/artsc i/win s/hu ghes/stri pc I .ht~n ..~ 1/I4/200 Stnpclu~.s, :.~.-. ~ prior involx'emenr in prostitt~tiOl~. ©ne woman told how she loitered in and around urban stripclubs to i~.ick up customers when she was fifteen and how her pimp ex'entually drove l~cr tt~ s~nall town strip bars because these bars admitted her and hired her. Someo~e else got involved in stripping through an escort service for bachelt~r p'trtics. Another young woman who went to a gentlemen's club to pick up her fi'icnct recounted her recruitment as an eighteen-year-old. She v,'aitcd at tlac bar, was served alcohol, and the owner asked to check her I.D. Instcad {>1' censuring her for drinking, he told her she would make $1000 per weelc and pressured her to enter the amateur contest that night. She won the contest, $300, and worked there three weeks before being recruited into an escort service by a patron pirnp. In a typical hiring scenario won~en respond in person to a newspaper ad promising big money, flexible l~ot~rs, no experience necessary. As an audition the club manager asks the applicants to perform on amateur night or bikini night, both of whicl~ are particularly popular with customers who hope to see girl-next-door types x'atl~er than seasoned strippers. The manager will make a job ol'l'er based on physical attributes and number of women already on the schedule. Clt~bs portray the job requirements as very flexible. Women are told that they will not be forced to do anything they do not want to do, but clubs ox'erbook xvomen so they are forced to compete with each other, often gradt~ally engaging in more explicit activities in order to ean~ tips (Cooke 1987). Working Conditions Women in stripping are denied legal protection relating to the terms and conditions under which the3, earn tl~eir livings (Fischer 523). Most strippers are hired to work as indepe~dent ct~.ntractors rather than employees. Most strippers are not paid a wage (Mattson 1995), therefor their income is totally dependent on their compliance with customer demands in order to earn tips. More often than not, tl~e strippers have to pay for the privilege of working at a club (Cooke 1987; l;'orsyth and Deshotels 1997; Prewitt 1989). The majority of clubs demand ii,at women mm over 40 to 50 percent of their income fol' stage or couch ,'ental and enforce a mandatory tip out to bouncers and disc jockeys (F_.ncl, a~d Preston 1988; Forsyth and Deshotels 1997). Usually a minirnurn shift C'lUt~ta is set and the women must turn over at least that quota amount. 11' a wo~an does not earn the quota and wants to contint, e working at the est~tblish~ent, she owes the club and must pay off that shift's quota by adding it to the quota for'the next shift she will work. The stripclubs may also derive inct~me from promotional novelty items, kickbacks, door cover charges, beverage sales, prostitution, and capricious fines imposed on the womet~. As intlependent contractors, strippers are not entitled to lile discri~ninatio~ cl.ti~as, receive workers' compensation, or unemployment benefits (Fischc~' 1996; Mattson 1995). Club owners are free ,,' 'lo s and to~'t lia!, . from tax obli=at n ility Oxx'ners pay no Social Security, no health insurance, and no sick prty. Some club owners require strippers to sign agreen~ents indicating tl~at the;' are v,'orking as independent contractors and many clubs require wo~en to sign a xvaiver of their right to sue the club for any reason. Although strippers are classifietl as independent contractors, the reality of their relationship to their superx'isors is an e~T~ployee-employer relationship. Regardless of the agreements clai~ning independent contractor stares, clubs maintain enormous control over thc women. The club controls the schedule and hours, requires strippers to t,ay rental fees, tip support staff large amounts, and even sets the ;~ricc o1' table dances and private dances. Clubs have specific rules about costu~ing and even dictate the sequence of stripping and nudity. For examl:le, by the middle of the first song the w. oman must remove her tot~, sl:e must be entirely nude by the end of the second song, and must peril)tm a nt~de floorshow. All this regardless of whether cu'stomers are tipping l'..er or not. A club may further influence dancers' appearances by pressuring them to shave off'all their pubic hair, maintain a year-long tan, or under,,o= surgery for breast augmentation. At nude clubs, it is common for thc performers to be shaved clean, giving them an adolescent and even chiltllikc al~pearance. Clubs also exert significant con;roi over the strippers' behavior during their shifts by regulating xvhen xx'o~ncn n~ay use the bathroom and how many of them can be in the dressin,,.., roo~n at one time. Some clubs do not provide seating in the dressing roon'~ antl fo~'bid smoking in that room, thus preventing strippers from taking a break. When a woman wants to sit down or smoke a cigarette, she mttst rio st> on the main floor with a customer. Clubs enforce these rules tl~rou.v.:h lines (Cooke 1987; Enck and Preston 1988; Ronai 1992). Women are fined heavily by club management: $1 per minute for being late, as mt~ch ~s $100 for calling in sick, and other arbitrary amounts for "talking back" to customers or staff, using the telephone without permissi~n, and touching stage mirrors. Women are fined for flashin,,=, prostitution (E~ck :l~ltt Preston 1988), taking off'their shoes, fighting with a customer, bcino,., late on stage, leaving the main floOr before the DJ calls her off, not casi~ing i~ one dollar bills, profanity in music, being sick, not cleaning the clressi~g room, using baby oil on stage, dancing with her back to a customer' (E~cl< :tnd Preston 1988) and being touched by It customer. Despite the stripclub's repn:sentation of a dancing job as fleXible, strippers attest that their relationship xvitl~ ~!~¢ club becomes all consuming and everything associated with I)ein!; ~ stripper interferes with living a normal htlp:llw~m~.uri.edu/artsci/wms/hughes/stril~,.: l .h ! :n '~-1/14/20( life. And despite the cen,,m(,t~ t,..crcct.~tion that a woman can dvnce her way through school, many stript~ers ~'el:c)rt that their jobs take over their lives. Long and late hours, fati,,t~c.~ drtt,,....., and alcohol pro!.~lems, and out of town bookings make it difficult t,~ sxx'itcl~ gears. Not only do the women si~end a significant amount of their ti~n¢ i~ stripclubs, the activities and influences from the club environment pern~e:~te their personal lives and detrimentally effect their well being. Althougl~ stripclubs are considered legal forms of entertainment, people unass,'.)ciated with the industry are unaware of the emotional (Peretti and O'C(~nnor 1989; Ronai 1992), verbal (Mattson 1995; Ronai 1992), physical (Boles a~d Garbin 1974), and sexual abuse (Ciriello 1993; Ronai 1992) inherent in tl~e industry. Despite claims from management that customers are prohibited fi'om touching the women, this role is consistently violated (Enck and Preston 1988; Forsyth and Deshotels 1997; Ronai and Ellis 1989' Thompson and Harred 1992). Furthermore, stripping usually involves p~'ostitution (Boles and Garbin 1974; Forsyth and Deshotels 1997; Prewitt 19,q9; l',',oaai and Ellis 1989; Thompson and Harrod 1992). Stripper-Customer Intera"tions Main Floor Stripclub activities are offe~'cd i~ public spaces or private rooms or other isolated parts of clubs (Forsyth a~d Deshotels 1997). The typical stripclub scenario presents young, nu(.le or partially nude women mingling with fully clothed male customers. They circulate through the crowd, encouraging men to buy liquor, drinking [tt~ct t:llking with men, and soliciting and perfon'ning a variety of prix"tte cla~ces (Prexvitt 1989; Ronai and Ellis 1989). Women describe their role in the stripclub as hostess, object, prostitute, therapist, and ten~porary girlfriend and say they are there to entertain and attract men an,:l busi~ess for the owners. WOmen who work at small :;trip joints say they can hang out, order in food, and play pool during their s!~if't's. ()n the {~ther hand, women who work at gentlemen's clubs have to l~t~stlc l:hotographs and drinks and are required to sell promotional T-sl~irts, c,~lcntlars, and videos. They can be mandated to sell the iten~s with private tl:~nccs. For example, the dancers buy T-shirts from the house mom fbr $8 :~lci sell them for $15. So for $15, the customer receives a T-shirt and 2 $1(' table dances. Strippers at gentlemen's clubs are further informed by managc~ne~t that they are not allowed to buy their own drinks, that they have to be .sitting with customers, and can never turn down a drink, even when their dri:~ks ;trc full. Stage Women report dancing on st:xges :ts cheaply constructed by laying plywood on the benches ofres'taura~nt bootl'~s to stages covered with kitchen linoleum to wood parquet or marble stages in a few upscale clubs. Some stages are elevated runways so narroxx' tl~at strippers say that cannot get away from customers on each side toucl~ing them, especially when they are ~kneeling down to accept a tip in the :;/de o1' their g-strings/t-bars or when they have their backs turned. Stages c:~n also be sunken pits with a rail around it and a bar for the customers' beverages. During a set, a stripper may do striptease, acrobatics, dance, walk, or squat to display her genitals. Generally the progression for striptease begins tiuring the first song with the woman wearing a dress or costume covering her breasts and buttocks. Over the course of a set of 2 or 3 so~gs she will remove her bra and in nude clubs, her g-string/t-bar. Some clt~bs feature floorshows in which women crawl or move around on the floor p~sing irt sexual positions and spread their legs at the customers' eye level. Dt~ring :t floorshow, a dancer changes her movements fi'orn uprigl~t to !~ositions on her knees and squatting in a crabwalk in order to 'flash' tippit:g customers. "Flashing" is pulling the g- string/t-bar aside, revealing tl~e pt~bic area and/or the genitals. Dancers describe this as "doing a sh{~w" fbr paying customers. Ordinarily, a dancer only positions herself in fi'o~t oF tipping patrons (Prewitt 145). Customers who fail to tip are ignored. ,.'\udie~ce response can be expressed by clapping, hooting, barking, ,.vl~istling, amount of money tipped, or complete silence depending upon tin~,:: of d:ty, state of inebriation, excitement over the musical selection, or th:: appc:trance and abilities of the stripper. On stage, some xvomen's tl~,~t~ght:; wander, while others' focus on angry desperation. "I daydream a/,ottl t~,~th#~g in particular to pass the tone of 12 minutes." "I'm thinking abo:tt ho~, good I look in the mirrors and how good I feel h~ dat~ce movements." "l tel/myself to smile." "I think about getting high and that [ am making/'...;on~' to get high." "I am giving these g~ys every chance to be decent, .,.'o that I don't have to be afraid of them." "1 am filled with disdain for the ~':,.¥tont,:rs who do not tip, but sit and watch and direct you to do things fbi' ~, ~ mo~:ey." "I think of how cheap thes¢ fitckers are, what bills I need to pa.~' " : Private Dance Activities Private dances are usually l':'."rlbr~ned in areas shielded from the larger club view (Forsyth and Deshotci.~ 199"',., Prewitt 1989). As a rule, the private http:llwww, uri.edu/artsci/wms/hughes/stri 1~,.: !. h t~ ~ 1/14/200, · Stripclubs, ?a:': ~ '! '~ ~, · - dance inx'olx'es one f,~::alc .','~;~cc;' and one male customer. Private dances are situations x~'herc women.. :Ire (,,.'ten forced into acts of prostitution in orcer to earn tips (Forsyth ,= ~t l')cshotels 1997; Prewitt 1989; Ronai and Ellis 1989). Men masturbate, c)po~:ly (Peretti and O'Connor 1989), get hand jobs (Forsyth and Deshotel:, 199-), and stick their fingers inside women (Ronai and Ellis 1989). ,,lcd. with Foot fetishes have been known to suck on dancers' toes. A variety of private dances 'irc pr()moted in strip clubs. Table dancing is perfom'~ed on a low coffee ~'tble (~r on a small portable platfonu near the customer's seat. The wom:~:~'s breasts and genitals are eye level to the customer. Couch dancing l'~:t' :t ct~.stomer entails the dancer standing over him on the couch, dangling '~er breasts or bopping him in the face with her pubic area. Lap dancing rc(!,~ires 'he woman to straddle the man's lap and grind against him until he Ki'tcul::tes in his pants. A variation involves the woman dancing between hi,. legs while he slides down in his chair so that the dancer's thighs are rubb'~g l~i.q crotch as she moves. Bed dancing is offered in a private room a~:t re(lt~ires a woman to lay on top of a fully clothed man and simulate s,:xttal ;ntercourse until he ejaculates. Shower dancing is offered in upscalc clubs and allows a clothed patron to get into a shower stall with one ()r m(',"e wo~nen and massage their bodies with soap. Wall dancing requires a stri,,:pcr t.,,)carry alcohol swabs to wash the customer's fingers betbre !:~.' inset'ts them into her vagina. His back is stationary against the wall ~:'~d sl~c is pressed against him with one leg lifted. Peep shows feature s';nttl:~',cd or actual acts directed by openly masturbating custorners. Ct::.:tt)n~:.:rs sit in a private booth and view the women through a glass wi~),'ow. !,ire sex shows involve 2 or more individuals engaging in silq,~tl~ttc( or sexual activity performed behind glass or on a stage. Customers ol-,.'nly ~,~asturbate while watching the show fi'om the audience or through an ,, l)c,ai~:g in a private booth. During private dances wo~-, ~n art. conscientious about their boundaries and safety. "I don't want hin~ to :o~tch me, but I am afl'aid he will say something violent (f I tell him 'no '." "/:t.'as thinking about doingprostitution because that's when customers ~t.,ott,~,/ ln'O!:osition n~e." "I could only think about how bad these guy:v smell tt~.'tl It'3' lo hokt n~y breath." "Is pent the dance hyper vigilant to avoiding ~' ,...'it-/t,,:nds, n~ouths, and crotches." "We were allowed to place towels o~ ~he gt(~'s' laps, so it wasn't so bad." ".[ don't remember becattse it was x(, eath,:rrassing." Dressing Room Women describe a range (',l"ypc:: and qualities of dressing rooms. Strippers are expected to change clt;ti.ilqg 'I'i beer co,.:lers, broorn closets, and public restrooms. Some stripclub ti~'e.ssi~g rooms are nice with lights, mirrors, vanities, and cl~airs, and a~'c C¢luil~ped with lockers, and tanning beds. Other clubs hax'e make-up mirror:, bt~t ~:o chairs or ashtrays to prevent dancers from lingerino=. \Vome~ co~',, . plai~ that t.)o many dressing rooms are down isolated halls or in the basc~'~ents ~>£ establishments and that they have to scream for l~elp when custt~"~crs ;~trude. Some are so damp or filthy that thc women cannot take tlat:i~ sl~oc:q off'. Other dressing rooms are so frigid that dancers carry small spa,'e hc:tters to and fi'om work. The dressing rooms are used to change ct ,.-;tt~r~t:s, drink, do drugs, do hair and make-up, iron costumes, do homex~'{,~-i.:, 10ilt'h about customers, avoid customers, talk about problems, hang out. i~'~ strip joints and rural bars, women lay on blankets or inside sleeping !' 'tgs I:ctween sets and nap and read. The greatest response to q~,,. stio~$ regarding preparation for work was "drink". Women drink xvl~ii:. getti~g ready to go to work and they drink while doing their hair and l~' :~ke-: ~p once in the dressing room. Women who work at nude juice bars th'~t. 1o ~.:':t serve alcohol or at bars that do not allow women to buy their oxvn ¢l~'i'~ks r,~'port that they stop at another bar on their way in and "get loaded", l';:.'wec~ stage sets and private dances, women drink some more, clean tl~c~ ~selx'cs with washcloths or babywipes after performing on a dirty stage ~r bci~g touched by a lot of men, apply deodorant, and perfume tl~:'~' brc:~sts and genitals. ..S_t_..rjp.c.-..[u_[~s, Part 2. Survey Data htlp:llwww.uri.edu/artsci/wms/hughes/stril~.. 1 · 1/14/200. Stripclubs According to Strippers: Exposing Workplace Sexual Violence Part 2, Survey Data © Kelly Holsopple, 1998 h o Is o0()2 (d"! c. t~ n~n. cfi u PART 2: SURVEY DATA One hundred percent of the eighteen women in the survey report being physically abused in the stripclub. The physical abuse ranged fi'om three to fifteen times with a mean of 7.7 occurrences over the course of their involvement in stripping. One hundred percent of the eighteen women in this study report sexual abuse in the stripclub. The sexual abuse ranged from two to nine occurrences with a mean of 4.4 occurrences over the course of their involvement in stripping. One hundred percent of the women report verbal harassment in the stripclub. The verbal abuse ranged fi'om one to seven occurrences with a mean of 4.8 occurrences over tl?e course of their involvement in stripping. One hundred percent of the women report being propositioned for prostitution. Seventy eight percent of the women were stalked by someone associated with the stripclub with a range of one to seven incidents. Sixty one percent of' the women report that someone associated with the stripclub has attempted to sexually assault her with a range of one to eleven attempts. Not only do women suffer the abuse they experience, all of women in the survey witnessed these things happen to other strippers in the clubs. The overwhehning trend for violence against women in stripclubs was committed by customers of the establishments. Stripclub owners, managers, assistant managers, and the staff of bartenders, music programmers or disc jockeys, bouncers, security guards, floorwalkers, doormen, and valet were significantly less involved in violence against the women. According to the women in this study, almost all of the perpetrators suffered no consequence whatsoever for their actions. Physical Abuse Customers spit on women, spray beer, and flick cigarettes at them. Strippers are pelted with ice, coins, trash, condoms, room keys, pornography, and golf balls. Men pitched a live guinea pig and a dead squirrel at two women in the survey. Some women have been hit with cans and bottles thrown fi'om the audience. Customers pull women's hair, yank them by the arm or ankle, rip their costumes, and try to pull their costumes off'. Women are commonly bitten, licked, slapped, punched, and pinched. See Table 1 Frequency of Physical t Table I - Frequency of Physical Abuse A h~eiwp ! l~vor (hr A t I o~¢t A t I o~ct tGr~bbed by arm i78 44 C i 17 C l(3rabbed by Gr~bbed by 194 50 C i33 C , , Bitten i 56 'I 11 C -.- .; ? ~., ..... ~78 tLicked pulled Ptmched Pin'¢hcd ~ &t I ooet &t I ¢' , ,llC t ~ r ~ ....... ~56 28C ~ '6C ;11 C t I I ............................................................ ,. ................................ ; ................... ? ......... ;6M IllC , 6C i ; I .......... r F 28 C ! 17 C ii1 C !22 C ; , 16C ~IIC j i17C ..... ! ..................... - .................................. ;" ......................... r------- 139 .6C 16C !11 C I .,72 6C : ........ ~ ............................................................................ ~..... -~ .... .,~. i 'i ' 172 17c 17c -!~c i;~2c [ ! . , ............. .............. , ........... _.:., ..... ! 11 6C .. ! Spit on i61 6 C 1 · ! . ............ .... .._. [ tu .................. ulledcos me i83 22C ; !6C Ripped costume ~44 6 C · t i6C ............................ ......... ' .... .............. · Throw ice i 61 6 C : 11 C Threw coins 183 i 17 C [ 11 C . ~... :,. ....... , ..... . .................. ~...., t~w .~i'- , 6c .... ! .................. I I .......... Threw garbage .I :39 : 17 C i 11 C ............. .fl .................... . ............... ~ ....... . .......... ~_ ....................... i Threw other 39 17C llC . · 28 llC N = 18 Key' C = customers, O = owners, M = managers, S = staff Sexual Abuse Stripclub customers frequently grab women's breasts, buttOcks, and genitals. Customers often attempt and succeed at penetrating strippers vaginally and anally with their fingers, dollar bills, and bottles. Customers expose their penises, rub their penises on women, and masturbate in front of the women. Women in this study consistently connected lap dances to the sexual al;use they suffered in the club. "That's the first thing men try to do when they get close to you and alu.'ays in a lap dance." Stripclub oxvners, managers, and staff also expect women to masturbate them and some have forced intercourse on strippers. See Table 2 Frequency of Sexual Abuse and Table 3 Attempted and Completed Sexual Abuse. Table 2- Frequency of Sexual Abuse Abusive :~ Ever (by ,~ At Least · At Least Action ; men in ~ Once Every Once Every : stripclub) ~ Day (%) Week (%) ~(°A) · Grabbed breasts .: 94 i 6M: 28C.~ 17C Grabbed ! 89 : 39 C ~ 11 C ~ 39 C buttocks i ! ; : 6 M Grabbed genitals [ 67 [ 17 C { I 11 C Exposed penis to ' 67 i 11 C i 6C I 6 C ~ ' ~ 160 her ~ i ; , ' ............ ~ .............................. . Rubbed penison : 78 i 39C i 22C ~ 6C her i ' ' At Least Once Every Month (%) ; At Least : ;Once I · Every Yea , (%) i l7C ' 17C 6M 60 · 160 ; ,6S . i 17C .................. ~33C .. ; · ~ ................... !22C ~60 · Masturbated in 78 33 C , from of her 6 M · , .. , IIC ~28C N = 18 Key' C = customers, O = owners, M = managers, S = staff Table 3- Attempted and Co~npleted Sexual Abuse Abusive Action : Experienced Attempted : Experienced Successfull ~ Abuse (%) ~ Completed Abuse (%) I ' P,netrate her vaginally with 61 C i 39 f'mgcrs i 6 M ! Penetrate her anally with fingers 33 C i 17 , ! ! Penetrate her with object ~ 33 C ' 11 [60 Forcc her to masturbate him '28C '17 60 Force intercourse on her 17 C . I 1 · N-- 18 Key: C = customers, O = owners, M = managers, S = staff Verbal Abuse Customers, owners, managers, and staff alike engage in harassing namecalli~ Women are continually called "cunt, "whore", "pussy", "slut", and "bitch". Women in this study charge that men in the stripclub called them other demeaning or degrading names like ugly, looser, fat, pregnant, boy, stupid, crack, slash, snatch, beaver, dog, dyke, lezzie, brown eye, hooters, junkie, crackhead, and shit. See Table 4 Frequency of Namecalling Verbal Abuse. Table 4 Frequency of Namecalling - Verbal Abuse Abusive Ever (by , At Least , At Least i At Least Action : men in ' Once Every Once Every ' Once Every i stripclub) - i Day (%) i Week (%) .i l~,onth (%) ~ (O/o) Called "cunt" * 61 ; a8 C ~ 6 C ' 17 C '" ~6M 1 ~d"~lut" ~ 61 i 28 C ~ 6 C i 17 C ~ ~ ~ ~60 - Called "whore" ~ 78 ~' 28 C ~ 6 C : 168 ~ . .. . .....2 ............................. ~ ............................... , Called "pussy" ~ 72 : 39 C · 11 C · 11 C ........ ! I I , : . ............. Called "bitch" ~89 [39C ~ IIC i6C ~22C : ;6S ~60 : ~6M , ~ '6M : .................................... :. ................................... , ............ - ~ ~ r ............... , .................................................. Called other 56 :~ 17 C ~. 6 C ' ' 17 C : 6 C ~ 6 M ......... .' ~ ~ : . ............ - ................................ L .......... - ....... . . · ' At Least Once Ever: Year (%) , . · IIC 6 M IfC · !60 ;6M 6S .IIC , N = 18 Key: C = customers, O = owners, M = managers, S = staff Forty four percent of the women report that men associated with the stripclub have threatened to hurt them physically. These women report fi'mn three to 150 threats during their involvement in stripping. Threats range from verbal threats of slaps, ass whippings, and rapes to physical postures of punching and back hand slapping. "When I wouldn't let a customer grab on me, he wouM call me a bitch and threaten to ldck my ass or rape me." "When a custo:ner grabs and the woman and the girl takes action, they threaten". Stalking Men associated with stripclubs repeatedly attempt to contact the women against their wishes. Strippers are followed home and stalked by stripclub customers. Customers telephone, write letters, send gifts, and follow the women around against their wishes. Won~cn recount stories of catching customers followinl them to fitness clubs, parks and lakes, day care centers, and even lesbian They describe times when customers have broken into their homes and take~ underwear, hairbrushes, and family photographs. Women say that other customers have used their jobs at the telephone company or within the crimi justice system to target the women. The women complain that customers als have followed them home masturbating while driving in the next lane. Worn who travel the strip circuit to rural areas report that customers and stripclub owners, managers, and staff alike follow women from city to city and state t state. Furthermore, local men in small towns harass the visiting women by calling and knocking on the doors of the motel rooms and have been caught peeping in the windows of strippers' motel rooms. See Table 5 Stalking Occurrences. Table 5 - Stalking Occurences Abusive Action Ever (by men in stripclub) : Range ofoccurre i(%) .. Sent her letters against her ~ 28 i 3-100 times wishes : , ! Sent her gifts against her wishes ', 22 .i 2-100 times Called her home against her ~ 39 ~. 2-360 times · wishes Followed her home against her 56 2-500 times wishes ' : .. -,.. ......................... ............................................... ~.. i ...... ~ ............................ ] Followed her to her car against "67 .i 12-500 times i her wishes Followed her around on her 28 i 1-150 times '28 !6-360 times ~ I ! 28 I 1-360 times private time i[Followed her from club to club, city, and state · Other N=I8 Twelve percent of the womerl who reported being followed to their cars further reported that they were robbed (5.6 %), beaten (11.1%), threatened with a weapon (5.6%), verbally sexually harassed (66.7%), and sexually assaulted (16.7%) by customers. A customer who claimed he was in love ~vith the woman followed her to her car, called her a "fucking cunt" and strangled her hard enough to cause blood to squirt from her nec!:. Sexual Exploitation Only a minority of women report that they were asked to perform sexual acts on men associated with the stripclub in order to return to work (11% by owners); as a condition of being hired (11% by managers, 11% by owners); in order to continue working there (17% by owners); in order to get a better schedule (6% by owners); or for drugs (17% by customers, 11% by managers, 22% by owners, 11% .by staff). A majority of the women, however, report they were asked to perform sexual acts on men associated with the stripclub for money (100% by customers, 6% by managers, 17% by owners, 11% by staff). Customers and pimps constantly proposition women (Boles and Garbin 1974; Forsyth and Deshotels 1997; Ronai 1992; Ronai and Ellis 1989). Fourteen (78%) women from the survey report they are propositioned for prostitution every day by customers, three (17%) every week, one (6 %) every year. Women comment that customers ask them "Do you date?" all night long. "b~finite...too many too count." Women say that prostitution is influenced and suggested by management. One woman new to stripping was dumbfounded at how little money she was making taking her clothes off, so she asked the manager for his advice on increasing tips. He suggested turning tricks and said he could help her set up dates. Management sets up tricks, says it is good for business, and obligates women to turn over money from prostitution to the club. Women say prostitution is promoted even though owners tell women they would be punished if they turn tricks. Some stripclubs are notorious for promoting prostitution. "You have to be a 'ho to work there". Women disclosed that they were recruited into prostitution through stripping. Although the strip industry markets stripping as something other than prostitution, some women consider prostitution an extension of stripping and stripping a fonn of prostitution. Pimps season women first with stripping and then turn them out into brothels or escort services for more money. Tricks, sugar daddies, t)imt)s, and druo~ dealers in the strir)club seek to en~a~ze women in pro~titution. Another youn,g, xx'oman said that soon al:er si~e beca~::e inx'olx'ed in stripping, a pimp who posed as a customer in ti~e stripclub manipulatefl l~er into an escort service by promising that she could make more money in less time simply by accompanying businessmen to dinner. She agreed in order to feed her crack addiction and as her addiction increased she slid down from gentlemen's clubs to escort s~ rvice to brothel to street and crack house prostitution. Not only are women in stripping pressured by customers to perfom~ sexual acts on them, owners, managers, and staff pressure the women to perform sexual acts on them, their relatives and associates, on vice officers and police officers. Women explain the pressure could range fi'om being coerced into dancing for the intended with an expectation to put on a real good show with special treatment, extra time, and sexual contact, to engaging in prostitution. Strippers, like other subordinates in worker-management relationships, respond with obedience to directives from management and others with attthority (McMahon 1989). See Table 6 Percentage of Women Pressured for Sexual Exploitation. Table_6 - Percentage of Women Pressured for Sexual Exploitation Recipient i Pressured ~Pressured 'Pressured i Pressured 'Pressured Pressun ~ by by owner : by : by staff by vice by polic~ :customer (%) 'manager '(%) , officer (%) i officer (' Owner's friend Owner's .i ' Owner's business associate Manager's associate , , Customer i72 · Vice officer ~ ' ~ ................... Police officer t ' 17 '! ~ ' ' N=I ................................................................................. ~smpc ,lab~ .-- o Stripclubs According to Strippers: Exposing Wo 'kplace Sexual Violence Part 3, Women's Thoughts on Stripping © Kelly Holsopple, 1998 h o is t ~002 t~.t c., u m n_..e, d_u PART 3' X~'OIXlEN'S Ti-IoU(;HTS ON STRIPPING Money Women in stripping are ox'erwl:clmingly motivated by the promise of wealth or a will to survive (Skit,per and McCaghy 1970; Ronai 1992; Thompson and Hatred 1992). Stripclub owners, managers, pimps and the media portray stripping as a gla~norous way to earn big money fast and use this strategy to lure younr,~ women into stripping. Women in this study report the best part of stripping to be the money. "The only part that keeps me there is the money". At the same time, wor".'2,.~ are trapped and disappointed by the money. "1 hated it...but gt,~d [ had it at the time for the #,come."" Wome~ are redttced to exposing genitals for $1 bills." "It pays the bills.., if we could pqv bilh' ,'mother way we wouM." "The bar owners and manage~.~ent are exp/oitati~.'e, they steal money." "It's hard to get out because of the money." With respect to the money strippers seek to earn, they in turn must pay out 'fines, kickbacks, 100% of their social security insurance and taxes, travel and i~otel expenses, and the costs for costumes, tanning, and plastic surgery. Wt~men report that they have to have the right attitude to make money (P, onai 1992). This ordinarily was described as being drunk, high or numb (Fo~'syth and Deshotels 1997). Others feel it required tolerance. "The ahilio: to ignore customersJbrjust being there." Most women say it is easier wi:on the men are tipping regularly and when they do not have to inten~ct wit l~ men intima,.ely. Women acknowledge that strippers measure their worth at'cording to the amount of tips they earn and that they want attention, accept:tnce, and approval from the customers because it brings money (l':utte~'~nan 1992). Skills Women in stript~ing/'eel it ctoe: ~'t take much skill to be a stripper (Forsyth and Deshotcls 1997; Skipt~cr a~:d McCaghy 1970). "It would be nice to say women need dc~r'e tale~ /~l~! it '.v not true." "Tits, puss).,, and blonde hair is all it takes." Instead they ~'cf'err,_'d to dissociation to abuse. "It takes a willingness ~o do it...an~'/)ody c'~t~.~ do it." "It takes somebody ~'ho can shut themselves q[//"~d be rert/~;:f'a/;,::." "...the ability to take a lot of abuse." They state a stripper needs a gt3t~d head on her shoulders, an open mind, guts, strengtl~, a~d survix:rtl skills. They believe they need abuse counseling, a lifeline fi'om the "outsitlc xvor!d", and education about what's really going on. "Need to k~ow they/::~.,e ol::ions, that they aren't always going to be a 'ho '." Women in strippi~g xvant a union to protect strippers, decent working conditions, ihir treatme~.~., and ~ end to cruelty by management. Lastly, strippers think that womc~ and girls don't know what they are getting into when they first start danci~g. '~1; 's really ha~w~ful because it is so benign, so accepted." "Gi~'Is think/~to'), wi{! have fi#~ dancing and get paid, they have no idea the)' ha~,e to fight ~ten .; hands, and dicks, and tongues, and then fight for eve~y.Jitcking dollar bi:'! you earn." "It was a lot different than I originally t/tott,ght." Men . The women in tl~is study conde~nn the men associated with stripping and the impact stripping has o~ the~'=~ as the worst parts of stripping. Women do not like the xvay customers treat them (Thompson and Harred 1992). Furthermore they say thcy do nt:t like talking to customers, asking men for money, and resent havin'.4 to have to deal with them at all. They find customers irritating becat~se they are drunk and have negative attitudes towards women. Women chara,.'terize customers as scum, psycho mama's boys, rapists and child molesters, old perverted men, idiots, assholes, and pigs. Strippers ~re largely disg~sted by customers and describe them as pitiful and pathetic, stupid and ignorant, sick, controlling and abusive. "They smell'so SOt.ti', th~: /,reat/;e very heavy and kind of wheeze when women are neat'." "The), ,tt'e w~',tk abusers who have to subordinate women and girls to../kel Ii~ce a n~, ~. 1. ee my dad. They're old enough to be my father." "Yttck. [ ant rept,'lxed l~:' the sight, sound, smell, and touch of them." "I'm embat'~'a,v.redJbr the, t." T!'~e women offer insightful evaluations of stfipclub custo~ners. The:.,.: say ti,at these men do not know how to communicate. Moreover. !hey i:erceive that customers are out of control, have power ~ntl abuse pr~!.~lem.<, and will do anything to degrade women because they h:~te women's. Stril,i,ers also state that customers want a free show and thi~l< women ~::'t.: chc',p. In contrast, a few women positively perceived so,nc customc~'.s as n'.:e and added they are thankful to those who tip well. http://www.uri, edu/arts c i/wn ~ s/h u ghes/.s: r i i,c3. !,,~ n 11141200, Stripc :ubs.; \¥'01]1C1'1 ill t.l'liS study un' i~,::btc, '7 deno~ce stripclub o~'ners as pimps and "gloriiied pi~nl~s" and n':.'i:~t:'tin 'hat ow~ers misuse powt:r and are sick. Ti~e women also l'tbel· mana~,,'~'s._, as ;'",imps citin~ that they mistreat women, that they make ex'cry attempt [,~ tak,: money fi'om the women, and that they are sick because they are a£1il':tted '..vith the industry and know the harm they do. Strippers accuse man:tgcrs ~ .f'being threatened and jealous of the money women mal.:c ~d that xx't:~nen '::'e just a dollar to management. Finally, wornen refer to staffmu.,'..;c pro?rammers, doormen, bartenders, bouncers, floorwalkers. ~nd valet t't:.: :van~':'t-be pimps because they always want to be tipped. The x~'o~nen see ::t'.lTas .lerelicts ,,.,,:ho can't get a job anywhere else and who think they are c,.~i fo~' working in a stripclub. Strippers perceive staff as crecl,y ~tnd disres!',ectfi~ and as "looky-lous" who just want to look · at naked wo~en for free. \\~om,.:n criticize staff by pointing out that at least owners are ~aking big n~t,t~ey. ?ew women had positive responses, but those that did l'clt they~,,~,t alon~. well with staff and had no real hard feelings. Clearly strippers' attituclc:-', abo,.~t men are impacted by the activities in stripclubs. \Vo~en say ti:cy dot"t like men and men are worthless. Likewise women belicx'e stripping it~l~ibi,s their ability to be involved in a normal relationship. "/t q/./kcts )'.:.,t:.~' lo~':,life and feelings about men." "Nice boyfi'iends ~'a~ 't handle/,.." "T('..'~ large a percentage of men fit into category of customer ~':~,'l I cio not '.,:wnt :'., hate men." Strippino Women in tl~i:; stttdy ext:~'csse(l :nostly negativism regarding their experiences i~ stripping ,,,';tl~ tl'~.'mes of abuse, deception, drugs, and low self-esteem. "l ~ould ne~'r,:' do/~ again. It was degrading." "No doubt that it led me to p~'oxtitution a~:,/ :~ty l)":np." "Taught me how to control men and gave me a./'a[.s'e ilh.tsion q/"cOttl:'ol. Takes a long time to regain self-control." "Don't do it. O~ce you do it, it ..v hard to get out." "If there is any way you can avoid it...it is hard t.:~ .'..get o~:t once you start." "I wouldn't recommend it. It is too strcs.s.'fitl and I a~ alwc :'.s comparing myself to other women on the outside." "I ~t,i.¥h I had l~til tirOl',' nloIIey alqay and had more education by the time I qttil. [just didt~ '.:/;no' ~, it wash 't about success for us, it was about using us." "I .¥pent my e~t,.i~'e yo.'tng'adulthood being abused. It is hard to undo all this." "Drugs d,.'.:'tt'oye,..; beaut(/i.tl, healthy women." "I blame the men.., it is ali/~ctd. I di&~ '~ !/t[nX' highly of myself while I was in stripping, but I am glatt I got out o/'i,, by standing up for myself" "It is hard to view myself for who [ a,~ and ~:~, accomplishments rather than how I look and attention fl'()lll .~ten. [ ge;: ~Ois.fi','~,'t stripping." Some v~'omc~ exprcssec! '..:..cin~tioI'~ u,'itl~ stripping. "It. has been a~ experience ~).I ',~ /(/Z'ti, ze. ," 'c sec~ e~'er~'thing...some crazy shit." "I have never seen ~h.;~,rs,~. like I/:,.:'e see~ i~. s,'i/)ping. It is u,eird." Still others felt positively ttbc,t~t their ex ~,,.'~'ience. "[fit .~-'asn 't for the money I made at it, ! would have ~zo/hi~g tit,~,,,., .. ,:ow. "It has its ztps and downs, but I ahvays enjoy the music t't~tc/ t/a~cing t.,.'::./ the attention." "I have been extremely fortunate as far as whit/hap/~eneti ,:'.,; .s. trii)ping. It provides a good life, but I look at it as a job, wo~'/; ,/a), .s'hi. fi.~' ~.,.,',tl ~.,o~'k a straight job at the same time." A few women also ttctcrmined i.":'~sitive outcomes for themselves from their involvement i'~ strippin?. "/t se~'ved its purpose as a group for a sense of belonging." "//e[pect nzc: /',.'cog~ize what is right and wrong, and what is right and w~'o ~,'.4./b r me.:' "... !fi. et' surviving it I felt strong." "Stripping distracted n~c./i'o,t nzy t),.../:vo~za/ problems that led me into stripp#zg...no way could I h,'t~'e held n, ,:'.,'~aljob with the problems I had." Above all, wotnen in stri:",,ing reject the popular image of stripping and clarify the cot~mon misl-:.-~-ceptions about stripclubs. "That no one touches you, wome~ c'~.I/oy it, a~,',' ,'; 's okay]br men to go there." "That women actually get to ~'ear a c~ :.~', time and actually get to dance." "That we get sexually arott.ved doing ~:'~ .'.¥." "That men are there to have hannless fun, when they a~'c, ~'eally the/',, ~o abttse women." "That it is a bigparty and that the women ~t:a~t to be th:.'~'e./br some reason other than money, like sex or to meet men o~' because ~/:,..:v are nudists or exhibitionists." "That you are doh'tg thing, v.l.,,)It want to, ' c, doing." "Th. at they are not degrading us because girls ,.'t/~va..vs a~'(.., :.vtiJ. j,ing it with college." "That it is not prostitution." "7'hat it ix-. ':tt~zOt'OttS, fast n'tot~ey, easy work, way to get ahead." DISCUSSIONS AND (" CNCLUSIONS Men associ~ttc¢l with stril,:"lubs use force and coercion to establish sexual contact witl~ ss'omen in .s~',pping, proposition women for prostitution, intentionally i~llict bodii,,' I~arm upon the women, and expose themselves to the women. 'l'l~cse actio~s ;~re prohibited by law, yet when these crimes are committed ~gai~st womc,.~ in stripclubs, the general attitude that strippers deserve wh~tt tl~cy get p~'.'...'.','ails. Women's complaints of abuse are met with contempt and ~t~'e dismis:;,:,..I by owners, managers, and staff. Women are customarily t~icl to ignor,.'.. :~buse and have been rebuffed with "Go bend over and do ).'t~ur.iob" a~,.'; "You have to expect a certain amount of that." In the case ot'wt~e~ in st~'i",i~ing, enduring sexual violence is part of her job description. \'"x:,'~nen in :.:' "' i~ping are expected to endure these abuses, degradatio~s. '~:d humil'.,l ions with a smile and a "Thank You". http://www.uri, ed u/artsc i/x x' ! ,.: :.;/l~ t ~ gh es/: ~ ~" I :c 3. h tm · :~..: 1/14/200. Stripclubs ;,; .:."' The degree o i' :-;cxt~al ,,:it,' ":ce perpet,'ated against strippers explodes tt'~e myths abot~t st~'ippi~'~g a,-, 'trmless entertainment. The verbal harassrnen:, physical ai~l :~,:xual abra.',, and financial exploitation women suffer in stripclubs is t'~l~arztlleleti '~ any other legitimate workplace. Women in stripping arc st~bject to :~.' 'OhS that would be perceived as assaultive or a least unwa~tc~t in any o~!~ '~' context or were directed against other women. Stripclubs all:~,a.' men to ',. c and abuse v,,omen in a manner that is not tolerated in a~x, other bt~,. ":ess. The organiz:tt;c,~ and c(,':."tions of stripclubs not only produce and :.'eproduce ge~lcr inequ~' :' y, but facilitate and normalize men's violence against v,,o~nc~. Sexual ,., ',fence has been nonrtalized, institutionalized, and legalized in tl,c stripclub ':'dustry as socially sanctioned male behavior. Stripclubs an~l tl~e ~nen ~. ',,~ciated with stripclubs have turned acts of violence into c~tertainmc'~t and tied male sexual pleasure to victimizing and exploiting. St~'i~,clt~bs arc -:tructured according to male domination and control, and r~:'c inherenti, violent. It is impossible to set up stripclubs without sextt::i violence '~ :~.1 that is reason to challenge the legitimacy of stripclubs. Furore rescarcl~ should :~,.' it'ess men associated with stripclubs and their views on x~'o~'~c~ i~ stripi' .ng and stripclub activities. An exploration of why stripclubs exist, an expl:~t',,tion of'why men go to stripclubs, and a description o 1' l~()w stripe~ ~b owners and government policy establish the tone and cttllt;l'¢ ofstript.'~.bs are also in order. Future research should explore ge~d,:'t' role soci;.:"zation and female strippers' perceptions of sexual haras.,,"~cnt and ,,"..~ence. The definition of sexual harassment should be tested witl,, strippers t.-, 'earn if they perceive actions differently than women in otl~.,.:r xvorkpla,.':.s. In turn, strippers' rights in the workplace must be considereti. Studies Il. ,~sed on women's emotional and psychological response to x'i,.~ience in s'~';pclubs, including drug and alcohol abuse, should be conductett. REFERENCES Babbie, Earl. i998. The ," :.'actice of Social Research. Belmont CA' Wadswortl~ l't~t)lisl~ing ( .. Berg, Bruce. 1998. Qutt;,..:rive Research MethodsJbr the Social Sciences. Boston MA' ..,'\ llyn and !".t:on. Boles, Jacqt~,..',i~e and A. '. Garbin. 1974. "The Strip Club and Stripper- Customer l'~t t~.~'ns of In~.'. ~ction." Sociology and Social Research 58'I 36- 144. Brownmillc~'..<.,~s:tn. 19' '.. ,4gainst Or,' I'I')'ll: Men, Women and Rape. New York NY' S',,~t.~in Book. Ciriello, S:tn~!~. 1993. "C,-.: ~modifi'cation of Women: Morning, Noon, and Night."Pp. '."~ c.4-?_ 81 in7 .,.-. .'~sfo~'ming ~1 l~ape Culture, eds. Emille Buchwald, I",t~cla Fletc!',.'r, and Martha Roth. Minneapolis MN, Milkweed Editions. Cooke, Amber'. 1987. "$~ 'pping' Who Calls the Tune?" Pp. 92-99 in Good Girls, Bad (';,",'/x' l"e,'~i~: ".; and Sex Trade l,f/orkers Face to Face, ed. Laurie Bell. 'l'c~ronto' Se:~. Press. Enck, Grax'cs' i;. and Jan'.,,.:~ D. Preston. 1988. "Counterfeit Intimacy' A Dramaturgic:' i ,\nalysis ,,.'an Erotic Performance." Deviant Behavior 9:369-381. Fischer, Ca~'~'i..-.: l~enson, i '~96. "Employee Rights in Sex Work: The Struggle for 1 "~t~ccrs' Ri?'.ts as Employees." Law & InequaliOc A Journal of Theory ct~,'i /~'actice, ' "521-554. Forsyth, Grail.: and Tina i "cshotels. 1997. "The Occupational Milieu ofthe Nude Dancer." Deviant '~ ,havior 18' 125-142. Futtem~an, ,¥1:~rilyn. 199". Dancing Naked in the Material WorM. Buffalo, NY' Prometl~,.;t~s Books.' 'anmer, Jalna, Jill Radford and Elizabeth Stanko. 1989. I, go,~{':~. ?olicing. ,..,:d Male Viole,.ce: International Perspectives. London' Rob. it Icctg¢. Hcam, Jeff. I'.)94. "The ~' ~'ganization(s) of Violence: Men, Gender Relations, Or,~:tnization:;. 'ind Violences." I~ruman Relations 47:731-754. Kelly, Liz. I t):,17. "The (.', ,~tinuum of Sexual Violence". Pp 46-60 in I~omen, Vio/~'/~ce, and S:. '~al Control, eds. Jalna Hanmer and Mary Maynard..,\ii'tntic Higlai":~ds, NJ: Humanities Press International. Lofland, Jol~: ttnd Lyn 1!. Lofland. 1984. Analyzing Social Settings: A Guide to Q~tct/ilctti~.,e 0/~.;', .'.'ration and/l,alysis. Belmont CA' Wadsworth Publishing C, ,. Mattson, Hci,'i. 1995. l~', League Stripi'~er. New York, NY: Arcade Publishing. McMahon, r,"~ristopher. '~89. "Managerial Authority." Ethics 100'33-53. http://www.uri.edu/artsci/:,.',~::/h ugh cs/.-'i' ': .~c3 .h tm .1/14/201 Sm;:.-lubs. ::.,:-: :. '.'. . Norusis..51:~I-"-t. 19S.S. ~' ..'S/"PC ~- I.,'?.:'; £r'~se?,.'lanua!. Chicago IL' SPSS, Inc. Peretti, Pete.': ). a~d Pat,"~'i,: O'Connor. 19..q9. "Effects oflncongruence Between thc i crccived ~-;.' l'and the Ideal Self on Emotional Stabilityof Stripteasers." .;'ocial Be/t, . .'ior and Personality 17'81-92. Prewitt, Terry., .I. 1989. ": 'i<e a Virgin' The Semiotics of Illusion in Erotic P::rformancc." The ..'t,~:~',. 'tn Journal o. f Semiotics 6'137-152. Reed, Stacy. ' ')97. "All 5':'ipped Off." Pp. 179-188 in Whores andOther Feminists, c<l .fill Nagle. :' :ew York, Nh" Routledge. Reidl Scott ...'\.: .Ionatho~.. Epstein and D. E. Benson. 1994. "Role Identity in a Devalt~ct~ Occttpatio:'. The Case of' Female Exotic Dancers." Sociologica//.'(~cus 27'1..'' 7. Ronai, Carol :,'.ambo ant! 'arolyn Ellis. 1989. "Tum-ons for Money' Interactional ";trategies t,~ the Table Dancer." Journal of Contemporary Ethnograph)' ~ 8:271-2971. Ronai, Cato! ,~.alllbo. 19':' '. "The Reflective Self Through Narrative: A Night in the [. 'l'e ol." an [-..', .'.,tic Dancer Researcher", Pp. 102-24 in Investigati~t::r .:~':tbjectivi(;" Research on Lived Experience, eds. Carolyn Ellis and Nlici~ael Flahe~'t'. Newbury Park, CA: Sage Ronai, Cart'.,i ':,':~mbo, B: :" :~ra A. Zsembil¢, and Joe R. Feagin, eds. 1997. Eve~Tday ?:'c.','.~'.:':~t i~. the ". h"d Milleniu,z. New York, NY' Routledge. Skipper, Ja~,..~ K. and ("~. ~rles McCaghy. 1970. "Stripteasers: The Anatomy a~tl "' - · ' ,..al eer Co~ ngencies of'a Deviant Occupation." Social Problems 17' '91-405. Thompson. ',',"-'illiam E. :~;'..1Jackie L. Hatred. 1992. "Topless Dancers' Managing .q',ti"lr~;.t in a 1'~),' 'iant Occupation." Deviant Behavior 13:291-311. , · . · .. VS. MUNICIPALITY OF ANCHORAGE, Defenda-t. ORDER GRANTING THE MUNICIPALITY OF ANCHORAGE'~ MOTION FOR SUMMARY JUDGMENT AND ~-- DENYING WESTFORK'S MOTION FOR SUMMARY JUDGMENT Introduction and Facts Anchorage Municipal Code (AMC) section 21.24.240 regu!a~es ioca-ions where an adult bus ~.ness, including places offering nude dancing, can operate. Westfork desires to ope.n a strip club in an area that is prohibited by this ordinance. Westfork moves for summary judgment on the unconstitutionality of this ordinance, the Municipality of Anchorage (MOA) moves for summary judgment on the constitutionality Of this ordinance. The justification for regulating adult business is not in dispute. What is in dispute .. is whether AMC 21.24.240 allows for reasonable First ~endment .-. protected expression. Westfork claims that there is approximately 200 acres of land available in Anchora. ge for new adult b..usinesses. For the sake of summary judgment, the ,MOA does not dispute this fact. ..:,.'~.'-" . ~ ..... . ... e.'.-AZask~.~ C~s: ~ ~u ~:'" .:.":'?:";':". '"" - ~ · The lccaticn of an adult balsa'neSs '.may be r=gu~a~ed by ~cca~ goverr, men;~ using time, pla-e, and manner restrictions. The b.ni~ed's~a~es Supreme Cour~ held tha; such time, place, and manner res,-~ ,, ---c~ Ohs mus~ leave oper. reascnab!e a!~erna;ive avenues c: communication ,, - . , 475 U.S. 4!, 53 (1~86) There were no . adul~ businesses located in Renton before their ordinance was ' Passed. The ~ni~e~ States Suprene Court further explained in R~ntoR tha~ reascnable a!terna~ive fcrums existed when adul~ businesses were limited to areas th'a~ were not available for develcpment cr were alread7 occupied by Other businesses. . 53. . Westfork, s Motion for Sununary Judgment . Westfork, s argument for summary judgment is simple.-Westfork claims that under R__enton constitutional ordinances mus~ afford a co~,ercially reasonable number of accessible alterna~±ve · Sites.', Wes~fork, then relying on the affidavit of Mr. London argues that under Anchorage,s ordinance few, if any, commercially ~Westfor.~ does not argue that the Alaska Const±~ution should · offer greater protection than the United States Constitution. .. ~~Z~~ ~ ?.:~'~. :.-. :. .... .... -~ .... e.'~.~: ..... '-". ' '-.. = ~ · · . a~c~,~-,=. ......~..: ........ ...: .~ ':. '.'5;Y7; .7."-] ~." ~' .... .-7~" -.= .... a ~ ~ 0 e S ~ ~ ~ - ~ . ' -.O~-':'.'~:g .....':.: ......... ""- :":.' ' ' '.'.': '.' '.." ' ".' ' ~ · ~ ~ ~ U& ~m requ:,es tha~ an ordinance allows_~: na '~e s~=e=, rather, ' '' -' ' for reasonable alterative av-enues of expression. The language in ~ that Westfcrk relies on explained that in a city where no forums for adult , eXPression e×~sted, the c~ty could not effectively deny a reasonable °P~cr~unity for a business to Open a forum. Anchorage already has avenues for expressio~ th'rough nude dancing. Additionally, a reasonable opportunity to open a strip club is. different from ~'rcvidlng con%merciai!y reasonabie acceptable · sltss. Since Westfork,s motion for sununary judgment is premised on a misreading of Ren_~ton Westfork,s motion for SUmmary judgment is denied. The MOA' s Mo tion For Sununary Judgmen t- The MOA argues that reasonable avenues for adult expression · are available to Westfork.' The MOA points out that the Court in Ren_~ton found that the 520 acres of land available for new adult businesses was ample even when. accepting as true that most of this land was either not available for: new development or was presenEly occupied by oEher lessors. The MOA also points out that Some adult busines§ Sites, including places Offering nude dancing, have been grand fathered even though they conflict with o I : ,! · .~: ~.' .-. :~.. :...: .~ '..~ ... · ... -... ..~ ~ : ....... .. · 2 ~ · ~'.:. ...... ,....-~..:.:.~. s -ar~umen~ Firs~ '-"(~5~":~. ;.'"/..: -'" ....... ~, ~'es:fork- claims ...<: .~:~.?....,.;..~:...... rdi~,.ance is unccns:itutional on ~s face since i~ ~.~2., .,, .., , · ...~ _ , · ~,,. ' ', .",' . .,,.. ,, .." provides only 200 acres of land for new adul~ business cr ,. approximately ~.25% cf Anchorage,s land mass as opposed, to the fac~s of'~entc~ where 5.2% cf Renton's land mass was available , ~or adult businesses. Westfo-k also argues that of the grand fathered adult businesses only three are s~rip clubs, and the remaining business do not offer ample pa~king for a strip club. Finally, Westfcrk argues tha~ of the 2~0 acres of land available for a new adult business approximately 120. acr. es lay southwest of the Minnesota/O'Malley curve in South Anchorage and accordingly , are no~ suitable for development, with the remaining 80 acres in already heavily developed areas. 2The MOA calculates the ratio of adult businesses to Anchorage residents ,and compares this with the .:*atio of adult , businesses in New York City. Westfork calculate the ratio of nude dancing forums to Anchorage residents. Such ratios, are not relevant to whether the ordinance allows for reasonable avenues of expression. t. ~**..:-.:.~:,,~.~.~,.~..-r~..-*~.*-',-...s.**';;,,,.:u ;..*.' -,',-,~f.,...~,~..~.,,~.*-:'- . .-- ' . .. ' '.'... - . ~;**~:~','*'~%*~-":~"."'~."?*:*':'.'9:,: :~ '*.' --' -%:*: '* ?' .:'* %': '* . -: . -.'. ;': .-.," ~ .. ,,~ .... .~ .~.',.'..*~..~..r. ,.-- - o',.- ..'~,-.- · - ~, ~,~..,~ ............. - ............... -T .' ='""' .:". ..... '-',. ". **' '-- *' - .... - *-;.Tt-._ '&., **'.,'"-'~. ':-~* *- '-- '". ~ '; *-* ' °'.-': ~. * · ° ' * ~ - * .... ~?:-:'~':~;:':;'***'*:'::':.': ~ffh~.'-**:.:': :': i:' .:.:".-.-i.:,'-'. -~ · ,. :., ..... , .... .......... . . .'.,~ ..... ....../_.-...~..~- ., ~. · ...... .- ~.... .... .... .-.-. ............ _-t.~': .... 6X'/:$ ~ '.*",:'l *,',--~C,~O"*~e · = ...... .-'.:.. ,-:, .,~o~u_~ s argument tha: a re!ative~v proportlcn of land in Anchorage is av~-~, .,. =~ =u_,e _~= new s'~r~p clubs lacks merit since it does not show that there are not reasonable avenues for protected expression. Westfork, s argument that'most · of the gran~ fathered si~es are not suitable for strip clubs is rejecEed since the First A-~endment protects expression, not Westfcrk's opportunity to open its own adult business. This is especially true since three o.= the grand fathered sites provide avenues for the same expression chat ~';es~£ork seeks to provide. Finally, the Supreme Court in _Rento_n rejected the argument that the available sites were either deve!cped or unavailable for development. This court likewise rejects the same argument made · by Westfork, this court has a stronger basis for doing so since · · in Anchorage there already exists avenues for nude dancing. · Conclusion Westfork, s motion for sununary judgment is denied because it is premised on a misreading of the law. The MOA's motion for · ]The three operating strip.clubs that have grand father rights were discussed in the briefing.. Although not identified in the briefing o~her strip clubs exist in Anchorage. Dated a~ Anchorage, Alaska, Chis ./~~--day cf Nove.~er, 1999 ohn Reese --------- Superior Court Judge "NLC,, National Law Center for Children and Families NLC Summaries of"SOB Land Use" Studies O'ime bnpact Studies by Municipal and State Governments on Harmful Secondary Effects of Sexually Oriented Businesses 1. Phoenix, Arizona 17. c'leveland, Ohio 2. Tucson, Arizona 18. Oklahoma City, Oklaho~na 3. Garden Grove, California 19. Oklahoma City, Oklahoma 4. Los Angeles, California "20. Amarillo, Texas 5. Whittiet; California 21. Austin, Texas 6. Adams Co., Colorado 22. Beaumont, Texas 7. Manatee Co., Florida 23. Cleburne, Texas 8. Indianapolis, Indiana 24. Dallas, Texas 9. Minneapolis, Minnesota 25. "El Paso, Texas 10. Saint Paul, Minnesota 26. Houston, Texas 11. Las Vegas, Nevada 27. Houston, Texas II 12. Ellicottville, New York 28. Newport News,. Virginia 13. Islip, New York 29. Bellevue, Washington 14. New Vork, New York 30. Des Moines, Washington 15. Times Square, New York 16. A:ew Hano~'er Co., North Carolina 3 I. Seattle, H'~tshington 32. St. Croix Co., lqisconsin © National Law Ccntcr for Children and Families 1991, 1994, 1996, 1997, 1999, 2000 3819 Plaza Drive, Fairfax, Virginia 22030-2512 (703)691-4626, Fax:-4669 Phoenix, Arizona Land Use Study Dated May 25, 1979 The study examines crime statistics for 1978 comparing areas which have sexually oriented businesse with those that do not. The results showed a marked increase in sex offenses in neighborhoods with sexually oriented businesses, and also proved increases in property and violent crimes as well. This study is not unique but is unusually significant, in covering the issue of property crimes more extensively. Three study areas (near locations of sexually oriented businesses) and three control areas (with no sexually oriented businesses) were selected. The study and control areas were paired according to the number of residents, median family income, percentage of non-white population, median age of population, percentage of dwelling units built since 1950, and percentage of acreage used for residenti and non-residential purposes. Three categories of criminal activity were included in the study: property crimes (burglary, larceny, at theft), violent crimes (rape, murder, robbery, assault), and sex crimes (rape, indecent exposure, lewd a lascivious behavior, child molestation). On average, the number of sex offenses was 506% greater in neighborhoods where sexually oriented businesses were located. In one of the neighborhoods the number was 1,000% above the correspondin control area. Of the sex offenses, indecent exposure was the most common offense and the largest contributor to the increase of crimes in areas where sexually oriented businesses were located. Even without considering the crime of indecent exposure, the number of other sex crimes, such as rape, lew. and lascivious behavior, and child molestation, was 132% greater than in control areas without sexuall oriented businesses. On average the number of property crimes was 43% greater in neighborhoods where sexually oriented businesses were located, and the number of violent crimes was 4% higher in those areas. · , : The Phoenix ordinance requires sexually oriented businesses to locate at least 1,000 feet from another sexually oriented business and 500 feet from a school or residential zone. Approval by the City Counc: .a. nd area residents can waive the 500 foot requirement. A petition signed by 51% of the residents in the 500 foot radius who do not object must be filed and be verified by the Planning Director. http://www.afa.net/pornography/soblandusesummaries.html ' '1/14/20~ Tucson, Arizon Land Use Study Dated May 1, 1990 OVERVIEW' This report is a memorandum from Police Department Investigative Services to the City Prosecutor describing events and activities at "adult entertainment bookstores and establishments" that demonstrate the need for stronger ordinances. Investigations had been in progress since 1986 following · numerous complaints of illegal sexual activity and unsanitary conditions. FINDINGS: Officers found a wide variety of illegal sexual conduct at all adult businesses. At virtually every such business, employees were arrested for prostitution or obscene sex shows. Dancers were usually prostitutes where, for a price, customers could observe them performing live sex acts. At several businesses, customers were allowed inside booths with dancers and encouraged to disrobe and masturbate. Many times, dancers would require customers to expose themselves before they would perform. Underage dancers were found, the youngest being a 15 year old female. Within peep booths, officers found puddles of semen on the floor and walls. If customers had used tissues, these were commonly on the floor or in the hallway. On two occasions, fluid samples were collected from the booths. In the first instance, 21 of 26 samples (81%) tested positive for semen. In the second sampling, 26 of 27 fluid samples (96%) tested positive for semen. "Glory holes" in the walls between adjoining booths facilitated anonymous sex acts between men. RECOMMENDATIONS' (1) The bottom of the door in peep booths must be at least 30 inches from the floor so that an occupant can be seen from the waist down when seated. (2) The booth cannot be modified nor can a chair be used to circumvent the visibility of the client. (3) EmPloyee licensing procedures that include a police department background check should be put in effect. (4) In the event of a denied or revoked license, the requirement of a hearing before any action is taken. Garden Grove, California Land Use.Study Dated September 12, 1991 OVERVIEW: This report by independent consultants summarizes statistics to determine whether adult businesses should be regulated because of their impact on the community in terrns of crime, decreased property values and diminished quality of life. Statistics were measured from 1981 to 1990, and included crime data and surveys with real estate professionals and city residents. Garden Grove Boulex'ard, xx'hich has seven adult businesses, was selected as the study area. The study incorporated many control factors to insure accurate results. The report includes a brief legal h/story of adult busin, regulation and an extensive appendix with sample materials and a proposed statute. CRIME: Crime increased significantly with the opening of an adult business, or with the expansion ol an existing business or the addition of a bar nearby. The rise was greatest in "serious" offenses (temae "Part I" crimes' hornicide, rape, robbe~% assault, burglary, theft and auto theft). On Garden Grove Boulevard, the adult businesses accounted for 36% of all crime in the area. In one case, a bar opened less than 500 feet from an adult business, and serious crime within 1,000 feet of that business rose mo than 300% the next year. REAL ESTATE: Overwhelmingly, respondents said that an adult business within 200-500 feet of residential and commercial property depreciates that property value. The greatest impact was on singl, family homes. The chief factor cited for the depreciation was the increased crime associated with adul businesses. HOUSEHOLD SURVEYS: 118 calls were completed in a random sample of households in the Garde Grove Boulevard vicinity. The public consensus was that adult businesses in that area were a serious problem. Nearly 25% of the surveyed individuals lived within 1,000 feet of an adult business. More th 21% cited specific personal experiences of problems relating to these businesses, including crime, noi. litter, and general quality of life. 80% said they would want to move if an adult business opened in the neighborhood, with 60% saying they "would move" or "probably would move." 85% supported city regulation of the locations of adult businesses, with 78% strongly advocating the prohibition of adult businesses within 500 feet of a residential area, school or church. Women commonly expressed fear fc themselves and their children because of adult businesses. RECOMMENDATIONS' The report concludes that adult businesses have a "real impact" on everyda) life through harmful secondary effects and makes four recommendations: (1) Keep current requiremen of 1,000 feet separation between adult businesses; (2) Prohibit adult establishments within 1,000 feet c residential areas; (3) Enact a system of conditional use permits for adult businesses with police department involvement in every aspect of the process; and (4) Prohibit bars or taverns within 1,000 fe of an adult business. Los Angeles, California Land Use Study Dated June, 1977 http ://www. a fa. n et/p orno graph y/so b I anduse su mmari es.h tml 1/14/20( .. OVERVIEW- The Department oF City Planning studied the effects of the concentration of sexually oriented businesses on surrounding properties for the years 1969-75 (a time of proliferation for such businesses). The report ~%cuses on five areas with the greatest concentration of these businesses (compared to five "control" areas free of them), and cite~, data from property assessments/sales, public meeting testimony, and responses from two questionnaires (one to business/residential owners within a 500 foot radius of the five study areas and. a second to realtors/real estate appraisers and lenders). Crime statistics in the study areas were compared to the city as a whole. Also included' a chart of sexually oriented business regulations in eleven major cities, details of current regulations available under state/municipal law, and appendices with samples of questionnaires, letters, and other study materials. PROPERTY' While empirical data for 1969-75 did not conclusively show the relation of property valuations to the concentration of sexually oriented businesses, more than 90% of realtors, real estate appraisers and lenders responding to city questionnaires said that a grouping of such businesses within 500-1,000 feet of residential property decreases the market value of the homes. Also, testimony from residents and business people at two public meetings spoke overwhelmingly against the presence of sexually oriented businesses citing fear, concern for children, loss of customers and difficulty in hiring employees at non-adult businesses, and the necessity for churches to provide guards for their parking lots. ...... CRIME: More crime occurred in areas of sexually oriented business concentration. Compared to city- wide statistics for 1969-75, areas with several such businesses experienced greater increases in pandering (340%), rnurder (42.3%), aggravated assault (45.2%), robbery (52.6%), and purse snatching (17%). Street robberies, where the criminal has face to face contact with his victim, increased almost 70% more in the study areas. A second category of crime, including other assaults, forgery, fraud, counterfeiting, embezzlement, stolen property, prostitution, narcotics, liquor laws, and gambling increased 42% more in the study areas over the city as a whole. RECOMMENDATIONS: The study recommended distances of more than a 1,000 feet separating sexually oriented businesses fi'om each other, and a minimum of 500 feet separation of such businesses from schools, parks churches and residential areas. Whittier, California Land Use Study Dated January 9, 1978 OVERVIEW' After experiencing a rapid growth of sexually oriented businesses since 1969, the Whittier City Council commissioned a study of the effeets of the businesses on the adjacent residential and commercial areas. At the time of the study, Whittier had 13 "adult" businesses: 6 model studios, 4 massage parlors, 2 bookstores, and I theater. Utilizing statistics, testimonies, and agency reports, the study compared two residential areas and ibur business arcas over a span of 10 years (1968-i9-7). On residential area was near the largest concentration of adult business~:s, the other had no commercial frontage but was chosen because of similar street patterns, lot sizes and number of homes. For businesses, Area I had six adult businesses, Area 2 had one, Area 3 had three, and Area 4 had none. 1973 was selected as the ),ear to compare before and after effects of the adult businesses. Two chief concerns cited in the report are residential and business occupancy removers and increased crime. OCCUPANCY TURNOVER: After 1973, 57% of the homes in the adult business area had changes o: occupancy, compared to only 19% for the non-adult business area. Residents complained of"excessiv noise, pornographic material left laying about, and sexual offenders (such as exhibitionist) venting the frustrations in the adjoining neighborhood." Citizens also expressed concern about drank drivers comi into the area. Business Area 1, with the most concentration of adult businesses (6), experienced a 134~ increase in annual remover rate. Area 3, with three adult businesses at one location, showed a 107% remover rate. Area 2 (with I adult business) had no measurable change and Area 4 (with no commerci or adult businesses) experienced a 45% ..d_.e_c_re_a. se. in remover from similar periods. CRIME: The City Council looked at the two residential areas for the time periods of 1970-73 (before adult businesses) and 1974-77 (after adult businesses). In the adult business area, criminal activity increased 102% (the e.n..tjr.e..city had only an 8.3% increase). Certain crimes skyrocketed (malicious mischief up 700%; all assaults up 387%; prostitution up 300%). All types of theft (petty, grand, and auto) increased more than 120% each. Ten types of crime were reported for the ._fi_rs. tti_m_e__e_v_er in the 1974-77 period. RECOMMENDATIONS' The Council's report recommended a dispersal type ordinance that prohibits adult businesses closer than 500 feet to residential areas, churches and schools. Distances between adu. businesses was recomrnended at 1,000 feet. In addition, the study proposed a 1,000 foot separation fro~ parks because of their use by citizens after normal working hours. Adult businesses would be given an 18-36 month amortization period (if the change involved only stock in trade, a 90 day period was recommended). Adams Co., Colorado Land Use Study Dated April, 1988 OVERVIEW: This report, authored by Sgt. J.J. Long of the Adams County Sheriffs Department, was designed to accompany a new Nude Entertainment Ordinance. The report covers two parts' first, an April 1988 study of six representative locations in Adams County was undertaken to determine the http:l/www.afa.net/pornography/soblandusesummaries.html 1/14/20£ tran~iency of adult business customers. Second, crime statistics in two Adams County areas featuring adult businesses were gathered for the years of 1986 and 1987. The studv concluded that there was a clearly demonstrated rise in crime and violence, and an increase in the attraction to transients to the area as a result of nude entertainment establishments. This caused a danger to residents and an undesirable model for youth and the community at large. FINDINGS' Adams County features 6 adult bookstores (all but one featuring nude entertainment), I all nude "pop shoppe," 7 massage parlors, 8 topless nightclubs (with liquor licenses), and 6 nude "rap," lingerie, and modeling-type studios (28 locations in all). An April 1988 study of six adult business locations in Adams County, revealed that 76% of patrons were transient. During the time when no adult ordinance was in effect in Adams County (1986 and 1987), 24 crimes were reported in one area featuring two adult businesses. Eighty-three percent of these crimes were linked to the adult businesses. Forty-two percent of these crimes occurred at the location of an all-nude establishment, and sixty-four percent occurred outside the hours of 4:00 p.m. to midnight. During 1987, 28 crimes were reported, 93% of which were linked to the adult businesses, 50% were alcohol-related offenses, and 77% occurred at a single establishment. Finally, 61% of those crimes occurred during hours other than those between 4:00 p.m. and midnight. Crime rates between 1986 and 1987 for another Adams County area featuring three adult bookstores, two topless nightclubs, a bar, a liquor store, and a beer outlet revealed a 15% increase in crime, (i.e., 55 crimes in 1986 as opposed to 63 in 1987). In 1986, 29 of those crimes involved alcohol, while in 1987, 41 were linked to alcohol (a 41% increase). A rural area of Adams County with a single topless nightclub experienced a 39% increase in crime between 1986 and 1987. There was a marked increase in the number of adult entertainment locations opening for business during 1986 and 1987. Further, a check of criminal histories of some of the offenders showed arrests for morals crimes, sexual assaults, alcohol-related offenses, and crimes of violence. A study of armed robbery in one area during the same time period revealed that 66% of all reported armed robberies occurred at the adult bookstores. Finally, seven homicides from 1977 to 1987 were directly linked to adult bookstores and nude entertainment businesses. The 1988 enactment of the Nude Entertainment Ordinance, which was upheld by the Colorado Supreme Court, reduced the number of adult businesses in Adams County to only 14. The Adams County ordinance included the following provisions' 1) restricting hours of operation from 4:00 p.m. to midnight, Monday to Saturday; 2) restricting location of SOBs to 500 feet from sensitive uses; 3) an amortization clause requiring compliance within a six month period; and 4) a public nuisance provision for repeated or continuing violation of the ordinance. Manatee Co., Florida Land Use Study Dated June, 1987 OVERVIEW' This report, conducted by the Manatee County Planning and Development Department examines the ramifications of a proposed adult entertainment ordinance. It depends upon the findings other jurisdictions to forecast the effects of adult businesses in Manatee County. It also examines othe land use studies in order to determine appropriate land use controls for Manatee County'. FINDINGS: The Boston Model of concentrating adult businesses into on "combat zone" has the following advantages: 1) like uses are treated alike; 2) lower administrative costs; 3) control over grox of pornographic uses and the development of specific new uses; 4) no definitional vagueness; 5) apparent constitutionality; and 6) easier evaluation of total public services impact of pornographic use (traffic, limited parking, higher police costs and other effects). Disadvantages of this model center on blighting effect when a central zone is created. It may also attract "undesirables" to one area. The Detroit Model has these advantages: 1) apparent constitutionality (withstood challenge in Young v. American Mini Theatres); and 2) creates a separation zone between other adult businesses and residential areas. Itowever, it suffers from definitional weaknesses. Most jurisdictions have adopted some form of the Detroit model. Other cities have added additional buffer requirements. Studies of secondary effects in other cities (Austin, TX, Indianapolis, IN, Los Angeles, CA, and St. Paul, MN) have examined the impact of adult businesses on property value, crime rates, and incidenc{ of blighting. Based upon the negative findings in these areas, cities have recommended zoning and otl' land use regulations. There are five adult businesses currently in the County. All five are separated from one another by mc than 1,000 feet. None meet the minimum residential buffer distance of 500 feet. - -' RECOMMENDATIONS: The dispersal model ordinance should be considered. The present zoning ordinance should be amended to add buffer requirements to provide distance from 1) residential districts, 2) churches, schools, child care facilities, and public recreation areas, and 3) other establishe{ adult businesses. There should be at least 500 feet of separation between an adult business and the nearest residential zone. A 2000 foot buffer should be established for churches, schools, child care facilities, and recreation areas. Adult businesses should be separated from one another by at least 100(: A one year amortization period for compliance should be considered (as provided in the draft ordinance).' "Sign controls should be considered which still protect a business's freedom to advertise, also minimize public's exposure to such uses." Indianapolis, Indiana http://www.afa.net/pornography/soblandusesummaries.html -' 1114/20 Land Use Study Dated February, 1984 OVERVIEW: After a 10 year growth in the number of sexually oriented businesses (to a total of 68 on 43 sites) and numerous citizen complaints of decreasing property values and rising crime, the city compared 6 sexually oriented business "study" areas and 6 "control" locations with each other and with the city as a whole. The study and control areas had high population, low income and older residences. In order to develop a "best professional opinion," the city collaborated with Indiana University on a national survey of real estate appraisers to detem~ine valuation effects of sexually oriented businesses on adjacent properties. CRIME' From 1978-82, crime increases in the study areas were 23% higher than the control areas (46% higher than the city as a whole). Sex related crimes in the study areas increased more than 20% over the control areas. Residential locations in the study areas had a 56% greater crime increase than commercial study areas. Sex related crimes were 4 times more common in residential study areas than commercial study areas with sexually oriented businesses. .. REAL ESTATE: Homes in the study areas appreciated at only 1/2 the rate of homes in the control areas, and 1/3 the rate of the city. "Pressures within the study areas" caused a slight increase in real estate listings, while the city as a whole had a 50% _d_e.._c_r._e.a.5_e., denoting high occupancy turnover. Appraisers responding to the survey said one sexually oriented business within 1 block of residences and businesses decreased their value and half of the respondents said the immediate depreciation exceeded 10'; ,'.,. Appraisers also noted that value depreciation on residential areas near sexually oriented businesses is greater than on commercial locations. The report concludes: "The best professional judgment available indicates overwhelmingly that adult entertainment businesses -- even a relatively passive use such as an adult bookstore -- have a serious negative effect on their immediate environs." RECOMMENDATIONS' Sexually oriented businesses locate at least 500 feet from residential areas, schools, churches or established historic areas. Minneapolis, Minnesota Land Use Study Dated October, 1980 OVERVIEW' This report is divided into two sections: the relationship of bars and crime and the imp~ of "adult businesses" on neighborhood deterioration. In the study, an "adult business" is one where alcohol is served (including restaurants) or a sexually oriented business (i.e., saunas, adult theaters an bookstores, rap parlors, arcades, and bars with sexually oriented entertainment). Census tracts were u: as study areas .and evaluated for housing values and crime rates. Itousing values were deterrnined by l 1970 census compared to 1979 assessments. Crime rates were compared for 1974-75 and 1979-80. TI study is strictly empirical and reported in a formal statistical manner; therefore it is difficult for laymz interpretation of the data. FINDINGS: The report concludes that concentrations of sexually oriented businesses have significanl relationship to higher crime and lower property values. Other t'l~an statistical charts, no statements of actual crime repons or housing values are included in the report, thus, the lay reader has only the mos generalized statements of how the committee interpreted the empirical data. RECOMMENDATIONS: First, that adult businesses be at least 1/I0 mile (about 500 feet) from residential areas. Second, that adult businesses should not be adjacent to each other or even a differen~ type of late night business (i.e., 24-hour laundromat, movie theaters), third, that adult businesses shou be in large commercial zones in various pans of the city (to aid police patrol and help separate adult businesses from residential neighborhood). The report said "policies which foster or supplement attitudes and activities that strengthen the qualities of the neighborhoods are more likely to have desir~ impacts on crime and housing values than simple removal or restriction of adult businesses." http ://w ww. a fa.n et/porno graphy/s ob landu sesumm ari es.h tm l ' -1'114/201 St. Paul, Minnesota Land Use Study Dated Aril, 1988 (Supplemental to 1987 study) OVERVIEW' 'As a "result of a growing concern among St. Paul citizens that the City's existing adult entertainment zoning provisions, adopted in 1983," did not "adequately address the land use problems associated with adult " " entertainment, the City Council directed the Planning Commission to study possible amendments to the Zoning Code. The Commission's proposed amendment was based on findings made during public hearings. Thc "substitute" "Amendment", adopted by the City Council, is a result of those findings and the findings made by the Council during its public hearings. The 1988 Study includes the findings, addresses the nine key features of the "substitute" "Amendment", and gives the rationale for each. FINDINGS, "AMENDMENT", AND RATIONALE: 1) "[A]dult uses are harmful to surrounding commercial establishments but that significant spacing requirements between adult uses can minimize the harm in zones reserved for the most intensive commercial activity." ' · . .., , . 2) The "Amendment" treats all nine defined adult uses the same. Included are: "adult bookstores", "cabarets " ' ", ", conversation/rap parlors", "health/sport clubs", "massage parlors "mini-motion picture theaters, "motion picture thea' .."es", steamroorn~athhouse facilities, and "other adult uses." Each is detined as providing "matter", entertainment", or "services" which is "distinguished or characterized by an emphasis on the "depiction, description, "display or presentation" of specified sexual activities" or "specified anatomical areas." "Most, if not all, existing statistical studies of the impact of adult uses do not differentiate between different types of adult uses and do not recognize that the land use impact of various types of adult uses is significantly different." "[E]qual treatment is consistent with the emphasis on deconcentration". 3) The "Amendment" set spacing between adult uses at 2,640 feet outside of the downtown area and 1,320 feet downtown. A six-block goal could not be met because or'the necessity to provide a "suffic: land mass". The Phoenix and Indianapolis iand use studies indicate that ":~-.~ negative land use impacl a single adult use extends for up to three blocks". " 4) Distances between adult uses and residential zones were increased from 200 feet to 800 feet "outsi~ of downtown" and from 100 to 400 feet downtown in the substitute "Amendment". The goal of 1,980 feet outside of "downtown" and 990 feet downtown could not be met because of the necessity to prov "enough land and sites tbr potential future adult uses." 5) Distances from "protected uses" outside of downtown were increased from zero to 400 feet and fi'o 100 to 200 feet downtown. Protection for zones "other than residential or small neighborhood busines zones" was "justified" because their populations are "particularly vulnerable to the negative impacts e adult uses." "Protected uses" are' day care centers; houses of worship; public libraries; schools; public parks/parkways/public recreation centers and facilities; fire stations (because of use for bicycle registration and school field trips); community residential facilities; missions; hotels/motels (which often have permanent residents). St. Paul, Minnesota Land Use Study (Continued) 6) Limiting one type of adult use per building was justified by experience with two pre-existing "multi functional" adult businesses, numerous studies by other cities, and St. Paul's own study in 1978, whick documented significantly higher crime rates associated with two adult businesses in an area, and significantly lower property values associated with three adult uses in an area. The 1987 study include, statistics showing that most "prostitution arrests in the city occur within four blocks on either side of concentration of four adult businesses." Other problems included "the propositioning" and "sexual harassment of neighborhood women mistaken for prostitutes", "discarding of hard-core pornographic literature" ("which is "most strongly associated with adult bookstores") "on residential property where becomes available to minors", a "generally high crime rate," and "a general perception" that such an ar "is an unsafe place due to the concentration of adult entertainment that exists there". Redevelopment experience in St. Paul showed that adult use areas caused a "blighting influence inhibiting development". Multi-functional adult uses will attract more Customers which "increases the likelihood that such problems will occur." A "Sex for Sale Image" attracts more street prostitutes and their customers, and demoralizes other businesses and neighborhood residents". 7) AmoUnt of land available for 24 existing adult uses (which includes split-off of two multi-functional businesses with three-four types per business) was 6.5% of the City's total land mass, for a maximum c 44 sites based on "absolute site capacity", calculated without regard for existing infrastructure, or 28 sites based on "relative site capacity" on existing street frontage calculated without regard for existing http://www.afa.net/pornography/soblandusesummaries.html ' - .... 1/14120( development or suitability of land for development. 8) Annual review of the "Special Condition Use Permit" was included in the "Amendment" "to ensure that no additional uses are added to the type of adult use that is pem'~itted." 9) Prohibition of obscene works and illegal activities was included in the "Amendment" to "guard against the conclusion that the Zoning Code permits activities which the City can and should prohibit as illegal." Las Vegas, Nevada Land Use Study Dated March 15, 1978 OVERVIEW: Prior to adopting a zoning ordinance for adult businesses, the City of Las Vegas conducted a survey of businesses, residences, and real estate brokers and agents. The results of the survey are in::luded in this report. Also included in the report: minutes of the March 15, 1978, City Commission meeting on the matter of adding an adult business zoning chapter to the City code; an affidavit from Donald Saylor, Director of the Department of Community Planning and Development for Las Vegas, on the blighting effect of adult businesses; an affidavit from William Powell, Vice and Narcotics detective with the Las Vegas Metropolitan Police Department, on the link between a high concentration of adult businesses and an increase in criminal activity; and an affidavit from Donald Cams, professor of'Sociology at the University of Nevada, Las Vegas, on the problems adult businesses pose for the economic well-being and vitality of a city. FINDINGS. Among brokers and realtors, overwhelming majorities said that adult entertainment establishments had negative effects on ~he market value (82%), saleability/rentability (78%), and rem value (76%) of properties located near these establishments. According to 81%. there is a decrease in · annual income of businesses in the vicinity of adult establishments. Strong majorities reported that a concentratim~ of adult businesses near other businesses (from under 500 feet to more than 1000 feet) negative effects on market values, rental values, and rentability/saleability of residential property. Among surveyed homeowners and residents living near adult businesses, the consensus was similar: adult establishments have a negative effect on the I) neighborhood; 2) business conditions (sales and profits) in the area (2-square block radius); and 3) value and appearance of homes in the vicinity (witl 500 feet). Reportedly, 85% said that their normal living habits had been limited or hindered in some ,; due to the presence of adult businesses in the area. Among surveyed business owners and proprietors, the results were mixed. The majority of respondents did report that adult businesses had a negative effect on homes immediately adjacent to and in the area (500 feet or ~T~ore) of adult businesses. A mojority believed adult businesses had the following secondary effects' complaints from customers (66%), additional crime (58%), and deteriorated neighborhood appearance (58%). Finally, among residents living in areas not located near adult businesses, the consensus was clear: adult establishmen have negative effects on neighborhoods, business conditions in the City, the value and appearance of homes, property values, the amount of crime, and resident transiency. These residents were nearly unanimous (96%) in the belief that their living habits had been limited or hindered by the operation of adult businesses. RECOMMENDATIONS. Adult businesses should be prohibited from locating in residential areas. Th should also be restricted to designated areas and dispersed throughout those designated areas. Adult businesses should be located at least 1000 feet from playgrounds, churches, schools, and parks. Ellicottville, New York Land Use Study Dated January, 1998 OVERVIEW: On April 28, 1997, the Ellicottville Village Board of Trustees and Town Board placed a moratorium on approvals of new sexually oriented establishments. There were four purposes for the move' 1) to allow the community time to study the effects of adult entertainment businesses; 2) "to determine if a regulatory response was necessary;" and'3) "if stronger land use controls were warranted to draft the regulatory changes for the legislative board's consideration." As there were no adult businesses in EllicottvilIe at the time of the study, the report cites secondary effects smd/es in other http ://www. a fa. n e t/p o rn ograph y/s ob I an d us es u mmari es. h tm I 1/14/200~ jurisdictions as a means of forecasting the effects of an Ellicottville adult busincss. The negative secondary effects examined included' economic impacts, property values, fear of crime, and negative impact on community character. FINDINGS: Ellicottville is a community that relies upon attracting tourists. As such, "ti~e atmosphere and aesthetic features of the community take on an economic value." Though active land use controls have been practiced to maintain the look and vitality of the community, currently there are no differentiations made between the regulation of an adult business and, say, a juice bar. To assess potential secondary effects, studies administered in other New York jurisdictions will be helpful. The 1994 NYC Adult Entertainment study found the following: adult businesses tend to cluster in certain areas, a rise in crime is linked to clusters of adult businesses, negative reactions toward adult businesses were common among adjacent business and home owners, isolation of adult businesses limited secondary effects, real estate brokers believe property values are negatively impacted by nearby adult establishments, and adult business signs are often larger and more graphic. Allowing adult businesses to locate within the historic business district would negatively impact Ellicottville's efforts to provide a family-friendly community. Similarly, pemfitting adult businesses to locate near residences would have an eroding effect on "aesthetic qualities" and property values. The type of signage typically used by adult businesses would mn counter to the business district. The fbllowing uses seemed most prone to negative secondary effects' the Ellicottville historic district, places of worship (6 churches in Ellicottville), .:he school, the child care facility, recreation --- parks/areas/playgrounds and public/civic, facilities, and residential neighborhoods. - RECOMMENDATIONS: The Town and Village should adopt zoning regulations that create a land use category, and regulate adult establishment uses, allowing them to locate in industrial zones and the industrial-service commercial district. The establishment of adult businesses should be considered Conditional Uses (requiring approval of a special use permit). Exterior advertising, signs, and , ;-'-~ loudspeakers and sound equipment should be regulated. The following distance buffers should be set for: 500 feet (town) or 300 feet (Village) from residential areas; 1000 feet (town) or 500 feet (Village) from other adult businesses; and 500 feet (town and Village) from a chumh, school, day care center, park, playground, civic facility or historic resource. Definitions tbr adult uses should be added to existing zoning regulations. Islip, New York ..'-"--nd Use stUdy Dnted September 23, 1980 OVERVIEW: This report, compiled by Daniel Dollmann of the Islip Department of Planning, features an analysis of studies and ordinances fi'om other jurisdictions, a case study of an adult business in Islip. research of public outcry against the establishment of adult businc.-.ses in Islip, and a survey by hamlet of adult entertainment businesses in Islip. The study includes a lengthy appendix with news articles detailing the history of the lslip zoning ordinance, letters of complaint from local residents, a historical perspective about the Detroit ordinance, copies of ordinances from other jurisdictions, and a copy of th, proposed Islip zoning ordinance, reflecting the findings in this report. FINDINGS' The study looks at the Detroit ordinance, upheld by the U.S. Supreme Court in 1976, whir restricted sexually oriented businesses (SOBs) from locating within 1,000 feet of other SOBs, and within 500 feet of residential areas. The Islip ordinance is modeled after the Detroit ordinance's approach to disperse SOBs ("anti-skid row") as opposed to creating a "combat zone," which was unsuccessfully attempted by the Town of Islip in 1975. The study notes that the ordinance incorporates "adults-only" definitions in an attempt to avoid First Amendment issues. In determining its distance requirement between adult businesses and sensitive uses, the Town of Islip took into consideration' distance requirements used in Detroit, MI, Norwalk, CA, Dallas, TX, Prince George's Co., MD, and New Orleans, LA zoning ordinances; it's own measurements on an Islip zoning map of several distance proposals; infom'~ation from the local case study; and resident feedback. The study analyzes the problems unique to an area called Sunrise Highway (23% of businesses are adult) and compares the differences between Islip and Detroit, including population size and number of SOBs, to justify needs for greater distance limitations between SOBs. One of the goals of the Town is to protect its historic downtown district and keep it from further deterioration (which occurred in the past due to an increase in multi-family dwellings, transients and bars). The Study noted that limiting SOBs to the Town's light industrial zone woUld be in keeping with this goal. Currently, there is a "dead zone" in one of the healthier pans of the downtown area due to tw{ adult businesses located there. The Study includes a case study of the Bohemia Book Store which was located extremely close to a residential area. In 1980 the store was temporarily closed down by court order, as a result of citizen picketing and subsequent violence against the picketers. The operators of this particular SOB were reported to have associations with organized crime (i.e., mob-operated national pome ring, multiple obscenity charges and convictions) .... RECOMMENDATIONS' the proposed zoning ordinance requires 500 feet between an adult business and residential areas or other sensitive uses, like churches and schools, and a ¼ mile distance between SOBs. The ordinance includes a waiver clause for certain conditions, and an amortization clause. New York City, New York Land Use St'udy http://www.afa.net/pomography/soblandusesummaries.html 1/14/200. Dated November. 1994 OVERVIEW: This study of the secondary impacts of adult entertainment uses on communities in New Yc:'k City (NYC), prepared by the Department of City Planning (DCP), includes' a survey of studies in other jurisdictions, a description ot'the adult entertainment business in NYC, a review of studies previously done in NYC, a DCP survey of the impacts on NYC communities, and maps showing SOB locations. FINDINGS' Recent trends in sexually oriented businesses (SOBs) in NYC show a 35% increase over the last decade (75% of which were located in zoning districts that pem'~it residences). However, since the survey for this information focused only on XXX video and bookstores, adult live or movie theaters, and topless or nude bars, this may be an underestimate of total SOB uses. Also in the past decade the availability of pornographic material has increased, the price has decreased greatly, and the image of nude bars has become more sophisticated or "upscale", contributing to the wide-spread availability of SOBs in NYC. SOBs have continued to concentrate in specific areas, specifically in three communities within Manhattan. Between 1984 and 1993' the concentrated areas of SOBs have nearly tripled; the number of SOBs has increased from 29 to 86 (74% of which were adult video stores - not included in the 1984 survey); adult theaters declined from 48 to 23, and topless/nude bars increased from 54 to 68 (54%). After examining studies from other jurisdictions, this study concludes that the negative secondary impacts are similar in every jurisdiction, despite size of city, variations in land use patterns, and other local conditions. The study specifically examines the negative secondary impacts documented in Islip, NY, Indianapolis, IN, Whittier, CA, Austin, TX, Phoenix, AZ, Los Angeles, CA, New Hanover Co., NC, Manatee Co., FL, and MN, which evidenced problems with "dead zones", declining property values, high turnover rates in adjacent businesses, and higher sex crime rates. Various studies done on the City of New York (including Times Square) showed that concentration of SOBs had resulted in significant negative impacts, including economic decline, decreased property values, and deterrence of customers, and significantly increased crime incidence. Business owners strongly believed their businesses were adversely affected by SOBs. The DCP did its study in NYC boroughs where there was less concentration of SOBs. The negative impacts in these areas were harder to measure, but there was a definite negative perception among residents about the presence of SOBs. It has been shown that negative perceptions related to SOBs can lead to disinvestment and tendency to avoid shopping in adjacent areas - leading to economic decline. Residents reared Potential proliferation of SOBs and the resultant negative impact on traditional neighborhood-oriented shopping areas. Eighty percent of real estate brokers surveyed responded that an SOB would have a negative impact on property values (consistent with a national survey). Residents were also concerned about exposure to minors of sexual images. The DCP concluded that it would be appropriate to regulate SOBs differently from other commercial businesses, based on the significant negative impact caused by SOBs. Sprin,-,.., 1997] ZONING Al ~ I. ii_.T ENTERTA1N^'~ENT 431 ~l'he adult entertainment i~dustry.continues to expand and gain support, resulting in the continuia~g presence of these businesses in our society and communities. Although many legal principles have been asserted to prevent these businesses from visibly operating in cities throughout the United States, most have failed to accomplish this goal. Supreme Court decisions have extended some First Amendment protection to these businesses and have also provided other measures that create difficulty for local governments in com- bating the adverse secondary effects attributed to these establish- ments. Zoning is a valid and useful method of ridding residential communities of these businesses and the secondary effects that are associated with them, but govermnental authorities, judicial bodies, and concerned citizens need to combfl'~e their efforts and resources to successfully win the war against these businesses. New Hanover Co., Nor 'h Carolina Land Use Study Dated Jul.v, 1989 OVERVIEW' This Planning Department report cites several studies and reports outlining adverse economic, physical, and social effects of adult businesses generally and specifically in jurisdictions across the country. While noting that New Hanover County does not currently have a noticeable problem with adult establishments, the report emphasizes the need to institute "preventative" zoning measures to protect and preserve the quality of life. It also offers an overview of common zoning approaches and the attendant constitutional issues. , FINDINGS. I) Municipalities across the country have documented, both empirically and anecdotally, the adverse effects of adult businesses on property values, rental values, neighborhood conditions, and other commercial businesses in the immediate area. 2) Cities have documented a link between adult businesses and urban blight, increased traffic, and light and noise pollution. 3) Studies have linked concentrations of adult businesses to an increase in crime, specifically prostitution, drugs, assault, and other sex crimes. 4) Community reputations and general quality of life are also negatively impacted by the presence of adult businesses. 5) An adult bookstore has been closed and re-opened several times after raids by law enforcement authorities. I't is also reported that a topless dancing establishment may be opened in the County. 6) New zoning regulations would control the establishment of adult businesses near churches, schools, and residential areas. RECOMMENDATIONS' 1) New Hanover should adopt the dispersal (Detroit) zoning approach. 2) Adult businesses should not be permitted to locate within 1,000 feet of each other. 3) Adult businesses should not be permitted within 500 feet of any school, church, park, or residential zone. 4) Adult businesses should only be allowed to locate in designated business and industrial districts, and only by a special use permit. 5) Signs and displays used by adult businesses should be regulated to protect the public, especially teenagers and children, from exposure to ob~:cene material ("any display, device or sign that depicts or describes sexual activities or specified anatomical areas shoul~l be out of view oft public way and surrounding property"). 6) The County Attorney's Office and Sheriffs Department should explore the viability of requiring licensing for adult businesses. 7) Definitions for "adult busin~ establishments," "specified sexual activities," and "specified anatomical areas" should be added to the zoning ordinance. Cleveland, Ohio Land Use Study Dated August 24, 1977 OVERVIEW' This is a Cleveland Police Department report from Captain Carl Delau, commander oft City's vice and obscenity enforcement units and reported by him while he participated in a panel discussion at the National Conference on the Blight of Obscenity held in Cleveland July 28-29, 1977. The topic was "The Impact of Obscenity on the Total Community." Crime statistics are included for 1976 robberies and rapes. Areas evaluated were census tracts (204 in the whole city, 15 study tracts w' sexually oriented businesses). At the time of the study, Cleveland had 26 pornography outlets (8 movi, houses and 18 bookstores with peep shows), their location was not regulated by city zoning laws. FINDINGS: For 1976, study tracts had nearly double the number of robberies as the city as a whole (40.5 per study tract compared to 20.5 for other city tracts). In one study tract with five sexually orient businesses and 730 people, there were 136 robberies. In the city's largest tract (13,587 people, zero pornography outlets) there were only 14 robberies. Of the three tracts with the highest incidence of rap two had sexually oriented businesses and the third bordered a tract with two such businesses. In these three, there were 41 rapes in 1976 (14 per tract), nearly seven times the city average of 2.4 rapes per census tract. CONCLUSION· "Close scrutiny of the figures from the Data Processing Unit on any and every phase, the degree of crime as recorded by census tracts indicates a much higher crime rate where the pornography outlets are located." Oklahoma City, Oklahoma http ://w ww. a fa. ne t/po rno graph y/sob I andus esu n ,marl es. h tm I --1/14/20( Land Use Study Dated March 3, 1986 OVERVIEW' This study contains the results of a survey of 100 Oklahoma City Real Estate Appraisers. Appraisers were given a hypothetical situation and a section to comment on the effects of sexually oriented businesses in Oklahoma City. The hypothetical situation presented a residential neighborhood bordering an arterial street with various commercial properties which served the area. A building vacated by a hardware store was soon to be occupied by an "adult" bookstore. No other sexually oriented businesses were in the area and no other vacant commercial space existed. With less than a one month response time, 34 completed surveys were received by the city. FINDINGS: 32% of the respondents said that such a bookstore within one block of the residential area would decrease home values by at least 20%. Overwhelmingly, respondents said an "adult" bookstore would negatively effect other businesses within one block (76%). The level of depreciation is greater for residents than businesses. The negative effects on property values drop sharply when the sexually oriented business is at least three blocks away. In the subjective portion, 86% of the respondents noted a '.~ :znegative impact of sexually oriented businesses on Oklahoma City. Frequent problems cited by the · ./:appraisers included the attraction of undesirable clients and businesses, safety threats to residents and q. other shoppers (especially children), deterrence of home sales and rentals, and immediate area ..... deterioration (trash, debris, vandalism). CONCLUSIONS' Oklahoma City's findings supported results fi'om other national studies and surveys. Sexually oriented businesses have a negative effect on property values, particularly residential properties. The Concentration of sexually oriented businesses may mean large losses in property values. Oklahoma City, Oklahoma 1I Land Use Study Dated June 1992 This study, written by Jon Stephen Gustin, a retired sergeant for the Oklahoma City Police Department, examines a history of the successful abatement of sexually oriented businesses (SOBs) in Oklahoma City between 1984 - 1989, which ultimately reduced an alarmingly high crime rate in the city, which is one of many harmful secondary effects related to the operation of SOBs in the community. This study indicates that in the early 1980's there was a large growth of SOBs in Oklahoma City in conjunction with a boom in the oil industry resulting in a large influx of oil field workers in the'area. Houses of prostitution, nude bars and adult theaters spread throughout the city. SOB promoters and entrepreneurs from around the country came to the area to compete for their share in the market. By 1984, over 150 SOBs and an estimated 200 prostitutes operated in the city. SOB owners competed by using more and more blatant signs and advertising. As a result, the city experienced epidemic proportions of crime problerns associated with the SOBs. Citizens began to voice concerns over the decay of community moral standards, the increased crime rate, and decreased property values. Although Oklahoma City had a history of unsuccessful prosecution of cases related to pomography, prostitution, and related SOBs, public pressure from citizens and elected officials ultimately resulted' support by the Chief of Police, the City Council and the city's District Attorney to prosecute SOBs thr were in violation of the law. Abating prostitution and related businesses was the first priority. The me aided this effort by publ{shing names of arrested customers and prostitutes, and airing live co,'er~ - arrests and raids. This bolstered citizen support of police and prosecutors. At adult bookstores and peep booths arrests were made for customers propositioning undercover offic to engage in sex acts, for the sale and possession of pornography, the display of pomography and for health department violations (including seminal fluids on the walls and floors of peep show booths). [Note that the author uses the term "pornography" referring to illegal pornography, also known as "obscenity."] The city next focused on prosecution for violations at nude and semi-nude dance bars, where custome engaged in sexual favors with nude employees in exchange for the purchase of expensive cocktails. RePeated arrests in these bars forced them into compliance, causing a lack of customer support. Simpi arrests at escort services, wl~ich were organized fronts for prostitution, did little to abate the illegal activity. Therefore, police worked undercover, arresting solicitors of the service. Also an attempt was made to prohibit businesses that had been convicted on prostitution charges from having access to phc service. As a result of the aggressive arrest and prosecution efforts, only a handful of the original 150 SOBs remained by early 1990. All remaining SOBs operated within statutory guidelines. It has been documented that incidents of reported rape in Oklahoma City decreased 27% during that period, while increased 16% in the rest of the state. In 1983 nearly one-half of the rapes in Oklahoma occurred in Oklahoma City, decreasing to one-third by 1989. This is an example of the benefits of stringent enforcement and prosecution of the so called "victimless crimes" associated with SOBs. Amarillo, Texas Land Use Study Dated September 12, 1977 OVERVIEW: This Planning Department report cites several sources including national news magazim "adult business" ordinances from other cities, an American Society of Planning Officials report and http://www, afa.n e t/po rn o graph y/s o b I andus es u mmari es. h tm l 1/14/20~ pertinent S~.~preme Court decisions. Lengthy explanation of the ),filler tes~ {,x.x'ith legal definitions), discussion of }~ung v. American Mini Theatres, and a comparison of the Boston and Detroit zoning models are included. The city defined "adult busi~:esses" as taverns, lounges, lounges with semi-nude entertainment, and bookstores or theaters with puc, lications featuring nudity and ¢:,:plicit sexual activities. (At the time, Amarillo had 3 such theaters and 4 bookstores with space for such publications). FINDINGS' The police department provided an analysis showing that areas of concentrated "adult only" businesses had 2 1/2 times the street crime as the city average. The Planning Department concluded that concentrations of these businesses have detrimental effects on residential and commercial activities caused by 1) noise, lighting and traffic during late night hours 2) increased opportunity for street crimes and 3) the tendency of citizens to avoid such business areas. The study noted that lack of zoning regulations would lead to concentrations of sexually oriented businesses (causing increased crime) or more such establishments locating near residential areas or family and juvenile oriented activity sites (churches, parks, etc.) RECOMMENDATIONS' 1) Adult businesses locate 1,000 feet from each other. No recommended distance was specified from residential zones or family/juvenile activities. 2) City development of an amortization schedule and permit/licensing mechanism. 3) City regulation of signs and similar forms of advertising. 4) Vigorous enforcement of State Penal Code, especially relating to "Harmful to Minors." 5) City amendments prohibiting minors from viewing or purchasing sexually oriented materials (enforced physical barriers). , Austin, Texas Land Use Study Dated May 19, 1986 OVERVIEW: The report was the basis for developing an amendment to existing sexually oriented business ordinances. At the time, 49 such businesses operated in Austin, mostly bookstores, theaters, massage parlors and topless bars. The study examined crime rates, property values, and trade area characteristics. The report focused on sexually related crimes in four study areas (with sexually oriented businesses) and four control areas (close to study areas and similar). Two study areas had one sexually oriented business and the others had two such businesses. To determine the effects of these businesses on property values, the city sent surveys to 120 real estate appraising or landing firms (nearly half responded). For trade area characteristics, three businesses (a bookstore, theater and topless bar) were observed on a weekend night to determine customer addresses. CRIME: Sexually related crime ranged from 177-482% higher in the four study areas than the city average. In the two study areas containing two sexually oriented businesses, tl~e rate was 66% higher than in the study areas with one such business. All control areas had crime rates near the city average REAL ESTATE' 88% said that a sexually oriented business within one block of a residential area decreases the value of the homes (33% said depreciation would be at least 20%). Respondents also sa such a business is a sign of neighborhood decline, making underwriters hesitant to approve the 90-95 financing most home buyers require. They said commercial property is also negatively effected by su businesses. TRADE AREA CHARACTERISTICS. Of 81 license plates traced for owner address, only 3 lived within one mile of the sexually oriented business. 44% were t?om outside Austin. RECOMMENDATIONS. 1) Sexually oriented businesses should be limited to highway or regionally. oriented zone districts. 2) Businesses should be dispersed to avoid concentration. 3) Conditional use permits should be required for these businesses. . Beaumont, Texas Land Use Study Dated September 14, 1982 'OVERVIEW: This report by the city Planning Department encourages amendments to existing "adult business" ordinances to include eating or drinking places featuring sexually oriented entertainment (strippers, etc.). Zoning laws required "adult uses" to locate 500 ft. from residential areas; 300 fi. from any other adult bookstore, adult theater, bar, pool hall or liquor store; and 1,000 feet from a church, school, park, or recreational facility where minors congregate. CRIME: Police verified that bars, taverns, and lounges (especially thos, e with sexually oriented en. te .rtainment) are frequent scenes of prostitution and the sale/use of n~.rcotics. On the whole, all ' criminal activity was higher at sexually oriented businesses. http:#www.afa.neffpomography/soblandusesummaries.html -'1/14/200 ILECOMMENDATIONS' 1)Add eating;drinking places that exclude minors (under Texas lax,,'), unless accompanied by a consenting parent, guardian or spouse. 2) Require specific permits ft~r areas zoned as General Commercial-Multiple Family Dwelling Districts. 3) Reduce the required distance of sexually oriented businesses from residential areas, schools, parks, and recreational facilities from 1,000 to 750 ft. Cleburne, Texas Land Use Study Dated October 27, 1997 OVERVIEW: This is a report by Regina Atwell, City Atton~ey for the City of Cleburne, Texas, on how and why the city organized a joint, county-wide sexually oriented business (SOB) task force. The purpose of this report is to educate and provide assistance to other jurisdictions on what the author considers important aspects of organizing, dratling and adopting an SOB ordinance or amendment to an SOB ordinance. In the introduction, Ms. Atwell cautions that although SOBs now appear more sophisticated and have begun to integrate into the mainstream, the secondary effects of these businesses are still harmful to the-community. She offers a set of questions to help assess a local government's needs to enact or update its SOB ordinance. Also, she gives a brief legal history of zoning regulations for SOBs. ORDINANCE ENACTMENT: The City of Cleburne decided to update its existing SOB ordinance in response to plans by Houston and Dallas to revise their SOB ordinances, as well as related concems that Dallas-Ft. Worth SOBs might subsequently infiltrate the Clebume area. After learning that the County did not have an SOB ordinance, county officials and officials from all cities in the county were invited to appoint task force members to join the Cleburne's SOB Task Force. Due to an excellent response from the county and many cities within the county, a Joint County-Wide SOB Task Force was formed, realizing that a united stand on this issue was imperative. After researching the law, consulting experts, examining sample ordinances from other jurisdictions, thoroughly investigating SOBs and their negative secondary effects on the community, and deciding which time/place/manner regulations were most appropriate to protect the governmental interests of their area, the Joint Task Force presented a draft of an SOB Ordinance to their city and county officials. For all its functions, the Task Force relied on the tbllowing guidelines: (1) Drafting an ordinance is done by the city planning office, the city attorney and the ordinance review committee, in reliance on case studies discussing secondary effects of SOBs. It is important that the actual studies be presented to legislators; (2) Public hearings should be held to discuss the ordinance and a legislative record created to preserve testimony, studies, maps, and other evidence; (3) Draft a good "Preamble" indicating the council's concern with secondary effects of SOBs; (4) Keep legislative record clean from any suggestions that impermissible motives have influenced the legislative process; (5) Be sure the ordinance allows reasonable "alternative avenues of communication" for SOBs to locate, and includ zoning maps with measurements and available sites for the record: and (6) If interested in enacting ~ licensing ordinance, be sure that it is narrowly drawn to serve legitimate state interests without restricting lA speech of SOBs. The report also gives extensive tips for how to hold public hearings. CONCLUSIONS' Regulation of SOBs, including licensing, was necessary to combat the detrimenta effects of SOBs, including high crime rate, depreciated property values, and spread of communicabl. diseases. In addition, the Task Force recommended enforcement of public nuisance laws, diligent prosecution of obscenity and sexual offense cases, and specialized training for local police and sheri: Dallas, Texas Land Use Study Dated April 29, 1997 This study, which is an update of a December 14, 1994 report prepared by The Maiin Group, analyze the effects of sexually oriented businesses (SOBs), specifically those that offer or advertise live entertainment and operate as an adult cabaret, on the property values in the surrounding neighborhom The study concludes that there is a much greater impact on the surrounding neighborhoods when ther. a high concentration of these businesses in one locale. The study found that the presence of an SOB in an area can create a "dead zone" which is avoided by shoppers and families with children that do not want to be in areas that also have adult uses. Also, the late hours of operation combined with loitering by unsavory people in the area where SOBs are locate appear to lead to higher crime in the area. In fact, a look at police calls for service over a four year period (1993-1996) shows that SOBs were a major source of the calls. One area averaged more than o call to police per day, where there was a concentration of seven SOBs. In that same area there was a much higher incidence of sex crime arrests than in similar areas with none or fewer SOBs. This study applied the conclusions of several other studies completed by New York, Phoenix, Indianapolis, Austin, and Los Angeles, finding that the methodology used was appropriate and the conclusions were sound. This study concludes that the finding in these other studies would not be any different in Dallas. The studies found that SOBs have negative secondary impacts such as increased crime rates, depreciation of property values, deterioration of community character and the quality of li~ http://www.afa.net/pornography/soblandusesummaries.html ":.-1/14/20, In addition, real est:~te brokers inter~, lowed in tl~e Dallas area reported that SOBs are p~:rceived to negatively affect nearby property values and decrease market val-aes." There were similar results £rom surveys taken in New York City and a national survey completed in Inciianapolis and Los Angeles. The study also showed that community residents were concerned that the business signs used by SOBs were out of' keeping with neighborhood character and could expose minors to sexual images. In areas where SOBs were concentrated, the signs were larger more visible and more graphi¢, to compete for business. The study shows that a concentration of SOBs has a higher negative impact on the SmTounding communities than an area with one isolated SOB. When concentrated, SOBs tend to be a magnet for certain businesses such a pawn shops, gun stores, liquor stores, etc., while driving away more family- oriented businesses. It can be harder to rent or sell vacant land in areas where SOBs are located. In fact, the negative perceptions associated with these areas have a significant impact on declining property values, even where other negative effects of SOBs are difficult to measure. Interviews with owners of commercial property near SOBs confirmed that the loss of property value manifested in a variety of ways, including' increased operating costs, like additional security patrols, burglar alarms, and trash cleanup; properties selling at much lower sales prices; and extreme difficulty in leasing properties. Owners thought that if the SOBs were gone, their property values would increase. El Paso, Texas Land Use Study Dated September 26, 1986 OVERVIEW: This study done by the Department of Planning, Research and Developrnent, the City Attorney's Office, the Police Department Data Processing Division, and New Mexico State University involved one year of studying the impacts of SOBs on the El Paso area. A separate report by the New Mexico State University on perceived neigl',borhood problems is also included. The study is in response to resident concern about the negative impacts resulting from the significant growth in SOBs over the past ten years. The study results show that SOBs are an important variable in the deviation fi'om normal rates for real estate market performance or crime. Also included in the study are detailed maps showing the locations of SOBs in El Paso and within the selected study areas. FINDINGS: In studying the impacts caused by SOBs, three study areas (with SOBs located in the area) and three control areas (similar areas in size and population, but without SOBs) within El Paso were identified and studied. Using the results of the study areas and the attitudes of the residents living near SOBs, the study concluded that the following conditions existed within the study areas: (1) the housing base within the study area decreases substantially xx'ith the concentration of SOBs: (2) property value decrease for properties located within a 1-block radius of SOBs; (3) there is an increase in listings on real estate market for properties located near SOBs; (4) the presence of SOBs results in a relatix~ deterioration of the residential area of a neighborhood; (5) there is a significant increase in crime nero SOBs; (6) the average crime rate in the study areas was 72% higher than the rate in the control areas; sex-related crimes occurred more frequently in neighborhoods with even one SOB; (8) residents in th study areas perceived far greater neighborh'ood problems than residents in control areas; (9) residents study areas had great fear of deterioration and crime than residents in control areas. The study of perceived neighborhood problems done by the New Mexico State University revealed strong concern by residents of the impact of SOBs on children in the neighborhood. In addition, some respondents told survey interviewers they feared retaliation from SOBs if they gave information abou pro.blems related to SOBs. Overall, this survey showed a strong, consistent pattern of higher neighborhood crime, resident fear and resident dissatisfaction in the neighborhoods containing SOBs. RECOMMENDATIONS. The main recommendations included that a zoning ordinance be adopted w distance requirements between SOBs and sensitive uses, that a licensing system be established, that annual inspections be required, that signage regulations be established, and that a penalty/fine section included for violations. ' Houston, Texas Land Use Study Dated November 3, 1983 OVERVIEW: Report by the Committee on the Proposed Regulation of Sexually Oriented Businesses determining the need and appropriate means of regulating such businesses. Four public hearings provided testimony from residents, business owners, realtors, appraisers, police, and psychologists. The committee and legal department then reviewed the transcripts and drafted a proposed ordinance. More hearings obtained public opinion on the proposal and the ordinance was refined for vote by the City Council. http :#www. a fa.n e t/po rno graph y/so b lan d us esu mmari es .html 1/14/200. TESTIMONY' The testimony was summarized into six broad premisea' (1) The rights of individuals were affirmed. (2) Sexually oriented businesses can exist with regulations that minimize their adverse effects. (3) The most important negative effects were on neighborhood protection, community enhancement, and property values. (4) Problems increased when these businesses were concentr~ted. (5) Such businesses contribute to criminal activities. (6) Enforcement of existing statutes was difficult. ORDINANCE: (1) Required permits for sexually oriented businesses (non-refundable $350 application fee). (2) Distance requirements: 750 ft. from a church or school; 1,000 ft. from other such businesses; 1,000 ft. radius fi'om an area of 75% residential concentration. (3) Amortization period of 6 months that could be extended by the city indefinitely on the basis of evidence.. (4) Revocation of permit for employing minors (under 17), blighting exterior appearance or signage, chronic criminal activity (3 convictions), and false permit information. (5) Age restrictions for entry. Houston, Texas II Land Use Study Dated January 7, 1997 OVERVIEW. This is a summary of a legislative report prepared by the Sexually Oriented Business Revision Committee for the Houston City Council, analyzing the strengths and wealmesses of the Cit current SOB ordinance, and making recommendations for amendments and additions principally pertaining to employee licensing, lighting configurations, location requirements, prohibition of"glor) holes," elimination of closed-off areas, public notification of SOB applications, clear lines of vision inside SOBs, and dancer "no-touch" policies. This report summary includes discussion of prior regulation efforts, testimony by HPD Vice Department, citizen correspondence, industry memos, lee, research, and summaries of public '[estimony. SUMMARY. This study was a result of increasing community concern over increasing proliferation t SOBs under the existing SOB ordinance and the HPD's need for better control over increasingly repetitive serious violations at numerous SOBs. The Committee made the following findings: (I) Due criminal activity associated with SOBs, licenses should be required for all SOB employees (requiring criminal background investigations); (2) There are obstacles to successful enforcement of public lewdness, prostitution, indecent exposure, and other criminal activities (i.e. entertainers can detect wh, a patron is an undercover cop); (3) "Glory holes" between enclosed booths promote anonymous sex a~' facilitate the spread of disease, so prohibition of these openings was recommended; (4) The lack of a clear line of vision between manager's stations and booths or secluded areas (VIP rooms) encourages lewd behavior and sexual contact (also difficult to observe during inspections); (5) Multi-family tracts were being counted as one tract, so new formula devised based on homeowners' property size; (6) Inadequate lighting in SOBs makes it difficult for SOB managers and police to monitor illegal activiti~ so minimum requirements for "exit" signs in Uniform Building Code was suggested; (7) Locked room within SOBs are usually fronts for prostitution, so prohibition of enclosed rooms recommended; (8) Public and expert testimony requested the inclusion of"public r~arks" as a sensitive use in the zoning location ordinance; (9) Repeated testimony requested notification to public regarding pending SOB permits, so posting of a sign notifying of pending permit was required; and (10) Continuing amortizati~ provisions was preferable to grandfathering in those SOBs not in compliance with the amended ordinance (i.e. 6 months plus extensions for recouping investment). CONCLUSIONS' The Committee concluded that strengthening the ordinance would achieve expediter revocation process, accountability to SOB employees through licensing, aid to police investigations by improved lighting and configurations, protections to the community by increasing distance requirements, and reduction of disease from anonymous spread by eliminating "glory holes." Newport News, 'Virginia Land Use Study http ://www. a fa. n e t/po rn o graph y/so b lan du s esu mmari es. h tml 1/14/200, Dated MARCIt, 1996 OVERVIEW: As of November, 1995, there were 31 "adult use" establishments: 14 "adult entertainment" establishments ("exotic dancing girls", "go-go" bars, "gentlemen's clubs", etc.); 8 "adult book/video stores" (outlets selling and renting pornographic magazines, videos, and sex devices); and 9 night clubs (music, dancing, or other live entertainment). Of the 31 uses, 17 are in the General Commercial zone, 5 in the Regional Business District zone, 7 in the Retail Commercial zone, and 2 are in the tight Industrial zone. They are dispersed along two streets with a few clusters. A proposed ordinance would require "adult uses" to be 500 feet from from other "adult" uses and to locate at least 500 feet away from sensitive uses (churches, schools, homes, etc.), with no distance limits in the downtown zone. CRIME: The Police Department researched calls for police responses to the 31 businesses, by address, for the period of January l, 1994, to October 3 l, 1995, with a cross-check to assure accuracy of the calls to the correct address. The effects of concentrations of"adult uses" were also checked by comparing study areas with control areas. Study area l, with 4 "adult" uses, had 81% more police calls than nearby control area I. When adjusted for population differences, the study area had 57% higher police calls and 40% higher crimes than the control area. For the 31 sexually oriented businesses, there were 425 calls of those' 65% were to strip clubs and go-go bars, averaging 23 calls per "adult entertainment" business; night clubs had 30% of the calls, averaging 14 calls per business; and "adult" bookstores and video stores had 4%, averaging 2 calls per business;. The reasons for the calls included: 25 assaults; 18 malicious destructions of property; 39 intoxications; 60 fights; and 151 disorderly conduct incidents. A selected list of restaurants with ABC licenses averaged 11 calls for service during the same period. One particular downtown "adult entertainment" establishment had 116.7 "police calls per 100 occupancy" compared to a regular restaurant, non-adult use, located across the street, with 50 calls per 100 occupancy. MERCHANTS/REAL ESTATE: A very high percentage of realtors indicated that having "adult uses" nearby can reduce the number of people interested in occupying a property by 20 to 30%; would hurt property values and resale of adjacent residential property. Realtors expressed concern for personal safety, increased crime, noise, strangers in the neighborhood, and parking problems. Merchants associations surveyed supported strengthening the city's regulations of"adult uses" and expressed a common concern that additional "adult uses" would contribute to deterioration of their areas. Bellevue, Washington Land Use Study Dated February, 1988 OVERVIEW' This is a compilation of mate:'ials prepared for the City Council Members of Bellevue, Washington for use in enacting an SOB zoning ordinance. The study includes general information ab regulation of SOBs, secondary impacts fi'om SOBs, experiences from nearby communities, descriptic of Bellevue's current situation, and recommendations for appropriate forms of regulation of SOBs wil Bellevue. Also included is a bibliography of land use studies, articles, correspondence and reference materials from adjacent municipalities made available for council members' use. Minutes from two public hearings about regulation of SOBs, maps showing the location of current SOBS, and memos fi' the planning department are also included. FINDINGS: The study begins by explaining the legal basis history behind regulating SOBs. Existing provisions in the State and local codes relating to obscenity or licensing are mentioned. The s~ady that the goal of regulating SOBs is to mitigate the secondary impacts of these uses in the communities concludes that the implications of the data and experience studied in other jurisdictions are significant Bellevue. It discusses the link between crime rates and areas with concentrations of SOBs, as revealeC by police research, noting the "skid row" effect that occurred in Detroit, and the higher percentages crime documented in Cleveland (in the 1970's), and other cities. The study noted that while police crh statistics showed a strong connection bc?.ween criminal activity and some adult uses, there is no clear consensus (in psychological studies) that exposure to pornography causes criminal behavior. The stud' also discusses the impact to property values. It notes a Kent survey of real estate appraisers that reveal an overall consensus that the impact on residential property values is probably negative. In Bellevue, t three existing SOBs are widely dispersed and centrally located in commercial areas, which have thusfi not experienced deterioration in surrounding structures and areas. Based on a Puget Sound study, it wz noted that SOBs are incompatible with residential, educational and religious uses. The Northend Ciner v. Seattle case agreed that the goal of preserving the quality of residential neighborhoods by prohibitin disruptive adult uses was a valid, substantial interest. This case also points out that residents' perceptio may be a major factor in siting SOBs. Overall the study concludes that research has shown SOBS may lead to the secondary effects mentioned above, but it is not possible to say definitely in each case. The study goes on to review regulations adopted by different jurisdictions, analyzing approaches of disper:~- and concentration of SOBs. The study enumerates several sections of code showing public policy concerns to be considered when deciding Bellevue's approach to regulating SOBs. Currently, the three existing SOBs in Bellevue show no particular negative impacts on the surrounding community, and an widely dispersed fi'om each other and other sensitive uses (residences, etc). However, there is not guarantee that furore concentrations of SOBs will not occur. ~.. RECOMMENDATIONS. The study recommended the adoption of a modified dispersal/concentration approach (i.e. dispersal within CB, OLB and CBD zones), with a 600-foot distance limitation between SOBs and other sensitive uses. Des Moines, Washington Land Use Study http://www.afa.net/pornography/soblandusesummaries.html 4/200 Dated August, 1984 OVERVIEW: This land use study includes an independent report prepared by R. W. Thorpe & Associates, Inc for the Des Moines City Council, and a report from the City Administration on the impacts of Sexually Oriented Businesses (SOBs) on the area. Appendices include: a theater admission report, a 1978 Des Moines Community opinion survey, a copy of a Des Moines ordinance requiring an impact study of SOBs on the city, a list of criminal incidents related to the adult theater, a business activity chart of businesses adjacent to the adult theater, a copy of Northend Cinema, Inc. v. City of Seattle, 585 P.2d 1153 (1978), and transcripts of the hearing and testimonies. FINDINGS: When the study was made, Des Moines had an adult theater operating in the Revitalization area/central business district of the city. It had been operating as such since the 1970's. The Administration report noted a 1978 Community Opinion Survey reporting that the majority of residents in the area were opposed to the theater. The Administration's report also lists several negative impacts caused by the presence of the adult theater in the community, including' decreased property values, refusal to shop in stores adjacent to the adult theatre, noticeable deterioration of the district, deferred maintenance, parking and traffic problems, attraction of transients, increased crime, and interference with parental responsibilities for children. As a result, the study noted that there had been numerous business failures and high business remover in the commercial areas near the adult theater. Public testimony, staff studies and the independent study all concluded that the continued presence of the adult theater would nullify any investment in the revitalization efforts of downtown Des Moines. The study examined efforts to regulate SOBs in North Carolina, Detroit, Maryland, and Seattle. The Administration's study took particular note of Seattle's zoning ordinance, which restricted location of SOBs to a certain part of the city. It was upheld by that state's highest court, which said the city's important interest in regulating the use of its property for commercial purposes was sufficient justification. The independent study submitted by R. W. Thorpe & Associates, Inc for the Des Moines City Council mostly focused on and made comparisons to studies done in cities in the western part of Washington State. However, the study also looked at other jurisdictions like Boston, and New Orleans. It looks at various negative impacts on the community including crime, decline in adjacent land uses, economic impact (decreased property values), and community impact (incompatibility with sensitive uses and areas where minors may meet collectively). It discussed differing approaches to regulating SOBs, including clustering and dispersal. RECOMMENDATIONS: The Administration's report, based partly on the independent study, concluded that a zoning ordinance should be enacted, locating adult businesses in the CG 'zone along Highway 99. This would keep SOBs away from the central business district that the city was trying to revitalize and maintain a family friendly atmosphere there. Dispersal of SOBs was also recommended to minimize impact of crime potential volatile situations associated with close proximity of SOBs. Seattle, Washington Land Use Study Dated March 24, 1989 OVERVIEW' The report concerns a proposed amendment to add topless dance halls to existing land regulations for "adult entertainment establishments." Seattle had eight such dance halls (termed ":~.~ '~ cabarets"), six established since 1987. The study relies on reports from a number of cities, includi~:~- Indianapolis, Los Angeles, Phoenix, Austin and Cleveland. FINDINGS' The increased number of cabarets resulted in citizen complaints, including phone calls, letters (from individuals and merchants associations), and several petitions with hundreds of signatur~ Protests cited decreased property values; increased insurance rates; fears of burglary, vandalism, rape assaults, drugs, and prostitution; and overall neighborhood deterioration. The report notes that patron, these cabarets most often are not residents of nearby neighborhoods. Without community identity, behavior is less inhibited. Increased police calls to a business, sirens, and traffic hazards from police r emergency vehicles are not conducive to healthy business and residential environments. RECOMMENDATIONS. Since city zoning policy is based on the compatibility of businesses, the report recommends that the cabarets locate in the same zones as "adult motion picture theaters." This plan allows about 130 acres for such businesses to locate throughout the city. http :l/www.afa.net/pornography/sob landus es umm ari es. htm I ........ 1/14/20( St. Croix Co., Wisconsin Land Use Study Dated September, 1993 OVERVIEW: At the time the St. Croix County Planning Department did this study, the County had two adult cabarets, but did not have a problem with concentration ofsexually oriented businesses (SOBs). The study acknowledges that SOB zoning ordinances have generally been upheld by the courts as constitutional and suggests the County consider following the lead of other communities who have enacted similar ordinances. The main concern surrounded possible growth o£ SOBs resulting from future plans for an interstate highway system linking St. Croix County and the great Twin Cities metro area. To preserve the County's "quality of life" the study indicates the need to take preventative vs. after-the-fact action. SUMMARY: The study notes the continued growth of the SOB industry and ana!vzes the economic, physical, and social impact it has on the community. It examines documented ecohomic impact of S( in Los Angeles, CA, Detroit, MI, Beaumont, TX, and Indianapolis, IN, noting that concentrations of SOBs results in decreased property values, rental values, and rentability/salability. General economic decline is also associated with concentration of SOBs. Residents surveyed in other studies perceived less negative impact on property values of residential and commercial areas the further away SOBs u located. The study also noted that economic decline caused physical dete.: ioration and blight. During night time operation hours, traffic congestion and noise glare could also be problems. Social impacts studied included negative effects on morality, crime, community reputation and quality of life. It note the 1970 Commission on Obscenity and Pornography saying porn has a deleterious effect upon the individual morality of American citizens. It sites the Phoenix, AZ study reporting a tremendous incre in crime in three study areas containing SOBs (43% more property crimes, 4% more violent crimes, z over 500% more sex crimes). The study mentions Justice Poweil's quote in Young v. ,4mer~can Mb~i- Theatres regarding using zoning to protect "quality of life." The study analyzes different zoning teclmiques, including dispersal and concentration of SOBs, and their constitutionality. It also discusses the use of"special use" and "special exception" permits. Othe~ regulatory techniques discussed include licensing ordinances, active law enforcement, sign regulation and nuisance provisions. The study includes detailed examples of SOB definitions, a proposed zoning ordinance, and a bibliography of the sources used for this study. RECOMMENDATIONS- The study recommended that the county adopt a zoning ordinance using th{ dispersal technique. It also suggested the county explore the possibility of licensing SOBs. 1 I This number is a great deal lower than the all time high of 140 in the late 1970s. During that time the Times Square area was referred to as a "sinkhole" by the (T!m..D_aily N..e.~.v.s_, August 1'4, 1975). http://www, afa.net/pornography/sob landusesummaries.html 1/14/20{ Appendix F: Report of the Minnesota Attorney General's Wor'ki ,,o Group.on tl e Regulation..of Se.x_ua!ly Ori.._e.!!ted Businesses (Ju !e 6, 1.989) Introduction Many communities in Minnesota have raised concerns about the impact of sexually oriented businesses on their quality of life. It has been suggested that sexually oriented businesses serve as a magnet to draw prostitution and other crimes into a vulnerable neighborhood. Community groups have also voiced the concern that sexually oriented businesses can have an adverse effect on property values and impede neighborhood revitalization. It has been suggested that spillover effects of the businesses can lead to sexual harassment of residents and scatter unwanted evidence of sexual liaisons in the paths of children and the yards of neighbors. Although many communities have sought to regulate sexually oriented businesses, these efforts have often been controversial and equally often unsuccessful. Much community sentiment against sexually oriented businesses is an out growth of hostility to sexually explicit forms of expression. Any successful strategy to combat sexually oriented businesses must take into account the constitutional rights to free speech which limit available remedies. Only those pornographic materials which .are determined to be "obscene" have no constitutional protection. As explained later in more detail, only that pornography which, according to community standards and taken as a whole, "appeals to the prurient interest" (as opposed to an interest in healthy sexuality), describes or depicts sexual conduct in a "patently offensive xvay" and "lacks serious literary, artistic, political or scientific value," can be prohibited or prosecuted. Miller v. California, 413 U.S. 15, 24(1973). Other pornography and the businesses which purvey it can only be regulated where a harm is demonstrated and the remedy is sufficiently tailored to prevent that harm without burdening First Amendment rights. In order to reduce or eliminate the impacts of sexually oriented businesses, each community must find the balance between the dangers of pornography and the constitutional rights to free speech. Each commUnity must have evidence of harm. Each community must know the range of legal tools which can be used to combat the adverse impacts of pornography and sexually oriented businesses. . On June 21, 1988, Attorney General Hubert Humphrey III announced the formation of a Working Group on the Regulation of Sexually Oriented Businesses to assist public officials and private citizens in finding legal ways to reduce the impacts of sexually oriented businesses. Members of the Working Group were selected for their special expertise in the areas of zoning m~d law enforcement and included bipartisan representatives of the state Legislature as well as members of both the Minneapolis and St. Paul city councils who have played critical roles in developing city ordinances regulating sexually oriented businesses. The Working Group heard testimony and conducted briefings on the impacts of sexually oriented businesses on crime and communities and the methods available to reduce or eliminate these impacts. Extensive research was conducted to review regulation and prosecution strategies used in other states and to analyze the legal ramifications of these strategies. ,-'ks testimony was presented, the \\'orking Group reached a consensus that a comprehensive approac required to reduce or eliminate the impacts of sexually oriented businesses. Zoning and licem regulations are needed to protect residents from the intrusion of "combat zone" sexual crime' harassment into their neighborhoods. Prosecution of obscenity has played an important role in eact the cities which have significantly reduced or eliminated pornography. The additional threat posed the involvement of organized crime, if proven to exist, may justify the resources needed for prosecut of obscenity or require use of a forfeiture or racketeering statute. The Working Group determined that it could neither advocate prohibition of all sexually exp: material nor the use of regulation as a pretext to eliminate all sexually oriented businesses. ~. conclusion is no endorsement of pornography or the businesses which profit from it. The Work Group believes much pornography conveys a message which is degrading to women and an affron human dignity. Commercial pornography promotes the misuse of vulnerable people and can be usec either a perpetrator or a victim to rationalize sexual violence. Sexually oriented businesses l~ax' deteriorating effect upon neighborhoods and draw involvement of organized crime. Communities are not powerless to combat these problems. But to be most effective in defending it from pornography each community must work from the evidence and within the law. The report of Working Group is designed to assist local communities in developing an appropriate and effec~ defense. The first section of the report discusses evidence that sexually oriented businesses, and the mater from which they profit, have an adverse impact on the surrounding communities. It provides relex evidence which local communities can use as part of their justification for reasonable regulation sexually oriented businesses. The Working Group also discussed the relationship between sexually oriented businesses and organi. crime. Concerns about these broader effects of sexually oriented businesses underlie the Work Group's recommendations that obscenity should be prosecuted and the tools of obscenity seized w: sexually oriented businesses break the law. The second section of this report describes strategies for regulating sexually oriented businesses prosecuting obscenity. The report presents the principal alternatives, the recommendations of Working Group and some ef the legal issues to consider when these strategies are adopted. The goal of the Attorney General's Working Group in providing this report is to support and assist 1o communities who are struggling against the blight of pornography. When citizens, police officers t city officials are concerned about crime and the deterioration of neighborhoods, each of us lives n door. No community stands alone. Summary The Attorney General's Working Group on the Regulation of Sexually Oriented Businesses mal th~ following recommendations to assist communities in protecting themselves from the adve~ effects of sexually oriented businesses. So,ne or ali of these recommendations may be needed any given community. Each community must decide for itself the nature of the problems it fat and the proposed solutions which would be most fitting. (1) City and county attorneys' offices in the Twin Cities metropolitan area should designate http ://www. commun i ty de fen s e. o rg/c dcd ocs/P CS O B/htm/P C S O B 2ed_A pp F.h tm 1/14/20 pros~.cutor to pursue obscenity pro.,ccutions and support that prosecutor ~'ith specialized training · · ,.2) The Legislature should consider funding a pilot program to demonstrate the efficacy of obscenity prosecution and should encourage the pooling of resources between urban and suburban prosecutor offices by making such cooperation a condition for receiving any such grant funds. (3) The Attorney General should provide informational re- sources for ciD' and county attorneys who prosecute obscenity crimes. (4) Obscenity prosecutions should begin with cases invoMng those materials which most flagrantly offend community standards. (5) The Legislature should amend the present forfeiture statute to include as grounds for forfeiture all felonies and gross misdemeanors pertaining to solicitation, inducement, promotion or receiving protit from prostitution and operation of a "disorderly house." (6) The Legislature should consider the potential for a RiCO-like statute with an obscenity predicate. "(7) Prosecutors should use the public nuisance statute to enjoin operations of sexually oriented businesses which repeatedly violate laws pertaining to prostitution, gambling or operating a disorderly house. .,. (8) Communities should docu~nent findings of adverse secondary effects of sexually oriented - businesses prior to enacting zoning regulations to control these uses so that such regulations can be upheld if challenged in court. (9) To reduce the adverse effects of sexually oriented businesses, communities should adopt zoning regulations ~vhich set distance requirements bethveen sexually oriented businesses and sensitive uses, including but n:.~t limited to residential areas, schools, child care facilities, churches and parks. (10) To reduce adverse impacts from concentration of these businesses, communities should adopt zoning ordinances which set distances between sexually oriented businesses and between sexually oriented businesses and liquor establishments, and should consider restricting sexually oriented businesses to one use per building. (11) Communities should require existing businesses to comply with ne~v zoning or other regulation of sexually oriented businesses ~vithin a reasonable ti~ne so that prior uses will conform to new laws. (12) Prior to enacting licensing regulations, communities should document findings of adverse secondary effects of sexually oriented businesses and the relationship bet~veen these effects and proposed regulations so that such regulations can be upheld if challenged in court. (13) Communities should adopt regulations ~vhich reduce the likelihood of criminal activity related to sexually oriented businesses, including but not limited to open booth ordinances and ordinances which authorize denial or revocation of licenses when the licensee has committed offenses relevant to the operation of the business. (14) Communities should adopt regulations which reduce exposure of the communiq, and mine to the blighting appearance of sexually oriented businesses, including but not limited regulations of signage and exterior design of such businesses, and should enforce ~tate requiring sealed wrappers and opaque covers on sexually oriented material. Impacts of Sexually Oriented BuSinesses The Working Group reviewed evidence from studies conducted in Minneapolis and St. Paul and in ot~ cities tlxroughout the country. These studies, taken together, provide compelling evidence that sexual oriented businesses are associated with high crime rates and depression of property values. In additic the Working Group heard testimony that the character of a neighborhood can dramatically change wh there is a concentration of sexuaily oriented businesses adjacent to residential property° Minneapolis Study ..! In 1980, on direction from the Minneapolis City Council, the Minneapolis Crime Prevention Cent examined the effects of sex-oriented and alcohol-oriented adult entertainment upon property values a~ crime rates. This study used both simple regression and multiple regression statistical analysis evaluate whether there was a causal relationship between these businesses and neighborhood blight. The study concluded that there was a close association between sexually oriented businesses, high crin rates and low housing values in a neighborhood. When the data was reexamined using control variabl. such as the mean income in the neighborhood to determine whether the association proved causation, was unclear whether sexually oriented businesses caused a decline in property values. The Minneapo! study concluded that sexually oriented businesses concentrate in areas which are relatively deteriorat,, and, at most, they may weakly contribute to the continued depression of property values. However, the Minneapolis study found a much stronger relationship between sexually orient( businesses and crime rates. A crime index was constructed including robbery, burglary, rape and assau: The rate of crime in areas near sexually oriented businesses was then compared to crime rates in oth, areas. The study drew the following conclusions' (1) The effects of sexually oriented businesses on the crime rate index is positive and significa~ regardless of which control variable is used. (2) SexuallY oriented businesses continue to be associated with higher crime rates, even when t~ control variables' impacts are considered simultaneously. " According to the statistical analysis conducted in the Minneapolis study, the addition of one sexuall oriented business to a census tract area will cause an increase in the overall crime rate index in that are by 9.15 crimes per thousand people per year even if all other social factors remain unchanged. St. Paul http ://www. comnluni tyde fen s e. org/c d c do c s/P C S O B/h tm/P C SO B 2ed_A pp F.h tnl 1/14/200 In 1978 tb, e St. Paul Division oi'Planni,'~,, and the Minnesota Crime Control Plannina board conducted a study of the relationship betv,'een sex-oriented and alcohol-oriented adult entertainment businesses and neigl~borhood blight. This stud>' looked at crime rates per thousand and median housi~'~g values over time as indices of neighborhood deterioration. The study combined sex-oriented and alcohol-oriented businesses, so its conclusions are only suggestive of the effects of sexually oriented businesses alone. Nevertheless, the study reached the following important conclusions' (1) There is a statistically significant correlation between the location of adult businesses and neighborhood deterioration. (2) Adult entertainment establishments tend to locate in somewhat deteriorated areas. (3) Additional relative deterioration of an area follows location of an adult business in the area. (4) There is a significantly higher crime rate associated with two such businesses in an area than is associated with only one adult business. (5) Housing values are also significantly lower in an area where there are three adult businesses than they are in an area with only one such business. ' Similar conclusions about the adverse impact of sexually oriented businesses on the community were reached in studies conducted in cities across the nation. Indianapolis .In 1983, the City of Indianapolis researched the relationship between sexually oriented businesses and property values. The study was based on data from a national random sample of 20 percent of the American Institute of Real Estate Appraisers. The Study found the following: (1) The appraisers overwhelmingly (80%) felt that an adult bookstore located in a neighborhood would have a negative impact on residential property values within one block of the site. (2) The real estate experts also overwhelmingly (71%) believed that there would be a detrimental effect on commercial property values within the same one block radius. (3) This negative impact dissipates as the distance from the site increases, so that most appraisers believed that by three blocks away from an adult bookstore, its impact on property values would be minimal. Indianapolis also studied the relationship between crime rates and sexually oriented bookstores, cabarets, theaters, arcades and massage parlors. A 1984 study entitled "Adult Entertainment Businesses in Indianapolis" found that areas with sexually oriented businesses had higher crime rates than similar areas with no sexually oriented businesses. (1) Major crimes, such as criminal homicide, rape, robbery, assault, burglary and larceny, occurred at a rate that was 23 percent higher in those areas which had sexually oriented businesses. (2) The sex-related crime rate, including rape, indecent exposure and child molestation, was · found to be 77 percent higher in those a] cas x~'ith sexually eriented businesses. Phoenix The Planning Department of Phoenix, Arizona, published a study in 1979 entitled "Relation Criminal Activity and Adult Businesses." This study showed that arrests for sexual crimes and location of sexually oriented businesses were directly related. The study compared three areas ~ sexually oriented businesses with three control areas which had similar demographic and land~ characteristics, but no sexually oriented establishments. The study found that, (1) Property crimes were 43 percent higher in those areas which contained a sexually orien business. (2) The sex crime rate was 500 percent higher in those areas with sexually oriented businesses. (3) The study area with the greatest concentration of sexually oriented businesses had a ~, crimes rate over 11 times as large as a similar area having no sexually oriented businesses. Los Angeles A study released by the Los Angeles Police Department in 1984 supports a relationship betwe sexually oriented businesses and rising crime rates. This study is less definitive, since it was r designed to use similar areas as a control. The study indicated that there were 11 sexually oriented ad establishments in the Hollywood, California, area in 1969. By 1975 the number had grown to 88. Duri the same time period, reported incidents of "Part 1" crime (i.e., homicide, rape, aggravated assac robbery, burglary, larceny and vehicle theft) increased 7.6 percent in the Hollywood area while the r~ of Los Angeles had a 4.2 percent increase. "Part 11" arrests (i.e., forgery, prostitution, narcotics, liqu law violations and gambling) increased 3.4 percent in the rest of Los Angeles, but 46.4 percent in t Hollywood area. Concentration of Sexually Oriented Businesses Neighborhood Case Study In St. Paul, there is one neighborhood which has an especially heavy concentration of sexually` orient{ businesses. The blocks adjacent to the intersection of University Avenue and Dale Street have more th~ 20 percent of the city's adult uses (4 out of 19), including all of St. Paul's sexually oriented bookstor. and movie theaters. The neighborhood, as a whole, shows signs of significant distress, including the highest unemployme~ rates in the city, the highest percentage of families below the poverty line in the city, the lowest medic family income and the lowest percentage of high school and college graduates. (See 40-Acre Study Adult Entertainment, St. Paul Department of Planning and Economic Development, Division Planning, 1987, at 19.) It would be difficult to attribute these problems in any simple way to sexuall oriented businesses. http://www.communitydefense.org/cdcdocs/PCSOB/htm/PCSOB2ed_AppF.htm 1/14/200 Howex'er, it is likely.' that there is a relationship be!ween the conccn~:'ation o!' sexually oriented businesses and neighborhood crime rates. The St. Paul Police Department l',as determined that St. Paul's street prostitution is concentrated in a "street prostitution zone" immediately adjacent to the intersection where the sexually oriented businesses are located. Police statistics for 1986 show that, of 279 prostitution arrests for which specific locations could be identified, 70 percent (195) were within the "street prostitution zone." Moreover, all of the locations with 10 or more arrests for prostitution were within this zone. The location of sexually oriented businesses has also created a perception in the community that this is an unsafe and undesirable part of the city. In 1983, Western State Bank, which is currently located across the street from an adult bookstore, hired a research firm to survey area residents regarding their preferred location for a bank and their perceptions of different locations. A sample of 305 people were given a list of locations and asked, "Are there any of these locations where you would not /'eel safe conducting your banking business?" No more than 4 percent of the respondents said they xvould feel unsafe banking at other locations in the city. But 36 percent said they would feel unsafe banking at Dale and University, the corner where the sexually oriented businesses are concentrated. The Working Group reviewed the 1987 40-Acre Study on Adult Entertai~m'tent prepared by the Division of Planning in St. Paul's Department of Plamfing and Economic Development. This study summarized testimony presented to the Planning Commission regarding neighborhood problems: Residents in the University/Dale area report frequent sex-related harassment by motorists and pedestrians irt the neighborhood. Although it cannot be proved that the harassers are patrons of adult businesses, it is reasonable to suspect such a connection. Moreover, neighborhood residents submitted evidence to the Planning Commission in the tbrm of discarded pornography literature allegedly found in the streets, sidewalks, bushes and alleys near adult businesses. Such literature is sexually very explicit, even on the cover, and under the present circumstances becomes available to minors even though its sale to minors is prohibited. Testimony The Working Group heard testimony that a concentration of sexually oriented businesses has serious impacts upon the surrounding neighborhood. The Working Group heard that pornographic materials are left in adjacent lots. One person reported to the police that he had found 50 pieces of pornographic material in a church parking lot near a sexually oriented business. Neighbors report finding used condoms on their lawns and sidewalks and that sex acts with prostitutes occur on streets and alleys in plain view of families and children. The Working Group heard testi~nony that arrest rates understate the level of crime associated with sexually oriented businesses. Many robberies and thefts from "johns" and many assaults upon prostitutes are never reported to the police. Prostitution also results in harassment of neighborhood residents. Young girls on their way to school or young women on their way to work are often propositioned by johns. The Flick theater caters to homosexual trade, and male prostitution has been noted in the area. Neighborhood boys and men are also accosted on the street. A police officer testified that one resident had informed him that he found used condoms in his yard all the time. Both his teenage son and daughter had been solicited on their way to sct~o:;l and to work. The Working Group heard testimony that in the Frogtown neighborhood, immediately north of t University-Dale intersection in St. Paul, there has been a change over time in the quality of life since t sexually oriented businesses moved into the area. The Working Group heard that the neighborhood us, to be primarily middle class, did not have a high crime rate and did not have prostitution. St. Paul poli officers testified that they believed the sexually oriented businesses caused neighborhood proble~v particularly the increase in prostitution and other crime rates. Property values were suffering, since tt presence of high crime rates made the area less desirable to people who would have the ability a~ inclination to improve their homes. The Working Group made some inquiry to determine to what extent smaller cities outside the Tw Cities Metropolitan area suffered adverse impacts of sexually oriented businesses. The Working Grin was informed by the chiefs of police of Northfield and Owatonna that neither city had adult bookst,.e~" or similar sexually oriented businesses. Police chiefs in Rochester and Winona stated that sexuai oriented businesses in their communities operate in nonresidential areas. In addition, there is "concentration" problem. In Rochester, there are two facilities in a shopping mall and a single booksto in a depressed commercial/business neighborhood. The Winona store is located in a downtown busine area. The police chiefs stated that they had no evidence of increased crime rates in the area adjacent these facilities. They had no information as to the effect which these businesses might have on loc property values. Information presented to the Working Group indicates that community impacts of sexually orient~ businesses are primarily a function of two variables, proximity to residenti~.l areas and concentratio. Property values are directly affected within a small radius of the location of a sexually oriented busines Concentration may Compound depression of property values and may lead to an increase in crin sufficient to change the quality of life and perceived desirability of property in a neighborhood. The evidence suggests that the impacts of sexually oriented businesses are exacerbated when they a~ located near each other. Police officers testified to the Working Group that'"vice breeds vice." Wht sexually oriented businesses have multiple uses (i.e., theater, bookstore, nude dancing, peep booths), or building can have the impact of several separate businesses. The Working Group heard testimony th~ concentration of sexually oriented businesses creates a "war zone" xvhich serves as a magnet for peopl from other areas who "know" where to find prostitutes and sexual entertaim~ent. The presence of bars i the immediate vicinity of sexually oriented businesses also compounds impacts upon the neighborhood. The Attorney General's Working Group believes that regulatory strategies designed to reduce ti: concentration of sexually oriented businesses, insulate residential areas from them, and reduce th likelihood of associated criminal activity would constitute a rational response to evidence of the impacl which these businesses have upon local communities. Sexually Oriented Businesses and Organized Crime Infiltration of organized crime into sexually oriented businesses reinforces the need for prosecUtion c obscenity and requires specific regulatory or law enforcement tools. The Working Group attempted t assess both the present and potential relationship between organized crime and sexually oriente~ businesses. The Working Group heard testimony from a witness who had been prosecuting obscenity cases for th, http://www.communitydefense.org/cdcdocs/PCSOB/htm/PCSOB2ed_AppF.htm 1/14/200. past thirteen years that many sexually orien.-'d businesses hax'e out-of-tc)xvn absentee owners. If ti'~e manager of a local business is p;'c. secuted on an obscenity cl'..arge, his testimony may make it possible to pierce the corporate veil and identify the true owners. The \Vorking Group heard testimony that an organized crime entity may operate somewhat like a franchisor. In order to stay in business, the local manager of a sexually oriented business may have to pay fees to organized crime. The makers and wholesalers of pornographic materials are also likely to be involved with organized crime. The Working Group conducted additional research to assess the relationship between sexually oriented businesses and organized crime. The Working Group was informed by prosecutors of obscenity that there were many ways in which organized crime entities could derive a benefit from sexually oriented businesses. There is a large profit margin in pornography. The presence of coin-operated peep booths provides an opportunity to launder money. Cash obtained from illegal activities, such as prostitution or narcotics, can be explained as the income of peep booths. Cash income can also escape taxation, in violation of law. Although it is clear that organized crime is involved to some degree in the pornography industry, various sources reach different conclusions as to the depth and extent of this involvement. Part of the difference in assessment is based on differences in the way the term "organized crime" is defined. Authorities who restrict their definition of organized crime to the highly organized ethnic hierarchy known as La Cosa Nostra (LCN) tend to find fewer links than those who define the term to include other organized criminal enterprises. Where there has been intensive law enforcement and prosecution, it is more likely that linkage between sexually oriented businesses and organized crime figures will be evident. The Working Group has adopted the definition of organized crime contained in Minnesota's Report of the Legislative Commission on Organized Crime (1975). The Working Group is concerned about the relation between sexually oriented businesses and any "organized criminal conspiracy of two or more persons that is continuous in nature, involves activity generally crossing jurisdictional lines and results in third-party profit." The threat from organized crime includes, but is not limited to involvement of national crime enterprises such as LCN. [!.] Recent federal indictments of James G. Hafiz in Indiana for perjury and of t-lany v. Mohney in Michigan for tax evasion suggest a possible connection between organized crime and a Minnesota pornography business. Hafiz, a Minnesota resident who is an agent of Beverly Theater, Inc., the [.21 company which operated the Faust Theater in St. Paul, has been linked to Mohney, a major pornographer based in Michigan. The indictments allege that Molmey caused the incorporation of the company which operated the Faust, that a corporation owned by Molmey paid for improvements to the Faust and that Mohney is, in fact, the owner of numerous sexually oriented businesses, including the Faust. (See United States v. Hafiz, Indictment, No. IP 88-102-CR (S. D. Ind., Sept. 15, 1988); United States v. Mohney, Indictment No.88-50062 (E.D. Mich. Sept. 9, 1988).) Mohney, in turn, has been linked with nationa! organized crime enterprises. A 1977 report of the United States Justice Department stated: It is believed that Harry V. Mohney of Durand, Michigan, is one of the largest dealers in pornography in the United States... He is alleged to have close association with thc LCN Columbo and the LCN DcCavalcantc, both of' which are very influential in pornography in the eastern United States. In Michigan, -i Mohncy is known to. hire individuals x~'ith organized crime associations to manage his businesses. His busincsscs and corporations consist of 60 known adult bookstores, massage parlors, art theaters, adult drive-in movies, go-go type lounges and pornographic warehouses in Michigan, Indiana, Illinois, Kentucky, Tennessee, Wisconsin Iowa, Ohio and California. He is involved in the financing and production of pornographic movies, magazines, books and newspapers. He also directs the importation and distribution of his own and other pornograpliic publications to retail and wholesale outlets throughout the United States and Canada... He has a working relationship with DeCalvalcantc's representative Robert DiBernardo and has met with Vito Giacalone and Joseph Zcrilli of the LCN Detroit. He has to cater to both to operate in Michigan. U.S. Justice Dep't, Organized Crime Involvement in Pomography, reprinted in the Attorney Genen Comm'n on Pornography (hereinafter "Pornography Commission"), 2 Final Report at 1229-30 (1986).. Organized crime has the potential to infiltrate Minnesota's pornography indust~. Evidence on a natic. level highlights the vulnerability of sexually oriented businesses to criminal control. A number sources have reported that there is a connection between organized crime and the pornography industr The Pornography Commission reported that the Washington, D.C., Metropolitan Police Departm{ determined that traditional organized crime was substantially involved in and did essentially cont~ much of the major pornography distribution in the United States during the years 1977 and 1978." Final Report at 1044-45. The Washington, D.C., study "further concluded that the combination of t large amounts of money involved, the incredibly low priority obscenity enforcement had within poll departments and prosecutors' offices in an area where manpower intensive investigations were essent fbr success, and the imposition of minimal fines and no jail time upon random convictions resulted ir low risk and high profit endeavor for organized crime figures who became involved in pornography." ~ at 1045. The FBI concluded in 1978' Information obtained ... points out the vast control of the multi-million dollar pornography business in the United States by a few individuals with direct connections with what is commonly kd~own as the organized crime establishment in the United States, specifically, La Cosa Nostra... Inibm~ation received from sources of this bureau indicates that pornography is Ia major] income maker for La Cosa Nostra in the United States behind gambling and narcotics. Although La Cosa Nostra does not physically oversee the day-to-day workings of thc majority of pornography business in the United States, it is apparent that they have "agreements" with those involved in the pornography business in allowing these people to operate independently by paying off members of organized crime for the privilege of being allowed to operate in certain geographical areas. . .o Id. at 1046 (quoting Federal Bureau of Investigation report Regarding the Extent of Organized Crirr Development in Pornography 6 (1978)). A brief survey of 69 FBI field offices conducted in 1985 found that about three-quarters of those offict could not verify that traditional organized crime families were involved in the manufacture distribution of pornography. Several offices did, however, report some involvement by members an associates of organized crime. Id. at 1046-47. Stanley Ronquest, Jr., a supervisory FBI special agent for traditional organized crime at FE headquarters in Washington, D.C., was interviewed by Attorney General staff. Ronquest stated th~ http ://www.communi tydefense, org/cdcdocs/PCS O B/htm/PC S O B 2ed_AppF. htm 1/14/200 LCN has ;tot been directly involved in the pornography industry in the last ten years. I-lowever. a former FBI agent told the Pornography Commissic:l: In my opinion, based upon twenty three ycars of experience in pornography and obscenity investigations and study, it is practically impossible to be in the retail end of pornography industry .[today] without dealing in some fashion with organized crime either the mafia or some other facet of non-mafia never-the-less [sic] highly organized crime. Id. at 1047-48. Thomas Bohling of the Chicago Police Department Organized Crime Division, Vice Control Section, told the Pornography Commission that "it is the belief of state, federal and local law enIbrcement that the pornography industry is controlled by organized crime families. If they do not own the business outright, they most certainly extract street tax from independent smut peddlers." Id. at 1048 (emphasis in original). The Pornography Commission stated that it had been advised by Los Angeles Police Chief Daryl F. Gates that "organized crime families from Chicago, New York, New Jersey and Florida are openly controlling and directing the major pomography operations in Los Angeles." Id. The Pornography Commission was told by Jimmy Fratianno, described by the Commission as a member of LCN, "that large profits have kept organized crime heavily involved in the obscenity industry." Id. at 1052. Fratianno testified that "95% of the families are involved in one way or another in pornography .... It's'too big. They just won't let it go." Id. at 1052-63. The Pornography Commission concluded that "organized crime in its traditional LCN forms and other forms exerts substantial influence and control over the obscenity, industry. Though a number of significant producers and distributors are not members of LCN families, all major producers and distributors of obscene material are highly organized and carry out illegal activities with a great deal of sophistication." Id. at 1053. The Pornography Commission reported that Michael George Thevis, reportedly one of the largest pornographers in the United States during the 1970's was convicted in 1979 of RICO (Racketeer Influenced and Corrupt Organizations) violations including murder, arson and extortion. The Commission also reported examples of other crimes associated with the pornography industry, including prostitution and other sexual abuse, narcotics distribution, money laundering and tax violations, copyright violations and fraud. Id. at 1056-65. Although the Pornography Commission report has been criticized for relying on the testimony of unreliable informants in drawing its conclusions finding links between pornography and organized crime (See Scott, Book Reviews, 78 J. Crim. L. & Criminology 1145, 1158-59 (1988)), its conclusions find additional support in recent state studies. The California Department of Justice recently reported that: California's primacy in the adult videotape industry is of law enforcement concern because the pornography business has been prone to organized crime involvement. Immense profits can be realized through pornography operations, and until recently, making and distributing pornography involved a relatively Iow risk of prosecution. But more aggressive law enforcement efforts and turmoil within the pomography business has destabilized the smooth flow of easy money £or some of its major upcratio~i~ ..... As long as control over pornography distribution is contested, and organized crime figures continue their involvements in the business, the pornography industry will rernain of interest tc law enforcement officials statewide. Bureau of Organized Crirne and Criminal Intelligence, Department of Justice, State of Calilbrr Organized Crime in California 1987' Annual Report to the California Legislature at 59-62 (1988). The Pennsylvania Crime Commission similarly determined in a 1980 report that most pomogralz stores examined ,,,,;ere affiliated or owned by one of three men who had ties with "nationally kno pornography figures who are members or associates of organized crime families." Pennsylvania Cri: Commission, A Decade of Organized Crime' 1980 Report at 119. For example, Reuben Sturrnan, a leading pomography industry figure based in Cleveland, was repor~ by.the. FBI in 1978 to have built his empire with the assistance of LCN member Di~::-":~:zrd.c,. Fede Bureau of Investigation Report Regarding the Extent of Organized Crirne Involvement in Pornograp (1978). Sturman, who reportedly controls half of the $8 billion United States pomography industry, recently indicted by a federal grand jury in Las Vegas for racketeering violations and by a federal gra jury in Cleveland for income tax evasion and tax fraud. Newsweek, August 8, 1988, at 3. Evidence of the vulnerability of sexually oriented businesses to organized crime involvem( underscores the importance of criminal prosecution of these businesses when they engage in ille, activities, including distribution of obscenity and support of prostitution. Prosecution can increase risk and reduce the profit margin of conducting illegal activities. It may also disclose organized crh association xvith local pornography businesses and increase the costs of criminal enterprise Minnesota. In addition to prosecution, forfeiture of property used in the illegal activities related to sexually orient businesses can cut deeply into profits. Regulation to permit license revocation for conviction subsequent crimes may also expose and increase control over criminal enterprises related to sexua oriented businesses. Prosecutorial and Regulatory Alternatives The regulation of many sexually oriented businesses, like other businesses dealing in activity with expressive component, is circumscribed by the First Amendment of the United States Constitution. Nonetheless, the First Amendment does not irnpose a barrier to the prosecution of obscenity, which not protected by the First Amendment, or to reasonable regulation of sexually oriented businesses if t; regulation is not designed to suppress the content of expressive activity and is sufficiently tailored accomplish the regulatory purpose. The Working Group believes that communities have more prosecutorial and regulatory opportuniti than they may currently recognize. The purpose of this section of the Report is to identify a~ recommend enforcement and regulatory opportunities. Of course, each community must decide on' own how to balance its limited resources and the wide variety of competing demands for such resource I. Obscenity Prosecution Obscene material is not protected by the First Amendment. Miller v. California, 413 U.S. 15, 93 S. ¢ 2607 (1973). The sale or distribution of obscene material in Minnesota is a criminal offense. The penal was recently increased to up to one year in jail and a $3,000 fine for a first offense, and up to two yea http ://www. c o m m uni tyde fen s e. o rg/c dcdocs/P C S O B/htm/P C S O B 2 ed_A pp F.h tm '.--. 1/14/20t2 in jail and a 510,000 fine for a second or subsequent oflkns:: within five },ears. I4] subd. 3 (1988). ~linn Stat. § 617.241, The Working Group believes that Minnesota's obscenity statutes are adequate to prosecute and penalize the sale and distribution of obscene materials. However, historically, widespread obscenity prosecution has not occurred. The Working Group believes this is not because the sale or distribution of obscene publications in Minnesota is rare, but because prosecutors have been reluctant to bring obscenity charges, because of limited resources, difficulties faced when prosecuting obscenity, and because obscenity has historically been considered a victimless crime. Obscenity, however, should no longer be viewed as a victimless crime.['''q]' There is mounting evidence that sexually oriented businesses are, as described earlier in this report, often associated with increases in crime rates and a decline in the quality of life of neighborhoods in which they are located. Further, as discussed previously, when there is no prosecution of obscenity, large cash profits make pornographic operations very attractive to members of organized crime. The Working Group thus believes that prosecution of obscenity, particularly cases invoMng children, violence or bestiality, should assume a higher priority for law enforcement officials. In addition, many of the difficulties faced when prosecuting obscenity can be addressed by adequate training and assistance. In order to prove that material is obscene, a prosecutor must prove' (i) that the average person, applying Contemporary community standards[,] would find that the work, taken as a whole, appeals to the prurient interest in sex; (ii) that the work depicts sexual conduct.., in a patently offensive manner; and (iii) that the work, taken as a whole, lacks serious literary, artistic political, or scientific value. Minn. Stat. § 617.241, subd. 1 (a)(i-iii) (1988). This statutory standard was drawn to be consistent with constitutional standards set forth in Miller, supra. To be sure, prosecutors face a number of hazards in prosecuting obscenity. They include inadequate training in this specialized area of law, attempts by defense attorneys to remove jurors who find pornography offensive, the offering into evidence of polls and surveys through expert testimony to prove tolerant community standards, efforts to guide jurors with jury instructions lhvorable to the defense, and discouragement with unsuccessful prosecutions. But the hazards can be overcome. Alan E. Sears, former executive director of the U.S. Attorney General's Commission on Pornography, has stated' Prosecutors can successfully obtain obscenity convictions in virtually any jurisdiction in the United States. In order to obtain a conviction, it is incumbent upon a prosecutor to prepare well, know the law, not fall into the "one case syndrome" trap, obtain a representative jury through proper voir dire, keep the focus of the trial on the unlawful conduct of the defendant, and obtain legally sound instructions. Sears, t~o~. 7'o Lose' ,4 Pornography Case, The CDL Reporter (n.d.). The Working Group heard testimony from prosecutors who have pursued obscenity cases nationa regarding effective ways to prosecute obscenity cases. Materials can be bought or rented, rather ti' seized under warrant. In the absence of survey data, community standards can be left to the wisdom the jury. In that case, experts should be prepared to testify if the defense attempts to make a statisti, case that the material is not obscene. Prosecution of obscenity is also likely to be most effective if ini~ prosecutions focus on materials which are patently offensive to the community, such as those involvi children, violence or bestiality. '['he experience of other cities has demonstrated that vigorous and sustained enforcement of obscen statutes can sharply reduce or virtually eliminate sexually oriented businesses. Cincinnati, Oma Atlanta, Charlotte, Indianapolis and Fort Lauderdale were cited to the Working Group as examples [61 cities which have successful programs of obscenity prosecution. The Working Group encoura[ prosecutors to take advantage of increasing training opportunities and other assistance for obscen prosecutions and to reassess the desirability of increased enforcement. The Working Group is pleased note that county attorneys and law enforcement groups in Minnesota have recently held forums a seminars on obscenity law enforcement and prosecution. The U.S. Justice Department's [Ch Exploitation and Obscenity Section] offers assistance to local prosecutors, including sample pleadin; [71 indictments, search warrants, motions, responses and trial memoranda. R.eco mm.endatio_n_s (1) City and county attorneys' offices in the Twin Cities metropolitan area should designate prosecutor to pursue obscenity prosecutions and support that prosecutor with specializ training. (2) The Legislature should consider funding a pilot program to demonstrate the efficacy obscenity prosecution and should cn~:~:~.~rage the pooling of resources bet~veen urban a~ suburban prosecuting offices by ~naking saci~ cooperation a condition of receiving any such gra funds. (3) The Attorney General should provide informational resources for city and count}, attorne who .proSecute obscenity crimes. (4) Obscenity. prosecutions should concentrate on cases that most flagrantly offend com~nuni standards. II. Other Legal Re nedies A.. RICO/Forfeiture In addition to traditional criminal prosecutions, use of RICO statutes and criminal and civil forfeitu actions may also prove to be successful against obscenity offenders. By attacking the crimin organization and the profits of illegal activity, such actions can provide a strong disincentive to ti establishment and operation of sexually oriented businesses. For example, the federal government and http://www.commun itydefense.org/cdcdocs/PCSOB/htm/PCSOB2ed_AppF.htm 412 0C - number of the twentv-ei,,ht. = states ~,,'hich hax'e enacted racketeer influ~:nced and corrupt: ~',.:anization._ (RICO) statutes include obscenity offenses as predicate crimes. Generally speaking, to vit,,ate a RiCO statute, a person must acquire or maintain an interest in or control of an enterprise, or must conduct the affairs of an enterprise tlu'ough a "pm:ern of criminal activity." That pattern of criminal activity may include obscenity violations, which in turn can expose violators to increased fines and penalties as ,,veil as forfeiture of all property acquired or used in the course of a RICO violation. These statutes generally enable prosecutors to obtain either criminal or civil forfeiture orders to seize assets and may also be used to obtain injunctive relief to divest repeat offenders of financial interests in sexually oriented businesses. See 18 U.S.C. §§ 1961-68 (West Supp. 1988). RICO statutes may be particularly effective in dismantling businesses dominated by organized crime, but they may be applied against other targets as well. The Working Group believes that Minnesota should enact a RICO-like statute that would encompass increased penalties for using a "pattern" of criminal obscenity acts to conduct the affairs of a business entity. Provisions authorizing the seizure of assets for obscenity violations should be considered, but the limitations imposed by the First Amendrnent must be taken into account. It has been argued that a RICO or forfeiture statute based on obscenity crime violations threatens to "chill protected speech" because it would pem~it prosecutors to seize non-obscene materials from distributors convicted of violating the obscenity statute. American Civil Liberties Union, Polluting The Censorship Debate: A Summctry And Critique Of The Final Report Of The Attorney General's Commission On Pornography at 116-117 (1986). However, a narrow majority of the United States Supreme Court recently held that there is no constitutional bar to a state's inclusion of substantive obscenity violations among the predicate of I~nses for its RICO statute. Sappenfield v. Indiana, 57 U.S.L.W. 4180, 4183-4184 (February 21,1989). The Court recognized that "any fon'n of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene." Id. at 4184. But the Court ruled that, "the mere assertion of some possible self-censorship resulting from a statute is not enough to render an anti-obscenity law unconstitutional under our ,recedent." Id. The Court specifically upheld RICO provisions which increase penalties where there is a ~attem of multiple violations of obscenity laws. However, in a companion case, the Court also invalidated a pretrial seizure of a bookstore and its contents after only a preliminary finding of "probable caUse'' to believe that a RICO violation had occurred. Fort Wayne Books, Inc. v. Indiana, 57 U.S.L.W. 4180, 4184-4185 (February 21, 1989). The Court explained there is a rebuttable presumption that expressive materials are protected by the First Amendment. That presumption is not rebutted until the claimed justification for seizure of materials, the elements of a RICO violation, are proved in an adversary proceeding. Icl. at 4185. The Court did not specifically reach the fundamental question of whether seizure of the assets of a sexually oriented business such as a bookstore is constitutionally permissible once a RICO violation is proved. The Court explained' [F]or the purposes of disposing of this case, we assume without deciding that bookstores and their contents are tbrfeitable (like other property such as a bank account or yacht) when it is proved that these items are property actually used in, or derived from, a pattern of violations of the state's obscenity laws. Id. at 4185. The Working Group believes that a ILICO statute which provided for seizure of the contents of a sexually oriented business upon proof of RICO ,~'iolations would have the potential to significantly curtail the distribution of obscene materials. Although Minnesota does not have a RICO statute, it does have a forfeiture statute permitting t seizure of money and property which are the proceeds of designated felony offenses. Minn. Stat. 609.5312 (1988). But, this statute does not permit seizure of property related to commission oft offenses most likely to be associated with sexually oriented businesses. Obscenity crimes are not arno the offenses which justify forfeiture. Although solicitation or inducement of a person under age (Minn. Stat. § 609.322, subd. 1) or between the ages of 16 and 18 to practice prostitution (Minn. Stat 609.322, subd. 2) are included among the offenses which could justify seizure of property, many crim involving prostitution are outside the reach of the present Minnesota forfeiture law. The following crimes are not included among the crimes which can justify seizure of property a profits' solicitation, inducement, or promotion of a person between the ages of 13 and 16 to practi prostitution (Minn. Stat. § 609.322, subd. IA); solicitation, inducement or promotion of a persm'~ years of age or older to practice prostitution (Minn. Stat. § 609.322, subd. 3); receiving profit deriv from prostitution (Minn. Stat. § 609.323); owning, operating or managing a "disorderly house," in whi conduct habitually occurs in violation of laws pertaining to liquor, gambling, controlled substances prostitution (Minn. Stat. § 609.33). Although its reach would be much more limited, the legislature should also consider providing I forfeiture of property used to commit an obscenity offense or which represents the proceeds of obsceni offenses. Under the holding in Fort Wayne Books, Inc. v. Indiana, such forfeiture could not take place, at all, until it was proved that the underlying obscenity crimes had been committed. There are no comparable constitutional issues raised by enacting or enforcement of forfeiture statut based on violations of prostitution, gambling, 6'r liquor laws. The legislature may require sexual oriented businesses which violate these laws to fbrfeit their profits. The Working Group believes t~ such an expansion of forfeiture laws would give prosecutors greater leverage to control the operation those businesses which pose the greatest danger to the community. Rec._omme n da ti_o (1) The legislature should amend the present forfeiture statute to include as grounds for forfeitu all felonies and gross misdemeanors pertaining to solicitation, inducement, promotion or receiving pro: from prostitution and operation of a "disorderly house." (2) The legislature should consider the potential for a RICO-like statute with an obsceni predicate. ~ B. Nuisance Injunctions Minnesota law enforcement authorities may obtain an injunction and close down operations when facility constitutes a public nuisance. A public nuisance exists When a business repeatedly violates laxx pertaining to prostitution, gambling or keeping a "disorderly house." The Minnesota public nuisance la permits a court to order a building to be closed for one year. Minn. Stat. § § 617.80-.87 (1988). htto'/lwww, commun i tvdefense.or~/edcdoc.q/PCSO l:lfhin~tPC~ ©ltl? ed A nnF_htm Nuisance injunctions to close .jcwn sexually oriented businesses which repeatedly violate laws pertaining to prosecution, gambling or disorderly conduct are potentially powerful regulatory devices. The fact that a building in which prostitution or off:er offenses occur houses a sexually oriented business does not shield the facility fi'om application of nuisance law based on such offenses..4rcara v. Cloud BooM, Inc., 478 U.S.697, 106 S.Ct. 3172 (1986) (First Amendment does not shield adult bookstore from application of New York State nuisance law designed in part to close places of prostitution). Although the Working Group believes that nuisance injunctions with an obscenity predicate would be effective in controlling sexually oriented businesses, such provisions would probably be unconstitutional under current U.S. Supreme Court decisions. Six Supreme Court justices joined in the Arcara result, but two of them-Justices O'Connor and Stevens-concurred with these words of caution' If, however, a city were to use a nuisance statute as a pretext for closing down a book store because it sold indecent books or because of the perceived secondary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amenth~ent concerns and require analysis under the appropriate First Amendment standard of review. Because there is no suggestion in the record or opinion below of such prctexmal use of the New York nuisance provision in this case, I concur in the Court's opinion and judgment. Arcara, supra, 478 U.S. at 708, 106 S.Ct. at 3178. .. In an earlier case, Vance v. Universal Amusement, 445 U.S. 308, 100 S.Ct. 1156 (1980), the Court ruled ~. .... unconstitutional a Texas public nuisance statute authorizing the closing of a building tbr a year if the ..... building is used "habimal[ly]" for the "commercial exhibition of obscene material." Id. at 310 n.2, 100 S. · Ct. at 1158 n.2. The Court's recent holdings in Sappenfield and Fort Wa)'ne Books, Inc. give no indication that the Court would now look more favorably upon an injunction to close down a facility which sold obscene materials. The Court assumed without deciding that tbrf'eiture of bookstore assets could be constitutional in a RICO case. But, in making this assumption, the Court distinguished forfeiture of assets under RICO from a general restraint on presumptively protected speech. The court approved the reasoning of the Indiana Supreme Court that, "The remedy of forfeiture is intended not to restrain the future distribution of presumptively protected speech but rather to disgorge assets acquired through racketeering activity." Fort Wayne Books; Inc. at 4185. The Court assumed that RICO provisions could be upheld on the basis that "adding obscenity-law violations to the list of RICO predicate crimes was not a mere rule to sidestep the First Amendment." Id. Without the relationship to proceeds of crime, a remedy which closed a facility for obscenity violations would be far less likely to withstand constitutional scrutiny. !.!.e. co m...m...e, n d a tio n s (1) Prosecutors should use the public nuisance statute to enjoin operations of sexually oriented businesses which repeatedly violate laws pertaining to prostitution, gambling or operating a disorderly house. II1. Zoning Zoning ordinances can be adopted to regulate the location of sexually oriented businesses without violating the First Amendment. Such ordinances can be designed to disperse or concentrate sexually oriented businesses, to keep them at designated distances from specific buildings or areas, such as churches, schools and residential neighborhoods or to restrict buildings to a single sexually oriented usage. Because zoning is an important regulato~3' tool when properly c:~acted, the Working Gr{ believes a careful explanation of the lax,,: and a reviev,' of potential problems in drafting zon ordinances may be helpful to communities considering zoning to regulate sexually oriented bu:,inesse~ A..Supreme..Court Decisions The U.S. Supreme Court upheld the validity of municipal adult entertainment zoning regulations Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S. Ct. 2440 (1976), and City of Rentor, [.81 Playt#ne Theaters. Inc., 475 U.S. 41,106 S. Ct. 926 (1986). In Young, the Court upheld the validity of Detroit ordinances prohibiting the operation of them [9] showing sexually explicit "adult movies" within 1,000 feet of any two other adult establishments. '~ ordinances authorized a waiver of the 1,000-foot restriction if a proposed use would not be contrar'~. the public interest and/or other factors were satisfied. Young, supra, 427 U.S. at 54 n.7, 96 S. Ct. at 2; n.7. The ordinances were supported by urban planners and real estate experts who testified t concentration of adult-type establishments "tends to attract an undesirable quantity and quality transients, adversely affects property values, causes an increase in crime, especially prostitution,: encourages residents and businesses to move elsewhere." Icl. at 55, 96 S. Ct. at 2445. A "myriad" locations were left available for adult establishments outside the forbidden 1,000-foot distance zone, ~ no existing establishments were affected. Id. at 71 n.35, 96 S. Ct. at 2453 n.35. Writing for a plurality of four, Justice Stevens upheld the zoning ordinance as a 'reasonable regulation the place where adult films may be shown because (1) there was a factual basis for the city's conclus! that the ordinance would prevent blight; (2) the ordinance was directed at preventing "secondary effec of adult-establishment concentration rather than protecting citizens from unwanted "offensive" spec, (3) the ordinance did not greatly restrict access to lawful speech, and (4) "the city must be allowe( reasonable opportunity to experiment with solutions to admittedly serious problems." Id. at 63 n. 18, nn.34, 35, 96 S. Ct. at 2448-49 n. 18, 2452-53 nn.34, 35. Justice Stevens did not expressly describe the standard he had used, but it was clear that the plural would afford non-obscene sexually explicit speech lesser First Amendment protection than otl categories of speech. However, four dissenters and one concurring justice concluded that the degree protection afforded speech by the First Amendment does not vary with the social value ascribed to t! speech. In his concurring opinion, Justice Powell stated that the four-part test of United States O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679 (1968), should apply. Powell explained: Under that test, a govemmental regulation is sufficiently justified, despite its incidental impact upon First Amendment interest, "if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on . .. First Amendment freedom is no greater than is essential to the furtherance of that interest." 427 U.S. at 79-80, 96 S. Ct. at 2457 (citation omitted) (Powell, J., concurring). Perhaps because Justice Stevens' plurality opinion did not offer a clearly articulated standard of revie post-Young courts often applied the O'Brien test advocated by Justice Powell in his concurring opinic Many ordinances regulating sexually oriented businesses were invalidated under the O'Brien test. S R.M. Stein, Regulation of Adult Businesses through Zoning After Renton, 18 Pac. L.J. 351,360 (198 ("consistently invalidated"); S.A. Bender, Regulating Pornography Through Zoning: Can We "Cler http://www, co mm uni tyd e fen s e. o rg/c dc d o c s/P C SO B/htm/P C S O B 2 ed_App F.h tm 1/14/20( c,?.'," Hr;:~o/t,!u:;', 8 U !-law. L. Rex,. 75. t05 (1986) (ordinances uI.~:~cld 'n ,:,."~!y about half tire cases). Applying Young, the Eigl:th Circuit Court of Appeals invalidated a zoning ordinance adopted by the cit.,,, of Minneapolis..4lexander v. City' qf ?,.tinneapolis, 698 F.2d 936 (Sth Cir. 1983). In Alexander, the challenged ordinance had three major restrictions on sexually oriented businesses' distancing from specified uses, prevention of concentration and amortization. It prohibited a sexually oriented business from operating within 600 feet of districts zoned for residential or office-residences, a church, state- licensed day care facility and certain public-schools. It forbade an adults-only facility from operating within 500 feet of any other adults-only facility. Finally, the ordinance required existing sexually oriented entertainment establishrnents to conform to its provisions by moving to a new location, if necessary, within four years. The Eighth Circuit ruled that the Minneapolis ordinance created restrictions too severe to be upheld under the Young decision. It would have required all five of the city's sexually oriented theaters and between seven and nine of the city's ten sexually oriented bookstores to relocate and would have required these facilities to compete with another 18 adult-type establishments (saunas, massage parlors and "rap" parlors) for a maximum of 12 relocation sites. The effective result of enforcing the ordinance would be a substantial reduction in the number of adult bookstores and theaters, and no new adult bookstores or theaters would be able to open, the Court concluded. Alexander; supra, 698 F.2d at 938. In Renton, supra, the United States Supreme Court adopted a clearer standard under which regulation of sexually oriented businesses could be tested and upheld. The Court upheld an ordinance prohibiting adult movie theaters from locating within 1,000 feet of any residential zone, single- or multiple-family 'dwelling, church, park or school. Justice Rehnquist, writing for a Court majority that included Justices Stevens and Powell, stated that the Renton ordinance did not ban adult theaters altogether and that, therefore, it was "properly analyzed as a form of time, place and manner regulation." Id. at 46, 106 S. Ct. at 928. When time, place and manner regulations are "content-neutral" and not enacted "for the purpose of restricting speech on the basis of its content," they are "acceptable so long as they are designed to serve a substantial govermnental interest and do not unreasonably limit alternative avenues of communication," Rehnquist stated. Id. He found the Renton ordinance to be content-neutral because it was not aimed at the content of films shown at adult theaters. Rather, the city's "predominant concerns" were with the secondary effects of the theaters. Id at 47, 106 S. Ct. at 929 (emphasis in original). Once a time, place or manner regulation is determined to be content-neutral, "[t]he appropriate inquiry ... is whether the.., ordinance is designed to serve a substantial govermnental interest and allows for reasonable avenues of communication," Rehnquist wrote for the Court. Id. at 50, 106 S. Ct. at 930. The Supreme Court found that Renton's "interest in preserving the quality of urban life" is a "vital" governmental interest. The substantiality of that interest was in no way diminished by the fact that Renton "relied heavily" on studies of the secondary effects of adult entertainment establishments by Seattle and the experiences of other cities, Rehnquist added. Id. at 51,106 S. Ct. at 930-31. The First Amendment does no require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses. That was the case here. Nor is our holding, affected by the fact that Seattle ultimately chose a different method of adult theater zoning than that chosen by Renton, since Seattle's choice of a different remedy to combat the secondary effects of adult theaters does not call into question either Seattle's identification of those secondary effects or the relevance of Seattle's experience to Renton. Id. at. 51-52, 106 S. Ct. at 931. Rehnquist's inquiry then addressed the means chosen to ,*hrther Renton's substantial interest and inquix into whether the Renton ordinance was sufficiently "narrowly tailored." His comments on Renton's means to further its substantial interest suggest that municipalities have wide latitude in enacting content-neutral ordinances aimed at the secondary, effects of a& entertainment establishments. He quoted the )'oung plurality for the proposition that: It is not our function to appraise the wisdom of [the city's] decision to require adult theaters to be separated rather than concentrated in the same areas ... [The] city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems. Id. at.52, 106 S. Ct. at 931 (quoting Young, supra, 427 U.S. at 71, 96 S.Ct. at 2453). As to the "narrowly tailored" requirement, Rehnquist found that the Renton ordinance only affect theaters producing unwanted secondary effects and, therefore, was satisfactory. Id. The second prong of Renton's "time place, manner" inquiry-the availability of alternative avenues communication-was satisfied by the district court's finding that 520 acres of land, or more than fi percent of Renton, were left available for adult-entertainment uses, even though some of that develop area was already occupied and the undeveloped land was not available for sale or lease. A majority the Court tbund: That [adult theater owners] must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation... In our view, the First Amendment requires only that Renton refrain from effectively denying [adult theater owners] a reasonable opportunity to open and operate an adult theater within the city, and the ordinance before us easily meets this requirement. Id. at 54, 106 S. Ct. at 932. _B..,_S__ta__ndards .a...n..d....N_ee_d_t.'..o.r L.e. gal Zoning Unlike Young, the Renton case spells out the standards by which zoning of sexually oriented business, should, be tested. Renton and several lower court decisions rendered in its wake suggest that the t,~ most critical areas by which the ordinances will be judged are (1) whether there is evidence th ordinances were enacted to address secondary impacts on the community, and (2) whether there a: enough locations still available tbr sexually oriented businesses so that zoning is not just a pretext ~ eliminate pornographic speech. This section first describes some of the legal considerations which communities must keep in mind ' drafting zoning ordinances for sexually oriented businesses. Then, some suggestions are provided, base on evidence reviewed by the Working Group, of types of zoning which can be enacted to reduce ti~ secondary effects of sexually oriented businesses. .l,.. Documentation to Support Z.o..ni. ng__O, rdinances http://www, cornm unity de fen s e. o rg/c d cdo c s/P C S O B/h tm/PCS O B 2ed_A pp F.htm : 1/14~200 Sexually.', oriented speech which is not obscene can~ot be. restricted on t!',e basis of its content without framing afoul of the First Amendm,.nt. The justification for regulating sexm"y oriented businesses is based on proof that the zoning is needed ~o reduce secondary effects of the businesses cn the community. Since Renton, a number of adult entertainment zoning ordinances have been invalidated for failure of thc: enacting body to document the need for zoning regulations. Thus. one court invalidated a zoning ordinance because there was "very little, if any, evidence of the secondary effects of adult bookstores... before the City Council." 11126 Baltimore Boulevard, supra, 684 F. Supp. at 895; see also To#is Inc. v. San Bernardino CounO,, 827 F.2d 1329, 1333 (9th Cir. 1987) (ordinance construed to prohibit single showing of adult movie in zoned area; invalidated for failure to present evidence of secondary effects of single showing); but see Thames Enterprises v. City of St. Louis, 851 F.2d 199, 201-02 (8th Cir. 1988) (observations by legislator of secondary effects sufficient). On-the other hand, it is not necessary for each municipality to conduct research independent of that already generated by other cities. The Renton court held that evidence of the need for zoning of sexually oriented businesses can be provided by studies from other cities "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Renton at 51, 106 S. Ct. at 931. See also SD J, Inc. v. City of Houston, 837 F.2d 1268, 1274 (5th Cir. 1988) (public testimony from experts, supporters and opponents and consideration of studies by Detroit, Boston, Dallas and Los Angeles sufficient evidence of legitimate purpose). The first section of this report summarizes evidence fi'om various cities documenting the secondary effects of sexually oriented businesses. Following Renton, it is intended that local communities will make use of this evidence in the course of assembling support for reasonable regulation of sexually oriented businesses. 2_.,.._A_v_a_.i !a_.bi. !i.t. y of. L_o_.c.._a tio.n..s._f_or_.S__e_x__ua!ly O ri e.n..._t e_d_B_us..i_n__e_s_s.e.s. Courts also evaluate whether zoning of sexually oriented businesses is merely a pretext for prohibition by reviewing the alternative locations which remain for a sexually oriented business to operate under the zoning scheme. A municipality must "refrain from effectively denying ... a reasonable opportunity to open and operate" a sexually oriented business. Renton, supra, 476 U.S. at 54, 106 S. Ct. at 932. Access may be regarded as unduly restricted if adult entertainment zones are unreasonably small in area or if the number of locations is unreasonably few. There is no set amount of land or number of locations constitutionally required. The Renton court found that 620 acres of "accessible real estate," including land "criss-crossed by freeways"- more than five percent of the entire land area in Renton - was sufficient. 475 U.S. at 53, 106 S.Ct. at 932. The Young court found the availability of "myriad" locations sufficient. 427 U.S. at 72 n.35, 96 S.Ct. at 2453 n.35. Whether .058 square miles constituting .23 of 1 percent of the land area within the city's central business zone is sufficient is not clear. See Alexander v. The City of Minneapolis (Alexander II), No. 3-88-808, slip op. at 22 (D. Minn. May 22, 1989) (less than 1% of land area could be valid if "ample actual opportunities" for relocation exist); Christy v. City of Ann Arbor, 824 F.2d 489, 490, 493 (6th Cir. 1987) (remanding for a determination of excessive restriction). See also 11126 Baltimore Boulevard, Inc. v. Prince George's County of Mao,iand, 684 F. Supp. 884 (D. Md. 1988) (20 alternative locations sufficient); Alexander v. City of Minneapolis', 698 F.2d 936, 939 n.7 (Sth Cit'. 1983) (pre-Renton; 12 relocation sites for at least 28 existing adult establishments not sufficient). The sufficiency of sites available for adult entertainment uses may be measured in relation to a number of factors. See, e.g., Alexander' il, xz..,pra, slip op. at 22-23 (insufficient if relocation site owners ret'u: sell or lease); International Food & Be¥'erage S)'stems, b~c.. 794 F.2d 1520. 1526 (1 l th Cir. 1, (suggesting number of sites should be determined bv, reference to community needs, incidenc, establishments in other cities, goals of city plan); Basiar&mes v. Cio~ of Gah,eston, 682 F.2d 1203, 1 (5th Cir. 1982) (pre-Renton case striking zoning regulation restricting adult theaters to industrial a that were "largely a patchwork of swamps, warehouses, and railroad tracks ... lack[ing] access n and retail establishments"). However, the fact that land zoned for adult establishments is already occupied or not currently for or lease will not invalidate a zoning ordinance. Renton, supra, 475 U.S. at 53-54, 106 S. Ct. at 932; see Alexander 1 I, supra, slip op. at 22-23 (reasonable relocation opportunity absent where owners re to sell or rent). There is no requirement that it be economically advantageous tbr a sexually orie~ business to locate in the areas permitted by law. 3_._ Dis_t_a. n c e ..R_eq u i r e...m., e_n_t s Another factor that may be examined by some courts is the distance requirement established by an a, entertainment zoning ordinance. In SD J, h~c. v. Houston, 837 F.2d 1268 (Sth Cir. 1988), the Court' asked to invalidate a 760-foot distancing requirement on the ground that the city had not proved that feet, as opposed to some other distance, was necessary to serve the city's interest. The Court found that an adult entertainment zoning ordinance is "sufficiently well tailored i effectively promotes the government's stated interest" and declined to "second-guess" the city coun Houston, supra, 837 F.2d at 1276. Courts have sustained both requirements that sexually oriented businesses be located at specit distances from each other, see Young, supra, (upholding distance requirement of 1000 feet betw, sexually oriented businesses), and requirements that sexually oriented businesses be located at fi: distances from other sensitive uses, see Renton. supra, (upholding distance requirement of 1000 I between sexually oriented businesses and residential zones, single-or-multiple family dwellir. churches, parks or schools). The Working Group heard testimony that when an ordinance establishes distances between sexm oriented uses, an additional regulation may be needed to prevent operators of these businesses fr, defeating the intent of the regulation by concentrating sexually oriented businesses of various ty1 under one root; as in a sexually oriented mini-mall. The city of St. Paul has adopted an ordinm preventing more than one adult use (e.g., sexually oriented theater, bookstore, massage parlor) fr{ locating within a single building. A similar ordinance was upheld in the North Carolina case of H, Book Stores, Inc. v. Edmisten, 612 F.2d 821 (4th Cir. 1979), cert. denied, 447 U.S. 929 (1980). The experience with multiple-use sexually oriented businesses at the University-Dale intersecti suggests that these businesses have a greater potential for causing neighborhood problems than single-use sexually oriented businesses. Following Renton, it is suggested that lawmakers document adverse effects which the community seeks to prevent by prohibiting multiple-use businesses befc enacting this type of ordinance. .4, Requiring Existing Businesses to.Co~nply wit!~ New Zoning Zoning ordinances can require existing sexually-oriented businesses to close their operations provided they do not foreclose the operation of such businesses in new locations. Under such provisions, an existing business is allowed to remain at its present location, even though it is a non-conforming use, a limited period. The Minnesota Supreme Court has explained the theory this way: The theory behind this legislative device is that the useful life of the nonconforming use corresponds roughly to the amortization period, so that the owner is not deprived of his property until the end of its useful life. In addition, the monopoly position granted during the amortization period theoretically provides the owner with compensation for the loss of some property interest, since the period specified rarely corresponds precisely to the useful life of any particular structure constituting the nonconforming use. Naegele Outdoor Advertising Co. v. Village of Minnetonka, 162 N.W.2d 206, 213 (Minn. 1968). Such provisions applied to sexually oriented businesses have been said to be "unifom~ly upheld." Dumas v. CiO, of Dallas, 648 F. Supp. 1061, 1071 (N.D. Tex. 1986), afJ'd, FW/PBS, b~c. v. City of Dallas, 837 F.2d 1298 (5th Cir. 1988) (citing cases). . As detailed in the first section of this report, there are significant secondary impacts upon communities · . ~..~ related to the location of sexually oriented businesses. These impacts are intensified when sexually oriented businesses are located in residential areas or near other sensitive uses and when sexually oriented businesses are concentrated near each other or near alcohol oriented businesses. The Working Group believes that evidence fi'om studies such as those described in the first section of this report and anecdotal evidence from neighborhood residents and police officers should be used to support the need for zoning ordinances which address these problems. Reco rn m e n_.d_ _a. t! o n..s (1) Communities should document findings of adverse secondary effects of sexually oriented businesses prior to enac,ing zoning regulations to control these uses so that such regulations can be upheld if challenged in court. (2) To reduce the adverse effects of sexually oriented businesses, co~nmunities should adopt zoning regulations to set distance requirements bet~veen sexually oriented businesses and sensitive uses, including but not limited to residential areas, schools, child care facilities, churches and parks. (3) To reduce adverse impacts from concentration of sexually oriented businesses, communities should adopt zoning ordinances which set distance requirements bet~veen liquor establishments and sexually oriented businesses and should consider restricting sexually oriented businesses to one use per building. (4) Communities should require existing businesses to comply with new zoning or other regulation pertaining to sexually oriented businesses within a reasonable time so that prior uses will conform to new laws. IV. Licensing and Other Regulations Licensing and other regulations may also be used to reduce the adverse effects of sexually orientt businesses. The critical requirements which communities must keep in mind are that regulations must 1 narrowly crafted to address adverse secondary effects, they must be reasonably related to reduction, these effects and they must be capable of objective application. If these standards can be met, licensir and other regulatory provisions may play an important role in preventing unwanted exposure to sexual oriented materials and in reducing the crime problems associated with sexually oriented businesses. It is clear that failure to act upon a license application for a sexually oriented business cannot take t~ place of regulation. Without justification, denial or failure to grant a license is a prior restraint violation of the First Amendment. Parkway Theater Corporation v. City of Minneapolis, No. 71678 slip. op. (Henn. Co. Dist. Ct., Sept. 24, 1975). An ordinance providing for license revocation of an adt motion picture theater if the licensee is convicted of an obscenity offense is also likely to be he unconstitutional as a prior restraint of free speech. Alexander v. Cio~ of St. Paul, 227 N.W.2d 370 (M~t, 1975). The Alexander court stated: [W]hen the city licenses a motion picture theater, it is licensing an activity protected by the First Amendment, and as a result the power of the city is more limited than when the city licenses activities which do not have First Amendment protection, such as the business of selling liquor or running a massage parlor. Id. at 373 (footnote omitted); see also Cohen v. City of Daleville, 695 F. Supp. 1168, 1171 (M.D. Al 1988) (past sale of obscene material cannot justify revocation of license). However, the courts have permitted communities to deny licenses to sexually oriented businesses if tl person seeking a license has been convicted of other crimes which are closely related to the operation ~ sexually oriented businesses. In Dumas v. City of Dallas, supra, the court reviewed a requirement that a license applicant not ha, been convicted of certain crimes within a specified period. Five of the enumerated crimes were held be not sufficie::tly related to the purpose of the adult entertainment licensing ordinance because the ci had made no findings on their justification. The invalid enumerated offenses were controlled substanc~ act violations, bribery, robbery, kidnapping and organized criminal activity. The court uphel requirements that the licensee not have been convicted of prostitution and sex-related offenses. Id. 1074. If a community seeks to require that persons with a history o1' other crimes be denied license clear findings must first be made which justify denial of licenses on that basis. The Dumas court also invalidated portions of the licensing ordinance permitting the police chief to den a license if he finds that the applicant "is unable to operate or manage a sexually oriented busine: premises in a peaceful and law abiding manner" or is not "presently fit to operate a sexually oriente business." Neither provision satisfied the constitutional requirement that "any license requirement for a activity related to expression must contain narrow, objective, and definite standards to guide tL licensing authority." Id. at 1072. See also Alexander II, supra, slip op. at 16 (unconstitutionally vague t define regulated bookstores as those selling "substantial or significant portion" of certain publications 11126 Baltimore Boulevard, supra, 684 F. Supp. at 898-99 (striking ordinance allowing zoning officia.- to deny permit if adult entertainment establishment is not "in harmony" with zoning plan, does nc "substantially impair" master plan, does not "adversely affect" health, safety and welfare and is nc "detrimental" to neighborhood because such standards are "subject to possible manipulation an. arbitrary application"). A number of courts have upheld ordinances requiring that viewing booths in adult theaters be open t httn-/lwww rnrnm~n/tvcl~f~,n~, nrolrrlrclr~relPC'qClRIhtmlP("q('lRgorl Annl:: htrn l tl discourage illegal and unsanitary sexual activity. See, e.g., Doe ~' CiO' o./'glin~';eapolis, 693 F. Supp. 774 (D. Minn. 1988). Licensing provisions and ordinances forbidding massage parlor employees I?om administering massages to persons of the opposite sex have withstood equal protection and privacy and associational right challenges. See Clampitt v. City of Ft. Wayne, 682 F. Supp. 401, 407'-408 (N.D. Ind. 1988) (equal protection); Wigginess, Inc. v. b)'uchtman, 482 F. Supp. 681,689-90 (S.D.N.Y. 1979), affld, 628 F.2d 1346 (2d Cir. 1980), cert. denied, 449 U.S. 842, 101 S. Ct. 122. However, some courts have found same-sex massage regulations to be in violation of Title VII of the Civil Rights Act of 1964. See Stratton v. Drumm, 445 F. Supp. 1305, 1310-11 (D. Conn. 1978); Cianciolo v. Members of City Council, 376 F. Supp. 719, 722-24 (E.D. Tenn. 1974); Joseph v. House, 353 F. Supp. 367, 374-75 (E.D. Va.), affd sub nom. Joseph v. Blair, 482 F.2d 575 (4th Cir.), cert. denied, 416 U.S. 955, 94 S. Ct. 1968 (1974). Contra, Aldred ~,. Duling, 538 F.2d 637 (4th Cir. 1976). Although the Working Group expressed strong concern about the operation of prostitution under the guise of massage parlors, this type of regulation is not advisable because legitimate therapeutic massage establishments could find their operations curtailed. Prostitution may be better controlled through prosecution and use of post-conviction actions such as forfeiture or enjoining a public nuisance. In 1985, a court upheld an ordinance making it unlawful to display for commercial purposes material "harmful to minors" unless the material is in a sealed wrapper and, if the cover is harmful to minors, has an opaque cover. Upper Midwest Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389 (Sth Cir. 1985). Last year, the legislature enacted a state law similarly prohibiting display of sexually explicit material which is harmful to minors unless items are kept in sealed wrappers and, where the cover itself would be ham~ful to minors, within opaque covers. Minn. Stat. § 617.293 (1988). This law has the potential to protect minors from exposure to sexually oriented materials. Communities also have considerable discretion to regulate signage so that the exterior of sexually oriented businesses does not expose unwitting obsen, ers to sexually explicit messages. Recommendations (1) Prior to enacting licensing regulations, communities should document findings of adverse secondary effects of sexually oriented businesses and the relationship between these effects and proposed regulations so that such regulations can be upheld if challenged in court. (2)" Communities shou:.d adopt regulations which reduce the likelihood of criminal activity related to sexually oriented businesses, including but not limited to open booth ordinances and ordinances which authorize denial or revocation of licenses when the licensee has committed offenses relevant to the operation of the business. (3) Communities should adopt regulations which reduce exposure of the community and minors to the blighting appearance of sexually oriented businesses including but not limited to regulations of signage and exterior design of such businesses and should enforce state law requiring sealed wrappers and opaque covers on sexually oriented material. Conclusion There are many actions which communities may take within the !ax,,.,' to protec: themselx-es from ~ adverse secondary effects of sexually r~riented businesses. Prosecution of obscenity crimes can pla'., vital role in decreasing the profitability of sexually oriented businesses and removing materials whi, violate community standards from local outlets. Forfeiture and injunction to prevent public nuisan should be available where sexually oriented businesses are the site of sex-related crimes and violatio of laws pertaining to gambling, liquor or controlled substances. These actions will remove the mc egregious establishments from communities. Zoning can reduce the likelihood that sexually oriented businesses will lead to neighborhood blig Licensing can sever the link between at least some crime figures and sexually oriented business{ Regulation and enforcement can protect minors from exposure to sexually explicit materials. The Attorney General's Working Group on the Regulation of Sexually Oriented Businesses believes tt prosecution, seizure of profits, zoning and regulation of sexually oriented businesses should done in keeping with the constitutional requirements of the First Amendment. Rational regulation can fashioned to protect both our communities and our constitutional rights. [].l [.2.1 [3_.1 Hafiz was acquitted of the perjury charges. St. Paul Pioneer Press, Jan. 11, 1989 at 10A. The City of St. Paul bought out the Faust for $1.8 million, closing the entertainment complex on March 7, 1989. The First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiti the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to asscmb or to petition the government for redress of grievances." The constitutional guarantee of freedom of speech, often the ba? for challenges to regulation of sexually oriented businesses, restricts state as well as federal actions. See, e.g., Fiske Kansas, 27 U.S. 380, 47 S.Ct. 655 (1927). The prior penalty was a fine only - tip to $10,000 for a first offense and up to $20,000 for a second or subsequt offense. Minn. Stat. § 617.24 l, subd. 3 (1986). Obscenity arrests are so infrequent that incidents involving possible violatie of section 617.241 are not separately compiled by the Minnesota Bureau of Criminal Apprehension. See Bureau of Crimir, Apprehension, 1987 Minnesota Annual Report on Crime, Missing Children and Bureau of Criminal Apprehension Activitie.. Two blue ribbon commissions have reached different conclusions regarding the harmfulness of sexually explb material to individuals. A presidential Commission on Obscenity and Pornography concluded in 1970 that there was] evidence of "social or individual harms" caused by sexually explicit materials and, therefore, "federal, state and loc legislation prohibiting the sale, exhibition, or distribution of sexual materials to consenting adults should be repealed." T, Report. ofth. e Corem 'n on Obscenity and Pornography at 57-8 (Bantam Paperback ed. 1970). However, in 1986, the Attomt General's Commission on Pornography concluded that 'sexually violent materials . . bear.., a causal relationship antisocial acts of sexual violence [and that] the evidence supports the conclusion that substantial exposure to [nonviolen degrading material increases the likelihood for an individual [to] commit an act of sexual violence or sexual coercion Attorney General's Comm'n on Pornography, I Final Report at 326, 333 (1986). [6] Memorandum to Jim Bellus, executive assistant to St. Paul Mayor George Latimer (prepared by St. Pa, Department of Planning and Economic Development (July 5, 1988); see also Waters "The Squeeze on Sleaze," Newswee Feb. 1, 1988, at 45 ("After more than 10 years of Levin heavy fines and making arrests, Atlanta has won national renown; 'the city that cleaned up pornography.'"). [..71 The Address of the [Child Exploitation and Obscenity Section] is U.S. Justice Department, 10th & Pennsyivan, Ave. N.W., Room 2216, Washington, D.C. 20530. Its telephone number is 202-[514]-5780. Assistance is also available fro] [Community Defense Counsel, 15333 N. Pima Rd., £uite 165 Scottsdale, AZ 85260; .cdc~,coq!munitydefen_se.o_rg whic makes available "The Preparation and Trial of an Obscenity Case: A Guide for the Prosecuting Attorney." Its telephor. number is 480-444-0020. The National Obscenity Law Center, another private organization is located at 475 Riverside Driw Suite 239, New York, N.Y. 10115. It publishes an Obscenity Law Bulletin and the "Handbook on the Prosecution c http://www.communitydefense.org/cdcdocs/PCSOB/htm/PCSOB2ed....AppF.htm 1/14/200 (".'!;sccn:ty Cases "lis tclcphonc number is 212-~7(!-: '_'22' n:im 'gnioralit)'in:nedia.org]. The only reported Minneso:a cou;l case reviewing an adult entertainment zoning ordinance is 6'it~., of St. P~mi v. Carlone, 419 N.W.2d 129 (Minn. App. 1988) (Upholding facial constitutionality of St. Paul ordinance). The ordinances also prohibited ti:e location of an adult theater within 600 feet of a residential area, .but this provision was invalided by the district coup, and that decision was not appealed. Young v. American Mini Theate~x. I~tc., 427 U.S. 50, 62 n.2,96 S.Ct. 2440, 2444 n. 2 (1976). [!_0.1 Of 11 recent post-Renton adult-entertainment zoning decisions by federal courts, five invalidated ordinance, t~ee upheld ordinances and three ordered a remand to district court for further proceedings. Zoning ordinances were struck in Avalon Cinema Corp. v. Thompson, 667 F.2d 659 (8th Cir. 1987) (city council hiled to offer evidence suggesting neighborhood decline would result); Tollis, Inc. v. San Bernardino Co~tnt)..', 827 F.2d 1329 (9th Cir. 1987) (no evidence presented to legislative body of secondary harmful effects); Ebel v. Corona, 767 F.2d 636 (9th Cir.)(lack of effective alternative locations; 11126 Baltimore Boulevard, Inc. v. Prince George ~ CounO, of Maryland, 684 F. Supp. 884 (D. Md. 1988)(insufficient evidence of seconda~ effects presented to legislative body; special exception provisions grant excessive discretionary authority to zoning officials); and Peoples Tags, Inc. v. Jac~on County Legislature, 636 F.Supp. 1345 (W.D. Mo. 1986)(improper legislative pu~ose to prevent continued operation of adult-entertainment establishment). Zoning ordinances were upheld in SD J, Inc. v. Ciw of Houston, 837 F.2d 1268 (5th Cir. 1988); FIWPB& b~c. v. Ci~ of Dallas, 837 F.2d 1298 (6th Cir. 1988); and S& G.¥ews b,c. v. CiO, of Southgate, 638 F.Supp. 1060 (E.D. Mich. 1986), aff'd ,~'ithout published opinion, 819 F.2d 1142 (6th Cir. 1987), cert. denied,~ U.S. ~, 108 S.Ct. 1013 (1988) (remand for determination of excessive restrictions); h~ternational ~od & Beverage &.,stems v. City q[Fort Lauderdale, 794 F.2d 1520 (11~h Cir. 1986) remand tbr reconsideration in light of Renton, supra; nude bar ordinance); and l~h~ut Properties, Inc. v. Ci~' oJ'l}7~ittier, 808 F.2d 1331 (9th Cir. 1986) (remand, in part, for determination of and availability). PREVENTING THE SECONDARY EFFECTS OF ADULT ENTERTAINMENT ESTABLISHMENTS: IS ZONING THE SOLUTION? DANA M. TUCKER' Table of Contents I. ThePower to Zone .................................................................................................. 385 A. The Evolution of Zoning in the United States ......................................... 385 B. The Development of Zoning in Florida ..................................................... 388 II. Zoning and the Adult Entertainment Industry .............................................. 390 A. First Amendment Protection of Expressive Speech ............................... 391 B. Nude Dancing as Expressive Conduct: Eroticism or Obscenity? ................................................................................. 395 C. The Four-Prong Test of Regulating Expressive Speech ........................ 397 D. Restrictive Zoning Regulations in Florida ............................................... 410 III. The Secondary Effects of Adult Entertainment Establishments on Residential Neighborhoods ............................................. 412 A. Adverse Effects and Their Causes .............................................................. 412 B. The Relationship Between Adverse Effects and Location of Adult Businesses ...................................................................... 419 IV. Possible Solutions to Combat Secondary Effects ............................................ 421 A. Is Zoning the Solution? .................................................................................. 421 B. Alternative Methods of Solving the Problems of Secondary Effects ............................................................................................. 423 C. Which Solution is Best? ................................................................................. 430 V. Conclusion ................................................................................................................ 430 Along with the increase of "special cabarets"1 came the increase in crime which was directly associated with these businesses. In fact there were a total of 463 crimes reported involving robbery, assault, narcotics, prostitution, lewd and lascivious acts, nude dancing, fight disturbances and exhibiting obscene material. With the increase of these businesses and the crime associated with them came the outcry * J.D., Florida State University College of Law (1997); B.S., Florida Agricultural and Mechanical University (1993). The author would like to give special thanks to J.C. and her family'who have supported her throughout the writing and editing of this article. The author also thanks Anthony Davis and Sheldon Graves for their assistance in helping her understand the dynamics and aspects of adult use establishments. 1. This term refers to adult entertainment businesses which offer the public topless to totally nude go-go dancers. See Tampa City Council Workshop Transcript 17 (July 1, 1982) [hereinafter Tampa Transcript]. 383 384 J. LAND USE & ENVTL. L. [Vol. 12:2 of the families and residents.., for an end to these "sex oriented" businesses in their neighborhoods.2 The adult entertahm~ent indush'y has grown rapidly over the past twenty ),ears, especially with the emergence of 1-900 phone lines, pay-per-view adult movies, and pornographic internet web- sites. Within that time, United States Supreme Court decisions have recognized that First Amendment protection may extend to some types of nonobscene nucie dancing and pornograpl~y as nonverbal expressive speech.3 With this potential for protection has come an increase in businesses that offer adult entertainment? Some commurrities view the proliferation of X-rated movie houses, adult bookstores, and topless bars as a hazard to the morals of their connnunity and a threat to property values.$ Where a direct approach to the problem by way of adoption and erfforcement of obscenity laws is regarded as impractical, local officials have instead chosen zoning as a method to control the uses and availability of these facilities. Zoning the location of adult businesses has ignited a hotly charged debate. Adult business proprietors and many First Amendment advocates are pitted against those citizens who want adult establishments and their negative secondary effects out of theft' neighborhoods.6 The question remains whether zoning is effectively ridding resi- dential and school areas fl~ close proximity to adult entertainment facilities of resul~ag adverse effects. This Comment explores this question and proposes possible solutions. Part I outlines the history of zoning and discusses a municipality's authority to zone out 2. Id. at 17-18. 3. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565 (1991) (stating that some nude dancing is expressive conduct within "the outer perimeters" of the First Amendment); Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975) (citing California v. LaRue, 409 U.S. 109, 118 (1972) for the proposition that customary barroom types of nude dancing might be entitled to First Amendment protection in some circumstances). "Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee." $chad v. Borough of Mount Ephraim, 452 U.S. 6~, 65 0 98~). 4. See infrn notes 82-89 and accompanying text. 5. See, e.g., Tampa Transcript, st~pra note 1, at 15-19. 6. Sec, Barnes, 501 U.S. at 560; Tampa Transcript, supra note 1, at 15-19. Spring 1997] ZONING ADULT ENTERTAINMENT 385 entertaimnent businesses. Part II explores the growth of adult use businesses and their First Amendment protection. Part III defh'~es the secondary effects associated with these establishments, evaluates the growth of the effects, and analyzes the relationship between the adult use businesses and the negative effects seen in residential neighborhoods. Finally, Part IV assesses possible zoning solutions and alternative n'ethods to decrease negative secondary effects. I. THE POWER TO ZONE Zoning may generally be defined as the division of a mum- cipalit3, or other local cormnun/ty into districts, the regulation of buildh~gs and s~'uct-ures according to their construction and the nature and extent of their use, or the regulation of land according to its nature and uses.? To be valid, zonh'tg laws must balance h~di- vidual property rights with the govenm~ent's substantial interests in promoting the public welfare.8 A. The Evolution of Zoning in the United States Zoning essentially developed as an outgrowth of nuisance law.9 By the early twentieth century, the United States Supreme Court 'upheld at least three municipal land use regulations, basing these decisions on ta-aditional nuism~ce principles.~° In 1916, New York City became the first municipality to enact a comprehensive zoning scheme.~ Within ten years, approximately 425 municipalities, 7. See 82 AM. JuR. 2D Zoning and Plnnning § 2 (1992). 8. See Davis v. Sails, 318 So. 2d 214, 217-18 (Fla. 1st DCA 1975) (citing 101 C.J.$. Zoning § 16). 9. See DANIEl. R. MANI)ELKEK LAND USE LAW ~ 1.3 (1982). 10. See Hadacheck v. Sebastian, 239 U.S. 394, 410-13 (1915) (upholding an ordinance that excl~ded brickyards within certain areas of the city); Reimnan v. Little Rock, ~7 U.S. 171, 176-77 (1915) (upholding an ordinance that excluded livery stables from certain areas of the town); Welch v. Swasey, 214 U.S. 91, 107-08 (1909) (upholding an ordinance that divided Bvslon into two building districts with different height limitations applicable to each). 11. See ]~OBliRT t t. Ni~N, ~NING AND PROPI~RTY RIGIITS: ~ ANAi.YSIS OF TIlE AMERICAN SYS'i'EM OF LAND-UsE P~GU~.A1'~ON 8 (1977). 386 J. LAND USE & E~.~VTL. L. [Vol. 12:2 representing more than half of the country's urban population, had passed similar measures. ~ 2 The Supreme Court reached a landmark decision fl~ Village o.f Euclid v. Ambler Realty Co.,~3 hold~g that so long as freedom of speech is not threatened, a zolxing plan is a valid exercise of local police power if the plan serves a rational interest of the munici- pality.TM In Euclid, the Court reasoned that the zoning ordinance represented a valid exercise of the police power and rejected tl~e landowner's argument that the ordinance deprived him of his lib- erty and property fl~ contravention of the dictates of the Fourteenth Amendment.~5 The Court held that so long as the classifications made under a zoning ord~ance are "fairly debatable,''~6 and the provisions are not "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare," the ordinance will be upheld as constitutional.~? Nearly fifty years later, the Court heard Village of Belle Terre v. Boraas.~ In Belle Terre, a landowner challenged a zoni~g ordinance that restricted the use of his property to s~gle-family dwellh~gs. 19 O~tly family members or no more than two unrelated persons could reside in a house on his property.20 By alleging that the ordfl~ance infrh~ged his fundamental constit-utional rights of privacy, the landowner attempted to have the ordinance reviewed under more exacting constitutional scrutfl~y than the mere rationality standard adopted in Euclid.2~ The Court did not agree that any fundamental constitutional rights were implicated by the 12. See id. at 9. 13. 272 U.S. 365 (1926). 14. See itt. at 389-90. 15. Set' id. at 397. The la2~downer relied on the provision of the Fourteenth Amendment which states that no Stale shall "deprive any person of life, liberty, or property, without due process of law." U,S. CONST. amend. XIV, § 1, cl. 3. 16. Euclid, 272 U.S. at 388. 17. Itt. at 395. 18. 416 U.S. 1 (1974). 19. See id. at 2. 20. See id. 21. See id. at 7. Spring 1997] ZO~,~,ING ADULT ENTERTAINMENT 387 zonflag ordinance and applied the mere rationali .ty test, ultimately upholding the ordknance.22 Three ),ears later, in Moore v. City of East Cleveland,23 the Court was faced with an ordinance similar to the one upheld ha Belle Terre, but the Moore ordhaance did not allow related persons to live together under certain circumstances.24 The Court struck down the ordinance as an abridgment of the fundamental right of freedom of choice relatflag to family matters. The Court applied strict scrutflay, thus requiring the ordinance to be the least rest~'ictive means of achieving a compellhag state interest.2s Through these decisions, the Court has reinforced the not40n that local governments have wide latitude h~ protecting society morals and the general quality of life concerns of their communities.26 However, when a zonflag regulation threatens freedom of speech, the courts ca,mot apply the deferential Euclid standard.27 Therefore, the h~itial determination for any court reviewing a zoning ordinance that impacts First Amendment expression affects the applicable standard of review. The Supreme Court has consistently held that govermnent regulation of speech on the basis of its content is subject to strict judicial scrutiny.2~ 22. See itt. 23. 431 u.s. 494 (1977). 24. See id. at 498-99. 25. See id. at 499-500. The Court concluded that although the governmental interests sought to be achieved were "legitimate," the ordinance only has a "tenuous relation" to the achievement of those ends. Id. at 500. 26. See, e.g., Berman v. Parker, 348 U.S. 26, 32 (1954) (holding that zoning is permissible for the promotion of safety, health, morals, and the general quality of life in Ihe community); Zahn v. Board of Public Works, 274 U.S. 325, 328 (1927) (deferring to the legislature where the validity of a zoning ordinance is fairly debatable). 27. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 521 (1981) (holding that a zoning ordinance aimed at curbing pollution and eliminating distractions for pedestrians and molorisls by prohibiting noncommercial billboards advertising was an unconstitutional violation of the First ^mendment). 28. $e¢ Car,:y v. Brown, 447 U.S. 455, 458-59 (1980) (holding an Illinois statute unconstitulionai because it made the impermissible distinction between labor picketing and peaceful pickeling); see also Police Dep°t of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (concluding government regulalions cannot be based on the content of First Amendment expression); Street v. New York, 394 U.S. 576, 594 (1969) (finding it unconslitutional Io convic! a persol~ for speaking in defamalory lerms about Ihe ^merican flag). 388 1. LAND USE & ENVTL. L. [Vol. 12:2 B. The Developn~ent of. Zoni~g in Florida The power to zone at the count3,, and mmxicipal level may be granted by the state legislature to local authorities by local or special act.29 Zoning is an exercise of legislative power residing in the state and delegated to a municipal corporation.30 The enactment of a zoning ordinance constitutes the exercise of a legislative and governmental function.3~ In Florida, the zoning power of mmxicipai~ties is d~rived t~rom article VIII, section 2(b) of the Florida Constitution32 through the Municipal Home Rule Powers Act.33 The Florida Legislature grants the governing bociy of a count3, the power to establish, coordinate, and enforce zoning and business regulations necessary for the protection of the public.34 However, the doctrine of separation of powers35 prohibits delegation of zo~tg powers to administrative bodies36 and limits judicial review.37 Sh~ce zoning is primarily legislative in nature, zoning decisions should be made by zoning authorities responsible to their constituents.3s Zoning laws and regulations are enacted through the exercise of police power. To just-ify the exercise of police power, the zoning restriction imposed must bear a real and substantial relation to, or be reasonably necessary for the public health, safety, morals, or 29. seeStale ex tel. Taylor v. City of jacksonville, 133 So. 114, 115 (Fla. 1931). 30. See 7 FLA. JUR. 2D Building, Zoning, and Land Controls § 55 (1997). 31. See id. 32. Flo^. CONST. art. VIII. § 2(b) 33. Ft.^. S'r^T. § 166.021(4) (1995). 34. Seeid. § 125.01(1)(h). 35. See FLA. CONST. art. II, § 3. "The powers of the state government shall be divided into legislative, executive and judicial brmaches. No person belonging to one branch shall exerci.,,': any powers appertaining to either of the other branches unless expressly provided herei~." hi. 36. See Askew v. Cross Key Waterways, 372 So. 2d 913, 924 (Fla. 1978) (holding that the legislature is not free to redelegate to an administrative body so much of its lawmaking power as it may deem expedient). · 37. See Town of Indialantic v. McNulty, 400 So. 2d 1227, 1230 (Fla. 5th DCA 1981) (holding Ihat zoning decisions are primarily legislative in nature and should be made by a zoning authorily and not by lhe courts as super zoning review boards). 38. See id. Spring lC.".;7] ZONING ADULT ENTERTAINMENT 389 general welfare.39 A c,~tx,, and the courts must consider the public welfare of the whole community when construing a zoning ordinance; a mere or anticipated benefit to a special group withh~ the cit5, is not enough.4° Aesfi~etics may also be considered in cormection with the general welfare of a community.4~ The peculiar characteristics and qualities of a city may just/fy zoning to perpetuate its aesthetic appeal, and this type of zonh'~g is an exercise of the police power in the protection of public welfare.42 However, a zoning ordinance does not become invalid merely because it: is based solely or predomh~ately on aesthetic considerations.43 In Mayflower Property, I~c. v. Watson,~ the Florida Supreme Court recognized the preservation of the general nature of a neighborhood to be a proper purpose on which to base a zoning classification.4s Zoning regulations that promote the integrity of a neighborhood and preserve its resident/al character are rela~ed to the general welfare of the commurdty and are valid exercises of legislative power.46 Florida courts have considered other purposes and objectives for zoning regulations. Zonfl~g regulations may be employed to protect the econon~c value of existing uses.47 The decrease or 39. See Burritt v. Harris, 172 So. 2d 820, 822 (Fla. 1965); see also City of Mimni Beach v. 8701 Collins Ave., 775 So. 2d 428, 430 {Fla. 1953). 40. See Foggv. City of South Miami, 183 So. 2d 219, 221 (Fla. 3d DCA 1966) (holding a zoning ordinance prohibiting drive-in operations at a dairy products retail store invalid where the city made exceptions for a gas station, a bank, and a savings and loan business). 41. See City of Miami Beach v. Ocean & Inland Co., 3 So. 2d 364, 367 (Fla. 1941); see also Rotenberg v. City of Ft. Pierce, 202 So. 2d 782, 785-86 (Fla. 4th DCA 1967) (holding that aesthelic$ are a valid basis for zoning). 42. See City of Miami Beach v. First Trust Co., 45 So. 2d 681,684 (1949). 43. See Cily of Coral Gables v. Wood, 305 So. 2d 261, 263 (Fla. 3d DCA 1974) (upholding the validity of a zoning ordinance aimed at maintaining aesthetic characteristics by preventing unsightly appearances and diminution in property values from camper-type vehicles parked in a residential ,area). 44. 233 So. 2d 390 (Fla. 1970). 45. See id. at 392; sec also Blank v. Town of Lake Clarke Shores, 161 So. 2d 683, 686 (Fla. 2d DCA 1964) (holdi.'~g that it is not arbitrary and unreasonable for a residential village to pass an ordinance preserving ils residential character as long as the inhabitants' business ami industrial needs are met by olher accessible areas in the community at large). 46. See City of Miami v. Zorovich, 195 So. 2d 31, 37 (Fla. 3d DCA 1967). 47. See'l'rachsel v. City of Tamarac, 311 So. 2d 137, 140 (Fla. 4th DCA 1975). 390 J. LAND USE & ENVTL. L. [Vol. 12:2 prevention of traffic congestion4~ and the prevention of the overcrowding of lands49 are proper purposes on which to base zoning classifications. However, the restriction or the control of business competition is not a valid objective or purpose of zoning regulations.50 When exercising its zoning powers, a mmxicipality must deal with well-defined classes of uses. Zoning ordimnces generally contain comprehensive regulations addressing the construction of buildings and the use of premises m each oi: the classes of districts which a mmxicipality has been divided.51 Therefore, zoning regulations must relate to either the nature of the structure or the nature of the use.52 Zo~xing i~wolves more than mere classification; it also involves consideration of the future growth and developme'nt, adequacy of drainage and storm sewers, public streets, pedestrian walkways, and density of population.53 II. ZONING AND THE ADULT ENTERTAINMENT INDUSTRY The regulation of nonobscene nude dancing and adult book and video stores has been addressed in several federal courts.54 Sfl'~ce zorting regulations must relate to' the nature of the structure or the nature of its use, many municipalities utilize this power to regulate the use of adult entertahm~ent structures to control the activities of these bush~esses,ss Thus, inevitable conflicts arise 48. See id.; see also Mayflower Prop., Inc. v. Watson, 233 So. 2d 390, 392 (Fla. 1970). 49. See I.Vatson, 223 So. 2d at 374. 50. See Wyatt v. City of Pensacola, 196 5;0.2d 777, 779 (Fla. 1st DCA 1967). 51. See 7 FLA. JUR. 20 Building, Zoning, and Land Controls § 58 (1997). 52. See id. 53. See id. 54. See, e.g., ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 (Sth Cir. 1994); U.S. Partners Firs. Corp. v. Kansas City, Missouri, 707 F. Supp. 1090 (W.D. Mo. 1989); 11126 Baltimore Boulevard, Inc. v. Prince George's County, 828 F. Supp. 370 (D. Md. 1993); Janra Enter., linc. v. City of Reno, 818 F. $upp. 1361 (D. Ney. 1993). 55. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 563 (1991) (upholding a zoning ordinance requiring performers Io wear pasties and Gstrings); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 220 (1990) (upholdin§ a zoning ordinance requiring owners and operators of motels 'that rent rooms for less than 10 hours at a time to comply with licensing requirements of sexually oriented businesses); City of Renton v. Playtime Tl~eatres, Inc., 475 U.S. 41 (1986) (upholding a zoning ordinance prohibiting adult movie Iheaters from locating within 1,000 feet of a residential zone, church, park, or school); Hang Spring 1997] ZONING ADULT ENTERTAINI~ENT 39'1 between local govermnents attempting to regulate sexually oriented bush~esses and owners, operators, and patrons of such businesses seekh~g protection under the First Amendment.s6 The resulting case law has wrestled with the problem of definfl'~g the lawful scope of local zortfl~g power over businesses that arguably deal with these forms of expression,s7 A. First Amendment Protection of Expressive Speech Fh'st Amendment litigation generally revolves around two issues: (1) whether the material i,~ question rests under the purview of First Amendment protection; and (2) if so, what is the scope of that protection.58 First Amendment analysis and litigation has been the subject of cases revolving hate speech? flag burrtfl~g,6° commercial advertising,6~ defamation,62 invasion of privacy63 and matters of national security.64 On, Inc. v. City of Arlington, 65 F.2d 1248, 1254 (Sth Cir. 1996) (upholding a zoning ordinance placing a "no touch" requirement on activities between dancers and customers); Matney v. County of Kenosha, 86 F.3d 692 (7th Cir. 1996) (upholding a zoning ordinance requiring that one side of viewing booths in adult establistunents remain open or unenclosed). 56. See Elise M. Whitaker, Pornographer Liability for Physical Harms Gmsed by Obscenity and Child Pornogn~phy: A Tort Analysis, 27 GA. L. REV. 849, 855 (1993) (discussing ll~e background of judicial regulation of obscenity on First Amendment grounds). 57. See discussion inJ:ra Part II.A. 58. See Spence v. Washington, 418 U.S. 405, 409-11 (1974). 59. See Garrison v. Louisiana, 379 U.S. 64 (1964). 60. See Texas v. Johnson, 491 U.S. 397 (1989). 61. See Central Hudson Gas & Elec. Corp. v. Public Serv. Corem'n, 447 U.S. 557, 566- 73 (1980) (finding that commercial speech or advertising is protected from unwarranted governmental regulations). 62. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Neither factual error nor defamatory content sufficed ~o remove the constitutional shield from protecting criticism of official conduct. See id. at 279-83. However, Gertz v. Re. bert Welch, Inc., 418 U.S. 323 (1974) and Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) set up an elaborate system of limited protection for publishers of defamatory statements concerning public figures and public matters. See Gerlz, 418 U.S. at 339-41' Bul~s, 388 U.S. at 1,18-50. 63. See Cox Broadcasting Corp. v. Cohn, 420 U.S. ,t69, 491 (1975) (finding that a state may no! punish for publication of accurate information derived from official court records open for public inspection). 64. See S,~epp v. United States, 444 U.S. 507, 510 n.3 (1980) (finding that the government had a compelling i,~te,'est in reviewing a former CIA agent's publicati~m pursuant lo a voluntary employment agree,nent). 392 I. LAND USE & ENVTL. L. [Vol. 12:2 The Supreme Court extended the First Amendment's protection of free speech to cover many t3,pes of expressive conduct that are not technically speech. In Brown v. Louisiana,65 the Court ruled that the First Amendment protected individuals engaged fl~ an orderly demonstration at a segregated public library and stated that First Amendment rights "are not confined to verbal expression.''66 In West Virginia State Board of Education v. Barnette,67 the Court held that a student could not be forced to salute the flag, stath~g that "symbolism is a primitive but effective way of commu~icating ideas.''68 To determine whether the conduct is expressive or symbolic speech, courts must determine whether it constitutes expressive conduct.69 In Spencev. Washington,7° the Court held that the conduct is expressive if the actor had an "intent to convey a particularized message," and a great likelihood existed that the audience understood the message.TM Arguably, limitless types of conduct, fl~cluding appearances h~ the nude fl~ public, are expressive. People who participate in public nudit3, may be expressh~g something about themselves.72 The Court, however, expressly rejected this broad defLrtition of expres- sive speech sayfl~g, "We cmmot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engagh~g ia~ the conduct intends thereby to express an idea.''73 The Court went further in City of Dallas v. Stangli~t,74 ob- servfl~g that "it is possible to ffl~d some kernel of expression in almost every activity a person undertakes, for example, walking down the street or meeth~g one's friends at a shopping mall, but such a kernel is not sufficient to bring the activity within the 65. 383 u.s. 131 (1966). 66. ht. at 142. 67. 319 U.S. 624 (1943). 68. Id. at 632. 69. See United States v. O'Brien, 391 U.S. 367, 376 (i968). 70. 418 U.S.-105 (1974). 71. hi. at 410-11. 72. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991). 73. O'Brien, 391 U.S. at 376. 74. 490 U.S. 19 (1989). Spring 1997] ZON/.\'G ADULT ENTER'FAIN.t~qENT 393 protection of the First Amendment.''75 The Stangli~ Court found that the mere activit3, of the adult entertaim~ent patrons, commc,c, together to engage in recreational activity, is not protected by the First Amendment.76 If conduct is found to be nonexpressive, then it does not receive First Amendment protection.77 For example, in South Florida Free Beaches, h~c. v. City of Mia~ni, the Eleventh Circuit refused to give First Amendment protection to nude sunbathers who challenged a public h~decency law on the basis that it infr~ged on their right to communicate their belief that nudity was not indecent.78 In up- holding nzinimum dress requirements at public beaches, the Su- preme Court has held that "It]he appearance of people of all shapes, sizes and ages in the nude at a beach ... would convey little ff any erotic message .... ,,79 The Court further found that whether or not nudity is combined with expressive activit3,, a state which has fl'~decency or minimum public dress requirements statutes, is attempting to remedy "the evil" of public nudit3,.8° First Amendment rights cases involving adult entertairunent businesses have established many 'of the core prh'~ciples and stan- dards of the parameters of allowable govenm~ental restrictions on freedom of expression. A long history of goverrunental attempts to curtail such entertahm~ent ult4mately resulted in numerous cases in which the parties sought freedom of speech protection?~ However, regardless of how one feels about nudity as expressive conduct, the First Amendment standards that have emerged from these battles have underdably gone to the very core of the right to freedom of expression. 75. icl. at 25. 76. See id. (holding that a social dance group does not involve the sort of expressive association that the First Amendment has been held to protect). 77. See South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608, 609 (11 th Cir. 1984). 78. See id. 79. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 571 (1991). 80. Itl. 81. See Barnes, 501 U.S. at 567-71; see also Schad v. Borough of Mount Ephraim, 452 U.S. 6'1, 65 (1987) (citing various cases that extend freedom of speech protection to forms of entertainm,:nt which contain nudity). 394 I. LAND USE & ENVTL. L. [ Vol. 12:2 In the last decade those bush'~esses that fall withfl~ the defimtion of "adult entertai~m~ent business" have increased tremendously.82 The creation of an appropriate de£h~ition for adult entertainment has produced significant litigation. No definition exists that will engender a perfect fit for the entire adult entertai~m~ent indus~'y. Perhaps all attempts to formulate a defi.nition for adult entertainment will ultimately end with the conclusion reached by United S~ates Supre,~,? Court lustice Potter Stewart. Stewart noted the difficulty of creating an intelligible definition but stated, 'I know it when I see it.''83 However, for the purposes of this Comment, adult entertai~'tment will be broadly defined as that which focuses on sexuality, where it contains a certain degree of sexual explicimess and/or erotic use of full or partial nudit'y. Thus, the adult entertaimnent indust~ includes: peep shows, adult video stores, pornographic bookstores, special cabarets, 8~ rap parlors,8s liquor lounges, internet web sites,86 X-rated pay-per-view charmel$,87 massage parlors,8~ and 1-900 sex phone lines.80 82. See infra notes 83-89 and accompanying text. 83. ]acobellis v. Ohio, 378 U.S. 184 (1964) (Stewart, J., concurring). 84. A cabaret features topless dancers, go-go dancers, exotic dancers, strippers, male or feanale impersonators, or similar entertainers. See DETROIT, ~CI-I., OFFICIAL ZONING ORDINANCE § 66.000 (1972). 85. Rap parlors are "establishments at which men may converse with women who are not fully clothed." Alexander v. City of Minneapolis, 698 F.2d. 936, 936-37 n.2 (Sth Cir. 1983). 86. Web sites on the internet that offer material, such as nude pictures and sexually explicit "chat-lines," have been at the center of censorship in recent years. See generally ACLU v. Reno, 929 F. Supp. 824, 849 (E.D. Pa. 1996) (finding that the Communications Decency Act violated the First A~nendment by prohibiting certain transmissions on the internet). 87. Some cable companies throughout the United States offer services like the Spice network, where the subscriber may pay for each viewing of a pornographic movie, rather than subscribe to any one particular premimn channel. See Playboy Entertainment Group v. United States, 945 F. Supp. 772, 776 (D. Del. 1996). 88. An establishment is a massage parlor when it is engaged primarily in providing sexually oriented massages notwithstanding that it calls itself a health club and provides exmx'ise equipment. See Babin v. City of Lancaster, 493 A.2d 141, 144 n.3 (1985). 89. Long distance carriers offer services where a caller may dial a pl~one number with the prefix 1-900 with the agreement to pay per minute to speak with a person, usually a woman, about sexually explicit topics. The caller often requests the woman to use sexually arousing language. See Sable Communications, Inc. v. FCC, 492 U.S. 115, 117-18 (1993). Spring 1997] ZONING ADULT EN?'ERTAINMENT 395 B. N~de Dancing as Ext~ressive Co~duct: Eroticism or Ol:scenity? Expressive conduct is not limited to communicative speech; it may include symbolic speech that conveys an idea? Thus, owners of adult entertaflm~ent busfl~esses have argued that the dancers are expressing a message and that their conduct is therefore protected as symbolic speech.91 The respondents in Barnes v. Glen Theatre, h~c.,92 argued that their go-go dancers were performing nonobscene nude dancfi~g fl~tended to send a message of eroticism and sexuality.93 In addressh~g the constitutional protection of nude dancing, Chief 'Justice Rehnquist stated that nude dancing is expression only "margfl~ally" within the "outer perimeters" of the First Amendment.94 The Barnes Court recognized that public fl'~decency laws have long been justified as part of the state's police powers, reflect-fl~g a substantial governmental fl~terest in protectfl~g order and morality.9s The Court also found the goverranent h'tterest urn'elated to any message expressed by nude dancfl~g, and in doing so, the Court separated eroticism and the message of nude dancing from nude dancing itself? By .requiring dancers to wear pasties and a G-string, Indiana had ordy made the message slightly less graphic. It did not prohibit the message of eroticism, rather it prohibited the message's transmission through nude dancing.97 The argument has been made that nude dancing constitutes obscenity and is without First Amendment protection? The Miller 90. See Texas v. Johnson, 49'1 U.S. 397, 403 (1989) (holding that the burning of the American flag is protected symbolic speech). 91. See Miller v. City of South Bend, 904 F.2d 1081, 1086-87 (7th Cir. 1990), rev'd, Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); see also Walker v. City of Kansas City, 911 F.2d 82, 85 (W.D. Mo. 1988). 92. 501 U.S. 560 (1991). 93. 'See id. at 569. 94. itt. at 566. 95. See id. at 569. The plurality cited its decisions in Paris Adult Theatre l v. Slantono 413 U.S. 49 (1973) (upholding a prohibition on the showing of obscene fihns) and Botoers v. Har~vick, 478 U.S. 186 (1986) (uphoh. ling a prohibition of sodomy) for the notion that public morality may serve as a basis for law. See Barnes, 501 U.S. at 569. 96. See id. ("While the dancing to which [the indecency statute] was applied had a communicative element, it was ~t the dancing that was prohibited, but simply its being done irt the nude."). 97. 5ce Ut. at 573 (Scalia, J., concurring). 98. See Miller v. California, 4'13 U.S. 15, 18-19 (1973). 396 I. LAND USE & ENI,TL. L. [Vol. 12:2 Court announced and applied the standard that American courts continue to use when determinflag what constitutes obsce~ity. According to the bliller three-part test, material is obscene: (1) if the tTpical person applying communiW standards would find the work .as a whole appealflag to prurient interests; (2) if the work describes or depicts in an obviously offensive maimer sexual conduct specifi- call), outlined by the relevant statute; and (3) ff the work considered as a whole is devoid of serious artistic, political, literary or scientific value? Applying the Miller test, the Eighth Circuit found, "to the extent that nude barroom dancing contains a message and' therefore qualifies as First Amendment 'speech,' it may contain a message that nonetheless is categorically unprotected by the First Amendment--that is, an appeal to the prurient interest.'~ 00 Nevertheless, the Supreme Court's willingness to engage in First Amendment analysis in nude dancing cases indicates that the Court does not view all nude dancing as obscene. Numerous SuPreme Court decisions indicate that nude dancing constitutes expressive conduct intended to convey a particularized message, and thus, meets the Spence standard.~0~ In Doran v. Salem h~n, Inc.,~°2 the Court upheld a prelimflaary injunction that enjoined enforcement of a city regulation that prohibited topless dancing.~03 In Doran, the Court noted that nude dancing may be protected expression "although the customary 'barroom' type of nude dancing may flavolve only the barest minimum of protected expression, ... this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.'~°4 Fflading the ordinance overbroad as applied to 99. see. i,t. at 24; see also Roth v. United States, 354 U.S. 476 (1957) (confronting the issue of constilulional prolection' for obscene material). The defendant, Roth, ran a business Ihat published and sold pornographic magazines, books, and photographs. The Court affirmed Roth's conviction finding that the idem expressed by lewd and obscene materi;~!.s are of liltle "social value" and therefore receive no First Amendment protection. hi. at 485. 100. See Walker v. City of Kansas City, 911 F.2d 80, 87 (Slh Cir. 1990). 101. See. supra notes 70-71 and accompanying text. 102' 422 U.S. 922 (1975). 103. See itt. at 932. 1{}4. hi. Spring 1997] ZON. I:,'G ADULT ENrl'ERTAL\:MENT 397 the nude dancing in question, the Court granted the request for injunctive relief without addressia~g the exact level of protection the First Amendment provides to nude dancing.~°5 C. The Four-Prong Test of Reg~lating Expressive Speech In U~ited States v. O'Brien,~°6 the Supreme Court formulated a four-prong test for determi~xing whether government regulation aimed at nonexpressive conduct violates the First Amendment.~°7 In O'Brien, the defendant was convicted under federal law~°~ for burning his draft card to protest American involvement h,~ the Viet- nam War.~°9 The Court stated, "We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging ~ lhe conduct intends thereby to express an idea.''~° The O'Bffen Court enunciated a four-prong test, finding that government regulation of conduct is constitutional if: (1) the regulation is a constitutional exercise of the government's power; (2) it furthers an important or substantial goverlm*~ent interest; (3) it is ul2'elated to the suppression of free expression; and (4) any incidental burden upon First Amendment rights is no greater than necessary to promote the compellh~g state interest.TM By applying the four-prong test to the facts in O'Brien, the Court founci that O'Brien's course of conduct was expressive.~2 However, the Court found that the government's interest in safeguarding efficient, procedures for admh~isterfl~g the Selective Service system was a substantial governmental interest that was unrelated to the suppression of speech.~3 The Court also found that the governmental interest could not be advanced by any alternative method and that the regulation did not prevent O'Brie~1 105. see id. at 933-34. 106. 391 U.S. 367 (1968). 107. See id. at 376-83. 108. See 50 U.S.C. § 462(b) (1965) (siatin§. that any person "who forges, alters, knowingly destroys, knowingly mutilalcs, or in any manner changes any such certificaie ... may be fined and imprisoned."). 109. See O'Brien, 391 U.S. at 376. 110. Id. 111. See id. al 376-83. '112. See id. al 376. 113. See id. at 382. 398 ]. LAND USE & EN¥'TL. L. [Vol. 12:2 from expressing his view ha other ways.TM Therefore, the conviction was upheld because the Court found the s ':tute to be con tent-neu ta'a 1. ~ ~ 5 However, in Texas v. Johnson,~6 the Court found that the O'Brien test could not be applied to public burning of the American flag.~7 In considering the constitutionality of the statute in Johnson, the Supreme Court noted that Johnson's act of burning the flag was expressive, thus meriting analysis under the First Amendment.~ ~s Fhading the Texas statute content-based, the Court applied a higher level of scru~ay.~9 The Court balanced the govermnental interest of preserving the flag as a symbol of national unity agai~ast Jol'mson's right to unburdened freedom of speech.~2° In making this determination, the Court relied on statements made by Johnson at his ta'ial. According to Johnson, "The American flag was burned as Ronald Reagan was being re-nominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn't have been made at that time.''~2'1 Ultimately, the Court held that, under this balancing of interests, Johnson's right to express himself was more important than Texas's asserted state 'interest.~22 1. Issue One: Is the Zoning Ordinance Content-Neutral? The Supreme Court has applied the O'Brien test to cases in- volving the regulation of adult entertainment businesses when the zoning ordhaance is content-neutral, and thus, does not restrict conduct because of its message.~23 Barnes first applied the O'Bffen · 114. See id. at 378-86. 115. See id. at 381-82. Content-neutral regulations are constitution,'d and do not hwolve the regulation of speech. Content-based regulations are generally unconstitutional and are enacted to control the expression of speech. See infra notes 126-130 and nccompanyi,ag text. 116.491 U.S. 397 (1989). 117.See id. at 410. 118.See id. at 405-06. 119.See fi/. at 412. 120.See id. at 414-17. 121.Id. at 406. 122.See id. at 420. 123.See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 563 (1991). Spring 1997] ZONING ADLILT EN'I,'ERTAINMENT 399 test to adult entertainment. In Banzes, owners and dancers in the adult entertah~me~t h~dustry brougl:t suit to enjoin enforcement of Indiana's public indecency statute that required the. dancers to wear pasties and G-st~'ings.TM After Barnes, the Supreme Court ap- proached government regulation of adult entertainment by evokh~g various legal theories related to First Amendment protection, including the time, place, and mariner test, the overbreadth doctrine, the vagueness doctrine, the prior restraint doctrine, and Twenty-first Amendment principles.~25 The Supreme Court has consistently held that goverl~nental regulation of speech on the basis of its content is subject to strict judicial scrutiny.~26 Therefore, only content-neutral ordinances regulathag protected expression are constitutional.~27 The Court's analysis of an ordi~aance challenge begins with a determination of whether the ordinance focuses merely on the time, place, and man- ner in which adult uses can be operated (content-neutral regula- tions) or whether the ordhaance is aimed at restricting the content of the expression (content-based regulations).~2~ An ordinance is content-neutral if it meets the followhag three criteria: (1) the govenunent has a substantial interest fla the regulation that is unrelated to the suppression of ideas; (2) the means of regulating the protected expression are narrowly tailored; and (3) reasonable alternative avenues of communication are left open for dissemination of the regulated speech.~29 For these reasons, local 124. Sec id. at 563; see also supra notes 92-97 and accompanying text. 125. See Young v. American Mini Theatre, 427 U.S. 50, §8-62 (1976). 126. See, c.g., Carey v. Brown, 447 U.S. 455, 458-59 (1980)(striking down a state statule as unconstitutional because it made the impermissible distinction between labor pickeling and peaceful picketing); Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (holding that government regulations caru~ot be based on the content of First ^mendment expression); Cohen v. California, 403 U.S. 15, 24 (1971) (reversing a conviction for wearing jacket bearing the phrase "Fuck the Draft" ~ a violation of protected expression); Street v. New York, 394 U.S. 576, 584-85 (1969) (finding it unconstitutional to convict a person for speaking in defamatory terms about the American /lag). , 127. Sec City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49 (1989). 128. See Mosley, 408 U.S. at 95-96. 129. Sr~ Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. ~0, 647-48 (1981); Mosley, 408 U.S. at 98; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 442 (1957). 400 I. LAND USE & ENVTL. L. [Vol. 12:2 governments attemptflag, to pass zoning ordinancm for adult entertainment busiaaesses must ensure that the ordinance provides: (1) sufficient factual basis to support a finding of substantial govermnental interest; (2) narrowly tailored defirritions of adult uses affect-hag oa~ly those businesses which the ordinance intends to regulate; and (3) reasonable alternative channels of communication for the affected expression.~30 2. Issue Two: Whether Time, Place, and Manner Regulations are Proper? The time, place, and manner test was originally formulated to apply o~ly to speech or expressive conduct that takes place in public forums.TM However, some courts and scholars have viewed the time, place, and ma~u~er test and the O'Brien test as essentially the same.~32 The Supreme Court has used the time, place, and mariner test to evaluate state regulation of nude dancing.~33 This application often arises when owners of adult entertainment establishments claim a zoning regulation is a violation of their First Amendment rights.TM Government restriction of expressive actiVities has been permitted fl't situations where restrictions fall short of a complete ban and constitute time, place, and manner resb'ictions.~35 Essentially, courts have found that although expression covered by the First Amendment cannot be banned, it can be restricted in terms of where, when, and how that expression is presented.~36 For example, nonobscene sexually explicit material on broadcast television and radio can be restricted to times when 130. See Ca'ty of Rento~, 475 U.S. at 50. 13I, See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). 132. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984) (finding that the time, place, and manner test embodies the same standards as those set Iorth in O'Brien). 133.' See i,fra notes 141-143 and accompanying text. 134. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 562-63 (1991); see also Walker v. City of Kansas City, 911 F.2d 80, 82, 85 (W.D. Mo. 1988). 135. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 211-12 (1975) (invalidating a ~.oning ordinance that failed to distinguish movies containing nudity from all other movies which were being restricted, thereby constituling a complete b,'m on speech). 136..Cee Ward v. Rock Againsl Racism, 491 U.S. 781,791 (1989). Spring ! 997] ZONING ADLILT ENTE~V, TAiNME:~'T 401 children are less likely to be in the audience.~37 The Court l~as given state and local govervanents leeway ~-~ their attempts to control purported adverse effects of adult entertainment, particularly when related to protecting children or others who do not wish to be exposed to adult material.~38 This leeway has also extended to controlling alleged adverse secondary effects.~39 Yet, even with time, place, and mariner restrictions, courts have set limits concerning how far a government can go when attemp~g to ban unpopular expression.140 The Supreme Court first addressed the time, place, and maturer resta'ictions of adult entertairunent regulations h~ 1976 in Young v. American Mini Theatres, Inc.,~4~ and later in Schad v. Borough of Moment Ephraim,~2 and City of Renton v. Playtime Theatres, Inc.~3 Each of these cases supplied an important element for an examination of time, place, and manner regulations. Young stressed that the regulation must not suppress protected expression and that access to that expression must remain available.TM Schad emphasized that the regulation cannot be so broad as to completely prohibit protected expression and that the regulation must further a substantial governmental interest.~'~5 Rentm~ established a deferential standard of review for cases involving time, place, and mariner regulations.~ 46 a. Young v. American Mh~i Theatres, Inc. 137. See FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978) (finding that because of the use of the public airwaves, broadcasting is subject to somewhat stricter regulation than print media or cable TV). 138. See id. at 730 n.l; see also Erznoznik, 422 U.S. at 210-12. 139. See Redner v. Dean, 29 F.3d 1495, 1505 (llth Cir. 1994); 11126 Baltimore Boulevard, Inc. v. Prince George's County, 886 F.2d 1415, 1420, 1426 (4th Cir. 1989). 140. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50-55 (1989). 141.' 427 U.S. 50 (1976). 142.1152 U.S. 61 (1981). 143.475 U.S. 41 ('1986). 144.See, e.g., Young, 427 IJ.S. at 70-71. 1,15. See $chnd, 452 U.S. at 68-69. 146.See City of Renton, 475 U.S. at 46-48 (deferring to the government's purpose or substantial interest in enacli~'~g time, place, and manner regulations). 402 1. LAND USE & ENIrI'L. L. [ Vol. 12:2 Accordflag to Justice Pow_ell, l'oung was the first case decided by ,, the Supreme Court "fla which the fiaterests of freedom of expression protected by the First and Fourteenth Amendments ha[d] been implicated by a mmxicipality's commercial zoning ordinances."l'47 At issue fla Young was the constitutionality of certain portions of Detroit's Anti-Skid Row ordinance that singled out adult bookstores and theaters for special treatment.14s The original Anti- Skid Row ordinance, passed in 1962, was based on findings by the Detroit Common Council that certain types of businesses, when concentrated, can have a blighting effect on the surrounding neighborhood.149 The ordinance forbade adult motion picture theaters, topless cabarets, and other similar establishments from locating within 1,000 feet of each other or within 500 feet of a residential dwelling without first obtaining approval.~so Although the ordinance was not technically content-neuh-al because it applied only to adult entertainment, the Court found the ordinance to be a reasonable time, place, and manner rest?iction of Protected speech because the regulation of the places where sexually explicit films may be exhibited is unaffected by whatever social, political, or philosophical message a film may be intended to communicate.~S~ The Court held that the ordfi~ance constituted a permissible content-neutral time, place, and manner restriction because the purpose of the ordinance was not to elfininate, censor, or suvpress the protected speech but rather to preserve the quality of urban life by avoidh~g the secondary effects of these businesses on the communit5' through regulation of the placement and concentration 147' Yom~g, 427 u.s. at 76 (Poweli, J., concurring). 148. Set' id. at 54-55. 149. See id. at 56 (citing DETROIT, MCIt., CFFICIAI. ZONING ORDINANCIi § 66.000 (1972), which states '[i]n the development and execution of this Ordinance, it is recognized that. there are some uses which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when several of them are concenlrated under certain circumstances, thereby having a deleterious effect upon the adjacent areas. Special regulation of these uses is necessary to insure that these adverse e~fc, cts will not contribule to the blighting or downgrading of the surrounding neighl~rhcmd."). 1 $0. See. id. at 52. 151. See id. at 70. Spring 199-] ZONING ADULT F_NTERT:,tlNMI!NT 403 of such busfl~esses.~'~2 Justice Stevens' plurality opinion pointed out that the cit3:'s goal of avoidh~g or mitigating these secondary effects is one which must be accorded high respect and is a sufficient goverm~ental interest to justify the resulting incidental restriction on First Amendment speech.~53 b. Schad v. Borough of Mount Ephraim In contrast to Young, the Court in Schad struck down a local time, place, and maturer zoning ordinance that brained all adult theaters, fi~cluding live entertaflm~ent and nude dancing, from every cormnercial district in the city.~54 Although the Court recognized the local government's broad zoni.ng power for the purpose of maintainh~g a satisfactory quality of life, the Court held that this power "must be exercised within constitutional limits.'~5~ In finding the ordinance unconstitutional, the Court reasoned that the municipality provided no conclusive evidence of a substantial interest in prohibiting all forbes of live entertainment, and the municipality failed to prove that there were adequate alternative channels of conm~unication open to businesses subject to the regulation.~6 The Court stated that its decision in Young was not conh'olling because in that case 'It]he restriction did not affect the number of adult movie theaters that could operate in the cit3,; it merely dispersed them.''~57 c. City of Renton v. Playtime Theatres, Inc. In Renton, a suit was brought challenging the constitutionality of a zoning ordinance which prohibited adult motion picture theaters from locating within 1,000 feet of any resident/al zone, single or mult-iple family dwelling, church, park, or school.~ss The district court granted summary judgmen~ in the city's favor, 152. See. itt. at 71. 153. See. itt. at 71-73 (Steven, J., concurring). 154. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 76-77 (1981). 155. id. at 68 (citing Moore v. East Cleveland, .131 U.S. 494, 514 (1977) (Stevens, J., concurring)). 156. See id. al 73-74. '!57. Id. at 71. 158. Sec' City of Renton v. Piaytin~e Thealres, Inc., 475 U.S. 41, 43 (1986). 404 ]. LAND USE & ENVTL. L. [\Poi. 12:2 holding that the ordinance did not violate the First Amendment.159 · The court of appeals 'rex, erst.d, holding that the ordinance constituted a substantial rest~'iction on First Amendment interests al~d remanded the case for reconsideration of whether the city had substantial governmental fl~terests to support the ordinance.~60 The Supreme Court held that the ordinance was a valid goverrm~ental response to the serious problems created by adult theaters and therefore satisfied the dictates of the First Amendment.~6~ The Court reasoned that the ordinance did not ban adult theaters altogether and was a proper form of time, place, and maturer regulation.~62 The Court reaffirmed that content- neuh-al time, place, and maturer regulations are not un- constitutional as long as they are formulated to serve a substantial state fl~terest and not to unreasonably limit alternative avenues of communication.~ 63 The district court found that Renton City Council's predominate concerns were with the, secondary effects of adult theaters on the surrounding commurfity, not with the content of adult films themselves.~64 This finding was adequate to establish that the city's pursuit of its zoning h~terests was unrelated to the suppression of free expression, and thus, ihe ordinance was a content-neut-ral speech re.gulation.~6s The Supreme Court concluded that the Renton ordinance was designed to serve a substantial governmental interest while allowing for reasonable alternative avenues of conununication.~66 The Court further held that although the ordinance was enacted without the benefit of studies specifically relating to Renton's particular problems, Renton was entitled to rely on the experiences of and studies produced by 159. See itl 160,' See itt. at 44 (citing Playlime Theatres, Inc. v. City of Renton, 748 F.2d §27 (9th Cir. 1984)). 161. See id. at 49 (citing Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)). 162. 5ce id. at 52-54. 163. 5:e/d. at 46. 164. See id. at 48. 165. See id. 166. See id. al 53. Spring 1997] ZONING ADULT EI',:TERTAINM '":"NT 405 other cities.~67 The Court found that no constitutional defect invalidated the method chos~.n by Renton to further its substantial h~terests~6~ and that cities may regulate adult theaters by dispersing them or by effectively concentratia~g them as in Renton.~69 l~4oreover, Since no evidence showed that at the time the ordinance was enacted, any other adult busfl~ess was located h~ or was contemplating a move into Renton, the Court found that the ordinance was not "underinclusive' for failing to regulate other kinds of adult businesses.~?° The Court determined that although Renton first chose to address the potential problems created by one particular kind of adult business, this choice in no way suggested that the city had "singled out" adult theaters for discriminatory treatment.TM Finally, the Court held that the ordinance allowed for reasonable alternative avenues of commmxication, as required by the First Amendment372 Although the theater owner argued that in general no "commercially viable" adult theater sites were located withh~ the limited area of land left open for such theaters by the ordinance, the Court found that this limitation did not give rise to a violation of the First Amendment since potential adult business owners must fend for themselves in the real estate market on equal footing with other prospective purchasers and lessees. Thus, the Court did not believe that the First Amendment compelled the government to ensure that adult theaters or any other kh~ds of speech-related businesses would be able to obtain sites at bargain prices.173 The Court deferred to the city's desire to preserve "the quality of urban life.''~74 In fact, the Court stated that as long as the evidence relied upon by the city is reasonably believed to be relevant to the problem that the city addresses, the 167. See id. 168. S~:c id. at 52. '169. Sc¢ id. at 51. 170. Id. at 52. '17'1. Id. 172. See. id. at 53. '173. See id. '174. icl. at 50 (citing Young v. American Mini Theatres° Inc., 427 U.S. 50, 71 (1976). 406 1. LAND USE 6 ENVTL. L. [Vol. 12:2 evidence will. be sufficient to support a finding of substantial ~overnmental fl~terest.175 ' In light of Renton, municipalities should provide three essential elements h~ their legislation and accompanying record: (1) a legis- lative record sufficient to show a nexus between adult uses and particular secondary effects and a legislative finding that the legislation addresses those secondary effects; {2) a defh'dtion section which is neither vague nor overbroad; and (3) sufficient available land for the location or relocation of adult businesses.~76 3. Issue Three: Whether Twenty-first Amendment Pffnciples are Applicable? Another approach that has been taken by the Supreme Court to review a governmental regulation of nude dancfl~g utilizes the Twenty-first Amendment of the United States Constimtion.~77 In Ziffi'in, Inc. v. Reeves,~78 the Court recognized that a state has abso- lute power under the TwenB,-first Amendment to prohibit the sale of liquor withh~ its boundaries.~?~ The Court recognized that pur- suant to the Twenty-first Amendment, states have wide latitude to enact laws that prevent establishments which offer nude dancing from acquiring liquor licenses.~80 In l.~Rue, bar owners challenged a regulation prohibiting nude dancfl~§ wl~ere alcohol ,vas served.TM The state offered evidence of 175. See id. at 51-52. 176. See, e.g., Phillips v. Borough of Keyport, 107 F.3d 164, 173-74 (3d Cir. 1997); see alsa Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123, 133-34 (3d Cir. 1993). 177. U.S. COl~S'r. amend. XXI, § 2 ("The transportation or importation into an), Stale, Territory, or possession of the United Slates for delivery or use therein of intoxicating liquors° in violation of the law thereof° is hereby prohibited."). The Supreme Court has interpreted tl~is language to give the states broad powers to regulate the sale and distribution of alcohol. See California v. LaRue, 409 U.S. 109 (1972). 178. 308 U.S. 132 (1939). 179. See id. at 138. 180. See ld~Rue, 409 U.S. al 117. 181. See id. at 110. The California regulations prohibited certain conduct on licerr,~.~l premises° such as performance of acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulalion, flagellation, or any sexual acts thai are prohibited by law; the actual or simulated displaying of pubic hair, anus, vulva or genitals; Spring 1997] ZO..,'ING ADL!LT ENTERTAINMEN'I' 407 sordid and illegal acts occurrfl~g m and around the establish- rnents.1~2 The Court upheld the regulation recogniz~,g the broad powers states have h,~ regulating the use and distribution of alcohol under the Twenty-first Amendment.~83 The LaRue Court held that the regulations were within California's power to control the sale and dista'ibution of alcohol withirt its borders and that the regula- tions were a rational response to problems created by mixing alcohol with nude entertainment.1~4 The Court stressed the "critical fact" that the state did not prohibit nude performances across the board but only in places serving alcohol.~ss The Supreme Court has further held that a state legislature, pursuant to its power to regulate the sale of liquor withh't its boun- daries, cart ban topless dancing ia~ establishments that have a license to serve liquor.186 A "[s]tate's power to ban the sale of alcoholic beverages entirely ia~clude[d] the lesser power to ban the sale of liquor on premises where topless dancing occurs.'~7 The Court also held that nudity is the kind of conduct that is a proper subject for legislative action as well as regulation by the State Liquor Authority as a phase of liquor licensing, l~s In addition, "[c]ommon arose fl~dicates that any form of nudity coupled with alcohol in a public place begets undesirable behavior. This legislation prohibiting nudity ia~ public will once and for all, outlaw conduct which is now quite out of hand.''~9 and the actual or simulated touching, caressing or fondling on the breast, buttocks, anus, or genitals. See id. at 111-12. 182. See id. Customers engaged in oral copulation with women entertainers; customers enga§ed in public masturbation; and cuslomers placed rolled currency either directly into the vagina of a female entertainer or on the b,'u' so that she might pick it up herself. Numerous other forms of contact between the mouths of male customers and the vaginal areas of female performers reportedly occurred. See id. at 110. 183. See id. at 114 (noting that "the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public healfl~, welfare, and morals"). 184. See id. at 115-19. 1~5. ltl. at 117. 186. Sec, New York Liquor Auth. v. Bellanca, 452 U.S. 714, 717 (1981) (per curiam). '187. Id. 188. See id. at 717-18. 189. Id. (citing NEw YORK ST^'I'F. LI-:GISI.^'I'iVE ANNUAL 150 (1977)). I. LAND LISE & ENVTL. L. [Vol. ~, 2:2 4. lss~e t-'o~r: ls the Lice~si;tg Req~i'rement a Prior Restrainer? Governments sometimes adopt licensing or pern'dt systems to regulate certai.n kh-~ds of activity, such as permits to engage in door- to-door soliciting, permits to parade, and permits to operate sound amplifiers.~° These licensing or penrdt systems are constitutional when the regulation is fashioned to benefit public health, safety, welfare, or convenience.~0~ For example, a parade licensing requirement requirfl~g notification of police for public regulation purposes and ensuring noninterference with other normal uses of the sn'eets is constitutional.~2 However, licensing systems aimed at forbidding speech or regulath'tg the content of speech are unconstit'utional.~ Sh~ce licensing and permit systems can be misused to restrai~'t speech, they are constitutional only if they provide clearly defined relevant standards for issuance and do not accord officials discretion to deny issuance of a license or permit because of the content or viewpoint of the expression or the identity of the speaker.~ When licensh~g officials have such broad discretion that they could effectively suppress legitimate speech, the permit scheme is void on its face and speakers need not comply with it.~s However, when licensing schemes provide clear ~tandards for issuance, speakers must seek a pernfit, and if refused, must seek iudicial or admfl~ist~ative relief rather than speak without permission.~96 Therefore, the doctrine of prior restraint is applicable ortly to impermissible means of restricting speech. Some local goverru~ents have employed a licensing requirement to prevent a concentration of adult businesses from opening establishments h~ their community.'~o? Adult businesses can be 190. See Kovacs v. Cooper, 336 U.S. 77, 86 (1949). 191. See Ginsberg v. New York, 390 U.S. 629, 636 (1968). 192. $ee Shutllesworth v. City of Birmingham, 394 U.S. 147, 151-52 (1969). 193. See Lovell v. City of Griffin, Ga, 303 U.S. 444, 450-52 (1938). 194. 5ce Cox v. New Hampshire, 3'!2 U.S. 569, 575-76 (1941); see also Kunz v. New York, 340 U.S. 290, 29,1 (1951). 195. See Staub v. City of Baxley, 355 U.S. 313, 318 (1958) (citing Smith v. Cahoon, 283 U.S. 553, 562 (1931)). 196. See. Poulos v. New Halnpshire, 3,t5 U.S. 395, ,109-14 (1953). 197. See FW/PBS, Inc. v. Cily of Dallas, 493 U.S. 215, 220 (1990) (invalidating a license requirement for adult businesses). Spring 1997] ZONIN(.; ADULT ENTFRTA1N,MENT 409 required to obtain an operating license, but no license may be denied merely because the busi.nesses will offer sextially explicit shows or other sinzilar materiaI.~98 The Supreme Court add;'essed licensing schemes as prior restraflats in FW/PBS, where the local ordinance required ail "sexually oriented businesses" to be licensed /rt order to operate.~99 The Court found that in order for a licensing system to be constitutional as applied to protected speech, the following three conditions must be satisfied: (1) any restrak,,,t prior to judicial review can be imposed only for a specified brief period duria~g which the status quo must be maintai.rted; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.200 Since F'W/PBS, several decisions have reviewed and addressed various adult busfl'~ess licensing schemes. For instance, a county's adult bookstore ordi~ance was found to be an unconstitutional prior restraint on protected speech where the ordinance failed to assure prompt judicial review of an administrative denial of a special exception.2m Similarly, an ordinance was found to provide inadequate procedural safeguards where an adult bookstore seeking a special exception would face a delay of at least eight months from the date of' application.2°2 The Fifth Circuit reviewed two cases from Texas where the licensing procedures for adult businesses were challenged as prior restraflits on protected expression but were upheld under FIA?/PBS.203 The court was satisfied that the two licensing decisions were required to be made 198. see. id. at 220. 199. Id. at 236. The Court recognized that it was reasonable to believe that shorter rental time periods indicate that the motels foster prostitution. See id. 200. See id. at 227 (citing Freedmm~ v. Mm~lnnd, 380 U.S. 51 (1965) and finding that a censorship board could not prohibit a movie production and release by way of a prepublication review requirement to determine obscenity prior to publication). 201. See 11126 Baltimore Boulevard, Inc. v. Prince George's County, 32 F.3d 109, 114 (4th Cir. 1994). 202. See id. at 115 (finding thai a 150 day period for the completion of judicial review of a decisio;~ on an application for an adult bookstore was not an excessive period). 203. See TK's Video, Inc. v. Denton County, 24 F.3d 705 (Sth Cir. 1994); Grand Brittain, Inc. v. City of Amarillo, 27 F.3d 1068 (Sth Cir. 1994). 410 I. LAND USE & ENVTL. L. [Vol. 12:2 within a specified brief period, as mandated by FW/PBS.TM Because the two adult entertainment businesses at issue in those cases were already in business, the court further held the goverm~ent could not constitutionally shut them down while their application for a license was pending.205 Another court has held that the requirement for a conditional use permit was presumptively unconstitutional as a prior restraint on protected expression because no sites were available in the county for adult businesses to operate.206 The court also found that the code did not contain safeguards against the possibility that officials would deny a permit on the basis of the content of an applicant's speech.207 These cases indicate the frequency with Which local governments use licensing schemes to restTict the operation of adult businesses. D. Restrictive Zoning Regulations in Florida 'Florida, like other states, has attempted to use zorth~g laws to address concerns regarding the adverse secondary effects attributed to adult businesses.208 Time, place, and manner regulations have been used by several cities fl'~ Florida to disperse or concentrate these establishments with the h~tent/on of combating the adverse secondary effects. Those Florida cities that have enacted time, place, and mariner regulations affecting the 204. see TK's Video, 24 F.3d at 708 (60 day period); Grand Brittain, 27 F.3d al 1070 (11 day pt': !od). 205. See TK's Video, 24 F.3d at 708; Grand Brittai,, 27 F.3d at 1071. 2{16. See Mga Susa, Inc. v. County of Benton, 853 F. Supp. 1147, 1150 (D. Minn. 1994) (invalidating a permit requirement for a "recreational facility," the definition of which included various kinds of adult and nonadult businesses). 207. See id. a t 1151. 208. See T-Marc, Iix:. v. Pinellas County, 804 F. Supp. 1500, 1503 (M.D. Fla. 1992) (upholding a zoning ordinance requiring a Ihree foot distance between dancers and patrons to control secondary effects of adult use establishments); 3299 N. Federal Highway, Inc. v. Board oI County Corem'rs of Broward County, 646 So. 2d 215, 221 (Fla. 4th DCA 1994) (upholding a zoning ordinance providing for a three foot distance between the dancers and Ihe patrons to prevent lapdancing and the adverse effects cause by this activity); International Eateries of America, Inc. v. Broward County, 941 F.2d 1157, 1162 (11 th Cir. 1991) (upholding a zoning ordinance that furthered a substantial governmental interest in proleclil~g the quality of urban life from Ihe secondary effects of adult businesses). Spring 1997] ZONING AD Lil..T ENTERTAINMENT 411 location2°9 and distance pat~'ons must keep from nude dancers',210 have also had to satisfy the requirements of Re~tton.2~ Some local governments have attempted to use zoning laws to "zone out" adult entertainment bus~esses. For example, in lnten~ational Food and Beverage Systems, the court noted that the evi- dence revealed mzly twenty-five locations around the city that were available for adult entertainment businesses.2~2 The proposed sites were near the city's well-fields on the outskirts of town or located near the airport where much of the land was condemned or under- going drastic change due to construction of a new expressway.2~3 The court found that these sites were so patentiy unsuitable for bush'~esses that the regulations effectively zoned the subject adult entertaimnent businesses out of the cit-),.TM Thus, the regulations were unconstitutional because they were not the least restrictive means to achieve the city's legitimate interests.2~ Prior to the Florida Supreme Court decision in City o,f Daytona Beach v. Del Percio,2~6 the Florida courts had not answered the critical question of whether Florida had delegated its powers under the Twenty-first Amendment to counties and municipalities. Resolution of this question was crucial because local ordinances regulating the sale or consumption of alcohol would be entitled to a presumption of validi~, co~'fferred by the Twenty-first Amendment if the state had delegated the authority.2~? However, if the state had not delegated the authority, the ordinances would be subject to the stricter review applicable to exercises of the general police power.2~8 In 1985, the Florida Supreme Court answered this 209. see, e.g., International Eateries, 941 F.2d at 1157. 210. See, e.g., T-Marc, 804 F. Supp. at 1503; 3299 N. Federal Highway, 646 So. 2d at 221. 211. See Inten~ationai Eateries, 941 F.2d at 1161; T-Marc, 804 F. Supp. at 1502; see also discussion supra Part 11.C.2.c. 212. See International Food and Beverage Systems v. City of Fort Lauderdale, 614 F. Supp. 1517, 1521 (S.D. Fla. 1985). 2'13. See. i~L 214. See id. 215. See id. at 1522. 216. 476 So. 2d 197 (Fla. 1985). 217. See New York State Liquor Aulh. v. Bellanca, 452 U.S. 714, 718 (1981). 218. See. Krueger v. City of Pensacola, 759 F.2d 851,852 (llth Cir. 1985). 412 ]. t.AND LISE & ENVTL. L. [Vol. 12:2 question by finding that the powers had been delegated.2~9 Since this time, local governments have used these delegated powers to restrict or forbid the sale of liquor at adult businesses. 2:'0 III. THE SECONDARY EFFECTS OF ADULT ENTERTAINMENT ESTABLISHMENTS ON RESIDENTIAL NEIGHBORHOOI~ "With the increase of Adult Entertainment Establishments came a public awareness that these type of businesses could have a direct effect on the quality of life in... neighborhoods due to the criminal activities associated with these adult businesses and [~e type of patrons that [they] attracted."22~ Residents of communities located near some of these businesses have many reasons for disliking these establishments. One concern is with drivers who rush out of the parking lots of the businesses while children are nearby.222 Public hearings have overflowed with similar concerns about traffic, prop- erty devaluation, prostitution and other crimes. However, at the core of this concern is the fear of the kind of people a nude dance club attracts; usually undesirables, transient crowds, and unsavory elements.223 A. Adverse Effects and Their Causes Adult entertaflm~ent establishments foster criminal activities such as racketeering, arson, murder, narcotics, bookmaking, porno- 219. See Del Percio, 476 So. 2d at 201-04. 220. See Fillingim v. Boone, 835 F.2d 1389, 1399-1401 (llth Cir. 1988) (affirming the conviction of adult night dub owner for violating an ordinance prohibiting nude or semi- nude entertainment in an eslablishment where alcoholic beverages were sold for consumption). 221. Tampa Transcript, supra note ~, at 15. 222. This effect is likely due Io the customer's effort to avoid being seen patronizing the business, usually because of the negative image associated with those who frequent adult entertainment establishments. See it's Shot~time, SEA'I'rLE TIMES/SEA'FrLE POS2: I~'rF.I. IolGENCEIk June 2, 1991, at 22 [hereinafter It's 5howtime]. 223. These terms are generally used to negatively depic! patrons and supporters of adult businesses. However, llmse who patronize adult establishments are often busi,~essmen, married men, or others who would be considered upstanding members of the community. See It's Shoo,time., supra note 222, at 22; see also Report of the Florida Supreme Court Gender Bias Stmty Commission, 42 FI.^. L. RI..'v. 803, 899 (1990). Spring 1997] ZONINGADLILT ENTERTAINAIENT 413 graphy, profit skimming, and loan sharking.224 Along with these activities, opponents of these establishments argue that the spread of HIV, increased prostitution, increased rape, and neighborhood deterioration are also adverse secondary effects attributed to adult businesses.225 Not ordy does a commm~t~ have to deal with the increased crime brought by these businesses but also the impact on moral values. Signs erected on public streets and highway bill- boards h-trended to solicit pat-rons ultimately h-tdicate to the com- munity's youth that the moral standard of the community is to depict women as tools for sexual gratification and fantasy fulfill- merit, rather than as friends, lovers, mothers, and equals.226 224. These activities are directly associated with organized crime, which has been argued to be the ",no,'tey and muscle" behind adult entertainment establishme,~ts. Tampa Transcript, supra note 1, at 15. . 225. See itt. at 21-22. 226. "What this particular form of enterlainment takes away from men, slowly, h~crementally over time, probably unconsciously, is their capacity to appreciate the women in their ordinary lives. And perhaps it blunts even their ability to view women as equals." See it's Showtime, supra note 222. at 23. 414 ]. LAND LISE & ENVTL. L. [Vol. 12:2 1. The Sl~read of HI V One of the adverse secondary effects attributed to the use and location of adult use businesses is the increased spread of HIV. Many local officials consider the rapid spread of HIV and AIDS in many cities throughout the country, its incurable and fatal nature, and its mode of transmission.22? During the 1980s, HIV infection emerged as a leading cause of death fl-~ the United States among young adults aged 25 to 44 years.22s By 1989, HIV infection had become the second leading cause of death in men and the sixth leading cause of death in women in this age group, accounting for 14 9'0 and 4 % of deaths respectively. 229 "[M]ost AIDS cases in men result from HIV h'ansmission by homosexual contact, and high incidence rates of AIDS related to homosexual contact are widespread in many states across the country."230 Thus, preventing the spread of HIV has been cited as a reason for enacting ordfl~ances to resh'ict or prohibit closed viewing booths fl~ adult establishments that provide peep shows of nude dancers or coin-operated X-rated video viewing. 23~ Many local governments have found that viewing booths in adult establishments have been or are being used by patrons as places to engage fl~ sexual acts, particularly between males, includ- ing but not limited to i~tercourse, sodomy, oral copulation and masturbation, resulting in unsafe and unsanitary conditions. 232 227. See Francisco G. Torres, Lights, Camera, Actionable Negligence: Transmission of AIDS Virus Di~ring Adult Motion Picture, Production, 13 HASTINGS COMM. & ~. L. J. 89, 92 (19~). HIV causes AIDS by debilitating one's immune system and ultimately causing death. AIDS is a fast-growing public conc~.~'~ due to its rapid spread in recent yea~. See · id. at 92-93. 228. See Richard M. Selik et al., Infection as Lending Cause of Death Among Young Adults iu LI.S. Oties and States, 269 JAMA 2991 (1993). 229. See id. 230. Id. 231. See Suburban Video, Inc. v. City of Delafield, 694 F.Supp. 585, 588 (E.D. Wis. 232. See id. at 588 n.l (citing DEI.AI:II~Li), WIS., CODEOF ORDINAN~ ~ 11.14, which lisls Milwaukee and Kenosha Counties, Wisconsin; Chattan~ga, Tennessee; Newport News, Virginia; and Marion Counly, Indiana as localities that have found that adult eslablishmenls have been used by patrons for sexual acts); The Dayton city commission found Ihat similar activity occurred at local adult establishments in Dayton, Ohio. See Balncm Corp. v. Cily of Dayton, 923 F.2d 470, 473 (6lb Cir. 1990). Minneapolis, Minnesota Spring 1997] ZONING ADI.!LT £'~,4TERTAIN.~.'iENT 415 The viewing booths at these adult establishments are small closet- sized rooms that are divided from adjoimng boofl'~s by plywood petitions. The plywood petitions have holes cut iaa them which permit the occupant of one booth to engage in sexual contact with the occupant of the adjoining booth, and consequently, the potential to spread HIV.233 Local ordflaances that govern the physical layout of these types of adult establishments require that each booth, room, or cubicle be totally accessible to and from aisles and public areas of the establishment and shall be unobstructed by any door, lock, or other conta-ol-type devices.234 These time, place, and manner regulations seek to dflnflaish the spread of contagious diseases caused by high risk sexual conduct by regulating certain commercial facilities where high risk sexual conduct has been found to have taken place.235 Evidence has shown that high risk sexual activities include multiple, anonymous sexual encounters and casual sexual activity occur in adult establishments that offer such viewfl'~g booths.236 Testimony by pah'ons of these adult establishments evidence that fellat-io, anal intercourse and mutual masturbation take place fl'~ the viewing booths.237 The employees of these establishments have also testified that semen was found on the walls or floors of the viewing booths.23s Thus, courts have found resh'ictive ordinances for the viewhag booths to be valid based on has also passed a similar ordinance based on such findings. Set Doe v. City of Minneapolis, 693 F.Supp. 774, 777 (Minn. 1988); Broward County, Florida has conducted an extensive sting operation to m~cover these activities. 5~ M~'RO~LITAN BUREAU OF INVESTIGATION, N~l'~i JUDICIAL CIRCUIT, AI:FIDtWIT/ ~ffCUI'IVE SUhlMARY (Sept. 1, 1987) [hereinafter PI~OSECU'I'IVE SUMMARY] (stating that agents reported witnessing sexual intercourse, oral copulation, sodomy and fellatio) (on file with author). 233. See Memorandum from the Broward County Dep't of Strategic Pl~ning and Growlh hlanagement to the Bd. of County Corem'rs 0une 4, 1993) [hereinafter Broward Counly Memorandum] (on file wilh author). 234. See Suburban Video, Inc. v. City of Delafiel~. 694 F. Supp. 585, 588 (E.D. Wis. 1988); Bamon Corp. v. City of Dayton, 923 F.2d 470, 471 (6th Cir. 1991); Doe v. City of Minneapolis, 693 F. Supp. 774, 777 (D. Minn. 1988). 235. See Doe, 693 F. Supp. al 776. 236. See supra hole 234 and accoml~an).i~g text. 237. See D~, 693 F. Supp. at 777; ffamon Corp., 9~ F.2d at 472; Pennsylvania v. Danny's New Adam & Eve Bookstore, 625 A.2d 119, 122 (Pa. Commw. Ct. 1993). 238. See I IxOSECIJ'i'IVI~ SUMMARY, sttpra nt~le Z~2. 416 I. LAND LISE & ENVFL. L. [Vol. 12:2 the local government's substantial interest, in ensuring sanitary public places to retard the spread of sexually transmitted diseases, like AIDS.239 Danny's New Ada~u & Ez:e Bookstore discussed the potential spread of HIV and AIDS in adult entertainment establishments that offer closed viewing booths.2ao A Pe~msylvania state appeals court upheld a lower court decision closing down certain areas of two adult bookstores and video establishments that were found to be public nuisances because they threatened fl~e spread of HIV.2'~ The decision arose on a consolidated appeal by Danny's New Adam & Eve Bookstore and Book Bin East, which both sold sexually oriented video tapes, books, and magazines, as well as offered co~'~-operated video viewing booths.242 Agents for the state testified that a number of the booths had holes between them that allowed patrons to have oral sex with persons in the adjacent booth.243 A state agent also testified that in the "Couch Dancing" area of the Book Bin East, dancers offered to have sex with him for money.244 In addition to this testimony, a patron of these establishments testified that he was i~xfected with HIV and that he had engaged in fl~tercourse in the establislu-nents on several occasions.245 The court found that "[c]ompetent evidence exists in the record to support the trial court's conclusion that sexual conduct, occurring on the premises, could lead to the spread of HIV which may result in AIDS.''246 The court further held that the "citizens of the Commonwealth of Pem~sylvania will suffer irreparable harm if defendants continue to maintain video viewing booths and areas utilized [as] 'California Couch Dancing' where sexual activity has taken place which could lead to the spread of HIV.''2~? Thus, the 239. See Suburbm~ Video, 694 F. Supp. at 589. 2411. See Dtmny's New Adam & Eve Bookstore, 625 A.2d at 121. 241. See id. al 122. 242. See id. 243. See id. al 120-21. 244. Itl. al 121. · 245. See itl. al 122. 246. Itl. 247. hi. al 121. Spring 1997] ZONING ADULT £NTERTAINMF_.NT 417 court considered the spread of HIV a legitimate state concern to justify regulation. 2. Increased Crime, Prostit~ttion, Rape, and Neighborhood Deterioration In LaRue, the Court relied upon testimony by law enforcement agents and state investigators that prostitution occurring in and around strip clubs h~volved some of the female dancers employed at the clubs.24s The city also presented testimony that indecent exposure to young girls, attempted rape, rape, and assaults on police officers took place on or inunediately adjacent to such premises.249 Numerous studies have been conducted in cities throughout the United States to determine the relationship between fl~creased crime rates and decreasfl~g property values, including Austin, Texas; Orange County, Florida; Dallas, Texas; Los Angeles, California; Tampa, Florida; and Palm Beach County, Florida.2~° The reports describe the methodolog3, and results of studies done between 1984 and 1985 in Los Angeles, California and Austin, Texas and are reasonably detailed.25~ The Austh~ study compared rates of sex-related crimes and other crimes in four study areas, all of which contained one or two adult bush~esses, to the · corresponding crime rates in control areas, which were said to be near the st-ady areas and similar in land use characteristics, but without adult entertainment establi.,.:hments.252 Generally the crime rates were found to be higher in areas containing adult establishments than in their correspondh~g control areas.2~3 Crime rates were higher for both sex-related and non-sex-related crimes. 254 248. See California v. l.aRue, 409 U.S. 109, 110 (1972)' 249. See id. at 111. 250. See. Broward County Memorandum, supra note 233; see also T-Marc, Inc. v. Pinellas County, 804 F. Supp. 1500, 1503 (M.D. Fla..1992) (tisting cities that have conducted studies of secondary effects of adult unturtainmunt). 251. See Randy D. Fisher, Evidence for the Harms of Adult Entertainment: A Critical Evalualion 11 (1993) (unpublished ,'eport) (on file with author). 252. See id. 253. See id. 254. See id.; see dso Borrago v. Cily of Louisville, 456 F. Supp. 30, 31 (W.D. Ky. 1978) (upholding an ordinance based on studies on increased crime and undesirable clientele 4~18 I. LAND LISE & ENI.'TL. L. [Vol. 12:2 An independent report founci that the number of adult busi- nesses in the Hollywood area of Los Angeles fl~creased from eleven in 1969 to eighty-eight in 1975, a 700% increase.~55 During the same t/me period, reports homicide, rape, m~d burglary256 increased 7.6% in Hollywood and 4.2% citywide, indicath~g a low rate in the h~crease of serious crime in both areas.2s? The report notes that arrests for prostitution, drug offenses, gambling violations, and various misdemeanors258 increased dramatically to ~5.4% in the Hollywood area compared to a modest increase city- wide of 3.2%. Additionally, a New York City study shows that the most severe crime, prostitution, and urban blight occur when adult businesses concentrate in one particular area of a city.~S0 Although most of these studies show a correlation between the location of adult bush~esses and an h'~crease in crime, the studies' reliability and accuracy have been questioned.~60 However, surveys of police officers and comments of citizens al: public hearings have consistently expressed the view that the presence of adult businesses have had a negative effect.2~ Two types of studies have been conducted to determine whether the presence of adult entertainment affects property values.262 The most common study approach has been to solicit the opinions of real estate appraisers, lenders, or property owners about the effect of adult businesses on nearby residential or commercial properties.~6~ Results of these surveys show that the maiority of people surveyed would not buy a house or open a around adult establishments). But see California v. LaRue, 409 U.S. 109, 131-33 (1972) (Douglas, J., dissenting) (rejecting the causal cormection between sex-related entertainment and criminal activity). 255. See Fisher, supra note 251, at 10. 256. See id. at 11. 257. See id. 258. See id. 259, See Rad~ael Simon, Nole, New York City's Restrictive Zoning of Adult BuSinesses: A Coustitt~tional Analysis, 23 FORDIt^M L. RI~V. 187, 205 (1995) (referring Io this occurrence as Ihe'°combat zone effect"). 260. See Fisher, supra note 251, at 11. 261. See id.; see also Simon, supnt note 259, at 187, 190. 262. See Fisher, sttpra note 251, at 15; see also Simon, supra note 259, at 206. 263. See Fisher, supra note 251, at 15. Spring '1997] ZONING AD t.ll.T' EN'iI'ERTA!NMENT 419 business near'an adult business.264 Additionally, real estate professionals and residents generally agree that adult entertainment lowers prop,'rt3, values "from moderate to substantial amounts." 265 Los Angeles and Indianapolis used a different study ap- proach.266 These studies examh~ed property values through Multi- ple Listing data or property value assessments and compared data for areas containing adult entertainment with control areas that contained no such establishments.267 Many appraisers and real estate agents surveyed responded that the effects on property values depend upon the t3,;pe of adult business, how it was run, and how it was marketed.268 B. The Relationship Between Adverse Effects and Location of Adult Businesses :' The findings of these studies indicate that when compared to other commercial uses, increased crime rates and lower property values are more likely to be found near adult enterta~ment busi- nesses.269 Some studies found that illegal and lewd activities often occurred in adult bookstores and theaters.270 Other studies docu- ment neighborhood deterioration associated with adult entertafl~- ment establishments.27~ Although local governments have relied on these studies to support the passage of restrictive zoi~ng ordinances, researchers disagree over whether a relationship exists between adult enter- tainment businesses and adverse secondary effects. The National Coalit-ion Against Pornography, Inc. has distributed leaflets and fact sheets that indicate a link between sexually explicit material 2¢kl. see id. 265. Id. 266. See id. at 16. 207, See id. 268. See id. at 15. 269..See Broward Counly Memorandum, supra note 233. 270. See PROS£CUTIVi.: SUMMARY, supn~ note Z32 (reporting that agents witnessed sexual intercourse° oral copulation, sodomy and fellatio). 271. See Tampa Transcript, supra hole 1, at 9, 21-22. 420 ]. LAND USE & ENVTL. L. [Vol. 12:2 and crime, child molestation raI' ;, and rape.272 However, following the Final Report of the Attorney General's Commission on Pornography (~'Ieese Commission Report),2?3 numerous researchers independently published contrary findh~gs that no statistical data existed to support a relationship behYeen violent or nonviolent sexually explicit material and rape, molestation, prostih.~tion, and other crimes.274 Nevertheless, whether secondary effects are attributable to adult entertainment businesses conth~ues to concern residents of communities located near these businesses. 275 These concerns, instead of the abstract statistical data found by researchers, are the focus of zoning boards and local govermnents. 276 Although the passage of rest'rictive zonh~g ordinances must be supported by sufficient factual findings, the Supreme Court has held that this evidence may be borrowed from other cities where the secondary effects exist.277 Also, "[al city need not wait for urban deterioration to occur before acting to remedy it" by way of a zoning ordinance that restricts location of adult entertainment businesses, and a city may rely upon experiences of other cities in enacting such restrictions as long as reliance is reasonable.27~ Adult entertainment produces negative secondary effects, as is evidenced by numerous stndies. Potential effects include: the spread of HIV, higher crime, higher rates of prostitution and rape, and neighborhood deterioration, including decreased property val- ues. In the next section, this Com~nent explores methods of reduc- ing these harmful effects. 272. See NA'rlON^L COAI. ITION AGAINST POI~NOGR^I'H¥, FACT SI IE£T (1990). 273. AWORNEY GENERAL'S COMM'N ON POR~RAPi-~, U.S. DEffT OF JU~2~, FINAl. RE~I~'r 215 (1986) [here, nailer ~ESE COMM'~ ~lt]. 274. See MAlaCCA P,~.~.Y, SENSE AND C~O~H~P: THE VAN~ OF BONFIR~ 18-23 (Americans for Conslitulional Freedom & Freedom to Read Foundation 1991). 275. See Minules of Ihe Bd. of Counly Corem'rs, Broward County, Fla. 2-7 (July 13, 1993) (idenlifying 20 citizens who voiced opinions concer~ng adult entertainment establishments in lheir neighborhoods); sec also It's Showtime, supra note 222, at 22. 276. See II's Showltme, supra note 222, at 22. See ~nemlly Tampa Transcript, supra note 1. 277. See City of Renlon v. Playtime Thealres, Inc., 475 U.S. 41, 51 (1986). 278. 15192 Thirleen Mile Rd., Inc. v. City of Warren, 626 F. Supp 803, 8~ (E.D. Mich. 1985); see aisoGenusa v. Cily of Peoria, 619 F.2d 1203, 1211 (7th Cir. 1980) (finding that "a city need not awail deterioration in ortler 1o act"). Spri;~g ~1997] ZONING ADULT £NTERTAINMENT 421 IV. POSSIBLE SOLUTIONS TO COMBAT SECONDARY EFFECTS Communities have used different strategies to reduce the harm- ful effects resulting from the presence of adult entertaimnent. Many co~mnunities use zoning as a tool to rid their residential area of these harnfful secondary effects.279 When zoning out the adult entertaim~ent establishment is not a viable avenue, other alternatives may be considered, such as expanding th.e scope of prostit-ution statutes280 or narrowing the scope of materials protected by the First Amendment.2~ A. Is Zoning the Solution? In 1986, President Reagan created the Meese Commission speci- fically to study the impact of pornography on society.2~2 In review- h~g the use of zoning schemes to restrict adult entertainment, the commission expressed concern that "zoning may be a way for those with political power to shunt the establishments they do not want in their own neighborhoods h~to the neighborhoods of those with less wealth and less polit4cal Fower. 283 St~'iking a balance between zol~g and freedom of speech has proven to be a difficult and imprecise judicial exercise.28~ While the courts have not provided defil~it-ive guidance on all the legal questions, municipalities desiring to combat the secondary effects of adult uses have received sufficient judicial direction to enable passage of zoning legislation safe from judicial veto.285 Some municipalities have attempted to disperse adult uses by implementing minimum distance requirements between adult establishments and other land uses such as residences, churches, schools, and parks.2s6 These 279.' See discussion infra Part I V.A. 280. See. discussio,~ in. bw Part IV.B.I. 281. $c'¢ discussion i,~fra Part 1¥.B.2. 282. See MEESE COMM'N REI'ORT, sttprtl 110111 273, at 390. 283. hL 2S4. See David J. Christiansen, Zoni,g and the First Amendment Rights of Adult Euterlai,meut, 22 V^I.. U. L. RF.V. 695, 709 (1988) (discussing the judicial treatment of the practice of zoning out adult businesses). 285. See. City of Renlon v. Playtime Theatres, Inc., 475 U.S. 41, 48-50 1986). 286. Sec. Young v. American Mini Theatres, Inc., 427 U.S. 50, 52 (1976) (upholding a zoning ordinance tirol restricted the location ol adult use businesses to prohibit the 422 ]. LAND USE & ENkTL. L. [Vol. 12:2 municipalities concenh'ate adult establishments in industrial, light industrial, or commercial zones using zoning ordinances.287 The first major area of concern in promulgating adult use zoning ordinances invoh, es development of the factual record.28~ The factual record must be built by a municipality prior to the passage of any restrictive zoning legislation.2S9 The record should include two components: ('1) studies indicating that a lfl~k exists between adult uses and the problems associated with those adult uses; and (2) studies indicating that the method chosen, whether dispersal or concentration, addresses those undesirable secondary effects.29° Municipalities have two alternatives for building a factual record that will support an adult use ordinance, both of which must withstand judicial scrutiny. First, a municipality can hire experts in demography, crime, traffic, housing, real estate valuation, and commercial development to supplement the record.291 Urffortunately, this option is very costly. Alternatively, a city can borrow from factual records of other cities that have enacted similar legislation.292 If a municipality chooses to borrow from other cities' experiences in building its factual record, the statement of purpose for the ordinance should clearly identify that a nexus exists between adult uses and certain secondary effects, the particular location of adult businesses within 1,000 feet of each other and 500 feet of residential Zone); see also Northend Cinema, Inc. v. City of Seattle, 585 P.2d 1153, 1156 (Wash. 1978) (upholding a zoning ordinance that restricted the location of adult use businesses'to a specifi~t area of the city); see also City o]' Rento,, 475 U.S. at 43, 52 (upholding a zoning ordinance that prohibited the location of adult use businesses from within 1,000 feet of a residential zone, church, park, or school); Giarmi P. Servodidio, The Devaluation of Nonobscene Eroticism as a £orm of £xpression Protected By the First Amendment, 67 TtJL. L. REV. 1231, 1235-37 (1993). Many jurisdictions have found alternatives to get around the Miller standard, thus leading to inconsistent results. See id. 287. See Ca':.~! of Renton, 475 U.S. at ,16, 52 (upholding a zoning ordinance that restricted the location of the adult usc businesses to industrial and commercial zones). 288. See, e.g., Northend Cinema, Inc. v. City of Seattle, 585 P. 2d 1153 (Wash. 1978). 289. Sc'e Gly of Renlon, 475 U.S. at 51-52. 290. 5e¢ id. 291. See id. 292, See id. at 50-52. A municipality does not need to conduct new studies and build an i,dependent factual record "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Id. at 51-52. " bpring 1997] ZO?,'JNG ADUi. T ENTERTAINMENT .,..3 secondary effects of adult uses that the ordh~ance seeks to address, and a legislative finding that the ordfl~ance in question addresses those secondary effects.293 In addition to a statement of purpose, the factual record should also contain, when feasible, factual findings that support the nexus between the secondary effects,294 and the method chosen to combat those secondary effects.295 This additional i~xformation allows a court to determine that the legislative body understood the secondary effects and made an intelligent determination that the ordinance was reasonably believed to be an effective method of combating the existfl~g secondary effects. 296 Conclusively, restrictive zoning of adult use establishments may help curtail adverse secondary effects that adult businesses bring fl'~to commm~ties. However, the requirements of Renton297 must be considered to ensure that tl~e constitutional rights of owners and patrons are not violated. B. Alternative Methods of Sotving the Problems of Secondary Effects 1. Expand the scope of prostitutio~ statutes 293. see itt. at 50-52. The language i,~ Re, ton and subsequent decisions indicates that a municipality's failure to address the gover,~mental interest issue can be fatal to the con- stitutionality of the ordinance. For example, Fort Lauderdale p~sed a city ordinance that s~ated as its purpose the desire "to preserve public peace and good order" and maintain property values in areas around ,'esidential sections, parks, and schools. The district court held that the city failed to provide evidence of a documented history of concern about the undesirable effect of adult entertainment on the conununity. International Food & Beverage $~tems v. City of Fort Lau&rdale, 614 F. Supp. 1517, 1520 (S.D. Fla. 1985); see Krueger v. City of Pensacola, 759 F.2d 851,852 (11 th Cir. 1985). 294. These findings should i,~clude testimo,~y or reports from urban planners, demo- grapl~erso crime experts, traffic consultants, and experts in housing, real estate valuation, commercial development, and similar evidence. See City of Renton, 475 U.S. at 51 (stating that a city may rely on the experiences of other cities and on the evidence summarized irt Northe,d Ct,cma, htc. v. City of Seattle, 585 P.2d 1153 (Wash. 1978)}. 295. See City of Rc, to,, 475 U.S. at 52. 296. See Northend Cinema, Inc. v. City of Seattle, 585 P.2d 1153, 1159 (Wash. 1978}. 297. The zoning ordinance must provide sufficient evidence of adverse secondary effects, thc definitions must be narrowly tailored and a reasonably available alternative mea,s ~:1' communications. See City of Re, lo,, 475 U.S. at 52-54. 424 ]. LAND USE & ENVTL. L. [Vol. 12:2 Prostit'ution is tl~e criminal act of exchangh~g sex for money; an offense that is illegal in most states. 298 The institution of prostitu- t-ion allows males unconditional sexual access to females, limited only by their ability to pay.2~)9 Various studies conducted on adult bookstores, peep shows, strip clubs, pornographic modeling studios, and lingerie modelh~g shops conclude that many of these establishments offer sex for money.300 Increased prostitution and littering h'~ nearby neighborhoods are among the secondary effects at~'ibutable to these adult businesses30~ and are the primary contributors to conu~unit3., complah~ts about these businesses.3o2 One way to assuage the secondary effects of adult businesses would be to include pornographic filmmakers and owners of adult businesses under the scope of prostitution statutes, thus penally, lng any a_ctivity i.n which sex is exchanged for money. Any owner, fihnmaker, or photographer who does not encourage or assist in the exchange of sex for money would not fall within the scope of 298.. Nevada has made an exception for legalized prostitution. "It is unlawful for any person to engage in prostitution or solicitation lhereof, except in a house of prostitution." N£v. Rr.v. STAT. § 201.354 (1995). 299. See Evelina Giobbe, Prostitution: Buying the Right to Rape, in R^Pi~ ^l~r)SEXUAL ASSAUI.'i' II1: A R~:.SI/ARCi ! H:\.~DllOOK 143 (Ann Wolbert Burgess ed., 199'1). Prostitution is "[e]ngaging in or agreeing or offering to engage in sexual conduct with another person trader a fee arrangement with that person or any other person." BLACK'S LAW DICIIONARY 1222 (6th ed. 1990). Although prostitutes may be either male or female, this Comment refers only to the majority of the situalions in which the prostitute is female. This Conu~ent also acknowledges that some pornographic filmmakers are female. However, an examination of these situalions is beyond the scope of this Cotnment. 300. See generally supra note 235-2.15 and accompanying text. A typical work day for pornographic models is 12 lo 14 hours long, and models can expect to engage in at least two sex scenes a day. See MEESE COI~tM'N REI~)RT, s~tpra note 273, at 871. Further, the Meese Commission concluded that "it seems abundantly clear from the facts before us that ihe bulk of commercial pornographic mcxieling, that is all performances which include actual sexual intercourse, quite simply is a from of prostitution." Id. at 890; see PROSECU'I'IVE SUMM^RY, supra note 232 (reporting that agents witnessed sexual intercourse, oral copulation, sodomy and fellalio); see also LIhlDA LOV£LACE & MICItAEL Mr,.'GI{AI}Y, ORI}EAL (1980) (the autobiography of a pornographic star who describes the abuse she suffered and the prostitution with which she engaged while filming these types of m~)vies). 301. See Tampa Transcript, supra hole 1, at 21-22. Undercover agents have seen condoms lying on the ground in parking lots of .some adult entertainment establishments. ,~e PROSI.:.CU'I'IVE SUMIvlARY, supra note 232, al 235. 302. 5:e Tampa Transcript, supra note 1, al 21-22. Spring 1997} ZO~..,'!."TG ADLIL'I' ENTERTAINMENT 425 these proposed prostitution statutes. As seen h~ numerous states, many patrons engage in sexual activity or lewd acts in adult establishments.3°3 These establishments would be the primary target of expanded prostitution statutes. Decreasing the number of adult establishments that promote and foster sexual activity and lewd acts appears to be the ultimate goal of most local governments which enact restrictive zoning ordh'tances.30'4 In contrast, this alternative is not intended to dissolve all adult establishments but aims to decrease physical sexual actions.3°s Thus, these improved statutes would merely exist to eliminate the sexual activity and lewd acts that occur at some adult establishments. If adult establishment owners and pornographic filmmakers were held criminally liable for the activities that occur in the proximity of their establishments then perhaps a heightened level of awareness and prevention of prostitution would develop h~ this h~dustry and the neighborhoods in which these establishments are located. Thus, under current prostitution statutes, the owner is able ignore illegal money transactions between the patrons and dancers. Broader prostitution statutes would lessen this purposeful ignorance by imposing greater liabilit3, upon owners, which in turn would lessen some secondary effects sternming from adult entertainment establishments, most notably prostitution and the spread of HIV and AIDS. In California, some pornographers have been successfully prosecuted under prostitution statutes.306 However, the case of People v. Freemm~3°? slowed such prosecution by overtumh'~g precedent which held to the contrary.3°8 The court found that 303. Sec discussion supra Part III.A.I. 304. Sa~ City of Renton v. Playtime Theatres, Inc., 475 U.S. at 41, 52-54 (1986). 305. See itl. 306. See People ex tel. Van de Kamp v. Anmrican Art Enter., Inc., 75 Cal. App. 3d 52.,'t {Cal. Ct. App. 1977); People v. i:ixler, 56 Cai. App. 3d 321 {Cal. Ct. App. 1976); People v. Zeihm, 40 Cal. App. 3d 1085 (Cal. Ct. App. '197..'1). 307. 758 P.2d '1128 {Cal. 1988) (overturning conviction of an adult business owner charged with procuring another person for Iht: purpose of prostitution). 308. See id. at 1133 n.6 ("'F~ the c. xtt. nt that People v. Fixler, People ex roi. Van de Kamp v. A,~erictm Art Enterprtses, htc., and i~eolde v. Zcihm h{~ld that the payment of wages to an actor ch' ~{1{:1 wh{~ pe,'lt~rms a :i{:xui~l act in filming or photographing for publication 426 I. LAND UtE" _.,. . c.; EN V'FL. L. [Vol. 1'~"~ payi~],'o actors ai~d ach'esses to enga~e in "various sexually explicit acts, including sexual intercourse, oral copulation and sodomy" did not come under the statutory definition of prostitution.309 The court further stated that to constitute prostitution, "the money or other consideration must be paid for fl~e purpose of sexual arousal or gratification .... 3~0 The Freeman court found "no evidence that defendant paid the achng fees for the purpose of sexual arousal or gra ti fica tion .... ,, 3 ~ ~ Prior to Freeman, the Fixler court concluded that the prosecution of owners, filmmakers, and photographers was based on conduct and was not aimed at prohibiting any communication of ideas.3~2 The cour~ in State v. Kravitz,3~ upheld the conviction of the owner of an adult entertainment theater for solicith'~g a male and a female to engage in sex acts before an audience.3~ Likewise, in People v. Mmta,.~'~s the defendant was convicted for pimping and panderfl'tg by hiring women to have sex with "members of the audience.'~6 As in these cases, prosecution of adult bush'~e$$ owners, pornographic filmmakers, and pornographic photographers under prostitution statutes proves to be a practical approach for lessening some of the secondary effects associated with adult entertainment establishments because the difficult problem of First Amendment line-drawh~g is avoided. 2. Modi~d the application of Miller v. Calfforl~a The Supreme Court has held that obscenity does not come under the umbrella of the First ^mendment as protected speech or conduct.3~? Although questions of the soundness of the Miller test have produced considerable debate, its practical result has been to _ constitutes prostitution regardless of the obscenity of the film or publication so as to suppo,-t a prosecution for pandering.., they are disapproved."). 309. hi. at 1129, 1135. 3111. hi. at 1131. 311. hi. 3'12. See People v. Fixler, 56 Cal. App. 3d 321,325 (Cal. Ct. App. 1976). 313. 511 P.2d 844 (Or. Ct. App. 1973). 31.1.See id. at 845-46. 315. 157 Cal. App. 3d 309 (Cal. Ct. ^pp. 1984). 3'16.hi. at 313-16. 317. See supra note 98 a~d accompanying text. Spring l -~97] ZO.\'ING ADUL'~' ENTERTAINMENT ,t27 narrowly define the category of materials subject to prohibition as those depicting "hard-core" sexual conduct.3~s In Je~kins, ti're Court unanimously reversed an obscenity convic- tion based on t l~e motion picture Carnal KnoWledge?9 This opinion signaled the Court's willingness to review the content of allegedly obscene material to limit a jury's unbridled discretion h~ determining wl~at is patently offensive.320 Thus, the Jenkins Court reemphasized that under Miller, oixly the most explicit, thoroughly hard-core materials that lack any redeeming value whatsoever warrant constitutional regulation.32~ As a result, only a fraction of the broad range of pornographic materials available to the public could be successfully attacked under obscenity law. Certain types of pornographic material showing acts of besti- ality,322 flagellation,323 sadomasochism and extreme violenceTM do not pose much of a problem for courts when determixxing whether the material is obscene. However, other types of sexually explicit material have benefited from the protection of the First Amendment, such as dial-a-porn messages,32s striptease acts,326 and crudely drawn depictions of women.327 Perhaps this gap is where the legal system fails to prevent secondary effects caused by 'adult businesses. Because obscenity etfforcement has never been sufficiently consistent to force pornography syndicates out of bUsiness or back underground, video dealers are misled into believing or at least acting as if they believe that hard-core adult business is legal. The 318. Jenkins v. Georgia, 418 U.S. 153, 160 (1974). 319. See id. at 155. 320. See id. at 160. 321. See itl. at 161. 322. 5e¢ United Slales v. Guillielmi, 819 F.2d 451,453-54 (.~!h Cir. 1987). 323. See. Ward v. Illinois° 431 U.S. 767, 771-72 (1977). Flagellation is delined as "a whipping ob flogging° especi,~ily . . . for sexual stimulation." WL:I~S'I'ER'S NEW WORLD CO~.I.~'-'.Gi.: DJ¢7~'ION^~¥ 512 (3d ed. 1996). 324. See United Slates v. $chultz, 97¢} F.2d 960 (Slh Cir. 1992). 325. See Sable Communications, l~c. v. FCC, 492 U.S. 115 (1989). 326. See Barnes v. Glen Theah'e, Inc.. 501 U.S. 560, 581 (Sourer, J.0 concurring); see also l~4iller v. Civil City of South Bend, 904 1:.2d '1(I,',11, 1094 (7ih (:ir. 1990). 327. See City ~f St. George v. Turner° 813 P.2d 1188, 1192 (Utah Ct. App. 1991), aj. Td, 826 P.2d 651 (Utah 1991). 428 1. LAND t. ISE & ENWFL. L. [Vol. 12:2 Meese Commission criticized both federal and local prosecutors for letting the problem get out of conh'ol and urged federal and local enforcement as the solution to the problem of hard-core pornography.328 If United States attorneys and state and local prosecutors bring strong cases under present laws, perhaps the entire hard-core adult industry will be shown as regularly engaging in the illegal traffick- ing of obscenity. In a nation-wide survey of law enforcement efforts after Miller, the st-udy concluded that obscenity laws have only a minhnal effect on the conduct of prosecutors and pornographers.329 More than half of the prosecutors surveyed said Miller has not affected the odds of conviction, 29% said Miller has helped the prosecution, and 17% reported it has helped defendants.33° The study found that the public had become more tolerant of pornographic material and concluded that this "liberalization of attitudes has in turn ixffluenced prosecutors to handle ox'dy cases involvfl'~g particularly hard core materials.'33~ The Supreme Court consistently and forcefully has recognized that the "crass commercial exploitation of sex" is a matter of grave concern and a legitimate target of state and federal criminal and civil laws and treaties.332 Following Miller, several scholars and state officials have suggested that federal and state legislatures adopt a per se definition of obscerdty which would address the problems encountered in applying Miller.333 For example, one legal commentator, Bruce Taylor, suggests the proposed statute or ordinance should state: "Hard-core pornography means any material or performance that explicitly depicts ultimate sexual acts, i.ncluding vaginal or anal intercourse, fellatio, cunnilfl~gus, 328. See MEi:.SE COMM'N REPORT, sttpra note 273, at 366-75. 329. See i'-[arold Leventhal, Project° Au Empirical htquiry into the Effects of Miller v. California on the Control oJ'Obsreuity, 52 N.Y.U.L. P~v. 810, 928 (1977). 33{}. See ut. at 900. 331. Itl. at 898. 332. Paris Adult Theatre i v. Slat{m, 413 U.S. 49, 63 (1973). 333. Bruce A. Taylor, Pornograld~y and the First Amendment, in CRIMINAL Jusnc£ R£FOI~M 156-57 (1983); see also William W. Milligan, Obscenity: Malum in Se or Only in Coutext? The Supreme Court's I.o,g Ordeal, 7 Ct\l'. U. L. REV. 631,643-45 (1978). " '" .... ;'~LILTENTERTAINMENT 429 Spring '1997] ZO, x.,\.~., ,.~ . analingus, and masturbation, where penetration, manipulation, or ejaculation of the genitals is cle;:rly visible.''334 This definition would limit live performances, films, and photo- graphs that depict such acts. Since Miller was fl~tended to limit the production of hard-core pornography, Taylor asserts that this per se definition of hard-core pornography will put the adult establishment owners, performers, pornographic filmmakers, pornographic photographers, nude models, and nude actors on notice regarding what constih.~tes illegal obscene material.33s Ultimately, if these persons are aware of the potential criminal and civil sanctions for producing or participating i.n the production of hard-core pornography, then the amount and substance of this material should decrease.336 A decrease in the production of hard- core pornography would lessen the supply and the associated secondary effects attributed to this ty. pe of material. For-example, a live sex show at an adult establishment would fall within the definition of hard-core pornography, thus losing its First Amendment protection.337 Without First Amendment protection, the state and federal obscenity statutes would apply to the material, its producers, and its performers. This per se rule would uniformly defflae obscene material under Miller and ultimately support the conviction of those adult business owners, filmmakers, and photographers that hire women (or men) to depict or perform sexual acts for the entertainment or arousal of patrons.33s Thus, objectively defflxing the scope of the Miller test would make owners more likely to temper the borderline hard-core sexual practices that they permit in their establishments because legal vagueness in the obscenity standard would be removed, making legal results more 334. Bruce A. Taylor, Hm'd-Core Por, ogrnphy: A Proposal for a Per Se Rub:, 21 U..MJOI. J. L. P,,I.:FORM 255, 272 (1987). For a discussion of alternative definitions of pornography, see James i..indgren, Defining Pornography, 141 U. PA. L. RI.:V. 1153 (1993). 335. See Taylor, supra note 334, at 278-79. 336. See id. a t 281. 337. See William A. Stann~e)'er, Obscene Evils v. Obscure Tntths: Some Notes on First Priuciph:s, 7 CAI'. U. L. REV. 647, 658-61 (1978). 331,;. See Taylor, s,epra note 33,1, at 281. 430 /. LAND t/SE & ENVTL. L. [Vol. 12:2 consistent.339 In tur~, this r.~.'sult would lessen secondary effects associated with adult entertainment establishments340 in a quite similar way as the alternative advocating the expansion of prostitution statutes.34t C. I.&qlich Soh. ltion is Best? The above solutions offer unique approaches to combating the secondary effects of adult establishments. Local restrictive zoning ordhaances target the location, concentration, and general operations of adult establishments. The expansion of prostitution statutes targets the owners, filmmakers, and photographers who arrange and encourage the exchange of sex for money at their establishments. The modification of Miller would target the actual and depicted sexual acts in photographs and pornographic films. To combat the secondary effects of the adult establislmaents, one of these solutions should not be chosen over any other. However, if these solutiol~ are utilized together, society will be armed with the proper ammunition to combat the adverse secondary effects of adult establishments. Shace each solution offers a different method of attack to combat adverse secondary effects, these solutions should be used in conjunction with one another. Therefore, this Comment advocates that: (1) local governments continue to use zoning ordinances to prevent the effects of secondary effects; (2) state legislatures and local governments enact prostitution statutes that hold all parties involved in the transaction criminally liable; and (3) judiciary entities either modify the application of Miller or establish a per se defh~ition of obscenity. V. CONCLUSION ... :::. '~¥.: '3: ."~:. .'i :. :.: 339. 5ce itt. at 278; see also P. Heath B,'ockwell, Note, Grappling with Miller v. California: The Search ]bt tm Alternative Approach to Regulating Obscenity, 24 CUMB. L. RI-:V. 131,136-37 (1993-94). The Miller tesl's vague sti~ndards are inherent flaws, as Miller has had little effect tm prosecutions of obscenity. 'i'he Miller test has I.~en inconsistently applied by law enforcemenl and jurors, yielding mixcd results across the country. See id.; see also $ervodidio, supra note 286, at 1235. 340. Set' Brockweil, supra n~te 339, at '141. 341. Spt.~ifically, both ailurnatives would aim to lessen prostitution and spread of HIV and AIDS. Spring 1997] ZONING Al ~ LILT ENTE. RTAIN^';ENT 431 ~l'he adult entertainment i~adustry.continues to expand and gain support, resulting in the continuflag presence of these businesses in our society and communities. Although many legal principles have been asserted to prevent these businesses from visibly operating in cities throughout the United States, most have failed to accomplish this goal. Supreme Court decisions have extended some First Amendment protection to these businesses and have also provided other measures that create difficulty for local governments in com- bating the adverse secondary effects attributed to these establish- ments. Zoning is a valid and useful method of ridding residential communities of these businesses and the secondary effects that are associated with them, but governmental authorities, judicial bodies, and concerned citizens need to combfl'~e flaeir efforts and resources to successfully win the war against these businesses.