City Of Huntington Beach, California
Proposed Anti-Nudity Ordinance
AUGUST, 2000

ORDINANCE NO. _________________

AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
AMENDING THE HUNTINGTON BEACH MUNICIPAL [sic]
BY REPEALING CHAPTER 9.36 RELATING TO INDECENT EXPOSURE
AND ADDING CHAPTER 9.37 PERTAINING TO PUBLIC NUDITY
AND FINDING IN SUPPORT THEREOF

The City Council does hereby ordain as follows:

SECTION 1.  Findings. The following findings are hereby adopted in support of Chapter 9.37 and the amendments thereto. The findings shall not be codified.

Findings.

          The City Council takes legislative notice of the following studies which the City Council has a reasonable basis to believe are relevant to the experience of Huntington Beach, and which show that Sex Oriented Businesses cause secondary effects which degrade the areas of the city in which they are located [such as depreciation of property values and increase in vacancies in residential and commercial areas], cause a blighting effect on the city [such as low level maintenance of commercial premises and parking lots], interfere with residential property owners' enjoyment of their property as a result of increases in crime, litter, noise and vandalism when such property is located in the vicinity of the Sex Oriented Businesses and increase crime in general, and sex and drug-related crimes in particular, in the vicinity of the sex-oriented businesses: New York, New York, Department of City Planning (1994); Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington, Department of Construction and Land Use (1989); Austin, Texas, Office of Land Development Services (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana, Department of Metropolitan Development (1984); Houston, Texas, City Council Report (1983); Beaumont, Texas (1982); Minnesota Crime Prevention Center, Inc., Minneapolis (1980); Phoenix, Arizona (1979); Los Angeles, California, Department of City Planning (1977); Amarillo, Texas, Planning Department (1977); and Cleveland, Ohio (1977); Newport News, Virginia, (1996), the Times Square Study (1994). The City reasonably believes that these studies are relevant to the problems addressed by the City in enacting this Ordinance to reduce or eliminate the adverse secondary effects of sex-oriented businesses.

          In the City of Huntington Beach, the following secondary effects have been observed by the Police Department to have been generated by public nudity: Rioting has occurred after females exposed their breasts before a crowd in the Pier area of Huntington Beach. Their actions excited the crowd and triggered mob acts of violence and vandalism. Nudity in the public park has resulted in numerous arrests for violations of the California Penal Code related to public fornication and lewd acts. These crimes have occurred after public exposure of genitalia and in areas open to the general public. Citizen complaints have been received by the Police Department and the displays of public nudity have precluded families and their children from using public facilities for concerns of being exposed to sexual activity and nudity.

          The City Council also takes notice of the experiences of the City of Anaheim, California, with adult businesses in that City. The City of Anaheim has informed Huntington Beach about these experiences, which demonstrate that adult use businesses and nudity in public have extensive negative secondary effects. The City of Anaheim has obtained criminal convictions of patrons of adult use establishments for solicitation of acts of prostitution and violations of Anaheim's Municipal Code relating to sexual touching between patrons and performers. These violations typically involve nude or topless dancers who perform dances consisting of simulated sex acts or making sexual contacts with patrons in exchange for a fee. In Anaheim, ten persons were found to have been in violation of the anti-touching provisions of the Anaheim Municipal Code, those violations occurring inside the establishment where the nude performances were given. These cases arose out of nude dances. The City of Huntington Beach is aware of at least six male patrons who have pled guilty to committing acts of prostitution within the establishments were the nude performances were held.

          In adopting these findings in support of Chapter 5.70, the City Council is mindful of legal principles relating to the regulation of public nudity and sex-oriented businesses, and the City Council does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the United States and California Constitutions but instead desires to enact reasonable time, place and manner regulations that address the adverse secondary effects of sex-oriented businesses. The City Council has considered decisions of the United States Supreme Court regarding local regulation of public nudity and sex-oriented businesses, including but not limited to: City of Erie v. Pap's A.M. ("Kandyland"), 120 S.Ct. 11382 (2000); Barnes v. Glenn Theater, 501 U.S. 560, 111 S.Ct. 2456, 115L.Ed.2d 504 (1991); FW/PBS, Inc. v. Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); City of Renton v. Playtime Theatres, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); and Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); decisions of the United Stated [sic] Court of Appeals for the Ninth Circuit, including but not limited to: Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993), cert. denied 511 U.S. 1030 (1994); Kev, Inc. v. Kitsap County, 793 F.2d.1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied, 120 S.Ct. 1553, (2000); several California cases, including but not limited to: Tily B. v. City of Newport Beach, 69 Cal.App.4th 1 (1998); City of National City v. Wiener , 3 Cal.4th 832 (1993), cert. denied 510 U.S. 824; People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); and City of Vallejo v. Adult Books, 167 Cal.App.3d 1169 (1985), cert. denied 475 U.S. 1064 (1986); and other federal cases, including but not limited to: Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); Mitchell v. Commission on Adult Entertainment , 10 F.3d 123 (3rd Cir. 1993); Lakeland Lounge v. City of Jacksonville, 973 F.2d 1255 (5th Cir. 1992); International Eateries v. Broward County, 941 F.2d 1157 (11th Cir. 1991), cert. denied 503 U.S. 920 (1992); and Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986); and Nightclub Management v. City of Canon Falls, 2000 W.W. 432644 (D.Minn.).

          The City Council recognizes that the most recent U.S. Supreme Court decisions regarding local regulation of public nudity did not result in majority opinions. (City of Erie v. Pap's A.M. ("Kandyland"), 120 S.Ct. 1382 (2000); Barnes v. Glenn Theatre, 501 U.S. 560, 111 S.Ct. 2456. 115 L.Ed.2d 504 (1991).) The City Council recognizes the legal principle that when a fragmented Supreme Court decides a case and no single rationale enjoys the assent of five justices, the holding of the Court is the position taken by those members of the Court who concurred on the narrowest grounds. (Marks v. United States , 430 U.S. 188, 193 (1977); Tily B. v. City of Newport Beach, 69 Cal.App.4th 1, 16 (1998).) Based on this principle, the City Council takes legislative notice that the holding of the Court in Barnes is the opinion of Justice Souter, and the holding of the Court in Kandyland is the opinion of Justice O'Connor.

          The City Council finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said places open to the public be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of places open to the public can only be obtained through imposition of regulations regarding activities thereon; persons utilizing said places by appearing thereon without clothing and/or with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said places open to the public by causing many persons to leave and others not to use said places; that such conduct and behavior imposes an extraordinary unusual burden on City employees charged with the maintenance of said places and public safety personnel who are diverted from fulfilling other public health, safety and welfare obligations; that the presence of persons who are unclothed and exposed in places open to the public tend to discourage the use and enjoyment of said places, and creates a nuisance and is offensive to member of the public who wish to use and enjoy said places and who are unwillingly exposed to such conduct.

          The City Council recognizes the possible harmful effects on children and minors exposed to public nudity and to the effects of sex-oriented businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure. The City Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code 313 et seq.) The City Council further takes legislative notice of the cases that recognize that protection of minors from sexually explicit materials is a compelling government interest, including Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40 Cal.App.4th 1075 (1995).

          The City Council has also determined that locational criteria alone do not adequately protect the health, safety, and general welfare of the citizens of the City of Huntington Beach and that certain requirements with respect to public nudity and Sex Oriented Businesses are in the public interest. In addition to the findings in studies conducted in other cities regarding increases in crime rates and blighting of areas in which such businesses are located, the City Council also takes legislative notice of the facts recited in the case of Kev, Inc., v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986), Colacurcio v. City of Kent, 163 F.3d 5455 (9th Cir. 1998), and Tily B. v. City of Newport Beach (1999) 69 Cal.App.4th 1, regarding how live sex-oriented entertainment facilities result in secondary effects such as prostitution, drug dealing, and other law enforcement problems.

          The City Council takes note of the proliferation of sex-oriented material on the Internet and its availability as an alternative avenue of communication. The City Council also considers and relies on published decisions examining the proliferation of communications on the Internet. (Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 238 L.Ed.2d 874 (1997) [the principle channel through which many Americans now transmit and receive sexually explicit communication is the Internet]; Anheuser-Busch v. Schmoke, 101 F.3d 325, 329 (4th Cir. 1996), cert. denied 520 U.S. 1204 (1997) [the Fourth Circuit rejected a First Amendment challenge to a Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the Internet is one available channel of communication]; U.S. v. Hockings, 129 F.3d 1069 (9th Cir. 1997); see also U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied 519 U.S. 820 [recognizing the Internet as a medium for transmission of sexually explicit material in the context of obscenity prosecutions].) The emergence of the Internet brings with it a virtually unlimited additional source of sex-oriented sexual materials available to interested persons in every community with a mere keystroke. A sex-oriented business no longer has to be "actually" physically located in a city to be available in the community.

          It is not the intent of the City Council in enacting this Ordinance or any provision thereof to condone or legitimize the distribution of obscene material, and the City and it Council recognize that State law prohibits the distribution of obscene materials and expect and encourage law enforcement officials to enforce State obscenity statutes against such illegal activities in the City of Huntington Beach.

          The City Council does not intend to regulate in any area preempted by California law, including but not limited to, regulation of obscene speech.

          Nothing in this Ordinance is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof.

SECTION 2.   The Huntington Beach Municipal Code is hereby amended by deleting Chapter 9.36 thereof.

SECTION 3.   The Huntington Beach Municipal Code is hereby amended by adding Section [sic] 9.37 pertaining to public nudity.

Chapter 9.37

PUBLIC NUDITY

Sections:
9.37.010 Intent and Purpose
9.37.020 Prohibition related to Parks, Playgrounds, and Beaches
9.37.030 Prohibition related to Place Open to the Public or Open to Public View.
9.37.040 Persons as Accessories
9.37.050 Exceptions
9.37.060 Violations, Penalties and Enforcement.


9.37.010 Intent and Purpose.    The intent and purpose of this chapter is to guarantee that places open to the public in the City of Huntington Beach, including parks, playgrounds, and beaches owned and maintained by the City of Huntington Beach are operated and maintained for the use, benefit, recreation, and enjoyment of all citizens and residents of the City as well as to eliminate, to the greatest extent possible, the secondary effects associated with the presentation of nudity in sex oriented businesses.

9.337.020 Prohibition related to Parks, Playgrounds, and Beaches.   It shall be unlawful for any person to appear, bathe, sunbathe, walk or be on any public park, playground, beach or in the water adjacent thereto, or on any private property open to to public view from any public beach, playground, park, public place or public right-of-way in such a manner as to knowingly and intentionally:

(a)Expose his or her genitals, vulva, anus, pubic hair, perineum, or cleft of the buttocks;

(b)Expose the nipple of either female breast and/or areola except as necessary while engaging in the breast feeding of an infant under the age of two years old.

(c) Expose any device, costume or covering which gives the appearance of or simulates the genitals, vulva, anus, pubic hair, perineum, cleft of the buttocks, or nipple and/or areola of the female breast.

9.37.030 Prohibition related to Place Open to the Public or Open to Public View.   It shall be unlawful for any person to appear, serve food, drink, perform walk or be in any place open to the public or open to public view in such a manner so as to knowingly and intentionally:

(a)Expose his or her genitals, vulva, anus, pubic hair, perineum, or cleft of the buttocks;

(b)Expose the nipple of either female breast and/or areola except as necessary while engaging in the breast feeding of an infant under the age of two years old.

(c) Expose any device, costume or covering which gives the appearance of or simulates the genitals, vulva, anus, pubic hair, perineum, cleft of the buttocks, or nipple and/or areola of the female breast.

9.37.040 Persons as Accessories.  It shall be a violation of this Chapter for any principal, including but not limited to any owner, manager, or person with managerial or supervisory control, to permit, procure, counsel or assist any agent of that principal, including but not limited to an employee or independent contractor, to violate any provision of this Chapter.

9.37.050 Exceptions.   This chapter shall not apply to children under the age of ten years.

9.37.060 Violations, Penalties and Enforcement .   Any violation of this chapter shall be punishable by:

(a)Administrative Citation.   Violation of this Chapter is subject to the issuance of an administrative citation under the provisions of Chapter 1.18 of this Code;

(b)Civil Action.   The City Attorney may institute an action in any court of competent jurisdiction, including an action to abate a nuisance, to restrain, enjoin, or abate the condition(s) found to be in violation of this [sic] provisions of this Chapter, as provided by law;

(c)It shall be a violation of this Chapter for any principal, including but not limited to any owner, manager, or person with managerial or supervisory control, to permit, procure, counsel or assist any agent of that principal, including but not limited to an employee or independent contractor, to violate any provision of this Chapter.

(d)Any Sex Oriented Business operated, conducted, or maintained contrary to the provisions of this chapter shall be, and the same is hereby declared to be, unlawful and a public nuisance.

SECTION 4.   This ordinance shall become effective 30 days after its adoption.

PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting held on the _________ day of ________________, 2000.


                                                                     ____________________________
                                                                                          Mayor
ATTEST:

__________________________                 APPROVED AS TO FORM:
           City Clerk
                                                                     ____________________________
                                                                                     City Attorney
REVIEWED AND APPROVED
                                                                     INITIATED AND APPROVED:
__________________________
           City Administrator                              ____________________________
                                                                                     Police Chief

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