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HomeMy WebLinkAboutG82-95 (2) Ordinance No. G82-95 AN ORDINANCE AMENDING CHAPTER 19, ENTITLED "ZONING" OF THE ELGIN MUNICIPAL CODE, 1976, AS AMENDED, TO REGULATE SEXUALLY ORIENTED BUSINESSES WHEREAS, written application has been made to amend the zoning ordinance to regulate sexually oriented businesses; and WHEREAS, the Planning and Development Commission conducted a public hearing concerning the proposed amendment after due notice in the manner provided by law; and WHEREAS, the Planning and Development Commission has submitted its written findings and recommendation that the requested amendment be granted; and WHEREAS, the City Council of the City of Elgin, Illinois, concurs in the findings and recommendations of the Planning and Development Commission; and WHEREAS, the Minnesota Attorney General, in a report dated 6 June 1989, entitled "Report of the Attorney Generals ' Working Group on the Regulation of Sexually Oriented Businesses" reviewed various studies conducted throughout the nation regarding the impact of adult uses, including the following: 1 . A 1980 study completed by the Minneapolis Crime Prevention Center which determined that there was a strong relationship between sexually oriented businesses and the crime rates including robbery, burglary, rape, and assault; and 2 . A 1984 study conducted by the City of Indianapolis, Indiana, titled "Adult Entertainment Business in Indianapolis" found that areas where sexually oriented businesses are located had higher crime rates, including a seventy-seven percent higher crime rate for sex related crimes, including rape, indecent exposure and child molestation, than similar areas where no sexually oriented businesses were located; and 3 . A 1979 study prepared by the Planning Department of the City of Phoenix, Arizona, titled "Relation of Criminal Activity and Adult Businesses" showed that arrests for sexual crimes and the location of sexually oriented businesses were directly related; and WHEREAS, the studies performed by the various cities provide convincing documented evidence that sexually oriented businesses have a deleterious effect on both the surrounding businesses and adjacent residential areas, causing among other adverse secondary effects, increased crime and a lowering of property values; and WHEREAS, the City Council finds there would be a deterioration in the character of operating in and around sexually oriented businesses; and WHEREAS, increased crime and unhealthful conduct tend to accompany, concentrate around and be aggravated by sexually oriented businesses, including but not limited to prostitution, pandering, exposing minors to harmful materials, possession and distribution of obscene materials and child pornography, possession and sale of controlled substances and violent crimes against person and property; and WHEREAS, the City Council has considered the decision of the United States Supreme Court regarding the local regulation of sexually oriented businesses, including but not limited to Young v. American Mini-Theaters, Inc . , 427 U. S . 50 ( 1976) ; Renton v. Playtime Theatres, 475 U.S. 41 ( 1986 ) ; FW/PBS, Inc. v. Dallas, 493 U.S. 215 ( 1990) ; Barnes v. Glen Theatre, 501 U.S . 560 ( 1991) ; and the U.S . Court of Appeals decision in Topanga Press, Inc. v. City of Los Angeles, 939 F. 2d 1524 ( 1993) ; and the Illinois Supreme Court decision in County of Cook v. Renaissance Arcade and Bookstore, 122 I11 . 2d 123 ( 1988) ; and WHEREAS, the City Council desires to minimize and control these adverse secondary effects and thereby protect the health, safety, and welfare of the residents; protect the residents from increased crime; preserve the qualify of life; preserve the property values and the character of surrounding neighborhoods and businesses and, deter the spread of urban blight; and WHEREAS, the reasonable regulation of sexually oriented businesses will provide for the protection of property values and will protect city residents and persons who work within the city from the adverse effects of sexually oriented businesses while providing those who desire to patronize sexually oriented businesses a reasonable opportunity to do so in appropriate areas . NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS: Section 1 . That Chapter 19 .40 entitled "Industrial Districts" of Title 19 of the Elgin Municipal Code, 1976, as amended, be and is hereby further amended by adding to the list of permitted uses under Subsection 19 . 40 . 330A the following: 1 . Adult entertainment establishment" [SR] [UNCL] , subject to the following conditions : A. Distancing Requirements . An "adult entertainment establishment" [SR] shall not be located less than 1000 feet from a Preservation District, Residence Conservation District, Residence District, or Community Facility District, nor less than 1000 feet from any "apartment dwelling" [SR] , "dwelling" [SR] , "day care service, home child" [SR] , "day care service, institutional child" [SR] , "public park" [SR] , school, place of worship or playground. B. Dispersion. An "adult entertainment establishment" [SR] shall not be located less than 1000 feet from another "adult entertainment establishment" [SR] . C. Measurement. The distance limitations in subsection (A) shall be measured in a straight line from the main public entrance of the "adult entertainment establishment" [SR] to the nearest zoning district boundary of a Preservation District, Residence Conservation District, Residence District, or Community Facility District, or to the nearest property line of the premises of any "apartment dwelling" [SR] , "dwelling" [SR] , "day care service, home child" [SR] , "day care service, institutional child" [SR] , "public park" [SR] , school, place of worship or playground. The distance limitation in subsection (B) shall be measured in a straight line from the closest exterior structural wall of each "adult entertainment establishment" [SR] . D. Amortization of Existing Uses . Any "adult entertainment establishment" [SR] lawfully existing at the adoption of this ordinance shall apply to the Department of Code Administration and Neighborhood Affairs for a Certificate of Non-Conforming Adult Entertainment Establishment within forty-five (45) days of the effective date of this ordinance. An "adult entertainment establishment" [SR] that has received a Certificate of Non-Conforming Adult Entertainment Establishment shall be discontinued and cease within a period of one ( 1) year from the effective date of this ordinance. An "adult entertainment establishment" [SR] lawfully existing at the adoption of this ordinance that fails to apply to the Department of Code Administration and Neighborhood Affairs for a Certificate of Non-Conforming Adult Entertainment Establishment within forty-five (45 ) days of the effective date of this ordinance shall constitute an unlawful "nonconforming use" [SR] . Section 2 . That Chapter 19 . 90 entitled "Supplementary Regulations"" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 to read as follows : 19 . 90 . 046 Adult Entertainment Establishment. A business having as its substantial or significant business purpose the offering to the public or its members a product or service including but not limited to, entertainment, intended to provide sexual stimulation or sexual gratification, and which product or service is distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities " [SR] or "specified anatomical areas" [SR] , including, but not limited to, the following uses : 1 . "Adult Arcade" [SR] 2 . "Adult Book or Adult Video Store" [SR] 3 . "Adult Cabaret" [SR] 4 . "Adult Merchandise Retailer" [SR] 5 . "Adult Motion Picture Theater" [SR] 6 . "Adult Mini Motion Picture Theater" [SR] The term "adult entertainment establishment" [SR] shall not be construed to include ( 1) any business operated by or employing licensed psychologists, licensed physical therapists, licensed athletic trainers, licensed cosmetologists, or licensed barbers performing functions authorized under the licenses held, ( 2 ) any business operated by or employing licensed physicians or licensed healing arts, or ( 3) any retail establishment whose primary business is the offering of wearing apparel for sale to its customers . Section 3 . That Chapter 19 .90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 1 to read as follows : 19 . 90 . 046 . 1 Adult Arcade. An establishment to which the public or its members are permitted or invited to ( 1) view or participate in live performances characterized by the exposure of "specified anatomical areas" [SR] or by specified sexual activities" [SR] , or; (2 ) view still or moving images distinguished or characterized by the depicting or describing of "specified anatomical areas" [SR] or by "specified sexual activities" [SR] , all through the use of coin-operated or electronically, electrically, or mechanically controlled devices to display the live performance or the images, to five or fewer persons per machine at any one time. Section 4 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 .2 to read as follows : 19 . 90 . 046 . 2 Adult Book or Adult Video Store. An establishment having as a substantial or significant portion of its stock-in-trade for sale, rent, lease, inspection or viewing, books, magazines and periodicals, films, motion pictures, video cassettes, slides, or other photographic reproductions, all of which are distinguished or characterized by their emphasis on material depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] , unless demonstrated that either: A. Revenue from the sale, lease, inspection, viewing or rental of the matter depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] comprises no more than fifty percent of the gross revenue from the sale and/or rental of all goods at the establishment, or; B. The matter depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] comprises no more than thirty-five percent of the items displayed in the establishment as stock-in-trade. Section 5 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 3 to read as follows : 19 . 90 . 046 . 3 Adult Cabaret. A public or private nightclub, bar, restaurant, or similar commercial establishment which regularly features either ( 1) persons appearing in a state of nudity or partial nudity, (2) live performances distinguished or characterized by their emphasis on material depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] , or ( 3) films, motion pictures, video cassettes, slides, or other photographic reproductions which are distinguished or characterized by their emphasis on material depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] . Section 6 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976, as amended, be and is hereby further amended by adding Section 19 . 90. 046 . 4 to read as follows : 19 . 90 . 046 . 4 Adult Merchandise Retailer. A retail establishment deriving more than fifty percent of its gross revenue from the sale of merchandise designed or marketed for use in conjunction with "specified sexual activities" [SR] . Section 7 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 5 to read as follows : 19 . 90 . 046 . 5 Adult Motion Picture Theater. An enclosed building, or an area within a building, having a capacity of fifty (50) or more persons, and used regularly and routinely for presenting motion picture films, video cassettes, cable television, and/or any such visual media, all of which are distinguished or characterized by their emphasis on material depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] to its patrons . Section 8 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 6 to read as follows : 19 . 90. 046 . 6 Adult Mini Motion Picture Theater. An enclosed building, or an area within a building, having a capacity for less than fifty ( 50) or more persons, and used regularly and routinely for presenting motion picture films, video cassettes, cable television, and/or any such visual media, all of which are distinguished or characterized by their emphasis on material depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] to its patrons . Section 9 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976, as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 7 to read as follows: 19 . 90 . 046 . 7 Specified Anatomical Areas . Less than completely and opaquely covered human genitals, pubic region, buttocks, and female breast below a point immediately above the top of the areola; human male genitals in a discernible turgid state, even if opaquely covered. Section 10 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976, as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 8 to read as follows : 19 . 90. 046 . 8 Specified Sexual Activities . Simulated or actual ( 1) showing of human genitals in a state of sexual stimulation or arousal, (2 ) acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio or cunnilingus, ( 3) fondling or erotic touching of human genitals, pubic region, buttock or female breasts . Section 11 . That all ordinances or parts of ordinances in conflict with the provisions of this ordinance be and are hereby repealed. Section 12 . That the provisions of this ordinance are severable, and the invalidity of any section, paragraph, sentence, clause, or provision of this ordinance shall not affect the validity or effectiveness of the remainder of the ordinance. Section 13 . That this ordinance shall be in full force and effect after its passage and publication in the manner provided by law. s/ Kevin Kelly Kevin Kelly, Mayor Presented: November 8, 1995 Passed: November 8, 1995 Omnibus Vote: Yeas 6 Nays 0 Recorded: November 9, 1995 Published: November 9, 1995 Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk 01—\ October 6, 1995 MEMORANDUM TO: Mayor and Members of City Council FROM: Erwin W. Jentsch, Corporation Counsel SUBJECT: Adult Business Uses A review of the Planning and Development Commission' s Findings of Fact Regarding Proposed Adult Use Amendments to the Elgin zoning ordinance has identified several areas of concern. Following is a synopsis of those concerns with recommendations for reducing potential legal challenges to an ordinance based upon such amendments to the zoning ordinance. DEFINITION OF ADULT ENTERTAINMENT USE "Adult Entertainment Use" is defined as "[a]n establishment distinguished or characterized by an emphasis on matter depicting, describing, or relating to sexual activities or anatomical genital areas, including but not limited to the following [establishments] (emphasis added) . " The ordinance then proceeds to list five primary examples of adult uses, including "adult bookstore", "adult cabaret" , "adult mini-motion picture theater" , adult motion picture theater" and "other adult entertainment use. " The proposed amendment 's failure to define "sexual activities" and "anatomical genital area" may subject the ordinance to an attack that it is unconstitutionally vague and overbroad. For example, a medical bookstore stocking medical and psychiatric books dealing with sex and/or anatomy would fall under the "adult entertainment use" definition because of its emphasis on matter relating to sexual activities and/or anatomical genital areas . The U. S . Supreme Court held that bookstore items are pure speech, and any regulation of them must be narrowly tailored to achieve the ordinance 's stated purpose. Recommendation: The terms "sexual activities" and "anatomical genital areas" should be defined with specificity sufficient to sustain a constitutional challenge and incorporated within the Elgin zoning ordinance as part of the section defining adult uses or as supplemental regulations . Adult Bookstore. Another concern centers on the definition of "Adult Bookstore, " one of the five adult entertainment uses . In its current form, neighborhood video rental stores renting adult films as a portion of their business would be deemed adult bookstores because a "substantial" or "significant portion" of their business is derived from matter relating to Mayor and Members of City Council 2 October 6, 1995 sexual activities . Published reports indicate that adult film rental can account for as much as thirty percent of a video rental store's revenue and without providing a definition of "substantial" and "significant portion", one could arguably assert thirty percent constitutes a substantial or significant portion of the store's stock-in-trade. The Planning and Development Commission recognized this concern and suggested language to counter the unintended effect . That language, however, appears insufficient to provide the protection for neighborhood video rental stores . Recommendation: Language should be included in the ordinance which would exempt neighborhood video rental stores on the basis of a fixed percentage of stock and/or revenue of an adult nature. In essence, neighborhood video rental stores ' stock and or sales of adult films would be limited to a fixed percentage; if that percentage was exceeded, the store would be deemed an adult bookstore. As you are aware the city has for many years regulated material which is harmful to minors . Adult Cabaret. Finally, be mindful that the definition of "Adult Cabaret" , another of the five defined adult entertainment uses, may not apply to shows or entertainment in which females wore G-strings, pasties, or lingerie. However other measures regulating such actions are being developed for your consideration. DISTANCING REQUIREMENTS AND DISPERSION PROVISION The proposed amendment prohibits an adult use from locating less than 1000 feet from schools, churches, playgrounds, etc. (distancing) , and from locating less than 1000 feet from another adult use (dispersion) . The Planning and Development Commission has recommended distancing and dispersion provisions greater than 1000 feet. The U.S . Supreme Court and other federal courts have upheld the constitutionality of 1000-foot distancing and dispersion requirements . Requiring distances greater than 1000 feet may subject the ordinance to a constitutional challenge and opens the door to another problem. To sustain a challenge to its distancing and dispersion requirements, a city must be able to show there is ample area within the permissible zoning to establish an adult use . The Planning Department is currently calculating the percentage of area within the city that will permit adult uses . However, that area has the potential of being seriously reduced in area because the distancing and/or dispersion requirements may limit adult uses to only a handful of parcels . Although that result is desirable, it may not be constitutional since the ordinance must provide adequate potential sites for such uses . Mayor and Members of City Council 3 October 6, 1995 Recommendation: The distancing and dispersion provisions should remain at 1000 feet. Use Traditionally Patronized by Minors. On a related note, the Planning and Development Commission has recommended language be added to the distancing provision prohibiting an adult use from locating within 1000 feet of a "use traditionally patronized by minors . " This definition is vague and overbroad and will not survive a constitutional attack. Recommendation: Specific establishments contemplated by the Planning and Development Commission should be identified and reviewed to determine whether they are appropriate for the regulation proposed. AMORTIZATION OF EXISTING USES Although it does not appear an adult use, as defined under the amendment, is existing at this time, it would be prudent to include a provision for the amortization of existing adult uses in the event such an establishment was discovered after the ordinance' s enactment. This would prevent the existing adult use from being "grandfathered" under the pre-adult use zoning ordinance. Federal courts are divided on the issue, but a one-year amortization period would likely pass constitutional muster. Recommendation: Provide a one-year amortization period for existing adult entertainment uses . REFERENCE TO OTHER STUDIES REGARDING THE EFFECTS OF ADULT BUSINESS USES ON A COMMUNITY The basis for regulation of adult business uses is the secondary effect of such uses on surrounding properties . Studies conducted in other communities have concluded that such uses have a deleterious, depreciating effect upon surrounding properties and neighborhoods . Such communities have included Austin, Texas, Indianapolis, Indiana, Minneapolis/St. Paul, Minnesota, and Phoenix, Arizona. In the event that you are interested in reading any or all of the studies in their entirety, please stop in the legal department. The leading cases for use of a municipalities zoning power to regulate adult business uses by concentrating such uses are Renton v. Playtime Theatres, Inc . , 106 S .Ct. 925 ( 1986 ) and County of Cook v. Renaissance Arcade and Bookstore, 122 I11 . 2d 123 ( 1988) . These opinions provide a comprehensive discussion of local government's regulation, through zoning, of adult business uses . Attached are copies for your file. Recommendation: Incorporate a reference to other studies establishing the negative effects of adult business uses on surrounding neighborhoods in any ordinance. -71.11 Mayor and Members of City Council 4 October 6, 1995 ADULT ENTERTAINMENT AS A CONDITIONAL USE Classifying adult entertainment uses as a conditional use opens the door to a heightened level of judicial scrutiny in which the city is at a distinct disadvantage. Adult entertainment is characterized as expressive speech under the First Amendment. Requiring prior approval--in this instance obtaining a conditional use permit--before exercising that speech constitutes an unconstitutional prior restraint on speech. That is not to say that classifying adult entertainment uses as a conditional use cannot be done. However, if that method is chosen, the city will have to create detailed guidelines that would ( 1 ) result in a decision to award or deny the use in the shortest possible time frame, (2) create a swift avenue for judicial review, and (3) limit the preservation of the status quo (denial of the conditional use) to the shortest time period. The reality of the matter is that the hearing process for obtaining a conditional use will likely be found too lengthy and therefore be deemed an unconstitutional prior restraint on speech. Recommendation: Create a licensing scheme for adult use operators in which disreputable licensees would be identified and denied licenses . ADULT ENTERTAINMENT USE LICENSING A comprehensive licensing scheme for adult entertainment uses should be created and codified separately from the Elgin zoning ordinance; recommendations for this purpose will follow. INCORPORATING THE RECOMMENDATIONS OF THE NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES The city cannot unequivocally commit to adopting any regulations suggested by the National Law Center for Children and Families but review of such recommendations will be made and the council advised of any appropriate actions which the council should consider. If you have any questions concerning these issues or any others, please contact me. EWJ nr Attachments j lir September 15, 1995 MEMORANDUM TO: Roger K. Dahlstrom, Planning Director FROM: Erwin W. Jentsch, Corporation Counsel SUBJECT: Adult Use Text Amendment You have advised that during the public hearing on the proposed amendment to the zoning ordinance to provide for adult entertainment uses, that some participants have suggested that the text should be amended to prohibit adult entertainment uses and address such legal challenges as may arise thereafter. An examination of opinions of reviewing courts clearly indicates that such a prohibition would be futile and that such action would result not only in a determination of the invalidity of the prohibition but would also subject the city to the payment of damages, attorneys fees and costs . In 1981, the United States Supreme Court reviewed an ordinance which prohibited any use not expressly permitted by the zoning ordinance. Operators of an adult book store had been found guilty by a municipal court of violating the zoning ordinance by introducing a coin operated mechanism which permitted the customer to watch a live dancer, usually nude, perform behind a glass panel . The zoning ordinance was construed by New Jersey courts to prohibit live entertainment, including nude dancing. The court held that by excluding live entertainment the zoning ordinance prohibited a wide range of expression that had long been held to be within the protections of the first and fourteenth amendments to the United States constitution. 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. (citing cases) An entertainment program may not be prohibited solely because it displays the nude human figure. Nudity alone does not place otherwise protected material outside the mantel of the first amendment. (citing cases ) See Schad v. Borough of Mount Ephraim, 101 S .Ct. 2176 ( 1981) . Of course, obscene performances are not protected by the constitution and are prohibited by the Illinois Criminal Code. Since the decision in Schad v. Borough of Mount Ephraim, a flood of cases have been litigated in state and federal reviewing courts concerning attempts by local government to regulate or restrict adult uses . . Although Schad v. Borough of Mount Ephraim clearly indicates that a total prohibition of adult uses may not be established, the Supreme Court has 4. Roger K. Dahlstrom -2- September 15, 1995 indicated that a municipality may restrict the location of such uses so as to minimize or prevent the secondary effects of such uses on surrounding property as long as a reasonable alternative means of expression is provided. See City of Renton v. Playtime Theaters, Inc . , 475 U.S . 41 ( 1986 ) . Most cases since 1986 have concerned challenges to local government attempts to follow the Renton court ' s holding. In the event that the city chose to prohibit adult uses entirely and to litigate the validity of its ordinance, it appears clear that it would fail and that the ordinance would be declared unconstitutional . Such an attack would be brought under federal civil rights statutes which provide that in addition to damages, a successful plaintiff is also entitled to an award of attorney' s fees and its costs in pursuing its claim. Even where minimal damages are awarded, attorney' s fees can be substantial . Should you require further information or advice, please advise. WJ nr SUMMARY OF AMENDMENTS TO ELGIN ZONING ORDINANCE REGULATING SEXUALLY ORIENTED BUSINESSES FINDINGS The ordinance ' s preamble contains eleven findings regarding the secondary effects sexually oriented businesses have on communities . The findings must be recited if the ordinance is to withstand a constitutional challenge made by a person or corporation seeking to operate an adult entertainment establishment at a location not located within a GI District . The findings make reference to quantitative studies conducted by other municipalities which provide evidence of the secondary effects sexually oriented businesses have on a community. The findings cite increased crime, blight, lowered property values and dangers to children as some of the secondary effects . The findings also make reference to U. S . Supreme Court and Illinois Supreme Court decisions that were reviewed when drafting the ordinance. TEXT AMENDMENTS "Adult entertainment establishment" is created and defined as a permitted use under the Elgin Zoning Ordinance in the General Industrial (GI ) District subject to two conditions . First, the adult entertainment establishment must not be located less than 1000 feet from any home, apartment building, day care facility, park, school, place of worship or playground. And secondly, an adult entertainment establishment cannot be located less than 1000 feet from another adult entertainment establishment . Any adult entertainment establishment existing on the date of the ordinance ' s adoption that is not located in a GI District must discontinue its use within one year. SUPPLEMENTAL REGULATIONS The term "adult entertainment establishment" is defined along with definitions for six distinct adult entertainment establishments : adult arcades, adult book and/or video stores , adult cabarets , adult merchandise retailers, adult motion picture theaters, and adult mini-motion picture theaters . "Adult entertainment establishment" has been defined so as to exclude "neighborhood video stores" and movie theaters that do not exclusively or primarily show what is commonly known as "X-rated" films . OBSCENITY No provision in the proposed ordinance can be construed as permitting an adult entertainment establishment to deal in sexually oriented materials that are deemed obscene . a Ordinance No. G82-95 AN ORDINANCE AMENDING CHAPTER 19 , ENTITLED "ZONING" OF THE ELGIN MUNICIPAL CODE, 1976 , AS AMENDED, TO REGULATE SEXUALLY ORIENTED BUSINESSES WHEREAS, written application has been made to amend the zoning ordinance to regulate sexually oriented businesses ; and WHEREAS, the Planning and Development Commission conducted a public hearing concerning the proposed amendment after due notice in the manner provided by law; and WHEREAS, the Planning and Development Commission has submitted its written findings and recommendation that the requested amendment be granted; and WHEREAS, the City Council of the City of Elgin, Illinois , concurs in the findings and recommendations of the Planning and Development Commission; and WHEREAS, the Minnesota Attorney General, in a report dated 6 June 1989 , entitled "Report of the Attorney Generals ' Working Group on the Regulation of Sexually Oriented Businesses" reviewed various studies conducted throughout the nation regarding the impact of adult uses , including the following: 1 . A 1980 study completed by the Minneapolis Crime Prevention Center which determined that there was a strong relationship between sexually oriented businesses and the crime rates including robbery, burglary, rape, and assault; and 2 . A 1984 study conducted by the City of Indianapolis, Indiana, titled "Adult Entertainment Business in Indianapolis" found that areas where sexually oriented businesses are located had higher crime rates, including a seventy-seven percent higher crime rate for sex related crimes, including rape, indecent exposure and child molestation, than similar areas where no sexually oriented businesses were located; and 3 . A 1979 study prepared by the Planning Department of the City of Phoenix, Arizona, titled "Relation of Criminal Activity and Adult Businesses" showed that arrests for sexual crimes and the location of sexually oriented businesses were directly related; and WHEREAS, the studies performed by the various cities provide convincing documented evidence that sexually oriented businesses have a deleterious effect on both the surrounding businesses and adjacent residential areas , causing among other adverse secondary effects , increased crime and a lowering of property values ; and WHEREAS, the City Council finds there would be a deterioration in the character of operating in and around sexually oriented businesses ; and WHEREAS, increased crime and unhealthful conduct tend to accompany, concentrate around and be aggravated by sexually oriented businesses, including but not limited to prostitution, pandering, exposing minors to harmful materials , possession and distribution of obscene materials and child pornography, possession and sale of controlled substances and violent crimes against person and property; and WHEREAS, the City Council has considered the decision of the United States Supreme Court regarding the local regulation of sexually oriented businesses, including but not limited to Young v. American Mini-Theaters, Inc . , 427 U.S . 50 ( 1976 ) ; Renton v. Playtime Theatres , 475 U. S . 41 ( 1986 ) ; FW/PBS, Inc . v. Dallas, 493 U. S . 215 ( 1990) ; Barnes v. Glen Theatre, 501 U. S . 560 ( 1991 ) ; and the U.S . Court of Appeals decision in Topanga Press , Inc . v. City of Los Angeles , 939 F. 2d 1524 ( 1993 ) ; and the Illinois Supreme Court decision in County of Cook v. Renaissance Arcade and Bookstore, 122 I11 .2d 123 ( 1988) ; and WHEREAS, the City Council desires to minimize and control these adverse secondary effects and thereby protect the health, safety, and welfare of the residents ; protect the residents from increased crime; preserve the qualify of life; preserve the property values and the character of surrounding neighborhoods and businesses and, deter the spread of urban blight; and WHEREAS, the reasonable regulation of sexually oriented businesses will provide for the protection of property values and will protect city residents and persons who work within the city from the adverse effects of sexually oriented businesses while providing those who desire to patronize sexually oriented businesses a reasonable opportunity to do so in appropriate areas . NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS : Section 1 . That Chapter 19 . 40 entitled "Industrial Districts" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding to the list of permitted uses under Subsection 19 . 40 . 330A the following: 1 . Adult entertainment establishment" [SR] [UNCL] , subject to the following conditions : A. Distancing Requirements . An "adult entertainment establishment" [SR] shall not be located less than 1000 feet from a Preservation District, Residence Conservation District, Residence District, or Community Facility District, nor less than 1000 feet from any "apartment dwelling" [SR] , "dwelling" [SR] , "day care service, home child" [SR] , "day care service, institutional child" [SR] , "public park" [SR] , school, place of worship or playground. B. Dispersion. An "adult entertainment establishment" [SR] shall not be located less than 1000 feet from another "adult entertainment establishment" [SR] . C. Measurement. The distance limitations in subsection (A) shall be measured in a straight line from the main public entrance of the "adult entertainment establishment" [SR] to the nearest zoning district boundary of a Preservation District, Residence Conservation District, Residence District, or Community Facility District, or to the nearest property line of the premises of any "apartment dwelling" [SR] , "dwelling" [SR] , "day care service, home child" [SR] , "day care service, institutional child" [SR] , "public park" [SR] , school, place of worship or playground. The distance limitation in subsection (B) shall be measured in a straight line from the closest exterior structural wall of each "adult entertainment establishment" [SR] . D. Amortization of Existing Uses . Any "adult entertainment establishment" [SR] lawfully existing at the adoption of this ordinance shall apply to the Department of Code Administration and Neighborhood Affairs for a Certificate of Non-Conforming Adult Entertainment Establishment within forty-five (45) days of the effective date of this ordinance. An "adult entertainment establishment" [SR] that has received a Certificate of Non-Conforming Adult Entertainment Establishment shall be discontinued and cease within a period of one ( 1) year from the effective date of this ordinance. An "adult entertainment establishment" [SR] lawfully existing at the adoption of this ordinance that fails to apply to the Department of Code Administration and Neighborhood Affairs for a Certificate of Non-Conforming Adult Entertainment Establishment within forty-five (45) days of the effective date of this ordinance shall constitute an unlawful "nonconforming use" [SR] . Section 2 . That Chapter 19 . 90 entitled "Supplementary Regulations"" of Title 19 of the Elgin Municipal Code, 1976, as amended, be and is hereby further amended by adding Section 19 .90 . 046 to read as follows : 19 . 90 . 046 Adult Entertainment Establishment. A business having as its substantial or significant business purpose the offering to the public or its members a product or service including but not limited to, entertainment, intended to provide sexual stimulation or sexual gratification, and which product or service is distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities " [SR] or "specified anatomical areas" [SR] , including, but not limited to, the following uses : 1 . "Adult Arcade" [SR] 2 . "Adult Book or Adult Video Store" [SR] 3 . "Adult Cabaret" [SR] 4 . "Adult Merchandise Retailer" [SR] 5 . "Adult Motion Picture Theater" [SR] 6 . "Adult Mini Motion Picture Theater" [SR] The term "adult entertainment establishment" [SR] shall not be construed to include ( 1) any business operated by or employing licensed psychologists, licensed physical therapists, licensed athletic trainers, licensed cosmetologists, or licensed barbers performing functions authorized under the licenses held, (2) any business operated by or employing licensed physicians or licensed healing arts, or ( 3) any retail establishment whose primary business is the offering of wearing apparel for sale to its customers . Section 3 . That Chapter 19 .90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 1 to read as follows : 19 . 90 . 046 . 1 Adult Arcade. An establishment to which the public or its members are permitted or invited to ( 1) view or participate in live performances characterized by the exposure of "specified anatomical areas" [SR] or by specified sexual activities" [SR] , or; (2 ) view still or moving images distinguished or characterized by the depicting or describing of "specified anatomical areas" [SR] or by "specified sexual activities" [SR] , all through the use of coin-operated or electronically, electrically, or mechanically controlled devices to display the live performance or the images, to five or fewer persons per machine at any one time. Section 4 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 2 to read as follows : 19 . 90 . 046 . 2 Adult Book or Adult Video Store. An establishment having as a substantial or significant portion of its stock-in-trade for sale, rent, lease, inspection or viewing, books, magazines and periodicals , films, motion pictures, video cassettes , slides , or other photographic reproductions, all of which are distinguished or characterized by their emphasis on material depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] , unless demonstrated that either: A. Revenue from the sale, lease, inspection, viewing or rental of the matter depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] comprises no more than fifty percent of the gross revenue from the sale and/or rental of all goods at the establishment, or; B. The matter depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] comprises no more than thirty-five percent of the items displayed in the establishment as stock-in-trade. Section 5 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976, as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 3 to read as follows : 19 . 90 . 046 . 3 Adult Cabaret. A public or private nightclub, bar, restaurant, or similar commercial establishment which regularly features either ( 1 ) persons appearing in a state of nudity or partial nudity, ( 2 ) live performances distinguished or characterized by their emphasis on material depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] , or ( 3 ) films, motion pictures , video cassettes, slides, or other photographic reproductions which are distinguished or characterized by their emphasis on material depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] . Section 6 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 4 to read as follows : 19 . 90 . 046 . 4 Adult Merchandise Retailer. A retail establishment deriving more than fifty percent of its gross revenue from the sale of merchandise designed or marketed for use in conjunction with "specified sexual activities" [SR] . Section 7 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 5 to read as follows : 19 . 90 . 046 . 5 Adult Motion Picture Theater. An enclosed building, or an area within a building, having a capacity of fifty ( 50) or more persons , and used regularly and routinely for presenting motion picture films , video cassettes, cable television, and/or any such visual media, all of which are distinguished or characterized by their emphasis on material depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] to its patrons . Section 8 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 6 to read as follows : 19 . 90 . 046 . 6 Adult Mini Motion Picture Theater. An enclosed building, or an area within a building, having a capacity for less than fifty ( 50 ) or more persons, and used regularly and routinely for presenting motion picture films, video cassettes , cable television, and/or any such visual media, all of which are distinguished or characterized by their emphasis on material depicting, describing or relating to "specified sexual activities" [SR] or "specified anatomical areas" [SR] to its patrons . Section 9 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 7 to read as follows : 19 . 90 . 046 . 7 Specified Anatomical Areas . Less than completely and opaquely covered human genitals, pubic region, buttocks , and female breast below a point immediately above the top of the areola; human male genitals in a discernible turgid state, even if opaquely covered. Section 10 . That Chapter 19 . 90 entitled "Supplementary Regulations" of Title 19 of the Elgin Municipal Code, 1976 , as amended, be and is hereby further amended by adding Section 19 . 90 . 046 . 8 to read as follows : 19 . 90 . 046 . 8 Specified Sexual Activities . Simulated or actual ( 1 ) showing of human genitals in a state of sexual stimulation or arousal, ( 2 ) acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio or cunnilingus , ( 3) fondling or erotic touching of human genitals, pubic region, buttock or female breasts . Section 11 . That all ordinances or parts of ordinances in conflict with the provisions of this ordinance be and are hereby repealed. Section 12 . That the provisions of this ordinance are severable, and the invalidity of any section, paragraph, sentence, clause, or provision of this ordinance shall not affect the validity or effectiveness of the remainder of the ordinance . Section 13 . That this ordinance shall be in full force and effect after its passage and publication in the manner provided by law. Kevin Kelly, Mayor Presented: November 8, 1995 Adopted: Vote : Yeas Nays Recorded: Attest : Dolonna Mecum, City Clerk