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G82-95 CITY OF ELGIN ORDINANCE NO. G82-95 AN ORDINANCE AMENDING CHAPTER 19, ENTITLED "ZONING" OF THE ELGIN MUNICIPAL CODE, 1976 , AS AMENDED, TO REGULATE SEXUALLY ORIENTED BUSINESSES r ADOPTED BY THE CITY COUNCIL OF THE CITY OF ELGIN ON THIS 8TH DAY OF NOVEMBER, 1995 Published in pamphlet form by authority of the City Council of the City of Elgin, Kane and Cook Counties, Illinois, on this 9th day of November, 1995 . few STATE OF ILLINOIS ss . COUNTY OF KANE ) CERTIFICATE I, Dolonna Mecum, certify that I am the duly appointed and acting municipal clerk of the City of Elgin, Cook and Kane Counties, Illinois . I further certify that on November 8, 1995, the Corporate Authorities of such municipality passed and approved Ordinance No. G82-95, entitled An Ordinance Amending Chapter 19, Entitled "ZONING" of the Elgin Municipal Code, 1976, as Amended, to Regulate Sexually Oriented Businesses, which provided by its terms that it should be published in pamphlet tow form. The pamphlet form of Ordinance No. G82-95, including the Ordinance and a cover sheet thereof, was prepared, and a copy of such Ordinance was posted in the municipal building, commencing on November 9, 1995, and continuing for at least ten days thereafter. Copies of such Ordinance were also available for public inspection upon request in the office of the municipal clerk. DATED at Elgin, Illinois, on November 9 , 1995 . Munici 1 Clerk (SEAL) 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 MEW 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 tow 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. AGv-1_ Kevin Kelly, Mayo to- Presented: November 8, 1995 Passed: November 8, 1995 Omnibus Vote: Yeas 6 Nays 0 Recorded: November 9 , 1995 Published: November 9 , 1995 Attest: Dolonna Mecum, City Clerk