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Ordinance 90-2685 ORDINANCE NO. 90-2685 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, MAKING FINDINGS REGARDING ADVERSE EFFECTS OF ADULT ENTERTAINMENT ESTABLISHMENTS, INCLUDING ADULT MOTION PICTURE THEATERS, ADULT BOOKSTORES, ADULT BOOTHS, AND NUDE DANCING ESTABLISHMENTS, ON THE COMMUNITY; AMENDING COMPREHENSIVE ZONING ORDINANCE NO. 89-2665 BY ADDITION OF SECTION 12A ENTITLED "ADULT ENTERTAINMENT ESTABLISHMENTS", PROHIBITING ADULT ENTERTAINMENT ESTABLISHMENTS WITHIN 300 FEET OF ANY DISTRICT DESIGNATED AS RS, RM, OR RPS ON THE CITY'S OFFICIAL ZONING DISTRICT MAP, OR WITHIN 300 FEET OF LAND UPON WHICH A HOUSE OF WORSHIP, SCHOOL, PUBLIC PARK OR PLAYGROUND IS LOCATED, OR WITHIN 1,000 FEET OF ANY OTHER ADULT ENTERTAINMENT ESTABLISHMENT; AMENDING SECTION 7, ENTITLED "PARKING REGULATIONS" BY AMENDING SUBSECTION 7-2, ENTITLED "OFF- STREET PARKING REQUIRED", TO ESTABLISH A REQUIREMENT OF ONE PARKING SPACE PER ONE ADULT BOOTH; AMENDING SUBSECTION 16-7 OF SECTION 16, ENTITLED "BOARD OF ADJUSTMENT" BY PROVIDING FOR APPLICATIONS FOR VARIANCES OF THE DISTANCE REQUIREMENTS SET FORTH IN SUBSECTION 12- A-2 (A) ; PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEI, FLORIDA: Section 1. Findings That the City Commission of the City of Miami Beach, Florida makes the following findings: 1) The United States Supreme Court in the cases of Young v. American Mini Theaters, 427 US 50 (1976) and City of Renton v. Playtime Theaters, Inc. , 475 U.S. 41 (1986) has opined that municipalities may restrict the locations of Adult Theaters, as defined in Section II herein, in order to prevent serious community problems created by such theaters. In the Renton opinion, the Supreme Court also indicated that cities may enact legislation to protect the quality of life within their communities. 2) Studies conducted by other local governments and reports from police departments have indicated that there is a direct relationship between adult entertainment establishments and such adverse secondary impacts upon the community as neighborhood deterioration, reduction 1 in property values and increased crime, especially prostitution, rape, indecent exposure and child molestation; some of the most notable studies are the Minneapolis Report of the Attorney General ' s Working Group on the Regulation of Sexually Oriented Businesses conducted in 1989; the Saint Paul Minnesota Planning and Economic Development and the Minnesota Crime Control Planning Board' s study, Effects on Surrounding Area of Adult Entertainment Businesses in Saint Paul, conducted in June of 1978; and the study conducted by the Phoenix Arizona Planning Department in 1979 entitled Relation of Criminal Activity and Adult Businesses. 3) These studies have not indicated that there is any relationship between shows in large hotels which feature nude dancing and adverse secondary effects on the community. 4) Reports from the City of Miami Beach Police Department indicate occurrences of the above-stated adverse secondary affects in connection with certain adult entertainment establishments currently in operation in Miami Beach. 5) Due to the above-stated adverse secondary effects associated with adult entertainment establishments, such establishments, when located in close proximity to each other or to schools, places of worship, or residential districts, constitute a nuisance in the community. 6) Some other local municipalities have recently enacted ordinances restricting adult entertainment establishments; the potential exists for some establishments which have been restricted in those municipalities to relocate in Miami Beach. 2 7) The restrictions established in this Ordinance are necessary to protect the quality of urban life and the welfare of the citizens of the City of Miami Beach, Florida. 8) The restrictions established herein will not result in suppression of free expression and will leave open adequate alternative avenues for such expression within locations in the City not prohibited herein. Section 2 . Addition of Section 12A to Zoning Ordinance 89-2665 That Miami Beach Comprehensive Zoning Ordinance No. 89-2665 is hereby amended by the addition of Section 12A, entitled "Adult Entertainment Establishments, " to read as follows: Section 12A ADULT ENTERTAINMENT ESTABLISHMENTS 12A-1. Definitions For the purpose of this Section, the following terms, phrases and words shall have the meaning given herein: A. "Adult Bookstore" shall mean an establishment which sells, offers for sale or rents Adult Material for commercial gain. This definition includes establishments selling or renting adult videos when applicable under the above- stated conditions. B. "Adult Booth" shall mean a small enclosed or partitioned area inside an establishment operated for commercial gain which is (1) designed or used for the viewing of Adult Material by one or more persons and (2) is accessible to any person, regardless of whether a fee is charged for access. The term "Adult Booth" includes, but is not limited to, a "peep 3 show" booth, or other booth used to view Adult Material . The term "Adult Booth" does not include a foyer through which any person can enter or exit the establishment, or a restroom. C. "Adult Entertainment Establishment" shall mean any Adult Bookstore, Adult Booth, Adult Motion Picture Theater or Nude Dancing Establishment as defined in paragraphs A, B, E and G herein. D. "Adult Material" shall mean one or more of the following, regardless of whether it is new or used: 1) Books, magazines, periodicals or other printed matter; photographs, films, motion pictures, video cassettes, slides or other visual representations; recordings, other audio matter; and novelties or devices; which have as their primary or dominant theme subject matter depicting, exhibiting, illustrating, describing or relating to Sexual Conduct or Specified Anatomical Areas as defined herein; or; 2) Instruments, novelties, devices or paraphernalia which are designed for use in connection with Sexual Conduct as defined herein, except for birth control devices or devices for disease prevention. E. "Adult Motion Picture Theater" shall mean an enclosed 4 Building used for presenting for observation by patrons motion pictures, films, or video media, distinguished or characterized by an emphasis on matter depicting, describing or relating to Sexual Conduct or Specified Anatomical Areas as hereafter defined. F. "Commercial Gain" shall mean operated for pecuniary gain, which shall_ be presumed for any establishment which has received an occupational license. For the purpose of this Section, commercial or pecuniary gain shall not depend on actual profit or loss. G. "Nude Dancing Establishment" shall mean an establishment operated for commercial gain wherein performers or employees of the establishment display or expose to others Specified Anatomical Areas as defined hereinafter, regardless of whether the performer or employee so exposed is actually engaging in dancing. H) "Sexual Conduct" means any sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, any sexual act which is prohibited by law, erotic touching, caressing or fondling of the breasts, buttocks or any portion thereof, anus or genitals or the simulation thereof. I) "Specified Anatomical Areas" as used in this Section above shall mean either of the following: 1. Less than completely opaquely covered human genitals, pubic region, anal cleft, cleft of the buttocks, and all or any part of the areola of the female breast; and 2 . Human male genitals in a discernibly 5 turgid state, even if completely and opaquely covered. J. The word "Used" as utilized in paragraphs B and E above shall describe a continuing course of conduct of exhibiting Sexual Conduct or Specified Anatomical Areas as defined in paragraphs H and I above. 12A-2 Adult Entertainment Establishments Prohibited in Certain Locations A. No Adult Entertainment Establishment is permitted on a Parcel of Land located: 1. Within 300 feet of any district designated as RS, RM, or RPS on the City' s Official Zoning District Map; or, 2 . Within 300 feet of any Parcel of Land upon which a house of worship, school, public park or playground is located; or, 3 . Within 1, 000 feet of any Parcel of Land upon which another Adult Entertainment Establishment is located. B. The minimum distance separation shall be measured by following a straight line from the main entrance or exit of the Adult Entertainment Establishment to the nearest point of the property designated as RS, RM, or RPS on the City' s Official Zoning District Map or used for a house of worship, school, or public park or playground. In cases where a minimum distance is required between an Adult Entertainment Establishment and another Adult Entertainment Establishment, the distance separation shall be determined by measuring a straight line between the principle means of entrance of each Use. 6 C. Exemption: 1. A Hotel with a minimum of three hundred (300) Hotel Units shall be exempt from Section 12A-2 (A) (1, 2 , and 3) . 12A-3 ADULT BOOKSTORES - DISPLAY RENTAL OR SALE OF ADULT MATERIALS TO MINORS PROHIBITED A. Adult Bookstores are prohibited from displaying Adult Material in such manner that said Material is visible to minors (persons under 17 years of age) . B. Adult Bookstores are prohibited from knowingly selling or renting Adult Material to minors. (As used in this Subsection, "knowingly" shall mean having general knowledge of, reason to know, or a belief or ground for belief which warrants further inspection or inquiry or both. ) Section 3. Addition of Adult Booth Parking Requirement That Subsection 7-2 of City of Miami Beach Comprehensive Zoning Ordinance No. 89-2665, entitled "Off-street Parking Required" is hereby amended to read as follows: SECTION 7 PARKING REGULATIONS * 7-2 Off-Street Parking Required Except as otherwise provided in this Ordinance, when any Building or Structure is erected or altered,accessory Off-Street Parking Spaces shall be provided for the Building, Structure or additional Floor Area as follows: 7 A. Parking District No. I 1. Adult Booth, as defined in Section 12A of this Ordinance - 1 parking space per one Adult Booth. 1. 2 Adult Congregate Living Facility - 1 space per 2 beds. * * * Section 4. AMENDMENT OF SUBSECTION 16-7 That Subsection 16-7 of Section 16, entitled "Board of Adjustment" of City of Miami Beach Comprehensive Zoning Ordinance No. 89-2665 is hereby amended to read as follows: Section 16 BOARD OF ADJUSTMENT 16-7 POWERS AND DUTIES A. The Board of Adjustment shall have the following powers and duties: 1. To hear and decide appeals when it is alleged that there is error in any order, requirement decision, or determination made by an administrative official in the enforcement of this Ordinance with the exception of appeals pursuant to Section 17-4H. In the event of an Administrative Appeal to the Board of Adjustment, the Planning and Zoning Director may engage the services of an attorney for the purpose of representing the Administrative Officer who made 8 the decision that is the subject of the appeal. In exercising this power, the Board of Adjustment, may upon appeal, reverse or affirm, wholly or partly, the order, requirement, decision, or determination, and to that end shall have all the powers of the officer from whom the appeal is taken. The concurring vote of four (4) members, of the Board shall be necessary to reverse any order, requirement, decision, or determination of any such administrative official or to decide in favor of the Applicant on any matter upon which the Board is required to pass under Ordinance. 2 . To authorize, upon application such Variance from the terms of this Ordinance as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of a provision of this Ordinance would result in unnecessary and undue hardship. An application for a Variance shall be limited to the following development regulations: height, average and minimum unit sizes (but not the average unit size when used in determining the bonus for the Floor Area Ratio) , setback areas, size and location of Signs, Open Space Ratio, distance requirements of Subsection 12A-2 (A) (1, 2 , and 3) , and off-Street parking and loading requirements (however, no Variance shall be given for off-Street parking for less than one space per Apartment Unit or Hotel Unit, or a request pertaining to the reduction of an impact fee, or for Lot Area when determing Floor Area Ratios) . In order to authorize any Variance from the terms of this Ordinance, the Board of 9 Adjustment shall find: Section 5. Severability. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. Section 6. Repealer. All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. Section 7 . Effective Date. This Ordinance shall take effect on the 3rd day of March 1990. PASSED and ADOPTED this 21st day of February 1990. VICE- MAYOR ATTEST: FORM APPROVED ",ThLEGAL DEPT. CITY CLERK e i 1st Reading 2/7/90 By 2nd Reading 2/21/90 2�Y/90 a\nudeor4d Date 10 (60 4 /44m Fe4d QPM eF FLORIDA 3 3 1 3 9 -e .tib * INCORP D)1 } "VACA TIONLAN'D U. S. A. " 9R 26 OFFICE OF THE CITY MANAGER CITY HALL ROB W.PARKINS 1700 CONVENTION CENTER DRIVE CITY MANAGER TELEPHONE: 673-7010 COMMISSION MEMORANDUM NO. I I CIt DATE: FEB. 21, 1990 TO: Mayor Alex 6.oud and C Members •' the City Comm' si-,,,/— rV FROM: Rob W. Par ' s lr ' City Manager '° SUBJECT: AN ORDINANCE AMENDING ZONING ORDINANCE 89-2665 BY THE ADDITION OF REGULATIONS PERTAINING TO ADULT ENTERTAINMENT ESTABLISHMENTS BACKGROUND On February 7 , 1990, the City Commission approved on first reading a zoning ordinance amendment which requires distance separations for adult entertainment establishments (adult motion picture theaters, adult bookstores, peep shows, and nude dancing) . The ordinance also exempts hotels with a minimum of 300 rooms from the distance separation requirements. In December, 1989 and January, 1990, the City Commission was provided with copies of studies conducted by other local governments and from the City of Miami Beach Planning and Zoning Department. These reports shall be construed to be a part of the permanent record of the adoption proceedings regarding this Ordinance. These studies are: (1) the Minneapolis Report of the Attorney General ' s Working Group on the Regulation of Sexually Oriented Businesses, conducted in 1989 ; (2) the Saint Paul Minnesota Planning and Economic Development and the Minnesota Crime Control Planning Board' s study, Effects on Surrounding Area of Adult Entertainment Businesses in Saint Paul, conducted in June of 1978 ; (3) the study conducted by the Phoenix Arizona Planning Department in 1979 entitled Relation of Criminal Activity and Adult Businesses; and (4) The Regulation of Adult Entertainment Establishments in the City of Miami Beach: Analysis, Findings and Recommendations Pertaining to Adult Motion Picture Theaters, prepared by the CMB Planning and Zoning Department in December, 1989 . CITY COMMISSION ACTION - FIRST READING On first reading (February 7 , 1990) , the City Commission approved an adult entertainment ordinance which followed the Planning Board ordinance, with one amendment. The amendment increased the size of the hotels which are exempt from the distance separation requirements of the ordinance, from a minimum of 250 rooms (Planning Board ordinance) to 300 rooms. PLANNING BOARD ACTIONS On January 15 and 16, 1990, the Planning Board held two public hearings and considered two separate Zoning Ordinance amendments - one Ordinance restricts the location of nude bars while the other Ordinance pertains to all other forms of adult entertainment (movies, bookstores, peep shows) . .36 AGENDA ITEM R- 3 DATE ' .--2. 1 - I CI f Prior to the public hearing, one of the members (James Silvers) determined he may have a conflict of interest and left the meeting. As such, six of the seven members were present throughout the entire meeting. As set forth in the Zoning Ordinance, in order for a motion to receive an affirmative recommendation from the Planning Board, it is necessary that five votes be cast in favor of a motion. If a motion receives four of the six votes, it fails to pass. This is the same situation where the Board of Adjustment requires four of five votes in order to approve a variance. The attached Ordinance, which only received four votes in favor and two against, was not recommended by the Planning Board because it failed to receive five votes. The four votes in favor were cast by Norman Frank, Stephen Hertz, Keith Kovens, and Ralph Mizrahi. The two dissenting votes were cast by Joy Alschuler and Neisen Kasdin. The dissenters voted against the Ordinance because 1) it allowed adult entertainment establishments in the Redevelopment Area, and; 2) the Ordinance did not expand the 300 ft. to 400 ft. separation from a school, place of worship, park and playground for adult entertainment establishments. The following motions also failed because they did not receive 5 votes. A motion to expand the separation between schools and nude bars from 300 ft. to 400 ft. failed four to two. Similarly, a motion to prohibit adult entertainment establishments in the Redevelopment Area failed on a Vote of four votes in favor and 2 against. As required in the Zoning Ordinance, the Planning Board ' s recommendation, which is not to approve the attached Ordinance, (four to approve - two to deny) is hereby transmitted to the City Commission. SUMMARY OF THE ORDINANCE The basic concepts included in the proposed ordinance are as follows: 1. Distance separation will include a minimum distance of 300 ft. from residential zoning districts (RS, RM, or RPS) , house of worship, school, public park or playground; 1000 ft. distance separation from another adult entertainment establishment. Provides for variances from Zoning Board of Adjustment for distance separation requirements. 2 . Allows adult entertainment establishments anywhere in the Redevelopment Area, provided that they meet the above distance separation requirements. 3 . Grandfathers-in existing establishments. 4 . Exempts hotels of a minimum size (300 units) from distance separation requirements. 5. Provides for penalties in City Code (fines, imprisonment) and in Zoning Ordinance (Code Enforcement Board fines) . ANALYSIS OF THE PROPOSED ORDINANCE A. Distance Separations The distance separations set forth in the proposed ordinance strictly limit the number of potential locations for adult entertainment establishments in the City. The 1000 feet required between any two adult entertainment establishments reflects an accepted method of dispersing these businesses in order to limit any negative impacts which could be caused by a concentration of such uses. B. Hotel Exemptions The ordinance provides for an exemption from the distance separation requirements for hotels containing 300 or more rooms. (The City Commission raised this figure from the Planning Board' s recommendation of 250 rooms. ) A total of 11 hotels have 300 rooms or more (18 hotels have 250 rooms or more) . There have been no studies performed in other cities which have shown that these types of activities in hotels cause any negative secondary impacts on the community. ADMINISTRATION RECOMMENDATION The Administration recommends that the City Commission adopt the Ordinance as amended on first reading. RWP:JK:SRP: ibm Attachment a: ccadmem2 Ob C9 4.) a U N ^7i a .0 U Cl) 4-1 co a) P •r1 G •r1 4-1 .0 d_i G cJ• r-1 q a a a G E r� N cd 'Ci a) --1 4-1 N U) :.0 4-1 O )-1 (A I 1-1 (0 .• U O • W • HI $-+ a bD a 4-1 G CO G cd t a) 7 bo ca(43 •H .o G o LH F-1 0 a) P. O N H c7 G) •rl u G cd ) "r +) G ,-1 a 0 4-) • O . c N 0 'd Cl) HI •� (II) •• b.0 cCiH O a a P a) G 'd G • Ca •r-1 E a O CI) +2 +.i a cn a +i bA 4 r-) 1-1 •rH r-I • d G Cd CO cd o Ln <4 • • a .) 4-1 CJ 'C ' • •HbO O CO ,S) _ • 4-4 4- G 0 a d)N d • ,•-•1 •H .8 G I bC G 'd bll•H 0 H e G 'd P 4-) G 'd CO :-3 Cl) •r1 cd Hi r-4 •r1 G •H 41 a • 4-1 G O H cd 'd cd Z a E • • —