Robert W. Thorpe, AICP

R. W. Thorpe & Associates, Inc.

Seattle/Anchorage

June 7, 1984

To: City Council

From: City Manager

Subject: Recommended Actions - Adult Uses

On October 27, 1983, the City Council conducted Public Hearings on two questions.

1. Should adult businesses be allowed in the Revitalization Area?

The City Council took testimony and was presented extensive study data and reports on the effects of adult businesses on the Revitalization Area. The Council instructed Administration to prepare a recommendation by June 7, 1984. In the meantime, Council, Administration and consultants have had the entire record available for study.

I have utilized Administrative staff (principally myself, Special Projects Assistant Dave Crow and City Attorney Gorham) to prepare a recommendation as instructed. I also commissioned Robert Thorpe and Associates to conduct an independent evaluation of the same adult use subject as related to the downtown Revitalization area.

This report represents only a brief summary of the entire record and base of facts and studies used by Administration. The Administrative report is also summarized with this memo.

An independent summary report from R.W. Thorpe and Associates is attached. A detailed report from R. W. Thorpe will follow in a few weeks.

Recommended findings and conclusions are contained in the detailed Administrative report. The following recommended actions are summarized for easy reference.

1. Should adult businesses be allowed in the Revitalization area? - - NO.

2. Should Adult businesses which are allowed be grouped or dispersed? - - THE ADULT BUSINESSES SHOULD BE DISPERSED AND SEPARATED.

It is the recommendation of the City Manager and the City Attorney that the City Council take this summary report and detailed report under advisement for individual study and that the Council place the item on an August agenda for the purpose of scheduling a Public Hearing in September to consider the wordage of an Ordinance implementing the above recommended actions.

SEM:do

The purpose of this report is to summarize the impact of the Des Moines Theater on nearby business and residential areas and on the City of Des Moines as a whole. This report will focus on this adult theater and within the framework of findings previously determined of adult uses in general. This report will especially look at land use impacts associated with adult theaters and make recommendations to mitigate any adverse impacts.

The Des Moines Theater is located at 22333 Marine View Drive in the Central Business District of Des Moines. The structure housing the theater is well over 50 years old, and has been used continuously as a movie theater since its completion. The building consists of a motion picture theater on the first floor with approximately 380 seats, three store fronts with warehouse space below and offices on the second floor.

The theater was first issued a business license in 1960, when the Des Moines business license ordinance went into effect. The theater began showing adult movies in 1971. The present owner, Mr. Richard J. Pappas, has operated the theater since October, 1976. According to community impact statements produced by Mr. Pappas in accordance with City of Des Moines ordinances, adult movies are shown because other types of movies do not produce sufficient ticket sales for a profitable business. The correlation between the amount of business at the theater and the showing of adult movies, however, is difficult for the City of Des Moines to document. The only figures available on tickets sold are on admission tax reports submitted quarterly by the theater. This 5% admission tax, however, was not enacted until 1974, three years after the theater began showing adult movies. Appendix A is a summary of admissions at the Des Moines Theater since the enactment of the admissions tax.

Over the years, there has been a great deal of objection by Des Moines area residents to adult uses and the showing of adult movies in the community. The City has hundreds of letters and petition signatures on file objecting to these uses dated from 1974 to the present. These letters and petitions represent over 600 households, and all but two are opposed to adult businesses. Many of these express that they and the people they know or influence will not shop adjacent businesses because the theater creates the image of an adult use zone. Additionally, in the Community Opinion Survey conducted in March, 1978, the adult theater was among the most frequent features of Des Moines that elicited negative responses (Appendix B). The appearance (deterioration) of business establishments was the Number 1 negative comment regarding business in Des Moines. The evidence gathered since the survey clearly shows a correlation between deterioration of business neighborhoods and the presence of adult uses. Taken in combination, the negative responses on the "X-rated theater," "appearance of business establishments," "hippy shops" (drug paraphernalia) and "massage parlors" was 18.3% (this is a tie for first concern among the subjects under City jurisdiction.)

The City has been carefully studying impacts related to adult uses including the theater since the enactment of Ordinance No. 464 on April 9, 1979 (copy enclosed as Appendix C). Ordinance No. 464 requires impact studies on all adult business. The City has acquired a great deal of information on adult business and their impact through the application of this ordinance and the resultant Community Impact Statements, studies and testimony. The theater voluntarily complied with the requirements of the ordinance by submitting a Community Impact Statement. Although no final decision has been made on the theater under Ordinance No. 464, the impact studies on the theater and other adult uses have been exhaustive. It is important to note that the Ordinance does not address the morality of any legal business transaction. It does address the "third party" impacts, especially economic, that a particular business may have on the immediate neighborhood and the community at large.

In the Washington Supreme Court decision of October 19, 1978, upholding the City of Seattle's zoning enactments requiring that adult motion pictures be located in certain areas of town, the Court noted "much effort and money have been invested in long-range improvement plans for these areas." The City of Des Moines and its business leaders have spent over $37,000 on studies and efforts at revitalizing downtown. Another $20,000 has been budgeted by the City for 1984. Other expenses include many hours of city staff time, volunteer work, and the commissioning of a consultant for an independent follow up study on the specific question of adult uses. A critical question for all of those involved in revitalization is: could the continuing efforts and effectiveness of revitalization be affected by the presence of the adult movie theater and any new adult businesses in the heart of the downtown area?

Although there are federal and state laws that are concerned with adult publications and movies, they do not in any way regulate where adult businesses may locate. The location issue is left to local government.

Besides Ordinance No. 464, the only other local regulations and ordinances directly affecting adult theaters as a use are local zoning regulations. The following inventory itemizes all relevant Zone Code sections pertaining to the location and development standards of theaters in the City:

18.24.020 Permitted uses. (B.C. Zone)

18.24.030 Limitations on uses. (B.C. Zone)

18.28.020 Permitted uses. (B.C. Zone)

18.32.030 Uses requiring a conditional use permit.

Permitted signs. (Chapter 18.42) No special limitations.

Appendix D is a summary of police activity in Des Moines related to the adult theater as stated in Part I of this report.

Des Moines residents have time and time again expressed their concerns regarding the negative impact of the adult theater on adjacent commercial businesses on and nearby residential properties and on the City in general. Among the concerns expressed are the following:

1. Decreasing property values

2. Refusal to shop in an area in which an "adult" use exists

3. Deterioration of the district, including deferred maintenance

4. Parking and traffic problems

5. Attraction of transients

6. Interference with parental responsibilities for children

7. Increased crime

This perception by the public, based on documented testimony at public hearings and letters to City Officials, is a legitimate impact on the community, regardless of the basis for this perception.

This public perception has led to numerous business failures in the commercial areas near the Des Moines Theater. This is indicated by new business licenses being issued. Business turnovers around the theater is approximately four times the average in other comparable areas of downtown. Comparison blocks were chosen for study because of similar building and business development factors (i.e., all buildings with a zero side yard, similar retail shops, similar traffic orientation, etc). Appendix E is a compilation of business turnover in the area near the theater.

The theater has clearly had these impacts on adjacent businesses:

1. Type: Marginal - often adult uses prior to 464

3. High number of business turnovers and failures.

Additionally, according to the previously mentioned public testimony, non-adult businesses are being perceived as adult uses by the public. This "guilt by association" is probably a factor in the high number of business failures near the theater. The citizen's desire to shop local businesses is vital to those businesses' survival. This perception, then, is creating a substantial negative impact on nearby businesses. The citizens also have a right to safety and security. A business that reasonably bears on a citizen's security or perception of security is a legitimate impact.

Public testimony, staff studies and independent consultant studies all confirm the following findings:

The negative effect of adult businesses is also evidenced in other states and communities by their enormous effort and expense to rid themselves of or at least control adult businesses, including adult movie theaters. Some of these examples include:

North Carolina's "single use law" which allows only one kind of "adult entertainment" in a building. Thus an adult movie theater may not sell adult books or an adult bookstore run automated peep shows. Also in North Carolina, no adult drive-ins may locate within 2,000 feet of residence or within viewing range of juvenile, and no adult films may be shown until after 11:00 p.m.

In Detroit, Michigan, adult uses cannot locate within 1,300 feet of each other or within 500 feet of a residential area unless 51% of the local residents and businesses approve.

In Prince George's County, Maryland, adult uses are not allowed within 1,000 feet of school and within 500 feet of a church, and doors and windows of all adult enterprises must be blackened.

Significant efforts in controlling adult theaters in Washington will be discussed in Section V.

Based upon the facts brought out in this report and the findings herein established, several conclusions and recommendations can be made regarding adult movie theaters in Des Moines.

Basically, it has been established by the U. S. Supreme Court that every community has a right to protect its values. A 1973 U. S. Supreme Court decision recognized that legitimate community interests are at stake in protecting their values and that these interest may be applied through ordinances and regulations against adult movies and uses. Such interests include the interest of the public in the quality of life and the total community environment, ...and possibly the public safety itself.

As has been seen in Section IV of this report, the negative impact has been found significant. There are two basic questions (asked at public hearings) that must be addressed regarding adult uses.

Through the data gathered in community impact studies produced in compliance with Ordinance No. 464 and through public testimony, it must be concluded that it is not in the community's interest to retain an adult movie theater in the downtown area of Des Moines. Findings have shown the following reasons to support this conclusion:

The tremendous effort and expense of the City toward improving the downtown is indicative of a large community commitment to the long range improvement of downtown. It has also been seen that other cities have spent a great deal of time, energy, effort and money in establishing ordinances to control adult uses, particularly adult theaters.

The validity of zoning enactments requiring that adult motion picture theaters be located in certain downtown areas was upheld by the Superior Court, King County, Frank J. Eberharter, J., and theater operators appealed. The Supreme Court, Horowitz, J., held that: (1) the ordinance was fully adequate to give operators notice of regulated use, and they had no standing to challenge it for vagueness; (2) the operators had no standing to assert First Amendment rights of others so as to challenge the ordinance for facila overbreadth; (3) the theaters failed to establish that the ordinance was impermissible prior restraint on protected First Amendment Speech, in view of a finding that the ordinance did not have any significant deterrent effect on exhibition or viewing of such films; city's most important interest in regulating use of its property for commercial purposes was sufficient to justify such zoning regulation; (4) there was reasonable classification, no violation of equal protection, by the ordinance, and (5) the ordinance was reasonable, not denying due process of law, insofar as terminating all nonconforming theater uses within 90 days, in view of the fact that the theaters were not bound to show adult films as opposed to any other type of film and did not come forward with any clear evidence of economic harm." (Emphasis added).

This zoning of the City of Seattle was the culmination of a long period of study and discussion of the problems of adult movie theaters in other areas of the City.

Similarly, the City of Des Moines has had the opportunity, primarily through its Community Impact Ordinance, Revitalization Study and activities and public testimony to study and discuss and analyze at length the entire question of an adult movie theater in the central business district of the community.

If, then, the City should not allow adult theaters in the downtown, where, if at all, should the City allow such a use? It is quite clear from the Seattle case and other city ordinances and court findings that banning adult theaters altogether might be successfully challenged as an infringement of the U. S. Constitution's First Amendment. A major factor in the State of Washington's Supreme Court upholding the Seattle Ordinance was the fact that adult theaters were allowed in another part of the City.

The only other commercial area in Des Moines in which any kind of movie theater would be compatible with other permitted uses is in the CG zone along Highway 99 (Pacific Highway South). An adult theater on Highway 99 would clearly have less of an impact than in the central business district. Highway 99 is less concentrated with much more parking available.

In addition, over the years Des Moines Comprehensive Plan has distinguished between their two commercial areas. The downtown is perceived as a pedestrian and community-family oriented shopping service area. Because of higher speed limits, more traffic, and lower density, the 99 commercial strip, on the other hand, is seen as automobile oriented shopping of a more regional nature. The current Des Moines sign ordinance distinguishes between these two areas, and the Des Moines City Council is just now beginning discussion on a new zoning district for the downtown.

In its Community Impact Statement, the theater claimed much of its clientele came from the City. The preponderance of administrative and public study and testimony refutes this. It is concluded that the "survey" referred to was either "flawed" or that the clientele changed drastically in the last 3 or 4 years to mostly out of town. Highway 99, from a pure business sense, is a better location for the owner of such a use. Public testimony regarding the theater also reflects the attitude that if adult theaters are to be allowed in Des Moines, they should be on Highway 99.

If, then, the City's zoning code should be amended to allow motion pictures along Highway 99 and not allow them in the downtown area, should they be "concentrated" or dispersed along the highway?

Chief of Police Martin Pratt, in his memo of 1-4 recommends that adult uses be dispersed. He feels that dispersed would greatly reduce the crime and patrol problem:

Not only would the dispersal reduce crime potential, but lessen its impact. By the same token, in order to safeguard family oriented activities, minimum distances should be established between adult theaters and such uses as churches, schools and public parks.

YEAR QUARTER ADMISSIONS

1974 4 1259

1975 1 985

1975 2 954

1975 3 1120

1975 4 2279

1976 1 3784

1976 2 4129

1976 3 4870

1976 4 3191

1977 1 3378

1977 2 3827

1977 3 3840

1977 4 3195

1978 1 3496

1978 2 3453

1978 3 3583

1978 4 3327

1979 1 3468

1979 2 3299

1979 3 3668

1979 4 3837

1980 1 5552

1980 2 4717

1980 3 5135

1980 4 4799

1981 1 5511

1981 2 4889

1981 3 4851

1981 4 5131

1982 1 5066

1982 2 4377

1982 3 4507

1982 4 4557

1983 1 4909

1983 2 5056

1983 3 4409

1983 4 4463

1984 1 5082

38 Qtrs. 147,953 Total Admissions

Negative Comments: No. of Responses %

1. Airplane Noise 150 21.6

2. Condition of Streets/Sidewalks 127 18.3

3. Appearance of Business Establishments* 78 11.2

4. Apartments 68 9.8

5. Businesses Lack Variety 51 7.3

6. Traffic Congestion/Safety 45 6.5

7. X-rated Theater* 40 5.8

8. (Tie) Police Department 28 4.0

Dogs Running Loose 28 4.0

10. Rundown Housing 17 2.5

11. Metro Bus Service 12 1.7

12. (Tie) "Hippie Shops"* 8 1.2

(was a drug paraphernalia shop)

Concorde 8 1.2

14. Local Government 7 1.0

15. Marina 6 0.9

16. Trees Obstructing Views 5 0.7

17. Postal Service 4 0.6

18. (Tie) Overhead Wiring 3 0.4

Smell from Dump 3 0.4

20. (Tie) Administration of Water District #54 2 0.3

Mobile Homes 2 0.3

22. (Tie) Massage Parlors - Adult* 1 0.1

Newspaper 1 0.1

TOTALS 695 100.0%

*Note - total negative comments directly or indirectly related to adult uses - 18.3%.

June 7, 1984

Mr. Stan McNutt

City Manager

City of Des Moines

Des Moines, WA

RE: Independent Planning Consulting Report on Adult Uses in the City of Des Moines

Dear Mr. McNutt:

At your request, we did an independent study for recommendations to the City Council concerning policy directions to be undertaken by the Council relative to adult uses within the City. As you and the Council are aware from our previous efforts on the Revitalization Study, we are familiar with the community, the citizens and the character of its business district.

Our study set forth to look at adult uses and consider the following elements:

1. Zoning Study

2. Land Use Impacts

3. Impacts on the Revitalization Plan

In order to do this we set forth the methodology with steps including the following elements:

1. Discussion with other city officials who have been involved in the reviews of this type of use within their communities.

 

2. A review of the record of the hearings by the City Council on this matter in Des Moines.

Our efforts have been concentrated in the last couple of weeks to review these items listed above. However, it is complemented by my 8 years of officing at 3rd and University in Seattle, whereby I have observed land use impacts of adult type uses on 1st, 2nd and 3rd Avenues near my office. And the impact on adjacent land uses, signage, street treatment, and the general character of the urban area. This effort was supplemented by a review of locations such as Bremerton, Redmond, Renton, Northend Seattle, Aberdeen, etc., to ascertain the general character of land uses and the economic impacts of this type of use in any given area of a community.

Following work efforts, a detailed report shall be provided the Council in the near future. However, some of the conclusions and observations may be appropriate. They are as follows:

I hope this Memorandum is helpful to the Council as a status report of my study observations and conclusions. A full report will follow.

Respectfully submitted,

Robert W. Thorpe, AICP

(1)Report writer is an appraiser (MAI) candidate as well as a certified planner.

AN ORDINANCE OF THE CITY OF DES MOINES requiring a study of the impact certain types of business will have on the Des Moines community if they are issued a license, authorizing denial of a business license on a finding of significant adverse community impact, and providing appellate procedures.

WHEREAS, the City of Des Moines is primarily a residential community providing a labor force for nearby industrial areas; and,

WHEREAS, the traditional orientation of the community, and that which is planned for the future, is for family commerce, recreation, education and worship; and businesses and activities which are not family oriented are inconsistent with the existing development and future plans for the Des Moines community, and may have an adverse impact upon the same; and,

WHEREAS, such businesses have been found to appeal to special populations and often bring outside influences into the community which increase the crime rate and undermine the moral and social values of the family members; and,

WHEREAS, existing businesses find that as the character of the commercial environment changes, their business drops off, property values decrease and merchants serving the general community are forced to move out of the central business district, leaving it in a vacant and deteriorating condition; and,

WHEREAS, businesses which are not family oriented, and which would contribute to this adverse situation, should be encouraged to locate in other communities where their patronage would be more probable and profitable, and where their impact mould be more acceptable; now, therefore:

THE CITY COUNCIL OF THE CITY OF DES MOINES DO ORDAIN AS FOLLOWS:

Section 1. The City of Des Moines shall require a study and review of the probable impact on the community of any proposed business activity oriented towards serving or attracting a special population of customers, and not oriented toward activities reasonably related to the health, education and welfare of the family.

Section 2. No business license or renewal of business license shall be issued to any business which is determined by the City Manager to be oriented toward serving or attracting a special population of customers, and not oriented towards activities reasonably related to the health, education and welfare of the family, until such proposed business has first prepared and submitted to the City Manager a Community Impact Statement, as described in Section 3 below; provided that the following businesses shall be exempt from this requirement:

Section 3. A Community Impact Statement shall contain, at a minimum, the following elements:

1. Profile of customers;
2. Market area;

Section 4. A completed Community Impact Statement shall be filed by the applicant with the City Clerk. Copies of the same shall be distributed by the Clerk to all Council members, all City facilities, Secretary of the Highline School District, Secretary of the Des Moines Chamber of Commerce, and to any other parties requesting the same. The City Clerk may assess a charge for the cost of copying any statements issued to private parties. Within thirty days of the date the statement is filed with the Clerk, the City Manager shall either grant the business license, or shall call a hearing for the purpose of considering the same. At the conclusion of the hearing, and any continuances thereof, the City Manager shall either grant or deny the business license, entering written findings of fact supporting his decision should such decision be to deny the business license. It shall be valid grounds for denial of a business license if the City Manager finds that a proposed business will have a significant adverse impact upon the community and will be significantly inconsistent with the purposes of this Ordinance, as stated in the preamble hereof. The possibility of mitigating measures shall be taken into account. If a denial is ruled, the applicant may appeal the decision to the City Council by filing an appeal request within ten days of the date of such written decision with the City Clerk. The Council must schedule a Public Hearing to consider the appeal no later than ninety days after the filing of the appeal request. After hearing the appeal, the decision of the Council shall be final.

Section 5. All procedural elements of this Ordinance shall have retroactive as well as prospective application to any and all businesses that have not received a final and unconditional business license on the date of enactment hereof. The substantive elements of this ordinance are deemed to be necessary for the immediate protection of the public health, safety, and welfare, and shall also apply to said businesses.

Section 6. If any provision of this Ordinance, or its application to any person or circumstances is held by a Court of competent jurisdiction to be invalid, the remainder of this Ordinance, or the application of the provision to other persons or circumstances, shall not be affected and shall remain enforceable as originally enacted.

PASSED BY the City Council of the City of Des Moines this 9th day of April, 1979 and signed in authentication thereof this 9th day of April, 1979.

________________________________

APPROVED AS TO FORM:

________________________________

City Attorney

ATTEST:

________________________________

City Clerk

Published: April 13, 1979

Name of Applicant ________________________________ Date ________________

Name of Business ________________________________

Location __________________________________

Description of Business Activity

Review Checklist: (Please comment and initial)

Zoning __________________________________ __________ Planing Dept.

Building Code ____________________________ __________ Eng. Dept.

Parking _________________________________ __________ Eng. Dept.

Traffic __________________________________ __________ Eng. Dept.

Fire ____________________________________ __________ Fire Dept.

Health __________________________________ __________ Health Dept.

(if applicable)

Police __________________________________________________________

___________________________________ __________ Police

Ordinance #464 "Threshold" determination (check one)

Ordinance #464 threshold determination made on ________________________

date

READ THE ORDINANCE.

Copies are available at City Hall. The City will mail copies on request and provide copies when invited to give briefings at group or community meetings. The City will be happy to explain any and all details of the Ordinance to all parties pro or con.

UNDERSTAND THE ORDINANCE.

Ordinance 464 does not address the morality of first and second party transactions in legal business operations. The Ordinance is concerned with third party (innocent-nonconsenting) impacts only.

AVOID THE FRUSTRATION OF UNPRODUCTIVE ACTIVITY.

Anonymous letters, petitions and even political pressures are totally ineffective during the time a specific business license is being considered under Ordinance 464. All decisions must be made solely on the basis of the accumulated information as provided in the Ordinance. Confine your activities where possible to documenting the impact or potential impact to you or your family or business. When others are impacted, have them provide the information.

PROVIDE SPECIFIC INFORMATION.

If a hearing is called provide testimony as to how the proposed business would effect you.

1. What is your opinion of the business area or location?

2. Have you shopped there in the past?

3. Would you shop there if the proposed business license were granted?

If you have been witness to something which might have a pro or con bearing on a Community Impact Statement, gather specific information. Write down all details such as dates, times, persons, places, situations and all other circumstances which have a bearing. Be sure your facts are truthful, accurately stated and opinions are represented as opinions. The City will advise you as to protection of privacy in cases where information may be personally delicate.

HELP EDUCATE OTHERS AND URGE THEM TO HELP GATHER INFORMATION IF A HEARING IS CALLED.

Ordinance 464 represents a relatively new approach to protection for family communities. If a hearing is called, participate!

*Business is still in operation.

*Business is still in operation.

I. SUMMARY OF FINDINGS

II. RECOMMENDATIONS

III. INTRODUCTION

A. State Law

B. Local Law

C. Literature

IV. REVIEW OF LITERATURE AND ORDINANCES

V. SITE VISITATIONS

VI. IMPACTS

VII. ZONING APPROACHES

VIII. CONCLUSIONS/RECOMMENDATIONS

August, 1984

Mr. Stan McNutt

City Manager

City of Des Moines

21630 11^th Avenue South

Des Moines, WA 98188

Dear Mr. McNutt:

SUMMARY OF FINDINGS:

At your request, we conducted an independent study for recommendations to the City Council concerning policy directions to be undertaken by the Council relative to adult uses within the City. As you and the Council are aware from our previous efforts on the Revitalization Study, we are familiar with the community, the citizens and the character of its business district.

Our study set forth to look at adult uses and consider the following elements:

1. Zoning Study

2. Land Use Impacts

3. Impacts on the Revitalization Plan

In order to do this we set forth the methodology with steps including the following elements:

1. Discussion with other city officials who have been involved in the reviews of this type of use within their communities.

 

2. A review of the record of the hearings by the City Council on this matter in Des Moines.

Our efforts were concentrated in May-July to review these items listed above. However, it is complemented by my 8 years of occupying office space at 3rd & University in Seattle, whereby I have observed land use impacts of adult type uses on 1st, 2nd and 3rd Avenues near my office. I also have observed the impact on adjacent land uses, signage, street treatment, and the general character of the urban area. This effort was supplemented by a review of locations such as Bremerton, Redmond, Renton, Northend Seattle, Aberdeen, etc., to ascertain the general character of land uses and the economic impacts of adult entertainment in any given area of a community. Following further work efforts, a detailed report shall be provided the Council in the near future.

However, some of the conclusions and observations may be appropriate. They are as follows:

Respectfully submitted,

Robert W. Thorpe, AICP

RWT:mc

(1)Writer is Institute of Real Estate Appraisers (MAI) candidate.

The following study is a review of available literature and analysis of the impact on sites in similar communities throughout Washington and impacts on the Des Moines Central Business District as well as a review of various approaches in other communities. The review of over 600 pages of reference material studies, court cases and transcription of public testimony leads one to the conclusion that adult businesses are both by their actual impact and their perception, distinguishable from other businesses in terms of their land use impacts. They are further distinguished in terms of the character of the product, and the service they are providing. This fact is pointed out through detailed analysis in similar studies by various communities in State of Washington in which this report is largely based, as well as first hand observations. Adult uses may have adverse impacts on surrounding land uses, business turnover, deferred maintenance, quality of environment, and perception of the desire of people to frequent that area.

Various approaches have been utilized by a number of communities throughout the State of Washington as well as throughout the country in cities such as Detroit, New York, New Orleans, Denver, Seattle, etc. Although the experience is mixed in cities nationwide and throughout Washington, zoning has been utilized as one tool in containing, controlling or directing the various impacts which adult uses may have, on a community's viability, its opportunity for revitalization and the quality of lifestyle.

This study is an overview analysis of the regulation of adult uses in the City of Des Moines and their impact on revitalization efforts that are ongoing in the City. The study includes a review of literature and a look at six or more sites in the State of Washington for the impact of adult businesses. It reviews, in brief summary, the impact of ordinances in other communities, zoning alternatives for mitigating the adverse impacts and sets the ground work for analysis by the City Attorney as to adult use law and legal guidelines.

The goals and purposes of the Des Moines CBD Revitalization have been well documented through the Phase I and Phase II Study and completed in 1983 by R.W. Thorpe & Associates, Mundy/Jarvis, the TRANSPO Group, and the Makers with close cooperation of the entire city and business district tenants/owners. The goals and policies of the community are further identified in various planning documents such as the Comprehensive Plan, Shorelines Master Program, Park and Recreation Plan, and other statements of general community intent, direction and purpose. Through the use of Subdivision Ordinances, Capital Improvements Program, and Zoning Codes, these Comprehensive Plan and revitalization studies are implemented. It appears appropriate that some of the adverse land use impacts of adult uses are appropriately addressed through city policies, zoning code requirements, design review and adult use permit approval procedures. It may be summarized that some various approaches may be appropriate for the City Council in its future deliberations on this matter. Some of the alternatives or options may include:

Although prohibition of all adult uses altogether, may be perceived by some as an option, the experience of review of all of the literature, ordinances, court cases and experiences, is that this is not a viable alternative and that some provision needs to be made for their locating somewhere within the community while protecting the goals and policies of the Comprehensive Plan and certain already well-positioned activities for residential, educational, recreational, religious and other pursuits.

In terms of allowing uses, the question then may become one of two approaches or a modification of the two:

a. Provide for concentration of the uses or;

b. Dispersal;

c. Modified concentration or dispersal.

The conclusions of this report is that Alternative C is more appropriate with a standard set for a minimum distance, say 1000 feet (or some other distance standard) from residential zones, churches, parks, schools, etc. In order for this to be implemented, the City Council would need to direct the Planning staff or the City Attorney to develop regulations for amending the zoning code and codeffication of that amendment to the City ordinances. Also, goals and objectives would need to be part of the ordinance and it would be necessary to include the following:

For the past several years there has been lengthy discussions within the City of Des Moines as to the merits or demerit of inclusion of adult uses within the City of Des Moines. This was particularly brought to light during the recent Revitalization Study where the impacts of these uses were identified and considered as part of the goals and objectives with improving and revitalizing Des Moines Central Business District. In order to review this type of use, the City has set forth certain procedures whereby the review of these uses shall be by an established procedure and public testimony as taken as to their value to the community. Further, the City has requested that a consulting planner, R.W. Thorpe & Associates, Inc., review existing literature, the record of hearings before the City of Des Moines, visit sites of various other adult uses, and provide a summary report as the impact of adult uses on those communities. The Study, as with other communities, past and on-going study efforts establishes that the impact of adult uses is both actual in terms of the impact on adjacent uses and the community, as well as perceived. The focus of this Study is to identify those impacts by site visits, explore how other communities have provided for areas to respond to the demand for this type of use, while at the same time, protecting the health, safety, general welfare of the community and specific land uses devoted to residential, recreational, education and religious purposes. The City of Des Moines has been endeavoring to evaluate its current zoning regulations as to differentiate the adult uses from general business activities.

The purpose of this analysis, the report to the City Council as authorized by the City Manager at the direction of the Des Moines City Council to determine if the testimony being received by the City could be supplemented or complemented by a special study by a consultant planner with appraisal background to ascertain the impact on the Central Business District Revitalization Study, residential neighborhoods, religious uses, and recreational facilities in the community in general. If these effects can be identified, the City may be able to utilize an analysis of those impacts as well as the experience of other communities to devise methods to offset the adverse land use impacts through regulatory changes. One of the methods utilized is that other alternate zoning approaches of other communities will be considered in their broad range where their potential application to the Kent community.

The scope of the study focuses largely on adult motion picture theaters, and adult bookstores. However, because of the nature of the activities in the Des Moines environment, particularly along Highway 99, north of the city, the study also includes a cursory look at adult motels, massage parlors, body painting studios, "head shops" and other similar uses. The writer in reviewing other reports, particularly the Kent Adult Use Study, has chosen to exclude places where alcoholic beverages are served and gambling establishments.

Although a portion of the testimony given to the City of Des Moines centers on a perception of whether adult entertainment is distasteful, immoral, unethical, or disruptive, it is not within the scope of this study to evaluate adult uses based upon moral or pornographic terms. Clearly this should be left to the advice of the City attorney and the courts. The focus of this study is land use impacts associated with adult uses, not matters of personal discretion and taste or that of one individual choice of services or goods obtained.

In sum, the purpose of this study is to see if these uses can be located where their impact, or be minimal to other elements of the community and further that their impacts of the specific sites can be mitigated through zoning regulations or conditional use approval processes.

In order to prepare for this summary report the author has reviewed over 600 pages of documents, transcripts that I have conducted as a basis for public input at the City Council meeting, ordinances, and conducted six "adult uses" site visits. This report is a summary of the writer's observations and conclusions and is written with the intent that the background data is available for public testimony or research information for ordinance writing. The review includes a review of several documents listed in the reference list at the end of this report. A brief review of the State laws, the local laws, information available from American Society of Planning Officials, Presidential Commission on Obscenity and Pornography, Land Use Law, Digest, and ordinances from several cities in the State of Washington as well as review of State and Washington community laws.

State Law

Based on our review of several local ordinances, their citations indicate that regulation of adult businesses through zoning or businesses license is part of the local police power. The federal and state laws address adult publications and films but are not specific in terms of administration of the location of adult businesses. ROW 9.68.050 sets forth requirements for books and films to be labeled as "adults only" attempting to limit the exposure to minors. The definitional section under this is as follows:

Thus, persons under the age of 18 are attempted not be exposed to explicit films and publications. State Law also provides for review of massage parlors, under RCW 18.108 and topless dancing under the Washington Criminal Code RCW Title 9A. Massage parlors prohibit minors working in such activities and topless dancing and nude entertainment cover such illegal acts such as prostitution, indecent liberties, or public indecency. Washington State Communities Laws.

A review of approximately 8 regulations within the State of Washington shows that various approaches are used in regulating. The primary one appears to be the zoning approach whereby the businesses are 1) concentrated, 2) dispersed or 3) in a modified dispersal pattern at specific areas designated on a zoning map. In addition, several communities have used licensing requirements, conditional use permits, or general welfare provisions to regulate these matters. In summary, it appears that most communities have taken slightly different directions based upon public testimony, their advice of their City Attorney, and Planning staffs recommendations as to the regulation of adult uses and their location.

Most of the adult use ordinances have been adopted in the last eight to ten years following public response and demonstration over the inclusion of these land uses in various communities. Noteworthy examples are the North End Cinema in Seattle (Greenwood), the Forbes Theater in Redmond, the Forbes Theater in Renton, and the adult movie theaters in Bremerton and Aberdeen. However, each communities zoning regulations differ somewhat and those in Washington differ from national examples of Boston, New Orleans, Detroit, etc. Seattle follows the Boston example of concentrating adult uses throughout the commercial areas of downtown. The City of Redmond has utilized an approach based upon the combinations of the court cases from Detroit and Boston which sets up specific distance requirements in designated commercial areas. The City of Renton is following a similar pattern in their ongoing court action with Forbes Theaters, use of the Boxy Theater in downtown Renton.

Two key examples are Boston, which concentrates adult businesses in a small zoning district located in the commercial core, and conversely, Detroit. The latter allows adult uses in designated commercial zones as long as a 1000 ft. distance between each individual use is maintained.

The North End Cinema - City of Seattle (Wa. 585 p.2d 1153) case provides some guidelines for zoning standards and the regulation of the adult theaters. The Supreme Court of Washington in October of 1978 set forth the following points:

The City of Blaine, Washington includes in its ordinance adult bookstores, adult motion theaters, adult mini-motion picture theaters, and shoeshine parlors, and sets forth the standard of minimum distance of 1000 ft., between each use and 500 ft., from any residential dwelling or rooming unit.

The City of Kirkland sets up a specific zone by an overlay district and performance standards can be reviewed in a public hearing process. First the property owner must apply for a rezone to place an "AE" designation on the zoning map for the subject property. This requires a public hearing before the Planning Commission and final action by the City Council. Requests must correspond to one of the City's commercial zones. The City of Kirkland utilizes a standard of 1500 ft., away from the school, park, or other establishments which caters primarily to minors. It can be proven only if the City Council has the final action taken before them. This approach places the burden of application and proof on the individual proponent and provides protection for those places where young people congregate such as schools, parks, and youth clubs.

The City of New Orleans utilizes a historic landmark district and ascertains the impact on adjacent uses and the character of the area, particularly as it applies to the French Quarter in New Orleans which has a specific planned area with special development standards as does the Revitalization Area in Des Moines.

It appears that the City of Des Moines zoning policies are being prepared to differentiate adult uses from similar business establishments and activities. That is, an adult movie theater would be distinguished from simply a movie theater as far as existing zoning regulations are permitted. This would be a step away from allowing adult bookstores to be treated as general bookstores and, adult movie theaters as movie theaters as far as the Zoning Code is concerned.

This type of adult use is concentrated on Des Moines Way in the adult movie theater and the adult movie bookstore, and in the past some small shops selling materials that may be utilized in some people's viewpoint as drug paraphernalia. The other area that appears that this use might occur is along Highway 99.

1. North Seattle.

A review of the record of testimony by individuals involved in the North End Cinema indicated that the property owners sited noise, late hour use, vandalism, increased crime, and other factors in their concern about the nuisance element of this theater. Since the removal of this theater, the intent to preserve the quality of the neighborhood through effective land use planning appears to have been achieved. Discussions with City of Seattle staff indicate that no complaints of the nature previously received have occurred within the area of this theater.

2. Seattle: First Avenue and 3rd Avenue & Union Sites - Adult Cinemas.

Most of these uses are concentrated in approximately a six square block area between Seneca Street on the South and Pike Street on the North, and between 1st and 3rd Avenues in downtown Seattle. At the time of this report, there were discussions to revise the 3rd Avenue Cinema to remove the adult pictures and revise this into "legitimate theater" and restaurant use. Conversations with Carma Developers concerning their use and other developers along 1st Avenue (at Union) indicated that the number of those uses would be phased out as those buildings were rehabilitated. The general observation of these buildings is that these buildings and their uses create deferred maintenance, functional obsolescence and some general decline in upkeep and visual appearance of the existing buildings and adjacent uses.

A discussion with a Seattle police officer assigned to this area indicated that the highest incidents of crime (evening hours) in Seattle occur on 1st and 2nd Avenues in this area, particularly among teenagers.

Some associated decline in contributory value may be able to be ascertained by a review of rents of these facilities. These Seattle areas are frequented by heavy foot traffic due to the desire of people to go from the office areas of 3rd through 6th Avenues to the Pike Place Market and the Waterfront, therefore people pass through these areas. However, people passing through do not appear to be those frequenting the establishments. The image of these streets is far different in the minds of people of Seattle than that of 4th, 5th and 6th Avenues in terms of cleanliness, quality of shops, safety and economic return for these types of uses in the building.

3. Renton.

Renton has two theaters located across the street from each other on 4th Avenue in the downtown area -- the Renton and the Roxy. One theater was converted to an adult theater use. Litigation by the City against Robert Forbes for the use of this theater for adult movies is pending at the time of this report. Contact with Dave Clemens, Policy Planning Director and Roger Blaylock, provided a review of the history of the development with Renton's Ordinance and their legal argument. This information has been available to the Des Moines City Attorney. Renton is attempting to utilize a modified diversion method to locate theaters away from schools, housing and recreational areas. This subject theater is located approximately 3 1/2 blocks from the Renton High School, 3 blocks from the Catholic grade school, and is close to several parks. The City of Renton is attempting to base their case upon their new ordinance for dispersion of use, minimum setbacks from schools and residents and establishing a standard abatement schedule time period.

4. Bremerton.

This theater located on Calisan Street, in the Charleston area of Bremerton outside of the Central Business District, has, due to the adult theater nature, encouraged adult bookstores and similar uses on the west side of the block in the area. The east side is occupied by two strong neighborhood "anchor" tenants, an appliance store and a shoe store. There is a marked difference in the maintenance and general character of the two sides of the street. At the time of the writing of this report, there was some understanding by City officials that this theater would be converted to non-adult theater, family motion picture use.

5. Aberdeen.

Discussions with the City Planner reviewed the history of their attempts to remove an adult theater use from downtown Aberdeen. The City Planner cited increased instance of crime, negative impact on adjacent land uses, increases vacancy in adjacent shops and that the use was counter to the general purposes and objectives of the comprehensive plan in their reasons for seeking abatement of that use.

6. Redmond.

This site like Renton was in the process of being reviewed by the City. Discussions with members of the City Planning Staff indicate that problems similar to the North End Cinema were cited related to crime, late night disturbances, and impact on adjacent uses in terms of desirability of tenants to remain in the area.

7. Adult Uses in Des Moines.

The primary adult use in Des Moines is the adult theater on Marine View Drive, (and previously a "Head Shop") in the heart of the Des Moines revitalization district. Review of the public testimony indicates that a significant percentage of the community reduces their shopping trips to the business district area to avoid these uses. Due to the turnover in shops adjacent to these uses in the same block, some difficulty was encountered by the consultants on the Revitalization Study as to the future use of this block. The uses not only provide a perceptual problem with people desiring to shop in the area, they provide somewhat of a "deadhand" in the planning process for the upgrading of this area and the revitalization of the Des Moines Business District.

The police record provides a review of various other adult type uses such as the selling of drug paraphernalia, at a "head shop" and other historic uses in both the Business District area and along Highway 99 that have provided complaints and requirements for increased police activity.

Based upon my review of the literature from various communities and visual observations of several other sites, as well as an in-depth understanding of the Des Moines Business District through the Revitalization Study, some overview summary comments as a basis for public testimony can be set forth here as to the special impacts of adult uses. In order for the City Council to better plan for the regulation and location of adult uses, these special impacts provide certain insights. Although only part of the data is taken from the City of Des Moines, the majority of the information comes from other communities in Western Washington that provides some basis for policy direction by the City of Des Moines.

1. Crime.

The City of Kent Adult Use Zoning Study has a thorough discussion of the incidence of crime in several other communities and is a good reference for the City Council in their review.

2. Land Uses.

The writer of this report is a certified planner (AICP) with educational and work experience in the real estate appraisal field, and presently is a candidate for the MAI appraisal designation. Utilizing this combined background in my visits to various other sites, some general observations concerning land use, social impacts and land economics can be made of most of the sites. There appears to be a definite impact on adjacent land uses, the turnover of tenants, deferred maintenance, functional obsolescence, maintenance of access areas such as streets and parking lots surrounding these uses. The improvement or decline of business areas or neighborhoods has been well documented in many planning studies as having both physical and "perceived" elements. That is, if people perceive an area as improving, they may work to invest money and improve the overall area. That is, a strong new anchor tenant that comes in and improves a key piece of property encourages other owners and tenants to do the same. Conversely, a tenant that in other peoples perception is creating a decline in property values or "image," contributes to their management decisions to defer maintenance, defer upgrading of buildings and put less emphasis on that piece of property as an investment part of their portfolio. This secondary impact appears to be occurring in several communities where this type of location has occurred. Noteworthy are Bremerton, Seattle, and Aberdeen. Some small impact appears to be occurring in Des Moines in a similar vein.

3. Economic Impact.

There appears to be some increased turnover in tenants adjacent and near these uses. And further, a location of similar type of uses in the area. My discussion with some seven real estate appraisers leads to some different conclusions that that of the survey of the City of Kent. The appraisers perception of various communities of which they are located, (Renton, Bremerton, Seattle, Redmond) indicates that they feel that this type of use when included next door to other healthy businesses may result in a reduction of property values and/or rental income stream. Most appraisers felt that there is a negative impact on residential property values as well as an impact on business property values. Several felt that the change in key anchor tenants on 3rd, 2nd and 1st Avenues in downtown Seattle would possibly induce these areas to upgrade and provide stronger office use on upper floors and comparison shopping on retail floors that had street access. Therefore, my discussions and interviews arrived at a slightly different conclusion that that of the Kent Land Use Study.

4. Community Impact.

The proliferation of adult uses has occurred in the Puget Sound area in the last six to ten years. City staffs, Planning Commissions, and City Councils have been wrestling with zoning and comprehensive planning approaches to address these uses and the perceptions of residences as to their impacts. A number of communities have reviewed these matters and there is on-going discussions by the association of suburban mayors, city attorneys, city planners and other groups.

The general consensus appears to be that adult uses are incompatible with residential, religious, educational and recreational uses where minors may meet collectively. As sited in several other studies, and in particularly in the Kent study, the Greenwood area at 85th Avenue, N.E., was impacted in 1975 and 1976 when a local theater began showing X-rated films. The record shows that the residents discussed crime, traffic, and undesirable patrons, litter, maintenance and potential impact on small shops, businesses and residences in the area. In response to this outcry, the City of Seattle Council adopted an ordinance that provided for concentration of these uses in downtown Seattle area and not in outlying neighborhoods, and set an abatement schedule. The owner sued the City and through a series of court appeals, from the Superior Court to the Court of Appeals, and finally to the Supreme Court of Washington in 1978, the City was able to demonstrate by a well documented public record that the adult theater had a harmful effect on the Greenwood area business district, religious areas, residential and recreational areas. The Washington State Supreme Court agreed that the goal of preserving the quality of residential neighborhoods including their supporting business districts by prohibiting disruptive of adult uses, was a valid and

substantial public interest.

5. Compatibility with Other Uses.

Much of the public testimony comes from church organizations and recreational proponents and residents. It appears that these three user groups have testified as to the incompatibility of adult uses with residences, schools, churches and park areas. Residents of the area testified as to the adverse affects of such uses on family orientation of the neighborhood. These findings were made part of the court record in the Greenwood case and helped form the basis for a decision in favor of the City. A similar line of testimony appears in the Des Moines transcripts.

As previously cited, several examples have been utilized. Seattle concentrates adult uses as does Boston. Redmond and Renton have used a modified dispersal approach. Detroit utilizes a dispersal approach. Kent is considering a modified dispersal approach. Blaine utilizes a dispersal approach, and Aberdeen, a concentration approach. Although there is no precise standard that applies to every city, in each city's approach must be based upon the City Council's and Planning Commission's perception of the community's desires, it must be based on a clear public record on the impacts of these uses and not be based on moral or personal preference grounds. A combination of licensing, special permits and zoning practices to mitigate impacts appears appropriate.

As noted in other cities, studies such as Renton, Redmond, Seattle and Kent, there appear to be four generalized approaches to land use regulations which are in common use:

1. Dispersal ordinances; (zoning)

2. Concentration ordinances; (zoning)

3. Modified dispersal concentration ordinances and; (zoning)

These approaches have been discussed previously but are summarized briefly

below:

1. Dispersal Ordinances.

Seeks to spread adult uses throughout the city as opposed to concentrating the minimum standards of 1000 to 1500 feet have been utilized in various communities. It does not appear that anyone other than Blaine is utilizing a total dispersion type approach. Kirkland is using a modified dispersion approach with a special use permit and rezone approach.

2. Concentration Approaches.

These seek to cluster or concentrate adult uses in certain uses and similar to the Boston approach. The idea here is that by confining impacts to small areas, this insulates the balance of the community. The City of Seattle utilizes this approach as well as the City of Lynnwood. In terms of the City of Des Moines, this concentration approach that if the theater was located on Highway 99 might be more appropriate than the present situation.

3. Modified Dispersion Concentration Approaches.

Most communities utilize one of these approaches. According to several sources and by review of the court activities, the courts in the State of Washington have allowed a variety of regulatory approaches as long as the regulations are valid. The City of Tukwila and Renton have similar ordinances that employ a modified dispersion approach of adult theaters. The City of Redmond followed their suit in 1982 of modified dispersion in certain commercial districts.

4. Special Approaches.

The City of Kirkland is an example of the special approach which appears to me to be one of the best examples of any community. The City Planning staff has had a long history of developing overlay zones for waterfront districts, sensitive areas, and special use districts which have been implemented by Planning Commission, City Council action. Therefore, their comprehensive plan and implementing legislation provides a strong basis to establish a special zone for adult uses and provide for a rezone and special permit process and clear showing of burden on the applicant.

From my review of all of the readings, several planning criteria were established in the Kent Study which may be appropriate for the City of Des Moines. These criteria could be developed by the Planning staff, with the assistance of this consultant as a basis for adopting one of the approaches cited in the previous chapter.

I would recommend that the City of Kirkland's approach appears to be the most viable one for the City of Des Moines. The City of Des Moines has established a Special District, that is the CBD Revitalization District. Within this District special zones and uses are set up. An additional zone could be established for this type of use or established for the Highway 99 area. This combined with the "dispersal method" or "modified dispersal method" would provide for location of these uses in certain areas. These sites would need to be 800 to 1000 feet (note: report revised in February 1985 to reflect findings on "concentric rings/zoning map" study by Des Moines Planning Staff that establishes areas available in the City for Adult uses if different standards (i.e., 1500, 1200, 1000, 800 are utilizes) from residences, schools, playgrounds and/or churches. It would further regulate them by providing a requirement for a rezone for this type of use and conditional use permit with the burden of proof being upon the applicant. This would be an expansion of the present licensing process that the City now utilizes.

Recommended Steps

1. Review planning staffs zoning map with minimum distance standards available. Establish modified dispersal method.

2. Establish an "AE" - Adult Entertainment Zone.

3. Permit adult use in this zone upon approval of:

4. Establish procedures for:

To: City Manager June 10, 1985

City Attorney

From: Planning Director

Re: Adult Theater Overlay Map

As requested, the adult theater overlay series has been completed. The objective has been to illustrate where, along Pacific Highway South, adult theaters could situate given a requirement to maintain a distance from churches; schools, through high school; day care centers; libraries; public parks and other adult uses. Two radii were employed:

1. 500 feet (Overlay 2), and

2. 1000 feet (Overlay 3).

By plotting where commercial properties are developed, suitable for redevelopment and vacant, then overlaying these with acetate sheets illustrating the variable radii, properties available become more apparent.

Vacant and redevelopable General Commercial zoned properties along Pacific Highway are depicted on Overlay 1. Redevelopable properties were defined as lots presently supporting a business but by virtue of being a non-conforming use, such as a single family residence or mobile home park or upon which a deteriorating structure is located, are candidates for redevelopment in the foreseeable future. This is a broad category embracing lots with no permanent structure where mobile home sales are occurring to mobile home parks which are non-conforming in the C.G. zone and subject to conversion as development pressures mount. The letter's inclusion into the redevelopable classification stems from an assumption that these maps are to denote potential sites for future application as well as portray present conditions. Conversion of existing structures to theater use was not assessed, however, the particular needs of the theater developer could allow an occupied building to be remodeled.

Whether an adult theater can be practically located on Pacific Highway will be a function of the size of the facility desired and accordingly the amount or parking and landscaping required. My intent has not been to provide a market analysis or potential site survey, but rather to provide a guide to the amount of redevelopable and vacant properties on Pacific Highway, presenting information critical to a determination of which radial variable should apply in regulating adult theaters. Even cursory examination of the overlays demonstrate that application of a 1000 foot radius requirement, removes most of the C.G. zoned property. Given a 500 foot radius, several locations become potential theater sites.

More precise figures for the Pacific Highway South commercial zone were developed as a result of mapping activity. Additionally a breakdown of developed, redevelopable and vacant parcels in square footage has been provided as follows:

Vacant 446,156 15.7%

Developed 926,454 32.5%

Redevelopable 1,474,372 51.8%

Total 2,846,932 100.0%

No detailed mapping and calculation was undertaken to provide data on the square footage remaining after application of the variable radii.

Attachments:

Churches with proximity to Pacific Highway South

Schools with proximity to Pacific Highway South

Public Facilities with proximity to Pacific Highway

Adult Use Survey

Assembly of God

Church of Des Moines

21650 24th Avenue South

Soundview Baptist Church

2045 South 216th Street

Seacoma Community Baptist Church

24800 Pacific Highway South

Kent, WA

Midway Covenant Church

22460 24th Avenue South

Des Moines

South Seattle Foursquare Church

2038 South 222nd St.

Des Moines

Christian Faith Center

21024 24thAvenue South

Seattle (unincorporated King County)

Grace Lutheran Church

22956 24th Avenue South

Des Moines

Eternal Temple of Truth & Light

25040 Pacific Highway South

Kent

Marcus Whitman Church

2130 South 248th St

Des Moines

St. Philamena

1815 South 220th Street

Des Moines

St. Columba Episcopal Church

2031 South 216th Street

Des Moines

First Baptist Church of Des Moines

22421 19th Avenue South

Des Moines

Des Moines Library

22815 24th Avenue South

Des Moines

King County Fire District #26

2238 South 223rd Street

Des Moines

Des Moines Park (Kiddy Park)

24th Avenue South & Kent-Des Moines Road

Des Moines

Parkside Park (King County)

South 242nd Street & 16th Avenue South

Des Moines

Mount Rainier Swimming Pool

22722 19th Avenue South

Des Moines

215640 - 0203: A. J. French

0201: Callow - Printers, etc.

Developed 47,700 sq. ft.

0180: Used Mobile Homes - L. B. Properties

Redevelopable 60,372 sq. ft.

S.W. corner of South 224th and SR 99

250060 - 0005: C.G. only

Vacant 42,200 sq. ft.

0012: Vacant 30,000 sq. ft.

0011: Vacant 11,190 sq. ft.

0015: Seatac Auto Sales

Redevelopable 19,515 sq. ft.

0018: Seatac Auto Sales

Redevelopable 18,950 sq. ft.

S.W. corner of South 226th and SR 99

250060 - 0025: Furniture House

Redevelopable 32,750 sq. ft.

0020: Burger Kitchen

Developed 29,512 sq. ft.

0040: Burger Kitchen (parking)

and vacant 51,280 sq. ft.

0050: Shepard & Nelson

Redevelopable 8,000 sq. ft.

0051: Single Family Residence

Redevelopable 11,800 sq. ft.

0052: Single Family Residence

Redevelopable 8,750 sq. ft.

0060: Warehouse and Office

Redevelopable 34,248 sq. ft.

0070: Single Family Residence

Redevelopable 17,112 sq. ft.

0072: Duplex and Shop

Redevelopable 7,000 sq. ft.

0071: Offices

Redevelopable 11,700 sq. ft.

215640 - 0268: Mobil Home Sales

American Cable TV

Redevelopable 19,500 sq. ft.

0262: Single family residence

Redevelopable 23,500 sq. ft.

0269: Mobile Home Sales

Redevelopable 18,174 sq. ft.

S.E. corner of South 222nd and SR 99

215640 - 0241: Mobile Home Sales

Redevelopable 37,668 sq. ft.

0242: Single family residence

Redevelopable 28,595 sq. ft.

0250: Mobile Home Sales – Redevelop 19,904 sq. ft.

0220: Legend Motel

Developed 42,521 sq. ft.

0202: Hearthside Antiques

Redevelopable 24,576 sq. ft.

0200: Moongate Motel

Developed 22,304 sq. ft.

0181: Vacant 15,675 sq. ft.

S.E. corner of South 224thand SR 99

250060 - 0125: Trailer Sales

Redevelopable 24,748 sq. ft.

0136: Trailer Sales

Redevelopable 16,500 sq. ft.

0140: Trailer Sales

Redevelopable 24,750 sq. ft.

0146: Antique Shop

Redevelopable 12,375 sq. ft.

0151: Antique Shop

Redevelopable 4,125 sq. ft.

0152: Antique Shop

Redevelopable 15,750 sq. ft.

0155: Volkswagon Repair

Redevelopable 22,500 sq. ft.

South of Kent-Des Moines Rd.

S.W. corner of intersection of Kent-Des Moines Road and SR 99

250060 - 0605: Picture Frame Shop

Redevelopable 25,409 sq. ft.

0611: Single family residence

Redevelopable 15,458 sq. ft.

0612: Vacant 15,504 sq. ft.

0615: Scott's Appliance Repair

Redevelopable 45,588 sq. ft.

0622: Auto Parts Store

Redevelopable 8,568 sq. ft.

0625: Shell Station

Developed

0630: Shell Station

Developed 33,000 sq. ft.

0641: Warehouse and SF

Redevelopable 15,000 sq. ft. (C.G. only)

0650: Canopy Mart

Redevelopable 15,000 sq. ft. (C.G. only)

0655: Canopy Mart

Redevelopable 15,000 sq. ft. (C.G. only)

0660: Skippers/Baskin Robbins

Developed 27,150 sq. ft.

0665: Tool Town

Redevelopable 30,313 sq. ft.

0701: Kentucky Fried Chicken

Developed 38,337 sq. ft.

0705: Union Oil Co.

Developed 16,393 sq. ft.

360300 - 0024: Midway Manor

Developed 42,300 sq. ft.

0030: Recycling Center

Redevelopable 25,680 sq. ft.

July 28, 1985

TO: Planning Director

FROM: Planning Administrative Aide

The following is the amount of General Commercial (C.G.) zoned property along Pacific Highway South in Des Moines after application of a 500 foot radius from the property lines of churches, schools and public facilities:

Vacant 112,979 6.4%

Developed 662,250 37.7%

Redevelopable 981,181 55.9%

Total 2,756,410 100.0%

This indicates that 1,094,160 square feet of land along Pacific Highway South is potentially suitable for adult entertainment facilities, even after restricting the location of such businesses to buffer churches, schools and other public facilities.

The attached King County Assessor's Maps cover the length of Pacific Highway South within the Greater Des Moines Planning Area. Together with this data, they should provide a complete description of appropriate and available property for adult entertainment facilities in Des Moines.

Attachments

March 31, 1987

To: Members of the City Council

From: City Attorney

Re: Request for Final Supplemental Findings, Adult Use Project

The newly adopted Highway Commercial Zoning is found in DMMC 18.29. DMMC 18.29.020(2) lists as one of the permitted uses adult entertainment facilities, provided that such facilities are prohibited within five hundred (500) feet of the property lines of churches, schools, day care centers, public facilities, adult motion picture theaters or other adult entertainment facilities. Adult entertainment facilities means adult book stores, adult cabarets, adult video stores, adult retail stores, adult massage parlors, adult sauna parlors, and adult bath houses. DMMC 18.29.020(55) lists as one of the permitted uses theaters, provided that adult motion picture theaters are prohibited within five hundred (500) feet of the property lines of churches, schools, preschool through high school, public facilities, adult entertainment facilities or other adult motion picture theaters. Adult motion picture theaters are defined as an enclosed building used for presenting motion picture films or video tapes or other visual media distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas [as further defined in the Zoning Code] for observation by patrons therein.

Thus, the approach taken by the City Council in regulating adult entertainment facilities and adult motion picture theaters is the dispersal/concentration approach. It is "concentration" by limiting such uses to the highway commercial area on Highway 99, and it is "dispersal" by requiring the five hundred (500) foot separation from other similar uses. Both the concentration and dispersal methods were approved by the United States Supreme Court in 1986 in the case of City of Renton v. Playtime Theatres, Inc. (hereinafter "Playtime"). In Playtime the court stated: "Cities may regulate adult theaters by dispersing them, as in Detroit, or by effectively concentrating them, as in Renton. It is not our function to appraise the wisdom of the city's decision to regulate adult theaters to be separated rather than concentrated in the same areas. The city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems."

The Renton Ordinance prohibited adult motion picture theaters from locating within one thousand (1,000) feet of any residential zone, single or multi-family dwelling, church, park, or school. The Des Moines Ordinance diminishes the one thousand (1,000) foot separation to a five hundred (500) foot separation, thus being less restrictive than the Renton Ordinance. The reason for the five hundred (500) foot separation in Des Moines was based on an extensive scientific study that a five hundred (500) radius provides adequate real property for an adult motion picture theater to exist on Pacific Highway South, to-wit: 18.13 acres. This conclusion was incorporated in supplemental findings adopted by the City Council on August 22, 1985.

The public hearings and the study engaged in by the City Council, which resulted in the June 13, 1985 and August .22, 1985 findings, were conducted prior to the decision in the Playtime case. Prior to Playtime, the law was unclear as to whether a city must make specific scientific studies of its own community, or whether it could rely on the studies conducted by other cities. The Playtime case resolved that question. In Playtime the Supreme Court stated:

The Supreme Court went on to say that the Renton City Council had the Northend Cinema case before it when it enacted the ordinance in question. The Northend Cinema case detailed Seattle's experience as follows:

The Supreme Court then went on to say that Renton was entitled to rely upon the experience of Seattle and other cities, and in particular on the "detailed findings" summarized in the Washington Supreme Court's Northend Cinema opinion, in enacting its adult theater zoning ordinance. The Supreme Court stated that a city is not required, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.

The minutes of the City Council meeting of June 13, 1985 contain the initial set of findings adopted by the City Council with respect to adult uses. One of the items of "evidence presented" was "a photocopy of the leading Washington Supreme Court case on the subject of adult use zoning, Northend Cinema, Inc. v. City of Seattle." There are an additional twelve other items under the heading of "Evidence Presented." To refresh the Council's recollection, I am attaching a copy of the minutes of the June 13, 1985 meeting.

While it is clear from the findings of the City Council that the City Council did rely upon experience and studies in other cities, along with specific studies relative to the city of Des Moines, I think it may be appropriate to enter some final supplemental findings in accordance with the new direction given to municipalities by the Playtime case. Accordingly, I request that the City Council enter the following:

Final Supplemental Findings

Based on all the materials presented to the City Council at the numerous public hearings on adult uses, professional evaluations and materials, and the findings of the City Council previously entered, along with the direction given to municipalities by the United States Supreme Court in the case of Renton v. Playtime Theatres, Inc., the City Council makes the following Final Supplemental Findings:

1. The approach to control of adult uses through zoning adopted by the City Council of the City of Des Moines can be characterized as a "concentration/dispersal" method.

2. The "concentration" aspect limits adult uses, including adult motion picture theaters, to the Pacific Highway South (or SR 99) area of the City of Des Moines.

3. The "dispersal" aspect requires separation of adult uses from each other by a minimum of five hundred feet (500').

4. In adopting the "concentration" aspect, the City Council relies upon all studies and public hearings described in previous Findings, and further upon the experience and findings of the City of Renton and the City of Seattle, described respectively in City of Renton v. Playtime Theaters, Inc. (the United States Supreme Court Case) and Northend Cinema, Inc. v. City of Seattle.

5. In adopting the "dispersal" aspect, the City Council relies upon all studies and public hearings described in previous Findings, and further upon the experience of the Detroit Common Council described and findings in Young v. American Mini Theaters.

6. In adopting the five hundred foot (500') setback from the property lines of churches, schools, (pre-school through high school) and public facilities, the City Council relies upon all studies and public hearings described in previous Findings and the experience and studies of Renton and Seattle described in the City of Renton v. Playtime Theaters, Inc. (The United States Supreme Court case).

JBG:ds

cc: City Manager

June 13, 1985

Marina Committee, Chairman Davis informed Council that City Manager will be conducting a biological survey for the Diver's reef in July and August. This is necessary before the Dept. of Fisheries will approve the dumping of rocks.

Public Safety & Transportation Committee, Chairman Clement advised Council that they are continuing discussion as to the potential need for a fund to finance long range improvements in the transportation area.

Environmental Committee, Councilman Root informed Council he will be pursuing contact with outside agencies, i.e. Fisheries, Metro, regarding environmental enhancement of City's streams.

City Service Center Roofing Problems, Acting City Manager Hayes related that Architect Kniskern has received another estimate and requests more time to study the conflicting estimates.

Marina Restroom Bids, Acting City Manager reported bid opening for Marina restroom addition yesterday. Requested item be placed on agenda under Old Business. Request granted.

City Attorney Gorham informed Council that the proposed ordinance has been reviewed by staff members and is recommended to be approved.

Councilman Clement noted he was pleased with the portion that held the City harmless.

City Attorney noted that the ordinance has been prepared at Council's direction. He read the ordinance by title.

City Attorney Gorham directed Council's attention to his memo of June 13, 1985, suggesting a change in wording in the previously prepared Adult Use Findings.

Discussion:

Councilman Root questioned the advisability of using the word "religious," in the second paragraph on page 8. City Attorney noted that it is used in the context of zoning and the implication is "what the public" thinks.

Councilman Davis noted that the word religious is a category listed in Zoning Code as acceptable land use.

VOTE ON

Minutes 6-13-85

The Des Moines City Council considered the following evidence:

1. Comments from the public at five public hearings occurring between October 27, 1983 to March 14, 1984. Verbatim typed transcripts of such hearings.

2. Written comments from the public received by the City Council during the same time frame.

3. A general administration report dated June 7, 1984, prepared by the Des Moines City Manager and his staff. Included in this report were the following appendices: Des Moines Theater admission data, community opinion survey, Community Impact Ordinance (Ordinance No. 464) background and information, Des Moines Police Department Incident Reports, a complete list of business activity and failures in the area in close proximity to the Des Moines Theater over a ten year period, and a photocopy of the leading Washington Supreme Court case on the subject of adult use zoning, Northend Cinema, Inc. v. City of Seattle.

4. A legal memorandum from the Des Moines City Attorney, dated March 14, 1985, and entitled Control of Adult Uses Through Zoning.

5. Reports by R. W. Thorpe & Associates. The preliminary report dated June 7, 1984 and the final study rendered in August 1984.

6 Reports by the City of Des Moines Planning Department.

7. A report by Chief Pratt of the Des Moines Police Department, dated January 4, 1984.

8. The Greater Des Moines Comprehensive Plan, 1981-1990.

9. The Des Moines Revitalization Study, Phase I, dated October 30, 1982, prepared by R. W. Thorpe & Associates and the City of Des Moines Business Area Improvements, Phase Two Report, dated December 1982, prepared by Makers.

10. The City of Kent Adult Use Zoning Study, dated November, 1982.

1. The state and federal court decisions in the litigation between the City of Renton and Playtime Theaters, Inc.

12. Ordinances and proposed ordinances of several municipalities in the State of Washington relative to the control of adult uses through zoning.

13. National studies, including a study by the Planning Advisory Service, a study by the Zoning and Planning Law Report, and psychological studies.

Based on the totality of evidence presented and material compiled in the public hearing file, the City Council makes the following Findings of Fact:

The area of the City of Des Moines encompassing Marine View Drive and West of Marina View Drive to Puget Sound has been designated the City of Des Moines Revitalization Area. This designation arose out of a Revitalization Study and recommendations which evolved out of the Greater Des Moines Comprehensive Plan 1981-1990, adopted September, 1981. At the Comprehensive Plan public hearings before the Planning Commission there was a call for a study of the area later to be designated the Revitalization Area. The specific language of the Comprehensive Plan is as follows:

A great effort was mounted in the business community to raise funds for the Revitalization Study, and the business community through the Chamber of Commerce requested the City of Des Moines to contribute matching funds. Ultimately, $30,000.00 in public funds and $6,600.00 in funds raised by the business community were contributed to the Revitalization Study. This study was done by R. W. Thorpe and Associates and The Makers. Phase I of the Revitalization Study was rendered to the Des Moines Revitalization Steering Committee and the City of Des Moines on October 30, 1982. The study dealt with a number of subjects related to land use in the Revitalization Area, and the study placed strong emphasis on developing the Revitalization Area as a pedestrian-oriented business community. Phase II of the Revitalization Study was rendered in December, 1982. It concentrated on the need for and the building of a identity for the Revitalization Area. Phase II of the Revitalization Study also emphasized a pedestrian-oriented business community for the Revitalization Study. Public hearings were held before the Des Moines Planning Commission and the Des Moines City Council with respect to adoption of the Revitalization Study. These studies were ultimately adopted as policy by the Des Moines City Council on June 7, 1984. Goals of the Revitalization Study were the development of a viable and centralized downtown business district, development and encouragement of growth of a downtown business district which is expressive of its waterfront location, and providing a more pleasant visual and functional shopping and business district. In connection with the Revitalization Report the City of Des Moines embarked upon a number of projects to implement the recommendations. As of this date these projects are in various stages of development, and include design review process, a new parking code, a landscaping code, a comprehensive sign code, a revision of the permitted uses through a "community commercial" zoning, a revision of BC zone uses, traffic revision projects, and public hearings to determine whether or not adult uses were compatible with the recommendations of the Revitalization Study.

The City Council began public hearings on October 27, 1983 and held additional public hearings on January 12, 1984, February 23, 1984, March 8, 1984, and March 14, 1985. Large numbers of the public testified that the presence of the adult movie theater deterred them from shopping in the Revitalization Area, which they conceived to be a community-oriented and family-oriented pedestrian shopping area. These opinions were based on perceptions of the public that the present use of the theater is a threat to public safety and a threat to family-oriented values. Whether the presence of adult theater constitutes such a threat is immaterial. The important consideration is that the evidence shows that a significant portion of the public is avoiding the Revitalization Area in its shopping habits because of the existence of the adult movie theater. The public views the Revitalization Area as "downtown" Des Moines, which is the "walking" part of town. Many parents testified that children were forbidden to walk in the Revitalization Area as long as the adult movie theater was there. As pointed out by one City Councilman, whether the public is right or wrong in this regard is immaterial, for the consuming public is not going to do what it doesn't want to do. Members of the public stepped forward to point out that in parts of the state as distant as Eastern Washington the existence of the adult theater in the City of Des Moines is known and is the subject of substantial derisive comment.

The public, furthermore, expressed itself in a substantial amount of correspondence to the Des Moines City Council. This correspondence was entered into the public record and expresses an overwhelming public attitude that the presence of the adult movie theater deters individuals from shopping in the Revitalization Area. The following samples of public comment are representative of attitudes expressed in this massive correspondence:

1. Ruth E. Stewart (1-11-84) "...I will never venture into the down town area to patronize a business establishment in its [Des Moines Theater] proximity."

2. Richard T. Kennedy (10-24-83) "Adult use business activities should be prohibited in the central business district of Des Moines. This area is the economic heart of our city. It is in everyone's best interest to only allow business activities that promote economic health and consumer acceptance. Adult use business activities do not meet these criteria."

3. Mr. & Mrs. Herb Dieterich (12-21-84) "We find the posters and general theme of the theater so offensive and vulgar that we go to Burien to shop instead of patronizing the Circuit Rider Bookstore and the typewriter shop."

4. Mrs. B. A. Serfling (2-20-84) "...I will not go farther South than that because I refuse to walk past the movie building. As an elderly woman, I would feel very insecure in the vicinity of that movie house."

5. Ellena Watson (1-27-84) "I think it is a blight on our community being in the location where it is [The Des Moines Theater]. That block where it is located is one of the most important blocks in our city and it will never be upgraded or revitalized while that theater is there."

6. Judy C. Taylor (2-20-84) "...In the almost eight years my husband and I and our four children have lived in this area I have not once shopped or used any business in the block that the theater occupies. In fact, I have avoided the entire area around the theater. I did this without thought simply because the theater and its advertisements offended me and I did not wish to view them."

7. Hellen H. Johnson I2-21-84) "I am uncomfortable, as a women walking or shopping in the area though I have done it at times. I hesitate to take visitors that far on our main street as it gives a sleazy and unsavory impression to strangers."

8. H. C. Christopher, M.D., Resident of Wesley Gardens (3-1-84) "Many of us residents are reluctant to pass adult entertainment sites or to do business in close proximity to one, so feel they should be located in out of the way places and not on main streets."

9. Margaret Christopher (3-1-84) "I avoid that block whenever possible and only go there when it can't be avoided."

10. Mr. & Mrs. Robert K. McGuire (2-20-84) "We thought it would be fun to browse through the little shops further down the street until we noticed the movie titles at the theater. We skip that area now and shop in a more 'family' oriented area. Until a recent Council meeting, we didn't realize that the bookstore close to the theater was not an 'adult' bookstore."

11. Mrs. Julia Neal (3-4-84) "...My shopping habits in Downtown Des Moines are definitely curtailed by the presence of the Des Moines pornographic theater."

12. Bob Roach, President, Des Moines Chamber of Commerce (4-18-84) "The Board of Directors of the Des Moines - Midway Chamber of Commerce voted unanimous disapproval of the Des Moines Theatre being located in the downtown area of Des Moines.

The Board felt that the theatre does not lend itself to the quality of life in Des Moines for its young people, senior citizens and families living here. The subject of sex illustrated on posters on the main street of our city does not give Des Moines the type of image that is being pursued by the City of Des Moines and the Board of Directors of the Chamber of Commerce.

The Des Moines Theatre is not consistent with the Des Moines Downtown Revitalization Program. With our long range plans of uniform signage, landscaping, zoning and beautification, the theatre does not blend itself in with our total program. Thousands of dollars have already been spent in the planning stages of our

revitalization efforts.

The Des Moines-Midway Chamber of Commerce encourages the City of Des Moines City-Council to take the necessary steps to solve this issue."

Through its business license records the City Clerk presented to Council a summary of business activity since 1973 in the area of Marine View Drive in close proximity to the adult theater. The adult theater is located at 22331 Marine View Drive. At 22333 Marine View Drive there have been eight (8) different businesses between 1973 and 1983. On the other side of the adult theater at 22325 Marine View Drive there have been four (4) separate businesses during that period of time. A similar pattern exists throughout the entire West side of the 22300 block of Marine View Drive. At 22303 there have been four (4) businesses, at 22307 there have been four (4) businesses, at 22315 there have been four (4) businesses during this period of time.

In addition to the general Revitalization Area Study, the City Council commissioned a separate study by R. W. Thorpe and Associates, Inc. to report specifically on the impact of adult uses in the Revitalization Area. This report was based on a number of sources, including general planning literature with respect to the impact of adult uses on land use planning, studies and ordinances from other communities, some of which were in close proximity to the City of Des Moines and others national in scope, site visitations to communities experiencing land use issues as related to adult uses, and professional evaluations, conclusions and recommendations. This study suggests that there appears to be a definite impact of adult uses on adjacent land uses, including turnover of tenants, deferred maintenance, and functional obsolescence. The report states that the improvement or decline of business areas or neighborhoods has been well documented in many planning studies as having both physical and "perceived" elements. If there is a perception that an area is improving a tendency exists on the part of other owners and tenants to participate in such revitalization, and conversely if the perception exists that an anchor use is creating a decline in property values or image, there is a tendency to defer maintenance, defer upgrading of building, and less emphasis is placed on adjacent properties as they relate to a general investment portfolio. Turnover of tenants and decline of real estate values occur in uses in close proximity to adult uses.

The perception of the public is that adult uses are incompatible with residential, religious, educational and recreational uses where minors may meet collectively.

Through implementation of Ordinance No. 464 (Community Impact Studies) City staff has acquired substantial planning information on the impact of adult businesses on adjacent "family-oriented" business activities. These studies suggest a general incompatibility of the two, especially in a pedestrian-oriented setting.

Planning studies, the proposed revision of uses in the Revitalization Area, numerous traffic revision experiments and projects and the general trend of development in the Revitalization Area establish conclusively that conditions have substantially changed in the Revitalization Area in the past fifteen years. In 1971 Marine View Drive could be characterized as an underdeveloped, auto-oriented state highway link between Burien and the Midway-Zenith area. In 1971 the area west of Marine View Drive consisted substantially of non-developed areas, under-developed areas, and deteriorating single family non-conforming uses which were clearly in transition to commercial and multi-family uses. In 1971 pedestrian facilities were practically non-existent in the Revitalization Area. Today, through policy of the City Council requiring sidewalks or walkways as a condition of construction, and expenditure of public funds in building walkways, the entire Revitalization Area is linked by pedestrian access. Today, Marine View Drive has become developed to a substantially higher degree and the businesses found there are overwhelmingly of a general population nature. Today, the area west of Marine View Drive contains quality housing, quality general population businesses, and is continuing to develop.

The memorandum of the City Attorney establishes that the type of use found at the Des Moines Theater may be a use protected by the First Amendment. The United States Constitution protects and promotes the free exchange of ideas and artistic expression, and local government is forbidden from suppressing such activities. However, local government is not without authority to protect the character and quality of residential life in its neighborhoods and further a compelling governmental interest through sound land-use policies.

From the foregoing Findings, the City Council draws the following conclusions:

1. Conditions in the Revitalization Area have substantially changed since 1971.

2. The presence of the adult movie theater at its present location is substantially retarding the projected development of the Revitalization Area and substantially contributes to blight, deterioration, deferred maintenance, business failures and a general unwillingness of property owners in its general vicinity to participate financially in upgrading the area.

3. The City Council directs the City Administration to conduct research to determine if areas exist in the City of Des Moines which constitute reasonable and practical alternatives for the location of the adult theater in a manner which does not place any burden on the potential viewer or deter free expression.

Sections

5.48.010 Definitions.

5.48.020 License for business required – Fee.

5.48.030 License for managers and entertainers required – Fee.

5.48.040 Due date for license fees.

5.48.050 Renewal of license, registration, or permit – Lake penalty.

5.48.060 License applications.

5.48.070 Manager on premises.

5.48.080 License nontransferable.

5.48.090 License – Posting and display.

5.48.100 License – Name of business and place of business.

5.48.110 Adult entertainment business license – Revocation.

5.48.120 Permit – Revocation or suspension.

5.48.130 License – Sale, transfer, or relocation.

5.48.140 Standards of conduct and operation.

5.48.150 Business hours.

5.48.160 Public nuisance.

5.48.170 Violation – Penalty.

5.48.180 Additional enforcement.

5.48.190 Minimum age of patrons – Violation – Penalty.

5.48.010 Definitions.

(1) Use of Words and Phrases. As used in this chapter, unless the context or subject matter clearly requires otherwise, the words or phrases defined in this section shall have the indicated meanings.

(2) "Adult entertainment" includes adult entertainment facilities defined in the zoning code and an exhibition or dance of any type conducted in premises where the exhibition or dance involves a person who is unclothed or in such attire, costume, or clothing as to expose to view any portion of the breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva, or genitals.

(3) "Employee" means all persons, including entertainers and independent contractors, who work in or at or render services directly related to the operation of a public place of amusement, that offers, conducts, or maintains adult entertainment.

(4) "Entertainer" means a person who provides adult entertainment within a public place of amusement as defined in this section whether or not a fee is charged or accepted for the entertainment.

(5) "Entertainment" means an exhibition or dance of any type, pantomime, modeling, or any other performance.

(6) "Manager" means a person appointed by the operation who manages, directs, administers, or is in charge of, the affairs and/or the conduct of any portion of any activity involving adult entertainment occurring at any place offering adult entertainment.

(7) "Operator" means a person operating, conducting, or maintaining an adult entertainment business.

(8) "Public place of amusement," "public amusement/entertainment," and "public entertainment'' mean an amusement, diversion, entertainment, show, performance, exhibition, display, or like activity, for the use or benefit of a member or members of the public, or advertised for the use or benefit of a member of the public, held, conducted, operated or maintained for a profit, either direct or indirect. [Ord. 1050 § 1, 1993: Ord. 746 § 2, 1988.]

5.48.020 License for business required – Fee.

(1) No public place of amusement, including but not limited to places which offer adult entertainment, shall be operated or maintained in the city unless the owner or lessee thereof has obtained a license from the city clerk; provided, however, that it is unlawful for an entertainer, employee, or operator to knowingly work in or about, or to knowingly perform any service directly related to the operation of an unlicensed public place of amusement/entertainment.

(2) The annual fee for such a license is $750.00.

(3) This license expires annually on December 31st and must be renewed by January 1st.

(4) There is no prorating of the fee.

(5) The applicant must be 18 years of age or older. [Ord. 746 § 3, 1988.]

5.48.030 License for managers and entertainers required – Fee.

(1) No person shall work as a manager or entertainer at a public place of amusement offering adult entertainment without having first obtained a manager's or an entertainer's license from the city clerk pursuant to DMMC 5.48.060.

(2) The annual fee for such a license shall be $200.00.

(3) This license expires annually on December 31st and must be renewed by January 1st.

(4) There will be no prorating of the fee.

(5) The applicant must be 18 years of age or older. [Ord. 746 § 4, 1988.]

5.48.040 Due date for license fees.

All licenses required by DMMC 5.48.020 must be issued and the applicable fees are due and payable to the city clerk at least 14 calendar days before the opening of the adult entertainment business. [Ord. 746 § 5, 1988.]

5.48.050 Renewal of license, registration, or permit – Late penalty.

A late penalty shall be charged on all applications for renewal of a license, received later than 10 calendar days after the expiration date of such license. The amount of such penalty is fixed as follows:

(1) For a license requiting a fee of $.50 or more, but less than or equal to $200.00, 20 percent of the required fee;

(2) For a license requiring a fee of more than $200.00, 10 percent of the required fee. [Ord. 746 § 6, 1988.]

5.48.060 License applications.

For the purposes of this chapter, the words "license" and "permit" shall be considered coextensive terms.

(1) Public Adult Entertainment License. All applications for a public amusement/entertainment license for places which offer adult entertainment shall be submitted in the name of the person or entity proposing to conduct such public amusement/entertainment on the business premises and shall be signed by such person and notarized or certified as true under penalty of perjury. All applications shall be submitted on a form supplied by the city clerk, which shall require the following information:

(2) Manager or Entertainer License. A separate license shall be obtained for each and every establishment at which the applicant will practice. All applications for a manager's or entertainer's license shall be signed by the applicant and notarized or certified to be true under penalty of perjury. All applications shall be submitted on a form supplied by the city clerk, which shall require the following information:

(3) If any person or entity acquires, subsequent to the issuance of a public amusement/entertainment license for places offering adult entertainment, a substantial interest in the licensed premises, immediate notice of such acquisition shall be provided in writing to the city clerk, and in no event, not later than 21 days following such acquisition. Further, the person or entity acquiring such an interest shall furnish to the city clerk such equivalent information as if they were an applicant for an original license under this chapter. The information required to be provided pursuant to this subsection shall be that information required pursuant to subsections (1) and (2) of this section.

(4) Copies of an application shall, within five calendar days of receipt thereof, be referred by the city clerk to the city manager, planning, building, fire district, or other appropriate departments. The departments shall, within 30 business days, inspect the application, the premises proposed to be operated as an adult entertainment place and shall make written verification to the city clerk that such premises complies with the codes of the city. No license may be issued without such verification. The application shall also be referred to the police department for a criminal records check and verification of the information provided by the applicant on the application for a license.

(5) Upon completion of the investigation and review by the departments, a review of the recommendations and verifications, and a determination that all matters contained in the application are true and correct and that this chapter has been complied with, the city clerk shall issue such license applied for in accordance with the provisions of this chapter; provided, however, that the applicable license fee, together with any delinquent fees that may then be due shall first be paid to the city. [Ord. 746 § 7, 1988.]

5.48.070 Manager on premises.

A licensed manager shall be on the premises of a public place of amusement at all times that adult entertainment is being provided. [Ord. 746 § 8, 1988.]

5.48.080 License nontransferable.

No license or permit shall be transferable. [Ord. 746 § 9, 1988.]

5.48.090 License – Posting and display.

(1) Every adult entertainer shall post his or her permit in his or her work area so it is readily available for public inspection.

(2) Every person, corporation, partnership, or association licensed under this chapter shall display such license in a prominent place. The name of the manager on duty shall be prominently posted during business hours. [Ord. 746 § 10, 1988.]

5.48.100 License – Name of business and place of business.

No person granted a license pursuant to this chapter shall operate the adult entertainment business under a name not specified in his/her license, nor shall he/she conduct business under any designation or location not specified in his/her license. [Ord. 746 § 11, 1988.]

5.48.110 Adult entertainment business license – Revocation.

Any license issued for an adult entertainment business may be revoked or suspended by the city council after notice of not less than 10 calendar days, and a subsequent hearing for good cause, or in any case where any of the provisions of this chapter are violated, or where any employee of the licensee is engaged in any conduct which violates any state or local laws or ordinances at licensee's place of business and of which the licensee has actual or constructive knowledge. Such permit may also be revoked or suspended by the city council after notice and hearing, upon the recommendations of the city health official that such business is being managed, conducted, or maintained without regard to proper sanitation and hygiene. [Ord. 746 § 12, 1988.]

5.48.120 Permit – Revocation or suspension.

An adult entertainment manager or entertainer license issued by the city clerk shall be revoked or suspended where it appears that the holder has procured such license by fraud, material misstatement, or omission or by other deceptive means, or has committed an act in violation of this chapter. [Ord. 746 § 13, 1988.]

5.48.130 License – Sale, transfer, or relocation.

Upon sale, transfer, or relocation of an adult entertainment business, the license therefor shall be null and void; provided, however, that upon the death or incapacity of the licensee or any colicensee, any heir or devisee of a deceased licensee, or any guardian of an heir or devisee of a deceased licensee may continue the adult entertainment for a reasonable period of time not to exceed 60 calendar days to allow for an orderly renewal of the license, if such new licensee fulfills ail requirements of this chapter. [Ord. 746 § 14, 1988.]

5.48.140 Standards of conduct and operation.

(1) The following standards of conduct must be adhered to by employees of any public place of amusement which offers, conducts, or maintains adult entertainment:

(2) At any public place of amusement which offers, conducts, or maintains adult entertainment, the following are required:

(3) This chapter shall not be construed to prohibit:

(4) For purposes of this chapter, an activity is "obscene" if:

(5) For purposes of this chapter, an activity is "dramatic" if the activity is of, relating to, devoted to, or concerned specifically or professionally with current drama or the contemporary theater. [Ord. 746 § 15, 1988.]

5.48.150 Business hours.

No public entertainment shall be conducted between the hours of 2:30 a.m. and

10:00 a.m. [Ord. 746 § 16, 1988.]

5.48.160 Public nuisance.

An adult entertainment business operated, conducted, or maintained contrary to the provisions of this chapter or a law of the city or state shall be, and the same is, unlawful and a public nuisance and the city attorney may, in addition to or in lieu of prosecuting a criminal action under this chapter, commence an action or actions, for the abatement, removal, and enjoinment thereof, in the manner provided by law; and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such reliefs as will abate or remove such adult entertainment business, and restrain and enjoin any person from operating, conducting, or maintaining an adult entertainment business contrary to the provisions of this chapter. [Ord. 746 § 17, 1988.]

5.48.170 Violation – Penalty.

(1) No person, except those persons who are specifically exempted by this chapter, whether acting as an individual owner, operator, employee, or agent or independent contractor for the owner, employee, or operator, or acting as a participant or worker in any way directly or indirectly who works in or operates an adult entertainment business, or any of the services defined in this chapter shall conduct the same without first obtaining a license or permit, and paying a fee to do so, from the city.

(2) A violation of or failure to comply with this section is a class 1 civil infraction. [Ord. 1009 § 41, 1993: Ord. 7445 § 18, 1988.]

5.48.180 Additional enforcement.

5.48.190 Minimum age of patrons – Violation – Penalty.

(1) No person under the age of 18 years shall loiter in or about, or be found in a public place of amusement offering adult entertainment.

(2) No person shall allow a person under the age of 18 years to enter or remain upon the premises where adult entertainment is offered.

(3) A violation of or failure to comply with this section is a class 1 civil infraction.

(4) If a greater minimum age is specified by state law then such provision shall prevail as to enforcement of state law. [Ord. 1009 § 42, 1993: Ord. 746 § 20, 1988.]