HomeMy WebLinkAboutO-2001-032 ORDINANCE NO. 2001-032
AN ORDINANCE AMENDING CHAPTER 17 OF THE CODE OF
ORDINANCES OF THE CITY OF DANIA BEACH, FLORIDA, BY
AMENDING ARTICLE 1 TO DELETE SECTION 17-11.1,
ENTITLED "INDECENT OR ADULT ESTABLISHMENTS" IN ITS
ENTIRETY; AMENDING CHAPTER 28 OF THE CODE OF
ORDINANCES OF THE CITY OF DANIA BEACH, FLORIDA, AS
FOLLOWS: AMENDING ARTICLE 2, SECTION 2.10,
DEFINITIONS, TO CREATE A NEW DEFINITION, ENTITLED
"LIVE ENTERTAINMENT" AND TO PROVIDE FOR THE
RENUMBERING OF SUBSEQUENT DEFINITIONS; AMENDING
ARTICLE 4, SECTION 4.20, ENTITLED "APPLICATION OF
REGULATION"; AMENDING ARTICLE 16, SECTION 16.40,
ENTITLED "SPECIAL EXCEPTION USES"; AMENDING ARTICLE
27, SECTION 27.20, ENTITLED "PERMITTED USES," SECTION
27.30, ENTITLED "PROHIBITED USES" AND SECTION 27.40,
ENTITLED "SPECIAL EXCEPTION USES;" AND AMENDING
ARTICLE 30, SECTION 30.40, ENTITLED "SPECIAL EXCEPTION
USES;" CREATING A NEW ARTICLE 31 IN CHAPTER 28
ENTITLED "ADULT ENTERTAINMENT ESTABLISHMENTS;"
CREATING REGULATED USES TO BE LOCATED ONLY IN
INDUSTRIAL-RESEARCH-OFFICE-MARINE (IROM) ZONING
DISTRICTS; REQUIRING A DISTANCE SEPARATION OF
REGULATED USES FROM SPECIFIED USES; PROVIDING
THAT ALL ORDINANCES OR PARTS OF ORDINANCES AND
ALL RESOLUTIONS OR PARTS OF RESOLUTIONS IN
CONFLICT ARE REPEALED TO THE EXTENT OF SUCH
CONFLICT; PROVIDING FOR VIOLATIONS; PROVIDING A
SEVERANCE CLAUSE; FURTHER, PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City Commission has reviewed the evidence and
testimony presented at the public hearings held before the City Commission on
October 9 and November 13, 2001, and the findings incorporated in-
(i) "Effects of Adult Entertainment Businesses on Residential
Neighborhoods," by the Department of Planning, Research and
Development, City of El Paso, TX (Sept. 26, 1986);
(ii) "Adult Entertainment Businesses in Indianapolis: An
Analysis" (Feb. 1984) and "Adult Bookstore Impact on Property Values
(1984)," conducted by the' Division of Planning, Department of
• Metropolitan Development, City of Indianapolis;
1 ORDINANCE NO. 2001-032
(iii) "Study of the Effects of the Concentration of Adult
Entertainment Establishments in the City of Los Angeles, prepared for
the Planning Committee of the Los Angeles City Council," Los Angeles
City Planning Department (June 1977);
(iv) "Adult Use Study" for the City of Des Moines, Washington,
by R.W. Thorpe & Associates (August 1984);
(v) "Adult Entertainment Businesses in Oklahoma City: A
Survey of Real Estate Appraisers," by the Community Development
Department of the City of Oklahoma City, OK (March 3, 1986);
(vi) "Report on the Secondary Effects of the Concentration of
Adult Use Establishments in the Times Square Area," by Insight
Associates (April 1994) and "Adult Entertainment Study" by the
Department of City Planning, City of New York (November 1994);
(vii) "An Analysis of the Relationship between Adult
Entertainment Establishments, Crime and Housing Values for the
Consumer Services Committee of the Minneapolis, MN City Council,"
by Marlys McPherson and Glenn Silloway, The Minnesota Crime
Prevention Center, Inc. (October 1980);
® (viii) "Adult Entertainment Business Study for Manatee County,
Florida," by Manatee County Planning and Development Department
(June 1987);
(ix) Report of the City of Austin, Texas on Adult Oriented
Businesses (1986);
(x) "Report to American Center for Law and Justice on the
Secondary Impacts of Sex Oriented Businesses," by Peter R. Hecht,
Ph.D. of the Environmental Research Group (March 31, 1996);
(xi) "Final Report to the City of Garden Grove, CA: The
Relationship Between Crime and Adult Business Operations on
Garden Grove Blvd.," by Richard McCleary, Ph.D. and James W.
Meeker, J.D., Ph.D. (Oct. 23, 1991);
(xii) Affidavits of Leon Hurse regarding the available sites for
sexually oriented businesses in the City of Dallas, Affidavit of Wes
Mikel regarding licensing of such uses in Dallas and Affidavit of L.R.
Cadena, regarding police inspections of such uses in Dallas, offered in
the case of FW/PBS, Inc. v. City of Dallas, Texas, in the U.S. District
Court for the Northern District of Texas, Dallas Division (1986);
2 ORDINANCE NO. 2001-032
(xiii) "An Analysis of the Effects of SOB's on the Surrounding
Neighborhoods in Dallas, TX as of April 1997," by Peter Malin, MAI;
and
(xiv) Transcript of Workshop Meeting of City Council, City of
Tampa, Florida, regarding "Draft Proposal of Establishing a Locational
Criteria for Adult Bookstores, Adult Theatres and Special Cabarets"
(July 1, 1982).
WHEREAS, based on its review of the above the City Commission hereby
finds as follows:
(1) Establishments exist or may exist within the City of Dania Beach
where books, magazines, motion pictures, videos, prints,
photographs, periodicals, records, novelties, and devices that
depict, illustrate, describe, or relate to specified sexual activities are
possessed, displayed, exhibited, distributed, or sold.
(2) Establishments exist or may exist within the City of Dania Beach
where:
a. The superficial tissues of one person are manipulated,
® rubbed, stroked, kneaded, or tapped by a second person,
accompanied by the display or exposure of specified
anatomical areas;
b. Dancers, entertainers, performers, or other individuals, for
forms of commercial gain, perform or are presented while
displaying or exposing specified anatomical areas; or
C. Lap dancing occurs.
(3) The exploitation of such nudity and semi-nudity is adverse to the
public's interest, quality of life, tone of commerce, and total
community environment.
(4) The exploitation of nudity and semi-nudity consists of the use of
nude and semi-nude entertainment in connection with or for the
promotion of the sale of goods or services, and the receipt of
money by the person engaging in nude or semi-nude entertainment
in exchange for or as consideration for nude or semi-nude
performance by such individuals.
(5) To promote and preserve the public peace and good order and to
safeguard the health, safety, and welfare of the community and the
3 ORDINANCE NO. 2001-032
citizens thereof, it is necessary and advisable for the City of Dania
Beach to prohibit certain forms of nude and semi-nude acts,
exhibitions, entertainment, and establishments at which alcoholic
beverages are, or are available to be, sold or consumed.
(6) To preserve the public peace and good order, and to safeguard the
health, safety, and welfare of the community and residents thereof,
it is necessary and advisable to regulate and restrict the conduct of
owners, operators, agents, employees, entertainers, performers,
patrons, spectators, and persons on the premises of the
establishment subject hereto.
(7) There is a direct relationship between the display or depiction of
specified anatomical areas as defined herein and an increase in
criminal activities, and disturbances of the peace and good order of
the community, and the occurrence of these activities is hazardous
to the health and safety of those persons in attendance and tends
to depreciate the value of adjoining property and harm the
economic welfare of the community as a whole. These secondary
effects are adverse to the public's interest and quality of life, tone of
commerce, and total community environment in the City of Dania
Beach.
(8) When the activities described in subsections (1) and (2) take place
in establishments within the City of Dania Beach, other activities
that are illegal or unhealthy tend to accompany them, concentrate
around them, and be aggravated by them. Such other activities
include but are not limited to prostitution, solicitation for prostitution,
lewd and lascivious behavior, possession, distribution and
transportation of obscene materials, sale or possession of
controlled substances, and violent crimes against persons and
property.
(9) When the activities described in subsections (1) and (2) are present
in establishments within the City of Dania Beach, they tend to blight
neighborhoods, adversely affect neighboring businesses, lower
property values, foster an atmosphere that promotes crime, and
ultimately lead residents and businesses to move to other locations.
WHEREAS, it has been demonstrated that the establishment of these
adult entertainment uses, referred to herein as "regulated uses," in business
districts has a deleterious effect on both business and residential segments of
the neighborhood, causing blight and a downgrading of the property values; and
WHEREAS, the City Commission desires to minimize and control these
adverse effects by allowing such uses to locate only in a designated industrial
4 ORDINANCE NO. 2001-032
zone, but finds that locational criteria alone do not adequately protect the public
health, safety and welfare of the citizens of the City; and
WHEREAS, the prohibition against the establishment of two (2) regulated
uses within one thousand (1,000) feet of each other serves to avoid the
clustering of certain businesses which, when located in close proximity to each
other, tend to downgrade both business and residential property values; and
WHEREAS, the prohibition against the establishment of one such
regulated use within one thousand (1,000) feet of a residentially zoned or
planned district or an existing residence avoids the deleterious effect of the
regulated use on the nearby residential area and on the businesses that serve
the residential area; and
WHEREAS, the prohibition against the establishment of one such
regulated use within one thousand (1,000) feet of certain incompatible uses, such
as uses with an alcoholic beverage license, churches or other places of
worship, public libraries, day care centers or nurseries for children, schools,
community colleges or public parks, avoids the deleterious effect of the regulated
use on the incompatible uses; and
WHEREAS, the prohibition against the establishment of one such
regulated use within one thousand (1,000) feet of an arterial or collector roadway,
• or within five hundred (500) feet of a limited access facility, as described in the
Transportation Element of the Dania Beach Comprehensive Plan, limits the
visibility of regulated uses and thereby avoids the deleterious effect of the
regulated use on surrounding uses; and
WHEREAS, the concentration of regulated uses and their accessory uses
in business districts tends to interfere with the operation of other businesses that
are not regulated uses, and tends to discourage patrons from trading with other
business enterprises that are not regulated uses; and
WHEREAS, concern for the orderly planning and development of a
neighborhood should be encouraged and fostered in those persons who
comprise the business and residential segments of the neighborhood; and
WHEREAS, it is not the intent of the City Commission to suppress any
speech activities protected by the First Amendment, but rather to enact a content
neutral ordinance addressing the secondary effects of adult businesses; and
WHEREAS, the City's Planning and Zoning Advisory Board, sitting as the
local planning agency, has reviewed this Ordinance and recommended its
approval to the City Commission; and
5 ORDINANCE NO. 2001-032
WHEREAS, the Commission finds that this Ordinance is consistent with
the City's adopted Comprehensive Plan and necessary for the preservation of
the public health, safety and welfare of the City's residents.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF DANIA BEACH, FLORIDA:
Section 1. That Chapter 17 of the Code of Ordinances of the City of Dania
Beach, Florida ("Chapter 17"), Section 17-11.1, entitled "Indecent or "adult"
establishments," is hereby deleted in its entirety.
Section 2. That Chapter 28 of the Code of Ordinances of the City of Dania
Beach, Florida ("Chapter 28"), Section 2.10, entitled "Definitions," is hereby
amended to create a definition of "Live Entertainment" and to renumber all
subsequent definitions accordingly:
Sec. 2.10. Definitions.
(32) Live entertainment. Live entertainment shall mean facilities that
present a band, disc jockey, comic, stage show, theatrical
performance or dancing on a routine basis, either professional or
• amateur and using live musicians, pre-recorded music or
soundtracks, with or without the sale or consumption of alcoholic
beverages. Facilities that have live entertainment on a special
event basis, such as a special fundraiser, art show, fair or carnival,
or a temporary social event, shall be excluded from this definition.
Live entertainment shall only be permitted in the City as a special
exception use.
Section 3. That Article 4, Section 4.20, entitled "Application of Regulations," of
Chapter 28 is hereby amended to read as follows:
Sec. 4.20. Application of Regulations.
6 ORDINANCE NO. 2001-032
District Purpose Permitted Accessory Special Exception
Uses Uses Uses
C-1 The purpose of 1. Business or 1. Off-street 1. Public or
this district is to professional parking and private parking
accommodate offices, loading. lots or storage
limited excluding 2. Accessory garages.
professional medical uses 2. Essential
and offices. customarily services.
administrative 2. Banks and incident to the 3. Supplemental
office uses financial permitted or parking.
compatible with institutions. approved 4. Public or
adjoining 3. Churches, special private academic
residential areas. synagogues or exception uses. schools.
other houses of 5. Hotels.
worship. 6. Live
4. Nonprofit €entertainment.
cultural
centers.
5. Eating and
drinking places
provided that
such use shall
not occupy more
than fifteen per-
cent (15%) of the
gross area of the
structures in
which they are
located.
Section 4. That Article 16, Section 16.40 entitled "Special exception uses," of
Chapter 28, is hereby amended to read as follows:
Sec. 16.40. Special exception uses.
b. Uses
(4) The following commercial uses that are determined to be
employment center uses, or provided the combined land area for
these uses does not exceed twenty (20) percent of the industrial
. land in a flexibility zone on the county land use plan map.
7 ORDINANCE NO. 2001-032
e. Live €entertainment use.
Section 5. That Article 27, Section 27.20 entitled "Permitted uses," Section 27.30
entitled "Prohibited uses," and Section 27.40 entitled "Special exception uses,"
of Chapter 28, are hereby amended to read as follows:
Section 27.20. Permitted uses.
(x) Regulated uses (adult entertainment), if in compliance with
Article 31.
Section 27.30. Prohibited uses.
C�97 adult entertainment
® Section 27.40. Special exception uses.
(c) Live €entertainment use, not to adult entertainment
Section 6. That Article 30, Section 30.40 entitled "Special exception uses," of
Chapter 28, is hereby amended to read as follows:
Sec. 30.40. Special exception uses.
(c) Live €entertainment use, not to include adult entertainment.
Section 7. That a new Article 31 of Chapter 28, entitled "Adult entertainment
establishments" is created as follows:
ARTICLE 31. ADULT ENTERTAINMENT ESTABLISHMENTS
8 ORDINANCE NO. 2001-032
Sec. 31.10. Definitions. For the purposes of this Article, the following
definitions shall apply:
Adult book store/adult novelty store/adult video store: An
establishment having adult material as a substantial or significant portion
of its stock in trade, or an establishment with a segment or section
devoted to the sale or display of such material. Twenty percent (20%) of
the gross floor area of the establishment devoted to adult material shall be
presumed to be a substantial or significant portion of the stock in trade.
Adult dancing establishment: An establishment where employees
display or expose specified anatomical areas to others, regardless of
whether the employees actually engage in dancing.
Adult domination/submission parlor. An adult establishment
specializing in bondage, sadomasochism, humiliating activities or other
similar activities which depicts, describes or relates to the "specified
sexual activities" or "specified anatomical areas," as defined below.
Adult material: One (1) or more of the following, regardless of
whether it is new or used:
a. Books, magazines, periodicals, or other printed matter,
photographs, films, motion pictures, video cassettes, slides
or other visual representations; recordings or other audio
materials; and novelties or devices that have, as their
primary or dominant theme, subject matter depicting,
exhibiting, illustrating, describing, or relating to specified
sexual activities or specified anatomical areas as defined
below; or
b. Instruments, novelties, devices, or paraphernalia which are
designed for use in connection with specified sexual
activities.
Adult mini motion picture theater.' An enclosed building (with
theatre style seating or viewing booths) with a capacity of less than fifty
(50) persons regularly used for presenting adult material, for observation
by patrons therein, which activity requires the exclusion of minors under
Chapter 847 Florida Statutes. The viewing or adult "booth" referenced in
this definition are defined as a small enclosed or partitioned area inside
the theater designed or used for the viewing of adult material by one or
more persons, which are accessible to all persons, regardless of whether
a fee is charged for access. A "booth" shall not include a foyer through
which a person can enter or exit the establishment, or a rest room.
9 ORDINANCE NO. 2001-032
Adult motel. A hotel, motel, boarding house or rooming house or
other place of temporary lodging presenting adult material by means of
closed circuit television, for observation by patrons therein.
Adult motion picture theater An enclosed building with a capacity
of fifty (50) or more persons regularly used for presenting adult material for
observation by patrons therein, which activity requires the exclusion of
minors under Chapter 847, Florida Statutes.
Encounter studio/modeling studio: An establishment offering nude
or semi-nude encounter/modeling sessions, sessions between opposite or
same sex adult individuals, nude dance/photo sessions, or sexual
consultations, which have as their dominant or primary theme matters
depicting, describing or relating to "specified sexual activities" or "specified
anatomical areas," as defined below.
Massage establishment: Any place of business or establishment
wherein all or any one or more of the following names subjects and
methods of treatment are administered or practiced: Body massage either
by hand or by any mechanical or electrical apparatus or device (excluding
fever therapy), applying such movements as stroking, friction, rolling,
vibration, kneading, cupping, petrisage, rubbing, effleurage, or
tapotement. However, nothing in this Article shall be construed as
® applying to State of Florida licensed massage therapists, barbers,
cosmetologists, manicurists, pedicurists, occupational therapists, physical
therapists, midwives, practical nurses, agents servants or employees in
licensed hospitals, nursing homes or other licensed medical institutions,
physicians, osteopaths, chiropractors, podiatrists, naturopathic physicians
or other licensed medical practitioners, or their agents servants or
employees acting in the course of such agency, service or employment
under the supervision of the licensee. Also, the term "massage
establishment" shall not apply to any massage establishment wherein at
least fifty (50) percent of the employees on duty full time during the hours
that the establishment is open for business are state of Florida licensed
massage therapists or other licensed professionals listed in the preceding
sentence.
Nude entertainment establishment: Any establishment which does
or does not offer alcoholic beverages for sale or consumption but does
feature male or female entertainers, performing partially clothed or
completely nude, displayed in a setting, section, stage or cubicle within a
business, which has as its principal or incidental purpose the offering for
viewing to adults of performances which have as their dominant or primary
theme matters depicting, describing or relating to "specified sexual
activities" or "specified anatomical areas," as defined below.
16
10 ORDINANCE NO. 2001-032
Regulated use includes, but is not limited to, the following:
(1) Adult bookstore/adult novelty store/adult video store;
(2) Adult dancing establishment;
(3) Adult domination/submission parlor;
(4) Adult mini motion picture theater;
(5) Adult motel;
(6) Adult motion picture theater;
(7) Encounter studio/modeling studio;
(8) Massage establishment;
(9) Nude entertainment establishment; and
(10) Any bookstore, video store, motion picture theater, motel/hotel,
dancing establishment, massage establishment, or photo or
modeling studio (a) that includes the word "adult" in its name; or (b)
r where an employee, operator, or owner exposes his or her
specified anatomical area for viewing by patrons; or (c) that
requires the exclusion of minors under Chapter 847, Florida
Statutes, shall be considered a regulated use.
Residence: For purposes of applying this spacing requirement, the
term "residence" shall include any dwelling as defined by the City's Code,
and shall also include a mobile home in a mobile home park. It shall not
include a recreational vehicle or a boat, wherever located.
Specified anatomical areas is defined as:
(1) Less than completely and opaquely covered:
(a) Human genitals and pubic region; or
(b) Cleavage of the human buttocks; or
(c) That portion of the human female breast encompassed
within an area falling below the horizontal line one would
have to draw to intersect a point immediately above the top
of the areola, including the areola; this definition shall include
is the entire lower portion of the human female breast, but shall
11 ORDINANCE NO. 2001-032
not include a portion of the cleavage of the human female
breast exhibited by a dress, blouse, shirt, leotard, bathing
suit or other wearing apparel, provided the areola is not so
exposed; and
(2) Human male genitals in a discernibly turgid state, even if
completely and opaquely covered.
Specified sexual activities is defined as:
(1) Human genitals in a state of sexual stimulation, arousal, or
tumescence; or
(2) Acts of human anilingus, bestiality, buggery, cunnilingus,
coprophagy, coprophilia, fellatio, flagellation, masochism,
masturbation, necrophilia, pederasty, pedophilia, sadism,
sadomasochism, sexual intercourse or sodomy; or
(3) Fondling or other erotic touching of human genitals, pubic region,
buttock, anus, or female breast; or
(4) Excretory functions as part of or in connection with the activities set
forth in subsections (1) thorugh (3).
Sec. 31.20 Intent and Purpose - Regulated Uses. It is the intent
and purpose of this Article to regulate the location and separation of adult
entertainment uses, referred to herein as "regulated uses," which,
because of their very nature, are recognized as having serious
objectionable operational characteristics, particularly when they are
located near properties zoned, planned or developed with incompatible
uses, thereby having a deleterious effect upon the adjacent areas.
Further, it is recognized that the location of even one regulated use near
an incompatible use causes such deleterious effects on that area. Special
regulation of these uses is necessary to ensure that these adverse effects
will not contribute to the blighting or downgrading of the surrounding area.
The regulations seek to prevent a concentration of regulated uses in any
one area (i.e., not more than one (1) such use within one thousand (1,000)
feet of each other which would create such adverse effects) and prevent
their location within one thousand (1,000) feet of incompatible uses and
within specified distances of arterial, collector and limited access
roadways as provided below. This Article has neither the purpose nor the
effect of limiting or restricting access by adults to sexually oriented, non-
obscene materials protected by the First Amendment, or denying access
by the distributors and exhibitors of sexually oriented entertainment to
their intended market.
12 ORDINANCE NO. 2001-032
Sec. 31.30 Exemptions. This Article shall not apply to accredited
universities, colleges or other educational institutions; libraries, art
galleries, museums, art exhibits and galleries open to the public; arts and
cultural performance theaters and playhouses; or commercial professional
photography and portrait studios which may use nude subjects for their
photographs or portraits. Such uses shall not be considered regulated
uses.
Sec. 31.40 Limitations. Regulated uses shall be permitted only
within the Industrial-Research-Office-Marine (IROM) zoning district,
subject to the following restrictions:
(1) No regulated use shall be allowed within one thousand
(1,000) feet of the property line of another existing regulated use.
(2) No regulated use shall be allowed within one thousand
(1000) feet of the property line of any existing use with an
alcoholic beverage license, any existing residentially zoned or
planned property, an existing residence, an existing church or other
place of worship, an existing school, an existing public library, an
existing day care center or nursery for children, an existing
community college or an existing public park (referred to collectively
herein as "incompatible uses").
(3) No regulated use shall be allowed within one thousand
(1,000) feet of an arterial or collector roadway, or within five
hundred (500) feet of a limited access facility as described in the
Transportation Element of the Dania Beach Comprehensive Plan.
(4) The distance provided for in this Section shall be calculated
by airline measurement from property line to property line, using the
closest property lines of the parcels of land involved. Where the
distance is measured to a roadway, it shall be calculated from the
property line of the regulated use to the edge of the right-of-way for
the roadway. For purposes of this subsection, the term "parcel of
land" means any quantity of land capable of being described with
such definiteness that its location and boundaries may be
established, which is designated by its owner or developer as land
to be used or developed as a unit or which has been used or
developed as a unit.
Sec. 31.50 Certified Survey. For purposes of establishing the
distance between regulated uses, other regulated uses and incompatible
uses, as set forth above, the applicant for any regulated use shall furnish a
certified survey from a registered surveyor. Such survey shall indicate the
distance from the regulated use, any other regulated use and any
13 ORDINANCE NO. 2001-032
incompatible use as set forth above. In case of any dispute, the
measurement scaled by the Growth Management Director shall govern.
Sec. 31.60 Parking Standards. Adult mini'motion picture theaters
and adult motion picture theaters shall provide one parking space per
booth plus one parking space for each four fixed seats in the main
auditorium. Adult dancing establishments shall provide one (1) parking
space for each forty (40) square feet of customer service area, including
waiting area, in conformance with the City's Schedule of Off-Street
Parking Requirements for nightclubs. Encounter studio/modeling studios,
and any other regulated use not covered by the City's parking code, shall
provide one parking space for each two hundred (200) square feet of
gross floor area.
Sec. 31.70 Amortization.
(1) Any regulated use, lawfully operating on September 15,
2001, that is in violation of Article 31 shall be deemed a
nonconforming use. The nonconforming use shall be permitted to
continue for a period not to exceed three (3) years, unless
terminated earlier for any reason or discontinued for a period of
ninety (90) days or more.
(2) Such nonconforming uses shall not be increased, enlarged,
or extended. Buildings or premises devoted to nonconforming uses
shall not be increased, enlarged, or extended. Buildings or
premises devoted to a nonconforming use shall not be altered in
any way except to be changed to a conforming use. Alteration shall
mean any change, addition, or modification in construction or
occupancy. Normal maintenance and repair shall be permitted.
(3) If two (2) or more existing regulated uses are within one
thousand (1,000) feet of one another but are otherwise in a
permissible location, the regulated use which was first established
and continually operating at a particular location is the conforming
use and the later-established business(es) is(are) nonconforming.
However, an existing regulated use that is not located in a
permissible location (and will therefore be amortized out after three
years) shall not be used to prevent the location of a regulated use
in a permissible location that is within one thousand (1,000) feet of
the amortized use's property line.
(4) A regulated use lawfully operating as a conforming use is not
rendered a nonconforming use by the subsequent location of an
incompatible use as set forth above within one thousand (1,000)
feet of the regulated use. This provision applies only to an ongoing
14 ORDINANCE NO. 2001-032
regulated use, not to a regulated use that has been terminated for
any reason or discontinued for a period of ninety (90) days or more
subsequent to the location of the incompatible use.
Sec. 31.80 Code Compliance. Compliance with all other
applicable regulations of regulated uses in this Code, including, but not
limited to, those in Chapter 2.5, Chapter 4, and in Chapter 17, is also
required.
Section 8. That, except as amended above, all other provisions of Chapters
17 and 28 of the Code of Ordinances of the City of Dania Beach, Florida, as
amended, shall remain in full force and effect.
Section 9. That if any section, clause, sentence of phrase of this Ordinance is
for any reason held invalid or unconstitutional by a court of competent
jurisdiction, the holding shall not affect the validity of the remaining portions of
this Ordinance.
Section 10. That all ordinances or parts of ordinances in conflict with the
provisions of this ordinance are repealed.
Section 11. That violations of this Ordinance may be prosecuted in accordance
with the provisions of Article 13 of Chapter 28 of the City Code. Nothing
contained in this Ordinance, however, shall prohibit the City from enforcing its
Code by any other means authorized by law including, but not limited to, a
summons, a notice to appear in the County Court, an arrest, a civil action for
injunctive relief, a stop work order or demolition. The enforcement procedures
outlined herein are cumulative to all others and shall not be deemed to be
prerequisites to filing suit for the enforcement of any section of this Ordinance or
the City Code.
Section 11. That the provisions of this Ordinance shall become and be made a
part of the Code of Ordinances of the City of Dania Beach, Florida, that the
sections of the Ordinance may be renumbered or relettered to accomplish such
intentions, and that the word "Ordinance" shall be changed to "Section," "Article"
or other appropriate word.
Section 12. That this ordinance shall take effect immediately at the time of its
passage and adoption.
PASSED on first reading on October 9, 2001.
PASSED AND ADOPTED on second reading on November 13, 2001.
15 ORDINANCE NO. 2001-032
PATRICIA FLURY
MAYOR- COMMISSIONER'
ATTEST: ROLL CALL:
COMMISSIONER BERTINO - YES
COMMISSIONER MCELYEA - YES
CHARLENE JOMSON COMMISSIONER MIKES - YES
CITY CLERK VICE-MAYOR CHUNN - YES
MAYOR FLURY- YES
APPROVED AST FO 7ND CORRECTNESS:
BY: �.
THOMAS J.1ANS6RO
CITY ATTORNEY
16 ORDINANCE NO. 2001-032
CITY OF DANIA BEACH
GROWTH MANAGEMENT DEPARTMENT
STAFF REPORT
TO: Ivan Pato, City Manager
FROM: Laurence Leeds, AICP, Director
Growth Management Department
RE: Revisions to Adult Entertainment Zoning Regulations
APPLICANT: Growth Management Department
DATE: November 13, 2001 (Second Public Hearing)
The City currently regulates the spacing for adult-oriented businesses such as adult
bookstore, adult motion picture theatre, and adult mini-motion picture theatre. The
City Code prohibits these uses within 1,000 feet of a school, church, residentially
zoned property, or an existing adult-oriented business.
The current City Code also contains an adult entertainment code (Art. 2.5) that
contains extensive business regulations relating to adult-oriented uses. These
regulations will be the subject of additional revisions that will be presented to the City
Commission in the near future.
The proposed amendments refine and clarify the existing zoning requirements, as
summarized below:
1) Adult-oriented uses (defined as "regulated uses") are allowed in an IROM
(Industrial Research Office Marine) zoning district, and then only if said IROM
zoning parcel is more than 1000 feet from existing "conforming" adult-oriented
uses.
Residentially zoned vacant lands that have an "industrial" land use designation
(approximately 20-25 acres) shall be considered as [ROM properties. The
residential zoning designation of these parcels is inconsistent with the
"industrial" land use designation, and as such, may not be enforced.
2) No adult-oriented use shall be allowed within 1000 feet of the property line of
any existing residentially zoned or planned property, an existing residence
(defined in the ordinance to include a mobile home in a mobile home park), an
existing church or other place of worship, an existing school, an existing public
library, an existing day care center or nursery for children, an existing
community college or an existing public park.
3) Language was added to the ordinance after first reading based on input from
the City Commission. No adult-oriented use shall be allowed within 1,000 feet
of any arterial or collector road as indicated in the Transportation Element of
the Comprehensive Plan, in order to reduce the visibility of the uses and
consequently their impact on other businesses located along the City's major
corridors. Stirling Road, Griffin Road, and State Road 84 are all arterial roads.
Ravenswood Road is a collector road.
4) Another addition to the ordinance provides that no adult-oriented use shall be
allowed within 500 feet of any limited access facility as indicated in the
Transportation Element of the Comprehensive Plan. 1-95 and 1-595 are both
limited access facilities.
5) Parking standards are provided for those adult-oriented uses not currently
addressed in the parking code (ie. adult mini-motion picture theatre,
encounter/modeling studio). The parking standard for an adult dancing
establishment will be the same as a nightclub under the current code. The
parking standard for an adult motion picture theater will be the same as a
theatre with fixed seats under the current code.
6) A three year amortization period is provided for existing non-conforming adult-
oriented uses, as well as other provisions clarifying the regulation of non-
conforming adult-oriented uses.
The above spacing criteria confines possible adult use sites to an 80-acre area
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located north of SW 39th Street, west of Ravenswood Road, and south of 1-595. Site
inspection and analysis of aerial photographs indicates that approximately '/4 of the
80 acres is under water, leaving a balance of approximately 60 buildable acres.
Some of the water areas may be filled in to permit construction in the future, if a
dredge and fill permit can be obtained. However, the City Attorney has instructed
staff that its analysis of how much land is available today for adult-oriented uses may
not include these properties, based on controlling caselaw.
The total gross acreage in the City (including the recent annexation area) is 5,295
acres. The estimated total non-residential property (available for development) on
the Future Land Use Map is 2,300 acres. The 60 acres of "currently available" IROM
zoning equals 1.12% of the total city acreage. Based upon the 1000-foot adult use
separation requirement, there is sufficient land to allow up to five (5) adult-oriented
uses in this area. The attached aerial photograph indicates the generalized location
of potential adult-oriented use sites.
Based on research provided by the City Attorney (see attached), the "in process"
regulations discussed above are more restrictive than adult regulation ordinances
used in Hollywood, Fort Lauderdale, and Boca Raton, Coral Springs requires a
minimum one-mile distance from other adult uses in combination with 1,000 foot
�. spacing from incompatible uses.
adult ENTERTAINMENT CC MEMO 11-5-01 SLT chgs.doc
Plantation bans adult uses outright, with "fallback" regulations should the ban be
declared unconstitutional. Plantation's fallback regulations are similar to Dania
Beach in that adult uses are confined to a single industrial district. However,
Plantation's regulations are less restrictive in that they use a 700-foot spacing from
incompatible uses.
RECOMMENDATION
Using the criteria discussed above, adult-oriented uses are confined to an 80-acre
area (60 buildable acres) located in a single IROM area located north of SW 39th
Street, west of Ravenswood Road, and south of 1-595. This area is located well away
from any residential uses and major roads.
Based on input from the City Attorney, staff recommends that the City Commission
adopt these regulations on November 13, to ensure that the more restrictive
regulations are effective immediately. If the Commission decides to consider a
complete prohibition of these uses similar to Plantation's, as was discussed by the
Commission at first reading, then staff recommends that the Commission direct the
City Attorney to prepare an amendment to the regulations being adopted tonight, to
allow for proper advertisement and consideration at a future meeting.
adult ENTERTAINMENT CC MEMO 11-5-01 SLT chgs.doc
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Memo
To: Robert Mikes, City Commissioner
cc: Ivan Pato, City Manager (without enclosures)
Thomas J. Ansbro, City Attorney (without enclosures)
Laurence Leeds, Growth Management Director
From: Susan L. Trevarthen
Office of the City Attorney
Date: October 26, 2001
Re: Request for Copies of Adult Zoning Regulations in Boca Raton, Coral Springs and
Plantation
In our recent discussion, you asked me to provide you with copies of the adult zoning
requirements in effect in three other South Florida cities: Boca Raton, Coral Springs and
Plantation. You stated that you would like to compare their approaches to adult uses with the
approach in the proposed City ordinance.
I have enclosed the copies of these three sets of zoning regulations, as well as a copy of all of the
existing requirements in Dania Beach for your reference(business regulations and zoning
requirements). Plantation's attempt to ban adult uses was the subject of a federal court case
(Digital Properties, Inc. v. City of Plantation), which is enclosed.
Finally, I have also enclosed a copy of a case in which the Village of North Palm Beach's
spacing and zoning requirements were upheld by the Florida Fourth District Court of Appeals
(421 Northlake Blvd. v. Village of North Palm Beach); my colleague Nancy Stroud and I advised
the village attorney, and provided all of the legal research and briefing for that case.
I hope this information meets your needs. Larry and I would like to meet with you at your
convenience at City Hall to discuss these regulations and any other questions you may have
about the pending adult zoning ordinance, prior to the continued hearing on November 13, 2001.
Please contact me at 763-4242 so we can set a time for this meeting.
Following is a short summary of the relevant features of each regulation.
1. Boca Raton
In Section 28-2, the Code defines the relevant terms in very similar language to that used in the
City. In the Supplementary District Regulations, Division 12 addresses Adult Establishments,
and refers to them collectively as "regulated uses" in the same manner as the City's proposed
ordinance.
Section 28-1617 allows regulated uses in the R-B-1 (motel business district), B-1 (local business
district), B-2 (community business district), B-4 (general business district) and C-1 (commercial
district) zoning categories. Section 28-1618 requires 500 foot spacing of regulated uses from
other regulated uses and from uses including alcoholic beverage licensed businesses, property
zoned for residential, recreational, civic center or medical center uses, places of worship and
schools, and the City limits. Elsewhere in the Code, Section 28-981(2)(b) prohibits various
specific adult uses from locating as a conditional commercial use available in Boca Raton's
Light Industrial Research Park zoning designation.
In contrast,the City's proposed ordinance requires twice the spacing (1000 feet rather than 500
feet), and only allows regulated uses in one industrial zoning district (IROM). I spoke with one
of the Boca Raton city attorneys and with the planner, and they confirmed that there has been
little interest in the development of such uses in Boca Raton over the years. It is important to
remember that the market is sometimes a more important determinant of whether a land use
seeks out a particular location than the applicable regulations.
2. Coral Springs
Coral Springs defines the various adult uses in Section 250145(a), and provides spacing
requirements in Section 250145(b) of 1 mile from other adult uses and of 1,000 feet from uses
including alcoholic beverage licensed businesses, hotels, motels,public lodging houses,
pawnshops, pool halls, places of worship, schools, and property zoned for residential use.
I know of no current court decision or studies of"adverse secondary impacts" that would support
anything close to a one-mile spacing requirement. The legislative history of the Coral Springs
ordinance indicates that the requirement was enacted in 1972, before the controlling cases were
decided by the U.S. Supreme Court.
Coral Springs prohibits adult use in only one of its zoning district, B-1 (neighborhood business),
at Section 250454(2). It is silent on the use in every other zoning district, meaning that adult
uses can locate in all other districts if they can satisfy the spacing requirement.
I spoke with one of the zoning officers there, and he confirmed that Coral Springs has not
experienced any significant demand for the use. Also, Coral Springs was originally master
planned as a bedroom community by Westinghouse, and there are deed restrictions that further
control development throughout the City. [Deed restrictions can be more restrictive than a local
government regulation.]
3. Plantation
Plantation was aggressive in its adult use regulation and it attempted to ban the uses outright.
See Section 27-802. Its code provides that if the ban is held to be unconstitutional, then the
remaining regulations of adult uses automatically come into effect. Those regulations allow
adult uses in the I-LP zoning district, with a 700 foot spacing requirement from existing
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residential uses, houses of worship, hospitals, public or private schools, day care centers or
public parks. Thus, there is no spacing between adult uses, and the spacing from other uses is
less than the 1,000 feet proposed in the City's ordinance.
The ordinance drew an immediate court challenge. The challenge failed on a technicality,
fbecause the property owner-challenger"failed to exhaust administrative remedies" before suing
Plantation. See Digital Properties v. City of Plantation, enclosed for your information.
However, the federal court explicitly withheld a decision on whether Plantation's attempted ban
of adult uses was constitutional, and cases from the state and federal courts strongly suggest that
such a ban is unconstitutional. At a minimum, adopting such a ban is very likely to result in
protracted and expensive litigation with the adult use industry.
Again, Larry and I are willing to meet at your earliest convenience to discuss your concerns.
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® U:\Susan Mania Beach\Adult use ordinance\Mikes re Coral Springs and Boca.doc
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AGENDA REQUEST FORM
CITY OF DANIA BEACH
3 e
AGENDA ITEM NO.
1. DATE OF COMMISSION MEETING: NOVEMBER 13, 2001
2. DESCRIPTION OF AGENDA ITEM: ORDINANCE ZONING TEXT-FINAL HEARING
Continued from October 23, 2001
ZONING OF ADULT ENTERTAINMENT ESTABLISHMENTS (PUBLIC HEARING)
3. COMMISSION ACTION BEING REQUESTED: ADOPT ORDINANCE SECOND READING
4. SUMMARY EXPLANATION &BACKGROUND:
Staff requests continuance of second and final reading
5. ATTACHED EXHIBITS AND ADDITIONAL BACKUP MATERIALS (PLEASE LIST):
Staff Report
Ordinance
6. For purchasing requests only: DEPT: AMOUNT: $
7. REVIEWED AND APPROVED FOR ADDITION ON AGENDA:
Planning and Zoning Advisory Board recommended approval of this request at their
September 12, 2001 regular meeting.
Submitted by:
Laurence G. Leeds,AICP, Director Date November 5, 2001
Growth Management Department
City Manager Date