HomeMy WebLinkAboutOrd 2007-01 thre ORDINANCE NO.07-01
AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, AMENDING THE TOWN OF FOUNTAIN
HILLS ZONING ORDINANCE, CHAPTER 1, INTRODUCTION, CHAPTER
12, COMMERCIAL ZONING DISTRICTS, CHAPTER 14, UTILITY ZONING
DISTRICTS AND CHAPTER 18, TOWN CENTER COMMERCIAL ZONING
DISTRICT AND ADDING A NEW CHAPTER 21, ADULT BUSINESSES,
RELATING TO THE REGULATION OF ADULT OR SEXUALLY
ORIENTED BUSINESSES.
WHEREAS, adult or sexually oriented business ("Adult Businesses") require special
supervision from the public safety agencies of the Town of Fountain Hills (the "Town") in order
to protect and preserve the health, safety, morals and welfare of the patrons of such businesses as
well as the citizens of the Town; and
WHEREAS, the Mayor and Council of the Town of Fountain Hills (the "Town
Council") finds that Adult Businesses are frequently used for unlawful sexual activities,
including prostitution and sexual liaisons of a casual nature; and
WHEREAS, the concern over sexually transmitted diseases is a legitimate health
concern of the Town which demands reasonable regulation of Adult Businesses in order to
protect the health and well-being of the citizens; and
WHEREAS, there is convincing documented evidence that Adult Businesses, because of
their very nature, have a deleterious effect on both the existing businesses around them and the
surrounding residential areas adjacent to them, causing increased crime and the downgrading of
property values; and
WHEREAS, it is recognized that Adult Businesses, due to their nature, have serious
objectionable operational characteristics, particularly when they are located in close proximity to
each other, thereby contributing to urban blight and downgrading the quality of life in the
adjacent area; and
WHEREAS, the Town Council desires to minimize and control these adverse effects and
thereby protect the health, safety and welfare of the citizenry, to protect the citizens from
increased crime, to preserve the quality of life, to preserve the property values and character of
surrounding neighborhoods and to deter the spread of urban blight; and
WHEREAS, it is not the intent of this Ordinance to suppress any speech or expression
activities protected by the First Amendment, but to enact a content neutral ordinance that
addresses the negative secondary effects of Adult Businesses; and
WHEREAS, it is not the intent of the Town Council to condone or legitimize the
distribution of obscene material, and the Town Council recognizes that state and federal law
prohibits the distribution of obscene materials and expects and encourages state law enforcement
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officials to enforce state obscenity statutes against any such illegal activities within the corporate
limits of the Town; and
WHEREAS, the Town Council desires to amend the Town of Fountain Hills Zoning
Ordinance (the "Zoning Ordinance") to revise Chapter 1, Introduction, Chapter 12, Commercial
Zoning Districts, Chapter 14, Utility Zoning Districts and Chapter 18, Town Center Commercial
Zoning Districts, and by adding a new Chapter 21, Adult Business, relating to the regulation of
adult or sexually oriented businesses; and
WHEREAS, in accordance with the Zoning Ordinance and pursuant to ARE.REV. STAT.
§ 9-462.04, public hearings regarding this Ordinance were advertised in the May 23, 2007 and
May 30, 2007 editions of the Fountain Hills Times; and
WHEREAS, public hearings were held by the Fountain Hills Planning and Zoning
Commission on September, 27, 2007, and by the Town Council on October 18, 2007.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF
THE TOWN OF FOUNTAIN HILLS as follows:
SECTION 1. It is the purpose of this Ordinance to regulate adult or sexually oriented
businesses in order to promote the health, safety, morals, and general welfare of the citizens of
the Town, and to establish reasonable and uniform regulations to prevent the deleterious location
and concentration of Adult Businesses within the Town. The provisions of this Ordinance have
neither the purpose nor effect of imposing a limitation or restriction on the content of any
communicative materials, including sexually oriented materials. Similarly, it is not the intent nor
effect of this Ordinance to restrict or deny access by adults to sexually oriented materials
protected by the First Amendment, or to deny access by the distributors and exhibitors of
sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this
Ordinance to condone or legitimize the distribution of obscene material.
SECTION 2. Based on evidence concerning the adverse secondary effects of adult uses
on the community presented in hearings and in reports made available to the Town Council, and
on findings incorporated in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986), Young v. American Mini Theatres,426 U.S. 50(1976), Barnes v. Glen Theatre, Inc., 501
U.S. 560 (1991), City of Erie v. Pap's A.M., TDA "Kandyland", 529 U.S. 277 (2000), City of
Los Angeles v. Alameda Books, Inc., 121 S. Ct. 1223 (2001), Gammoh v. City of La Habra, 395
F.3d 1114 (9th Cir. 2005), Worldwide Video of Washington, Inc. v. City of Spokane, 368 F.3d
1186 (9th Cir. 2004), and Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th
Cir. 2003) and on studies in other communities including, but not limited to, Phoenix, Arizona;
Minneapolis, Minnesota; Houston,Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove,
California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington;
Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and also on findings from
the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented
Businesses, (June 6, 1989, State of Minnesota), the Town Council finds:
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1. Adult businesses lend themselves to ancillary unlawful and unhealthy
activities that are uncontrolled by the operators of the establishments. Further, there is presently
no mechanism to make the owners of these establishments responsible for the activities that
occur on their premises.
2. Certain employees of adult businesses defined in this Ordinance as adult
theatres and cabarets engage in higher incidence of certain types of illicit sexual behavior than
employees of other establishments.
3. Sexual acts, including intercourse, masturbation, and oral and anal sex,
occur at sexually oriented businesses, especially those which provide private or semi-private
booths or cubicles for viewing films, videos, or live sex shows.
4. Offering and providing such space encourages such activities, which
creates unhealthy conditions.
5. Persons frequent certain adult theatres, adult arcades, and other adult
businesses for the purpose of engaging in sex within the premises of such sexually oriented
businesses.
6. At least 50 communicable diseases may be spread by activities occurring
in adult businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency
virus infection (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella
infections and shigella infections.
7. From 1981 to the present, there has been an increasing cumulative number
of reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United
States -- 600 in 1982, 2,200 in 1983, 4,600 in 1984, 8,555 in 1985 and 956,019 through 2005.
8. From 1981 through March 2006, there have been 19,179 confirmed cases
of HIV infection reported to the Arizona Department of Health Services (March 2006 HIV/AIDS
Annual Report).
9. The number of reported cases of primary and secondary syphilis in the
United States has risen to 8,724 in 2005, after seeing declines in the 1990's. (CDC STD
Surveillance Report 2005).
10. The number of cases of gonorrhea in the United States reported annually
remains at a high level, increasing from 2004 to 2005 with over 339,593 cases being reported in
2005. (CDC STD Surveillance Report 2005).
11. The Centers for Disease Control and Prevention, National Center for HIV,
STD, and TB Prevention of the United States has advised the American public that AIDS and
HIV infection may be transmitted through sexual contact with an infected person, by sharing
needles and/or syringes with someone who is infected, exposure to infected blood and blood
components, and from an infected mother to her newborn.
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12. According to the best scientific evidence, AIDS and HIV infection, as well
as syphilis and gonorrhea, are principally transmitted by sexual acts.
13. Sanitary conditions in some adult businesses are unhealthy, in part,
because the activities conducted there are unhealthy, and, in part, because of the unregulated
nature of the activities and the failure of the owners and the operators of the facilities to self-
regulate those activities and maintain those facilities.
14. Numerous studies and reports have determined that semen is found in the
areas of adult businesses where persons view "adult" oriented films.
15. The findings noted in paragraphs number 1 through 14 above raise
substantial governmental concerns.
16. The experience of other communities, and the studies conducted by those
communities, supports the conclusion that dispersion of adult uses via zoning requirements is an
effective method of mitigating the potential negative secondary effects from adult uses and better
protecting the health, safety and welfare of the citizenry of the Town.
17. The general welfare, health, morals and safety of the citizens of the Town
will be promoted by the enactment of this Ordinance.
SECTION 3. That the Zoning Ordinance, Chapter 1, Introduction, Section 1.12,
Definitions, is hereby amended by deleting the following definitions: "Adult Oriented Facilities,"
"Adult Bookstore," "Adult Live Entertainment Establishment," "Specified Sexual Activities,"
"Specified Anatomical Areas," and "Adult Theater."
SECTION 4. That the Zoning Ordinance, Chapter 12, Commercial Zoning Districts,
Section 12.02, Permitted Uses, is hereby amended as follows:
Section 12.02 Permitted Uses.
A. Uses Permitted in the C-O Zoning District.
1. Any business office in which chattels or goods, wares, or merchandise are not
commercially created, repaired, sold or exchanged, EXCEPT AS PROHIBITED
BY CHAPTER 21 OF THIS ORDINANCE.
C. Additional Uses Permitted in C-2 and C-3 Zoning Districts are as follows:
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3. Bars, including retail sales of package goods for off-site consumption, provided
that there is no entertainment or music audible off-site. No adult entertainment
BUSINESSES ARE PERMITTED.
SECTION 5. That the Zoning Ordinance, Chapter 14, Utility Zoning District, Section
14.03, Special Use, is hereby deleted in its entirety and the vacated Section is hereby reserved for
future use.
SECTION 6. That the Zoning Ordinance, Chapter 18, Town Center Commercial Zoning
District, Section 18.03, Permitted Uses, is hereby amended as follows:
Section 18.03 Permitted Uses.
B. Any of the following commercial uses:
33. Theaters, but not including a drive-in theater or AN adult oriented facilities
business as defined under Ghapter-17-,Seetions-1-427 Chapter 21, Section 21.01 of
this Ordinance.
SECTION 7. That certain document known as "Town of Fountain Hills Adult Business
Zoning Regulations," dated October 18, 2007, three copies of which are on file in the office of
the Town Clerk of the Town of Fountain Hills, which document was made a public record by
Resolution No. 2007-61 of the Town of Fountain Hills, is hereby referred to, adopted and made a
part hereof as if fully set out in this Ordinance.
SECTION 8. That certain document known as "Adult Business Zoning Regulations"
dated October 18, 2007, shall be inserted into the Zoning Ordinance for the Town of Fountain
Hills as a new Chapter 21, Adult Businesses.
SECTION 9. That any person found guilty of violating any provision of the Town of
Fountain Hills Adult Business Zoning Regulations shall be guilty of a class one misdemeanor.
Each day that a violation continues shall be a separate offense.
SECTION 10. That if any provision or any portion of any provision of this Ordinance or
of the Town of Fountain Hills Adult Business Zoning Regulations is for any reason held to be
unconstitutional or otherwise unenforceable by a court of competent jurisdiction, such provision
or portion thereof shall be deemed separate, distinct and independent of the remaining provisions
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of this Ordinance and shall be severed therefrom without affecting the validity of the remaining
lor portions of this Ordinance.
PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills,
Arizona, October 18, 2007.
FOR THE TOWN F FOUNTAIN HILLS: ATTESTED TO:
W. J. Nichol , Mayor éyBe;4errk
REVIEWED BY: APPROVED AS TO FORM:
Timothy G. Pickering, Town Manager Andre . McGuire, Town Attorney
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