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HomeMy WebLinkAboutM-92-03611 J-92-305 4/ /92 _! ORDINANCE NO. AN ORDINANCE AMENDING THE TEXT OF ORDINANCE _— NO. 11000, AS AMENDED, THE ZONING ORDINANCE THE CITY OF MIAMI, FLORIDA, BY AMENDING_ A ICLE 4, ZONING DISTRICTS, C-1 RESTRICTED CO RCIAL; ARTICLE 9, GENERAL AND SUP P EMENTARY REGULATIONS, SECTION 937, ADULT =_ ENTER INMENT AND ADULT SERVICES TO PROVIDE _ ENTER' -_ AN TION FOR THE SALE OR LEASE OF ADULT ENTERTA MENT MATERIAL BY A STORE AS A =_ - PERMITTED ACCESSORY USE IN THE C-1 DISTRICT IF LIMITED N FLOOR SPACE AND CONCEALED FROM _ VIEW OF THE GENERAL PUBLIC, AND BY AMENDING = ARTICLE 25, EFINITIONS, SECTION 2502, TO -_ REFERENCE THE EXCEPTION AND DEFINE ADULT - ENTERTAINMENT ERIAL; CONTAINING A REPEALER =- PROVISION, SEVE ILITY CLAUSE, AND PROVIDING — FOR AN EFFECTIVE D E. WHEREAS, the Miami Planning \Avisory Board, at its meeting of April 6, 1992, Item No. 1, ing an advertised public hearing adopted Resolution No. PAB 17-5q by a vote of 7 to 2, RECOMMENDING DENIAL of amending Ord ance No. 11000 as hereinafter set forth; and WHEREAS, notwithstanding the recommendation of the Planning Advisory Board, the City Commission after carefu \intorest nsideration of this matter deems it advisable and in the best of the general welfare of the City of Miami and its inhabitantk to amend Ordinance No. 11000 as hereinafter set forth; NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE"CTTY OF MIAMI, FLORIDA: r APPLICANT LOCATION LEGAL DESCRIPTION PLANNING FACT SHEET City of Miami Planning, Building and Zoning Department; March 24, 1992 PETITION Consideration of amending Ordinance 11000, as amended, the Zoning Ordinance of the City of Miami, by tnending Article 4 Zoning Districts, C-1 Restricted Commercial and Article 9 General and Supplementary Regulations, Section 937 Adult Entertainment and Adult Services to provide an exception for the sale or lease of adult entertainment material by a store as a permitted accessory use in the C-1 district if limited in floor space and concealed from vier of the general public, and by amending Article 25 Definitions, Section 2502, to reference the exception and define adult entertainment material. PLANNING RECOMMENDATION Approval. BACKGROUND On April 25, 1991, responding to neighbors complaints, the West Coast Video store at 3733 W. Hagler and three other video stores on upper Biscayne Boulevard were cited by zoning inspectors for being adult entertainment establishments because they rented "X" rated adult videos. The case was brought to the Code Enforcement Board and the owner agreed not to continue to sell the above mentioned materials. The applicant's lawyer requested an interpretation on September 19, 1991, and on October 8, 1991, the Zoning Administrator issued an interpretation upholding the citation. An appeal was filed. In December 1991, and May 16, 1992, the Zoning Board continued the appeal of the interpretation. ANALYSIS There are two sides to this issue. On the one hand, the City's Zoning Ordinance attempts to uphold community standards by defining adult entertainment and adult service establishments, confining them to C-2 and more liberal districts, subject to distance requirements. On the other hand, there are numerous stores in the City of Miami which sell or lease a general catagory of merchandise, only a small portion of which could be catagorized as "Adult" or "hard core" magazines or videos. This amendment would: 1. provide an exception for a store in the C-1 or more liberal districts to sell or lease adult merchandise if limited to 100 square feet or 10% of the area, and concealed from the view of the general public and 2. continue to define and restrict an adult entertainment or service establishment. APPLICATION NUMBER 92- 12 PAS 04/08/91 Item i 1 Date Generated: 03/30M Page 1 92- 36. PLANNING ADVISORY BD At its meeting of April 8, 1992, the Planning Advisory Board adopted Resolution No. PAB 17-92 by a vote of 7-2, denying the above. ., F� WEISS SEROTA & HEL1rNLiX, P.A. A"00fters AT "W leis SCOW sATspoote OMlve fulre are+ MLMt. FLOIUVA 00100 fTto"Ca J. M9161FrAN Tttt'«Owt 13051 e9A•Qeoo twpwA�p or��tt f00 fowymesfT of- $Tact? 4168CATO VAfr0012A Ttt2teofew(3091094.23:3 fuiTt 200 tttth «oft.. *Awe October ZZ, 1991 1041 %AUpt�QAM rtORepA 33301 .. Joftp- $too?A oic"Amo JAT Weis! TC1,60«c.t (3091 1e3.1100 Vie Hand Delivery Ms. Gloria Fox " Supervisor Planning And Zoning Department City of Miami 3500 Pan American Drive Miami, Florida 33133 RE: 'A201tal.of Zoning Interpretation No, Dear Ms. Fox: This letter will serve as a Notice of Appeal of the October B, 1991 decision of the Zoning Administrator bearing Decision No. ZI- 91-5. A copy of that Zoning Interpretation is enclosed with this Notice of Appeal. - The grounds for the appeal are that the Zoning administrator failed to properly interpret the definition of an "Adult Entertainment Or Adult Service Establishment" as not forth in Ordinance 11000, as amended. The zoning Administrator selectively excerpted portions of the definition without consideration of the definition as a whole. In accordance with Article 19 of the City Zoning Ordinance, I would greatly appreciate it if you would kindly schedule a hearinq before the City Zoning Board. Together with this letter, I have enclosed a check in the amount of $400 as the required filing fee. Thank.you for your kind attention and consideration to this matter. Respectfully, SJH/sk Stephen J. Helfoin 065.001 Enclosure 92- 361 .3 ram: SERGIO RODRIGUEZ, AICP Director 1tG nor ii :i,rr CERTIFIED MAIL October 8, 1991 Stephen J. Helfman, Esq. Weiss Serota & Helfman, P.A. Attorneys at Law 2665 S. Bayshore Dr., Suite 204 Miami, FL 33133 Re: Rental of "Adult" Videos by West Coast Video at 3733 W. Flagler St., ZI-91-5 Dear Mr. Helfman: CESAR H. ODIO City Manager This is in response to your request for an interpretation of your letter dated September 19, 1991• - The question is, may a video rental store open to the general public and located in a C-1 (Restricted Commercial) zoning district, rent adult oriented videos on a limited basis with no rental permitted to persons under eighteen (18) years of age. According to the present City of Miami Zoning Ordinance 11000, as amended, adult entertainment is first permitted in a C-2 (Liberal Commercial) district as a conditional use, subject to limitations and requirements of Section 937. This use is not permitted in a C-1 district. Article 25, Definitions of the zoning ordinance text defines Adult entertainment or service establishment as follows: "Adult entertainment or adult service establishment. An adult entertainment or adult service establishment is one which sells, rents, leases, trades, barters, operates on commission or fee, purveys, displays, or offer only to or for adults products, goods of any nature, images, reproductions, activities, opportunities for experiences or encounters, moving or still pictures, entertainment, and/or amusement distinguished by purpose and emphasis on matters depicting, describing, or relating by any means of communication from one person to another to "specified, sexual activities" or "specified anatomical areas" as herein defined...'' 92- 361 PLANNING, BUILDING AND ZONING IJfPARTMFIJT Stephen J. Helfman October 8, 1991 Page 2 The definition includes establishments which sell, rent or lease only to or for adult products, goods of any nature, images, reproductions, moving or still pictures. The intent is not to define it as having its totality to be only for adults, but that any portion of the establishments used to serve adults is included. Therefore, it is my interpretation that the lease of adult videos to any extent is not permitted in a C-1 (Restricted Commercial) district. This interpretation may be appealed to the Zoning Board by any person aggrieved. Notice of appeal must be filed within, not more than, fifteen (15) calendar days of the date interpretation was rendered. Such notice of appeal, specifying the grounds thereof, shall be filed with the Chief of the Hearing Boards Division of the City of Miami, Planning; Building & Zoning Department. Yours truly, se A. Genuardi, P.E. o in Administrator JAG/jg cc: Sergio Rodriguez, Director Guillermo E. Olmedillo, Deputy Director G. Miriam Maer, Chief Assistant City Attorney Joel Maxwell, Chief Assistant City Attorney G-roria Fox, Chief, Hearing Boards Division ,/F i 1 e 92-- 36 254 the meaning may -change from time to time and even from individual applicant to individual applicant. The reader of this report will note, therefore, that we have indicated where words used in the ordinance and not now defined probably should have definition. Technically, the form of the present definitions sec- tion would be questioned by some legal "nit-pickers". Some attorneys argue that, absent a statement that headings are a part of an ordinance, the use of headings has no legal standing. Thus, if you read the present definitions, in almost no case is the definition technically a "complete" one. This is a small matter, easily correctable by editing. Several guiding principles should therefore be used in writing definitions: 1. Terms used as they are employed in common usage need not be defined. 2. Terms not used in the ordinance should not be defined (but often are, as the result of a "laundry - list" approach where definitions are lifted from previous ordinances or ordinances from other juris- dictions). 3. Terms used only in particular context within the ordinance should be defined in that context, rather than in the general definitions section. If desired, cross-references can be inserted in general defini- tions material. 4. Related terms should be defined as a group, under a generic heading rather than scattered alphabetically, where this will simplify use of the ordinance. Examples of such general heads are: "Dwellings, Lodgings, and Related Terms", and "Lots, Yards, and Related Terms and Methods for Measurement". here again, alphabetical cross references may be used, k 92- 361 257 are not buildings. There will be cases in which property in single ownership contains two or three lots. where small lots have been com- bined, and particularly where nonconforming lots have been combined as a single parcel for use, there is nb public ad- vantage in restricting accessory uses to the lot on which the principal use is located. "Unless otherwise specifically provided," in the first sentence of the proposed language, covers a number of possi- bilities. off -site parking, where.allowed, is one. Accessory structures and uses in common open space is another. It is usually intended that portions of buildings attached to the principal building shall not be considered accessory buildings. Thus an attached garage or carport would not be construed as an accessory building, but a detached garage, servants' quarters, quest house, or tool shed would be consid- ered accessory. The alterations and conversions provisions in the R-2, Two -Family Dwelling, district make it apparent that this distinction is made in application of controls there. It should also be explicit in the definition of•accessory uses and structures. i II.2(lA). Adult Bookstore. The problem here is not so much with•the definition, but with it5•effect. It seems probable that news stands, drug 92-- 361 258 stores, general book stores and a variety of other raft, establishment in Miami carry materials marked "Por'AdUl Only," or "Sales to Minor Pruhibited," along with simile materials not so marked, from Playboy up and down the graphic scale. In view of the fact that inclusion of the definition W1& not accompanied by changes in district regulations permitti adult book stores in any district, this appears superficial ., to be one of the cases discussed at item 2 under Article 11, General Comment, above. But in the present case, it seems entirely possible that it was not intended to permit adult bookstores in any district, but to use the device as a means.:;'r A 3 for getting rid of establishments selling or displaying such material on grounds that they violate the zoning ordinance. Zoning is not a good regulatory medium for controlling vice, however the latter may be defined generally or locally at a particular time. The device does not seem particularly _( promising. Stores already displaying and selling such material' at the time the definition was enacted would appear to be nonconforming uses under zoning, and so entitled to continue the practice. New establishments not foolish enough to set themselves up as pandering primarily to pornographic tastes can argue, with considerable justification, that if such material can be sold in department stores, drug stores, general bookstores, at news stands and in the Miami International) s Airport, they too should be allowed to stock it on a minor and y 9- 3 ti �w 259 -incidental basis --as an accessory use, so to speak. Although adult bookstores were not added to the uses permitted in any district, a related but earlier amendment changed Books and Stationery establishments in C-1 to Book- stores open to the General Public. In view of availability of the type of material involved, the effect of this gambit seems to be to eliminate sale of pornography under controlled conditions (with admittance limited) in favor of sale and display open to the general public.(1) II.2. (2) . A enc . The definition, as stated, serves a useful purpose in the manner in which it is employed in district regulations, but might require refinement. An automotive sales agency, for example, first permitted in C-1, is -not engaging in any type of production for the principal, but the character of its activities are quite different from those of a travel agency (which doesn't quite fit the definition because it does engage in production of tickets as a service). If definition and use of the term is restricted to establishments whose principal function is service, or sales of goods not delivered on or from the premises, and not r (1) The writers may have missed amendments to include adult bookstores in some commercial districts. They will admit they did not.search over long! The writers do not recommend for Miami the'establishment of a "pornography" district like those created in -recent years in some American cities, most notably Boston. 9 2-- H ' § 2502 MIAMI, FLORIDA Adult. An adult is a person eighteen (18) years of age or older. Adult daycare center. A facility which provides limited supervision and basic services on a part-time basis by day or evening, but not overnight, to three (3) or more adults generally aged sixty (60► years and over other than the family/employee occupying the premises, who cannot perform one (1) or more aspects of daily living. The term does not include community based residential facilities, group homes, nursing home facilities or institutions for the aged. Adult entertainment or service establishment. An adult entertainment or adult service establishment is one which tells, rents, leases, trades, barters, operates on commission or fee, purveys, displays, or offers only to or for adults products, goods of any nature,.images, repro- ductions, activities, opportunities for experiences or encounters, moving or still pictures, en• tertainment, and/or amusement distinguished by purpose and emphasis on matters depicting, describing, or relating by any means of communication from one (1) person to another to "specified sexual activities" or "specified anatomical areas" as herein darned. An adult en• tertainment or adult service establishment is not open to the public generally but only to on's (1) or more classes of the public, excluding any person under eighteen (18) years of age. It ii the intent of this definition that determination u to whether or not a specific establishment or activity falls within the context of regulation hereunder shall be based upon the activity therein conducted or proposed to be conducted as set out above and in these regulations and shall not depend upon the name or title of the establishment used or proposed. Thus, the terms "adult bookstore," "adult massage parlor," "adult motion picture theater;'_ "adult private dancing," and "adult escort service" are encompassed within this definition of "adult enter• tainment or. services," but the term "adult entertainment or adult services" is not to be deemed limited by the enunciation of specific activities listed before. Adult massage parlor. See Adult entertainment or service establishment. Adult motion picture theater. See Adult entertainment or service establishment. Adult private dancing. See Adult entertainment or service establishment. Affordable housing. Housing with a retail sales price not in excess of ninety (90) percent of current median Dade County new housing sales price, or rental housing rates (project average) not in excess of thirty (30) percent of the gross median Dade County monthly income. Airport. An area when aircraft can land and tale off, usually equipped with hangars, facilities for refueling/repairs, and passenger facilities. Alley. An alley is any thoroughfare or puugeway (not officially designated as a street) designated as an alley by a rewrded plat, deed, or legal instrument. to be a secondary means of vehicular access to the rear or side of properties otherwise abutting on a street. Alterations, structural. Structural alterations are any change, removal, replacement. re- inforcement or addition of beams, coiling and floor joists, reinforced concrete floor slabs (except those on f111), load bearing partitions, columns, exterior walls, stairways, roofs, corridors or other structural materials used in a building that support the said beams. ceiling and floor joists, load bearing partitions, columns, exterior walls, stairways, roofs, or structural mate• 684 9 2 -- 361 ZONING 4 2502 Signs, number of. For the purpose of determining the number of signs, a sign shall be considered to be a single display surface or display device containing elements organized, related, and composed to form a unit. Where matter is displayed in a random manner without organised relationship of units, where strings of lights are used, or where there is a reasonable doubt about relationship of elements, each element or light shell be considered to be a single sign. Where sign surfaces are intended to be read from different directions (as in the use of signs back-to-back or angled from each other), each surface shall be considered to be a single sign. Notwithstanding definitions In this toning ordinance referring to lot frontage, for the purpose of regulating the number of signs, the term 'fronting on a street," "street frontage," or "frontage" shall be construed as adjacent to a street, whether at the front, rear, or side of a lot. Slip. See mooring. Solid waste Facility. Establishment for the disposition of unwanted or discarded material including garbage with insufficient liquid content to be free flowing. Sorority. See Fraternity; sorority; student center. Special Exception. A Special Exception is a special permit for a use that would not be _ appropriate generally or without restriction throughout a zoning district but which, if con• trolled as to number, area, location, or relation to the neighborhood, and having such condi• tions attached which would eliminate or adequately mitigate, any adverse impacts, would promote the public health, safety, or welfare. Such uses may be permissible in a toning district as a Special Exception if specific proviaion for such Special Exception is made in this zoning ordinance. Special permit. See section 1300 of this ordinance. Special Permit, Class 1. See action 1301 and article 14 of this ordinance. Special Permit, Class 11. See section 1301 and article 15 of this ordinance. Special Permit, Mqjor Use. See section 1301 and article 17 of this ordinance. Specirled anatomical areas. Those areas of the human body, less than complewly and opaquely covered, which consist of. (1) female genitals or pubic region. (2) male or female buttocks, anus, anal cleft, or cleavage, (3) female breast below a point immediately above the top of the areola, or (4) human male genital in a discernibly turgid state. Specij .ed sexual activities. Those activities which, when described. displayed, exhibited, simulated, or depicted by whatsoever medium in an adult entertainment service establish- meat: (1) show the human genitals in a state of sexual stimulation, or being aroused to a state of sexual stimulation, (2) show acts of human masturbation, human sexual intercourse, or sodomy; or sexual acts between humans and animals; (3) show one (1) human being fondling or touching erotically the genitals, pubic area, buttock, anus, or female breast of another } human being. 711 361 AA 7n 9t; Judicial Decisions applies to governmental proceedings occurring between the date that the statute was passed and its effective date. Therefore, the court said, it applies to the passage of the rezoning ordinance which was enacted about one month before the effective date of the statute. The court was not persuaded by Waugh's concern that this interpreta- tion of the statute would permit mu- nicipalities to "run amok" the day be- forea validation statute became effective and act in derogation of the statutory rights of their inhabitants. The court explained that in this case Waugh was not without a remedy under the vali- dation statute. The statute specifically providesa means forpersons in Waugh's position to prevent the validation of obnoxious governmental proceedings since it allowed them to file suit chal- lenging the proceeding before the ef- fective date of the statute. Hen, Waugh had more than one month between the time the ordinance passed and the ef- fective date of the statute to sue the city. The court also found that the stat- ute cures any defects except constitu- tional violations in the rezoning ordi- nance, including the city council's alleged failure to comply with the re- quirement that ordinances be passed by a three -fourths majority. • However, the validation statute does not apply, the court ruled, to Waugh's claim that the city violated his rights to due process and equal protection of the laws because of the city's gerry, mandering of his property into a study area. The city's motion for summary judgment did not discuss this claim. Therefore, the trial court erred in grant- ing summary judgment in favor of the city on this point. But the trial court did not err, the court said, in denying Waugh's motion for summary judg- ment on this claim since there was no summary judgment evidence to sup- port this allegation. The court also con- cluded that sovereign immunity pro- tected the city from Waugh's claim for attorney fees. Adult Uses �1444 ZD 96 — Washington City may not regulate adult businesses p=ly selling "take home" merchandise because they do peep shows. World Wide Video, Inc. v. City of Tukwila, Supreme Court of Washingto►► (highest court), Decided September 19,1991, 816 P.2d 18 Facts. World Wide Video (WWV) op- erates an adult video store in Tukwila that sells and rents sexually explicit magazines, novelties, and videotapes; and has eight peep show booths on the premises. The store is located in a com- mercial zone directly abutting a resi- dential zone. A city-rdinance regulat- ing adult motion picture theaters, adult bookstores, adult retail stores, and other adultuses permits these uses only within a heavv industrial zone, and within the zone, adult establishments must meet various dispersion requirements. An- other ordinance regulates Peep shows, requiring various licensing fees and the registration of all persons having an interest in the premises. And still another ordinance imposes various re- quirements on the configuration of peep show booths. WWV challenged thecon- stitutionality of the ordinances. The trial court found the zoning ordinances un- constitutional, but ruled in the city's favor on the peep show licensing ordi- nance. Both parties appealed. Holding. Washington's highest court affirmed the trial court's decision on the basis of the federal, not the state, constitution. The court painted out that the city's ordinance defines adult book- stores or adult video stores as any es- tablishments in which 10 percent of the stock is of a sexual nature and/or any person is excluded because of age. The court ruled that the city did not show that an adult business primarily en- gaged in selling "take home" merchan- dise "has the same harmful secondary effects traditionally associated with adult movie theaters and peep shows." And as a result, the city has not shown that it has the requisite "substantial gov- ernmental interest" described by the US. Supreme Courtin Renton v. PUY.1;,ne Theatres, Inc., 475 U.S. 41(1986), 38 i6 310, necessary to regulate the estab- lishment, the court stated. The court also found that the ordinance's defini- tion of adult bookstore would even include "mainstream" video stores hav- ing restricted adult sections, and that the city has failed to demonstrate a substantial governmental interest in The court rejected WWV's argument that the licensing ordinance pertaining to peep shows is unconstitutional. The court determined that the itcense fees are not excessive and that the disclo- sure provisions need not be construed as requiring persons with even a minor interest in the business, such as share- holders, to divulge their identities. Fi- nally, the -court concluded that the 30- day maximum approval period for licensing is constitutional, noting that 30 days is not an excessively long pe- riod to perform the inspections and investigations that must take place be- fore licensing. A dissenting justice agreed with the court'sdetermination that the peep show licensing ordinance is constitutional, but argued that the zoning ordinance is constitutional as well. The justice argued' that a city should be free to utanage commercial development through its zoning procedures, and that a city can determine where adult book- stores should be located so long as its determination only affects protected speech slightly or neutrally and fur- thers the city's "great interest" in fos- tering neighborhood quality. Tukwila's ordinance, the justice argued, satisfied these prerequisites. 92- 361 �•.ieloPORK Most adi It materials v*plate Ml0 0 aml's Zonin . re ulatlons eydOSEPNTANFANI Menlo Staff Wrier If the guy behind the counter at a Miami video store hands over an adult movie, he's probably breaking the law. So is the clerk at the neighbor- hood convenience store who sells a Playboy. And the theater that shows R-rated movies. - . According to Miami's zoning law,' just about anything having to do xith sex or naked bodies is illegal in residential areas - and even. in some commercial districts. . Four neighborhood rideo stores: three of them on Biscayne Boulez vard, received citations from city inspectors for renting adult movies.- Now, after getting a challenge from ' 1,000 feet apart. the owner of. West Coast Video. But• :."adult entertainment," 3733 W. Flagler St.; city officials,.. according to Miami s law, includes say they'll probably liberalise the not only graphic sex but any nudity - law. above or below the waist. It also . "You cannot: have anything" the provides no exceptions for stores way the law is now written, admits that sell adult materials along with planning director Guillermo Olme• other merchandise. dillo. "If we go to a strict meaning of - All the video stores that ran into the ordinance. it's a futile effort" trouble with the city rent other The anti -sex entertainment provi- kinds of videos. city officials sa4 sion was set up to protect neighbor- West Coast Video at 3733 W. Flag. hoods from sleazy adult theaters. .let St. eon has kiddie rides inside. pornographic shops and other busi- said Stephen Hellman, attorney for nesses that create "an erotically owner Angelo Ibanez. Each store suggestive atmosphere." It ban- also has a separate adult section. ishes those places to districts not . "I have to interpret the toning close to residential neighborhoods, ordinance the way it's written." said and says they -have to be at least zoning administrator Joseph Gen- - uardi. who ruled that West Coast had to stop renting adult videos. Code enforcement officials say they cited West Coast Video after getting a complaint from a compet- ing store. The three shops on the boulevard — Lambda Passages at 'Video 17545 Biscayne. Biscayne Club at 7111 Biscs)ne and Holly- Video wood at 7935 Biscayne — got in trouble with inspectors during a code -enforcement• sweep of that neighborhood. "PPeople can watch what they want to watch." said Howard Brown. Hollywood Video manager. If you don't like it. don't rent the video." Brown said adult videos i account for almost half his store's t rentals. ' Tuesday. the city zoning board postponed West Coast's appesl of Genuardi's ruling to give the plan- aing department time to reword the taw. No action will be taken against the Biscayne stores either. said Juan Gonzalez. chief code inspector. I 92p- 361