MUNICIPAL PLANNING BOARD

A g e n d a It e m S u m m a r y
M U N I C I PA L P L A N N I N G B OA R D
A G E N DA I T E M # 1 3
PROPOSED LDC TEXT AMENDMENT
A D U LT E N T E R T A I N M E N T F AC I L I T I E S
APRIL 21, 2009
Case Number
LDC2009-00047
Applicant
S
U M M A R Y
& A
N A L Y S I S
Overview of Existing Code Provisions
City of Orlando
Requested Action
Amend the Land Development Code to allow adult
entertainment facilities as
permitted uses in the IG and
IP zoning districts and to
extend the existing minimum
separation between an adult
entertainment use and a
school from 1,000 feet to
2,500 feet.
Recommendation
Recommend finding of consistency with the Growth
Management Plan and approval of the proposed
amendment, authorizing staff
to prepare an ordinance to
City Council for first reading.
Project Planner
Jason Burton, AICP, CNU
Chief Planner
with
Kyle Shephard, Esq.
Assistant City Attorney
The City’s Land Development Code (the ―LDC‖)
currently prohibits adult entertainment facilities
in all zoning districts except for the General Industrial District (―I-G‖) where such uses may be
allowed by Conditional Use Permit.
The LDC defines ―Adult Entertainment Facility‖ as
―[a]ny adult bookstore, adult dancing establishment or adult motion picture theater as defined
in Chapter 31A, 37, and 43 of the City Code; or
any commercial physical contact establishment
as defined by this Chapter; or any body art shop
where procedures conducted on specified anatomical areas as defined by Section 37.01(f) of
the City Code are viewed by persons other than
the artist and one other person with the consent
of the client.‖
Additionally, section 58.702, Orlando City Code,
establishes minimum separation standards between proposed adult entertainment facilities
and certain other specified existing uses. New or
substantially enlarged adult entertainment facilities are prohibited within 1,000 feet of (1) another adult entertainment facility, (2) a church or
other religious institution, (3) public parks, libraries, elementary, junior high, and high schools, (4)
residential zoning districts (including planned
development districts with residential uses), and
(5) any establishment serving alcoholic beverages
for onsite consumption.
Proposed Code Amendment
The City Attorney’s Office and the City Planning
Division recommends two immediate amendments to the City’s Land Development Code related to adult entertainment facilities.
Updated: April 15, 2009
The first proposed amendment is to amend Figure 2B.LDC (―Table of allowable uses in zoning
districts inside the traditional city.‖) and Figure
2D.LDC (―Table of allowable uses in zoning districts outside the traditional city.‖) in Chapter 58,
Orlando City Code, to permit adult entertainment
facilities within the I-G district and the Industrial
Park District (―I-P‖), subject to the minimum separation requirements of section 58.702, Orlando
City Code, and other applicable provisions of law.
The second proposed amendment is to amend
section 58.702, Orlando City Code, to extend the
current minimum separation between existing
elementary, junior high, and high schools, and
newly proposed adult entertainment facilities or
proposed substantial enlargements of existing
adult entertainments, from the existing 1,000
feet minimum separation to 2,500 feet minimum
separation.
Legal Analysis Overview
The First Amendment to the United States Constitution (the ―First Amendment‖) states that
―Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to petition the Government
for a redress of grievances.‖
The First Amendment applies to the states and
local governments by virtue of the Fourteenth
Amendment to the United States Constitution.
In general terms, the First Amendment constrains
government suppression of expression based on
the government’s disagreement with the content,
ideas, or subject matter of the expression. This
general rule is not absolute, and certain forms of
expression receive less protection from the First
Amendment than others.
LDC2009-00047
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P ROPOSE D AMENDMENT : A NALYSIS
Legal Analysis Overview, Cont.
As a general rule, the time, place, and manner of nonobscene
erotic expression may be regulated by local governments. A local
government may not, however, completely zone adult entertainment uses out of their jurisdiction. Current case law interprets the
First and Fourteenth Amendments to require that local government
land use and zoning regulations permit adequate avenues for nonobscene commercial erotic expression.
Current Conditions
The LDC currently prohibits adult entertainment facilities in all zoning districts except for the I-G district where such uses may be allowed by Conditional Use Permit.
Map 1 on page 3 of this staff report depicts locations within the
City where adult entertainment facilities may currently be allowed
by conditional use permit. This map includes the current 1,000
feet minimum separation buffer around each (1) existing adult
entertainment facility, (2) church or other religious institution, (3)
public park, library, elementary, junior high, and high school, (4)
residential zoning district (including planned development districts
with residential uses), and (5) establishment serving alcoholic beverages for onsite consumption.
Map 1 is for general illustrative purposes only and is based on
currently available GIS data that may or may not accurately reflect
actual or grandfathered uses. Site specific analysis may result in
the discovery of actual or grandfathered uses within the minimum
separation buffers.
Currently there is only one adult entertainment facility within the
jurisdictional limits of the City of Orlando. This facility, the ―Fairvilla
Mega Store‖, located at 1740 N. Orange Blossom Trail, is considered an ―adult bookstore‖ under the definitions contained in the
LDC and other parts of the Orlando City Code. A number of adult
entertainment facilities, particularly adult dancing establishments,
are just outside the City’s jurisdiction in unincorporated Orange
County, including, for example, (1) ―Rachel’s South‖, located at
8701 S. Orange Ave., (2) ―Dancers Royale‖, located at 5221 E.
Colonial Dr., and (3) several adult bookstores and dancing establishments along S. Orange Blossom Trail.
Proposed Conditions
Based upon current case law interpreting the First and Fourteenth
Amendments, the proposed text amendment would permit adult
entertainment facilities within the I-G and I-P districts. The proposed amendment would also extend the current minimum separation between schools and adult entertainment facilities from 1,000
feet to 2,500 feet.
Map 2 on page 4 of this staff report depicts locations within the
City where adult entertainment facilities would be allowed by right.
This map includes the current 1,000 feet minimum separation
buffer around each (1) existing adult entertainment facility, (2)
church or other religious institution, (3) public park and library, (4)
residential zoning district (including planned development districts
with residential uses), and (5) establishment serving alcoholic beverages for onsite consumption, and 2,500 feet minimum separation buffer around each existing elementary, junior high, and high
school.
Map 2 is for general illustrative purposes only and is based on currently available GIS data that may or may not accurately reflect
actual or grandfathered uses. Site specific analysis may result in
the discovery of actual or grandfathered uses within the minimum
separation buffers.
Negative Secondary Effects
In general terms, First and Fourteenth Amendment jurisprudence
requires that local government regulation of nonobscene adult
entertainment facilities be predicated entirely on a sincere and
demonstrable effort to combat the negative secondary effects of
such uses and not on the philosophical rejection of the content of
the expression occurring within the facilities.
Crime and the diminution of surrounding property values are two of
the major negative secondary effects associated with adult entertainment facilities that the City desires to mitigate or avoid by the
reasonable land use and zoning regulation of such uses.
Crime
The activities within adult uses provide an opportunity for crime,
such as the arrangement of sex acts (prostitution) either within or
outside the establishment. This crime potential also includes the
attraction of ―soft targets‖ - persons that could be impaired by a
reaction to certain stimuli, either due to the reaction to the erotic
environment, or decreased awareness for personal safety.
For example, persons can become soft targets for potential thefts
or assaults when the focus of the establishment is on excitement,
causing a decreased awareness for personal safety . Further, victims of crimes at such establishments may be more reluctant to
report crime incidents than a victim at a conventional establishment, such as a shopping mall.
Property Values
Surveys of real estate professionals indicate that Adult Uses have a
measurable negative effect on the value of nearby properties,
which exceed even the implications on property values for adjacent
pawn shops, bars or salvage yards.
Additionally, the location of an adult use also provides the opportunity for illegal or suspicious activity outside the business and elsewhere in nearby areas. Selling and renting of properties may potentially be more difficult due to the location of a nearby adult use.
Overview of Selected Negative Secondary Effects Studies
Due to the limited amount of adult entertainment establishments
within City of Orlando limits—limited to one adult bookstore—the
City’s analysis of secondary effects relies on analysis conducted in
several other jurisdictions and government agencies that are relevant to the City of Orlando, including Orange County. Summaries of
these reports, studies and analysis include:
Land Use Study, Austin, Texas, May 19, 1986
Overview: The report was the basis for developing an amendment
to existing sexually oriented business ordinances. At the time, 49
such businesses operated in Austin, mostly adult bookstores, theaters, massage parlors and topless bars. The study examined crime
rates, property values and trade area characteristics.
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MAP 1: EXISTING AREAS WITH CUP
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MAP 2: P ROPOSED AREAS WITH BUFFERS
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A d ul t E nt e r t ai nm e nt / Us e s
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A d ul t E nt e r t ai nm e nt / Us e s
PROPOSED AMENDMENT: REFERENCES
The report focused on sexually related crimes in four study areas
(with sexually oriented businesses) and four control areas (close to
study areas and similar). Two study areas had one sexually oriented business and the others had two such businesses. To determine the effects of these businesses on property values, the city
sent surveys to 120 real estate appraising or lending firms (nearly
half responded). For trade area characteristics, three businesses
(a bookstore, theater and topless bar) were observed on a weekend night to determine customer addresses.
Crime: Sexually related crime ranged from 177-482% higher in
the four study areas than city average. In the two study areas containing two sexually oriented businesses, the rate was 66% higher
than in the study areas with one such business. All control areas
had crime rates near the city average.
Real Estate: 88% of survey resonant said that a sexually oriented
business within one block of a residential area decrease the value
of the homes, with over a third saying that the depreciation would
be at least 20%. Respondants also said that such a business is a
sign of a neighborhood in decline, making underwriters hesitant to
approve the 90-95% financing that most home buyers require.
They said commercial property is also negatively affected by such
businesses.
Trade Area Characteristics: Of 81 license plates for owner address, only three lived within one mile of the sexually oriented business. 44% were from outside the city.
―A Summary of a National Survey of Real Estate Appraisers Regarding the Effect of Adult Bookstore on Property Values‖, conducted by
the Division of Planning, Department of Metropolitan Development,
Indianapolis, January 1984.
Overview: After a ten year growth in the number of sexually oriented businesses (to a total of 68 on 43 sites) and numerous citizen complaints of decreasing property values and rising crime, the
city compared six sexually oriented business ―study‖ areas and six
―control‖ locations with each other and with the city as a whole.
The study and control areas had high population, low income and
older residences. In order to develop a best professional opinion,
the city collaborated with Indiana University on a national survey of
real estate appraisers to determine valuation effects o sexually
oriented businesses on adjacent properties.
Crime: From 1978-82, crime increases in the study areas were
23% higher than the control areas (46% higher than the city as a
whole). Sex crimes in the study areas increased more than 20%
over the control areas. Residential locations in the study areas
had a 56% greater crime increase than commercial study areas.
Sex related crimes were four times more common in residential
study areas than commercial study areas with sexually oriented
businesses.
Real Estate: Homes in the study areas appreciated at only half the
rate of homes in control areas, and one-third the rate of the city.
―Pressures within the study areas‖ caused a slight increase in real
estate listings, while the city as a whole had a 50% decrease, denoting high occupancy turnover. Appraisers responding to the survey said one sexually oriented business within one block of residences and businesses decreased their value and half of the respondents said the immediate depreciation exceeded 10%. Appraisers also noted that value depreciation on residential areas
near sexually oriented businesses is greater than commercial locations.
The report concludes, ―the best professional judgment available
indicates overwhelmingly that adult entertainment businesses—
even a relatively passive use as an adult bookstore– have a serious
negative effect on their immediate environs.
Los Angeles Municipal Code, Section 12.70, Ord. 156509, 1982)
Overview: The Department of City Planning studied the effects of
the concentration of sexually oriented businesses on surrounding
properties for the years 1969-75 (a time of proliferation of such
businesses). The report focuses on five areas with the greatest
concentration of these businesses- compared to five ―control‖ areas– and cites data from property assessments/sales, public meeting testimony, and responses from two questionnaires (one to business/residential owners within a 500-foot radius of the five study
areas and a second to realtors/real estate appraisers and lenders).
Crime statistics in the study areas were compared to the city as a
whole. Also included: a chart of sexually oriented business regulations in eleven major cities, details of current regulations available
under state/municipal law, and appendices with samples of questionnaires, letters, and other study materials.
Property: While empirical data from 1969-75 did not conclusively
show the relation of property values to the concentration of sexually
oriented businesses, more than 90% of realtors, real estate appraisers and lenders responding to the city questionnaires said that
a grouping of such businesses within 500-1,000 feet of residential
property decreases the market value of homes. Also, testimony
from residents and business people at two public meetings spoke
overwhelmingly against the presence of sexually oriented businesses citing fear, concern for children, loss of customers and difficultly in hiring employees at non-adult businesses, and the necessity for churches to provide guards for their parking lots.
Crime: More crime occurred in areas of sexually oriented business
concentration. Compared to city-wide statistics for 1969-75, areas
with several such businesses experienced greater increases in
pandering (340%), murder (42.3%), aggravated assault (45.2%),
robbery (52.6%), and purse snatching (17%). Street robberies,
where the criminal has face-to-face contct with his victim, increased
almost 70% more in the study areas. A second category of crime,
included other assaults, forgery, fraud, counterfeiting, embezzlement, stolen property, prostitution, narcotics, liquor laws, and gambling increased 42% more in the study areas over the city as a
whole.
Survey, Findings and Recommendations of Sexually Oriented Businesses, Toledo, OH, August 26, 2002
Overview: The City of Toledo (―Toledo‖) determined it needed to
address adult entertainment uses as a result of litigation over its
zoning ordinance. Additionally, the City was experiencing an increased number of taverns that were featuring adult entertainment
in violations of the City’s zoning ordinance. At the time of the study,
the City was only regulating adult entertainment through zoning, it
did not have a licensing mechanism. The City defined ―adult entertainment‖ as massage parlors operated by anyone not licensed as
a medical doctor, chiropractor, osteopath, nurse, physical therapist,
or a person practicing massage of the face and hands in a beauty
parlor or barber shop licensed by the City; adult bookstores, adult
motion picture theaters, adult mini-motion picture theaters or adult
entertainment cabarets. When the study was conducted the City
had six adult cabarets, one adult theater that rented videos, eight
adult bookstores, two retail shops, four massage parlors, a bathhouse and a lingerie modeling establishment.
LDC2009-00047
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A d ul t E nt e r t ai nm e nt / Us e s
PROPOSED AMENDMENT: REFERENCES
Crime: The consultants reviewed police calls to adult entertainment establishments and provided an analysis on crime. Five
adult businesses were clustered in one area of the City and accounted for 39% of the crime for that area, but only accounted for
20% of the total businesses in the area. Additionally, the consultants noted significant differences in the number of police calls to
different types of adult businesses. While adult cabarets comprised only 20 percent of the businesses included in the crime
study, they were involved in 44% of the total police calls. The consultants concluded that adult entertainment establishments which
feature live entertainment are likely to have the greatest adverse
impact with respect to the number of incidents which require a
police response.
Property Values: To address concerns of the effect of adult businesses on property values, the consultants relied on studies conducted in other cities. A study from Rochester, NY showed that:
bars with nude servers and live entertainment have a negative
impact on property values; sexually oriented businesses have a
measurable negative impact on property values; there is more of a
negative impact on residential property than on commercial uses;
the greatest impact on property values is those residences located
on the same block as the adult use; the negative impact decreases
with distance, and stops somewhere between 1,000 and 1,500
feet. Also cited the previous Indianapolis study.
Garden Grove, CA Land Use Study, October 1991
Overview: This report by independent consultants summarizes
statistical analyses to determine a basis for adult business regulations because of their negative impact on the community in terms
of crime, decreased property values and diminished quality of life.
Statistics were measured from 1981-90 and included crime data,
and surveys of real estate professionals and city residents. Garden
Grove Boulevard, with seven adult businesses, was selected as the
study area. The study incorporated many control factors to insure
accurate results. The report includes a brief legal history of adult
business regulation and an extensive appendix with samples, materials and a proposed statute.
Crime: Crime increases significantly with the opening of an adult
business or with the expansion of an existing business or the addition of a bar nearby. The rise was greatest in ―serious‖ offenses
(homicides, rape, robbery, assault, burglary, theft and auto theft).
On Garden Grove Blvd, the seven adult businesses accounted for
36% of all crime in the area. In one case, a bar opened less than
500 feet from an adult business, and serious crime within 1,000
feet of that business rose more than 300% in the course of one
year.
Real Estate: Overwhelmingly, respondents said that adult businesses within 200-500 feet of residential and commercial property
depreciates the property value. The greatest impact was on single
family homes. The chief factor cited for the depreciation was the
increased crime associated with adult businesses.
Household Surveys: 118 calls were completed in a random sample of households in the Garden Grove Blvd vicinity. The public
consensus was that adult businesses on Garden Grove Blvd were a
serious problem. Nearly 25% of the surveyed individuals lived
within 1,000 feet of an adult business. More than 21% citied specific personal experiences of problems relating to these businesses, including crime, noise, litter, and general quality of life.
80% said they would want to move if an adult business opened in
their neighborhood, 60% saying they ―would move‖ or ―probably
would move‖. 85% supported city regulation of the locations of
adult businesses, with 78% strongly advocating the prohibition of
adult businesses within 500 feet of a residential area, school or
church. Women commonly expressed fear for themselves and their
children because of the presence of adult businesses.
The United States Attorney General's Commission on Pornography
(1986) - the ―Meese Report‖
Overview: A citizen's right to free speech is guaranteed under the
First Amendment to the United States Constitution; this right can
compete with the rights of others. To avoid these pitfalls, citizens
are encouraged to be vigorous, well-informed, but responsible advocates and to exercise self-restraint so that in exercising their
rights they do not prevent other citizens from exercising theirs—
especially when dealing with issues relating to the adult entertaiment industry.
Citizens concerned about pornography in their community should
initially determine the nature and availability of pornographic materials in their community, existing prosecution policies, law enforcement practices and judicial attitudes in the community. They should
inquire whether these enforcement mechanisms are adequately
utilized. They should determine whether the official perception of
the current community standards is truly reflection of public opinion. If enforcement mechanisms appear inadequate or ineffective,
if legislative change is necessary to enhance the effectiveness of
the criminal justice system, or if the volume of pornography or offensive material is a particular problem in the community, citizens
should consider developing a community action program.
Recommended Findings
In light of the constraints placed on government by the First and
Fourteenth Amendments to the United States Constitution, the City
Attorney and the City Planning Division recommends that the Municipal Planning Board make the following findings in relation to the
proposed text amendments described in this report:
1.
The proposed text amendments are consistent with all applicable policies of the City’s adopted Growth Management Plan.
2.
The proposed text amendments do not conflict with the public
interest and are in harmony with the purpose and intent of the
City’s Land Development Code.
3.
The proposed text amendments will not result in any incompatible land uses.
4.
The proposed text amendments will result in orderly and logical development patterns and will minimize negative effects
on such patterns.
A g e n d a It e m S u m m a r y
M U N I C I PA L P L A N N I N G B OA R D
A G E N DA I T E M # 1 3
S U P P L E M E N TA L M E M O — R E V I S E D
A D U LT E N T E R T A I N M E N T F AC I L I T I E S
APRIL 21, 2009
Case Number
LDC2009-00047
Applicant
City of Orlando
Requested Action
Amend the Land Development Code to allow adult
entertainment facilities as
permitted uses in the IG and
IP zoning districts, to extend
the existing minimum separation between an adult entertainment use and a school
from 1,000 feet to 2,500
feet, and prohibit such uses
in the South Downtown Vision Plan area.
Recommendation
Recommend finding of consistency with the Growth
Management Plan and approval of the proposed
amendment, authorizing staff
to prepare an ordinance to
City Council for first reading.
Project Planner
Jason Burton, AICP, CNU
Chief Planner
with
Kyle Shephard, Esq.
Overview of Existing Code Provisions
The City’s Land Development Code (the “LDC”)
currently prohibits adult entertainment facilities
in all zoning districts except for the General Industrial District (“I-G”) where such uses may be
allowed by Conditional Use Permit.
Proposed Code Amendment
The City Attorney’s Office and the City Planning
Division recommends two immediate amendments to the City’s Land Development Code related to adult entertainment facilities.
The first proposed amendment is to amend Figure 2B.LDC (“Table of allowable uses in zoning
districts inside the traditional city.”) and Figure
2D.LDC (“Table of allowable uses in zoning districts outside the traditional city.”) in Chapter 58,
Orlando City Code, to permit adult entertainment
facilities within the I-G district and the Industrial
Park District (“I-P”), subject to the minimum separation requirements of section 58.702, Orlando
City Code, and other applicable provisions of law.
The second proposed amendment is to amend
section 58.702, Orlando City Code, to extend the
current minimum separation between existing
elementary, junior high, and high schools, and
newly proposed adult entertainment facilities or
proposed substantial enlargements of existing
adult entertainments, from the existing 1,000
feet minimum separation to 2,500 feet minimum
separation.
Additional Proposal
In order to restrict adult entertainment and like
uses in the South Downtown Area, it is proposed
that two additional restrictions be added to the
text amendment:

Updated: April 20, 2009
Prohibit adult entertainment uses within the
South Downtown vision plan area, which
area is referenced in Future Land Use subarea policy S.12.7.
Analysis
The South Downtown Vision Plan, which recently
became effective, contemplates an opt-in for
residential and other intense areas that coalesce
around the future Commuter Rail Station in this
largely industrial area. Thus, the character of this
area is planned to change over the long term to
be a Transit Oriented Development. Allowing
adult entertainment in this area could thwart this
future redevelopment. A map of the possible areas for adult entertainment which is proposed to
be restricted in the future is detailed on Page 2,
which outer boundary is the limits of the South
Downtown subarea policy.
In the South Downtown Vision Plan, this area is
proposed as a “gateway” area that that is too
close to sensitive uses, such as the Downtown,
the ORMC area, residential areas to the east, and
potential residential and commercial development within the South Downtown Vision Plan area
itself.
Staff believes that the above changes would still
provide for adequate alternative avenues for constitutionally protected expressions, consistent
with the analysis in the original staff report.
Staff Recomnedation:
Amend the Land Development Code to allow
adult entertainment facilities as permitted uses in
the IG and IP zoning districts, to extend the existing minimum separation between an adult entertainment use and a school from 1,000 feet to
2,500 feet, and prohibit such uses in the South
Downtown Vision Plan area.
LDC2009-00047
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M A P : S O U T H D O W N T O W N V I S I O N P L A N A R E A — S. 1 2 . 7
South Downtown Vision Plan
Subarea Policy Boundaries
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