ORDINANCE NO. BL2009-538

ORDINANCE NO. BL2009-538

An Ordinance amending Sections 6.54.010 and 17.04.060 of the Metropolitan Code pertaining to the definitions of adult/sexually oriented bookstores and video stores, all of which is more specifically described herein (Proposal No. 2009Z-017TX-001).

WHEREAS, for the reasons stated in Section 1 of this ordinance, the Metropolitan Council deems it necessary for the protection of the health, safety, and welfare of the citizens of the Metropolitan Government that the definitions and regulations pertaining to sexually oriented bookstores and video stores be amended as provided herein.

NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY:

Section 1. Purpose of the ordinance and findings justifying the necessity of the ordinance:

Purpose. It is the purpose of this ordinance to amend the regulations for sexually oriented businesses in order to promote the health, safety, moral, and general welfare of the citizens of the Metropolitan Government, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the county. The provisions of this ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is neither 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; and

Findings. Based on evidence of the adverse secondary effects of adult uses presented in committee meetings and in reports made available to the Metropolitan Council, and on findings, interpretations, and narrowing constructions incorporated in the cases of City of Littleton v. Z.J. Gifts D-4, L.L.C., 124 S.Ct. 2219 (June 7, 2004); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); Pap's A.M. v. City of Erie, 529 U.S. 277 (2000); 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); California v. LaRue, 409 U.S. 109 (1972); and DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Brandywine, Inc. v. City of Richmond, 359 F.3d 830 (6th Cir. 2004); Currence v. City of Cincinnati, 2002 U.S. App. LEXIS 1258; Broadway Books v. Roberts, 642 F.Supp. 486 (E.D. Tenn. 1986); Bright Lights, Inc. v. City of Newport, 830 F.Supp. 378 (E.D. Ky. 1993); Richland Bookmart v. Nichols, 137 F.3d 435 (6 th Cir. 1998); Richland Bookmart, Inc. v. Nichols, 278 F.3d 570 (6th Cir. 2002); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Deja vu v. Metro Government, 1999 U.S. App. LEXIS 535 (6th Cir. 1999); Bamon Corp. v. City of Dayton, 7923 F.2d 470 (6th Cir. 1991); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994); O'Connor v. City and County of Denver, 894 F.2d 1210 (10th Cir. 1990); Deja vu of Nashville, Inc., et al. v. Metropolitan Government of Nashville and Davidson County, 274 F.3d 377 (6th Cir. 2001); Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir. 1998); ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); Threesome Entertainment v. Strittmather, 4 F.Supp.2d 710 (N.D. Ohio 1998); Bigg Wolf Discount Video Sales, Inc. v. Montgomery County, 256 F. Supp. 2d 385 (D. Md. 2003); Kentucky Restaurant Concepts, Inc. v. City of Louisville and Jefferson County, 209 F.Supp.2d 672 (W.D. Ky. 2002); Restaurant Ventures v. Lexington-Fayette Urban County Gov't, 60 S.W.3d 572 (Ct. App. Ky. 2001); World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); and based upon reports concerning secondary effects occurring in and around sexually oriented businesses, including, but not limited to, Austin, Texas - 1986; Indianapolis, Indiana - 1984; Garden Grove, California - 1991; Houston, Texas - 1983, 1997; Phoenix, Arizona - 1979, 1995-98; Chattanooga, Tennessee - 1999-2003; Minneapolis, Minnesota - 1980; Los Angeles, California - 1977; Whittier, California - 1978; Spokane, Washington - 2001; St. Cloud, Minnesota - 1994; Littleton, Colorado - 2004; Oklahoma City, Oklahoma - 1986; Dallas, Texas - 1997; Greensboro, North Carolina - 2003; Amarillo, Texas - 1977; New York, New York Times Square - 1994; and the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota), the Metropolitan Council finds:
(1) Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, illicit drug use and drug trafficking, negative impacts on property values, urban blight, litter, and sexual assault and exploitation.
(2) a 1984 Indianapolis study and a 1986 Oklahoma City study evidence that the adverse secondary effects associated with sexually oriented businesses extend to off-site or retail-only sexually oriented businesses.
(3) Sexually oriented businesses should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other sexually oriented businesses, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of sexually oriented businesses in one area.
(4) Each of the foregoing negative secondary effects constitutes a harm which the Metropolitan Government has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the Metropolitan Government's rationale for this ordinance, exists independent of any comparative analysis between sexually oriented and non-sexually oriented businesses. Additionally, the Metropolitan Government's interest in regulating sexually oriented businesses extends to preventing future secondary effects of either current or future sexually oriented businesses that may locate within the jurisdiction of the Metropolitan Government. The Metropolitan Government finds that the cases and documentation relied on in this article are reasonably believed to be relevant to said secondary effects.

Section 2. That the codification of Title 6 of the Code of The Metropolitan Government of Nashville and Davidson County, Business Licenses and Regulations, is hereby amended as follows:

1. By deleting the definition for “sexually oriented bookstore” and substituting with the following new definition:
"Sexually oriented bookstore" means an establishment which, as one of its principal business purposes, offers for sale books, magazines, other periodicals, or any other items which are distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" as defined in this section for observation of the patrons therein; or in conjunction therewith has facilities for the presentation of sexually oriented entertainment, including but not limited to sexually oriented movies, sexually oriented videos, sexually oriented films, or sexually oriented live entertainment, for observation by patrons therein.

2. By deleting the definition for “sexually oriented video store” and substituting with the following new definition:
"Sexually oriented video store" means a commercial establishment which, as one of its principal business purposes the sale or rental, or presentation for a fee or incidentally to another service, "sexually oriented videos," as defined in this section; or in conjunction therewith, regularly presents on the premises sexually oriented motion pictures or sexually oriented films, "sexually oriented videos," or sexually oriented live exhibitions which are distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" as defined in this section for observation by patrons therein.

3. By adding the following new definition for “principal business purpose”:
“Principal business purpose” means a business purpose for which any one of the following applies:
(1) At least thirty-five percent (35%) of the business's displayed merchandise consists of books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations, which are characterized by their emphasis upon the display of "specified sexual activities" or "specified anatomical areas”;
(2) At least thirty-five percent (35%) of the wholesale value of the business's displayed merchandise consists of the foregoing enumerated items;
(3) At least thirty-five percent (35%) of the retail value of the business's displayed merchandise consists of the foregoing enumerated items;
(4) At least thirty-five percent (35%) of the business's revenues derive from the sale or rental, for any form of consideration, of the foregoing enumerated items;
(5) At least thirty-five percent (35%) of business's interior business space is used for the display, sale, or rental or the foregoing enumerated items;
(6) The business regularly features the foregoing enumerated items, and prohibits access by minors, because of age, to the premises, and advertises itself as offering “adult” or "XXX" or "x-rated" or "erotic" or "sexual" or "pornographic" material on signage visible from a public right-of-way.

Section 3. That Section 17.04.060 of the codification of Title 17 of the Code of The Metropolitan Government of Nashville and Davidson County, Zoning Regulations, is hereby amended by amending the following definitions under the primary definition of “adult entertainment”:

1. By deleting the definition for “adult bookstore” and substituting with the following new definition:
"Adult bookstore" means an establishment which, as one of its principal business purposes, offers for sale books, magazines, other periodicals, or any other items which are distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" as defined in this section for observation of the patrons therein; or in conjunction therewith has facilities for the presentation of sexually oriented entertainment, including but not limited to sexually oriented movies, sexually oriented videos, sexually oriented films, or sexually oriented live entertainment, as defined in section 6.54.010 of the metropolitan code, for observation by patrons therein.

2. By deleting the definition for “adult video store” and substituting with the following new definition:
"Adult video store" means a commercial establishment which, as one of its principal business purposes the sale or rental, or presentation for a fee or incidentally to another service, "adult videos," as defined in this section; or in conjunction therewith, regularly presents on the premises sexually oriented motion pictures or sexually oriented films, "adult videos," or sexually oriented live exhibitions which are distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" as defined in this section and in section 6.54.010 of the metropolitan code for observation by patrons therein.

Section 4. That this Ordinance shall take effect five (5) days from and after its passage and such change be published in a newspaper of general circulation, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: Jim Gotto, Anna Page, Duane Dominy, Darren Jernigan, Eric Crafton, Karen Bennett

Amendment No. 1
To
Ordinance No. BL2009-538

Madam President:

I move to amend Ordinance No. BL2009-538 as follows:

I. By deleting the second paragraph of Section 1, “Findings”, and substituting with the following:

“Findings. Based on evidence of the adverse secondary effects of adult uses presented in committee meetings and in reports made available to the Metropolitan Council, and on findings, interpretations, and narrowing constructions incorporated in the cases of City of Littleton v. Z.J. Gifts D-4, L.L.C., 124 S.Ct. 2219 (June 7, 2004); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); Pap's A.M. v. City of Erie, 529 U.S. 277 (2000); 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); California v. LaRue, 409 U.S. 109 (1972); and DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Brandywine, Inc. v. City of Richmond, 359 F.3d 830 (6th Cir. 2004); Currence v. City of Cincinnati, 2002 U.S. App. LEXIS 1258; Broadway Books v. Roberts, 642 F.Supp. 486 (E.D. Tenn. 1986); Bright Lights, Inc. v. City of Newport, 830 F.Supp. 378 (E.D. Ky. 1993); Richland Bookmart v. Nichols, 137 F.3d 435 (6 th Cir. 1998); Richland Bookmart, Inc. v. Nichols, 278 F.3d 570 (6th Cir. 2002); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Deja vu v. Metro Government, 1999 U.S. App. LEXIS 535 (6th Cir. 1999); Bamon Corp. v. City of Dayton, 7923 F.2d 470 (6th Cir. 1991); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994); O'Connor v. City and County of Denver, 894 F.2d 1210 (10th Cir. 1990); Deja vu of Nashville, Inc., et al. v. Metropolitan Government of Nashville and Davidson County, 274 F.3d 377 (6th Cir. 2001); Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir. 1998); ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); Threesome Entertainment v. Strittmather, 4 F.Supp.2d 710 (N.D. Ohio 1998); Bigg Wolf Discount Video Sales, Inc. v. Montgomery County, 256 F. Supp. 2d 385 (D. Md. 2003); Kentucky Restaurant Concepts, Inc. v. City of Louisville and Jefferson County, 209 F.Supp.2d 672 (W.D. Ky. 2002); Restaurant Ventures v. Lexington-Fayette Urban County Gov't, 60 S.W.3d 572 (Ct. App. Ky. 2001); World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); and based upon reports concerning secondary effects occurring in and around sexually oriented businesses, including, but not limited to, Austin, Texas - 1986; Indianapolis, Indiana - 1984; Garden Grove, California - 1991; Houston, Texas - 1983, 1997; Phoenix, Arizona - 1979, 1995-98; Chattanooga, Tennessee - 1999-2003; Minneapolis, Minnesota - 1980; Los Angeles, California - 1977; Whittier, California - 1978; Spokane, Washington - 2001; St. Cloud, Minnesota - 1994; Littleton, Colorado - 2004; Oklahoma City, Oklahoma - 1986; Dallas, Texas - 1997; Greensboro, North Carolina - 2003; Amarillo, Texas - 1977; New York, New York Times Square - 1994; the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota); Fort Worth, Texas - 2004; Kennedale, Texas - 2005; Jackson County, Missouri - 2008; Richard McCleary, Rural Hotspots: The Case of Adult Businesses, Criminal Justice Policy Review, Vol. 19, No. 2 (June 2008); Crime Related Secondary Effects of Off-Site Sexually-Oriented Businesses (McCleary - 2008); Activity Cycles in Adult Bookstores (McCleary and Tewksbury – 2009); Richard McCleary and Alan C. Weinstein, Do “Off-Site” Adult Businesses Have Secondary Effects? Legal Doctrine, Social Theory, and Empirical Evidence, LAW & POLICY, Vol. 31, No. 2 (April 2009); the Metropolitan Council finds:
(1) Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, illicit drug use and drug trafficking, negative impacts on property values, urban blight, litter, and sexual assault and exploitation.
(2) a 1984 Indianapolis study and a 1986 Oklahoma City study evidence that the adverse secondary effects associated with sexually oriented businesses extend to off-site or retail-only sexually oriented businesses.
(3) Sexually oriented businesses should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other sexually oriented businesses, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of sexually oriented businesses in one area.
(4) Each of the foregoing negative secondary effects constitutes a harm which the Metropolitan Government has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the Metropolitan Government's rationale for this ordinance, exists independent of any comparative analysis between sexually oriented and non-sexually oriented businesses. Additionally, the Metropolitan Government's interest in regulating sexually oriented businesses extends to preventing future secondary effects of either current or future sexually oriented businesses that may locate within the jurisdiction of the Metropolitan Government. The Metropolitan Government finds that the cases and documentation relied on in this article are reasonably believed to be relevant to said secondary effects.”

II. By amending Section 2 as follows:

1. By deleting the first sentence of the Section and substituting with the following sentence:
“That the codification of Title 6 of the Code of The Metropolitan Government of Nashville and Davidson County, Business Licenses and Regulations, is hereby amended by amending Section 6.54.010 as follows:”
2. By amending the definition of “sexually oriented video store” by deleting the phrase “as one of its principal business purposes the sale or rental”, and substituting with the phrase “as one of its principal business purposes offers the sale or rental”.

3. By amending the definition of “principal business purpose” by deleting the phrase “rental or the foregoing enumerated items”, and substituting with the phrase “rental of the foregoing enumerated items”.

III. By amending Section 3 as follows:

1. By amending the definition of “adult video store” by deleting the phrase “as one of its principal business purposes the sale or rental”, and substituting with the phrase “as one of its principal business purposes offers the sale or rental”.

2. By amending the definition of “principal business purpose” by deleting the phrase “rental or the foregoing enumerated items”, and substituting with the phrase “rental of the foregoing enumerated items”.

LEGISLATIVE HISTORY
Introduced:	September 1, 2009
Passed First Reading:	September 1, 2009
Referred to:	Planning Commission - Approved 6-0 September 24, 2009 Codes Committee Planning & Zoning Committee
Passed Second Reading:	November 3, 2009
Amended:	November 17, 2009
Passed Third Reading:	November 17, 2009
Approved:	November 19, 2009
By:
Effective:	November 23, 2009