If you can't ban them, regulate them.
The majority of the Chula Vista City Council Thursday amended part of the city’s municipal code under an urgency ordinance regarding sexually oriented businesses operating in the city.
Although Mayor Cheryl Cox and city attorney Glen Googins made it clear at the special meeting that changes were necessary to update an outdated ordinance and did not target a particular business, the decision follows the recent opening of fully nude strip club on the city’s bayfront.
Eyecandy Showgirls opened its doors early October at 215 Bay Boulevard, the previous location of Anthony’s Fish Grotto.
The changes update a 30-plus-year-old live entertainment licensing and regulation ordinance by addressing licensing and permitting provisions as well as operating standards for existing and future adult facilities.
Specifically, the amendment seeks to reduce the potential adverse secondary effects of sexually oriented businesses in order to protect the city’s overall quality of life.
The effects include, but are not limited to crime, community blight, decrease in property values, property crimes, the spread of sexually transmitted diseases and public indecency.
In essence, city council and staff said these regulations will preserve public peace, protect pubic health, safety and welfare from illegal activity including prostitution, drug transactions and illicit sexual activity.
The restrictions are extensive, such as limiting the hours of operation, prohibiting direct touching between patrons and performers as well as implementing a six-feet of separation rule, instituting separate entrances and adding a fixed stage with a barrier or rail.
Eyecandy attorney Roger Diamond said although his client was not named specifically within the 116-page report, he’s sure it’s the target of the new ordinance.
“First of all, there’s no indication in this case that any of those things has occurred,” Diamond said. “Second, the city was aware of all these studies when it adopted the zoning law that currently exists.”
The city staff report cited numerous cases and studies verifying that secondary effects of sexually oriented businesses is a legitimate concern.
The city attorney’s office engaged special outside counsel Deborah Fox of a Los Angeles law firm, who litigates cases on the secondary effects of sexually oriented businesses.
Fox said the intent is not to infringe on “expressive activities” protected by the First Amendment, but rather enact reasonable time, place and manner regulations that address any secondary effects.
The city is implementing content neutral regulations, provisions aimed at protecting governmental interests unrelated to speech content.
City officials say the regulations provide a balance between protecting the city’s interests and the business’ constitutional rights.
“This is a constitutional, sound ordinance that is based on a thorough review of case law and studies,” Fox said Thursday.
Chula Vista Police Chief David Bejarano also spoke to the secondary effects, basing his expertise off experience as vice commander with San Diego police, investigating unlawful activities in sexually oriented businesses.
“Secondary effects are a major concern of sexually oriented businesses,” Bejarano said. “They are labor intensive … they require a lot of police presence and covert operations.”
The location of Eyecandy is zoned as commercial thoroughfare, according to permitted uses in city’s municipal code for “adult-oriented recreation businesses.”
“They’ve undermined the rationale for their locational restrictions on adult businesses,” Diamond said. “And my client does not like that because my client does not want competition.”
Diamond said that if the new ordinance eliminates secondary effects there’s no need to restrict the locations of these types of businesses.
“So like many things, acts sometimes have unintended consequences and sometimes acts cause the opposite of what the acts purport to prohibit or prevent,” he said. “These types of mistakes can happen when governments rush to do something with analyzing the issues.”
The new ordinance also requires any current operating sexually oriented business and all performers to apply for a license with the city.
The report explains that the operation and licensing of sexually oriented businesses are the public’s interest due to the general welfare of citizens.
“The city has made a mistake against the interest of the city,” Diamond said. “The city council is jeopardizing other neighborhoods because by purporting to eliminate secondary effects allegedly caused by adult businesses … the city has basically shot itself in the foot and removed the only legal basis for having zoning laws.”
Any existing business has 90 days to adhere to any aesthetic changes to their building, according to Googins.
“Any of the operational requirements go into effect immediately,” Googins said.
Regarding code enforcement and police and checking up on compliance for an operational business, compliance would be approached like any other business operation, Googins said.
The opening of Eyecandy has concerned residents and city officials, specifically since many city leaders were under the impression that the business opening in that location was going to be a comedy club.
While owners filled out the business license as a “cabaret theater,” additional information described plans for a comedy club, which would serve food and alcoholic beverages.