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01-24-1995CITY Of RICHFIELD KnnninG commission AGEnDR January 24, 1995 7:00 p.m. -- Regular Meeting Regular meeting of November 22, 1994, Special meeting of December 6, 1994, Study Session of December 13, 1994 and Special meeting of January 10, 1995. 1 "uk li• Ile sir•in;. ITEM #1 95- ACUP -1 407 West 66th Street South Richfield State Agency Amend Conditional Use Permit Nc.'v' :u l t1eti ITEM #2 PC Letter #1 Amendment to Zoning Code to Permit Adult Uses P School Board Community Services Advisory Commission H RA City Council AdHoc 135/1494 Traffic Committee Ac1jc uhnnient Auxiliary aids for individuals with disabilities are available upon request. Requests must be made at least 96 hours in advance to the Administrative Service's Director at 861- 9702 ". PLANNING COMMISSION MINUTFF Regular Meeting November 22, 1994 MEMBERS PRESENT: Chairperson Daniel Linnihan; Commissioners: Pamela Dmytrenko, Timothy Erlander, David Gepner, William Snyder, and Kristal Stokes. MEMBERS ABSENT: Morns Nilsen H, Thomas Scaglia, and Paul Wasko COLTNCIL LIAISON: Martin Kirsch, Mayor STAFF PRESENT: Byron Wallace, Community Development Director; Bill Weaver, City Planner; and Shawn Drill, Zoning Administrator. The Planning Commission meeting was called to order by Chairperson Linnihan at 7:00 p.m. a APPROVAL OF MINUTES M/Snyder, S /Stokes to approve the minutes of the regular Planning Commission meeting of October 25, 1994. Motion carried: 6 -0 M/Stokes, S /Snyder to approve the minutes of the Planning Commission studX session of November 15, 1994. Motion carried: 6 -0 PUBLIC HEARINGS None. Planning Commission Minutes November 22, 1994 Page 2 NEW BUSINESS ITEM #1 Adult uses study -- PC Letter #15 Community Development Director Wallace reviewed PC Letter #15, stating that a recent meeting with legal counsel indicates we should consider expanding the areas or percentages for adult uses on the maps being developed. He suggested that we may look at the area south of 77th Street and east of I -35W differently because of the barrier wall. He said staff could develop maps to calculate the land area and percentages for adult uses in this area without applying the required distances to protected use and zones which lie north of the wall. Mr. Wallace said that this would put most of the available land along the I -494 corridor, however, noted that this would not be a typical type of "concentration' regulation, because their would be distance requirements between the protected uses and zones which lie south of the wall, as well as from other adult uses. Mr. Wallace said that more land could be picked up if the C -3 district was included in the "permitted" zones. He also said that staff was reviewing the issue of protecting gateways, and this could be indicated on revised maps as well. The Planning Commission directed staff to prepare revised maps as outlined by Mr. Wallace. General discussion followed regarding legal issues and actual sites available. Mr. Wallace raised the issue of floor area vs. inventory vs. volume of sales for video , stores, etc., where a portion of their goods are classified as adult material. The Commission directed staff to review a 20% floor area regulation, as the best way to deal with this. Commissioner Erlander noted that "adult car wash" is not defined in the proposed ordinance. Chairperson Linnihan noted that in some areas we refer to adult uses and in others we refer to adult establishments. We may have to define differences if their are any. Mr. Wallace noted that the definitions of the proposed ordinance are shared by many cities who regulate adult uses and have already been tested through the courts. The Commission suggested that one person may be designated to serve as a representative to the press regarding adult uses. They also set December 5, 1994 as a date to review adult uses with the City Council. Planning Commission Minutes November 22, 1994 Page 3 OLD BUSINESS None. LIAISON REPORTS School Board: Commissioner Dmytrenko briefed the Commission on the reconstruction project, stating that change orders will be about $800,000. She also discussed enrollment and effect of New Ford Town buyout. Copies of the 1993 -1994 Audit report were handed out. Chairperson Linnihan also briefed the Commission regarding the November 21 meeting. Community Services Commission: No report. HRA: Mr. Wallace reviewed the mediation outcome for Village Shores. He also reviewed the redevelopment plan for the car wash site at 6601 Bloomington with a dental office. City Council: Mr. Wallace said that Best Buy plans to open the day after Thanksgiving. Ad Hoc Traffic Committee: No report. ADJOURNMENT The meeting was adjourned by unanimous consent at 8:35 p.m. Timothy Erlander Planning Commission Secretary PLANNING COMMISSION MINUTES m5al e"E"Iffil"o, Special Meeting December 6, 1994 MEMBERS PRESENT: Chairperson Daniel Linnihan; Commissioners: Timothy Erlander, David Gepner, Thomas Scaglia, Kristal Stokes, and Paul Wasko MEMBERS ABSENT: Pamela Dmytrenko, Morris Nilsen II, and William Snyder COUNCIL LIAISON: Martin Kirsch, Mayor STAFF PRESENT: Byron Wallace, Community Development Director; Bill Weaver, City Planner; and Shawn Drill, Zoning Administrator. The Planning Commission meeting was called to order by Chairperson Linnihan at 7:00 p.m. APPROVAL OF MINUTES None. PUBLIC HEARINGS CASE 94- APUD -3, Shops at Lyndale -- Phase I ITEM #1 CSM Corporation, Amend PUD, FDP, and CUP to allow size increase of Anchor B Building Community Development Director Wallace stated that the petition by CSM would allow an increase in the Anchor B building of Phase I, which is the center area between Best Buy and SportMart. The amendment would raise the square footage from 15,561 square feet to 25,962 square feet. He said the building would be occupied by PetSmart. Planning Commission Minutes December 6, 1994 Page 2 Mr. Wallace reviewed the proposed parking ratio for the Phase I site and stated that parking exceeds the City's standards. Mr. Wallace stated that CSM was recently approved for the development rights for Phase II, which allows them to increase square footage more in -line with their original PUD proposal. Mr. Wallace reviewed the issue involving a veterinary clinic at PetSmart. He stated that both the City and CSM have been up front about telling PetSmart about the problematic permission to put a vet clinic in the building. He said that it should be left to PetSmart to make their case directly to the City Council in this particular issue. He noted that some months ago, Pet Food Warehouse proposed a similar type vet clinic at Market Plaza. He added that permission has not been granted to operate a clinic at that location. Mr. Wallace said it was the Commission's prerogative' whether or not to include a stipulation regarding the vet clinic. Dave Carland, CSM, said that PetSmart was made aware of the clinic situation. He said that there is no contingency in the lease agreement regarding a vet clinic. He stated that he felt permission for a vet clinic was a licensing issue rather than a zoning issue, and opposed inclusion of the stipulation. M/Stokes, S/Erlander to close the public hearing. Motion carried: 6 -0 M/Scaglia, S/Erlander to reopen the public hearing. Mark Obinger, 7638 Bryant Avenue, asked how the increase in size would be accomplished. Gary Tushie, Architect for CSM, reviewed the proposed plan stating that the increase would be realized by filling in the area near the loading area, with no expansion upward. Mr. Obinger stated that his back yard is currently lit up with Best Buy signage, and questioned the signage for PetSmart. Mr. Carland reviewed the signage issues. He stated that Best Buy is committed to resolving the lighting problem for the neighborhood. He said that there is more signage lighting north of the building than is necessary. Mr. Obinger stated that just recently the sign lighting was put on a timer and now shuts off at 11:00 p.m., which is am improvement. M/Scaglia, S/Erlander to close the public hearing. Motion carried: 6 -0 Planning Commission Minutes December 6, 1994 Page 3 M/Erlander, S/Wasko to recommend that the City Council approve the amended final development plan and conditional use permit for Phase I of the CSM Redevelopment Project subject to the following stipulation: 1. That a veterinary clinic not be located in the Phase I area. Motion carried: 6 -0 PC Letter # 16 ITEM #2 Comprehensive Plan Finding, regarding "East 66th Street Redevelopment Project Area" Zoning Administrator Drill reviewed the staff report, stating that the HRA is proposing to establish a redevelopment district at 6601 Bloomington Avenue. The district would facilitate redevelopment of the Tip Top car wash site. He said a 6,000 square foot dental building is being proposed for the site. The building would be one -story with a 3,000 square foot footprint and full basement. Mr. Drill stated that in order to establish the redevelopment district, the Planning Commission must find that the proposal is consistent with the Comprehensive Plan. He said the zoning of the subject site is C -2, where dental uses are permitted. He also said the Comprehensive Plan designates this parcel, and much of East 66th Street as "medium density buffer ". He stated that medium density buffer allows convenience commercial development. Staff recommended approval of a resolution finding consistency with the Comprehensive Plan. Responding to Chairperson Linnihan, Mr. Drill stated that the BRA involvement would consist only of providing a loan for the dental building development, and that this was not a "tax increment financing" type of arrangement. Responding to Commissioner Gepner, Mr. Drill stated that there are a handful of similar redevelopment districts through out the community, which were set up to allow the HRA to provide some type of funding mechanism for sites in need of redevelopment. Mr. Wallace stressed that this would not be tax increment financing, but rather a loan. He added that the return of taxes will be immediately favorable to the City, as current taxes" are around $4,500, and "after redevelopment taxes" would be up around 38,000. Responding to Commissioner Stokes, Mr. Drill said that the redevelopment project area was limited only to the property at 6601 Bloomington Avenue. Planning Commission Minutes December 6, 1994 Page 4 Responding to Chairperson Linnihan, Mr. Wallace said that relocation issues were being taken care of, in essence, by the loan through the developer. M/Scaglia, S /Stokes that the following resolution be adopted; that it be dread in the Planning Commission resolution book, and that it be made a part of these minutes: RESOLUTION NO. 96 RESOLUTION OF THE RICHFIELD PLANNING COMMISSION FINDING MODIFICATION TO RICHFIELD REDEVELOPMENT PROJECT PLAN, CONSISTING OF ADOPTION OF REDEVELOPMENT PLAN FOR THE EAST 66TH STREET REDEVELOPMENT PROJECT AREA, TO BE CONSISTENT WITH THE RICHFIELD COMPREHENSIVE PLAN Motion carried: 6 -0 NEW BUSINESS None. OLD BUSINESS Commissioner Erlander briefed the Planning Commission on the Adult Uses discussion at the City Council study session of December 6, 1994. He noted that the Council's direction was to progress with the proposed regulations under the 1,000/200 foot map with protected gateways. Commissioner Stokes briefed the Planning Commission on progress of the Comprehensive Plan Steering Committee. LIAISON REPORTS None. Planning Commission Minutes December 6, 1994 Page 5 ADJOURNMENT The meeting was adjourned by unanimous consent at 7:45 p.m. Timothy Erlander Planning Commission Secretary PLANNING COMMISSION MINUTE Study Session December 13, 1994 MEMBERS PRESENT: Chairperson Daniel Linnihan; Commissioners: Timothy Erlander, William Snyder, Kristal Stokes, and Paul Wasko MEMBERS ABSENT: Pamela Dmytrenko, David Gepner, Morris Nilsen II, and Thomas Scaglia COUNCIL LIAISON: None STAFF PRESENT: Byron Wallace, Community Development Director; and Shawn Drill, Zoning Administrator The study session was called to order by Chairperson Linnihan at 7:05 p.m. ITEM #I Report/Discussion on Adult Use Regulations Mr. Wallace briefed the Commission on his December 9, 1994 meeting with Jim Thomson, Marty Costello, and Jack Erskine regarding licensing issues for adult uses. He stated that a health ordinance would be considered along with the proposed zoning amendments. Mr. Wallace presented the Commission with the following hand -outs for review: Section 2020 of the Richfield City Code relating to nudity City of Alexandria's public indecency ordinance adopted September 4, 1994 Court decision CiMof Fridley v. The Fantasy House, Inc., filed August 17, 1993 Q & A relating to the proposed adult uses ordinance to appear in Jan. `95 Your City In review of the Fantasy House issue, the Planning Commission decided to include regulations for this type in business in the proposed ordinance. Mr. Wallace said he would inform legal counsel of the Planning Commission's wishes on this issue. The Commission decided to conduct an Open House on the proposed adult uses ordinance between 6:00 p.m. and 7:00 p.m. on January 24, 1995, just prior to the public hearing. Responding to Commissioner Wasko, Mr. Wallace said the City would provide pizza/pop to the Commissioners at 5:30 p.m. on the evening of January 24, 1995. This would allow Commissioners to come straight from work if need be and have time to eat before the open house. Study Session Minutes December 13, 1994 Page 2 The Commission reviewed a letter which was drafted by Commissioner Erlander. A final version of the letter will be mailed out to schools, churches, and other organizations to inform them of the proposal. Mr. Wallace will check with the City Manager to see if such letter could be printed on City letterhead. General discussion about the communication plan followed. Commissioner Snyder said he would see if he could get an interview on cable TV. The Commission also requested that a copy of the proposed ordinance be placed in the Public Library. ADJOURNMENT The meeting was adjourned by unanimous consent at 8:10 p.m. T71flander Planning Commission Secretary CITY OF R10HRELD PLnnninG oommission Motion -Requdit Item: #1 Agenda Section: Public Hearing Case: #95 -CUP -1 Date: January 24 , 1995 Petitioner: Location: Type of Request: Zoning: Land Use: Comp. Plan: References: Zoning Code: City Code: GENERAL INFORMATION Richfield State Agency 407 West 66th Street Amend Conditional Use Permit PC -2 Planned General Commercial Commercial Central Business District see attached Citations section for excerpts) Section 530.01 - 530.25, 530.41 ACTION Proposed Change: Amend conditional use permit to reflect replacement of curb lane dividers with stripe. staff Recommendation: Approve the conditional use permit request. HISTORY Public Notice: Notice of the Planning Commission's consideration and public hearing was mailed to all property owners within 350 feet of the subject property. Public Hearing: The Planning Commission will conduct a public hearing on January 24, 1995 Hearing Examiner: City Council: Planning Commission action would set a City Council public hearing date of Febuaury 27, 1995. ANALYSIS Background: Approved development plans called for a divided entry/exit median within the northeast entry drive of the site. Construction modifications resulted in replacement of the median with pavement stripping. Proposal: Amend the final development plan to reflect the change from concrete median to stripping. Issues: Elimination of the median will not change traffic movement or adversely effect surrounding property. RECOMMENDATIONS Recommended Action: Preferred: Recommend that the City Council approve the request for amendment to the Conditional Use Permit and Final Development Plan Basis: 1. The change will have no adverse impact on the surrounding landuses. 2. There will be no change in the movement of traffic into and out of the site. 3. Elimination of the median will aide snow removal. Alternative: Recommend that the City Council deny the request with a finding of fact that the proposed use would have an adverse impact on surrounding properties or the City as a whole. ZONING CODE: CITATIONS Section 530 - Zoning: planned unit development districts. PUD) 530.01. Planned unit development (PUD) district: purpose. It is the purpose of this section to provide for the establishment, at the discretion of the city council, of planned unit development (PUD) zoning districts on tracts of land which are suitable in location, area and character for the use and for the structures proposed. It is the objective of the city to provide for flexibility in planning mixed land uses, economic and efficient land uses, a high level of amenities, creative and superior design, greater intensity and increased community economic benefit, improved public safety and preservation of natural scenic and recreational qualities of open spaces for a better living, working and shopping environment. To accomplish those objectives, the suitability of a tract of land for the development proposed must be determined primarily by reference to the city's comprehensive plan and any redevelopment plan for the area which has been adopted by the city. Consideration shall be given to existing and surrounding development when establishing a planned unit development district. Standards and criteria relating to such matters as design, building size, height and location, lot coverage and parking requirements contained elsewhere in the zoning code should be considered as merely guidelines in considering any PUD proposal and may be departed from in the approval of any PUD proposal if the city determines that the PUD proposal is consistent with the purposes and objectives herein described. 530.03. Ownership. The land, buildings, and improvements in a proposed PUD district shall be in a single ownership or under the management and supervision of a central authority, or otherwise subject to such long -term leases or other ownership control as the city council may deem necessary to carry out the provisions of this section. 530.05. Integrated design. The PUD will consist of a harmonious selection of uses in groupings of buildings, services, parking areas, traffic and pedestrian circulation and open spaces and shall be planned and designed as an integrated unit. If a proposed PUD district falls, in whole or in part, within a redevelopment project, the PUD plan and design shall be integrated with the general character of that redevelopment project. 530.07. Relationship of site to comprehensive plan and redevelopment plan. The planned unit development shall be consistent with the comprehensive development plan and any applicable redevelopment plan of the city. 530.09. Site. No planned unit development district shall contain less than 43,560 square feet in gross land area as defined in subsection 530.37. 530.11. PUD Types. There are six types of planned unit development districts as follows: Planned Single Family Residential PR) Planned Two Family Residential (PMR -1) Planned Multiple Residential PMR) Planned Neighborhood Commercial PC -1) Planned General Commercial PC-2) Planned Industrial PI) 530.13. Uses. Subdivision 1. Permitted. Uses permitted in a PUD district are as follows: a) uses permitted in a "R" or "R -1" district are permitted in a PR district; b) uses permitted in an "R ", "R -1" or "MR -1" district are permitted in a "PMR -1" district provided that the density of two family dwellings may not exceed ten dwelling units per acre; c) uses permitted in an "MR ", "MR -1 ", "MR -2 ", or "MR -3" district are permitted in a PMR district; d) uses permitted in a "C -1 district shall be permitted in a PC -1 district; e) uses permitted in a "C -2 district shall be permitted in a PC -2 district; f) uses permitted in an "I" district shall be permitted in a PI district. Subd. 2. Other uses. Uses other than the permitted uses listed in subdivision 1, are allowed in a PUD district, provided (i) the use is one which is authorized in one of the six types of PUD districts, and (ii) that such additional use may not occupy more than 33 percent of the gross floor area of the PUD district. 530.15. Establishment procedures. Subdivision 1. Application. An applicant requesting establishment of a PUD zoning district shall submit a concept proposal statement in writing to the director. Acceptance by the director of the concept statement shall not obligate the city to approve the PUD plan, final PUD plan or any part thereof or to rezone the property to a PUD district. Subd. 2. Application: contents. The following items must be contained in the concept proposal statement: a) a legal description of the total site proposed for development, 'including a statement of the present and proposed ownership; b) a statement of the planning objectives to be achieved by the planned unit development through the particular approach proposed by the applicant. This statement should include a description of the character of the proposed development and the rationale for choices made by the applicant in the course of development of the concept; c) a development schedule indicating the approximate date when construction of the planned unit development or stages of planned unit development can be expected to begin and to be completed; d) additional information as may be required by the planning director to determine that the proposal is in conformance with the city's adopted comprehensive plan and any redevelopment plan. Subd. 3. Application: filing. Upon review and acceptance of the concept proposal statement by the director, an applicant for a PUD district rezoning shall apply therefor to the city on forms to be furnished by the director. The application shall be filed with the director. The application is to be completed by the applicant and shall be accompanied by a PUD plan for the entire tract of land. 530.17. PUD plan. Subdivision 1. The PUD plan shall consist of, but not be limited to, the data required by this subsection. Subd. 2. Data. Drawings required to be part of the PUD shall have a scale of not more than 50 feet to the inch. Drawings shall be submitted showing: a) the outline, overall dimensions and the area of the tract described in the application; b) the use, existing zoning, and ownership of the subject tract and adjacent properties within 350 feet of the proposed P[TD district boundaries including the location of all structures and the right -of -way widths and travel widths of all adjacent public roadways; c) the location, general exterior dimensions and gross floor area of all proposed buildings; d) the type of use proposed to occupy each parcel and each building, the amount of building floor area devoted to each different use, and a legal description of all areas to be designated for uses allowed by subsection 530.13, subdivision 2; e) the location, arrangement and number of automobile parking stalls; f) the location, arrangement and general dimensions of all truck loading facilities and all passenger loading areas including bus turnouts and shelters; g) the location and dimension of all vehicular entrances an exits, driveways and their relationship to all existing and proposed public streets; h) the location, design and dimension of pedestrian entrances, exits, walks, skyways, plaza courts or other related pedestrian areas; i) the location and dimension of all walls, fences and planting areas both designed to screen the proposed district from adjacent uses and to enhance the environment of the district; 0) the location and dimension of all signs and lighting including the illumination characteristics of all lighting; k) existing buildings, roads, trees, utilities and utility easements, all shown in half tone, black and white; 1) preliminary building plans, elevation sections and general specifications of material and unusual structural systems for the proposed building or buildings, prepared by an architect registered in the State of Minnesota; m) the site grading plan including an analysis of the adequacy of surface drainage, storm sewer and catch basin drainage, erosion control, visual screening and landscaping and existing and proposed topography of the tract with vertical topographic contour intervals not greater than two feet. Subd. 3. Covenants: restrictions. As part of the PUD plan, the applicant shall submit proposed declarations of covenants, conditions and restrictions, articles of owners, associations and all other such documents as the city may deem necessary in such form and containing such provisions as will ensure that adequate property control is provided to protect the individual owner's rights and property values, to establish responsibility for maintenance and upkeep, and to ensure continuing compliance with the plan. The city shall require that such declarations of covenants, conditions and restrictions or other documents provide that in the event any association or corporation fails to maintain properties in accordance with the applicable ordinances and regulations of the city or fails to pay taxes or assessments on properties as they become due and in the event the city incurs any expenses in enforcing its ordinances, rules and regulations, which expenses are not immediately reimbursed by the association or corporation, the city shall have the right to assess each property its pro rata share of such expenses. These assessments, together with interest thereon and costs of collection, shall be a lien on each property against which each such assessment is made. 530.19. Coordination of subdivision regulations. Subdivision review under section 500 of the city code shall be carried out simultaneously with the review of the PUD. In addition to the PUD plan, the applicant shall submit information meeting the requirements of section 500. 530.21. Development schedule. The applicant shall submit a proposed schedule for construction beginning at the time the requested zoning may be gran ted by the city and continuing until all the components of the PUD are fully completed. If the construction of the proposed PUD development is to be. in stages, then the components contained in each stage shall be clearly delineated. 530.23. Planning commission review: PUD plan. Subdivision 1. Referral. Upon receipt and review of the concept proposal statement and receipt of the application and PUD plan, the director shall refer the PUD plan to other appropriate departments and agencies for review. Within 30 days after the receipt of the written concept proposal statement, PUD plan and application, the director shall recommend to the planning commission either (i) approval of the proposal in the form submitted, or (ii) approval with modifications, or (iii) disapproval. Subd. 2. Findings. The recommendation of the director shall include findings of fact and shall set forth the reasons for the recommendations specifying with particularity in which aspects the plan would or would not be in the public interest, including but not limited to the following: a) the extent to which the plan departs from the requirements of this code, subdivision regulations, comprehensive development plan and redevelopment plan, if any, otherwise applicable to the subject property, including but not limited to density, bulk and use, and the reasons why such departures are or area not deemed to be in the public interest; b) the extent to which the plan does or does not make adequate provisions for public services, vehicular traffic control, air and light, recreation and visual enjoyment; c) the nature and extent of open space, the adequacy of provision for maintenance and conservation of the common open space, and the adequacy or inadequacy of the amount and function of open space in terms of the densities proposed in the plan; d) the impact, beneficial or adverse, of the planned unit development project upon the neighborhood in which it is proposed to be established; e) in the case of a plan that proposes development over a period of years, the sufficiency of the terms and conditions proposed to protect and maintain the integrity of the plan; f) the relationship of the proposed structures to existing structures, to any redevelopment plan, and to anticipated future development of the area. Subd. 3. Public hearing. Within 45 days after receiving the director's report, the planning commission shall hold a public hearing on the application. Within 45 days after the adjournment of the public hearing, the planning commission shall submit its recommendation to the city council. The commission may (i) recommend approval with or without modification or (ii) recommend disapproval. 530.25. Council approval. Following action by the planning commission the city council shall hold a public hearing and consider rezoning the area described in the plan in accordance with the procedures set forth in this section. If the PUD plan is approved, the area shall be rezoned as one of the five types of PUD districts. Prior to the commencement of any construction or development of the land and after rezoning the applicant shall submit a final development plan, consistent with the PUD plan, together with an application for a conditional use permit for the development shown in the final development plan. A conditional use permit, in conformance with the approved final development plan, must be approved by a two -thirds vote of the council. 530.41. Amendment of conditional use permit. Amendment to a conditional use permit issued for land within a PUD district shall be by two- thirds vote of the council. The council may hold such hearings on a proposal to amend a conditional use permit as it may consider necessary; but at least one public hearing shall be held. The council may consider all factors considered in connection with rezoning the PUD district and issuing conditional use permits therefor as well as any other factors relevant to the public health, safety, morals, comfort, convenience or welfare and to the protection of property or improvements in the neighborhood. ter y Item: #2 PC Letter: #1 CITY Of R10HRELD PLRnn1nG 00MMISS10n Letter Agenda Section: New Business GENERAL INFORMATION Subject: Adult Uuse Ordinance Type of Request: Recommend adoption by the City Council References: See attached BACKGROUND Date: January 24 , 1995 Purpose: To review recent opinions and results of public meetings regarding amendment to sections 520.15, 525.01 and 530.13 of the Richfield City Code. Public Notice: Hearing Examiner: Public Hearing: Planning The planning Commission will be considering final recommendations for the Commission: Ordinance amendment on January. 24, 1995. City Council: ANALYSIS See Attached material RECOMMENDATION Recommended Action: Preferred: Recommend that the City Council approve the amendments to sections 520.15, 525.01 and 530.13 of the Richfield Zoning Code. Basis: Alternative: Attorneys at Law IOBERT A. ALSOP RONALD H. BATTY STEPHEN J. BUBUL JOHN B. DEAN MARY G. DOBBINS STEFANIE N. GALF.Y CORRINE A. HEINE JAMES S. HOLM" DAVID J. KENNEDY JOHN R. LARSON WELLINGTON H. LAW CHARLES L. LEFEVERE JOHN M. LEFEVRE, JR. ROBERT J. LINDALL January 17, 1995 HOLMES & GRAVEN CHARTERED 470 Pillsbury Center, Minneapolis, Minnesota 55402 612) 337 -9300 ROBERT C. LONG LAURA K. MOLLET Facsimile (612) 337 -9310 BARBARA L. PORTWOOD JAMES M. STROMMEN JAMES J. THOMSON, JR. LARRY M. WERTHEIM BONNIE L. WILKINS WRITER'S DIRECT DIAL GARY P. WINTER 337 -9209 DAVID L. GRAVEN (1929 -1991) DELIVERY BY MESSENGER OF COUNSEL ROBERT C. CARLSON ROBERT L. DAVIDSON T. JAY SALMEN Byron Wallace Community Development Director City of Richfield 6700 Portland Avenue Richfield, MN 55423 -2598 RE: Adult Establishment Ordinances Dear Byron: I am enclosing two proposed ordinances dealing with adult establishments. The first ordinance amends the city code and the second ordinance amends the city's zoning ordinance. You will note that I have made changes from the draft ordinance that I originally provided you. The primary reason for the changes is that at the time I prepared the first ordinance, the city was only contemplating amending its zoning ordinance. Now the the direction has been received to include licensing and other provisions, I felt that it would be best to add an entirely new section to the city code pertaining to adult establishments. The zoning ordinance changes are minimal and relate only to the zoning district where adult establishments will be allowed. The following comments might be helpful in reviewing the ordinances: 1. We need to discuss whether the uses currently regulated by section 605 of the code should also be regulated by these new provisions. 2. Pursuant to your direction, I have not deleted the regulations dealing with adult novelty businesses. Please note that those businesses are defined as ones that "as a principal activity" are devoted to the sale of certain devices. The phrase "principal activity" is not defined in the ordinance, but most courts have concluded that it means more than 50% of the business. As I discussed with you previously, the City of Fridley's ordinance regulating those types of businesses was declared unconstitutional. 3. The issue of topless carwashes has been addressed in the amendment to section 2020.01. Under the proposed amendment, it would be unlawful for any adult establishment or any other business regulated by chapters XI or XII of JJT82382 RC160 -5 Byron Wallace January 17, 1995 Page 2 the code to permit nudity at its establishment. Carwashes are regulated by chapter XI,, 4. I have included additional regulations for adult cabarets. These regulations would apply if someone wanted to present non -nude dancing or live entertainment of a sexual nature. 5. You will need to determine the amount of the license and investigation fees. Appendix D to the code will need to be modified accordingly. 6. I am not sure what the ultimate conclusion was regarding the opportunity area for adult establishments to locate. I drafted the amendments to the zoning ordinance eased on my earlier discussions with you. The ordinances a!Ce highlighted to point out questions that still need to be resolved. Please call me after you review the draft ordinances so we can discuss those areas. Sincerely, J es . Thomso::a T: jes Enclosures cc: Shawn Drill (w /enclosures) Jack Erskine (w /enclosures) JJT82382 RC160 -5 ORDINANCE NO. AN ORDINANCE REGULATING THE LOCATION OF ADULT ESTABLISHMENTS; AMENDING SUBSECTIONS 520.15, 525.01 and 530.13 OF THE RICHFIELD CITY CODE, APPENDIX B (ZONING) THE CITY OF RICHFIELD ORDAINS: Section 1. Subsection 520.15 of the Richfield City Code, Appendix B (Zoning) is amended by adding the following new subdivision: Subd. 9. Adult establishments as defined and regulated in Section 1196 of the City Code. See. 2. Subsection 525.01 of the Richfield City Code, Appendix B (Zoning) is amended by adding the following new subdivision: Subd. 19. Adult establishments as defined and regulated in Section 1196 of the City Code. Sec. 3. Subsection 530.13, subdivision 2 of the Richfield City Code, Appendix B ( Zoning) is amended to read as follows: Subd. 2. Other uses. Uses other than the permit- ted uses listed in subdivision 1 are allowed in a PUD district, provided (i) the use is one which is authorized in one of the six types of PUD districts, and (ii) that such additional use may not occupy more than 33 percent of the gross floor area of the PUD district. Notwithstanding the foregoing, an adult establishment as defined and regulated in Section 1196 of the City Code is not permitted in any PUD district other than a PC -2 district. Sec. 4. This ordinance is effective in accordance with Section 3.09 of the Richfield City Charter. Passed by the City Council of the City of Richfield, Minnesota this day of , 1995. Martin J. Kirsch, Mayor ATTEST: Thomas P. Ferber, City Clerk JJT82317 RC160 -5 1 ORDINANCE NO. AN ORDINANCE REGULATING ADULT ESTABLISHMENTS PREMISES CONDUCIVE TO HIGH RISK SEXUAL CONDUCT, AND ADDING NEW SECTIONS TO THE RICHFIELD CITY CODE, AND AMENDING SECTION 2020 OF THE CITY CODE. THE CITY OF RICHFIELD ORDAINS: Section 1. The Richfield City Code is amended by adding a new section to read: JJT82315 RC160 -5 Section 1196 - Adult Establishments 1196.03 Definitions. Subdivision 1. The following terms have the meanings given them below. Subd. 2. Adult Establishment ._..A._business__engaged in any_.of_ following activities or which utilizes any of the following business procedures or practices: a) a business that is conducted exclusively for the patronage of adults and as to which minors are specifically excluded from 1 patronage, either by operation of law or by the owners of such business, except any business licensed under Chapter XII of the Richfield City Code; b) any business that has a substantial or s <i` agnf f< b ic asn t n portion of its floor space, inventory d that is characterized by an emphasis on material "depicting, 'exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas. An adult establishment includes,, but is not limited to, any adult use as defined in this section r any use reguiated by Section SUS of the Richfield City Cade . Subd. 3. Adult Use. An adult use is any of the activities and businesses described below: a) Adult Body Painting Studio: An establishment or business which provides the service of applying paint or other substance, whether transparent or non - transparent, to the body of a patron when such person is nude. b) Adult Bookstore: An establishment or business used for the barter, rental or sale of items consisting of printed matter, pictures, slides, records, audio tape, videotape, or motion picture film if such business is not open to the public generally but only to one or more classes of the public, excluding any minor by reason of age, or if a substantial or significant portion of such business or establishment is devoted to material distin- guished and characterized by an emphasis on the depiction or description of "specified sexual activities" or "specified anatomical areas. It c) Adult Cabaret. A business or establishment that provides dancing or other live entertainment to patrons if the dancing and live entertainment is distinguished and characterized by an emphasis on the presentation, display, depiction of matter that seeks to evoke, arouse or excite the patrons' sexual or erotic feeings or desire. d) Adult Companionship Establishment: A business or establishment that excludes minors by reason of age, and which provides the service of engaging in or listening to conversation, talk or discussion between an employee of the establishment and a customer, if such service is distinguished and characterized by an emphasis on "specified sexual activities" or "specified anatomical areas . " e) Adult Conversation/ Rap Parlor: A business or establishment that excludes minors by reason of age, and which provides the services of engaging in or listening to conversation, talk, or discussion, if such service is distinguished and characterized by an emphasis on "specified sexual activities" or "specified anatomical areas." JJT82315 RC160 -5 2 f) Adult Health /Sport Club: A health /sport club which excludes minors by reason of age, if such club is distinguished and characterized by an emphasis on "specified sexual activities" or specified anatomical areas." g) Adult Hotel or Motel: A hotel or motel from which minors are spe- cifically excluded from patronage and where material is presented which is distinguished and characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas." h) Adult Massage Parlor, Health Club: A massage parlor or health club which restricts minors by reason of age, and which provides the services of massage, if such service is distinguished and characterized by an emphasis on "specified sexual activities" or specified anatomical areas." i) Adult Mini- Motion Picture Theater: A business or establishment with a capacity for less than 50 persons used for presenting material if such material is distinguished and characterized by an emphasis on matter depicting, describing or relating to specified sexual activities" or "specified anatomical areas." j) Adult Modeling Studio: A business or establishment that provides customers figure models who are so provided with the intent of providing sexual stimulation or sexual gratification to such customers and who engage in "specified sexual activities" or display "specified anatomical areas" while being observed, painted, painted upon, sketched, drawn, sculptured, photo- graphed, or otherwise depicted by such customers. k) Adult Motion Picture Arcade: Any place to which the public is permitted or invited where coin or slug- operated or electronically, electrically or mechanically controlled or operated still or motion picture machines, projectors or other image - producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished and characterized by an emphasis on depicting or describing "specified sexual activities" or "specified anatomical areas." 1) Adult Motion Picture Theater: A motion picture theater with a capacity of 50 or more persons used for presenting material if such theater as a prevailing practice excludes minors by reason of age or if such material is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas" for observation by patrons. m) Adult Novelty Business: A business which has as a principal activity the sale of devices which stimulate human genitals or devices which are designed for sexual stimulation. n) Adult Sauna: A sauna which excludes minors by reason of age, and which provides a steam bath or heat bathing room used for JJT82315 RC160 -5 3 the purpose of bathing, relaxation, or reducing, utilizing steam or hot air as a cleaning, relaxing or reducing agent, if the service provided by the sauna is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas. It o) Adult Steam Room /Bathhouse Facility: A building or portion of a building used for providing a steam bath or heat bathing room used for the purpose of pleasure, bathing, relaxation, or reduc- ing, utilizing steam or hot air as a cleaning, relaxing or reducing agent if such building or portion of a building restricts minors by reason of age and if the service provided by the steam room /bathhouse facility is distinguished and characterized by an emphasis on "specified sexual activities" or "specified anatomical areas." Subd . 4. Nude or Specified Anatomical Areas: a) Less than completely and opaquely covered human genitals, pubic region, buttock, anus, or female breast(s) below a point immediately above the top of the areola; and b) Human male genitals in a discernibly turgid state, even if completely and opaquely covered. Subd. 5. Specified Sexual Activities. a) Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral -anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of a sexual relationship, or the use' of excretory functions in the context of a sexual relationship, and any of the following sexually- oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty; or b) Clearly depicted human genitals in the state of sexual stimulation, arousal or tumescence; or c) Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or d) Fondling or touching of nude human genitals, pubic region, buttocks, or female breast(s); or e) Situations involving a person or persons, any of whom are nude, clad in undergarments or in sexually revealing costumes, and who are engaged in activities involving the flagellation, torture, fettering, binding or other physical restraint of any such persons; or f) Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; or JJT82315 RC160 -5 4 g) Human excretion, urination, menstruation, vaginal or anal irrigation. Subd. 6. Substantial or Significant. For purpc section, the phrase "substantial or significant" means that: 1196.05o'eatxari No adult establishment may be located within _ feet of a residential zoning district, a park, a school, a church, a library or a commercial davcare center or within feet of another adult establishment. 1196.07 License Required. Subdivision 1. No person shall own or operate an adult establishment without having first secured a license as provided for in this subsection. Subd . 2. Application: The application for an adult establishment license shall be submitted on a form provided by the City and shall include: a) If the applicant is an individual, the name, residence, phone number, and birthdate of the applicant. If the applicant is a partnership, the name, residence, phone number, and birthdate of each general and limited partner. If the applicant is a corporation, the names, residences, phone numbers, and birthdates of all those persons holding more than five (5) percent of the issued and outstanding stock of the corporation. b) The name, address, phone number, and birthdate of the operator and manager of such operation, if different from the owners. c) The address and legal description of the premises where the adult establishment is to be located. d) A statement detailing any gross misdemeanor or felony convictions relating to sex offenses, obscenity or the operation of an adult establishment or adult business by the applicant, operator or manager and whether or not the applicant, operator or manager has ever applied for or held a license to operate a similar type of business in other communities. In the case of a corporation, a statement detailing any felony convictions by the owners of more than five (5) percent of the issued and outstanding stock JJT82315 RC160 -5 5 of the corporation, and whether or not those owners have ever applied for or held a license to operate a similar type of business in other communities. e) The activities and types of business to be conducted. f) The hours of operation. g) The provisions made to restrict access by minors. h) A building plan of the premises detailing all internal operations and activities. Subd. 3. License Fee: a) The annual license fee is set forth in Appendix D. b) Each application for a license shall be submitted to the City Manager and payment made to the City. Each application for a license shall be accompanied by payment in full of the required license fee. Upon rejection of any application for a license, the City shall refund the license fee. c) All licenses shall expire on the last day of in each year. Each license shall be issued for a period of one 1) year, except that if a portion of the license year has elapsed when the application is made, a license may be issued for the remainder of the year for a pro rated fee. In computing such fee, any unexpired fraction of a month shall be counted as one (1) month. d) No part of the fee paid by any license shall be refunded, except that a pro rata portion of the fee shall be refunded in the following instances upon application to the City Manager within 30 days from the happening of the event, provided that such event occurs more than 30 days before the expiration of the license: i) Destruction or damage of the licensed premises by fire or other catastrophe . ii) The licensee's illness. iii) The licensee's death. iv) A change in the legal status making unlawful for licensed business to continue. e) Each application shall contain a provision on the application in bold print indicating that any withholding of information or the providing of false or misleading information will be grounds for denial or revocation of a license. Any changes in the information provided on the application or provided during the investigation shall be JJT82315 RC160 -5 6 brought to the attention of the City Council by the application or licensee. If said changes take place during the investigation, said data shall be provided to the Public Safety Director or the City Manager in writing and they shall report the changes to the City Council. Failure to report said changes by the applicant(s) or the licensee may result in a denial or revocation of a license. Subd. 4. Investigative Fee: The investigative fee for an adult establishment license is set forth in Appendix D. Subd. 5. Granting of License: a) The City Manager and Public Safety Director, or such persons as they shall designate, shall complete their investigation within 30 days after the City Manager receives a complete application and all license and investigative fees. b) If the application is for a renewal, the applicant shall be allowed to continue business until the Council has determined to renew or refuse to renew a license. c) If, after such investigation, it appears that the applicant and the place proposed for the business are eligible for a license under the criteria set forth in this subsection, then the license shall be issued by the City Council within 30 days after the investigation is completed. Otherwise the license shall be denied. d) Each license shall be issued to the applicant only and shall not be transferable to another holder. Each license shall be issued only for the premises described in the application. No license may be transferred to another premise without the approval of the City Council. If the a licensee is a partnership or a corporation, a change in the identity of any of the principals of the partnership or corporation shall be deemed a transfer of the license. All adult establishments existing at the time of the adoption of this subsection shall be required to obtain an annual license. Subd. 6. Persons Ineligible for License: No license shall be granted to or held by any person: a) Under twenty -one (21) years of age. b) Who is overdue or whose spouse is overdue in his or her payment to the City, county or state of taxes, fees, fines or penalties assessed against them or imposed upon them; c) Who has been convicted or whose spouse has been convicted of a gross misdemeanor or felony or of violating any law of this state JJT82315 RC160 -5 7 or local ordinance relating to sex offenses, obscenity offenses or adult establishments; d) Who is not the proprietor of the establishment for which the license is issued; e) Who is residing with a person who has been denied a license by the City or any other Minnesota municipal corporation to operte an adult establishment, or residing with a person whose license to operate an adult establishment has been suspended or revoked within the preceding twelve (12) months; f) Who has not paid the license and investigative fees required by this subsection. Subd. 7 Places Ineligible for License: a) No license shall be granted for adult establishments on any premises where the applicant or any of its officers, agents or employees has been convicted of a violation of this subsection, or where any license hereunder has been revoked for cause, until one (1) year has elapsed after such conviction or revocation. b) No license shall be granted for any adult establishment which is not in full compliance with the City Code, the City's zoning ordinance, the Building Code, the Fire Code, the City's Health Regulations and all provisions of state and federal law. Subd. 8 Conditions of License: a) Every license shall be granted subject to the following conditions and all other provisions of this subsection, and of any applicable sections of the City Code, the City's zoning ordinance, the Building Code, the Fire Code, the City's Health Regulations and all provisions of state and federal law. b) All licensed premises shall have the license posted in a conspicuous place at all times. c) No minor shall be permitted on the licensed premises. d) Any designated inspection officer of the City shall have the right to enter, inspect, and search the premises of a licensee during business hours. e) Every licensee shall be responsible for the conduct of his /her place of business and shall maintain conditions of order. JJT82315 RC160 -5 8 f) No adult goods or material services shall be offered, sold, transferred, conveyed, given, displayed, or bartered to any minor. Subd. 9 Additional Conditions for Adult Cabarets: In addition to the conditions set forth in subdivision 8 of this subsection, the following conditions apply to adult cabarets: a) No owner, operator or manager of an adult cabaret shall permit or allow any dancer or other live entertainer to perform nude. b) No dancer, live entertainer, patron or any other person shall be nude in an adult cabaret. c) The owner, operator or manager of an adult cabaret shall provide the following information to the city concerning any persons who dance or perform live entertainment at the adult cabaret: The person's name, home address, home telephone number, date of birth and any aliases. d) No dancer, live entertainer or performer shall be under 18 years old. e) All dancing or live entertainment shall occur on a platform intended for that purpose and which is raised at least two feet from the level of the floor. f) No dancer or performer shall perform any dance or live entertainment closer than 10 feet to any patron. g) No dancer or performer shall fondle or caress any patron and no patron shall fondle or caress any dancer or performer. h) No patron shall pay or give any gratuity to any dancer or performer. i) No dancer or performer shall solicit any pay or gratuity from any patron. Subd . 10 Penalty: a) Any person violating any provision of this section is guilty of a misdemeanor and upon conviction shall be punished not more than the maximum penalty for a misdemeanor as prescribed by state law. b) Any violation of this subsection shall be a basis for the suspension or revocation of any license granted hereunder. In the event that the City Council proposes to revoke or suspend the license, the licensee shall be notified in writing of the basis for such proposed revocation or suspension. The Council shall hold a hearing for the purpose of determining whether to revoke JJT82315 RC160 -5 9 or suspend the license, which hearing shall be within thirty (30) days of the date of the notice. c) The City Council shall determine whether to suspend or revoke a license within thirty (30) days after the close of the hearing or within 60 days of the date of the notice, whichever is sooner, and shall notify the licensee of its decision within that period. Subd . 11. Right of Appeal: a) In the event that the Council determines to suspend, or revoke a license, such suspension or revocation shall not be effective until fifteen (15) days after notification of the decision to the licensee. If, within that fifteen (15) days, the licensee files and serves an action in state or federal court challenging the Council's action, then the suspension or revocation shall be stayed until the conclusion of such action. b) If the City Council determines not to renew a license, the licensee may continue its business for fifteen (15) days after receiving notice of such non - renewal. If the licensee files and serves an action in state or federal court within that fifteen (15) days for the purpose of determining whether the City acted properly, the licensee may continue in business until the conclusion of the action. c) If the City Council decides not to grant a license to an applicant, then the applicant may commence an action in state or federal court within fifteen (15) days for the purpose of determining whether the City acted properly. The applicant shall not commence doing business unless the action is concluded in its favor. Sec. 2. Subsection 2020.01, Subdivision 6 of the Richfield City Code is amended to read as follows: Subd. 6. Prohibition. It is unlawful for the licensee, owner or manager of an adult establishment as defined in Section 1196 of this code or any establishment licensed pursuant to chapters XI or XII of this code to permit or allow in such establishment any nudity, sadomasochistic abuse, sexual conduct or sexual excitement as defined in this section, or for any person to participate or engage in such conduct. Violation of this subsection is grounds for the revocation of a license issued pursuant to this code. Sec. 3. The Richfield City Code is amended by adding a new section to read: Section 625 - Premises Conducive to High -Risk Sexual Conduct 625.01 Purpose. The purpose of this section of the City Code is to prescribe regulations governing commercial premises, buildings, and structures that are conducive, by virtue of design and use, to JJT82315 RC160 -5 10 high -risk sexual conduct which can result in the spread of sexually transmitted diseases to persons frequenting such premises, buildings, and structures. 625.03. Findings of the City Council. The City Council of the City of Richfield makes the following findings regarding the need to regulate commercial premises, buildings, and structures that are conducive to the spread of communicable disease of danger to persons in order to further the substantial interest of public health: a) The experience of other cities establishes that certain commercial premises, buildings, and structures, or parts thereof, by reason of the design and use of such premises, buildings, or structures are conducive to the spread of communicable disease of danger to persons frequenting such premises, buildings, or structures, as well as to the general public, and that the risk of spreading infectious and contagious diseases can be minimized by regulating such commercial premises, buildings, and structures. b) The experience of other cities where such commercial premises, buildings, and structures are present indicates that the risk of spreading the sexually transmittable disease of Acquired Immune Deficiency Syndrome (AIDS) is increased by the presence of such premises, buildings, and structures, because the design or use of such premises, buildings, and structures, or parts thereof can facilitate high -risk sexual conduct. c) Medical publications of the Center for Disease Control of the United States Department of Health and Human Services indicate that the sexually transmittable disease of AIDS is currently irreversible and uniformly fatal. Medical research has further established that the risk factors for obtaining or spreading AIDS are associated ith highrisk sexual conduct. 625.05. Definitions. The following words and phrases when used in this section shall have the following meanings unless the context indicates otherwise: a) Booths, stalls, or partitioned portions of a room or individual room: (i) enclosures specifically offered to persons for a fee or as an incident to performing high -risk sexual conduct, or (b) enclosures which are part of a business operated on the premises which offers movies or other entertainment to be viewed within the enclosure, including enclosures wherein movies or other entertainment is dispensed for a fee. The phrase "booths, stalls, or partitioned portions of a room or individual room" does not mean enclosures which are private offices used by the owners, managers or persons employed by the premises for attending to the tasks of their employment, and which are not held out to the public or members of the establishment for hire or for a fee or for the purpose of viewing movies or other entertainment for a fee, and are not open to any persons other than employees. JJT82315 RC160 -5 1 1 b) Doors, curtains or portal partitions: full, complete, non - transparent closure devices through which one cannot see or view activity taking place within the enclosure. c) Hazardous site: any commercial premises, building or structure, or any part thereof, which is a site of high -risk sexual conduct as defined herein. d) High -risk sexual conduct: i) fellatio; ii) anal intercourse;, and /or iii) vaginal intercourse with persons who engage in sexual acts in exchange for money. e) Open to an adjacent public room so that the area inside is visible to persons in the adjacent public room: either the absence of any entire "door, curtain or portal partition" or a door or other device which is made of clear, transparent material such as glass, plexi -glass or other similar material meeting building code and safety standards, which permits the activity inside the enclosure to be entirely viewed or seen by persons outside the enclosure. f) Public health official: an agent or employee of the city charged with the enforcement of the state or local health laws. 625.07. Public Health Regulations. Suvdivision 1. No commercial building, structure, premises or part thereof, or facilities therein shall be so constructed, used, designed or operated in the City for the purpose of engaging in, or permitting persons to engage in, sexual activities which include high -risk sexual conduct. Subd. 2. No person shall own, operate, manage, rent, lease, or exercise control of any commercial building, structure, premises, or portion or part thereof in the City, which contains: a) Partitions between subdivisions of a room, portion or part of a building, structure or premises having an aperture which is designed or constructed to facilitate sexual activity, including but not limited to vaginal intercourse, anal intercourse, or fellatio, between persons on either side of the partition. b) "Booths, stalls, or partitioned portions of a room or individual room" as defined herein which have "doors, curtains or portal partitions" as defined herein unless such booths, stalls, partitioned portions of a room or individual room have at least one side open to an adjacent public room so that the area inside is visible to persons in the adjacent public room as defined herein. Booths, stalls, and /or partitioned portions of a room or individual room that are so open to an adjacent public room shall be lighted in a manner that the persons in the area used for viewing motion pictures or other forms of entertainment are visible from the adjacent public rooms, but such lighting shall JJT82315 RC160 -5 12 not be of such intensity as to prevent the viewing of the motion pictures or other offered entertainment. 625.09. Exceptions. The regulations set forth in this section shall not apply to premises, buildings, or structures that are lawfully operating and licensed as hotels, motels, apartment complexes, condominiums, townhomes, or boarding houses which are subject to other general health and sanitation requirements under state and local law. 625.11. Health Enforcement Powers. Subdivision 1. In exercising powers conferred by this or any other section of this Code relating to communicable diseases, the Public Health Official shall be guided by the most recent instructions, opinions and guidelines of the Center for Disease Control of the United States Department of Health and Human Services which relate to the spread of infectious diseases. Subd. 2. In order to ascertain the source of infection and reduce its spread, the Public Health Official, and persons under the Public Health Official's direction and control, shall have full power and authority to inspect or cause to be inspected, and to issue orders regarding any commercial building, structure or premises, or any part thereof, which may be a site of high -risk sexual conduct. If the Public Health Official determines that a hazardous site as defined herein exists, the Public Health Official shall declare it to be a public health hazard and public health nuisance and shall then: a) Notify the manager, owner, or tenant of the hazardous site that the Public Health Official has reasonable belief that the premises, building or structure is a hazardous site as defined herein, b) Issue two written warnings at least ten (10) days apart to the manager, owner, or tenant of the premises stating the specific reasons for the Public Health Official's opinion that the premises, building, or structure is a hazardous site as defined herein, c) Once such notices and warnings have been issued, the Public Health Official or the Public Health Official's appointee shall proceed as follows: 1) After the manager, owner or tenant of the premises has been notified in writing as to the basis of the Public Health Official's determination, the manager, owner or tenant shall have ten (10) days from the date of the last warning to request a hearing before the Public Health Official or the Public Health Official's appointee for the determination as to the existence of such hazardous site. If the manager, owner or tenant of the premises does not request a hearing within ten (10) days of the date of the last warning notice, the Public Health Official shall then cause the premises to be posted with a warning advising the public that the premises have been declared a hazardous site and the Public Health Official shall cause orders to be issued to the manager, owner or tenant of the premises constituting the hazardous site to take specified corrective JJT82315 RC160 -5 13 measures to prevent high -risk sexual conduct from taking place within the premises. 2) If the manager, owner, or tenant of the premises requests a hearing, the hearing shall be held before the Public Health Official or the Public Health Official's appointee at a date not more than thirty 30) days after demand for a hearing. After considering all evidence, the Public Health Official or the Public Health Official's appointee shall make a determination as to whether the premises constitute a hazardous site, as defined herein and issue a decision based upon all hearing evidence presented. If the Public Health Official or the Public Health Official's appointee makes a deter- mination that the premises constitute a hazardous site, the Public Health Official shall then issue orders to the manager, owner, or tenant of the premises to take corrective measures to prevent high -risk sexual conduct from taking place within the premises and cause the premises to be posted with a warning advising the public that the premises have been declared a hazardous site. 3) If, within thirty (30) days from issuance of the orders to the manager, owner, or tenant of the hazardous site, the Public Health Official determines that such corrective measures have not been undertaken, the Public Health Official may order the abatement of the hazardous site as a public nuisance, which shall be enforced by mandatory or prohibitory injunction in a court of competent jurisdiction, or may secure a court order for the closure of the premises constituting the hazardous site until the premises, building, or structure is in compliance with the regulations set forth in Section 9.14 of this section. 625.13. Criminal Penalties. Any person violating any provision of this section or any person who removes, destroys or defaces warnings posted on premises by the Public Health Official pursuant to this section shall be guilty of a misdemeanor. Sec. 4. Effective Date. This ordinance is effective in accordance with Section 3.09 of the Richfield City Charter. Passed by the City Council of the City of Richfield, Minnesota this day of . 1995. Martin J. Kirsch, Mayor JJT82315 RC160 -5 14 ATTEST: Thomas P. Ferber, City Clerk JJT82315 RC160 -5 15