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HomeMy WebLinkAboutminutes.council.19960528Aspen City Council Regular Meeting May 28, 1996 Mayor Bennett called the meeting to order at 5:05 p.m. with Councilmembers Marolt, Richards, Waggaman, and Paulson present. CITIZENS COMMENTS 1. Leon Fell reminded Council he discussed with them the possibility of using the Grand Aspen during the Motherlode volleyball tournament. Fell said he is trying to get agreement with staff and the small lodges to see if this can be done. Fell said he has not been able to meet with the small lodges. Fell said he has received comments that were not supportive or positive. Fell said the Volleyball tournament has been a big success and brings up to 5,000 people to the community. This event brings people to Aspen who many not come for any other reason. Mayor Bennett said the agreement on the Grand Aspen was a compromise reached only with great difficulty between multiple parties. Mayor Bennett said he does not feel it will be ethically possible for the Council to just abrogate the agreement without additional agreement of the parties involved. 2. Phoebe Ryerso n said she agrees Fell’s plea for use of the Grand Aspen during the volleyball tournament. Ms. Ryerson said she would like Council to get more to a community outlook. Ms. Ryerson said she would like to be able to talk directly to staff rather than just get 3 minutes at a Council meeting. COUNCILMEMBER COMMENTS 1. Mayor Bennett announced that the slide show from the transportation trip to Switzerland and France will be shown at the Wheeler Opera House Friday, May 31st at 4:45 p.m. Members of the delegation will be there to answer any questions. 2. Steve Barwick, assistant city manager, announced the g rand opening of the Maroon Creek bridge is Friday, May 31st at 4 p.m. 3. Steve Barwick, assistant city manager, said he will try to reschedule the RFTA funding meeting from June 5th to another date. 4. Steve Barwick, assistant city manager, introduced the Markalunases. Jim Markalunas said there is a lot of enthusiasm throughout the state about a possible rail project. Markalunas told Council he has discussed this with Pitkin County Commissioners. Other people are meeting with Basalt, Carbondale and Glenwood in order to get the Roaring Fork valley together. Councilwoman Richards said she 1 Aspen City Council Regular Meeting May 28, 1996 supports this and has looked into funding this out of the 1/2 cent sales tax, which will need concurrence from Snowmass and Pitkin County. Markalunas told Council he has also met with some private enterprises to get funding from them. Councilman Marolt moved to tentatively fund the rail demonstration program on the basis it will be a underwriting and the funds will come from other sources. Motion DIES for lack of a second. Councilwoman Richards moved that the city endorse funding a share of the rail demonstration project based on the funding formula outlined in a May 24 memorandum from the city manager, based on the funding formula of the Roaring Fork Holding Authority and to get endorsement from Pitkin County and Snowmass at the meeting May 29th for use of that money from the use tax and a strong endorsement of the rail corridor project and that Aspen’s money is available for their share of the project; seconded by Councilman Marolt. All in favor, motion carried. 5. City Attorney John Worcester request ed the Hines Water Agreement be tabled to June 10th. Councilwoman Richards moved to continue Ordinance #19, 1996, Mall Performers, Ordinance #8, Trueman SPA to June 24; North Maroon Creek and South Maroon Creek Annexation and Resolution #26, 1996 - Hines Water Agreement to June 10th; seconded by Councilman Parry. All in favor, motion carried. 6. Councilwoman Richards moved to add Resolution #32, 1996, Deputy Municipal Judge appointment - John Worcester to the consent calendar; seconded by Councilman Paulson. All in favor, motion carried. CONSENT CALENDAR Councilwoman Waggaman moved to adopt the consent calendar as amended; seconded by Councilman Paulson. The consent calendar is: · Resolution #27, 1996 - Amending Deed Restriction Williams Ranch · Resolution #28, 1996 - Kopf & Kopf Holy Cross Analysis · Resolution #29, 1996 - Contract Moore Pool and ADA Improvements · Resolution #30, 1996 - Contract Aspen Earthmoving Hydrant Replacements · Resolution #31, 1996 - Appointments of Directors to MEAN & NMPP · Resolution #32, 1996 - Deputy Municipal Judge/John Worcester 2 Aspen City Council Regular Meeting May 28, 1996 All in favor, motion carried. ORDINANCE #10, 1996 - 616 West Main Historic Designation Stan Clauson, community development director, told Council this meets the standards for historic designation in architectural importance, neighborhood character, and community character. The location on Main street gives this special importance to be preserved. Clauson told Council HPC and P & Z recommended approval of this designation. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilman Marolt asked how the moving of this structure affects this designation. Clauson said it is generally inappropriate to relocate buildings out of their original context. This building is in its original neighborhood. This building still represents Aspen’s heritage. Councilwoman Waggaman moved to adopt Ordinance #10, Series of 1996, on second reading; seconded by Councilwoman Richards. Roll call vote; Councilmembers Marolt, yes; Waggaman, yes; Mayor Bennett, yes; Richards, yes; Paulson, yes. Motion carried. ORDINANCE #15, SERIES OF 1996 - Water Place Housing Dave Michaelson, community development department, told Council this ordinance grants conceptual SPA approval with conditions for the city of Aspen water treatment plant and affordable housing project. Michaelson told Council in April P & Z recommended approval with conditions. On April 22, Council held a public hearing and unanimously approved this ordinance on first reading. Michaelson pointed out staff is doing some redesign work on the single family units on the west side of Doolittle based on comments from that public hearing. These will be presented at final approval. Mayor Bennett opened the public hearing. Bill, manager ofAspen Valley Hospital housing, said he is supportive of this proposal; however, as a neighbor he has mixed feelings about the project. He is concerned about the traffic affects on the neighborhood. Person said housing for 3 Aspen City Council Regular Meeting May 28, 1996 emergency workers could be located at Cozy Point. The infrastructure in town seems to be totally overwhelmed. The bus stop at Castle Ridge is already a horrible situation. The various property managers have met and are trying to work on a redesign. Mayor Bennett closed the public hearing. Councilwoman Richards suggested staff mail the chlorine evacuation program including a summary page to neighbors. Councilwoman Richards said she would like more detailed reports on the conditions from first reading when the final design comes back to Council. Councilwoman Waggaman said Council is aware of the need for more affordable housing as well as the problem of density. As the community matures, it becomes more and more dense. Councilman Marolt said he has a problem with the employee housing concept and will have to vote against this project. Councilwoman Richards moved to adopt Ordinance #15, Series of 1996, on second reading; seconded by Councilman Paulson. Roll call vote; Councilmembers Marolt, no; Waggaman, yes; Mayor Bennett, yes; Richards, yes; Paulson, yes. Motion carried. ORDINANCE #17, SERIES OF 1996 - Amending Housing Guidelines Dave Tolen, housing director, reminded Council any amendment to the housing guidelines has to be adopted by both the city and county. Tolen said this amendment is to change the guidelines for resident occupied units for a limited class of properties. This change is to remove the appreciation cap for that class of properties. This amendment has received a lot of discussion; however, it does not apply to properties that do not exist in the city, which is conversion of existing mobile home parks to fee simple lot ownership. Tolen said existing mobile home parks do not constitute new growth in units. This is only converting to a different type of ownership and may not require the same type of scrutiny as new units. Tolen said the product will limit the amount of appreciation and attractiveness The Commissioners approved this with a change to eliminate the 30 day right of refusal, but will have a right of refusal shorter than that and gives the housing office the opportunity to purchase the unit. 4 Aspen City Council Regular Meeting May 28, 1996 Mayor Bennett opened the public hearing. There were no comments, Mayor Bennett closed the public hearing. Councilwoman Richards pointed out people have already owned these trailers and the housing office does not want to deed restrict appreciation for a product that was purchased on the free market. Councilwoman Richards moved to adopt Ordinance #17, Series of 1996, on second reading as amended the same as the County Commissioners; seconded by Councilwoman Waggaman. Roll call vote; Councilmembers Waggaman, yes; Marolt, yes; Mayor Bennett, yes; Richards, yes; Paulson, yes. Motion carried. ORDINANCE #18, 1996 - Adult Entertainment City Attorney Worcester explained the purpose of this ordinance is to provide reasonable regulations for sexually oriented businesses to protect property values, neighborhoods, and the community character of Aspen from potential adverse effects of these businesses. Worcester said it is not the intention of the ordinance to suppress any speech activities protected by either the First Amendment or the Colorado constitution. Worcester told Council in a case out of Indiana, the U. S. Supreme Court upheld a ban on all live, nude entertainment. Worcester said the Colorado Supreme Court has specifically held that the Colorado Constitution is broader than the protections provided by the First Amendment. Recent Colorado decision follows a line of cases that suggests an all-out ban would probably be ruled unconstitutional by the Colorado Supreme Court. Worcester said this ordinance was drafted keeping in mind a decision by the Colorado Supreme Court of 1995 dealing with an ordinance from Colorado Springs. Worcester told Council he chose that ordinance because the Colorado Supreme Court reviewed it section by section to determine what is proper and what is not; it is also a fairly comprehensive ordinance dealing with a number of sexually oriented businesses. Worcester reminded Council this ordinance is not intended to deal solely with live nude entertainment but also other adult businesses that may want to relocate to Aspen. Worcester pointed out the Courts have ruled that although the First Amendment is implicated in this sort of activity, municipalities have a right to regulate those activities in order to avoid, to address, and to minimize the secondary affects of having a sexually oriented business in the community. Worcester said this ordinance does not authorize, license or necessarily approve any conduct that is otherwise prohibited by law. This ordinance requires any business that can be 5 Aspen City Council Regular Meeting May 28, 1996 characterized as a sexually oriented business to obtain a license. This process has to be completed within 30 days and the ordinance is specific on how that process is achieved; an application is filed with the city clerk and the city clerk has to make a determination within 30 days, Prior to those 30 days an inspection is conducted by the fire marshal, health department, zoning enforcement office and the building department to make sure the premises are safe to operate as proposed. The ordinance also requires a manager be appointed and disclosed, all employees be registered. The ordinance provides for minimum ages; patrons, the licensees must be at least 18 years or older except for establishments that feature live nude entertainment in which case the patrons and licensee and manager must be 21 years old. The ordinance sets forth specific grounds for suspension or revocation of the license. Worcester said the hours of operation are similar to those allowed by liquor licenses establishments; they may not operate from 2 a.m. to 8 a.m. on Mondays through Saturday and from midnight to 8 a.m. on Sundays. Worcester said there are very specific regulations relating to peep booths, lighting regulations and establishments that feature live, nude entertainment. Any live nude entertainment must be conducted on a stage and all patrons must be seated at least 3 feet away from the stage. If there is any tipping allowed, all tips must be placed in a tip box. All employees that mingle with the patrons must be clothed; there is a specific prohibition against touching. The ordinance regulates where the location of sexually oriented businesses might be located in the city. The ordinance requires all sexually oriented businesses be located within the commercial core, CC, zone and must be at least 300 feet from other similar establishments and from churches and schools. The ordinances allows that existing sexually oriented business come into compliance with sections of the ordinance that may require structural changes within a 30 days period. Worcester said the only other changes made since first reading is in the purpose section, the city is not granting a license for a business which would otherwise be prohibited by law. Stan Clauson, community development director, stated staff does not endorse the locating of adult businesses in the city of Aspen. However, the city must provide reasonable accommodation for these business and the community development department looked at what might be appropriate locations and restrictions. Clauson said staff reviewed law summaries from other cities and found a number of issues related to adult entertainment businesses, including crime, noise, lower property values, and sex offenses. This suggested to staff these businesses, if they did locate 6 Aspen City Council Regular Meeting May 28, 1996 in Aspen, should be located in areas where police presence in greatest, particularly at night, and should be located away from residential neighborhoods and away from institutions that are in some sense sacred to the community, school and churches. Clauson pointed out all the studies recommend dispersal of these businesses. There are formula used for this dispersal such as 500 to 1,000 feet from one and other and from churches and school. Clauson said several of these studies recommended location in commercial zones. Clauson noted in Boston there was a zone created, “the combat zone” which was a single area designed to hold all these types of businesses. Clauson told Council from the standpoint of the neighborhoods where adult businesses where prohibited, this was successful. From the standpoint of the degree of crime and other issues, it was a disaster. Clauson said from this, he would recommend dispersal within an area that can be well controlled by the police department. Clauson told Council the commercial core district’s purpose is “to allow the use of land for retail and service commercial, recreational and institutional purposes with customary accessory uses to enhance the business and service character of the central business core of the city. Hotel and principle long term residential uses may be appropriate as conditional uses while residential uses as permitted may be appropriate as conditional uses as well”. Clauson said the CC zone has the broadest and most permissive use of commercial activities, including as a permitted use restaurant, cabaret and night club, tea room as a set of categories. Clauson told Council no other zone allows for these things in an equally permissive way. Clauson said the CC zone may be the most appropriate for this type of business. Clauson told Council through the city’s GIS system, a diagram of the commercial core and adjacent streets was done. The CC district is bounded by Main on the north, Durant on the south, Monarch and the west, and Hunter on the east. Clauson said circles of 300 feet were drawn from the existing adult business, Club 81611, and from St. Mary’s Church. Clauson said the dispersal requirement would allow for the possible location of other adult businesses within the commercial core. This would require if other businesses were to locate, there would be limited number of such businesses. Clauson said staff feels this constitutes a reasonable regulation. Councilwoman Waggaman asked if an adult business could be located on the edge of the commercial core or would it be prohibited because of the proximity to residential areas. Clauson said the CC zone is surrounded by the C-1 zone; there is no residential zone that immediately abuts the CC zone. Worcester said if the 7 Aspen City Council Regular Meeting May 28, 1996 exclusion of adult businesses were to be 300 feet from the border of the CC zone, there would be no room left. Worcester told Council the Courts have said cities can do a locational requirement as long as there are alternative avenues for the next business that wants to come. Worcester said this ordinance limits adult businesses to the CC zone, but within the CC zone an adult business has to be farther than 300 feet from a church and another existing adult business. Worcester noted Aspen is fairly unique because it has a fairly small commercial core. There is no industrial zone or other type of zone that would lend itself to this sort of business without affecting residential areas. Clauson pointed out from looking at the map, it might be possible to have larger zone of exclusion; however, the recommended 300 feet appears to meet the constitutional criteria. Worcester noted 300 feet is about the size of a city block. Worcester noted Council has had an opportunity to read the studies from 14 different cities; summaries are included in the packet. Tom Stephenson, chief of police, told Council he has a certain abhorrence for heavy-handed government and over-regulation. Stephenson told Council while doing research, he found startling figures regarding crime and calls for service as generated by sexually oriented businesses. Stephenson quoted from Phoenix, Arizona, study dated 1979, “On average the number of sex offenses was 506 percent greater in neighborhoods where sexually oriented businesses were located. In one of the neighborhoods, the number was 1,000 percent above the corresponding control area. Of sex offenses, indecent exposure was the most common offense and the largest contributor to the increase of crimes in the areas where sexually oriented business were located. Even without considering the crime of indecent exposure, the number of sex crimes, such as rape, lewd and lascivious behavior, child molestation, was 132 percent greater than in control areas without sexually oriented businesses. On the average, the number of property crimes was 43 percent greater in neighborhoods where sexually oriented businesses were located, and the number of violent crimes was 4 percent higher in those areas”. The Tucson, Arizona, study dated May 1990, the findings, “Officers found a wide variety of illegal sexual conduct at all adult businesses. At virtually every such business, employees were arrested for prostitution or obscene sex shows. Dances were mutually prostitutes where, for a price, customers could observe them performing live sex acts. Underage dancers were found, the youngest being a 15 year old female”. 8 Aspen City Council Regular Meeting May 28, 1996 Garden Grove, California, study of September 1991, “Crime increases significantly with the opening of an adult business or with the expansion of existing business or the addition of a bar nearby. The rise was greatest in serious offenses, which includes homicide, rape, robbery, assault, burglary, theft and auto theft”. Whittier, California, study dated 1978, “The City Council looked at two residential areas for the time periods between 1970 and 1973 before adult businesses and 1974 through 1977 after adult businesses. In the adult business area, criminal activity increased 102 percent. The entire city had only an 8.3 percent increase. Certain crimes skyrocketed, specifically malicious mischief, up 700 percent; all assaults up 387 percent, prostitution up 300 percent”. Stephenson said the studies have duplicate results. The key areas are that in every study analyzing comparative crime statistics, criminal activity from petty crime to serious felonies were significantly higher in areas with sexually oriented businesses operate than like areas where sexually oriented businesses were not present. The crimes previously uncommon, for example indecent exposure, sexual assault and prostitution, increased dramatically in the areas that contain sexually oriented businesses. Stephenson told Council in 1993, the city of Aspen recorded 3 indecent exposure calls for the entire year; in 1994, there was one, and in 1995 there were 2 indecent exposure calls. Stephenson said in the first two weeks of the establishment on the Hyman Avenue mall, there have been 2 indecent exposure calls, one specific to the location and the other close on Hyman Avenue. Stephenson said if this were to continue, there could be 50 indecent exposure calls in a year, a huge increase. Stephenson said concentration of sexually oriented businesses result in a logarithmic increase in secondary impacts, such as criminal activity, noise and traffic problems. Stephenson said sexually oriented businesses are largely frequented by persons who do not reside in the community, resulting in lower levels of inhibition. Another finding of the studies are that sex related crimes are far more common in residential areas with sexually oriented business than in commercial areas with sexually oriented businesses. Stephenson told Council his concerns with sexually oriented businesses are the hours of operation. Stephenson said the operator of the existing business has said if he had his way, he would stay open until 5 a.m. Stephenson said this poses 9 Aspen City Council Regular Meeting May 28, 1996 problems for a police department, which has only 1 officer on duty from 3 to 8 a.m. Another area of concern is how these businesses operate. Stephenson told Council his research indicates that the more intimate the performance of an entertainer, the more the patron tends to be aroused and the less inhibited patrons tend to be. This can lead to criminal activity. Stephenson told Council this past weekend at Club 81611 this very thing happened; a patron was attempted to sexually assault one of the employees at the club. Stephenson said he is concerned with the current level of staffing whether the police department can adequately absorb increased calls for service. Stephenson said another concern, which is covered in Ordinance #18, is the number and concentration of sexually oriented businesses. Stephenson told Council an additional police officer costs $45,000. There is a six month training period and it takes about a year to be effective. Stephenson said he would need 2 additional officers to cover the hours of 3 to 8 a.m. Stephenson said it costs the taxpayers about $20,000 to train each new officer. Councilwoman Richards asked how the police department may handle the potential for prostitution. Stephenson said any credible information about any criminal activity will be investigated. Stephenson said the police department has not received any credible information to date that there is any prostitution occurring at the current sexually oriented business. Councilman Marolt agreed the statistics from other cities are alarming. Councilman Marolt said in other cities these businesses are probably located in less desirable areas of the cities. Councilman Marolt asked how this might relate to a peaceful community like Aspen. Stephenson agreed Aspen is a different community and these studies need to be read by one as how they might impact the community. Stephenson said even discounting large cities, there seems to be an alarming trend, consistent from city to city showing there are impacts. Stephenson said it appears there will be impacts on Aspen and on public safety. Stephenson said the city can enact legislation regarding these establishments or wait to see what the impacts may be. Staff feels the ordinance should be passed now. Councilwoman Richards pointed out that Aspen deals with 20,000 new people weekly who have no tie or root to Aspen. This is a different set of circumstances. Tom Dunlop, environmental health department, told Council he has reviewed past actions by customers and employees of adult entertainment facilities in other cities. Dunlop read the studies provided by the city attorney’s office and contacted the tri- county health department and public health departments in Denver. Dunlop said the 10 Aspen City Council Regular Meeting May 28, 1996 content of most of the studies focus on crime statistic and real estate impacts. Dunlop told Council the studies also indicate increased noise, traffic, litter and lights as a result of late operating hours following the opening of these businesses. Dunlop said from the environmental health perspective, these changes in neighborhoods relate to a reduction in quality of life to residents. Dunlop said complaints to local governments will result in citizens who life style will be negatively impacted. Dunlop said from the medical perspective, there was graphic observations made by police officers and local health department personnel of their inspections of adult entertainment establishments. Dunlop quoted from a 1990 memorandum from the assistant chief of police, Tucson, Arizona, “It was obvious to anyone who entered these businesses that there was a problem with the sanitary conditions”. Dunlop said there is an opportunity for the spread of communicable disease in the environmental described in the Tucson study; however, this must be kept in the proper perspective. Dunlop told Council diseases such as HIV, herpes, hepatitis B and C and remotely hepatitis A, come to mind as being spread through the exchange of bodily fluids. Dunlop said unless there is a direct exchange of bodily fluids, the spread of the disease is not great. If sex acts are performed, the risk becomes much more immediate and a greater public health significance. Dunlop told Council he talked to the state epidemiologist who stated in any increase of sexual activities, there is a risk of the spread of sexually transmitted disease. Dunlop said this is a critical concern when discussing ordinance like this one. Dunlop opined there is a potential for significantly negative public health implications that follow opening of sexually oriented businesses. Dunlop recommended Council pass this ordinance. Councilwoman Richards noted Ordinance #18 bars physical contact between patrons and performers. Councilwoman Richards asked if this would be a preventative measure. Dunlop answered absolutely, providing it is enforced by the operators of the business. This has to be enforced by the operators of the business not the city. Mayor Bennett opened the public hearing. Richard Shearer, attorney representing the 81611 Club, opposes the adoption of this ordinance. Shearer complimented the city’s efforts to accommodate free speech by not banning nude entertainment as a form of free speech. Shearer said Aspen has been attempting to work with the owners of 81611 and sharing studies with them. Shearer said the city’s memorandum talks about the United States versus O’Brien. Shearer told Council O’Brien talks about that regulations must further a substantial 11 Aspen City Council Regular Meeting May 28, 1996 governmental interest. The O’Brien case also talks about that government interest must be unrelated to the suppression of free expression. Shearer noted the city’s ordinance looks at the secondary effects, not at free expression itself . Shearer said nude entertainment is a form of free speech, according to the U. S. Supreme Court. Shearer said the restriction on this free speech can be no greater than is essential to further the government interests. Shearer said he has concerns about this in Ordinance #18 and questions the government interest. Shearer said it is appropriate to cut down on the secondary effects of sexually oriented businesses. These secondary effects are prostitution, unlawful sexual activities, sexually transmitted diseases, drug dealing, drug use, flight and degradation of the commercial district, noise disturbances, decrease in property values, and exposing minors to harmful materials. Shearer stated the regulations restriction on First Amendment freedoms can be no greater than is essential to further these interests of cutting the secondary effects. Shearer said one needs to look at whether all of the regulation restrictions on free speech are greater than are essential. Shearer said 81611 Inc. agrees to the hours of operation as revised; the area in the commercial zone is fine. Shearer questioned whether the age restriction applies to employees. Shearer said he feels 21 year age restriction seems to be appropriate. There are portions of Ordinance #18 that impose greater restrictions on freedom of speech than are necessary for the city to meet the secondary effects. Shearer said they are most concerned about the tipping procedures. Shearer said Council has heard testimony on the health aspect of direct contact. Shearer said tipping someone directly rather than putting it in a tip jar is no different than what is done in a restaurant. Shearer said there are no studies or evidence that one cannot tip directly. Shearer said there is nothing in any study that addresses the distance that the dancers have to be from the patrons. The same is true coming off the stage; not one study addresses the internal workings of the club. Shearer said registration of the manager and employees seems excessive. Shearer said the manager can keep track of the employees, the manager can be licensed, and the city can get the employees through the manager. Shearer said how does one know that the restrictions on freedom of speech are greater than essential. Shearer said the city has offered no evidence proving these regulations and the extent of these regulations are relevant to preventing the secondary effects. 12 Aspen City Council Regular Meeting May 28, 1996 Shearer said 81611, Inc., recognizes the First Amendment does not require a city, before it enacts an ordinance like this, to conduct new studies or produce evidence independent of that already gathered by other cities so long as whatever evidence the city relies upon must be reasonably believed to the problem the city addresses. Shearer said Aspen’s preambulatory language points out Aspen is a unique place. Shearer said these studies do not reflect Aspen. Shearer said in some studies, cities had to do their own independent studies because they could not find anything that was comparable. Shearer quoted from Young versus American Mini Theatres, “A properly motivated ordinance with only a limited impact on free expression, may be unconstitutional if the municipality cannot demonstrate an adequate factual basis for its conclusion that the ordinance will accomplish its object of eliminating the adverse effects of adult businesses”. Shearer said the Courts did not uphold all the sections of the Colorado Springs ordinance. The Courts took those for which, “there was no evidence in the city’s record to support” and struck them down. Shearer said if the city enacts an ordinance that is overly broad, they are taking a risk, especially when they try and regulate the conduct inside the club without any factual evidence in the record. These studies do not represent the city as a whole nor do they talk about what goes on inside businesses of different cities that did the studies. Shearer said he was sent studies from Cleveland, Seattle, Oklahoma City, Houston, Austin, Garden Grove, Whittier (both suburbs of Los Angeles), Indianapolis, Tucson, Phoenix, Los Angeles, Beaumont and Amarillo. Shearer noted the law says that there has to be a comparable community requirement before the studies are in anyway evidence that supports the ordinance. Shearer said this principle is what is called the 1126 Inc. principle or the Wall principle. Shearer said most of these cases come out of the Fourth Circuit. Shearer quoted, “It is reasonable for a local legislature to borrow other city’s evidence if the other cities are comparable localities, generally comparable metropolitan areas, similarly situated communities, generally comparable communities”. Shearer said Aspen is a very unique community and is not like any of the cities in the studies. Ordinance #18 says there is no blight here. Shearer said in the studies, there is no way to tell if the crime factor is related to something that previously existed or is related to alcohol. Shearer stated 81611, Inc. is a non-alcoholic club. Shearer told Council he has employed an economic and research institute to take a look at some of the studies in the demographic areas. Shearer said common sense says Los Angeles is nothing Aspen, Amarillo is nothing like Aspen. Shearer said 13 Aspen City Council Regular Meeting May 28, 1996 the metropolitan area of Los Angeles is 4,900,000; Aspen is 5881. Shearer stated none of the cities in these studies are comparable to Aspen. The next smallest city is Amarillo, population 61,000. Shearer said Aspen is not the kind of area where there are the kind of patrons for this kind of business where there will be secondary effects. Shearer said in Aspen only 12 percent of the residents are under 18. Seattle, the next closest, is 16 percent of residents under 18. Shearer said Aspen should do their own study before adopting an Ordinance #18. Shearer told Council Aspen’s unemployment rate is 2.9; Cleveland is 14 percent. Aspen’s per capita income is $30,000; Cleveland is $9,000, which is the lowest. Shearer said the studies all relate to cities have 400, 500 and 600 square miles. Aspen is 2 square miles. Shearer said since there is no evidence that Aspen is similarly situated community to any of these studies, Aspen cannot rely on these borrowed studies as justification for the regulations. Shearer said the evidence a city must use to attempt to factually justify this ordinance is based on studies which show connections between secondary effects and regulations which address them. Shearer said the city has the right to regulate time, place and manner if there is enough evidence to support they are doing the proper things for time, place and manner. Shearer said he is not talking about time and place on behalf of 81611. Shearer said he is talking about manner; how are these studies relevant to the conduct that is being regulated. Shearer said the studies are not. The studies are inapplicable because they do not identify the specific source of the secondary effects; they do not identify it as the adult business, the sexually oriented business. They do not distinguish from the area that it was in the first place; they do not distinguish from alcohol. Nor do any one of these studies show the relevancy between the type of conduct and the expression occurring within the establishment and the secondary effects occurring on the outside. Not one study said if you use a tip jar instead of giving the tip directly to the entertainer, that it is going to cut down on secondary effects, on crime or anything else. Not one single study relates it to the distance, not one single study relates it to staying on the stage. Not one single study relates it to the lighting. The lighting in 81611, Inc., complies with Aspen’s ordinance. That’s not a problem in the sense of practicality. There is no evidence in any of the studies that shows that the lighting has any effects on secondary effects. Shearer said all of the studies fail to address the types of conduct occurring inside the establishment. Most of the studies conclude that adult business are regional 14 Aspen City Council Regular Meeting May 28, 1996 draws where a large share of customers come from outside the city but where they don’t have any sense of identity. Shearer said Aspen is a very different city and there are different kinds of people coming in. Shearer said many studies conclude the exterior appearance of the business creates secondary effects. Shearer said no one can complain that the exterior appearance of 81611 is doing anything to generate a secondary effect. Shearer said there is no control factor to distinguish alcohol and other factors. Studies showing increased crimes do not show the crime levels in the area prior to the establishment of the operation of the business. Shearer said before the non- alcoholic, sexually oriented business at 81611 Inc., the police force was there almost every night. Shearer told Council in the police incident related by the Chief of Police, a patron put his hand on the leg of a waitress and was thrown out of the Club. Shearer said the police activity at the Paragon and Club Soda was very significant and has not increased to date. The city has not done a study that distinguishes other bars from this establishment in terms of secondary effects. Shearer said in these studies, one cannot tell if anything is like Aspen in terms of the commercial district. In Aspen, one cannot park in front of the club. There is no parking area or staging area where drug deals or sexually oriented activities can go on. Shearer said the Seattle study is a study of other studies, not an independent study of Seattle. The Phoenix study does not distinguish anything as to the alcohol serving within establishments. The study talks about no sense of identify with the neighborhood and that they were drawing from a massive metropolitan area. Shearer noted the front of the Garden Grove study states, “Garden Grove was done as a separate study because of its concerns that there were no other cities that were good comparisons”. Shearer said the Phoenix study did not do a control for alcohol or for anything else. There is no statistical analysis in the Tucson study; it’s just a collection of anecdotes. The L.A. study, in addition to not being comparable business, there’s a very extensive effort but the study is entitled, “Concentration of Businesses”. They, too, are worried about distances; that’s all the L. A. study addresses; it doesn’t address anything else. Shearer said in the Austin study has the same preface language where it has got to be something where it is related to the city in question. Austin is a large metropolitan area. Indianapolis study focuses solely on the existence of adult entertainment establishments and the effects on the surrounding communities; 15 Aspen City Council Regular Meeting May 28, 1996 however, this particular study does not consider specific activities within the establishment or processes within the establishment. The study did not include time controls to determine if the area experienced higher crime before or after. The study also did not look at housing values before. Shearer brought up the Beaumont study which looks at concentrations; it does not support Aspen’s internal regulations. The Whittier study talks about dispersal of businesses; it does not talk about internal regulations. Amarillo does not pertain to sexually oriented entertainment; it examines adult entertainment, which includes a bar. This does not attempt to define any individual activities as relating to outside, secondary effect. The Oklahoma City study has no quantitative aspects to it. Minneapolis is a very comprehensive study but is a very different kind of place. This talks about alcohol serving establishments and street crimes. The appalling increase is crimes is not borne out in any of these studies as related to nude entertainment. Shearer said the incidental restrictions on expression in Aspen’s ordinance will have negative effects, probably won’t stand up, and there is no evidence that regulating these secondary effects of time, manner and place, are going to be the kinds of things where freedom of expression has not been comprised far greater than is necessary to meet further new government interests. Shearer said these restrictions will have a substantial adverse economic effect. The tipping is going to be adversely effecting the waitresses. There was no evidence that the intimacy has anything to do with this particular club. None of these studies addressed it. It’s certainly going to have an adverse economic effect for somebody to anonymously put a tip in a jar as opposed to giving it directly to the entertainer. It’s also going to affect the owner of the business adversely. Shearer told Council the applicant has cleaned up this building, has cleaned up the upstairs and turned it into dorms. The rules are no men, no alcohol, no drugs, no parties, no pets. It is secured locked. There are no incidents of any problems since Mr. Parr has put those locks on. Shearer said there are affidavits from business persons in New Westminster, B.C. These affidavits are signed by a number of people stating this business Parr has put in up there has been running for quite awhile and has cleaned up the neighborhood. There is a decrease in crime; he paid for the lighting. What was once a very terrible area has now got good businesses in it. These affidavits, marked exhibit A, are evidence of the way Mr. Parr runs a club. This is a non-alcoholic club featuring nude entertainment. Shearer said there is no evidence in the record to support the kind of micro-management Aspen is attempting 16 Aspen City Council Regular Meeting May 28, 1996 to do within the club. Shearer requested, because Aspen lacks the factual record, that Council not enact this ordinance with the portions that micro-manage inside the club as this is not appropriate. Marge Riley said this business should have a name or an indication of what type of business it is. Shearer said this has been dealt with in a way that is less intrusive than a sign on the mall stating, “nude entertainment”. When one walks into the club, there are double doors on either side of the vestibule area and on the doors there is a sign stating the club features nude entertainment and no alcohol is served. Person stated Aspen’s situation is very different and fragile. In 30 yards of businesses, there are two major places of congregation for kids, the Popcorn Wagon and New York Pizza. There are music students playing at both ends of the mall. Person said in other towns people do not go to the downtown in big cities to relax, enjoy the evening and listen to music as people do in Aspen. We have to able to protect the community, and this argues for passages of the ordinance. Derek Brown said the applicant should bring their own study that compares Aspen and where the impacts are not substantial of a business like this being in operation. Brown said residents are not concerned that the increase in crime will come from locals; 20,000 people come to this town weekly. Brown said good businesses are already in place in Aspen, and it is not a valid point for the operation of this business to bring in more good businesses. Brown asked about obtaining a liquor license. Worcester answered under state law, an establishment cannot have live nude entertainment if they are serving liquor and have a liquor license. An establishment can have live entertainment, but it cannot be fully nude entertainment and obtain a liquor license. Club 81611 has full nude live entertainment so they cannot have a liquor license. This ordinance establishes standards for applying for a liquor license. Bob Babb, pastor Christ Episcopal Church, said he is saddened by this establishment. Babb said Aspen is now coming to be the real world. Babb said he is adamant for free speech but is saddened by this operation. Babb said running around on Main street with clothes, one would be arrested. Taking off one’s clothes in an establishment makes it art. Babb said there is a conflict in values in this community. Babb supported passage of this ordinance as written. Gus Hallum, 27 year resident, said he attends a Church that is almost within the 300 foot ring. Hallum said he cannot believe this is happening. Hallum asked what could be done to have the state changed to disallow this. Worcester said decisions 17 Aspen City Council Regular Meeting May 28, 1996 of the Colorado Supreme Court have tied the hands of city council’s more than the state legislature. Worcester said there is a long line of decisions by the Colorado Supreme Court in which they hold the Colorado constitution provides broader protection regarding free speech than even the First Amendment to the U. S. Constitution. Hallum told Council he has a family lodge one block outside the core area. Hallum said his guests come to Aspen for the natural beauty, to get away from the city, to turn over the other side of the coin, to breathe the clean air and to know their children can go to town unsupervised. Hallum said he feels this is one of the most deplorable nights he has ever spent in Aspen. Hallum said this proposal goes again all the hard work, all the ski lifts, all the millions of dollars invested in the ski mountains is being diluted by this. This will be a blight on the heart of Aspen that will nullify all the good advertising, the good word of mouth, the reputation Aspen has had with the skiers in the world. This may be the straw that makes people pack up and abandon Aspen because it no longer shows them what they came here for. Norma Dolle said businesses like this in big cities will not effect people like it will in Aspen. Kathy Taylor, 13 year resident and mother of 3 children, said it troubles her greatly that Aspen would allow something like this in her community. Taylor said she feels this type of business as well as drinking establishments diminish the quality of the core area and make it a place that is not safe for young people. Taylor said if one young person is affected by what goes on in a business like this, it is too many. Taylor urged Council to pass this ordinance. Aspen is a community that can stand up and say it is unique and also say it can stand behind this ordinance. Peg MacGavock asked about the rationale of patrons at age 18 for non-live entertainment. Worcester answered the Courts make a distinction between activities that are strictly speech and activities that are mixed elements of speech and conduct. Live nude entertainment includes both speech elements and conduct; therefore, Council has a greater leeway in regulating live nude entertainment than other sorts of sexually oriented businesses. MacGavock said the non-live entertainment portion is more private and has become more deviant because of the privacy element. Worcester said this may be right, but the Courts have stated one cannot limit adults to adult bookstore, you cannot restrict their access. The courts define adult as over 18. If there is live nude entertainment, patrons can be restricted to 21 or over. Worcester stated this ordinance is not specific to Club 81611 but is an ordinance of general applicability for any business coming into Aspen characterized as a sexually oriented business. 18 Aspen City Council Regular Meeting May 28, 1996 Tom Peckham, resident since 1975 and leader of the Unitarian Universalistic Fellowship of Aspen, reminded people a year ago there was a issue of the airport manager banning nudity in advertisement. Peckham said he brought that up in a worship service and asked the participants what they thought. Peckham said many of the women felt the advertisement was art and the government should stay out of it. Peckham said prior to the American Revolution, the Unitarian Church was banned and persecuted throughout England. Unitarians continued to be persecuted in America until the U. S. Constitution was written. The Constitution protects one’s right to worship and to free expression. Peckham said he was informed this ordinance was expressly written to ban free speech and free expression. Peckham said this ordinance is immoral. Peckham quoted Voltaire, “I disagree with what you say, but I will defend to the death your right to say it”. Peckham stated no right is more fundamental than freedom of speech. Without freedom of speech, one cannot express their individuality, descry social injustice, pursue artistic visions, investigate scientific truth, practice religion or criticize government. Take away free speech and you cripple personal self development. Peckham said censorship is the use of government force to regulate what citizens may say, read or see. Censorship is the hand maiden of a police state. For over 200 years the vast majority of Americans have rejected censorship. More and more Americans are abandoning tolerance of free expression and censorship is spreading. Peckham said preservation of freedom of speech is vital to preserving individual liberty and American’s future as a free nation. When sexual images and expression are made a crime, people are robbed of an essential part of humanity. Peckham read the First Amendment to the United States Constitution. Peckham said to freedom loving Americans, this ordinance is unnecessary and immoral. A person asked how much this will cost in law suits and asked if this money could not be spend in law enforcement or for Aspen’s children not to stand on the street corners and do drugs. Person suggested getting comparable studies from Lake Tahoe, Taos if the legislation has to be based on that type of town and study. In the meantime, the city should not spend millions in court on a lost cause. Mayor Bennett said the city’s opinion is that this ordinance if legal. This ordinance has withstood Supreme Court challenges. Sven Allstrom said the Aspen Institute idea of Walter Paepcke included the whole town not the premises of the Institute. Allstrom said he favors this ordinance on the issues of appropriateness. Allstrom said Aspen is different and unique. Allstrom said the statutory restrictions on conduct give Aspen the tool to make the community decision on whether this conduct is appropriate. Allstrom said the tenets of the Aspen Institute agenda do not go along with this kind of entertainment. 19 Aspen City Council Regular Meeting May 28, 1996 Dave asked why this shouldn’t go to a popular vote. Councilwoman Richards said any ordinance passed by City Council is always subject to the referendum process. Councilwoman Richards said there is the issue of representational government; people elect the Council to make difficult decisions rather than sending everything to a public vote. Mayor Bennett said the Council does debate when an issue is so large and of such historic consequence that it deserves a direct vote. Si Coleman said the public, by vote, cannot violate the rights of the Constitution any more than a City Council can. Linda Helmich, 27 year resident, thanked Council and staff for all their time and effort they have put into this. Helmich encouraged passage of this ordinance if the city’s legal counsel feels like it is a good idea. Ms. Helmich suggested including the Youth Center as one of the areas to be a 300 foot radius. Ms. Helmich said she, too, is heartbroken this has come to town and realizes the government cannot make this go away but the community should do everything they can to make it clear this is not what the community wants. Ms. Helmich said the wonderful part of the Aspen community is that people have not had to be afraid of sex-type crimes. Ms. Helmich asked if this ordinance would prohibit lap dancing. Worcester said patrons may not touch the performers and the performers have to perform on a stage that is 3 feet above the ground; the patrons will be seated no further than 3 feet away from the stage. Ms. Helmich said common sense would seems that if a person touches another person, this would increase the amount of arousal and would increase the possibility of crime being a secondary fact. Ms. Helmich asked if the 300 foot radius would include Churches that come into being in the future? Worcester answered no because people might start Churches in areas to preclude adult businesses in every area of town. Janet Elder, 30 year resident, said people come here because it is a unique and wonderful place. They then want to change it and make it just like where they came from. Ms. Elder encouraged the applicants to reconsider this type of business in Aspen. Dave Lendon, a gay man, said this club seems rather innocuous and maybe the community should give it awhile to see what happens. Mayor Bennett reconvened the meeting and closed the public hearing. Worcester said in an ideal world, the city would be able to conduct a study which is specific in order to predict what the secondary affects of a sexually oriented business would be. Worcester read from the Supreme Court case that he relied upon to indicate to Council that using studies from other cities is appropriate. 20 Aspen City Council Regular Meeting May 28, 1996 Worcester said the studies may not be directly correlated to Aspen but they do provide relevant evidence to consider in adopting this ordinance. Worcester said this case is a U. S. Supreme Court in Renton vs Playtimes Theatres, a 1986 case, “We hold that Renton was entitled to rely on the experiences of Seattle and other cities and in particular on the detailed findings summarized in the Washington Supreme Court North End Cinema opinion in enacting its adult theatre zoning ordinance. The First Amendment does not require a city before enacting such an ordinance to conduct new studies or produce independent evidence of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem the city addresses.” Worcester said staff is not suggesting that because other cities had a 500 percent increase in crime rate that Aspen can expect the same. Worcester said he feels the studies can be used to indicate it is relevant to be concerned about the potential for crime rates to increase in the city of Aspen, no matter what the population is. Worcester told Council the Colorado Supreme Court has reviewed an ordinance that is almost identical to Ordinance #18 and they struck some provisions, which are not in Ordinance #18, and they upheld the provisions in Aspen’s ordinance. Worcester said the Colorado Supreme Court has already ruled upon the ordinance and found all the provisions to be constitutional, both on the First Amendment analysis and the Colorado constitution. This is not a guarantee that Aspen will not get sued nor will not lose on some of the issues. Worcester said this ordinance is constitutional and the studies are relevant. Mayor Bennett said this is an extremely controversial issue and obviously a very emotional issue, and an exceedingly important issue as any issue that involves something as fundamental as the right to free speech is and should be. On one side are those who say, just ban it. It is, this group would say, morally offensive pornography, it is deeply offensive to many women and we simply should not allow it in our community. On the other side are libertarians who say, let it be, ignore it. Aspen is already extremely over-regulated, this group would say; it’s a First Amendment freedom of expression issue in which government should not intrude, and anyway, historic precedent has established that a lot of things considerably more active than 81611 existed in Aspen 100 years ago, therefore, there is a history of it. Mayor Bennett suggested the city is taking a common sense, middle road on this issue and he supports it. Mayor Bennett said the question of banning the Club outright is entirely moot. The Colorado Supreme Court is clear, the city cannot ban nude dancing from the community. Cities can only regulate the time, place and 21 Aspen City Council Regular Meeting May 28, 1996 manner. The city can address the secondary impacts, as this ordinance seeks to do. Mayor Bennett said he is not interested in a high profile court case that would do nothing but garner extraordinarily amounts of free publicity for 81611 and possibly hand them a large and very expensive victory at the expense of the citizens of Aspen. Mayor Bennett said to those who would advise Council to do nothing, this is a mistake and sends the wrong message about the community and what Aspen stands for. The issue means a lot of different things to different people; probably everyone has a slightly different perspective on this issue. Mayor Bennett said for him it is not about morality. Mayor Bennett said he does not give a whit whether people go off and undress in front of each other in private. Mayor Bennett said he would prefer people not do it in the middle of the pedestrian malls, but other than that, he doesn’t care very much. Mayor Bennett said this is not about the image of Aspen. Both of these reasons have been in the newspapers a lot and Mayor Bennett said these have little to do with his analysis of this issue. Mayor Bennett said this goes to the heart of what people believe Aspen is about; it goes to the heart of what people think the community’s values are and what people want Aspen to represent. Mayor Bennett said his litmus test for issues as Mayor is “does this make Aspen a better place to live; does this make Aspen a better place to visit; does this in some sense fit the Aspen dream of a community nourishing the mind, the body and the spirit of it’s citizens”. Mayor Bennett said he cannot answer yes to any of those questions on this issue. Mayor Bennett said this community often and continually regulates many things, creates many rules concerning things believed to be important. Mayor Bennett said Aspen has rules and regulations requiring developers to build affordable housing. There are rules and regulations to protect open space and limiting pollution in Aspen. There are rules and regulations prohibiting 12 story condominium towers even though these are allowed and encouraged in Vail. Mayor Bennett said Aspen has the “K-Mart” rule specifically designed to make sure that Aspen never has a large chain store moving into to Aspen because they do not fit here. All these rules and regulations are aimed at preserving the sense of community, preserving the special sense of small town character, the community character that makes Aspen extremely unique. Mayor Bennett said on this one issue everyone agrees, Aspen is extremely unique, is very special, and a great place to live. Mayor Bennett said he does not think a strip club on Aspen’s mall fits the character of Aspen anymore than a department store chain would. It does not make Aspen a better place to live or to visit. 22 Aspen City Council Regular Meeting May 28, 1996 Mayor Bennett said he does not believe Aspen needs to prove it’s commitment to civil liberties by boasting the most graphic, public, literally in your face of public anatomy in the state of Colorado. More than a large chain department store would, this issue homogenizes Aspen and makes Aspen less special and drags Aspen down to the lowest common denominator of American social strata. Mayor Bennett said the pivotal Supreme Court case highlighted in the agenda is called “The People of Colorado versus 735 East Colfax”. Mayor Bennett said he does not want to see East Hyman avenue become East Colfax avenue. Mayor Bennett said he is saddened by what feels like the real world catching up with Aspen; Mayor Bennett said he does not like it. Mayor Bennett reminded people of a political slogan of the 70’s, “Those of us who live here have the right to say what kind of place it will be”. This simple statement was a ringing political slogan that captured the fervor of the times and was used in the successful battle to stop runaway commercial development that had every chance of destroying Aspen in the 70’s. Mayor Bennett said the same kind of statement can be applied to the pedestrian malls. Mayor Bennett said this ordinance is reasonable. The studies in the packet and all the staff statements are relevant to Aspen. Mayor Bennett said Council should and must regulate the secondary impacts of adult businesses because this kind of business can have deleterious effects on neighboring businesses and on neighboring residential areas. Mayor Bennett said he believes these impacts must be regulated because this kind of business does not fit the character of the Aspen community. The type of business is not being banned; it is being regulated. Mayor Bennett said he cannot buy what is for him a twisted argument that someone’s freedom of speech is being hampered if one has to put money in a tip jar instead of tucking it into a G- string. Councilwoman Waggaman said as a society, there is a right to regulate some things and she is not opposed to these regulations. Councilwoman Waggaman said this is not putting anyone out of business. Councilwoman Waggaman said liquor stores and places that serve liquor are regulated. Compulsory education is demanded up to a certain age. Aspen does not allow 12 story buildings. Regulations are part of a society. Councilwoman Waggaman said the morality issues are not what the Council is supposed to be addressing. Councilwoman Waggaman said the secondary problems that arise are the issue. Councilwoman Waggaman said Aspen is unique in a unique way that the rest of the world is not and the world press holds Aspen under a microscope. As a small town, Aspen is very dependent upon the economy here. Councilwoman Waggaman said crime figure percentage increase in sexual crimes for bigger cities are larger than will probably happen in Aspen. 23 Aspen City Council Regular Meeting May 28, 1996 Councilwoman Waggaman said one of the major attractions in this community is the fact that there is low crime; this brings people here to live, to visit and to holiday. Councilwoman Waggaman said if Aspen has 2 rapes rather than 1 in a year, if there are 5 indecent exposures instead of 1, this will be under the microscope of the press everywhere. It will have major effects on the economy of Aspen. One of the secondary effects of this type of business is that it changes property values. Councilwoman Waggaman said Council has a responsibility for the people who live and work in this community and whose lives depend on the economy. The city does everything they can to try and keep the tourists coming; any change in the crime statistics is an endangerment to all the rest of those people. Councilwoman Waggaman said she is more concerned about the secondary effects than anything else. Councilman Marolt said he has changed his mind 10 times during the discussion of this issue. Councilman Marolt said the idea of this type of operation is not too significant to him personally, but for the Aspen image it is devastating. This is not part of the product Aspen is trying to sell. Councilman Marolt said it would disturb him if this type of business goes on for any length of time. Councilman Marolt said regulations bother him, too. Over-regulations bother him as much as the exposure of this business. Councilman Marolt said in this particular location there have been all kinds of businesses over the last 40 years. No business has survived for more than a year. Councilman Marolt said maybe this business will not survive for too long. Councilman Marolt said he is really against this business; however, if the city regulates it into their system, this will give the business a stay of execution and make the business more permanent than if it were not regulated. Councilman Marolt said he feels these regulations would be helping the business out. Councilman Marolt said to approve the ordinance is laying down guidelines for this business to operate. Councilman Marolt said he has a problem with this ordinance. Councilwoman Richards moved to suspend the rules and extend the meeting to 9:30 p.m.; seconded by Councilwoman Waggaman. All in favor, motion carried. Councilwoman Richards said in reading this ordinance, it seemed to be a license to these activities. There is some language that it is not the intent of the ordinance to authorize acts that may be found to be obscene by other operations of the law within the state of Colorado. Councilwoman Richards suggested adding language within the definition of specified sexual activities that clarifies that this definition does not authorize or give license to activities that may be found inconsistent with other Colorado state law. Worcester said he can use the same language contained in 24 Aspen City Council Regular Meeting May 28, 1996 paragraph 3 of the first section to read, “This definition shall not be deemed to authorize or permit any type of behavior or attire on license premises which is otherwise prohibited by any City, state, or federal law”. Councilwoman Richards moved to amend the definition section on page 7 to include that language; seconded by Councilwoman Waggaman. All in favor, motion carried. Councilwoman Richards said she has faith that this ordinance would be upheld in a court of law. Councilwoman Richards supports the ordinance. Councilwoman Richards said she does not see the requirements regarding the tip jar or the physical separation of the performers from the patrons to in anyway inhibit the free expression of this community. If anything, this would keep the acts from being closer to a clothed form of prostitution, which some people seem to think is the only way to enjoy nude entertainment. Councilwoman Richards supports these regulations. Councilwoman Richards said there are different degrees of arousal and audience participation that would be encouraged by physical contact. Councilwoman Richards said that is not necessary to be able to enjoy the activities of the club. Councilwoman Richards said she rejects some premises she has heard. One is that this will not be as detrimental to Aspen as to other communities because alcohol is not being served on premises. Councilwoman Richards said there are 100 liquor licenses, many within a few yards of this establishment. Councilwoman Richards said it is possible to get plenty in the mood with libations at other places before coming to this club or leaving during breaks and coming back. Councilwoman Richards said this is already something a number of establishments are seeing. The net effect is that fully clothed waitresses working in regular clubs end up getting the effects of some riled up guests who are just leaving the club and coming back. Councilwoman Richards said she rejects the concept that this won’t be so much because there’s not alcohol readily available when a person would only have to go 30 feet. Councilwoman Richards said she has heard the comment that this is relatively innocuous at this time. Councilwoman Richards stated this ordinance is relatively innocuous. Councilwoman Richards said the few provisions the applicants are objecting to are very relatively innocuous to the overall scheme of the adult entertainment that will continue to be offered in the club. 25 Aspen City Council Regular Meeting May 28, 1996 Councilwoman Richards said it is her feeling there is not a clear borderline in this society on issues like sexuality and a person’s sexual nature. There is more of a continuum, not totally Puritanism nor totally hedonistic. Councilwoman Richards the community as a whole gravitates between total Puritanism and total hedonism. Councilwoman Richards said there are suggestions that by attempting to regulate, this will push the business out in a bigger, more grander fashion. Councilwoman Richards said she does not accept this argument that establishing some level of a moral code is responsible for extreme reactionism in the other direction. Councilwoman Richards stated she holds very dear the First Amendment and freedom of expression. Councilwoman Richards said this is a difference and those who say Council is attacking freedom of expression doth protest too much. Councilwoman Richards said there is a spectrum in these issues. Councilwoman Richards said people like to think of the sex trade as a victimless crime and consentual participating adults. Councilwoman Richards said the sex trade world wide is not so clean or so pretty with 10 year old children in Thailand being sold into brothels to support a family. Councilwoman Richards said the rate of AIDS in Thailand are 1 out of 60. The sex trade spits out a lot of used up, damaged people. Councilwoman Richards said there are evolving standards. It is important to note that “the seeds of society’s destruction are sown in its foundation” to quote Socrates. It is the freedom without responsibility that deteriorates society as a whole without enacting personal responsibility and community responsibility that can rip a community apart. Councilwoman Richards said it is important to note that 100 years ago it was acceptable to “own” another human being and to enslave and to sell their children. Councilman Paulson said philosophy, religion and America’s founding fathers all talked about tolerance. If someone chooses to be in this business, they should be allowed to do it. There also comes a responsibility with that business. Councilman Paulson said this ordinance does not give the business owner undue hardship; it is not too much different from what is already being done. Councilman Paulson said tolerance is part of Aspen’s image. Councilman Paulson said if people did the right things, all these laws would not be needed. Councilman Paulson noted laws have not prevented crime; it still happens. Councilman Paulson said he hopes humans are evolving into to something better than what we are now. Worcester pointed out on page 9, paragraph 14, states “the applicant shall designate a manager, which may be the applicant, provided the applicant is 18 years of age”. There is a specific provision on page 10 that talks about manager’s registration, the 26 Aspen City Council Regular Meeting May 28, 1996 manager of a business that features live, nude entertainment must be 21. Worcester said to reconcile the two paragraphs, page 9, paragraph 14, should have “at least 18 years of age” deleted. The provision on page 10 covers it. Councilwoman Richards moved that section 14, on page 9, “is least 18 years of age” be stricken; seconded by Councilman Paulson. All in favor, motion carried. Councilman Marolt said he has not been convinced that the regulatory nature of this ordinance will not do the job and will be counter productive. Councilman Marolt said he appreciates the work of the city staff. Councilwoman Richards moved to adopt Ordinance #18, Series of 1996, to regulate sexually oriented business as amended on second reading; seconded by Councilman Paulson. Roll call vote; Councilmembers Marolt, no; Waggaman, yes; Bennett, yes; Richards, yes; Paulson, yes. Motion carried. Councilwoman Richards said there has been a lot of discussion about community activism and involvement in this issue. Councilwoman Richards said the Council has gone as far as it can and it is up to the community as this point. Councilwoman Richards moved to adjourn at 9:30 p.m.; seconded by Councilwoman Waggaman. All in favor, motion carried. Kathryn S. Koch, City Clerk 27