The findings contained in the preamble of this ordinance are
determined to be true and correct and are adopted as a part of this
ordinance.
(Ordinance 1844, 3-24-09)
It is the purpose of this Chapter to regulate Sexually Oriented
Businesses to promote the health, safety, morals and general welfare
of the citizens of the City, and to establish reasonable and uniform
regulations to prevent the concentration of Sexually Oriented Businesses
within the City. The provisions of this Chapter have neither the purpose
nor effect of imposing a limitation or restriction on the content
of any communicative materials, including sexually oriented materials.
Similarly, it is not the intent or effect of this Chapter to restrict
or deny access by adults to sexually oriented materials protected
by the First Amendment or to deny access by the distributors and exhibitors
of sexually oriented entertainment to their intended market.
(Ordinance 1844, 3-24-09)
Based on evidence concerning the adverse secondary effects of
Sexually Oriented Businesses on the community presented in hearings
and in reports made available to the Council, and on findings incorporated
in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S.
41 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); FW/PBS,
Inc. v. City of Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991); City of Erie v. Pap’s A.M., 529 U.S.
277, 120 S. Ct. 1382 (2000); City of Los Angeles v. Alameda Books,
Inc., 122 S. Ct. 1728 (2002); Baby Dolls Topless Saloons, Inc. v.
City of Dallas, 295 F.3d 471 (5th Cir. 2002); LLEH, Inc. v. Wichita
County, Texas, 289 F.3d 358 (5th Cir. 2002); Mitchell v. Commission
on Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993); Schultz v. City
of Cumberland, 228 F.3d 831 (7th Cir. 2000); Hang On, Inc. v. City
of Arlington, 65 F.3d 1248 (5th Cir. 1995); 2300, Inc. v. City of
Arlington, 888 S.W.2d 123 (Tex. App. - Fort Worth, 1994); Colacurcio
v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert denied, 529 U.S.
1053 (2000); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986);
Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th
Cir. 2003); DLS, Inc. v. Chattanooga, 107 F.3d 403 (6th Cir. 1997);
Jake’s, Ltd., Inc. v. Coates, 384 F.3d 884 (8th Cir. 2002);
and on studies, reports and/or testimony in other communities including,
but not limited to: Phoenix, Arizona; Minneapolis, Minnesota; St.
Paul, Minnesota; Houston, Texas; Indianapolis, Indiana; Dallas, Texas;
Amarillo, Texas; Garden Grove, California; Los Angeles, California;
Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma
City, Oklahoma; Cleveland, Ohio; Beaumont, Texas; Newport News, Virginia;
Bellevue, Washington; New York, New York; St. Croix County, Wisconsin;
Kitsap County, Washington; Los Angeles, California Police Department
(dated August 12, 2003); Arlington, Texas, License and Amortization
Appeal Board hearings, 2001 and 2002; Arlington Community Health Profile
(dated July 2003); a summary of land use studies compiled by the National
Law Center for Children and Families; and also on findings from the
Report of the Attorney General’s Working Group On The Regulation
Of Sexually Oriented Businesses (June 6, 1989, State of Minnesota),
and the study entitled Survey of Texas Appraisers - Secondary Effects
of Sexually-Oriented Businesses on Market Values by Cooper and Kelley
and Crime-Related Secondary Effects - Secondary Effects of “Off-Site”
Sexually-Oriented Businesses by McCleary, June 2008, the Council finds:
1.
Sexually
Oriented Businesses lend themselves to ancillary unlawful and unhealthy
activities that are presently uncontrolled by the operators of the
establishments. Further, absent municipal regulation aimed at reducing
adverse secondary effects there is no mechanism to make the owners
of these establishments responsible for the activities that occur
on their premises.
2.
Certain
employees of Sexually Oriented Businesses, defined in this Ordinance
as Sexually Oriented Theater, Nude Model Business, Escort Agency,
and Sexually Oriented Cabaret, engage in higher incidence of certain
types of illicit sexual behavior than employees of other establishments.
3.
Sexual
acts, including masturbation, prostitution, sexual contact, and oral
and anal sex, occur at Sexually Oriented Businesses, especially those
which provide private or semi-private booths or cubicles, or rooms
for viewing films, videos, or live sex shows.
4.
Offering
and providing private or semi-private areas in Sexually Oriented Businesses
encourages such sexual activities, which creates unhealthy conditions.
5.
Persons
frequent certain Sexually Oriented Theaters, Sexually Oriented Arcades,
and other Sexually Oriented Businesses for the purpose of engaging
in sex within the premises of such Sexually Oriented Businesses.
6.
At least
50 communicable diseases may be spread by activities occurring in
Sexually Oriented Businesses, including, but not limited to, syphilis,
gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital
herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections
and shigella infections.
7.
Since 1981
and to the present, there has been an increasing cumulative number
of reported cases of AIDS (acquired immunodeficiency syndrome) caused
by the human immunodeficiency virus (HIV) in the United States: 600
in 1982; 2,200 in 1983; 4,600 in 1984; 8,555 in 1985, and 253,448
through December 31, 1992.
8.
As of December
31, 2001, there have been 57,199 reported cases of AIDS in the State
of Texas.
9.
Since the
early 1980s and to the present, there has been an increasing cumulative
number of persons testing positive for the HIV antibody test in Tarrant
County, Texas and across the State of Texas.
10.
The number
of cases of early (less than one year) syphilis in the United States
reported annually has risen, with 33,613 cases reported in 1982, and
45,200 through November, 1990. According to Texas Department of Health
records there were 1,175 cases of early syphilis reported in the State
of Texas during 2000 and an additional 972 cases reported in 2001.
11.
The number
of cases of gonorrhea in the United States reported annually remains
at a high level, with over one-half million cases being reported in
1990. Again, according to Texas Department of Health records there
were 32,895 cases of gonorrhea reported in the State of Texas during
2000 and an additional 30,116 cases reported in 2001. During the same
time period there were also 138,692 cases of Chlamydia reported in
the State of Texas. [Arlington Community Health Profile (dated July
2003)]
12.
In his
report of October 22, 1986, the Surgeon General of the United States
has advised the American public that AIDS and HIV infection may be
transmitted through sexual contact, intravenous drug abuse, exposure
to infected blood and blood components, and from an infected mother
to her newborn.
13.
According
to the best scientific evidence, AIDS and HIV infection, as well as
syphilis and gonorrhea, are principally transmitted by sexual acts.
14.
Sanitary
conditions in some Sexually Oriented Businesses are unhealthy, in
part, because the activities conducted there are unhealthy, and, in
part, because of the unregulated nature of the activities and the
failure of the owners and the operators of the facilities to self-regulate
those activities and maintain those facilities.
15.
Numerous
studies and reports have determined that semen is found in the areas
of Sexually Oriented Businesses where persons view “sexually
oriented” films.
16.
Sexually
Oriented Businesses have operational characteristics which should
be reasonably regulated in order to protect substantial governmental
concerns.
17.
A reasonable
licensing procedure is an appropriate mechanism to place the burden
of that reasonable regulation on the owners and the operators of the
Sexually Oriented Businesses. Further, such a licensing procedure
will place an incentive on the operators to see that the Sexually
Oriented Business is run in a manner consistent with the health, safety,
and welfare of its patrons and employees, as well as the citizens
of the City. It is appropriate to require reasonable assurances that
the licensee is the actual operator of the Sexually Oriented Business,
fully in possession and control of the premises and activities occurring
therein.
18.
Removal
of doors on booths and requiring sufficient lighting on premises with
booths advances a substantial governmental interest in curbing the
illegal and unsanitary sexual activity occurring in Sexually Oriented
Theaters.
19.
Requiring
licensees of Sexually Oriented Businesses to keep information regarding
current employees and certain past employees will help reduce the
incidence of certain types of criminal behavior by facilitating the
identification of potential witnesses or suspects and by preventing
minors from working in such establishments.
20.
The disclosure
of certain information by those persons ultimately responsible for
the day-to-day operation and maintenance of the Sexually Oriented
Business, where such information is substantially related to the significant
governmental interest in the operation of such uses, will aid in preventing
the spread of sexually transmitted diseases.
21.
In the
prevention of the spread of communicable diseases, it is desirable
to obtain a limited amount of information regarding certain employees
who may engage in the conduct that this Ordinance is designed to prevent,
or who are likely to be witnesses to such conduct.
22.
The fact
that an applicant for a Sexually Oriented Business license has been
convicted of a sexually related crime leads to the rational assumption
that the applicant may engage in that conduct in contravention of
this Ordinance. There is a correlation between Sexually Oriented Businesses,
specifically their hours of operation and the type of people which
such businesses attract, and higher crime rates. [Baby Dolls Topless
Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002)].
23.
The barring
of such individuals from the management of Sexually Oriented Businesses
for a period of years serves as a deterrent to, and prevents conduct
which leads to, the transmission of sexually transmitted diseases.
24.
It is
reasonably believed that to better protect the public health, safety,
and welfare, it is necessary to adopt additional amendments to this
chapter.
25.
It is
reasonably believed that to prevent the exploitation of a loophole
in the Ordinance (which would have permitted such businesses to avoid
the location restrictions), partially nude performances in such businesses
are also included within the purview of the regulations, since they
have the same harmful secondary effects on the surrounding community
as Sexually Oriented Businesses currently regulated under the Ordinance.
[Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471
(5th Cir. 2002)].
26.
There
is no Constitutional right for Sexually Oriented Business employees
in a state of nudity to touch customers. [Hang On, Inc. v. City of
Arlington, 65 F.3d 1248 (5th Cir. 1995)]
27.
One court
has characterized the acts of Sexually Oriented Business employees
in a state of nudity and being paid to touch or be touched by customers
as prostitution. [People v. Hill, 2002 Ill. App. LEXIS 792 (Ill. App.
2 Dist. Sep. 4, 2002); See also, Tex. Penal Code Sections 43.01 (“sexual
conduct” and “sexual contact”) and 43.02 (“prostitution”)].
28.
Attempts
by the City of Arlington to require Sexually Oriented Businesses to
advise customers and employees in a state of nudity to refrain from
intentionally touching and fondling each other through signage posted
at the business entrance have not been effective.
29.
Sexually
Oriented Businesses have not complied with the “no touch”
provisions, but have flagrantly disregarded them and/or encouraged
employees and customers to violate the “no touch” provision.
30.
Provocative
touching between customers and employees in a Sexually Oriented Business
where at least one is in a state of nudity frequently leads to the
commission of sex crimes, illegal drug use, and increased health risks
due to sexually transmitted diseases.
31.
Compelling
signage at the entrances of Sexually Oriented Businesses has not been
effective in halting “no touch” violations.
32.
The City
of Arlington has had to expend considerable law enforcement resources
to enforce the “no touch” provisions.
33.
The City
Council reasonably believes that requiring employees in a state of
nudity to be physically separated from customers by the use of elevated
stages and buffer zones is necessary to better ensure ordinance compliance
while still not inhibiting constitutionally protected expressive conduct
or speech. [LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358 (5th
Cir. 2002)]
34.
The City
Council reasonably believes that sexual activity occurring in private
viewing booths at sexually oriented businesses leads to unhealthy
and unsanitary conditions and to the transmission of sexually transmitted
and other communicable diseases. [Matney v. County of Kenosha, 86
F.3d 692, 695 (7th Cir. 1996)]
35.
The City
Council reasonably believes that certain negative secondary effects,
including prostitution, drug trafficking and assaultive offenses are
associated with nude or semi-nude dancing in environments where alcohol
is served or allowed. [J.L. Spoons, Inc. v. Dragani, 538 F.3d 379,
382 (6th Cir. 2008)]
36.
The City
Council reasonably believes that the licensing and permit requirements
imposed on Sexually Oriented Businesses that offer on-site entertainment
comport with the prompt judicial review and preservation of the status
quo requirements enunciated by the United States Supreme Court, and
thus do not constitute an unconstitutional prior restraint. [Richland
Bookmart, Inc. v. Knox County, Tenn., 2009 FED App. 0052P (6th Cir.
2009)]
37.
The City
Council reasonably believes that inadequately illuminated parking
lots and parking lots that are not visible from the public right-of-way
by virtue of being fenced or otherwise shielded from view present
increased opportunities for criminal and sexual activity.
38.
The City
Council reasonably believes that video monitoring the parking lots
of Sexually Oriented Businesses will deter individuals from engaging
in criminal and sexual activity in the area being monitored and retaining
recordings will assist law enforcement in criminal investigations
should any crimes be committed in the area.
39.
The City
Council finds that pursuant to “The Airport Zoning Act,”
Chapter 241, Texas Local Government Code, that the City of Euless
has no authority to exercise land use regulatory authority over land
within its corporate city limits defined as an “airport”
by the Act.
40.
It is
reasonably believed by the City Council that the general welfare,
health, and safety of the citizens of the City will be promoted by
the enactment of this Ordinance.
41.
It is
reasonably believed by the City Council that adequate sites are reasonably
available for Sexually Oriented Businesses that meet licensing and
otherwise applicable requirements to locate and operate in the City
of Euless.
(Ordinance 1844, 3-24-09)
In this chapter:
means colorless or lacking in saturation or hue. The term
includes, but is not limited to, grays, tans, and light earth tones.
The term does not include white, black, or any bold coloration that
attracts attention.
means any place to which the public is permitted or invited
wherein coin-operated or slug-operated or electronically, electrically,
or mechanically controlled 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 or characterized by regularly depicting
or describing “specified sexual activities” or “specified
anatomical areas.”
means a commercial establishment for which the regular offering
of a service or the selling, renting, or exhibiting of devices or
any other items intended to provide sexual stimulation or sexual gratification
to the customer constitutes twenty-five percent (25%) or more of the
items in inventory and/or floor space of the Sexually Oriented Business,
including:
books, magazines, periodicals or other printed matter, or photographs,
films, motion-pictures, DVD’s, video cassettes or video reproductions,
slides, or other visual representations, that depict or describe “specified
sexual activities” or “specified anatomical areas”;
or
instruments, devices, or paraphernalia that are designed for
use in connection with “specified sexual activities,”
but not including items used for birth control or for the prevention
of sexually transmitted diseases.
means a commercial establishment that regularly features
the offering to customers of live entertainment that:
means a hotel, motel, or similar commercial establishment
that:
offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films,
motion-pictures, video cassettes, slides, or other photographic reproductions
that are characterized by the regular depiction or description of “specified
sexual activities” or “specified anatomical areas”;
and has a sign visible from the public right-of-way that advertises
the availability of this adult type of photographic reproductions;
or
offers a sleeping room for rent for a period of time that is
less than 10 hours; or
allows a tenant or occupant of a sleeping room to sub-rent the
room for a period of time that is less than 10 hours.
means a commercial establishment where, for any form of consideration,
films, motion-pictures, video cassettes, slides, or similar photographic
reproductions are regularly shown that are characterized by the depiction
or description of “specified sexual activities” or “specified
anatomical areas.”
means:
a person or entity in whose name a license to operate a Sexually
Oriented Business will be issued;
each individual who signs an application for a Sexually Oriented Business license as required by Section 18-81;
each individual who is an officer of a Sexually Oriented Business for which a license application is made under Section 18-81, regardless of whether the individual’s name or signature appears on the application;
each individual who has a 20 percent or greater ownership interest
in a Sexually Oriented Business for which a license application is
made under Section 41A-4, regardless of whether the individual’s
name or signature appears on the application; and
each individual who exercises substantial de facto control over a Sexually Oriented Business for which a license application is made under Section 18-81, regardless of whether the individual’s name or signature appears on the application.
means the chief of police of the City of Euless or the chief’s
designated agent.
means a facility licensed by the State of Texas, whether
situated within the City or not, that provides care, training, education,
custody treatment or supervision for more than six (6) children under
fourteen (14) years of age, where such children are not related by
blood, marriage or adoption to the owner or operator of the facility,
for less that twenty-four (24) hours a day, regardless of whether
or not the facility is operated for a profit or charges for the services
it offers.
means a building, whether situated within the City or not,
in which persons regularly assemble for religious worship and said
building is intended primarily for purposes connected with such worship
or for propagating a particular form of religious belief.
means a conviction in a federal court or a court of any state
or foreign nation or political subdivision of a state or foreign nation
that has not been reversed, vacated, or pardoned. “Conviction”
includes disposition of charges against a person by probation or deferred
adjudication.
means any individual who:
means a person who, for consideration, agrees or offers to
act as a companion, guide, or date for another person, or who agrees
or offers to privately model lingerie or to privately perform a striptease
for another person.
means a person or business association that furnishes, offers
to furnish, or advertises to furnish escorts as one of its primary
business purposes, for a fee, tip, or other consideration.
means and includes any of the following:
the opening or commencement of any Sexually Oriented Business
as a new business;
the conversion of an existing business, whether or not a Sexually
Oriented Business, to any Sexually Oriented Business;
the addition of any Sexually Oriented Business to any other
existing Sexually Oriented Business; or
the relocation of any Sexually Oriented Business.
shall mean the City Manager, or his or her designee. The “Hearing
Officer” shall exercise those powers authorized under the Texas
Local Government Code, the Charter of the City of Euless, and the
Code of Ordinances of the City of Euless, as appropriate in the furtherance
of his or her duties.
means a facility or area for providing health services primarily
for human in-patient medical or surgical care for the sick or injured
and including related facilities such as laboratories, out-patient
departments, training facilities, central services facilities, and
staff offices that are an integral part of the facilities.
means:
a person in whose name a license to operate a Sexually Oriented
Business has been issued;
each individual listed as an applicant on the application for
a license;
each individual who is an officer of a Sexually Oriented Business
for which a license has been issued under this chapter, regardless
of whether the individual’s name or signature appears on the
license application;
each individual who has a 20 percent or greater ownership interest
in a Sexually Oriented Business for which a license has been issued
under this chapter, regardless of whether the individual’s name
or signature appears on the license application; and
each individual who exercises substantial de facto control over
a Sexually Oriented Business for which a license has been issued under
this chapter, regardless of whether the individual’s name or
signature appears on the license application.
means any place where a person who appears in a state of
nudity or displays “specified anatomical areas” is provided
to be observed, sketched, drawn, painted, sculptured, photographed,
or similarly depicted by other persons who pay money or any form of
consideration; however, nude modeling at or on behalf of any properly
accredited institution of higher learning shall not fall within this
definition
means a state of dress which fails to fully and opaquely
cover the anus, genitals, pubic region, or perineum anal region, or
the exposure of any device, costume or covering that gives the realistic
appearance of or simulates the anus, genitals, pubic region, or perineum
anal region, regardless of whether the nipple and areola of the human
female breast are exposed.
means to cause to function or to put or keep in operation.
A person may be found to be operating or causing to be operated a
Sexually Oriented Business whether or not that person is an owner,
part owner, or licensee of the business.
means an individual, proprietorship, partnership, corporation,
association, or other legal entity.
means any city park defined by Chapter 54 of the Euless Code of Ordinances.
means a single-family, duplex, townhouse, multiple family, or mobile home zoning district as defined in Chapter 84 of the Euless Code of Ordinances.
means a single-family, duplex, multiple family, or “mobile home park, mobile home subdivision, and campground” use as defined in Chapter 84 of the Euless Code of Ordinances.
means the exposure of the post puberty female nipple or areola,
or the exposure of any device, costume or covering that gives the
realistic appearance of or simulates the post puberty female nipple
or areola, so long as the following anatomical areas of an individual
are fully and opaquely covered: the anus, genitals, pubic region and
the perineum anal region of the human body. The term “semi-nude”
shall not apply to an individual exposing a post puberty female nipple
or areola in the process of breastfeeding a child under that person’s
care.
means an adult arcade, adult bookstore or adult video store,
adult cabaret, adult motel, adult motion-picture theater, escort agency,
nude model studio, or other commercial enterprise for which the regular
offering of a service or the selling, renting, or exhibiting of devices
or any other items intended to provide sexual stimulation or sexual
gratification to the customer constitutes twenty-five percent (25%)
or more of the items in inventory and/or floor space of the Sexually
Oriented Business. The term shall also mean any commercial enterprise
that self-identifies as an adult arcade, adult bookstore, adult video
store, adult cabaret, adult motel, adult motion-picture theater, escort
agency or nude model studio, regardless of whether the percentage
of items in inventory and/or floor space constitute twenty-five percent
(25%) or more of the total items in inventory and/or floor space.
means any display, design, pictorial, or other representation
that is:
constructed, placed, attached, painted, erected, fastened, or
manufactured in any manner whatsoever so that it is visible from the
outside of a sexually oriented business; and
used to seek the attraction of the public to any goods, services,
or merchandise available at the sexually oriented business.
|
The term “sign” also includes any representation
painted on or otherwise affixed to any exterior portion of a Sexually
Oriented Business establishment or to any part of the tract upon which
the establishment is situated.
|
means:
means and includes any of the following:
the fondling or other erotic touching of human genitals, pubic
region, buttocks, anus, or female breasts;
sex acts, normal or perverted, actual or simulated, including
intercourse, oral copulation, or sodomy;
masturbation, actual or simulated; or
excretory functions as part of or in connection with any of
the activities set forth in Paragraphs (A) through (C) of this subsection.
of a Sexually Oriented Business means and includes any of
the following:
the sale, lease, or sublease of the business;
the transfer of securities that constitute a controlling interest
in the business, whether by sale, exchange, or similar means; or
the establishment of a trust, gift, or other similar legal device
that transfers the ownership or control of the business, except for
transfer by bequest or other operation of law upon the death of the
person possessing the ownership or control.
(Ordinance 1844, 3-24-09)
