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)