(a)
The
city council makes the following findings with regard to sexually
oriented establishments:
(1)
Tex. Loc. Gov’t Code, sections 51.001, 54.001, 211.001 and
211.003, authorize general-law cities to license any lawful business,
occupation or calling that is susceptible to the control of the police
power;
(2)
Tex. Loc. Gov’t Code, sections 51.001, 54.001, 211.001 and
211.003, authorize general-law cities to enforce all ordinances necessary
to protect health, life and property, and to preserve the good government,
order and security of such cities and their inhabitants;
(3)
Sexually oriented businesses require special supervision from the
public safety agencies of the city in order to protect and preserve
the health, safety and welfare of the patrons of the businesses, as
well as the citizens of the city;
(4)
The city council finds that sexually oriented businesses are frequently
used for unlawful sexual activities, including prostitution and sexual
liaisons of a casual nature;
(5)
The concern over sexually transmitted diseases is a legitimate health
concern of the city which demands reasonable regulation of sexually
oriented businesses in order to protect the health and well-being
of the citizens;
(6)
Licensing is a legitimate and reasonable means of accountability
to ensure that operators of sexually oriented businesses comply with
reasonable regulations and to ensure that operators do not knowingly
allow their establishments to be used as places of illegal sexual
activity or solicitation;
(7)
There is convincing documented evidence that sexually oriented businesses,
because of their very nature, have a deleterious effect on both the
existing businesses around them and the surrounding residential areas
adjacent to them, causing increased crime and the downgrading of property
values;
(8)
The city council further finds that the police in numerous other
jurisdictions have made a substantial number of arrests for sexually
related crimes in sexually oriented business establishments;
(9)
It is recognized that sexually oriented businesses, due to their
nature, have serious objectionable operational characteristics, particularly
when they are located in close proximity to each other, thereby contributing
to urban blight and downgrading the quality of life in the adjacent
areas; and
(10)
The city council desires to minimize and control these adverse effects
and thereby preserve the property values and character of surrounding
neighborhoods, deter the spread of urban blight, protect the citizens
from increased crime, preserve the quality of life and protect the
health, safety and welfare of the citizenry.
(b)
The
city council makes the following findings with regard to the licensing
of sexually oriented business establishments:
(1)
The city council believes it in the interest of the public safety
and welfare to prohibit persons convicted of certain crimes from engaging
in the occupation of operating a sexually oriented business.
(2)
The city council, in accordance with Tex. Loc. Gov’t Code,
chapter 243, has considered the following criteria:
(A)
The nature and seriousness of the crimes;
(B)
The relationship of the crimes to the purposes for requiring a license
to engage in the occupation;
(C)
The extent to which a license might offer an opportunity to engage
in further criminal activity of the same type as that in which the
person previously had been involved; and
(D)
The relationship of the crimes to the ability, capacity or fitness required to perform the duties and discharge the responsibilities of the licensed occupation, and has determined that the crimes listed in section 4.06.042 are serious crimes which are directly related to the duties and responsibilities of the occupation of operating a sexually oriented business.
(i)
The city council has further determined that the very nature
of the occupation of operating a sexually oriented business brings
a person [into] contact with persons interested in sexually oriented
materials and activities, thereby giving the person repeated opportunities
to commit offenses against public order and decency or crimes against
the public health, safety or morals should he or she be so inclined.
(ii)
Thus, it is the opinion of the city council that the listed
crimes render a person unable, incompetent and unfit to perform the
duties and responsibilities accompanying the operation of a sexually
oriented business in a manner that would promote the public safety
and trust.
(2004 Code, sec. 113.01)
(a)
It
is the purpose of this article 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 continued concentration of sexually oriented businesses
within the city. The provisions hereof have neither the purpose nor
effect of imposing a limitation or restriction on the content of any
communicative materials, including sexually oriented material. Similarly,
it is not the intent nor effect of this article to restrict or deny
access by adults to sexually oriented material protected by the First
Amendment, or to deny access by the distributors and exhibitors of
sexually oriented entertainment to their intended market.
(b)
(1)
It is the intent of the city council that the locational regulations of section 4.06.007(a) are promulgated pursuant to Tex. Loc. Gov’t Code, sections 243.001 through 243.011, as they apply to nude model studios and sexual encounter centers only.
(2)
It is the intent of the city council that all other provisions of
this article are promulgated pursuant to applicable articles of the
Tex. Loc. Gov’t Code.
(2004 Code, sec. 113.02)
For the purpose of this article, the following definitions shall
apply, unless the context clearly indicates or requires a different
meaning:
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 the depicting or
describing of specified sexual activities or specified anatomical
areas.
A commercial establishment which as one of its principal
business purposes openly advertises or displays or offers for sale
or rental, for any form of consideration, any one or more of the following:
Books, magazines, periodicals or other printed matter or photographs,
films, motion pictures, videocassettes or video reproductions, slides
or other visual representations which depict or describe specified
sexual activities or specified anatomical areas; or
Instruments, devices, or paraphernalia which are designed for
use in connection with specified sexual activities.
A nightclub, bar, restaurant or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity;
Live performances which are characterized by the exposure of
specified anatomical areas or by specified sexual activities; or
Films, motion pictures, videocassettes, slides or other photographic
reproductions which are characterized by the depiction or description
of specified sexual activities or specified anatomical areas.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any form of consideration;
provides patrons with closed circuit television transmissions, films,
motion pictures, videocassettes, slides or other photographic reproductions
which are characterized by the depiction or description of specified
sexual activities or specified anatomical areas; and has a sign visible
from the public right-of-way which advertises the availability of
this type of photographic reproductions;
Offers a room for rent for period of time that is less than
ten hours; or
Allows a tenant or occupant of a sleeping room to subrent the
room for a period of time that is less than ten hours.
An establishment where, for any form of consideration, films,
motion pictures, videocassettes, slides or similar photographic reproductions
[are] regularly shown which are characterized by the depiction or
description of specified sexual activities or specified anatomical
areas.
A theater, concert hall, auditorium or similar commercial
establishment which regularly features persons who appear in a state
of nudity or live performances which are characterized by the exposure
of specified anatomical areas or by specified sexual activities.
The city administrator of Celina or his or her designated
agent, or any officer or official of the city appointed in that capacity
administratively.
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.
A person or business association who furnishes, offers to
furnish or advertises to furnish escorts as one of its primary business
purposes for a fee, tip or other consideration.
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.
A person in whose name a license to operate a sexually oriented
business has been issued, as well as the individual listed as an applicant
on the application for a license.
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.
The appearance of a human bare buttock, anus, male genitals,
female genitals or female breasts.
An individual, proprietorship, trust, partnership, corporation,
association or other legal entity.
Any public or private nursery, preschool, day care center,
learning center, or elementary or secondary school.
A state of dress in which clothing covers no more than the
genitals, pubic region and areola of the female breast, as well as
portions of the body covered by supporting straps or devices.
A business or commercial enterprise that, as one of its primary
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore or adult video store, adult
cabaret, adult motel, adult motion picture theater, adult theater,
escort agency, nude model studio or sexual encounter center.
Human genitals in a state of sexual arousal.
Any of the following:
The increase in floor area occupied by the business by more
than 20%, as the floor area exists on the effective date of this article.
Any of the following:
The sale, lease or sublease of the business;
The transfer of securities or other ownership interest which
constitutes a direct, indirect, legal, equitable or beneficial controlling
interest in the business, whether by sale, exchange or similar means;
or
The establishment of a trust, gift or other similar legal device which transfers the direct, indirect, legal, equitable or beneficial 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 to a person meeting all of the requirements of section 4.06.042, who shall have notified the city administrator of the transfer and furnished all of the information required to be submitted in an application for a license within 60 days of the transfer.
(2004 Code, sec. 113.03)
Sexually oriented business is defined and classified as any
commercial establishment operating in the city, in whole or in part,
as any one or more of the following:
(1)
Adult
arcade;
(2)
Adult
bookstore or adult video store;
(3)
Adult
cabaret;
(4)
Adult
motel;
(5)
Adult
motion picture theater;
(6)
Adult
theaters;
(7)
Escort
agency;
(8)
Nude
model studio; and/or
(9)
Sexual
encounter center.
(2004 Code, sec. 113.04)
(a)
(1)
Except as provided hereby, any person violating section 4.06.007(a), upon conviction, is punishable by a fine.
(2)
If the sexually oriented business involved is a nude model studio or sexual encounter center, then violation of section 4.06.007(a) or 4.06.041 is punishable as a class B misdemeanor.
(3)
Any person violating a provision of this article other than section 4.06.007(a), upon conviction, is punishable by a fine not to exceed $200.00.
(4)
It is a defense to prosecution under section 4.06.007(a), 4.06.041 or 4.06.082 that a person appearing in a state of nudity did so in a modeling class operated:
(A)
By a proprietary school licensed by the state, a college, junior
college or university supported entirely or partly by taxation;
(B)
By a private college or university which maintains and operates educational
programs in which credits are transferable to a college, junior college
or university supported entirely or partly by taxation; or
(C)
In a structure:
(i)
Which has no sign visible from the exterior of the structure
and no other advertising that indicates a nude person is available
for viewing;
(ii)
Where, in order to participate in a class, a student must enroll
at least three days in advance of the class; and
(iii)
Where no more than one nude model is on the premises at any
one time.
(5)
It is not defense [sic] to prosecution under section 4.06.007(a) or 4.06.041 that each item of descriptive, printed, film or video material offered for sale or rental, taken as a whole, contains serious literary, artistic, political or scientific value.
(b)
A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of section 4.06.007(a) is subject to a suit for injunction as well as prosecution for criminal violations.
(2004 Code, sec. 113.07)
(a)
Section 4.06.007 may be amended only after compliance with the procedure required to amend the zoning ordinance.
(b)
Other
sections of this article may amended by vote of the city council.
(2004 Code, sec. 113.08)
(a)
Restrictions; measurements; nonconforming uses.
(1)
A person commits an offense if he or she operates or causes to be
operated a sexually oriented business within 100 feet of:
(2)
A person commits an offense if he or she causes or permits the operation,
establishment, substantial enlargement or transfer of ownership or
control of a sexually oriented business located within 1,000 feet
of another sexually oriented business.
(3)
A person commits an offense if he or she causes or permits the operation,
establishment or maintenance of more than one sexually oriented business
in the same building, structure or portion thereof or the increase
of floor area of any sexually oriented business in any building, structure
or portion thereof containing another sexually oriented business.
(4)
For the purposes of subsection (a)(1) above, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted to the nearest property line of the premises of a church or school or to the nearest boundary of an affected public park, residential district or residential lot.
(5)
For purposes of subsection (a)(2) above, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
(6)
(B)
The nonconforming use will be permitted to continue for a period
not to exceed one year unless sooner terminated for any reason or
voluntarily discontinued for a period of 30 days or more.
(C)
The nonconforming uses shall not be increased, enlarged, extended
or altered, except that the use may be changed to a conforming use.
(D)
If two or more sexually oriented businesses are within 1,000 feet
of one another and otherwise in a permissible location, the sexually
oriented business which was first established and continually operating
at a particular location is the conforming use and the later-established
business is nonconforming.
(7)
A sexually oriented business lawfully operating as a conforming use
is not rendered a nonconforming use by the location, subsequent to
the grant or renewal of the sexually oriented business license, of
a church, school, public park, residential district or residential
lot within 1,000 feet of the sexually oriented business. This provision
applies only to the renewal of a valid license and does not apply
when an application for a license is submitted after a license has
expired or has been revoked.
(b)
Exemptions.
(1)
If the city administrator denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of subsection (a) above, then the applicant may, not later than ten calendar days after receiving notice of the denial, file with the city secretary a written request for an exemption from the locational restrictions of this section.
(2)
If the written request is filed with the city secretary within the
ten-day limit, the city council shall consider the request. The city
secretary shall set a date for the hearing within 60 days from the
date the written request is received.
(3)
A hearing by the council may proceed if a quorum is present. The
council shall hear and consider evidence offered by any interested
person. The formal rules of evidence do not apply.
(4)
The city council may, in its discretion, grant exemption from the
locational [restrictions] of this section if it makes the following
findings:
(A)
The location of the proposed sexually oriented business will not
have a detrimental effect on nearby properties or be contrary to the
public safety or welfare;
(B)
The granting of the exemption will not violate the spirit and intent
of this article;
(C)
The location of the proposed sexually oriented business will not
downgrade the property value or quality of life in the adjacent areas
or encourage the development of urban blight;
(D)
The location of an additional sexually oriented business in the area
will not be contrary to any program of neighborhood conservation nor
will it interfere with any efforts of urban renewal or restoration;
and
(E)
All other applicable provisions of this article will be observed.
(6)
(A)
If the council grants the exemption, the exemption is valid for one
year from the date of the council’s action.
(7)
If the council denies the exemption, the applicant may not reapply
for an exemption until at least 12 months have elapsed since the date
of the council action.
(2004 Code, sec. 113.05)
(a)
A
person commits an offense if, in a business establishment open to
persons under the age of 17 years, he or she displays a book, pamphlet,
newspaper, magazine, film or videocassette, the cover of which depicts
in a manner calculated to arouse sexual lust or passion for commercial
gain, or to exploit sexual lust or perversion for commercial gain,
any of the following:
(1)
Human sexual intercourse, masturbation or sodomy;
(2)
Fondling or other erotic touching of human genitals, pubic regions,
buttocks or women’s breasts;
(3)
Less than completely and opaquely covered human genitals, buttocks,
or that portion of the female breast below the top of the areola;
or
(4)
Human male genitals in a discernibly turgid state, whether covered
or uncovered.
(b)
For
the purpose of this section, the following definition shall apply,
unless the context clearly indicates or requires a different meaning:
Display. To locate an item in a manner
that, without obtaining assistance from an employee of the business
establishment:
(2004 Code, sec. 113.06)
