(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 concentration of sexually oriented businesses within the
city. The provisions of this article 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 neither the intent nor effect of this article to restrict or
deny access by adults to sexually oriented materials protected by
the First Amendment, or to deny access by distributors and exhibitors
of sexually oriented entertainment to their intended market.
(b)
It
is the intent of the city council that the locational regulations
of this article are promulgated pursuant to Local Government Code,
chapter 243, as amended.
(c)
A
license granted under this article or under any other city ordinance
does not authorize or legalize any conduct, activity or business that
is illegal under state or federal law.
(Ordinance 2018-03-05, sec. 1, adopted 3/20/18)
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 city 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 city 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 the premises.
(2)
Certain
employees of sexually oriented businesses, defined in this article
as adult arcade, adult bookstore, adult video store, adult cabaret,
adult motel, adult motion picture theater, adult theater, escort agency,
nude model studio or sexual encounter center, engage in a 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 businesses, adult arcades, adult
motion picture theaters and adult theaters for the purpose of engaging
in sex within the premises of such sexually oriented businesses.
(6)
At
least fifty (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
cumulative through December 31, 1992. In 2007, the estimated number
of persons diagnosed with AIDS in the United States and dependent
areas was 37,041. Of these, 35,962 were diagnosed in the 50 states
and the District of Columbia and 812 were diagnosed in the dependent
areas. In the 50 states and the District of Columbia, adult and adolescent
AIDS cases totaled 35,934 with 26,355 cases in males and 9,579 cases
in females. The cumulative estimated number of diagnoses of AIDS through
2007 in the United States and dependent areas was 1,051,875. Of these,
1,018,428 were diagnosed in the 50 states and the District of Columbia
and 32,051 were diagnosed in the dependent areas. In the 50 states
and the District of Columbia, adult and adolescent AIDS cases totaled
1,009,220 with 810,676 cases in males and 198,544 cases in females.
(Source: U.S. Centers for Disease Control, U.S. Dept. of Health and
Human Services. February 26, 2009.)
(8)
Indeed,
the number of cases that were diagnosed with HIV totaled approximately
53,200 in 2007, 47,500 in 2008, 45,000 in 2009 and 47,500 in 2010
in the United States. (Source: CDC HIV Surveillance Supplemental Report
2012;17 (No. 4) December 2012.) There were an estimated 37,600 new
HIV infections in 2014 alone. (Source: Singh S et al. (CDC). HIV incidence,
prevalence, and undiagnosed infections in men who have sex with men.
Presentation at Conference on Retroviruses and Opportunistic Infections,
2017, Seattle, WA.). It is estimated that 1,122,900 adults and adolescents
were living with HIV at the end of 2015. Of those, 162,500 (15%) had
not received a diagnosis. (Source: CDC. Monitoring selected national
HIV prevention and care objectives by using HIV surveillance data-United
States and 6 dependent areas-2015).
(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 Collin
County, Texas and across the State of Texas. As of December 31, 2001,
there had been 57,199 reported cases of AIDS in the State of Texas.
In 2008, 63,019 persons were reported to be living with HIV/AIDS in
Texas. This number has increased through December 31, 2016, with 85,807
people living with HIV across the state of Texas and 137,583 reported
to be living with HIV/AIDS in Texas. Collin County was listed as one
of the top 25 county with reported HIV/AIDS diagnoses in 2016 alone.
(Source: Tex. Dept. of State Health Services; See also Texas 2016
HIV Surveillance Report).
(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 department
of state health services 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. Between 2007 and 2008, the number of cases
of early latent syphilis reported to CDC increased 15.2 percent (from
10,768 to 12,401), while the number of cases of late and late latent
syphilis increased 9.3 percent (from 18,256 to 19,945). The total
number of cases of syphilis (all stages: P&S, early latent, late,
late latent, and congenital syphilis) reported to CDC increased 13.1
percent (from 40,921 to 46,277) between 2007 and 2008. In 2008, P&S
syphilis cases reported to CDC increased to 13,500 from 11,466 in
2007, an increase of 17.7 percent. The rate of P&S syphilis in
the United States in 2008 (4.5 cases per 100,000 population) was 18.4
percent higher than the rate in 2007 (3.8 cases per 100,000 population)
(Source: U.S. Centers for Disease Control, Sexually Transmitted Disease
Surveillance, 2008.) Moreover, the rate of reported cases of P&S
syphilis in the United States has increased from 2012 to 2016 by approximately
77%. The incidence of reported cases of P&S syphilis in 2012 was
15,979, 17,768 cases in 2013, 20,492 cases in 2014, 24,413 cases in
2015, and 28,309 cases in 2016. (Source: Division of STD Prevention,
National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention,
Centers for Disease Control and Prevention).
(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 department of state health services 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). In 2008, 336,742 cases of gonorrhea were reported in the United
States, a rate of 111.6 cases per 100,000 population, reflecting a
small decrease of 5.4 percent since 2007. Gonorrhea rates have remained
relatively stable over the past 12 years. Texas ranked 15th in the
nation in 2008 with 32,199 cases at a rate of 134.7 cases per 100,000
population. Thereafter, Texas ranked 17th in the nation in 2016 for
reported cases of gonorrhea. Texas experienced a 31% increase of reported
cases of gonorrhea between 2012 and 2016. In 2008, 1,210,523 chlamydial
infections were reported to CDC from 50 states and the District of
Columbia. This case count corresponds to a rate of 401.3 cases per
100,000 population, an increase of 9.2% compared with the rate of
367.5 in 2007. Over the past 20 years, from 1989 through 2008, the
rate of reported chlamydial infection increased from 102.5 to 401.3
cases per 100,000 population. Moreover, the rate of reported chlamydial
infection increased from 450.2 to 494.2 cases per 100,000 population
between the years of 2012 through 2016. Texas itself experienced a
12% increase between 2012 and 2016 of reported cases of chlamydial
infection. (Source: U.S. Centers for Disease Control, Sexually Transmitted
Disease Surveillance, 2008, 2016; See also 2016 Sexually Transmitted
Diseases Surveillance, Table 14, from the Division of STD Prevention,
National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention,
Centers for Disease Control and Prevention).
(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 adult motion
picture 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 businesses, 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 article is designed to prevent,
or who are likely to be witnesses to such conduct.
(22)
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.
(23)
It is reasonably believed that to better protect the public health,
safety, and welfare, it is necessary to adopt additional amendments
to this article.
(24)
Partially nude performances in sexually oriented 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 this article. (See Baby
Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir.
2002).)
(25)
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).)
(26)
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. Sept. 4, 2002); see also Texas Penal Code secs.
43.01 (“sexual conduct” and “sexual contact”)
and 43.02 (“prostitution”).)
(27)
In case study, 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.
(28)
Sexually oriented businesses have not complied with the “no
touch” provisions, but have flagrantly disregarded them and/or
have encouraged employees and customers to violate the “no touch”
provision.
(29)
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.
(30)
Compelling signage at the entrances of sexually oriented businesses
has not been effective in halting “no touch” violations.
(31)
In case study, the City of Arlington had to expend considerable law
enforcement resources to enforce the “no touch” provisions.
(32)
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).)
(33)
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).)
(34)
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).)
(35)
The city council reasonably believes that the licensing and permitting
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., 555 F.3d 512 (6th
Cir. 2009), rehearing, en banc denied, 2009 U.S. App. LEXIS 12994
(6th Cir. April 23, 2009).)
(36)
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.
(37)
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.
(38)
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 article.
(39)
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.
(40)
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 article. There is 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).)
(Ordinance 2018-03-05, sec. 2, adopted 3/20/18)
The following words, terms and phrases, when used in this article,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
Any place to which the public is permitted or invited wherein
coin-operated, slug-operated, or for any form of consideration, electronically,
electrically, or mechanically controlled still or motion pictures,
projectors, or other image-producing devices are maintained to show
images to one or more 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.
Any place at which any of the following activities regularly
occurs:
Inbound or outbound telephone or other audio communications
in which a topic or purpose of the communication between an occupant
of the premises and a third party is the discussion or description
of specified sexual activities or specified anatomical areas for consideration;
Video or audio broadcasting, whether live, delayed, by film,
by tape recording or otherwise, of specified sexual activities or
specified anatomical areas for consideration; or
Filming, taping or otherwise creating video or audio recordings
of specified sexual activities or specified anatomical areas, including
but not limited to, films, movies, video tapes, DVDs, audio tapes
or compact disks, of specified sexual activities or specified anatomical
areas that are broadcast, sold, manufactured or distributed for consideration.
A commercial establishment for which the primary business
is the 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, including:
Books, magazines, periodicals or other printed matter, or photographs,
films, motion pictures, DVDs, videocassettes 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 for birth control or for the prevention of sexually transmitted
diseases.
A nightclub, bar, restaurant, or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity or semi-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 adult type of photographic reproductions;
Offers a sleeping room for rent for a 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.
A commercial 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 semi-nude, or live performances which are characterized
by the exposure of specified sexual activities or specified anatomical
areas.
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 5.05.031;
Each individual who is an owner or operator of a sexually oriented business for which a license application is made under section 5.05.031, 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 5.05.031, 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 5.05.031, regardless of whether the individual’s name or signature appears on the application.
Reference to “this article,” “this chapter”
or “this ordinance” shall mean and refer to this ordinance
of the Code of Ordinances of the city, as amended.
The city administrator for the City of Lavon or the city
administrator’s designated agent.
The chief of police of the City of Lavon or the chief of
police’s designated agent.
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.
Any person who:
Is allowed to enter a sexually oriented business or any portion
of a sexually oriented business in return for the payment of an admission
fee, membership fee or any other form of consideration or gratuity;
Enters a sexually oriented business or any portion of a sexually
oriented business and purchases, rents or otherwise partakes of any
merchandise, goods, entertainment or other services offered therein;
or
Is a member of and on the premises of a sexually oriented business
operating as a private or membership club or a sexually oriented business
that reserves any portion of the premises of the sexually oriented
business as a private or membership club.
A person who performs any service on the premises of a sexually
oriented business on a full-time, part-time or contract basis, whether
or not the person is designated an employee, independent contractor,
agent or otherwise and whether or not the person is paid a salary,
wage or other compensation by an owner or operator of the sexually
oriented business. “Employee” does not include a person
exclusively on the premises for repair or maintenance of the premises
or equipment on the premises, or for the delivery of goods to the
premises.
An adult arcade, adult audio or video center, adult bookstore,
adult novelty store, adult video store, adult cabaret, adult motel,
adult motion picture theater, adult theater, escort agency, nude modeling
studio or any establishment whose primary business is the 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 its customers, and which is distinguished by or characterized by
an emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas. The term “enterprise”
shall include any premises for which a permit or license is required
under either or both of division 2 and 3 of this article. However,
the term “sexually oriented business” shall not be construed
to include:
Any business operated by or employing licensed psychologists,
licensed physical therapists, licensed athletic trainers, licensed
cosmetologists, or licensed barbers performing functions authorized
under the license held;
Any business operated by or employing licensed physicians or
licensed chiropractors engaged in practicing the healing arts; or
Any retail establishment whose major business is the offering
of wearing apparel for sale to customers.
Any employee of a sexually oriented business who performs
or engages in entertainment.
A permit issued by the chief of police to an entertainer
pursuant to this article.
Any act or performance, such as a play, skit, reading, revue,
fashion show, modeling performance, pantomime, role playing, encounter
session, scene, song, dance, musical rendition or striptease, that
involves the display or exposure of specified sexual activities or
specified anatomical areas. The term “entertainment” shall
include any employee or entertainer exposing any specified anatomical
areas or engaging in any specified sexual activities whatever in the
presence of customers.
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 which 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.
The city administrator, or his or her designee. The hearing
officer shall exercise those powers authorized under the Texas Local
Government Code and the Code of Ordinances of the city, as appropriate
in the furtherance of his or her duties.
A license issued to a licensee pursuant to this article.
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 owner or operator of a sexually oriented
business for which a license has been issued under this article, 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 article, 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 article, regardless of whether the individual’s name or
signature appears on the license application.
Any person, including an on-site manager, who supervises,
directs or manages any employee or other person who conducts business
on the premises of a sexually oriented business and/or performs certain
services including, but not limited to, the following:
Operating a cash register, cash drawer or other depository on
the premises of the sexually oriented business where cash funds or
records of credit card or other credit transactions are generated
in any manner by the operation of the sexually oriented business or
the activities at the premises of the sexually oriented business;
Displaying or taking orders from any customer for any merchandise,
goods, entertainment or other services offered on the premises of
the sexually oriented business;
Delivering or providing to any customer any merchandise, goods,
entertainment or other services offered on the premises of the sexually
oriented business;
Acting as an attendant to regulate entry, flow or traffic of
customers or other persons into the premises of the sexually oriented
business; or
Supervising or managing other person(s) in the performance of
any of the foregoing activities on the premises of the sexually oriented
business.
A permit issued by the chief of police to a manager pursuant
to this article.
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.
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.
Any person charged by an owner or operator of a sexually
oriented business with the responsibility for direct supervision of
the operation of the sexually oriented business and/or responsible
for monitoring and observing areas of the sexually oriented business
to which customers are admitted when the sexually oriented business
is open for business and/or when customers are admitted to the premises
of the sexually oriented business.
Impervious to the rays of light; not transparent; impenetrable
to sight.
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 a licensee, owner
or operator of the sexually oriented business.
The individual or natural person who is principally in charge
of the operations of a sexually oriented business.
The proprietor, if a sole proprietorship, or all general
partners if a partnership, or the corporation if a corporation, of
a sexually oriented business.
A current, valid permit issued by the chief of police or
building official pursuant to this article.
A person who holds a permit pursuant to this article.
An individual, proprietorship, partnership, corporation,
limited liability company, association or other legal entity.
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.
Any portion of the interior of a sexually oriented business
separated from any other portion of a sexually oriented business by
a wall, partition or other divider.
A business or commercial sexually oriented business that,
as one of its primary business purposes, offers for any form of consideration:
An adult arcade, adult audio or video center, adult bookstore,
adult novelty store or adult video store, adult cabaret, adult motel,
adult motion picture theater, adult theater, escort agency, nude modeling
studio or sexual encounter center, or other sexually oriented business
the primary business of which is the 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.
For purposes of this article, “primary business” means
25 percent or more of the items in inventory and/or floor space used
for the 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. Inventory shall be measured
with all titles or objects available on the premises for sale or rental,
including those that are identical being considered a separate title
or object. The term shall also mean any commercial sexually oriented
business that self-identifies as an adult arcade, adult audio or video
center, adult bookstore or adult video store, adult cabaret, adult
motel, adult motion picture theater, adult theater, escort agency,
nude modeling studio or sexual encounter center, regardless of whether
the percentage of items in inventory and/or floor space constitute
25 percent or more of the total items in inventory and/or floor space.
The term “sexually oriented business” shall not be construed
to include:
Any business operated by or employing a licensed psychologist,
licensed physical therapist, licensed athletic trainer, licensed cosmetologist,
licensed massage therapist, or licensed barber engaged in performing
functions authorized under the lawful license held;
Any business operated by or employing a licensed physician or
chiropractor engaged in practicing the healing arts;
Any business licensed as a tattoo studio or a body piercing
studio and was engaged in practices authorized under the license;
or
An activity conducted or sponsored:
By a proprietary school licensed by the state or a college,
junior college or university supported entirely or partly by taxation;
or
By a private college or university which maintains or operates
educational programs in which credits are transferable to a college,
junior college, or university supported entirely or partly by taxation;
and any activity conducted or sponsored by an entity identified in subsection (A) or (B) must be situated in a structure: (i) which has no sign or other advertising visible from the exterior of the structure indicating a nude or semi-nude person is available for viewing; and (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 or semi-nude model is on the premises at any one time.
Any of the following:
The increase in floor area occupied by the business of more
than 25 percent, as the floor area exists on the date of passage of
this article.
An individual who holds a temporary entertainer’s permit.
An entertainer’s permit that is valid for a reduced
period of time, pursuant to this article.
An individual who holds a temporary manager’s permit.
A manager’s permit that is valid for a reduced period
of time, pursuant to this article.
A permit that is valid for a reduced period of time, pursuant
to this article.
Pertaining to a sexually oriented business, means and includes
any of the following:
The sale, lease or sublease of the business;
The transfer of securities which 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
which 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 2018-03-05, sec. 3, adopted 3/20/18)
(a)
Adult
arcades;
(b)
Adult
audio or video centers;
(c)
Adult
bookstores, adult novelty stores or adult video stores;
(d)
Adult
cabarets;
(e)
Adult
motels;
(f)
Adult
motion picture theaters;
(g)
Adult
theaters;
(h)
Escort
agencies;
(i)
Nude
modeling studios; and
(j)
Sexual
encounter centers.
(Ordinance 2018-03-05, sec. 4, adopted 3/20/18)
(a)
A
person commits an offense if the person operates or causes to be operated
a sexually oriented business in any zoning district other than as
allowed by the city’s comprehensive zoning ordinance, as amended.
(b)
A
person commits an offense if the person causes or permits the operation,
establishment, substantial enlargement, or transfer of ownership or
control of a sexually oriented business within 1,000 feet of any of
the following:
(1)
A religious institution, church, synagogue, mosque, temple or structure
that is used primarily for religious worship and related religious
activities or real property owned by, or for the benefit of, a religious
organization that intends to use the property for such purposes if
such ownership has been registered with the city;
(2)
A public or private educational facility, including, but not limited
to, child day care facilities, nursery schools, preschools, kindergartens,
elementary schools, private schools, intermediate schools, junior
high schools, middle schools, high schools, vocational schools, secondary
schools, continuing education schools, special education schools,
junior colleges, colleges and universities; school includes the school
grounds and related athletic or other facilities regularly visited
by students;
(3)
A boundary of a zoning district zoned for residential uses under
the comprehensive zoning ordinance, an area designated as residential
on the city’s comprehensive plan, or a historic district as
designated by the city’s comprehensive zoning ordinance or comprehensive
plan;
(4)
A public park or recreational area which has been designated for
park or recreational activities, including but not limited to a park,
playground, nature trails, swimming pool, golf course, reservoir,
athletic field, basketball or tennis courts, pedestrian/ bicycle paths,
wilderness areas, or other similar public land within the city which
is under the control, operation, or management of a governmental entity;
(5)
The property line of a lot devoted to a residential use;
(6)
An entertainment business which is oriented primarily towards children
or family entertainment; or
(7)
A licensed premises, licensed pursuant to the Texas Alcoholic Beverage
Code (except premises holding a food and beverage certificate whose
primary business being operated on the premises is food service).
(c)
A
person commits an offense if he causes or permits the operation, establishment,
substantial enlargement, or transfer of ownership or control of a
sexually oriented business within 1,000 feet of another sexually oriented
business.
(d)
For the purposes of subsection (b), measurement must be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the property line or boundary of the premises where a sexually oriented business is operated or to be operated, to the nearest portion of a property line or boundary for the uses listed in subsection (b). The presence of a city, county, or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section.
(e)
For purposes of subsection (c), the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to the intervening structures or objects or political boundaries, from the nearest property line of each property sought to be used as a sexually oriented business. Presence of a city, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section.
(f)
Any
sexually oriented business lawfully operating prior to the effective
date of this article or the ordinance from which this article is derived
that is in violation of one or more subsections of this section shall
be deemed a nonconforming use. The nonconforming use will be permitted
to continue for a period not to exceed one year, unless sooner terminated
for any reason, including but not limited to suspension or revocation
of license, or voluntary discontinuance for a period of 30 days or
more. Such nonconforming uses shall not be increased, enlarged, extended,
or altered except that the use may be changed to a conforming use.
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 lawfully established and continually
operating at a particular location is the conforming use and the later
established business is nonconforming.
(g)
A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant of a renewal of the sexually oriented business license, of a use listed in subsection (b) 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 been revoked.
(h)
Exemption from location restrictions.
(1)
If the chief of police denies the issuance of a license to an applicant
because the location of the sexually oriented business is in violation
of any section of this article, then the applicant may, not later
than ten calendar days after receiving notice of the denial, file
with the city administrator a written request for an exemption of
the locational restrictions of this article.
(2)
If the written request is filed with the city administrator within
the ten calendar day limit, the city council shall consider the request.
The city administrator shall set a date for the hearing within sixty
(60) days from the date the written request is received, unless both
parties agree to a certain date beyond the 60 days.
(3)
A hearing by the council may proceed if a quorum of the council members
is present. The council shall hear and consider evidence offered by
any interested person. The normal rules of evidence do not apply.
(4)
The council may, in its discretion, grant an exemption from the locational
restrictions of this article if it makes the following findings:
(A)
That the location of the sexually oriented business will not have
a detrimental effect on nearby properties or be contrary to the public
safety or welfare;
(B)
That the location of the sexually oriented business will not downgrade
the property values or quality of life in the adjacent areas or encourage
the development of urban blight;
(C)
That the location of the sexually oriented business in the area will
neither be contrary to any program of neighborhood conservation nor
will it interfere with any efforts of urban renewal or restoration;
and
(D)
That all other applicable provisions of this article will be observed.
(5)
In making the findings specified in subsection (4), the council may take into account among other things:
(A)
Crime statistics and forecasts of the location and its 1,000-foot
radius maintained by the appropriate law enforcement agency;
(B)
Assessed property values for the location and properties within the
surrounding 1,000-foot radius, taking into account any decline or
increase in property values or rates of decrease or increase in property
values in relation to otherwise comparable properties;
(C)
Sales, leases, and vacancy rates of all property types within the
surrounding 1,000-foot radius in relation to otherwise comparable
properties; and
(D)
Any evidence regarding the award or denial of any public or private
grants for neighborhood conservation, urban renewal or restoration
for any property located within the surrounding 1,000-foot radius.
(6)
The city council shall grant or deny the exemption by a majority
vote of a quorum of the city council, no later than ten days after
the hearing. The failure to grant or deny the exemption no later than
ten days after the hearing and/or the failure to reach a majority
vote shall result in denial of the exemption. Disputes of fact shall
be decided on the basis of a preponderance of the evidence. The decision
of the council is final.
(7)
If the council grants the exemption, the exemption is valid for one
year from the date of the council’s action. Upon the expiration
of an exemption, the sexually oriented business is in violation of
the locational restrictions of this article until the applicant applies
for and receives another exemption pursuant to this subsection. If
the applicant applies for another exemption within ten days following
the expiration of the exemption, the city administrator shall set
a date for a hearing as set out in this subsection. If a timely request
is so filed, the existing license is deemed not to have expired until
the decision of the council on such request.
(8)
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’s action.
(9)
The grant of an exemption does not exempt the applicant from any
other provisions of this article other than the locational restrictions.
(Ordinance 2018-03-05, sec. 5, adopted 3/20/18)
Locational requirements of this article may be amended only
after compliance with the procedure required to amend the zoning code
or any applicable zoning ordinance. Other sections of this article
may be amended by vote of the city council.
(Ordinance 2018-03-05, sec. 6, adopted 3/20/18)
A person who operates or causes to be operated a sexually oriented
business without a valid license or in violation of locational requirements
of this article is subject to a suit for injunction as well as prosecution
for criminal violations.
(Ordinance 2018-03-05, sec. 7, adopted 3/20/18)
(a)
Any
person, firm, corporation, agent or employee who violates any of the
provisions of this article shall be guilty of a misdemeanor.
(b)
Each
day that a violation is permitted to exist shall constitute a separate
offense.
(c)
A
fine or penalty for the violation of any provision of this article
shall not exceed five hundred dollars ($500.00). However, a fine or
penalty for the violation of a rule or regulation that governs public
health and safety may not exceed two thousand dollars ($2,000.00).
(d)
The
refusal to issue a permit based on ineligibility shall not prohibit
the imposition of a criminal penalty and the imposition of a criminal
penalty shall not prevent the refusal to issue a permit based on ineligibility.
(e)
The
revocation or suspension of a permit shall not prohibit the imposition
of a criminal penalty and the imposition of a criminal penalty shall
not prevent the revocation or suspension of a permit.
(f)
Except
where otherwise specified, a culpable mental state is not required
for the commission of an offense under this article.
(Ordinance 2018-03-05, sec. 8, adopted 3/20/18)
