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HomeMy WebLinkAboutOrdinance No. 644 O DI ANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS AMENDING ARTICLE IV OF THE CITY OF THE COLONY CODE OF ORDINANCES RELATING TO SEXUALLY ORIENTED BUSINESSES BY AMENDING SECTION 4-62 RELATING TO DEFINITIONS; BY AMENDING SECTION 4-64 RELATING TO REQUIRED LICENSES; BY REPEALING SECTION 4-65(a)(5); BY AMENDING SECTION 4-65 RELATING TO THE ISSUANCE OF LICENSES; BY AMENDING SECTION 4-70 RELATING TO REVOCATION OF LICENSES; BY AMENDING SECTION 4-71 RELATING TO APPEAL; BY AMENDING SECTION 4-73 RELATING TO LOCATION OF SEXUALLY ORIENTED BUSINESSES; BY AMENDING SECTION 4-74 RELATING TO EXEMPTION FROM LOCATION RESTRICTIONS; BY AMENDING SECTION 4-79 RELATING TO REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS; PROVIDING A PENALTY OF A FINE NOT TO EXCEED THE SUM OF FIVE HUNDRED DOLLARS ($500.00) FOR EACH OFFENSE; PROVIDING A SEVERABILITY CLAUSE AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the United States Supreme Court's ruling in the case styled FW/PBS, Inc., DBA Paris Adult Bookstore II v. City of Dallas has necessitated the amendment of the City's sexually oriented businesses ordinance; and WHEREAS, the City's express purpose in adopting this ordinance is to regulate sexually oriented businesses to promote the health, safety, morals and general welfare of the citizens of the City; and WHEREAS, the provisions of this ordinance have neither the purpose nor the effect of imposing a limitation or restriction on the content of any communicative materials nor to restrict or deny access by adults to sexually oriented materials protected by the First Amendment. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the above preamble is hereby found to be true and correct by the City Council and is incorporated in its entirety herein. Section 2. That Section 4-62 of The Colony Code of Ordinances is amended by amending subsections (11), (13) and (18) by adding new subsections (23), (24), (25), (26), (27), (28), (29) and (30) and by providing that said subsections (23) through (30), inclusive, shall be codified in alphabetical order by the City's codifiers, which subsections shall read as follows: "(11) Licensee means 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 or a person licensed under this Article. (13) Nudity or a state of nudity means: a. the appearance of a human bare buttock, anus, male genitals, female genitals, pubic region or female breasts; or b. a state of dress which fails to opaquely cover a human buttock, anus, male genitals, female genitals, pubic region or areola of the female breast. (18) Sexually oriented business means an adult movie arcade or an adult video arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult movie theater, adult theater, escort agency, nude model studio, sexual encounter center, or other commercial enterprise 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. (23) Assessor and collector of taxes means the assessor and collector of taxes for the City. (24) City means the City of The Colony, Texas. (25) Council means the City Council of the City. (26) Child care facility means a building used as a day nursery, children's boarding home, child placing agency, or other place for the care or custody of children under fifteen years of age. -2- 0310/c (27) Applicant means a person who must apply for a license pursuant to this Article. (28) Church or place of religious worship means a building in which persons regularly assemble for worship, intended primarily for purposes connected with faith, or for propagating a particular form of belief. (29) Public park means a tract of land maintained by or at the direction of the federal, state, or a local government for the recreation and enjoyment of the general public. (30) Residential use means a single family, duplex, multiple family, or mobile home park, mobile home subdivision, and campground used as a residence." Section 3. That Section 4-64 of The Colony Code of Ordinances is hereby amended to read as follows: "Sec. 4-64. License required. (a) A person commits an offense if he operates a sexually oriented business without a valid license, issued by the City for the particular type of business. (b) The following are required to be licensed: (1) Ail owners, clerks, and employees of a sexually oriented business are required to be licensed to operate or work in said business. (2) All corporations, stockholders or directors of any sexually oriented business and their employees. (3) All partners and limited partners in any sexually oriented business and their employees. (4) All equity holders of any sexually oriented business and their employees. (5) All real property owners, stockholders, executive officers, corporations, partners, limited partners or equity holders and lien holders and their employees which are associated with any sexually oriented business requiring a license under this Article. -3- 0310/c (C) No person may work for any sexually oriented business without having on his or her person at all times while at work an appropriate identification card showing that he or she is currently licensed. Such identification shall be available at all times for inspection and shall be worn on the left breast of said employee during working periods. (d) An application for a sexually oriented business license must be made on a form provided by the chief of police. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. Applicants who must comply with Section 4-79 of this Article shall submit a diagram meeting the requirements of Section 4-79. All locational requirements must be approved by the chief of police within thirty (30) days from the time the application is filed. (e) The applicant for a sexually oriented business license must be qualified according to the provisions of this Article and the premises must be inspected and found to be in compliance with the law by the health department, building inspection department and fire department. The health department, building inspection department and fire department must complete their inspections and report their findings to the chief of police within thirty (30) days from the time the application is filed. (f) If a person who wishes to operate a sexually oriented business is an individual, he must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has an interest in the business must sign the application for a license as applicant and shall be considered a licensee if a license is granted. (g) The fact that a person possesses any other valid license required by law does not exempt him from the requirement of obtaining a sexually oriented business license. A person who operates a -4- 0310/c sexually oriented business and possesses another business license shall comply with the requirements and provisions of this Article as well as the requirements and provisions of this City's Charter when applicable. (h) Each applicant shall attach two copies of a recent photograph to his or her application form. (i) Each applicant shall, upon the filing of the application and payment of the filing fee, place signs (at least 24 inches x 36 inches in size) which provide notification and information specifically stating "SEXUALLY ORIENTED BUSINESS LICENSE APPLICATION PENDING" and the date on which the application was filed. All lettering on the signs must be at least 1 and 1/2 inches x 2 inches in size for each letter on the sign. The signs must be of sufficient quantities to be placed upon the property so as to identify it as being subject to a proposed sexually oriented business license. It shall be the duty of each applicant as to each particular application to erect said signs along all the property's public road or highway frontage so as to be clearly visible from the public road or highway. If a property does not have a public road or highway frontage, then signs shall be placed upon the closest available right-of-way and upon the property. One sign shall be erected for each three hundred-foot increment of each public road or highway frontage on said property existing or any part thereof. Said signs shall be erected not less than than fourteen (14) days after the filing of the application for the sexually oriented business license and remain erected until the application has been approved by the chief of police. (j) Every applicant for a sexually oriented business license shall give notice of the application by publication at his own expense in two (2) consecutive issues of a newspaper of general circulation published in Denton County, Texas. The notice shall be printed in 10-point boldface type and shall include: (1) the fact that a sexually oriented business license has been applied for; (2) the exact location of the place of business for which the permit is sought; (3) the names of each owner of the business and, if the business is operated under an assumed name, the trade name together with the names of all owners; and (4) if the applicant is a corporation, the names and titles of all officers. -5- 0310/c (k) An applicant for a renewal permit or an existing business at the time of the passage of this ordinance is not required to publish notice or meet the posting requirements of (i) and (j) above." Section 4. That Section 4-65(a)(5) of The Colony Code of Ordinances is hereby repealed in its entirety. The Code of Ordinances shall reflect that this section shall be reserved for expansion. Section 5. That Section 4-65 of The Colony Code of Ordinances is amended by amending subsection (a)(6) and by providing new subsections (a)(10), (c), (d) and (e), which shall read as follows: "(a)(6) The premises to be used for the sexually oriented business are not in compliance with applicable zoning laws or have not been approved by the City health department, the City fire department and the City building official as being in compliance with applicable laws and ordinances. (a)(10) An applicant has been employed in a sexually oriented business in a managerial capacity within the preceding twelve (12) months and has demonstrated an inability to operate or manage a sexually oriented business premises in a peaceful and law-abiding manner, thus necessitating action by law enforcement officers. (c) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant's spouse. (d) An applicant who has been convicted or whose spouse has been convicted of an offense listed in Subsection (a)(10) may qualify for a sexually oriented business license only when the time period required by Section 4(a)(10)(B) has elapsed. (e) The chief of police, upon receipt of the application outlined in Section 4-65(a), shall forward said application to the appropriate officials in the City's health, fire and building inspection departments for their review and inspections. Said departments shall be responsible for initiating the inspections as outlined in Section 4-64(e)." -6- 0310/c Section 6. That Section 4-67 of The Colony Code of Ordinances is amended by providing a new subsection (c), which shall read as follows: "(c) The provisions of this section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation." Section 7. That Section 4-70 of The Colony Code of Ordinances is amended by amending subsection (d), which shall read as follows: "(d) Subsection (b)(7) does not apply to adult motels as a ground for revoking the license unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in a public place or within public view." Section 8. That Section 4-71 of The Colony Code of Ordinances is hereby amended to read as follows: "If the chief of police denies the issuance of a license, or suspends or revokes a license, the chief of police shall send to the applicant, or licensee, by certified mail, return receipt requested, written notice of the action and the right to an appeal. Upon receipt of written notice of the denial, suspension, or revocation, the licensee whose application for a license has been denied or whose license has been suspended or revoked shall have the right to appeal to the State district court. The licensee shall bear the burden of proof in court." Section 9. That Section 4-73 of The Colony Code of Ordinances is hereby amended by amending subsections (a), (d) and (g) and by providing a new subsection (h), which shall read as follows: "(a) A person commits an offense if he operates or causes to be operated a sexually oriented business within 1,000 feet of: (1) a church or place of religious worship; (2) a public or private elementary or secondary school; (3) a child care facility; -7- 0310/c (4) a boundary of a residential district as defined by the zoning ordinance of the City; (5) a public park; (6) the property line of a lot devoted to a residential use as defined in this Article; or (7) another sexually oriented business which does not have a common entrance with one. (d) For the purposes of Subsection (a), 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 place of religious worship, or public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential district, or residential lot. (g) 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 or place of religious worship, public or private elementary or secondary 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. (h) All locational requirements of this section must be approved by the chief of police within thirty (30) days from the time the application is filed." Section 10. That Section 4-74(e) of The Colony Code of Ordinances is hereby amended to read as follows: "(e) The City Council shall grant or deny the exemption by a majority vote. 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. Decisions of the City Council are appealable to a district -8- 0310/c court of this County. Appeals from the final decision of the City must be made in writing to a district court of this County within thirty (30) days from the date of the final decision of the City Council. After thirty (30) days, all decisions of the City Council become final." Section 11. That Section 4-79 of The Colony Code of Ordinances is hereby amended by the addition of a new subsection (c), which shall read as follows: "(c) All locational requirements of this section must be approved by the chief of police within thirty (30) days from the time the application is filed." Section 12. If any section, article, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any persons or circumstances is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; and the City Council hereby declares it would have passed such remaining portions of the ordinance despite such invalidity, which remaining portions shall remain in full force and effect. Section 13. Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not to exceed Five Hundred Dollars ($500.00) and a separate offense shall be deemed committed upon each day during or on which a violation occurs or continues. Section 14. That this Ordinance shall become effective from and after its adoption and it is so ordered. PASSED AND APPROVED this ~ day of~ , 1990. ~ ~~ .~. ~~ City of The Colony, Texas City Secretary, City of The Colony, Texas [SEAL] -9- 0310/c First Reading: Second Reading: APPROVED AS TO FORM: City Attorney, City of The Colony, Texas -10- 0310/c