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HomeMy WebLinkAboutOrdinance No. 09-1819 CITY OF THE COLONY, TEXAS ORDINANCE NO. 09-1819 AN ORDINANCE OF THE CITY OF THE COLONY, TEXAS, AMENDING THE CODE OF ORDINANCES BY AMENDING CHAPTER 4 "AMUSEMENTS" BY REPEALING ARTICLE IV "SEXUALLY ORIENTED BUSINESSES" IN ITS ENTIRETY AND RESERVING ARTICLE IV FOR FUTURE USE AND BY AMENDING CHAPTER 13 "OFFENSES AND MISCELLANEOUS PROVISIONS" BY ADDING A NEW ARTICLE XII TITLED "SEXUAL ORIENTED BUSINESSES" TO PROVIDE REGULATIONS RELATING TO SEXUALLY ORIENTED BUSINESSES; PROVIDING A REPEALING CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING A PENALTY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, there is the potential for the location of sexually oriented businesses in the City of The Colony and such businesses require special supervision from the public safety agencies to protect and preserve the health, safety and welfare of the patrons of such businesses as well as the citizens of the City; and WHEREAS, the City Council of the City of The Colony finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of the casual nature; and WHEREAS, the concern over sexually transmitted diseases is a legitimate health concern of the City which demands reasonable regulations of sexually oriented businesses to protect the health and well-being of the citizens; and WHEREAS, licensing is a legitimate and reasonable means of accountability to ensure that operators of sexually oriented businesses comply with the reasonable regulations and to ensure that the operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation; and WHEREAS, 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 value; and WHEREAS, 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 and rural blight and downgrading the quality of life in the adjacent areas; and i WHEREAS, the City Council of the City of The Colony desires to minimize and control these adverse effects and thereby protect the health, safety and welfare of the citizens; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of surrounding neighborhoods and deter the spread of urban blight; and WHEREAS, convincing documented evidence and case law acknowledging the physiological and sexual distinction between male and female breasts has been reviewed; and WHEREAS, it is not the intent of the City Council of the City of The Colony to condone or legitimize the promotion of obscene material; and WHEREAS, the City Council of the City of The Colony recognizes that applicable state law prohibits the promotion of obscene materials, and the City Council expects and encourages state law enforcement officials to enforce state obscenity statutes against any such illegal activities in the City of The Colony; and WHEREAS, the City Council, as elected representatives of the citizens of the City of The Colony, has a duty to investigate the feasibility of adopting reasonable regulations to protect the citizens of the City from activities that have adverse effects which are harmful to the health, safety and general welfare of the citizenry; and WHEREAS, the City Council received a report and heard testimony from staff and attorneys at such public hearings regarding the secondary effects of such businesses, including increased crime, prostitution, drug use and other illegal activities, and depreciation of property values; and WHEREAS, the City Council desires to minimize and control the adverse secondary effects associated with sexually oriented businesses and thereby protect the health, safety and welfare of the citizenry, preserve the quality of life, preserve property values and the character of surrounding neighborhoods and to deter the spread of urban blight; and WHEREAS, it is not the intent of this ordinance or any previously enacted ordinance to suppress or limit any speech activities protected by the First Amendment to the United States Constitution, but to enact a content neutral, reasonable time, place and manner regulation that effectively addresses the harmful secondary effects associated with sexually oriented businesses; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: SECTION 1. That the Code of Ordinances of the City of The Colony, Texas ("City") be, and the same is, hereby amended by amending Chapter 4, "Amusements" by repealing Article IV, "Sexually Oriented Business" in its entirety and reserving Article IV for future use and by amending Chapter 13 "Offenses and Miscellaneous Provisions" by adding a new Article XII titled "Sexual Oriented Businesses" to provide regulations relating to sexually oriented businesses, which shall read as follows: 2 "Chapter 13 OFFENSES AND MISCELLANEOUS PROVISIONS ARTICLE XII. SEXUALLY ORIENTED BUSINESSES Sec. 13-121. Purpose and intent. (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 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 not 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 the distributors and exhibitors of sexually oriented entertainment to their intended market. (b) The findings contained in the preamble of this ordinance are determined to be true and correct and are adopted as part of this ordinance. Sec. 13-122. Findings. (a) The following studies and reports regarding the adverse secondary effects associated with sexually oriented businesses have been reviewed by City staff and presented to and made available for review by the City Plan Commission and the City Council: (1) A report prepared by the Amarillo, Texas Planning Department entitled "A Report on Zoning and Other Methods of Regulating Adult Entertainment in Amarillo"; (2) A report prepared by the Beaumont, Texas Planning Department entitled "Regulation of Adult Uses"; (3) "A Report on the Secondary Impact of Adult Use Businesses in the City of Denver," prepared by multiple city departments for Denver City Council; (4) "Interoffice Correspondence; Subject, Documentation of Secondary Effects of Sexually Oriented Businesses," Bruce W. McClendon, Director of Planning, Fort Worth; (5) A report by Richard McCleary, Ph.D., and James W. Meeker, J.D., Ph.D., entitled "Final Report to the City of Garden Grove: The Relationship Between Crime and Adult Business Operations on Garden Grove Boulevard"; 3 (6) A report prepared by the Indianapolis, Indiana Department of Metropolitan Development Division of Planning entitled "Adult Entertainment Businesses in Indianapolis: An Analysis"; (7) "A Study of Sexually Oriented Businesses in Kansas City," by Eric Damian Kelly, FAICP, and Connie B. Cooper, FAICP, Kansas City, Missouri; (8) A report prepared by the Los Angeles, California Department of City Planning entitled "Study of the Effects of the Concentration of Adult Entertainment Establishments in the City of Los Angeles"; (9) A report by the Newport News, Virginia Department of Planning and Development entitled "Adult Use Study"; (10) "Adult Entertainment Study," prepared by the Department of City Planning, New York City, New York; (11) A report by the Oklahoma City, Oklahoma Community Development Department Planning Division entitled "Adult Entertainment Businesses in Oklahoma City: A Survey of Real Estate Appraisers"; (12) "Adult Business Study" by City of Phoenix, Arizona Planning Department; (13) "Survey of Appraisers in Monroe County," New York; (14) "Effects on Surrounding Area of Adult Entertainment Businesses in Saint Paul," City of Saint Paul Division of Planning, Department of Planning and Management; and Community Crime Prevention Project, Minnesota Cities Crime Control Planning Board; (15) A report of the Seattle, Washington Department of Construction and Land Use entitled "Directors Report: Proposed Land Use Code Text Amendment-Adult Cabarets"; (16) A memorandum from the Assistant Chief of Police of the City of Tucson, Arizona to the City Prosecutor entitled "Adult Entertainment Ordinance"; (17) A report of the Whittier, California Planning Department Staff entitled "Amendment to Zoning Regulations; Adult Business in C-2 Zone with Conditional Use Permit"; (18) National Law Center for Children and Families, "NLC Summaries of SOB Land Use Studies"; (19) "Everything You Always Wanted to Know about Regulating Sex Businesses," Planning Advisory Services Report, American Planning Association, Eric Damian Kelly, FAICP and Connie B. Cooper, FAICP; 4 (20) Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses, Hubert H. Humphrey, III, Attorney General, State of Minnesota; (21) Survey of Appraisers Fort Worth & Dallas, "Effects of Land Uses on Surrounding Property Values," Duncan Associates, Eric Damien Kelly, FAICP, and Connie B. Cooper, FAICP; and (22) Study commissioned by Texas City Attorney's Association titled Part I: "A Survey of Texas Appraisers - Secondary Effects of Sexually-Oriented Businesses on Market Values," authored by Connie B. Cooper, FAICP, and Eric Damien Kelly, Ph.D.; and Part II: "Crime-Related Secondary Effects - Secondary Study of `Off-Site' Sexually-Oriented Businesses," authored by Richard McCleary, Ph.D. Such studies differentiate between the secondary effects of sexually oriented businesses that provide on-site entertainment and those that are retail facilities that sell goods intended for off-site consumption. (b) Based on the secondary effects studies, testimony, case law and other information before it, the City Council has made the following legislative findings of fact: (1) That certain conduct occurring on the premises of sexually oriented businesses is detrimental to the public health, safety and general welfare of the citizens of the City and, therefore, such conduct must be regulated; (2) That sexually oriented businesses are associated with and promote prostitution, illegal drug use and other criminal activity that constitute an immediate threat to the public peace, health, morals and safety; (3) That regulation of sexually oriented businesses is necessary because in the absence of such regulation, significant criminal activity, including prostitution, illegal drug use and disruptive behavior and high-risk sexual conduct that may result in health hazards, has historically and regularly occurred; (4) That sexually oriented businesses have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and downgrading of property values; these deleterious effects create a legitimate concern of the City to protect property values, business interests and generally protect the City from urban blight associated with sexually oriented businesses; (5) That sexually oriented businesses have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to urban blight; 5 (6) That sexually oriented videos and films shown in sexually oriented video viewing booths are available for viewing, purchase or rental in other businesses which are less harmful to the health, safety and welfare of the community, and therefore sexually oriented video viewing booths should be prohibited in favor of other venues; (7) That the secondary effects precipitated by establishment of a sexually oriented business can be substantially mitigated by requiring separation of the sexually oriented business from residential uses and places of public assembly and from one another; (8) That retail-only sexually oriented businesses with no on-premises entertainment have deleterious effects on surrounding commercial, residential and public properties by causing increased crime and adversely affecting property values and the marketability of surrounding properties; (9) That, as a consequence of greater visual impacts and impacts on property values, distances separating sexually oriented businesses from residential uses, places of assembly and educational institutions and other land uses should be greater than the normal distances between commercial establishments in the city; and (10) That certain sexually oriented businesses involving touching between employees and clients (sexual encounter center, sexually oriented entertainment studio, sexually oriented motels, sexually oriented video viewing arcades, bath houses, body painting studios, and massage parlors) promote prostitution and other criminal behavior and thus the touching between employees and clients of a sexually oriented business should be prohibited. (c) 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 6 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 that: (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 article 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) Engaging in physical contact at a sexually oriented business is not a form of expression protected by the First Amendment; (7) 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; (8) Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS (acquired immunodeficiency syndrome) caused by the 7 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; (9) As of December 31, 2001, there have been 57,199 reported cases of AIDS in the State of Texas; (10) 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; (11) 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; (12) 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)]; (13) 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; (14) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts; (15) 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; (16) Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view "sexually oriented" films; (17) Numerous studies and reports have determined that areas surrounding sexually oriented businesses experience increased criminal activity, including increased property crimes, violent crimes, and sex crimes; (18) Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect substantial governmental concerns; 8 (19) 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; (20) 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; (21) 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; (22) 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; (23) 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; (24) 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)]; (25) 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; (26) It is reasonably believed that to better protect the public health, safety, and welfare, it is necessary to adopt additional amendments to this chapter; 9 (27) 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)]; (28) 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)]; (29) 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")]; (30) 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. (31) 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. (32) Compelling signage at the entrances of Sexually Oriented Businesses has not been effective in halting "no touch" violations. (33) The City of Arlington has had to expend considerable law enforcement resources to enforce the "no touch" provisions. (34) 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)]; (35) 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)]; 10 (36) 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)]; (37) 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)]; (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 ordinance; (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 of The Colony; and (40) The findings noted in Subsections (1) through (39) raise substantial governmental concerns. Sec. 13-123. Definitions. The following words, terms and phrases when used in this article, shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning: Adult arcade 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 the depicting or describing of "specified sexual activities" or "specified anatomical areas." Adult cabaret means a nightclub, bar, restaurant, or similar commercial establishment which regularly features: (1) Persons who appear in a state of nudity; or (2) Live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or (3) Films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas." Adult motel means a hotel, motel or similar commercial establishment which: (1) 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 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; or (2) Offers a sleeping room for rent for a period of time that is less than ten hours; or (3) Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten hours. Adult motion picture theater means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas. Adult theater means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or seminudity or live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities." Applicant means a person who must apply for a license pursuant to this article. Chief of police means the chief of police of the city or his designated agent. 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 15 years of age. 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. Escort 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. Escort agency means 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. Establishment means and includes any of the following: 12 (1) The opening or commencement of any sexually oriented business as a new business; (2) The conversion of any existing business, whether or not a sexually oriented business, to any sexually oriented business; (3) The addition of any sexually oriented business to any other existing sexually oriented business; or (4) The relocation of any sexually oriented business. 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. Media, Sexual Oriented means magazines, books, videotapes, movies, slides, CD's, DVD's or other devices used to record computer images, or other media which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to "Specified sexual activities" or "specified anatomical areas". Media Store, Sexually Oriented means an establishment that rents and/or sells sexually oriented media, and that meets any of the following three tests: (1) More than forty percent (40%) of the gross public floor area is devoted to sexually oriented media; (2) More than forty percent (40%) of the stock in trade consists of sexually oriented media; or (3) It advertises or holds itself out in any forum as a "XXX", "adult" or "sex" business, or otherwise as a sexually oriented business, other than adult cabaret, adult motion picture theater or adult theater. Nude model studio 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. Nudity or a state of nudity means: (1) The appearance of a human bare buttock, anus, male genitals, female genitals, pubic region or female breasts; or (2) 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. 13 Person means an individual, proprietorship, trust, partnership, corporation, association, or other legal entity. Public park means a tract of land maintained by or at the direction of the federal, state, or a local government for the recreational use and enjoyment of the general public. Principal business means an establishment having a 20 percent or greater interest of its stock and trade in books, magazines and other periodicals of which such books, magazines and other periodicals are distinguished or characterized by their emphasis on matters depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," or a 20 percent or greater interest in other sexually related activities as defined by this article. Residential use means a single-family, duplex, multiple-family, or mobile home park, mobile home subdivision, and campground used as a residence. School means any public or private nursery, preschool, day care center, learning center, elementary or secondary school. Seminude means 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. Sex shop means an establishment offering goods for sale or rent and that meet any of the following tests: (1) It offers for sale items from any two (2) of the following categories: sexually oriented media; lingerie; leather goods marketed or presented in a context to suggest their use for sadomasochistic practices; sexually oriented novelties; and the combination of such items constitute more than ten percent (10%) of its stock in trade or occupies more than 10 percent (10%) of its floor area; (2) More than five percent (5%) of its stock in trade consists of sexually-oriented toys or novelties; or (3) More than five percent (5%) of its gross public floor area is devoted to the display of sexually oriented toys or novelties. Sexual encounter center means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration: (1) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or (2) Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or seminude. 14 Sexually oriented business means an inclusive term used to describe collectively the following businesses: adult arcade, sexually oriented media store, adult cabaret, adult motel, adult motion picture theatre, adult theatre, escort agency, sex shop, nude model studio, or sexual encounter center. Specified anatomical areas include: (1) Less than completely and opaquely covered human genitals, pubic region, or the areola or nipple of the female breasts; and (2) Human male genitals in a discernibly turgid state, even if completely and opaquelt covered; and (3) Areas of the human anatomy included in the definition of "nudity or state of nudity." Specified sexual activities means acts of human masturbation, sexual intercourse, or sodomy. These activities include, but are not limited to the following: bestiality, erotic or sexual stimulation with objects or mechanical devices, acts of human analingus, cunnilingus, fellatio, flagellation, masturbation, sadism, sadomasochism, sexual intercourse, sodomy, or any excretory functions as part of or in connection with any of the activities set forth above with any person on the premises. This definition shall include apparent sexual stimulation of another person's genitals whether clothed or unclothed. Substantial enlargement of a sexually oriented business means the increase in floor area occupied by the business by more than 20 percent, as the floor area exists on the effective date of this article. Transfer of ownership or control of a sexually oriented business means and includes any of the following: (1) The sale, lease, or sublease of the business; (2) The transfer of securities or other ownership interest which constitute a direct, indirect, legal, equitable or beneficial controlling interest in the business, whether by sale, exchange, or similar means; or (3) The establishment of a trust, gift, or other similar 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 hereof, who shall have notified the chief of police 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. 15 Sec. 13-124. Classification. Sexually oriented businesses are classified as follows: (1) Adult arcades; (2) Sexually oriented media store; (3) Adult cabarets; (4) Adult motels; (5) Adult motion picture theaters; (6) Adult theaters; (7) Escort agencies; (8) Nude modeling studios; (9) Sexual encounter centers; and/or (10) Sex shops. Sec. 13-125. 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 sexually oriented business. (b) An individual person who wishes to operate a sexually oriented business must sign the application for a license as an applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a twenty percent (20%) or greater interest in the business must sign the application for a license as an applicant. Each applicant must be qualified under section 13-126 and each applicant shall be considered a licensee if a license is granted. (c) 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 13-140 of this article shall submit a diagram meeting the requirements in section 13-140. All locational requirements must be approved by the chief of police within 30 days from the time the application is filed. 16 (d) 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 30 days from the time the application is filed. (e) 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. (f) 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 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 the city's Charter when applicable. (g) Each applicant shall attach two copies of a recent photograph to his application form. (h) An applicant for a license issued under this article for a location not previously licensed or permitted shall, not later than the 60th day before the date the application is filed, prominently post an outdoor sign at the location stating that a sexually oriented business is intended to be located on the premises and providing the name and business address of the applicant. The sign must be at least 24 by 36 inches in size and must be written in lettering at least two inches in size. The city may require the sign to be both in English and a language other than English if it is likely that a substantial number of the residents in the area speak a language other than English as their familiar language. 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 300-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 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. (i) Every applicant for a sexually oriented business license shall give notice of the application by publication at his own expense in two 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; 17 (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. (j) An applicant for a renewal permit is not required to publish notice or meet the posting requirements of subsections (i) and 0) above. (k) The owner shall provide a list of all employees who will be employed by the sexually oriented business to the chief of police. This list shall be maintained on file by the police department. It shall be the duty of the owner to ensure that an updated list of the employees is provided to the chief of police within ten (10) days following any change in employees. Failure to provide an updated list to the chief of police shall result in suspension of license pursuant to section 13-130. Sec. 13-126. Issuance of license. (a) The chief of police shall approve the issuance of a license to an applicant within 30 days after receipt of an application unless the chief of police finds one or more of the following to be true: (1) An applicant is under 18 years of age. (2) An applicant or an applicant's spouse is overdue in his payment to the city of taxes, fees, fines, or penalties assessed against him or imposed upon him in relation to a sexually oriented business. (3) An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form. (4) An applicant or an applicant's spouse has been convicted of a violation of a provision of this article, other than the offense of operating a sexually oriented business without a license, within two years immediately preceding the application. The fact that a conviction is being appealed shall have no effect. (5) 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; (6) The license fee required by this article has not been paid; 18 (7) An applicant or the proposed establishment is in violation of or is not in compliance with sections 13-128, 13-133, 13-134, 13-136, 13-137, 13-138, 13- 139, 13-140, or 13-141. (8) An applicant or an applicant's spouse has been convicted of a crime: a. Involving: 1. Any of the following offenses as described in V.T.C.A., Penal Code ch. 43: (i) Prostitution; (ii) Promotion of prostitution; (iii) Aggravated promotion of prostitution; (iv) Compelling prostitution; (v) Obscenity; (vi) Sale, distribution, or display of harmful material to minor; (vii) Sexual performance by a child; (viii) Possession or promotion of child pornography; 2. Any of the following offenses as described in V.T.C.A., Penal Code ch. 21: (i) Public lewdness; (ii) Indecent exposure; (iii) Indecency with a child; 3. Sexual assault or aggravated sexual assault as described in V.T.C.A., Penal Code ch. 22; 4. Prohibited sexual conduct, enticing a child, or harboring runaway child as described in V.T.C.A., Penal Code ch. 25; 5. Criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses; b. For which: 1. Less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense; 2. Less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or 3. Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is 19 the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24-month period. (9) An applicant has been employed in a sexually oriented business in a managerial capacity within the preceding 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. (b) The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. The license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time. (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)(8)(a) may qualify for a sexually oriented business license only when the time period required by subsection (a)(8)(b) has elapsed. (e) The chief of police, upon receipt of the application outlined in section 13-126(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 13-125(d). Sec. 13-127. Fees. The annual nonrefundable fee for a sexually oriented business license as established by resolution of the city council shall be submitted with the application for a license. In the event a license is not issued after an application is submitted, or if a license is revoked after it is issued, no part of the fee shall be refunded. Sec. 13-128. Inspection. (a) An applicant or licensee shall permit representatives of the police department, health department, fire department, housing and neighborhood services department, and building inspection department to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law, at any time it is occupied or open for business. (b) A person who operates a sexually oriented business or his agent or employee commits an offense if he refuses to permit a lawful inspection of the premises by a representative of the above described departments at any time it is occupied or open for business. (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. 20 Sec. 13-129. Expiration of license. (a) Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in section 13-125. Application for renewal should be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the license will not be affected. (b) When the chief of police denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. If, subsequent to denial, the chief of police finds that the basis for denial of the renewal license has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date denial became final. Sec. 13-130. Suspension. The chief of police shall suspend a license for a period not to exceed 30 days if he determines that a licensee or an employee of a licensee has: (1) Violated or is not in compliance with sections 13-125(k), 13-128, 13-133, 13-134, 13-136, 13-137, 13-138, 13-139, 13-140, or 13-141 of this article; (2) Engaged in excessive use of alcoholic beverages while on the sexually oriented business premises; (3) Refused to allow an inspection of the sexually oriented business premises as authorized by this article; (4) Knowingly permitted gambling by any person on the sexually oriented business premises; or (5) Demonstrated inability to operate or manage a sexually oriented business in a peaceful and law-abiding manner thus necessitating action by law enforcement officers. Sec. 13-131. Revocation. (a) The chief of police shall revoke a license if a cause of suspension in section 13-130 occurs and the license has been suspended within the preceding 12 months. (b) The chief of police shall revoke a license if he determines that: (1) A licensee gave false or misleading information in the material submitted to the chief of police during the application process; (2) A licensee or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises; 21 (3) A licensee or an employee has knowingly allowed prostitution on the premises; (4) A licensee or an employee knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended; (5) A licensee has been convicted of an offense listed in section 13-126(a)(8)(a) for which the time period required in section 13-126(a)(8)(b) has not elapsed; (6) On two or more occasions within a 12-month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in section 13-126(a)(8)(a), for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offense was committed; (7) A licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in or on the licensed premises. The term "sexual contact" shall have the same meaning as it is defined in V.T.C.A., Penal Code § 21.01; or (8) A licensee is delinquent in payment to the city for hotel occupancy taxes, ad valorem taxes, or sales taxes related to the sexually oriented business. (c) The fact that a conviction is being appealed shall have no effect on the revocation of the license. (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. (e) When the chief of police revokes a license, the revocation shall continue for one year and the licensee shall not be issued a sexually oriented business license for one year from the date revocation became effective. If, subsequent to revocation, the chief of police finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license was revoked under subsection (b)(5), an applicant may not be granted another license until the appropriate number of years required under section 13-126(a)(8)(b) has elapsed since the termination of any sentence, parole, or probation. Sec. 13-132. Appeal. 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 district court. The licensee shall bear the burden of proof in court. 22 Sec. 13-133. Transfer of license. A licensee including any applicant for a license shall not transfer his license or any part of his ownership or control of a sexually oriented business to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application. Sec. 13-134. Location of sexually oriented businesses. (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; (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. (b) 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 located within 1,000 feet of another sexually oriented business. (c) A person commits an offense if he 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. (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. (e) For purposes of subsection (b) of this section, 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. 23 (f) Any sexually oriented business operating in violation of subsections (a), (b), or (c) 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 or voluntarily discontinued 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 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 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 subsection 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 30 days from the time the application is filed. Sec. 13-135. Exemptions from location restrictions. (a) If the chief of police denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of section 13-134 of this article, 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 section 13-134. (b) 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. (c) 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. (d) The city council may, in its discretion, grant an exemption from the locational restrictions of section 13-134 if it makes the following findings: (1) That 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; (2) That the granting of the exemption will not violate the spirit and intent of this article of the city Code; 24 (3) That the location of the proposed sexually oriented business will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban blight; (4) That 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 (5) That all other applicable provisions of this article will be observed. (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 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 30 days from the date of the final decision of the city council. After 30 days, all decisions of the city council become final. (f) 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 section 13-134 until the applicant applies for and receives another exemption. (g) 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. (h) The grant of an exemption does not exempt the applicant from any other provisions of this article other than the locational restrictions of section 13-134. (i) The following are exempt from regulation under this chapter: (1) A bookstore, movie theater, or video store, unless that business is an adult bookstore, adult movie theater, or adult video store the primary purpose of which is the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer; (2) A business operated by or employing a licensed psychologist, licensed physical therapist, licensed athletic trainer, licensed cosmetologist, or licensed barber engaged in performing the functions authorized under the license held; or (3) A business operated by or employing a licensed physician or licensed chiropractor engaged in practicing the healing arts. Sec. 13-136. Additional regulations for escort agencies. (a) An escort agency shall not employ any person under the age of 18 years. 25 (b) A person commits an offense if he acts as an escort or agrees to act as an escort for any person under the age of 18 years. Sec. 13-137. Additional regulations for nude model studios. (a) A nude model studio shall not employ any person under the age of 18 years. (b) A person under the age of 18 years commits an offense if he appears in a state of nudity in or on the premises of a nude model studio. It is a defense to prosecution under this subsection if the person under 18 years was in a restroom not open to public view or persons of the opposite sex. (c) A person commits an offense if he appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude model studio premises which can be viewed from the public right-of-way. (d) A nude model studio shall not place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception room open to the public. Sec. 13-138. Additional regulations for adult theaters and adult motion picture theaters. (a) A person commits an offense if he knowingly allows a person under the age of 18 years to appear in a state of nudity in or on the premises of an adult theater or adult motion picture theater. (b) A person under the age of 18 years commits an offense if he knowingly appears in a state of nudity in or on the premises of an adult theater or adult motion picture theater. (c) It is a defense to prosecution under subsections (a) and (b) of this section if the person under 18 years was in a restroom not open to public view or persons of the opposite sex. Sec. 13-139. Additional regulations for adult motels. (a) Evidence that a sleeping room in a hotel, motel, or similar commercial establishment has been rented and vacated two or more times in a period of time that is less than ten hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this article. (b) A person commits an offense if, as the person in control of a sleeping room in a hotel, motel, or similar commercial establishment that does not have a sexually oriented business license, he rents or subrents a sleeping room to a person and, within ten hours from the time the room is rented, he rents or subrents the same sleeping room again. (c) For purposes of subsection (b) of this section, the terms "rent" or "subrent" mean the act of permitting a room to be occupied for any form of consideration. 26 Sec. 13-140. Regulations pertaining to exhibition of sexually explicit films or videos. (a) A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises in a viewing room of not less than one 150 square feet of floor space, a film, video cassette, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements: (1) Upon application for a sexually oriented license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed 32 square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram shall be oriented to the north or to some designated street or object and shall be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches. The chief of police may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. (2) The application shall be sworn to be true and correct by the applicant. (3) No alteration in the configuration or location of a manager's station may be made without the prior approval of the chief of police or his designee. (4) It is the duty of the owners and operators of the premises to ensure that at least one employee is on duty and situated in each manager's station at all times that any patron is present inside the premises. (5) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station. No viewing area shall have a door, half-door, curtain, portal partition or other divider unless at least one side is completely open to an adjacent public room and a manager's station so that the area inside is visible to persons in the adjacent public room and a manager's station. 27 (6) It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in subsection (5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times that any patron is present in the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection (1) of this section. (7) The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than one footcandle as measured at the floor level. (8) It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above, is maintained at all times that any patron is present in the premises. (b) A person having a duty under subsections (1) through (8) of subsection (a) above commits an offense if he knowingly fails to fulfill that duty. (c) All locational requirements of this section must be approved by the chief of police within 30 days from the time the application is filed. Sec. 13-141. Display of sexually explicit material to minors. (a) A person commits an offense if, in a business establishment open to persons under the age of 17 years, he 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 region, buttocks, or female 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) In this section "display" means to locate an item in such a manner that, without obtaining assistance from an employee of the business establishment: (1) It is available to the general public for handling and inspection; or 28 (2) The cover, outside packaging, or contents of the item is visible to members of the general public. Sec. 13-142. Enforcement. (a) Any person, firm, corporation, agent or employee thereof who violates section 13-134 of this article shall be guilty of a Class C misdemeanor, and upon conviction thereof, shall be fined an amount not to exceed Two Thousand Dollars ($2,000) for each offense and a separate offense shall be deemed committed upon each day during on or which a violation occurs. (b) Any person, firm, corporation, agent or employee thereof who violates a provision of this article, other than section 13-134, shall be guilty of a Class C misdemeanor, and upon conviction thereof, shall be fined an amount not to exceed Five Hundred Dollars ($500) for each offense and a separate offense shall be deemed committed upon each day during on or which a violation occurs. Sec. 13-143. Injunction. A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of section 13-134 of this article is subject to a suit for injunction as well as prosecution for criminal violations." SECTION 2. That all provisions of the ordinances of the City of The Colony in conflict with the provisions of this Ordinance be and the same are hereby, repealed, and all other provisions of the ordinances of the City of The Colony not in conflict with the provisions of this ordinance shall remain in full force and effect. SECTION 3. That should any sentence, paragraph, subdivision, clause, phrase or section of this Ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this Ordinance as a whole or any part or provision thereof other than the part thereof decided to be unconstitutional, illegal, or invalid. SECTION 4. An offense committed before the effective date of this ordinance is governed by prior law and the provisions of the Ordinances of the City of The Colony, as amended, in effect when the offense was committed and the former law is continued in effect for this purpose. SECTION 5. That any person violating any of the provisions or terms of this Ordinance shall be subject to the same penalty as provided for in the Code of Ordinances of the City of The Colony as hereto amended and upon conviction shall be punished by a fine not to exceed the sum of Five Hundred Dollars ($500.00) except, however, where a different penalty has been established by law for such offense which is a violation of any provision of law that governs fire safety, zoning, or public health and sanitation, the penalty shall be a fine not to exceed the sum of Two Thousand Dollars ($2,000.00) for each offense. SECTION 6. This ordinance shall become effective from and after its passage and the publication of the caption as the law and charter in such cases provide. 29 PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS THIS 20t` day of July, 200 Jo MCCou , Mayor ATTEST.- x, ie Wilson, City Secretary r APPROVED AS TO FORM: t i iz j)Y Ro ert . Haler, C- Attorny /P (REH/JJG/3770617-09-09) 30