Loading...
04-88-Ordinance-Regulating Sexually Oriented Commerical Activites-04/04/1988ORDINANCE 04-88 AN ORDINANCE OF THE CITY OF SANDER, TEXAS, REGULATING SEXUALLY ORIENTED COMMERCIAL ACTIVITIES: PROVIDING DEFINITIONS: PROVIDING FOR THE ISSUING OF PERMITS FOR SEXUALLY ORIENTED BUSINESSES, REGULATING ADVERTISING OR DISPLAY OF A SEXUALLY ORIENTED COMMERCIAL ACTIVITY; PROHIBITING SEXUALLY ORIENTED COMMERCIAL ACTIVITIES NEARER THAN ONE THOUSAND (1,000) FEET FROM THE NEAREST PROPERTY LINE OF ANY LINE IN ANY RESIDENTIAL ZONE, OR ANY PUBLIC, PRIVATE, OR PAROCHIAL SCHOOL, LIBRARY, PARK, PLAYGROUND, OR OTHER RECREATIONAL FACILITIES, WHETHER COMMERCIAL OR NONPROFIT, IN ANY OTHER ZONE, OR NEARER THAN ONE THOUSAND (11000) FEET FROM THE NEAREST PROPERTY LINE OF ANY CHURCH, CONVENT, MONASTERY, SYNAGOGUE, OR OTHER SIMILAR PLACE OF RELIGIOUS WORSHIP; PROVIDING A SEVERABILITY CLAUSE: PROVIDING A PENALTY OF FINE NOT TO EXCEED THE SUM OF ONE THOUSAND DOLLARS ($1,000.00) FOR THE VIOLATION OF SECTION IV(l) OF THIS ORDINANCE, AND A SEPARATE OFFENSE SHALL BE DEEMED COMMITTED EACH DAY DURING OR ON WHICH AN OFFENSE OCCURS OR CONTINUES: PROVIDING A PENALTY OF FINE -OF TWO HUNDRED DOLLARS ($200.00) IN A VIOLATION OF ANY SECTION OF THIS ORDINANCE OTHER THAN SECTION IV(1) AND A SEPARATE OFFENSE SHALL BE DEEMED COMMITTED EACH DAY DURING OR ON WHICH A VIOLATION OCCURS OR CONTINUES, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, ,The City Council of the City of Sanger, Texas makes the following findings with regard to sexually oriented establish- ments: (1) Section 243,007 of the Local Governmental Code authorizes general law cities to permit with regard to sexually oriented establishments. (2) Article 1015 of Vernon's Civil Statutes of the State of Texas authorizes general law cities to enforce all ordinances necessary to.protect health, life, and property, and to preserve the good government, order, and security of such cities and their inhabitants. (3) Sexually oriented businesses require special supervision from the public. safety agencies of the city in order to protect and preserve the health, safety, and welfare of the patrons of such businesses as well as the citizens of the city. (4) The City ,Council finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature. (5) The concern over. sexually transmitted disease is a legitimate health concern of the city which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of the citizens. -1- (6) The issuing of permits is a legitimate and reasonable means of accountability to ensure that operators of sexually oriented businesses comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation. (7) There is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values. (8) The City Council further finds that the police in numerous other jurisdictions have made a substantial number of arrests for sexually related crimes in sexually oriented business establishments. (9) It is recognized that sexually oriented businesses, due to their nature have serious objectionable operational characteristics particularly when they are located in close proximity to each other, thereby contributing to urban blight and downgrading the quality of life in adjacent areas. (10) The City Council desires to minimize and control these adverse effects and thereby preserve the property values and character of surrounding neighborhoods, deter the spread of urban blight,.protect the citizens from increased crime, preserve the quality of life, and protect the health, safety, and welfare of the citizenry; and further, WHEREAS, the City Council makes the following findings with regard to the issuing of permits to operators of sexually oriented business establishments: (T) The City Council believes it is in the interest of public safety and welfare to prohibit persons convicted of certain crimes from engaging in the occupation of operating a sexually oriented business. (2) The City.Council has determined that no person who has been convicted of a crime listed in Section V(I), as set forth in this ordinance, is presently fit to operate a sexually oriented business until the respective time periods designated in that section have expired. (3) It is the intent of the City Council to disqualify a person from being issued a sexually oriented business permit by the City of Sanger if he has been convicted within the designated time period of any of the crimes listed in Section ••••V, as set forth in this ordinance; -2- NOW, THEREFORE, CITY OF SANGER: SECTION I BE IT ORDAINED BY THE CITY .COUNCIL OF THE That the Code of Ordinances of the City of Sanger be, and the same are hereby, amended by adding the following: SECTION II. PURPOSE AND INTENT 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 tiot th ns to prevene 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. It is also to limit the display of such materials where they may be visible to persons who have no desire to see them. 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. regula SECTION III. DEFINITIONS (1) SEXUALLY ORIENTED COMMERICAL ACTIVITIES shall mean commercial enterprises whose major business is the offer- ing of a service which is intended to provide sexual stimulation or sexual gratification to the customer, including, but not limited to, massage parlors, nude modeling studios, love parlors, adult bookstores, adult video stores, adult motion picture theaters, adult mini -motion picture theaters, adult cabaret, escort agency, adult motels, and sexual encounter centers, and such establishment is customarily not open to the public generally, but only to one or more classes of the public excluding any minor by reason of age. (2) ADULT BOOKSTORE OR VIDEO STORE shall mean an establish- ment having a substantial or significant portion of its stock in trade, books, magazines, and other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, and "peep shows" of those items, which are distinguished or characterized by their emphasis on pictorial or photographic representatives of "specified sexual activities" or "specified anatomical areas" (as defined herein) or an establishment with a segment or section devoted to the sale or display of such material. A "significant or substantial portion" shall mean more than one-third of the stock in trade or sales of the described material in excess of five thousand dollars ($5,000.00) retail value per year. (3) ADULT MOTION PICTURE THEATER shall mean an enclosed building or outdoor screen presenting material distinguish- ed or characterized by an emphasis on matter depicting, -3- CITY SECRETARY ORIGINAL Copy describing or relating to "specified sexual activities" or "specified.anatomical areas" (as defined herein) for observation by patrons of such establishments. (4) ADULT CABARET means a nightclub, bar, restaurant, or similar commercial establishment which regularly features: (a) persons who appear in a state of nudity; or (b) live performances which are characterized by the exposure of "specified -anatomical areas" or "specified sexual activities", or (c) 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." (5) 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. (6) 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, schulptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. (7) SEXUAL ENCOUNTER CENTER means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration: (a) physical contact in the form of wrestling or tumbling between persons of the opposite sex; or (b) sexual activities between male and female persons and/or persons of the same sex when one or more of the persons in a state of nudity or semi-nude. (8) ADULT MOTEL means a hotel, motel or similar commercial establishment which: (a) 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 i (b) offers a sleeping room for rent for a period of time that is less than 10 hours; or (c) allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours. (9) SPECIFIED SEXUAL ACTIVITIES shall mean: (a) human genitals in a state of actual or simulated sexual stimulation of arousal, (b) acts of human masturbation, sexual intercourse, or sodomy, (c) fondling or other erotic touching of human genitals, public region, buttocks, or female breast; (d) "sexual intercourse, "sexual contact," or "deviate sexual intercourse" as defined in Section 21.01, Texas Penal Code. (10) SPECIFIED ANATOMICAL AREAS shall mean less than completely covered human genitals, pubic region, buttocks, and female breast below a point immediately above the top of the areola. SECTION IV. SEXUALLY ORIENTED COMMERCIAL ACTIVITIES - REGULATIONS (1) No building permit or certificate of occupancy may be granted for, and a person commits an offense if he operates or causes to be operated, a sexually oriented commercial activity nearer than one -thousand (1,000) feet from the nearest property line of any land in any residential zone, or any public, private, or parochial school, day care center, library, park, playground, or other recreational facility, whether commercial or nonprofit, in any other zone, or any church, convent, monastery, synagogue, or other similar place of religious worship, or the property line of a lot devoted to residential use. (2) A person commits an offense if he operates a sexually oriented business .without a valid permit, issued by the City for the particular type of business. (A) An application for a permit must be made on a form provided by the City of Sanger. The application form shall be sworn to and shall: (i) include the name and address of the applicant: (ii) state whether or not the applicant meets each of the requirements set forth in Sec. IV of this`Ordinance; (iii) the name and address of each person required to, sign the application pursuant to Section IV(C) of this Ordinance, and the name, address and type of entity (if any) of each person or entity owned or controlled by such persons which owns or controls an interest in the business to be licensed; and (iv) such other matters, consistent with this -5- Ordinance, as may be specified. in the application form. 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 IV(4) of this article shall submit a diagram meeting the requirement of Section IV(4). (B) The applicant 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, fire department, and building official. (C) If a person who wishes. to operate a sexually orient- ed business is an individual, he must sign an application for license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who directly or indirectly through one or more intermediaries, owns or controls a 10 percent or greater interest in the business must sign and submit, as an applicant, a separate application containing all applicable information required by Sec. IV •••(A) of this Ordinance. Each applicant must be qualified under Section 000.V and each applicant shall be considered the holder of a permit if a permit is granted. (3) No individual, proprietorship, partnership, corporation, association, or other legal entity, whether as owner, manager, operator, employee, or person in charge of an establishment conducting sexually oriented commercial activities shall cause, suffer, or permit any advertise- ments, displays, or other promotional materials to be shown or exhibited so as to be visible to the public from pedestrian sidewalks or walkways or from other public streets, alleys or areas, nor permit any building opening, entry or window for any structure containing a sexually oriented commercial activity to be located, covered, or screened in such a manner as to permit a view into the interior of such structure from any public, semi-public or private area not a part of the property of said structure. (4) 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 less than 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: -6- CITY SECRETARY ORIGINAL Cpy (A) Upon application for a sexually oriented business permit, 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 thirty-two (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 should be oriented to the north or to some designated street or object and should 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 City Administrator 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. (B) The application shall be sworn to be true and correct by the applicant. (C) No alteration in the configuration or location of the manager's station may be made without the prior approval of the City Administrator or his designee. (D) It is the duty of the owners and operator 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. (E) 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, than 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. -7- (F) 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. (G) 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 (1.0) footcandle as measured at floor level. (H) 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. (I) A person having a duty under Paragraph (A) through (H) of Subsection (E) above commits an offense if he/she knowlingly fails to fulfill the above requirements. (5) An additional regulation for an adult motel is if evidence that a sleeping room in a hotel, motel, or similar commercial establishment has been rented and vacanted two or more times in a period of time that is less than 10 hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this article and 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 permit, he rents or subrents a sleeping room to a person and, within 10 hours from the time the room is rented, he rents or subrents the same sleeping room again, and (c) for purposes of subsection (b) of this section, the terms, "rent" and "subrent" mean the act of permitting a room to be occupied for any form of consideration. SECTION V. ISSUANCE OF PERMIT (1) The City Administrator shall approve the issuance of a permit to an applicant or the transfer by an applicant. of all or any part of his ownership or control of a sexually oriented business within 30 days after receipt of an application unless he finds one or more of the following to be true: -8- (A) An applicant is under 18 years of age. (B) 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. (C) An applicant has failed to provide information reasonably necessary for issuance of the permit or has falsely answered a question or request for information on the application form. (D) 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. (E) An applicant is residing with a person who has been denied a permit by the city to operate a sexually oriented business within the preceding 12 months, or residing with a person whose permit to.operate a sexually oriented business has been revoked with the preceding 12 months. (F) The premises to be used for the sexaully oriented business are not in compliance with applicable zoning laws or have not been approved by the health department, fire department, and the building official as being in compliance with applicable laws and ordinances. (G) The license fee required by this article has not been paid. (H) An applicant or the proposed establishment is in violation of or is not in compliance with any of the regulations of Section V, (I) An applicant or an applicant's spouse has been convicted of a crime: (A) involving: (i) any of the following offenses as described in Chapter 43 of the Texas Penal Code: (aa) prostitution (bb) promotion of prostitution (cc) aggravated promotion of prostitution (dd) compelling prostitution -9- CITY SECRETARY (ee) obscenity ORIGINAL COPY (ff) sale, distribution, or display of harmful material to minor (gg) sexual performance by a child (hh) possession of child pornography any of the following offenses as described in Chapter 21 of the Texas Penal Code: (aa) public lewdness (bb) indecent exposure (cc) indecency with a child sexual assault or aggravated sexual as described in Chapter 22 of the Texas Penal Code; incest, solicitation harboring in Chapter a runaway 25 of the of a child, or child as described Texas Penal Code, (v) criminal attempt, conspiracy, or solicitation to commit any of the fore- going offenses; (B) for which: (i) less than two years have the date of conviction or release from confinement conviction, whichever is date, if the conviction misdemeanor offense: elapses since the date of imposed for the the later is of a (ii) 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 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 the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occuring within any 24-month period. -10- 24-month period. (2) The permit, 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 permit 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. SECTION VI. FEES (1) The annual fee for a sexually oriented business permit is $500.00. SECTION VII. INSPECTION (1) An applicant or the holder of the permit shall permit representatives of the police department, health department, fire department, electrical department, and building inspection department to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business. (2) 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. SECTION VIII. EXPIRATION OF A PERMIT (1) Each permit shall expire one year from the date of issuance and may be renewed only by making application as provided in Section IV. Application for renewal should be made at least 30 days before the expiration date. (2) When the City Administrator denies renewal of a permit, the applicant shall not be issued a permit for one year from the date of denial. If, subsequent to denial, the City Administrator finds that the basis for denial of the renewal permit has been corrected or abated, the applicant may be granted a permit if at least 90 days have elapses since the date denial became final. SECTION XI. APPEAL (1) If the City Administrator denies the issuance of a permit, or the renewal. of a permit, he shall send to the applicant, by certified mail, return receipt requested, written notice.of his action and the right to an appeal. The aggrieved party may appeal the decision of the City Administrator to the City Council. The filing of an appeal stays the action of the City. -11- CITY SECRETARY ORIGINAL Copy (2) The applicant may, not later than 10 calendar days after receivi::ng notice of the denial,, file with the City Secretary a written request for a hearing before the City Council. (3) A hearing by the Council may proceed if a quorum is present. The council shall hear and consider evidence offered by any interested person. (4) The City Council may, in its discretion, grant an exemption from the locational restrictions of Section IV(1) if it meets all of the following findings: findings. (a) 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, (b) That the granting of the exemption will not violate the spirit and intent of this article of the city code, (c) 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, (d) 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 (e) That all other applicable provisions of this article will be observed. (5) The 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. The decision of the council regarding the permit appeal is final. (6) 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 restriction of Section IV (1) until the applicant applies for and receives another exemption. (7) If the council denies the exemption, the applicant may not re -apply for an exemption until at least 12 months have elapsed since the date of the council's action. (8) The grant of an exemption does not exempt the applicant from any other provisions of this article other than the locational restrictions of Section IV(1). -12- . SECTION X. That any ordinance of the City of the provisions of this ordinance SECTION XI. I °Y T iL Sanger in conflict with is hereby repealed. - Should any section, paragraph, sentence, clause or phrase of this ordinance be held to be invalid or unconstitutional for any reason, such holding shall not affect the remaining portions of this ordinance which are declared to be severable. , a SECTION XII. Any person, firm or corporation violating Section IV(1) of this ordinance, upon conviction in the Municipal Court of the City of Sanger, Texas shall be punished by a fine not to exceed the sum of One Thousand Dollars`($1,000.00), and a separate offense shall be deemed. committed each day during or on which an offense of Section IV(1) occurs or continues; and any person, firm or corporation violating any other provision or term of this ordinance, upon conviction in the Municipal. Court of the City of Sanger, Texas, shall be punished by a.fine not to exceed the sum of Two Hundred Dollars ($200.00) for each offense, and each and every day any such violation shall continue shall be deemed to constitute a separate offense. SECTION XIII. This ordinance shall take effect its passage and the publication in such cases provides. DULY PASSES { the ' i ,.., _ __ _ , \ ,, , immediately from and after of the.caption as the law the -City Council of t e City of Sanger, Texas, day of /- Q/'i . , 1988. APPROVED AS TO FORM: CITY ATTORNEY APPROVED: DULY ENROLLED: MAYOR on -13-