Loading...
HomeMy WebLinkAboutORD 1335 Relating to Sexually Oriented Businesses ORDINANCE NUMBER 1 5 ORDINANCE RELATING TO SEXUALLY ORIENTED BUSINESSES AND ADULT ARCADES; AMENDING THE CODE OF ORDINANCES OF THE CITY OF WEST UNIVERSITY PLACE, TEXAS; AND CONTAINING FINDINGS AND PROVISIONS RELATING TO THE SUBJECT. * * * Legislative History And Findings. The City of West University Place ("City") has been considering the regulation of sexually oriented businesses for approximately two years. The possibility of adopting such regulations was raised during the exhaustive review of the City's commercial zoning regulations in 1986 and again in connection with the City's total zoning overhaul in 1987. Numerous witnesses in the zoning proceedings of 1986 and 1987 appeared before the City Council and the Zoning & Planning Commission (Z&PC) to cribe the intimate relationship between the areas zoned commercial and areas lying nearby--sometimes immediatley adjacent--zoned residential. This phenomenon is a direct result of the the historic pattern of development of the City. Most of the City's commercial areas are shallow strips along major thoroughfares such as Kirby Bissonnet and Bellaire. The depth of the commercial districts along these streets is sometimes in the range of 100 feet. As a result, the use that is made of these commercial areas will almost always have a direct, continuous and immedia effect upon the residential areas that lie immediately behind them. The City's comprehensive plan recognizes this geographic arrangement in several sections, including 2-02(b) (design of non-residential development), 2-02(c) (buffering and screening of non-residential uses), 3-02 (peripheral commercial areas generally). The Ci did not adopt regulations specifically for sexually oriented businesses when it adopted the new master plan and major zoning changes in 1986 and 1987. At the time, it appeared that such regulations could best be addressed as part of the City's normal Code of Ordinances. The Council is still of this view, and it desires that the regulations set out in this ordinance be codified in the normal Code, with one exception. That exception is the requirement for maintaining a distance between regulated enterprises and schools. The Council has been adiv that State law requires that is type of restriction on locations be made with all of the procedural steps required for amending the City's zoning ordiance. (The Council has also requested the City staff to study this lation carefully to be sure that it would not amount to a total ban on such enterprises within the City, and the preliminary indication is that a modest spacing requirement from schools, alone, would not amount to such a total ban.) In considering this ordinance, the City Council has obtained voluminous compilations of data and studies from the City of Houston and the City of Dallas. The Dallas data includes a study prepared for the City of Austin which concluded, in part, that the rates of ~rdinance Number 1335 sex related crimes in neighborhoods surrounding adult businesses werp two to five times higher than the citywide average rates for those crimes. Thus. the study conc1ud~d that there "can be serious detriPJental impacts" upon such neighborhc.,ods. The study also identified an impact that would be especially acute in this City. because of the close proximity cf residential neighb~rhoods to commercial districts. This impact was characterized as a severe decline in property values of properties "located wlthin one block of adult business sites." The reports from Houston also include evid~ncE of negative impact upon residential neighborhoods near adult businesses. The factors indentified included neighborhood security. property values. the potential for economic development. and the general qua1tiy of urban life (including the suitability for family activities ana the stability of thp neighborhood envirorment). These factors. too. are directly applicable to this City becasue of the close proximity of conaercia1 and residential areas. Although the Council is u~aware of any existing busin~sses that would be subject to this ordinance. the Council has taken notice that there was such a bus1ne~s in the City until several years ago. This business. known as the "Bunny Club," operated as a topless bar on Bissonn~t Street. During that period. there were numerous complaints received by the Police Department about disturbances of the peace. public intoxication. assaults. drug use and furtive activities carried on in the parking lot. These observations would tend to confirm the data r~ceived from Austin and ~ouston. The City Council has also considered the specially intrusi~e effects of outdoor display advertising and garish exterior decorations upon nearby residential areas. In general, the City Council has deep concerns about the effect of such advertislng not only upon neighborhoods in general but specifically upon c~ildren. because such displays are indiscrinl1nate; they attract the attention of everyone passing by. including not only potential customers but also children. In fact. the shallowness of the commercial strips that characterizes the City's commercial districts almost assures that outdoor displays will be continually thrust upon children who may live nearby. not only when they are moving about on the streets but also when they are at home or playing in th~ir own neighborhoods. The City Council has also had the unusual advantage of being able to observe the effect that regulation of sexually oriented businesses a~d adult arcades has had. because such regulations have recently been implemented in the surrounding City of Houston. As a general proposition, it appears that such regulations make a real difference. at minimal cost to the regulated establishments. The City Council has also been kept abreast of recent experienc~ in Houston with the regulations applicable to adult arcades. The health-based concerns that ~nderlie t~e arcade regulations have only become more serious because of the continued epidemic of acquired immune deficiency syndrome (AIDS) and AIDS-related conditions. '.87 Ordinance Number 1335 Having considered the matter carefully. the City Council has reached the conclusion that regulations applicable to sexually oriented businesses and adult arcades should be adopted in a form similar to those in force in the surrounding areas of Houston. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST UNIVERSITY PLACE. TEXAS: Section 1. That the Code of Ordinances of the City of West University Place, Texas is hereby amended b~ adding thereto two new articles (Articles III and IV of Chapter 15). including new sections 15-41 et seq.. which said new articles and sections shall read in their entirety as set out in Exhibit A. attached hereto and made a part hereof for all purposes. Section 2. (a) The legislative history and findings set out in the preamble of this ordinance are formally adopted. (b) Until changed by ordinance. resolution or motion. the fees for sexually oriented businesses and adult arcades shall be as follows: SEXUALLY ORIENTED BUSINESSES Application fee (original application) Application fee (renewal application) Transfer fee $350 100 300 ADULT ARCADES Application fee Reinspection fee Transfer/amendment fee 75 60 15 Section 3. All ordinances and parts of ordinances in conflict herewith are hereby repealed to the extent of the conflict only. Section 4. If any word. phrase. clause. sentence. paragraph. section or other part of this ordinance or the application thereof to any person or circumstance. shall ever be held to be invalid or unconstitutional by any court of competent jurisdiction. the remainder of this ordinance and the application of such word. phrase. clause. sentence. paragraph. section or other part of this ordinance to any other persons or circumstances shall not be affected thereby. '0. . ---Y-". ..........-..-..-..-w:-- ....."_111..- ... - - ___.,.oo 0" .. Ordinance Number 1335 Section 5. The City Council officially finds. determines ana declares that a sufficient written notice of the date. hour. place and subject of each meeting at which this ordinance was discussed. considered or acted upon was given in the manner required by th~ Open Meetings Law, TEX. REV. CIV. STAT. ANN. art. 6252-17. as amend~d. and that each such meeting has been open to the public as required by law at all times during such discussion. consideration and action. The City Council ratifies. approves and confirms such notices and the cont~nts and posting thereof. Section 6. This ordinance shall take efffect on the tenth day following its publication, as provided for in the City Charter. PASSED AND APPROVED ON FIRST READING this da) of __, 1988. -- Councilmembers Voting Aye: Councilmembers Voting No: Counci1members Absent: PASSED AND APPROVED ON SECOND READING this . .. _____, 1989. Council~mbers Voting Aye: day of Councilmembers Voting No: Counci1members Absent: Signed: AlCliie'f L. Parks'- Mayor -- ATTFST: Audrey Ni cho 1 s- . . City Secretary (SEAL) Approved as to Form: ~fame'"rl: bougherty. .Sr:- City Attorney 36atty:ordsx Ordinance Number 1335 EXHI BIT A ARTICLE III. SEXUALLY ORIENTED BUSINESSES Section 15-41. Definitions. As used in this article, the following words and terms shall have the meanings ascribed to them in this section, unless the context of their usage clearly indicates another meaning: Achromatic. Colorless, lacking in saturation or hue. Without limitation, gray shall be included, but white and black shall be excluded from the definition of achromatic. Adult Bookstore. An establishment whose major business is the offering to customers of books, magazines, films or videotapes (whether for viewing off-premises or on-premises by use of motion picture machines or other image-producing devices), periodicals, or other printed or pictorial materials which are intended to provide sexual stimulation or sexual gratification to such customers, and which are distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities, or specified anatomical areas. jl,duJJL~!>Aret. An estab 1 i shment whose major bus i ness is the offering to customers of live entertainment which is intended to provide sexual stimulation or sexual gratification to such customers, and which is distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities, or specified anatomical areas. Adult Encounter Parlor. An establishment whose major business is prov s on p ses where customers either congregate, associate or consort with employees who engage in specified sexual activities with or in the presence of such customers, or who display specifi anatomical areas in the presence of such customers, with the intent of providing sexual stimulation or sexual gratification to such customers. tid.u}J:~~Lounge. An adult cabaret, as defined above, which is a permitted or licensed premises, pursuant to the Texas Alcoholic Beverage Code, where alcoholic beverages may be served or sold. 8j~]1_Modeling Studio. An establishment whose major business is the provision, to customers, of figure models who are so provided with the intent of providing sexual stimulation or sexual gratification to such customers and who engage in specified sexual activities or display specified anatomical areas while being observed, painted, painted upon, sketched, drawn, sculptured, photographed, or otherwise depicted by such customers. Ordinance Number 1335 Adult Movie Theatre. An establishment, containing a room with tiers or rows of-seats~facing a screen, or projection area, whose major business is the exhibition to customers of motion pictures which are intended to provide sexual stimulation or sexual gratification to such customers and which are distinguished by or characterized by an emphasis on matter depictlng, describing or relating to speciti sexual activities or specified anatomical areas. Applicant. The applicant for a permit shall be the intended operator of the enterprise. Commercial Multi-Unit Center. A building or structure (including'a-sh-o-pp~fn-g' mall or strip shopping center) containing three or more separate premises, each of which is offered by lease or otherwise for separate occupancy or control and each of which occupies an enclosed area having its own door or entranceway opening onto public property, a public way or a common area. Conduct any business in an enterprise. Any person who does anyone or more of the followlngr-shall~deemed to be conducting business in an enterprise. (1) Operates a cash register, cash drawer or other depository on the enterprise premiSeS where cash funds or records of credit card or other credit transactions generated in any manner by the operation of the establishment or the activities conducted therein are kept; (2) Displays or takes orders from any customer for any merchandise, goods, entertainment or other services offered on the enterprise premises; (3) Delivers or provides to any customer any merchandise. goods, entertainment or other services offered on the enterprise premises; (4) Acts as a door attendant to regulate ertry of customers or other persons into the enterprise premises; or (5) Supervises or manages other persons in the performance of any of the foregoing activities on the enterprise premises. Customer. Any person who: (1) Is allowed to enter a regulated establishment in return for the payment of an admission fee or any other form of consideration or gratuity; or (2) Enters a regulated establishment and purchases. rents or otherwise partakes of any merchandise, goods, entertainment or other services offered therein; or (3) Is a member of and on the premises of a regulated establishment operating as a private club. Ordinance Number 1335 Director. The Chief of Police and such City employee(s) as he may designate to perform the duties of the director under this article. Display Surface. The entire surface of a sign, on one side, devoted to exhibiting advertising. The display surface shall not include the sign frame and incidental supports thereto. .J::.rn.~l2yee. Any person who renders any serv i ce wha tsoever to the customers of a regulated establishment or who works in or about a regulated establishment and who receives compensation for such service or work from the operator or owner of regulated establishment or from the customers therein. Enterprise. An adult cabaret, adult encounter parlor, adult loung'e~"a'd.u1t modeling studio, or any establishment whose major business is the offering to customers of a product or service which is intended to provide sexual stimulation or sexual gratification to such customers, and which is distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. The term "enterprise" shall not be construed to include. (1) Any adult bookstore or adult movie theatre, as those terms are defined herein; (2) Any business operated by or employing licensed psychologists, licensed physical therapists, licensed athletic trainers, licensed cosmetologists, or licensed barbers performing functions authorized under the licenses held; (3) Any business operated by or employing licensed physicians or licensed chiropractors engaged in practicing the healing arts; or (4) Any retail establishment whose major business is the offering of wearing apparel for sale to customers Entertainment. Any act or performance, such as a play, skit, read ng, revue, pantomime, scene, song, dance, musical rendition or striptease, whether performed by employees, agents, contractors, or customers. The term "entertainment" shall also mean bartenders, waiters, waitresses, or other employees exposing specified anatomical areas or engaging in specified sexual activities in the presence of customers. Exterior Portion. Any part of the physical structure of a regulated establEhment, including a wall, veneer, door, fence, roof covering, or window, which is visible from any public way or public property. Operator. The manager or other natural person principally in charge of a regulated establishment. Ordinance Number 1335 Owner or Owners. The proprietor, if a sole proprietorship, all partners (general and limited) if a partnership, or all officers, directors and persons holding ten percent or more of the outstanding share of a corporation. The term llownerll shall not include any such person who has given to the operator a statement under oath that he does not desire to be listea on the permit application and that he waives any right to any notice that is required or permitted to be given under this article. Permit. A current, valid permit issued by the director pur~uant to the terms of this article to an operator for an enterprise. ?~9~lated Establishment. Any enterprise, adult bookstore or adult movere. ii ned hereln. Sign: Any display, design, pictorial or their representation, which shall be so constructed, placed, attached, painted, erected, fastened or manufactured in any manner whatsoever so that the same is visible from the outside of a regulated establishment and that is used to seek the attraction of the public to any goods, services or merchandlse available in or from such regulated establishment. The term llsignll shall also include such representations painted on or otherwise affixed to any exterior portion of a regulated establishment as well as such representations painted on or otherwise vffixed to any part of the tract upon which such a re0ulated establishment is situated. ~.p5=.ciJ.i.e.d. anatomi Cd 1 ~reas. (1) Less than completely and opaquely covered: a. Human genitals, pubic region or pubic hair; or b. Buttock; or c. Female breast or breasts below a point immediately above the top of the areola; or d. Any combination of the foregoing; or (2) Hum&n male genitals in a discernible erect state, even if completely a opaquely covered. Spec Hi ed Sexua 1._A.c.tJ v it i es . (1) Human genitals in a discernible state of sexual stimulation or arousa 1; or (2) Acts of human masturbation, sexual intercourse or sodomy; or 193 Ordinance Number 1335 (3) Fondling or other erotic touching of human genitals. pubic region or pubic hair. buttock. or female breast or breasts; or (4) Any combination of the foregoing. Tract. A contiguous parcel of land under common ownership. whether situated within the city or not. Section 15-42. Permit-Required. (a) It shall be unlawful for any person to own. operate or conduct any business in an enterprise located within the city unless there is a permit for the enterprise. (b) It shall be unlawful for any person to own, operate. or conduct any business in an enterprise located within the city unless the permit is posted at or near the principal public entrance to the enterprise in such a manner that it will be conspicuous to patrons who enter the premises. (c) In any prosecution under subsection (a) above. it shall be presumed that there was no permit at the time of the alleged offense unless a permit was then posted as provided in subsection (b). Section 15-43. Same-Applications. (a) Applications for a permit. whether original or renewal, must be made to the director by the intended operator of the enterprise. Applications must be submitted by hand delivery to the office of the director during regular working hours (8:00 a.m. to 5:00 p.m., Monday through Friday. city holidays excepted). Application forms shall be supplied by the director. The intended operator shall be required to give the following information on the application form: (1) a. The name. street address (and mailing address if different) and Texas driver's license number of the intended operator; The name and street address (and mailing address if different) of the owner(s); (2) The name under which the enterprise is to be operated and a general description of the services to be provided; b. (3) The telephone number of the enterprise; (4) The address and legal description of the parcel of land on which the enterprise is to be located; (5) The date on which the owner(s) acquired the enterprise for which the permit is sought, and the date on which -...-.-.....,.-.-.-.........-...------,-.- -....-. .- ,.....,---...--- ...r l0"5.r..._ Ordinance Number 1335 the enterprise began operations as an enterprise at the location for which the pe~it is sought. (b) The application shall be accompanied by payment ir full of the approproate application fees required by the City. which application fees shall not be refundable under any circumstances. (2) A certified copy of the assumed name certificate filed in compliance with the Assumed Business or Professional Name Act (Texas Revised Civil Statutes Annotated, Busines~ and Commerce Code. Chapter 36) if the enterprise is to be operated under an ass~d name; (3) If the enterprise is a Texas corporation. a certified copy of the articles of incorporation. together with all amendments thereto; (4) If the enterprise is a foreign corporation. a certified copy of the certificate of authority to transact business in this state. together with all amendments thereto; (5) If the enterprise lS a limited partnership formed under the laws of Texas. a certified copy of the certificate of limited partnership. together with all amendments thereto. filed in the office of the Secretary of State under the Texa~ Limited Partnership Act (Article 6132a Vernon's Texas Civil Statutes); (6) If the enterprise is a foreign limited partnership, a certifieQ tOpy of the certificate of limited partnership and the qualification documents. together with all amendments thereto. filed in the office of the Secretary of State under the Tpxas Limited Partnership Act (Article 6132a Vernon's Texas Civil Statutes); (7) Any of items (2) through (6) above shall not be required for a renewal application if the app11cant states that the documents previously furnished the director with the original application or pr~vious renewals th~reof remain correct and current. (c) The application shall contain a statement under oath that: (1) The applicant ha~ personal knowledge of the information contained In the application and that the information contained therein is true and correct; and The applicant has read the provisions of this article. (2) (d) A separate application and permit shall be required fer each enterprise. Ordinance Number 1335 195 Section 15-44. Same-Term; Renewal. Each permit shall be valid for a period of one year and shall expire at noon on the anniversary of its date of issuance. unless sooner revoked or surrendered. Each permit shall be subject to renewal as of its expiration date by the filing of a renewal application with the director. Renewal applications must be filed at least 20 days prior to the expiration date of the permit that is to be renewed. Section 15-45. Same-Issuance or Denial. (a) Within 20 days of receipt of any application. either original or renewal. the director shall grant or deny the requested permit and give written notice to the applicant as to the decision. (b) The director shall issue a permit to the applicant unless one or more of the following conditions exist. (1) The applicant failed to supply all of the information requested on the application; (2) The applicant gave materially false. fraudulent or untruthful information on the application; (3) The applicant's enterprise. if an existing business. is not in compliance with the applicable provisions of this Chapter relating to the physical characteristics of the enterprise or not in compliance with any applicable zoning ordinances of the City insofar as they apply to sexually oriented businesses; (4) The application or the enterprise does not meet any other requirement of this article; (5) The applicant has not fully complied with all state. federal and local laws. ordinances or regulations affecting the conduct of its business; or (6) The operator has had a permit revoked for the same enterprise within the 180-day period next preceding the date that the application was filed. (c) In the event that the director determines that an applicant is not eligible for a permit. the applicant shall be given notice in writing of the reasons for the denial within 20 d~s of the receipt of its application by the director. An applicant may appeal the decision of the director regarding such denial by filing a written request for a hearing with the director within 15 d~s after he is given notice of such denial. The director's decision on the application shall be final unless an appeal is timely filed. An appeal shall not stay the director's decision on the issuance of a permit. The applicant's written request for a hearing shall set out the grounds on which the denial is challenged. The hearing shall be .0 ;....----.~----....---... .. . J ___ .~.'.&I'_ -. .--.,........- . Ordinance Number 1335 conducted by a hearing official to be designated by the director. The hearing offlcia1 shall not have partlcipated in any investigation or decision relating to the denial of the permit. At the hearing. the hearing official shall receive oral and wrltten testimony regarding the application. Hearings shall be conducted under rules issu~d by the director. which shall be consistent with the nature of the proceedings and shall ensure that each party may present evidence, cross-examine witnesses and be represented by legal counsel. (d) The hearing official shall conduct the hearing within 15 days after receipt of the appliLant's written request Tor a hearing unless the applicant requests an extension in writing. The hearing official shall render a written decision and issue notice thereof to the applicant within five G~S after the conclusion of the hearing. The written dp.cision of the hearing official shall be fi"a1 unless an appeal is filed to the city council pursuant to this article. (e) The applicant may appeal the decision of the hearing official to the city council by filing a written notice of appeal with the city secretary within 15 days after the applicant is given notice of the hearing officlal's decision. The notice of appeal shall be accompanieQ by a memorandum or other writing setting out fully the grounds for such appeal and all arguments in support th~reof. The director may submit a memorandum in response to the memorandum filed by the applicant on appeal to the city council. After reviewing such memoranda. as well as the hearlng official's written decision. and the exhibits lntroduced at the hearing before the hearing official. the city council shall vote to either uphold or overrule the hearing official's decision. Such vote s~all be take" with 14 calendar days after the date on which the city secretary receives the notice of appeal. However, all parties shall be required to comply with the hearlng official's decision during the pendency of the appeal. The decision of the city council shall be final. (f) Failure of the director to give timely notice of his action on an applicatlon or failure of the hearlng official to timely conduct or give notice of his decision on an appeal from the director's decision. or failure of the Clty council to vote on an appeal from the decision of the hearing official within the llmltations of time specified above, shall entitle the applicant to the issuance of a temporary permit upon written demand therefor fi1eQ by the applicant with the director. Such temporary permit shall only be valid until the third d~ after the director gives notice of his action on the application or the hearing official gives notice of his decision on the appeal. or the Clty council votes on the appeal, as applicable. Section 15-46. Same-Transfer Upon Change. (a) A permit is personal to the owner(s) and operator designated in the application. provided it may be transferred pursuant to this section. A transfer application must be filed by the tenth day next following any change of the owner(s) or operator 1.97 Ordinance Number 1335 designated on the application. In the event that a transfer application is not timely filed. then the pennit shall be invalid for any purpose relating to the operation of the enterprise. and any transfer shall require and be treated in all respects as an original pennit application. (b) The director shall prescribe a form on which pennit transfer applications shall be made. The fonn shall include a statement under oath that the original application remains correct as previously submitted in all respects except those that are amended hereby. The transfer application shall contain a statement under oath that the individual signing the transfer application has personal knowledge of the information contained therein and that the information is true and correct and shall not be complete unless accompanied by a nonrefundable transfer fee in the amount required by the City's fee schedule. Transfer applications shall be filed in the same place and at the same time as original applications and the fee shall be payable in the same manner as for original applications. (c) Transfers shall be reviewed. issued and subject to appeal in the same manner as original applications. and transfers shall be issued for the remaining term of the pennit to be transferred. Section 15-47. Same-Revocation or Suspension. (a) The director shall have the authority to revoke a permit for anyone or more of the following reasons: (1) The owner or operator of the permitted enterprise knowingly allowed a person under 17 years of age to enter an enterprise. The permitted enterprise does not conform to the provisions of this article relating to the physical characteristics of the enterprise or does not conform to any zoning ordinance of the City. Three or more cumulative violations of any of the offenses contained in Chapter 21. Chapter 43, Section 22.011. or Section 22.021 of the Texas Penal Code or of the offenses contained in this article have occurred on the premises of the penmitted enterprise. These violations must have occurred in a consecutive period of 12 months and the owner or operator must have knowingly allowed such violations to occur or did not make a reasonable effort to prevent the occurrence of such violations. The operator of the penmitted enterprise gave materially false, fraudulent or untruthful information on the original. renewal or transfer application form. The enterprise has been closed for business for a period for 30 consecutive days. unless such closure is (2) (3) (4) (5) --. ...--------. ---or- ...-...-.....,..-........--r....-...-.... -.-.........w:---- . ... '.....r..._ Ordinance Number 1335 due to circumstances beyond the control of the owner. and the operator is proceeding with due diligence. given all attendant circumstances. to reopen the establishment. (6) That thpre was a change of owner or operator for which a transfer application was not timely filed as required by this article. (7) That the permit should not have been issued pursuant to the criteria for issuance set out in this article. (b) Prior to revocation of a penmit. the director shall investigate the grounds alleged to determine whether probable cause for revocation may exist and. if so. shall notify the owner(s) and operator in writing of reasons for the proposed revocation and grant su,h owner(s) and operator thp opportunity to appear before a hearing official to be designated by the director at a time and place specified within such notice. The hearing official designated shall not have participated in any investigation of the alleged grounds frr the revocation. Such hearing shall be helo not less than ]5 days after t~e notic~ is given. Hearings shall be conducted under rules issued by the director. Such rules shall be consistent with the nature of the proceedings and shall ensure that each party may present evidence. cross-examine witnesses and be represented by legal counsel. If. after the hearing. the hearing official finds that the permit should be revoked. he shall issue a writt~n order revoking such permit which shall be etfective on the third day after notice thereof is given to the operator. If the hearing officer determines. based upon the nature of the violatlon. that the ends of justice would be served by a suspension in lieu of a revocation, he may suspend the operation of the permit for a period of time to be stated in the order of suspension. not to exceed two months; however. a suspension may not be ordered if the grounds are based upon itp.ms (6) or (7) of subsection (a) of this section. (c) The owner(s) or operator shall have the right to appeal an order of the h~aring official revoking a permit to the city council in accordance with the procedure set forth in in this article for appeals from permit denials. by dellvering notice of appeal to the city secretary within 15 days after notice is given to the owner(s) and operator of the order. The filing of an appeal of a revocatio~ to the city council shall not have the effect of superseding or suspending the order of the director. Orders suspending permits s~all not be subject to any appeal. Section 15-48. Other Permit Provisions. (a) A permit lS valid only at the location for which it is issued. (b) It shall be unlawful for any person to ~ounterfeit. forge. change, deface or alter a permit. 1.99 Ordinance Number 1335 (c) A permit may be canceled upon written request of the owner(s) or operator and surrender of the pennit itself to the director. Pennits shall be surrendered at the same place and at the same time as permit applications as provided in this article. The surrender of a permit shall be effective upon its filing in the office of the director. Section 15-49. Exterior Portions of Regulated Establishments. (a) It shall be unlawful for an owner or operator of a regulated establishment to allow the merchandise or activities of the regulated establishment to be visible from any point outside such regulated establishment. (b) It shall be unlawful for the owner or operator of a regulated establishment to allow the exterior portions of the regulated establishment to have flashing lights. non-flashing lights or any words, lettering. photographS, silhouettes, drawings or pictorial representations of any manner except to the extent pennitted by the provisions of this article. (c) It shall be unlawful for the owner or operator of a regulated establishment to allow exterior portions of the regulated establishment to be painted any color other than a single achromatic color. This provision shall not apply to any regulated establishment if the following conditions are met: (1) rhe regulated establishment is part of a commercial multi-unit center; and (2) The exterior portions of each individual unit in the commercial multi-unit center, including the exterior portions of the regulated establishment. are painted the same color as one another or are painted in such a way so as to be a component of the overall architectural style or pattern of the commercial multi-unit center. (d) Nothing in this article shall be construed to require the painting of an otherwise unpainted exterior portion of a regulated establishment. (e) It shall be unlawful for the owner or operator of a regulated establishment to allow any artificial lighting source to be located on the premises and visible from any point within the right-of-way of a street. either directly or by reflection. unless the color of the light is white. Section 15-50. Signage. (a) Notwithstanding Chapter of the building code or any other city ordinance. code or regulation to the contrary. it shall be unlawful for the owner or operator of any regulated establishment or any other person to erect. construct. or maintain any sign for the - ._ ._____ __0 ......_.... ....-_..____._~ -.,.----.......'....9;- ...-.. .....Jr:.r'.._ Ordinance Number 1335 regulated establishment other than one primarJ sign and one secondar~' ~ign. as provided herein. (b) Primary signs shall have no more than two display surfaces. Each such display surface shall: (1) Not contain any flashing lights; (2) Be a flat plane. rectangular in shape; (3) Not exceed 75 square feet in area; and (4) Not exceed ten feet in height or ten feet in length. (c) Primary signs shall co~tain no photographs. silhouettes. drawings or pictorial representations of any manner and may contain only: (1) The name of the regulated establishment dnd/or (2) One or more of the following phrases: a. "Adult bookstore. II b. "Adult moViE theatre. II c. "Adult encounter parlor. II d. "Adult cabaret. II e. "Adult lounge. II f. "Adu1t nove1ties.11 g. "Adult entertainment. II h. "Adu1t model ing studio. II (3) Primary signs for adult movie theatres may contain the additional phrase, "Movie Titles Po!'ted on Premises. II (d) Each lptter forming a word on a primary sign shall be of a solid color and each such letter shall be the same print-type, size and color. The background be~ind suc~ lettering or. the display surface of a primary sign shall be of a uniform and solid color. (e) Secondary signs shall have only one display surface. Such di~play surface shall: (1) Be a flat plane. rectangular in shape; (2) Not exceed 20 squa~ feet in area; (3) Not exceed five feet in height and four feet in width; and (4) Be affix~d or attached to any wall or door of the establishment. (f) The provisions of item (1) of subsection (b) and subsections (c) and (d) shall also apply to secondary signs. 201 Ordinance Number 1335 Section 15-51. Persons Younger than Seventeen Prohibited from Entry; Attendant Required. (a) It shall be unlawful to allow a person who is younger than 17 years of age to enter or be on the premises of a regulated establishment at any time that the regulated establishment is open for business. (b) It shall be the duty of the operator of each regulated establishment to ensure that an attendant is stationed at each public entrance to the regulated establishment at all times during such regulated establishmentls regular business hours. It shall be the duty of the attendant to not allow any person under the age of 17 years to enter the regulated establishment. It shall be presumed that an attendant knew a person was under the age of 17 unless such attendant asked for and was furnished; (1) A valid operatorls. commercial operatorls or chauffeurls driverls license; or (2) A valid personal identification certificate issued by the Texas Department of Public Safety reflecting that such person is 17 years of age or older. Section 15-52. Notices. (a) Any notice required or permitted to be given by the director or any other city office. division. department or other agency under this article to any applicant. operator or owner of an enterprise may be given either by personal delivery or by certified United States mail. postage prepaid. return receipt requested. addressed to the most recent address as specified in the application for the permit. or transfer application which has been received by the director. or any notice of address change which has been received by the director. Notices mailed as above shall be deemed given upon their deposit in the United States mail. In the event that any notice given by mail is returned by the postal service. the director shall cause it to be posted at the principal entrance to the establishment. (b) Any notice required or permitted to be given to the director by any person under this article shall not be deemed given until and unless it is received in the office of the director at the time(s) and in the manner provided for filing of applications for permits. (c) It shall be the duty of each owner who is designated on the permit application and each operator to furnish notice to the director in writing of any change of residence or mailing address on or before the tenth day following such change. --. .-.....- .-....-r. ...__00.. . - ......~-...--~... ..... ...,...,..--.--. ...., .........._ Ordinance Number 1335 Section 15-53. Violation deemed Misdemeanor; Continuirg Violations. Violation of any provision of this article shall be punishable by a fine of not less than $150.00 nor more than $200.00. Each day any violation continues shall constitute and be punishable as a separate offense. ARTICLE IV. ADULT ARCADES Sec. 15-61. Definitions. As used in this article, the following words shall ~ave the meanings herein ascribed. unless the context of their use clearly indicates another meaning: "Adu1t arcade" shall mean any premises to which members of the public or members of any club. group or association are admitted and permitted to use one or more arcade devices. "Arcade device" shall mean any coin- or slug-operated or electronlcally or mechanically controlled machine or device that dispenses or effectuates the dispensing of entertainment. that is int~nded for the viewing of five (5) or fewer persons in exchange for any payment of any consideration. "Entertainment" shall mean any of the following in which specified sexual activities are depicted: (1) Any live exhibition. display or performance; or (2) Any still picture(s) or movie picture(s). whether mechanically. electrically or electronically displayed; or (3) Any combination of the foregoirg. uIndividua1" shall mean only a natural person. "Operator" shall mean the individual who is principally in charge of the management of the adult arcade. "Owner" or II owners II sha 11 mean the propri etor if a sole proprietorship. all partners (general and limited) if a partnership. or all officers, directors and persorls holding ten (10) percent or more of the outstanding shares if a corporation. Provided. however. the term"owner" or "owners" shall not include an) of the aforesaid persons who has given to the operator a statement urder oath that the person does not desire to be list~d on a permit application under thlS article and that the person waives any right to any notice that is required or permitted to be given by th~ city or any officer or agency thereof in connection with the application or permit for the adult arcade under this article. ~03 Ordinance Number 1335 "Permit" shall mean a current. valid permit issued by the police chief under this article to an operator for an adult arcade. "Police chief" shall mean the chief of police and any employee(s) of the police department assigned by him to perform his duties prescribed in this article. "Premises" shall mean a building; provided. that if a building has been physically divided into separate units that each have their own individual means of ingress and egress to the exterior of the building and which are offered by lease or otherwise for sepaate use and control. then it shall refer to each such separate unit. "Specified sexual activites" shall have the same meaning given to it in Article III of this Chapter. Sec. 15-62. Remedial effect. The provisions of this article are remedial and they shall. notwithstanding any other provision of this Code, be construed to apply to all adult arcades. both now existing and hereafter established. Sec. 15-63. Supplemental effect. The provisions of this article are. supplemental and shall be cumulative with all other laws and ordinances applicable in any manner to an adult arcade or to any owner or operator thereor. Sec. 15-64. Notices. (a) Any notice required or permitted to be given by the police chief or any other city officer or agency under this article to any applicant. operator or owner of an adult arcade may be given either by personal delivery or by certified United States mail. postage prepaid, return receipt requested, to the most current address as specified in the application for the permit. or any amendment therof which has been received by the police chief. Notices mailed as above shall be deemed given upon their deposit in the United States mail and shall be presumed to have been received on the third regular postal delivery day thereafter. (b) It shall be unlawful for any person to remove any notice or order posted upon any adult arcade pursuant to this article, except that a notice of hearing may be removed after the hearing has been conducted. It is a defense to prosecution under this subsection that the actor had the prior express consent of the police chief to remove the notice or order. .......-,,-..-..--.-.. --.--.- .. ..--.- .----,.....-.:0---.. ...... _____ ... ...... .... _._._-~-- ...- -..---....... ....... , Ordinance Number 1335 DIVISION 2. PERMIT Sec. 15-71. Requir~d; posting. (a) It shall be unlawful for any person to own. operate, manage or conduct any business in an adult arcaoe unless there is a penMit for the adult arcade. (b) It shall be unlawful for any person to own. operate, manage or conduct any business in an adult arcade unless the permit is posted at the place designated therefor on the diagram submitted with or adopted in the penMit application pursuant to this article and in such a mar.ner that it is conspicuous to patro~s of the adult arcade. (c) In any prosecution under subsection (a). above. it shall be presumed that there was no permit at the time of the alleged offense. unless a permit was then posted as provided in subsection (b). above. Sec. 15-72. Application. (a) To obtain a permit. whether initial or renewal. the intended operator of thp adult arcade shall file an application meeting all of the requirements. and in accordance with all of the procedures. fer sexually oriented businesses under Article III of this Chapter. On the application, the applicant shall set forth the following information in addition to that required for sexually oriented businesses: (1) The name. mailing address and telephone number of a person who will act as the app1icantls liaison with the police chief for purposes of the permit inspec- tion required under this Code. Such person must be available to come to the adult arcade upo~ one (1) houris notice given between t~e ~ours of 8:00 a.m. ahd 4:00 p.m., on Monday through Friday (holidays excepted). upon request by the police chief to the telephone number designated during th~ time that the license application is pending hereunder and must be authorized to act for the applicant in matters relating to the inspection of the pr~ises during the ti~ that the license application is pending hereunder. (2) The app1icati~n shall be accompanied by a diagram of t~e adult arcade showing a plan thereof specifying the lccation of more or more manager stations and the location of all overhead lighting fixtu~s and desig- nating any portior. of the adult arcade 1n which patrons will not be penMitted. A managerls station may not exceed thirty-two (32) square feet of floor area. Surh diagram shall also designate the place at which the penMit will be posted pursuant to this Code. if granted. A professionally prepared diagram in the nature of an engineerls or architectls blueprint shall Ordinance Number 1335 205 not be required; however such 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 adult arcade to an accuracy of plus or minus six (6) inches. The police chief shall waive the foregoing diagram for renewal applica- tions if the applicant adopts a diagram that was previously submitted and certifies that the adult arcade has not been altered since it was prepared. (b) A separate permit shall be required for each adult arcade. and a permit shall only be valid for the adult arcade described in the application. Sec. 15-73. Issuance or denial by police chief. (a) The police chief shall complete the actions required in this section resulting in the giving of his notice of the issuance or denial of the permit by the seventh day next following the date of his receipt of a completed application. The foregoing time period may be extended to the fourteenth day by the police chif upon notice to the applicant that the police chief has been unable. after diligent effort, to schedule the conduct of any required inspections of the adult arcade with the liaison person designated therefor in the application by the sixth day next following the day of his receipt of the application. The time period may also be extended to a date mutually agreeable to the police chief and the applicant or his inspection liaison person if the applicant or liaison person has requested that any inspection or reinspection be delayed for the applicantls convenience. Any extensions and the basis therefor shall be documented in the police chief's file regarding the application. . .. _..__._........_......T...._.__..._-~. (b) (1) The police chief shall grant the permit unless: After a permit issuance inspection of the adult arcade (or reinspection. if duly requested) it is found that the adult arcade does not comply with the view or lighting requirements of this article. The police chief is unable to schedule and con- duct a permit issuance inspection of the arcade by contacting the liaison person at the tele- phone number designated in the application; or The operator has had a permit revoked for the same adult arcade within the one-hundred-eighty- day period next preceding the date that the application was filed. (2) (3) .. ....-......-.... .....,..-~_.__... .... &O,gll_'''_'- ..-WAu...:.: 10:...1 . :. -. .. , . . . 206 Ordinance Number 1335 (c) No fee shall be imposed for the initial inspection of the arcade. unless subject to the additional special inspection fee provided below. A reinspection to verify the correction of deficiencies noted on a previous inspection shall only be made upon written request of the appliant or his designated liaison person and prior payment of a nonrefundable reinspection fee in the amount set by the Cityls fee schedule. Inspections at an applicantls specially requested time or outside the regular working hours of 8:00 a.m. to 4:00 p.m.. on Monday through Friday. whether on an initial or reinspection basis. will be subject to prior payment of a nonrefundable and additional inspection fee. (d) Permits that are awarded shall be furnised to the operator. If a permit is denied, then a notice thereof setting forth the specific reason(s) therefor shall be given to the applicant and the owners. Penmits. notices of denial and appeals shall be governed by Article III of this Chapter. Sec. 15-74. Term. Each permit shall expire one (1) year from the date of its issuance. or sooner upon any change of identity or mailing address of the owners or operator if the penmit is not timely transferred or amended under this Code. A permit may be revoked in accordance with the terms of this article. Sec. 15-75. Transfer upon change. (a) A penmit shall expire on the tenth day next following any of the following events: (1) A change of the mailing address of the operator or owners of the adult arcade; or (2) Any change of the operator or owners of the adult arcade; unless the operator has obtained a penmit transfer/amendment for such changes. (b) Transfer and amendment applications shall be governed by the provisions of Article III of this Chapter relating to transfers. Sec. 15-76. Alteration of adult arcade. A permit shall only extend to the adult arcade in the configuration described in the application and the plans submitted with or adopted therin. If an adult arcade remains open during alterations or expansions. then it shall be the duty of the operator to ensure that no patron is penmitted to use arcade devices situated within any portion of the adult arcade which has been altered or added by an alteration or expansion of the adult arcade unit1 a new Ordinance Number 1335 ~07 permit has been obtained on the basis of the adult arcade as reconfigured by the work. Sec. 15-77. Persons on duty during operation. It shall be the duty of the owners and operator of each adult arcade to ensure that at least one (1) person who is charged with the responsibility for the operation of the adult arcade is on duty at the adult arcade and situated in each managerls station designated pursuant to this Article at all times that any patron is present in the adult arcade. Sec. 15-78. Conduct in adult arcades. It shall be unlawful for the owners or operator, and it shall also be unlawful for any agent or employee present in an adult arcade, to knowingly allow or permit any act of sexual intercourse. sodo~. oral copulation or masturbation to occur in the adult arcade or to knowingly allow or permit the adult arcade to be used as place in which solicitation for sexual intercourse. sodomy or oral copulation occur. Sec. 15-79. Appeals. Any applicant. operator or owner who is aggrieved by any decision of the police chief relating to his duties and authority under this division in the issuance of permits shall be entitled to a hearing to be conducted in the same manner specified in Article III of this Chapter relating to denial or revocation of permits for sexually oriented businesses. DIVISION 3. ADULT ARCADE DESIGN Sec. 15-81. View from managerls station. (a) If an adult arcade has one (1) managerls station designated pursuant to this Artilce. then the interior of the adult arcade shall be configured in such a manner that there is an unobstructed view of every area of the adult arcade to which any patron is permitted access for any purpose from that managerls station. If an adult arcade has two (2) or more managerls stations designated pursuant to this Article, then the interior of the adult arcade shall be configured in such a manner that there is an unobstructed view of each area of the adult arcade to which any patron is pennitted access for any purpose from at least one (1) of the managerls stations. The view required in this subsection must be by direct line of sight from the managerls station. . ... . __._ ....__ - .....__ ..p-_.__. oo__..._!' .. ~--_....- .-......_~...... .....-.......-. ---. _.~_... . Ordinance ~umber 1335 (b) It shall be the duty of the owners and operator. and it shall also be the duty of any agents and employees present in an adult arcade. to ensure that the view area specified in subsectio~ (a) remains unobstructed by any merchandise. oisplay racks or other materials at all times that any patron is present in the adult arcade and to ensure that no pdtron is permitted access to any area of the adult arcade which has been designated as an area in which patrons will not be permitted in the plan filed pursuant to this Article. Sec. 15-82. Lighting. (a) Each adult arcade shall be equipped with overheao 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 the floor level. (b) It shall be the duty of the owners and operator. and it shall also be the duty of any agents and employees present ln an adult arcade. to ensure that the illumination describ~d in subsection (a). above. is maintained at all times that any patron lS present in the adult arcade. DIVISION 4. PERMIT REVOLATION Sec. 15-91. Grounds. (a) A permit may be revoked as provided after a hearing lconducted by a hearing officer in the same manner specified in Article III of this Chapter) if the officer finds from a preponderence of the evidence adduced at such hearing that: (1) lhe configuration or lighting equipment of the adult arcade has been changed so that it is no longer in compliance with the view area and lighting require- ments of this article; or (2) That a cumulative total of four (4) or more viola- tions of any of sections 15-77, 15-78. 15-81(b) or 15-82(b) has occurred withln the adult arcade i" a consecutive period of six (6) months; or (3) That the operator of the adult arcade has knowingly allowed or permitted any act of sexual intercourse. sodomy. oral copulation or masturbation to occur in the adult arcade or has knowingly allowed or per- mitted the adult arcade to be used as a place in which solicitation for sexual lntercoursp. sod~. or oral copulation occur. Knowledge of such activities shall be presumed. subject to r~buttal 209 Ordinance Number 1335 by the operator, in any instance where there have been convictions in a court of original jurisdiction for four (4) or more offenses arising on separate occasions in the adult arcade and relating to the above activities within a continuous period of one (1) year. The appeal of a conviction shall not pre- vent its consideration. unless and until it is reversed or set aside. and a disposition by deferred adjudication shall be considered in the same manner as a conviction. (b) The police chief shall not request a hearing by the hearing officer on any alleged grounds for revociation until he has caused an investigation to be made thereupon and detennined that grounds for revocation may. in probability of fact. exist. Sec. 15-92. Posting. removal of permit. discontinuation of use as adult arcade. (a) If the permit is revoked or suspended. the police chief shall also post a copy of the order at each public entrance of the adult arcade upon the door and shall remove the permit from the adult arcade. (b) It shall be unlawful for the operator, any owner or any agent or employee of the operator or any other person upon the adult arcade to refuse to surrender the permit after notice that it has been suspended or revoked. [END OF EXHIBIT A] -_..--r-- .._~. --. - - ...,...,. 0..-:--0--. . U' n ;r.lIrl.,'" .