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HomeMy WebLinkAbout1987-O-15 - Ordinance Amend Zoning Add Sectiion XII.2ORDINANCE NO. 1987-15 AN ORDINANCE AMENDING THE ZONING ORDINANCE OF THE CITY OF STEPHENVITX , TEXAS, BY ADDING SECTION XII.2 "SEXUALLY ORIENTED BUSINESSES"; PROVIDING DEFINITIONS; REGULATING THE LOCATION OF SEXUALLY ORIENTED BUSINESSES; PROVIDING THAT NO SEXUALLY ORIENTED BUSINESS MAY LOCATE WITHIN 1,000 FEET OF A CHURCH, SCHOOL, PARK, RESIDENTIAL LOT OR ANOTHER SEXUALLY ORIENTED BUSINESS; PROVIDING FOR PERMITTING OF SEXUALLY ORIENTED BUSINESSES; PROVIDING FOR ADDITIONAL REGULATIONS FOR SEXUALLY ORIENTED BUSINESSES; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF STEPHENVILLE, TEXAS: SECTION I That Sections VIII, IX, X, XI, and XII of the Zoning Ordinance of the City of Stephenville are hereby amended by revising the "Use Regulations" of said sec- tions to include: Sexually Oriented Businesses SECTION II That the Zoning Ordinance of the City of Stephenville is hereby amended by adding a new Section XII.2, "Sexually Oriented Businesses", which section shall read as follows: •. 16 1 It is the purpose of this section to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the concentration of sexually oriented businesses within the city. The provisions of this section have neither the purpose nor effect of imposing a limitation or restriction on the content of any cannunicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this section 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. DEFINITIONS. 1. 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 machi- nes, 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 anatanical areas." 2. ADULT BOOKSTORE OR ADULT VIDEO STORE means a canmercial establishment which as its principal business purpose offers for sale or rental for any form of consideration any one or more of the following: a. Books, magazines, periodicals or other printed matter, or pho- tographs, films, motion pictures, video cassettes or video repro- ductions, slides, or other visual representations which depict or describe "specified sexual activities" or "specified anatanical areas"; or b. Instruments, devices, or paraphernalia which are designed for use in connection with "specified sexual activities". 3. ADULT CABARET means a nightclub, bar, restaurant, or similar crnmercial establishment which regularly features: a. Persons who appear in a state of nudity; or J b. Live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or c. Films, motion pictures, video cassettes, slides, or other pho- tographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas". 4. ADULT ENCOUNTER PARLOR means an establishment whose major business is the provision of premises where customers either congregate, associate, or consort with employees who engage in specified sexual activities with or in the presence of such custaners, or who display specified anatomical areas in the presence of such custaners, with the intent of providing sexual stimulation or sexual gratification to such custaners. i I 5. ADULT LOUNGE means an adult cabaret, as defined above, which is a per- mitted or licensed premises, pursuant to the Texas Alcoholic Beverage Code, where alcoholic beverages may be served or sold. 6. ADULT MODELING STUDIO means an establishment whose major business is the provision, to custaners, of figure models who are so provided with the intent of providing sexual stimulation or sexual gratification to such custaners and who engage in specified sexual activities or display specified anatonical areas while being observed, painted, painted upon, sketched, drawn, sculptured, photographed, or otherwise depicted by such customers. 7. 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 pho- tographic reproductions which are characterized by the depiction of description of "specified sexual activities" or "specified anatani- cal areas"; and/or has a sign visible fran the public right of way which advertises the availability of this adult type of pho- tographic reproductions; or b. allows a tenant or occupant of a sleeping roan to subrent the roan for a period of time that is less than 10 hours. S. ADULT MOTION PICTURE THEATER means a cammercial 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". 9. ADULT THEATER means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of "specified anatonical areas" or by "specified sexual activities". 10 APPLICANT means the applicant for a permit shall be the operator of the sexually oriented business. 11. ARCADE DEVICE means any coin or slug -operated or electronically or mechanically controlled machine or device that dispenses or effectuates the dispensing of entertainment, that is intended for the viewing of five (5) or fewer persons in exchange for any payment of any consideration. 12. CHIEF OF POLICE means the chief of police of the City of Stephenville or his designated agent. 13. CHURCH means a building, whether situated within the city or not, in which persons regularly assemble for religious worship intended pri- marily for purposes connected with such worship or for propagating a particular form of religious belief. 14. CONDUCT ANY BUSINESS IN A SEXUALLY ORIENTED BUSINESS means any person who does any one (1) or more of the following shall be deemed to be conducting a business in a sexually oriented business: a. Operates a cash register, cash drawer or other depository on the sexually oriented business premises where cash funds or records of credit card or other credit transactions generated in any manner by the operation of the sexually oriented business or the activities conducted therein are kept; b. Displays or takes orders from goods, entertainment or other oriented business premises; any customer for any merchandise, services offered on the sexually c. Delivers or provides to any customer any merchandise, goods, enter- tainment or other services offered on the sexually oriented busi- ness premises; d. Acts as a door attendant to regulate entry of customers or other persons into the sexually oriented business premises; or e. Supervises or manages other persons in the performance of any of the foregoing activities on the sexually oriented business premises. 15. CUSTOMER means any person who: a. Is allowed to enter a regulated sexually oriented business in return for the payment of an admission fee or any other form of consideration or gratuity; or b. Enters a regulated sexually oriented business and purchases, rents or otherwise partakes of any merchandise, goods, entertainment or other services offered therein; or c. Is a member of and is on the premises of a regulated sexually oriented business operating as a private club. 16. EMPLOYEE means any person who renders any service whatsoever to the customers of a regulated sexually oriented business or who works in or about a regulated sexually oriented business and who receives compen- sation for such service or work from the operator or owner of the regu- lated sexually oriented business or fran the customers therein. 17. ENTERTAINMENT means any act or performance, such as a play, skit, reading, revue, pantomime, scene, song, dance, musical rendition, or striptease, whether performed by Employees, agents, contractors, or customers. The tern "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. 18. 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 simi- larly depicted by other persons who pay money or any form of consideration. 19. NUDITY OR A STATE OF NUDITY means the appearance of a human bare but- tock, anus, male genitals, fEnale genitals, or female breast. 20. OPERATOR means the manager or other natural person principally in charge of a regulated sexually oriented business. 21. OWNER OR OWNERS shall mean the proprietor if a sole proprietorship, all partners (general and limited) if a partnership, or all officers, directors, and persons holding ten (10) percent or more of the outstanding shares if a corporation. The tern "owner" shall not include any such person who has given to the operator a statement under oath that he does not desire to be listed on the permit application and that he waives any right to any notice that is required or permitted to be given under this ordinance. 22. PERMIT means a current, valid permit issued by the City Inspector pur- suant to the terms of this ordinance to an operator for a sexually oriented business. 23. PERSON means an individual, proprietorship, partnership, corporation, association, or other legal entity. 24. REGULATED ESTABLISHMENT means any sexually oriented business, as defined herein. 25. RESIDENTIAL pertains to the use of land, whether situated within the city or not, for premises such as homes, townhomes, patio hones, mobile hones, duplexes, condominiums and apartment conplexes, which contain habitable roams for nontransient occupancy and which are designed primarily for living, sleeping, cooking, and eating therein. A premises which is designed primarily for living, sleeping, cooking, and eating therein shall be deemed to be residential in character unless it is actually occupied and used exclusively for other purposes. 26. SEXUALLY ORIENTED BUSINESS means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, or nude model studio. 27. SPECIFIED ANATCMICAL AREAS : a. Less than completely and opaquely covered: 1. Hunan genitals, pubic region or pubic hair; or 2. Buttock; or 3. Female breast or breasts below a point immediately above the top of the areola; or 4. Any canbinations of the foregoing; or b. Hunan male genitals in a discernibly erect state, even if canple- tely and opaquely covered. 28. SPECIFIED SEXUAL ACTIVITIES means and includes any of the following: a. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts; b. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; c. Masturbation, actual or simulated; or d. Excretory functions as part of or in connection with any of the activities set forth in (a) through (c) above. 29. TRACT means a contiguous parcel of land under caimon ownership, whether situated within the city or not. C. LOCATION OF SEXUALLY ORIENTED BUSINESSES: 1. A person commits an offense if he operates or causes to be operated a sexually oriented business within 1,000 feet of: a. A church; b. A public or private elementary or secondary school; c. Residentially zoned property; d. A public park; or e. A lot devoted to residential use. f. Another sexually oriented business. 2. A person cc nits an offense if he causes or permits the operation, establishment, or maintenance of more than one sexually oriented busi- ness 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. 3. A person cannits an offense if he operates or causes to be operated, a sexually oriented business without a permit for said business issued by the designated agent of the City of Stephenville. 4. For the purposes of Subparagraph (1) above, 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 public or private elementary or secondary school, licensed day care center, or to the nearest boundary of an affected public park, residential district, or residential lot. 5. For purposes of Subparagraph (1-f) above, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, fran the closest exterior wall of the structure in which each business is located. 6. Any sexually oriented business lawfully operating prior to the effec- tive date of this ordinance, that is in violation of Subparagraph (1) or (2), of this paragraph shall be deaned a nonconforming use. The nonconforming use will be permitted to continue for a period of not to exceed six (6) months, unless sooner terminated for any reason or voluntarily discontinued for a period of 30 days or more. Such noncon- forming use 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 permissable 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(es) is nonconforming. 7. A sexually oriented business lawfully operating as a conforming use after the effective date of this ordinance is not rendered a noncon- forming use by the location, subsequent to the operation of the sexually oriented business, of a church, public or private elementary or secondary school, public park, residential district, or residential lot within 1,000 feet of the sexually oriented business. D. ADDITIONAL REGULATIONS FOR ADULT MOTELS. 1. Evidence that a sleeping roan in a hotel, motel, or similar cannercial establishment has been rented and vacated 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 section. 2. For purposes of Subparagraph (1) of this paragraph, the terms "rent" or "subrent" mean the act of permitting a roan to be occupied for any form of consideration. E. PERMIT - REQUIRED: 1. It shall be unlawful for any person to own, operate or conduct any sexually oriented business located within the city unless there is a permit for the sexually oriented business. 2. It shall be unlawful for any person to own, operate, or conduct any sexually oriented business located within the city unless the permit is posted at or near the principal public entrance to the sexually oriented business in such a manner that it will be conspicuous to patrons who enter the prenises. 3. In any prosecution under Subsection (1) 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 (2). F. APPLICATION FOR PERMIT 1. Application for a permit, whether original or renewal, must be made to the designated agent of the City of Stephenville by the intended opera- tor of the sexually oriented business. Applications must be submitted by hand delivery to the City Hall during regular business hours (8:30 a.m. to 5:00 p.m., Monday through Friday, city holidays excepted). Application forms shall be supplied by the City of Stephenville. The intended operator shall be required to give the following information on the application form: a. The name, street address (and mailing address if different) and Texas driver's license number of the intended operator, and any and all aliases. Notification required within 48 hours of change of operator. Information required as stated above. The name and street address (and mailing address if different) of the owner(s). Corporations shall be required to have written authorization from the president or chief executive officer. b. The name under which the sexually oriented business is to be operated and a general description of the services to be provided; c. The telephone number of the sexually oriented business; d. The address, and legal description of the parcel of land on which the sexually oriented business is to be located; e. The date on which the owner(s) acquired the sexually oriented busi- ness for which the permit is sought, and the date on which the sexually oriented business began operations at the location for which the permit is sought; and f. A list of all employees or contractors involved in providing the services to be provided by the sexually oriented business. 2. The application shall be accanpanied by the following: a. The application shall be accanpanied by a diagram of the sexually oriented business showing a plan thereof and designating any por- tion of the sexually oriented business in which patrons will be not be permitted. Such diagram shall also designate the place at which the permit will be 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 sane 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 sexually oriented business. The designated agent of the City of Stephenville shall waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the sexually oriented business has not been altered since it was prepared. b. Original application fee. (Fee to be set annually by the City Council). c. Renewal applications fee. (Fee to be set annually by the City Council). Payment of application fee to be made by certified check, cashiers check or money order, which fee shall not be refundable under any circumstances. d. The application shall contain a statement under oath that: That applicant has 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. e. A separate application and permit shall be required for each sexually oriented business. G. ISSUANCE OR DENIAL OF PERMIT APPLICATION 1. Within twenty (20) days of receipt of any application, either original or renewal, the designated agent of the City of Stephenville shall grant or deny the requested permit and give written notice to the applicant as to the decision. 2. The designated agent of the City of Stephenville shall issue a permit to the applicant unless one (1) or more of the following conditions exist: a. The applicant's sexually oriented business is located within 1,000 feet of any school, church, licensed day care center, residentially zoned property, public park, lots devoted to residential use, or another sexually oriented business. Measurements shall be made as outlined in Section (C-4, C-5). b. The applicant failed to supply all of the information requested on the application; c. The applicant gave materially false, fraudulent or untruthful information on the application; d. The application or the sexually oriented business does not meet any other requirement of this ordinance. e. The applicant has not fully complied with all state, federal and local laws or regulations affecting the conduct of its business; or f. The operator has had a permit revoked for the same sexually oriented business within the one -hundred -eighty -day period next preceeding the date that the application was filed. H. TERM OF PERMIT Each permit shall be valid for a period of one (1) year and shall expire on the anniversary of its date of issuance, unless sooner revoked, or surren- dered. Each permit shall be subject to renewal as of its expiration date by the filing of a renewal application with the designated agent of the City of Stephenville. Renewal applications must be filed at least twenty (20) days prior to the expiration date of the permit that is to be renewed. I. REVOCATION OR SUSPENSION OF PERMIT 1. The designated agent of the City of Stephenville shall have the authority to revoke a permit for any one (1) or more of the following reasons: a. The owner or operator of the permitted sexually oriented business knowingly allowed a person under seventeen (17 ) years of age to enter a sexually oriented business; b. The permitted sexually oriented business does not conform to the provisions of Section (K) of this article; c. Three (3) or more cimmlative violations of any of the offenses con- tained 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 permitted sexually oriented business. These violations must have occurred in a con- secutive period of twelve (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; d. The operator of the permitted sexually oriented business gave materially false, fraudulent or untruthful information on the ori- ginal, or renewal application form; e. The sexually oriented business has been closed for business for a period of thirty (30) consecutive days, unless such closure is due to circumstances beyond the control of the owner, and the owner is proceeding with due diligence, given all attendant circLrmtences, to reopen the establishment. J. OTHER PERMIT PROVISIONS 1. Permit is valid only at the location for which it is issued; 2. It shall be unlawful for any person to counterfeit, forge, change, deface, or alter a permit; 3. A permit may be cancelled upon written request of the owner(s) or operator and surrender of the permit itself to the designated agent of the City of Stephenville. Permits shall be surrendered at the same place and at the same time as permit applications as provided in Section F (1) of this Ordinance. The surrender of a permit shall be effective upon its filing in the office of the designated agent of the City of Stephenville K. EXTERIOR PORTIONS OF SEXUALLY ORIENTED BUSINESSES 1. It shall be unlawful for an owner or operator of a sexually oriented business to allow the merchandise or activities of the sexually oriented business to be visible from any point outside such sexually oriented business; 2. It shall be unlawful for the owner or operator of a sexually oriented business to allow the exterior portions of the sexually oriented busi- ness to have flashing lights, or any words, lettering, photographs, silhouettes, drawings, or pictorial representations of any manner; M. ENFORCEMENT 1. Except as provided by Subparagraph (3) below, any person violating Paragraph C, upon conviction, shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00) for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. 2. Except as provided by Subparagraph (3) below, any person violating any provision of this ordinance other than Paragraph C shall be punished by a fine not to exceed Two Hundred Dollars ($200.00) for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. 3. If the sexually oriented business involved is a nude model studio, then a violation of this ordinance shall be punishable as a Class B misdemeanor. 4. It is a defense to prosecution under Paragraph C that a person appearing in a state of nudity did so in a modeling class operated: a. By a proprietary school licensed by the state of Texas; a college, junior college, or university supported entirely or partly by taxa- tion; b. By a private college or university which maintains and operates educational programs in which credits are transferrable to a college, junior college, or university supported entirely or partly by taxation; or c. In a structure: 1. Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and 2. where in order to participate in a class a student must enroll at least three days in advance of the class; and 3. Where no more than one nude model is on the premises at any one time. This ordinance shall go into effect from and after its passage and publica- tion as required by law. PASSED AND APPROVED this 2nd day of June, 1987. Larry ett, Mayor ATTEST: C, L� ity retary J