ORDINANCE NO. 99-25

SEXUALLY ORIENTED BUSINESSES


AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF TAYLOR, TEXAS, RELATING TO THE REGULATION OF SEXUALLY ORIENTED BUSINESSES WITHIN THE CITY OF TAYLOR, TEXAS; INCLUDING ZONING REGULATIONS AND LICENSING REQUIREMENTS OF SUCH BUSINESSES; MAKING VARIOUS PROVISIONS AND FINDINGS RELATED THERETO; PROVIDING AN ENFORCEMENT AND PENALTY CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING AND REPEALING CLAUSE.

WHEREAS, Section 215.074 of the Local Government Code authorizes home rule municipalities to regulate the location and conduct of theaters, movie theaters and other places of public amusement; and

WHEREAS, Section 215.075 of the Local Government Code authorizes home rule municipalities to license any lawful business or occupation that is subject to the police power of the municipality; and

WHEREAS, Section 54.004 of the Local Government Code authorizes home rule municipalities to enforce ordinances necessary to protect health, life, and property and to preserve the good government, order, and security of the municipality and its inhabitants; and

WHEREAS, the Texas Legislature has determined that the unrestricted operation of certain sexually oriented businesses may be detrimental to the public health, safety, and welfare by contributing to the decline of residential and business neighborhoods and the growth of criminal activity; and

WHEREAS, Section 243.003 of the Local Government Code authorizes municipalities and counties to adopt regulations restricting the location of sexually oriented businesses, which are defined in Section 243.002 to include a massage parlor, nude studio, modeling studio, topless dancing bar, love parlor, or other similar commercial enterprise the major business of which is the offering of a service that is intended to provide sexual stimulation or sexual gratification to the customer; and

WHEREAS, the City Commission finds that sexually oriented businesses tend to require special supervision from 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 residents of the City; and

WHEREAS, the City Commission finds that sexually oriented businesses are frequently used for unlawful sexual activities including prostitution and sexual liaisons of a casual nature; and

WHEREAS, the City Commission finds that churches and schools are centers of family oriented activities; and

WHEREAS, the City Commission finds that sexually oriented businesses can exert a dehumanizing influence on persons attending churches or schools in the surrounding area; and

WHEREAS, the City Commission finds a concentration of sexually oriented businesses can contribute to a decline in the value of surrounding properties; and

WHEREAS, the City Commission finds that a concentration of sexually oriented businesses can contribute to an increase in criminal activities in surrounding areas; and

WHEREAS, the City Commission finds that sexually oriented businesses having alcoholic beverage licenses and permits exert the same influences on churches and schools, have the same effect on property values, and contribute in the same manner to criminal activities as do those which do not serve alcohol, and that they should be included in the scope of the regulations regarding sexually oriented businesses; and

WHEREAS, the City Commission finds that sexually oriented businesses exert the same influences on day care centers as on churches and schools, and that child care facilities should be afforded the same degree of land use protection; and

WHEREAS, the City Commission acknowledges that sexually oriented businesses should be located in particular areas; and

WHEREAS, the City Commission recognizes that sexually oriented businesses should not be located near churches, schools or within residential areas; and

WHEREAS, in order to protect the health and welfare of all residents within the City of Taylor, the City Commission has found it necessary to restrict the areas in which sexually oriented businesses shall be located.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF TAYLOR, TEXAS:

Section 1. PURPOSE AND INTENT


(a) It is the purpose and intent of this Ordinance 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 Ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this Ordinance 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) It is the intent of the City Commission that this Ordinance is promulgated pursuant to V.T.C.A., Local Government Code §243.001, et. seq. It is the intent of the City Commission that all other provisions of this Ordinance are promulgated pursuant to the Taylor City Charter and V.T.C.A., Local Government Code §51.001 and V.T.C.A., Local Government Code §51.072, and all other applicable laws which may pertain to this Ordinance.

 

Section 2. DEFINITIONS

In this Ordinance:

(1) "Achromatic" means colorless or lacking in saturation or hue. The term includes, but is not limited to, grays, tans, and light earth tones. The term does not include white, black, or any bold coloration that attracts attention.

(2) "Adult Arcade" means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of "specified sexual activities" or "specified anatomical areas".

(3) "Adult Bookstore" or "Adult Video Store" means a commercial establishment that as one of its principal business purposes 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 photographs, film, motion pictures, video cassettes or video reproductions, slides, or other visual representations that depict or describe "specified sexual activities" or "specified anatomical areas"; or

(B) instruments, devices, or paraphernalia that are designed for use in connection with "specified sexual activities".

(4) "Adult Cabaret" means a commercial establishment that regularly features the offering to customers of live entertainment that:

(A) is intended to provide sexual stimulation or sexual gratification to such customers; and

(B) is distinguished by or characterized by an emphasis on matter depicting, simulating, describing, or relating to "specified anatomical areas" or "specified sexual activities".

(5) "Adult Motel" means hotel, motel, or similar commercial establishment that:

(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 that 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 that advertises the availability of this adult type of photographic reproductions; or

(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.

(6) "Adult Motion Picture Theater" means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown that are characterized by the depiction or description of "specified sexual activities" or "specified anatomical area".

(7) "Adult Theater" means a theater, concert hall, auditorium, or similar commercial establishment that regularly features persons who appear in a state of nudity or live performances that are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities".

(8) "Chief of Police" mean the Chief of Police of the City of Taylor or the Chief's designated agent.

(9) "Child-Care Facility" means a building used as a day nursery, children's boarding home, child placing agency or other place for the care or custody of children under fifteen years of age, licensed by the State of Texas, pursuant to Vernon's Texas Civil Statutes. (TEX.HUM.RES.CODE ANN §42.041 (Vernon 1990));

(10) "Church" means a building in which persons regularly assemble for worship, intended primarily for purposes connected with faith, or for propagating a particular form or belief;

(11) "City" means the City of Taylor, Texas.
(12) "Escort" means a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.

(13) "Escort Agency" means a person or business association that furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes, for a fee, tip, or other consideration.

(14) "Establishment" means and includes any of the following:

(A) the opening or commencement of any sexually oriented business as a new business;

(B) the conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;

(C) the addition of any sexually oriented business to any other existing sexually oriented business; or

(D) the relocation of any sexually oriented business.

(15) "Historic District" means any historic district located in the City.

(16) "Hospital" means a building used to provide health services for human in-patient medical care for the sick or injured licensed pursuant to the Texas Hospital Licensing Law (Tex.Civ.Stat.Ann. art4437F (Vernon 1976)) or operated by an agency of the federal government, or a convalescent facility licensed pursuant to Vernon's Texas Civil Statutes (TEX. HEALTH & SAFETY CODE ANN §242.031 (Vernon 1992));

(17) "Licensee" means a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license.

(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 similarly depicted by other persons who pay money or any form of consideration.

(19) "Operates or causes to be operated" means to cause to function or to put or keep in operation. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner, part owner, or licensee of the business.

(20) "Nudity" or a "State of Nudity" means:

(A) the appearance of a human bare buttock, anus, male genitals, female genitals, or female breast; or

(B) a state of dress that fails to completely and opaquely covers a human buttock, anus, male genitals, female genitals or any part of the female breast or breasts that is situated below a point immediately above the top of the areola.

(21) "Person" means an individual, proprietorship, partnership, corporation, association, or other legal entity.

(22) "Residential District" means a single family, duplex, townhouse, multiple family, or "mobile home park and mobile home subdivsion" zoned for residential use.

(23) "Residential Use" means a single family, duplex, multiple family, or "mobile home park, mobile home subdivision, and campground" used for residential purposes.

(24) "School" means a building where persons regularly assemble for the purposes of instruction or education together with the playgrounds, dormitories, stadiums, and other structures or ground used in conjunction therewith;

(25) "Sexual Encounter Center" means a business or commercial enterprise that, as one of its primary business purposes, offers for any for of consideration:

(A) physical contact in the form of wrestling or tumbling between persons of the opposite sex; or

(B) activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity.

(26) "Sexually Oriented Business" means a sex parlor, nude studio, modeling studio, topless bar, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel, adult cabaret, adult theater, escort agency, sexual encounter center, or other commercial enterprise the primary business of which is the offering of a service or the selling, renting or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer;

(27) "Sign" means any display, design, pictorial, or other representation that is:

(A) constructed, placed, attached, painted, erected, fastened, or manufactured in any manner whatsoever so that it is visible from the outside of a sexually oriented business; and

(B) used to seek the attraction of the public to any goods, services, or merchandise available at the sexually oriented business.

The term "sign" also includes any representation painted on or otherwise affixed to any exterior portion of a sexually oriented business establishment or to any part of the tract upon which the establishment is situated.

(28) "Specified Anatomical Areas" means:

(A) any of the following, or any combination of the following, when less than completely and opaquely covered:

i. any human genitals, pubic region, or pubic hair;

ii. any buttock; or

iii. any portion of the female breast or breasts that is situated below a point immediately above the top of the areola; or

(B) human male genitals in a discernibly erect state, even if completely and opaquely covered.

(29) "Specified Sexual Activities" means and includes any of the following:

(A) the fondling or other erotic touching of human genitals, pubic region, buttock, anus, or female breasts;

(B) sex acts, normal or perverted, actual or stimulated, including intercourse, oral copulation, or sodomy;

(C) masturbation, actual or stimulated, or

(D) excretory functions as part of or in connection with any of the activities set forth in Paragraphs (A) through (C) of this subsection.

(30) "Substantial Enlargement" of a sexually oriented business means the increase in floor area occupied by the business by more than 25 percent, as the floor area exists on August 31, 1999.

(31) "Transfer of ownership or control" of a sexually oriented business means and includes any of the following:

(A) the sale, lease, or sublease of the business;

(B) the transfer of securities that constitute a controlling interest in the business, whether by sale, exchange, or similar means; or

(C) the establishment of a trust, gift, or other similar legal device that transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.

 

Section 3. CLASSIFICATION

Sexually oriented businesses may be classified by the Chief of Police.

 

Section 4. LICENSE REQUIRED

(a) A person commits an offense if he operates a sexually oriented business without a valid license, issued by the City for the particular type of business.

(b) An application for a license must be made on a form provided by the Chief of Police. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but must be drawn to a designated scale or drawn with marked dimensions or the interior of the premises to an accuracy of plus or minus six inches. Applicants who must comply with Section 19 of this Ordinance shall submit a diagram meeting the requirements of Section 19.

(c) The applicant must be qualified according to the provisions of this Ordinance.

(d) If a person who wishes to operate a sexually oriented business is an individual, he must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a 20 percent or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under Section 5 and each applicant shall be considered a licensee if a license is granted.


Section 5. ISSUANCE OF LICENSE

(a) The Chief of Police shall approve the issuance of a license to an applicant within 30 days after receipt of an application unless the Chief of Police finds one or more of the following to be true:

(1) An applicant is under 17 years of age.

(2) An applicant or an applicant's spouse is overdue in payment to the City of taxes, fees, fines, or penalties assessed against or imposed upon the applicant or the applicant's spouse in relation to a sexually oriented business.

(3) An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form.

(4) An applicant or an applicant's spouse has been convicted of a violation of a provision of this Ordinance, other than the offense of operating a sexually oriented business without a license, within two years immediately preceding the application.

(5) Any fee required by this Ordinance has not been paid.

(6) An applicant has been employed in a sexually oriented business in a managerial capacity within the preceding 12 months and has demonstrated an inability to operate or manage a sexually oriented business premises in a peaceful and law-abiding manner, thus necessitating action by law enforcement officers.

(7) An applicant or the proposed establishment is in violation of or is not in compliance with Sections 8, 12, 13, 15, 16, 17, 18, 19 or 20.

(8) 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;
(ee) obscenity;
(ff) sale, distribution, or display of harmful material to minor;
(gg) sexual performance by a child;
(hh) possession of child pornography;

ii. 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;

iii. sexual assault or aggravated sexual assault as described in Chapter 22 of the Texas Penal Code;

iv. incest, solicitation of a child, or harboring a runaway child as described in Chapter 25 of the Texas Penal Code; or

v. criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses;

(B) for which:

i. less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;

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

iii. 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 occurring within any 24-month period.

(b) The fact that a conviction is being appealed has no effect on the disqualification of the applicant or applicant's spouse under Subsection (a).

(c) An applicant who has been convicted or whose spouse has been convicted of an offense listed in Subsection (a)(8)(A) may qualify for a sexually oriented business license only when the time period required by Subsection (a)(8)(B) has elapsed.

(d) The Chief of Police, upon approving issuance of a sexually oriented business license, shall send to the applicant, by certified mail, return receipt requested, written notice of that action and state where the applicant must pay the license fee and obtain the license. The Chief of Police's approval of the issuance of a license does not authorize the applicant to operate a sexually oriented business until the applicant has paid all fees required by this Ordinance and obtained possession of the license.

(e) The license, if granted, must state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. The license must 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 6. FEES

(a) The annual fee for a sexually oriented business license is $750.00.

(b) In addition to the fees required by Subsection (a), an applicant for an initial sexually oriented business license shall, at the time of making application, pay a nonrefundable fee of $720.00 for the City to conduct a survey to ensure that the proposed sexually oriented business is in compliance with the locational restrictions set forth in Section 13.

Section 7. INSPECTION

(a) An applicant or licensee shall permit representatives of the Police Department, the Fire Department, the City Code Enforcement Officer, and the City Building Inspector to inspect the premises of a sexually oriented business, for the purpose of ensuring compliance with the law, at any time it is occupied or open for business.

(b) A person who operates a sexually oriented business or his agent or employee commits an offense if he refuses to permit a lawful inspection of the premises by a representative of the Police Department at any time it is occupied or open for business.

(c) The provisions of this section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation.

Section 8. EXPIRATION OF LICENSE

Each license expires one year from the date of issuance, except that a license issued pursuant to a locational restriction expires on the date the exemption expires. A license may be renewed only by making application as provided in Section 4. Application for renewal should be made at least 30 days before the expiration date, the expiration of the license will not be affected by the pendency of the application.

Section 9. SUSPENSION

The Chief of Police shall suspend a license for a period not to exceed 30 days if he determines that a license or an employee of a license has:

(1) violated or is not in compliance with Sections 7, 12, 13, 15, 16, 17, 18, 19 or 20 of this Ordinance;

(2) engaged in excessive use of alcoholic beverages while on the sexually oriented business premises;

(3) refused to allow an inspection of the sexually oriented business premises as authorized by this Ordinance;

(4) knowingly permitted gambling by any person on the sexually oriented business premises;

(5) demonstrated inability to operate or manage a sexually oriented business in a peaceful and law-abiding manner thus necessitating action by law enforcement officers.

Section 10. REVOCATION

(a) The Chief of Police shall revoke a license if a cause of suspension in Section 9 occurs and the license has been suspended within the preceding 12 months.

(b) The Chief of Police shall revoke a license if the Chief of Police determines that:

(1) a licensee gave false or misleading information in the material submitted to the Chief of Police during the application process;

(2) a license or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises;

(3) a licensee or an employee has knowingly allowed prostitution on the premises;

(4) a licensee or an employee knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended;

(5) a licensee has been convicted of an offense listed in Section 5(a)(8)(A) for which the time period required in Section 5(a)(8)(B) has not elapsed;

(6) on two or more occasions within a 12-month period, a person committed an offense occurring in or on the licensed premises of a crime listed in Section 5(a)(8)(A) for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed;

(7) a licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in or on the licensed premises. The term "sexual contact" shall have the same meaning as it is defined in Section 21.02, Texas Penal Code; or

(8) a licensee is delinquent in payment to the City for hotel occupancy taxes, ad valorem taxes, or sales taxes related to the sexually oriented business.

(c) The fact that a conviction is being appealed shall have no effect on the revocation of the license.

(d) Subsection (b)(7) does not apply to adult motels as a ground for revoking the license unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in a public place or within public view.

(e) When the Chief of Police revokes a license, the revocation shall continue for one year and the licensee shall not be issued a sexually oriented business license for one year from the date revocation became effective. If, subsequent to revocation, the Chief of Police finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license was revoked under Subsection (b)(5), an applicant may not be granted another license until the appropriate number of years required under Section 5(a)(8)(B) has elapsed.

Section 11. APPEAL

If the Chief of Police denies the issuance or renewal of a license, or suspends or revokes a license, the Chief of Police shall send to the applicant or licensee, by certified mail, return receipt requested, written notice of the action and the right to an appeal. Upon receipt of written notice of the denial, suspension, or revocation, the applicant or licensee whose application for a license or license renewal has been denied or whose license has been suspended or revoked has the right to appeal to the state district court. An appeal to the state district court must be filed within 30 days after the receipt of notice of the decision of the Chief of Police. The applicant or licensee shall bear the burden of proof in court.

Section 12. TRANSFER OF LICENSE

A licensee shall not transfer his license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application.

Section 13. LOCATION OF SEXUALLY ORIENTED BUSINESSES

(a) A person commits an offense if he operates or causes to be operated a sexually oriented business within 1,500 feet of:

(1) a church;

(2) a public or private elementary or secondary school;

(3) a boundary of a residential or historic district as defined in this Ordinance;

(4) a public park;

(5) the property line of a lot devoted to a residential use as defined in this Ordinance;

(6) a hospital; or

(7) a child-care facility.

(b) A person commits an offense if he causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 1,500 feet of another sexually oriented business.

(c) A person commits an offense if he causes or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion of a building or structure, or the increase of floor area of any sexually oriented business in any building, structure, or portion of a building or structure containing another sexually oriented business.

(d) For the purposes of Subsection (a), measurement must 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, public or private elementary or secondary school, hospital, or child-care facility or to the nearest boundary of an affected public park, residential district, historic district, or residential lot.

(e) For purposes of Subsection (b) of this section, the distance between any two sexually oriented businesses must be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.

(f) Any sexually oriented business lawfully operating on August 31, 1999, that is in violation of Subsections (a), (b), or (c) of this section is a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed six months, unless sooner terminated for any reason or voluntarily discontinued for a period of 30 days or more. The nonconforming use may 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 1,500 feet of one another and otherwise in a permissible location, the sexually oriented business that was first established and continually operating at a particular location is the conforming use and the later-established business(es) is nonconforming.

(g) An owner of a nonconforming sexually oriented business who cannot recoup actual investments in the use by March 1, 2000, may request an extension of the compliance date from the Zoning Commission. The request must be in writing and filed with the Zoning Commission on or before February 1, 2000. No application for an extension that is received by the Zoning Commission after February 1, 2000, may be considered.

(h) The Zoning Commission shall conduct a hearing on the request for extension in accordance with applicable procedures set forth for the Zoning Commission. If the Zoning Commission determines that the owner of the nonconforming sexually oriented business cannot recoup actual investments in the use by March 1, 2000, it may, by written order, provide a new compliance date to the owner. Any extension granted by the Zoning Commission must specify a date certain for closure of the sexually oriented business and is not valid for operation of the business at any other location.

(i) The Zoning Commission's decision on a request for an extended compliance date is final unless appealed to the district court within 10 days in accordance with Chapter 211 of the Texas Local Government Code.

(j) A sexually oriented business that remains in operation pursuant to an extension granted under this section is not considered as having a license for purposes of measuring distances between a sexually oriented business and a church, a public or private elementary or secondary school, a boundary of a residential or historic district, a public park, the property line of a lot devoted to a residential use, a hospital, a child-care facility, or another sexually oriented business, as required in Section 13.

(k) A sexually oriented business fully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business license, of a church, public or private elementary or secondary school, public park, residential district, historic district, residential lot, hospital, or child-care facility within 1,500 feet of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application for a license is submitted after a license has expired or has been revoked.

(l) All sexually oriented businesses shall be located only in a M-2 District as defined by the Taylor Land Development Code, provided a special land use exception has been granted to the applicant for such location in the M-2 District.

Section 14. EXEMPTION FROM LOCATION RESTRICTIONS

(a) If the Chief of Police denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of Section 13 of this Ordinance, then the applicant may, not later than 10 calendar days after receiving notice of the denial, file with the City Clerk a written request for an exemption from the locational restrictions of Section 13.

(b) If the written request is filed with the City Clerk within the 10-day limit, the Board of Adjustments and Appeals shall consider the request. The City Clerk shall set a date for the hearing within 60 days from the date the written request is received.

(c) A hearing by the board may proceed if a majority of the board members are present. The board shall hear and consider evidence offered by any interested person. The formal rules of evidence do not apply.

(d) The Board of Adjustments and Appeals may, in its discretion, grant an exemption from the locational restrictions of Section 13 if it makes the following findings:

(1) that the location of the proposed sexually oriented business will not have a detrimental effect on nearby properties or be contrary to the public safety or welfare;

(2) that the granting of the exemption will not violate the spirit and intent of this Ordinance;

(3) that the location of the proposed sexually oriented business will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban blight;

(4) that the location of an additional sexually oriented business in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any efforts of urban renewal or restoration; and

(5) that all other applicable provisions of this Ordinance will be observed.

 

(e) The Board of Adjustments and Appeals 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 Board of Adjustments and Appeals is final.

(f) If the board grants the exemption, the exemption is valid for one year from the date of the board's action. Upon the expiration of an exemption, the sexually oriented business is in violation of the locational restrictions of Section 13 until the applicant applies for and receives another exemption.

(g) If the board denies the exemption, the applicant may not re-apply for an exemption until at least 12 months have elapsed since the date of the board's action.

(h) The grant of an exemption does not exempt the applicant from any other provisions of this chapter other than the locational restrictions of Section 13.

Section 14.1 EXTERIOR PORTIONS OF SEXUALLY ORIENTED BUSINESSES

(a) An owner or operator of a sexually oriented business commits an offense if he allows:

(1) the merchandise or activities of the establishment to be visible from any point outside the establishment;

(2) the exterior portions of the establishment to have flashing lights, or any words, lettering, photographs, silhouettes drawings, or pictorial representations of any manner except to the extent permitted by this Ordinance; or

(3) the exterior portions of the establishment to be painted any color other than a single achromatic color, except that this paragraph does not apply to an establishment if the following conditions are met:

(A) the establishment is a part of a commercial multi-unit center; and

(B) the exterior portions of each individual unit in the commercial multi-unit center, including the exterior portions of the establishment, are painted the same color as one another or are painted in such a way as to be a component of the overall architectural style or pattern of the commercial multi-unit center.

(b) Nothing in this section requires the painting of an otherwise unpainted exterior portion of a sexually oriented business.

(c) The exterior of any sexually oriented business lawfully operating on August 31, 1999, is not required to comply with Subsections (a)(2) and (a)(3) of this section until alterations, repairs, remodeling, and repainting that cumulatively affect more than 50 percent of the exterior are performed on the sexually oriented business during any 12-month period.

Section 14.2 SIGN REQUIREMENTS

(a) Notwithstanding any provision of the Taylor Land Development Code or any other City ordinance, code, or regulation to the contrary, the owner or operator of any sexually oriented business or any other person commits an offense if he erects, constructs, or maintains any sign for the establishment other than one primary sign and one secondary sign, as provided in this section.

(b) A primary sign may have no more than two display surfaces. Each display surface must:

(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 10 feet in height or 10 feet in length.

(c) A secondary sign may have only one display surface. The display surface must:

(1) not contain any flashing lights;

(2) be a flat plane, rectangular in shape;

(3) not exceed 20 square feet in area;

(4) not exceed five feet in height or four feet in width; and

(5) be affixed or attached to a wall or door of the establishment.

(d) A primary or secondary sign must contain no photographs, silhouettes, drawings, or pictorial representations of any manner, and may contain only:

(1) the name of the establishment; and/or

(2) one or more of the following phrases:

(A) "Sex parlor".
(B) "Nude studio".
(C) "Modeling studio".
(D) "Topless bar".
(E) "Love parlor".
(F) "Adult bookstore".
(G) "Adult movie theater".
(H) "Adult video arcade".
(I) "Adult movie arcade".
(J) "Adult video store".
(K) "Adult motel".
(L) "Adult cabaret".
(M) "Adult theater".
(N) "Escort agency".
(O) "Sexual encounter agency".

(e) A primary sign for an adult motion picture theater may contain the phrase, "Movie Titles Posted on Premises", in addition to the phrases listed in Subsection (d)(2) of this section.

(f) Each letter forming a word on a primary or secondary sign must be of solid color, and each letter must be the same print-type, size, and color. The background behind the lettering on the display surface of a primary or secondary sign must be of a uniform and solid color.

(g) Notwithstanding the sign requirements of this section and Section 14.1, any sign lawfully existing on the premises of a lawfully operating sexually oriented business on August 31, 1999, may continue to be maintained on the premises, until:

(1) the sign is intentionally removed or destroyed by the owner or operator of the sexually oriented business or abandoned by the owner or operator of the sexually oriented business; or

(2) the City requires removal, relocation, or reconstruction of the sign in accordance with applicable state law.

Section 15. ADDITIONAL REGULATIONS FOR ESCORT AGENCIES

(a) An escort agency shall not employ any person under the age of 18 years.

(b) A person commits an offense if he acts as an escort or agrees to act as an escort for any person under the age of 18 years.

Section 16. ADDITIONAL REGULATIONS FOR NUDE MODEL STUDIOS

(a) A nude model studio shall not employ any person under the age of 18 years.

(b) A person under the age of 18 years commits an offense if he appears in a state of nudity in or on the premises of a nude model studio. It is a defense to prosecution under this subsection if the person under 18 years was in a restroom not open to public view or persons of the opposite sex.

(c) A person commits an offense if he appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude model studio premises that can be viewed from the public right-of-way.

(d) A nude model studio shall not place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception area open to the public.

(e) An employee of a nude model studio, while exposing any specified anatomical area, commits an offense if the employee touches a customer or the clothing of a customer.

(f) A customer at a nude model studio commits an offense if he touches an employee who is exposing any specified anatomical areas or touches the clothing of the employee.

(g) A licensee or an employee of a nude model studio commits an offense if he permits any customer access to an area of the premises not visible from the manager's station or not visible by a walk through of the premises without entering a closed area, excluding a restroom.

Section 17. ADDITIONAL REGULATIONS FOR ADULT THEATERS AND ADULT MOTION PICTURE THEATERS

(a) A person commits an offense if he knowingly allows a person under the age of 18 years to appear in a state of nudity in or on the premises of an adult theater or adult motion picture theater.

(b) A person under the age of 18 years commits an offense if he knowingly appears in a state of nudity in or on the premises of an adult theater or adult motion picture theater.

(c) It is a defense to prosecution under Subsections (a) and (b) of this section if the person under 18 years was in a restroom not open to public view of persons of the opposite sex.

Section 18. ADDITIONAL REGULATIONS FOR ADULT MOTELS

(a) Evidence that a sleeping room in a hotel, motel, or similar commercial establishment has been rented and vacated two or more times in a period of time that is less than 10 hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this Ordinance.

(b) A person commits an offense if, as the person in control of a sleeping room in a hotel, motel, or similar commercial establishment that does not have a sexually oriented business license, he rents or subrents a sleeping room to a person and, within 10 hours from the time the room is rented, he rents or subrents the same sleeping room again.

(c) For purposes of Subsection (b) of this section, the terms "rent" or "subrent" mean the act of permitting a room to be occupied for any form of consideration.

Section 18.1 ADDITIONAL REGULATIONS FOR ADULT CABARETS

(a) An employee of an adult cabaret, while exposing any specified anatomical areas, commits an offense if the employee touches a customer or the clothing of a customer.

(b) A customer at an adult cabaret commits an offense if he touches an employee who is exposing any specified anatomical areas or touches the clothing of the employee.

(c) A licensee or an employee of an adult cabaret commits an offense if he permits any customer access to an area of the premises not visible from the manager's station or not visible by a walk through of the premises without entering a closed area, excluding a restroom.

Section 19. REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS

(a) A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises in a viewing room of 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:

(1) Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed 32 square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram 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 Chief of Police may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.

(2) The application shall be sworn to be true and correct by the applicant.

(3) No alteration in the configuration or location of a manager's station may be made without the prior approval of the Chief of Police or his designee.

(4) It is the duty of the owners and 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.

(5) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station.

(6) It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in Subsection (5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times that any patron is present in the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection(1) of this section.

(7) The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than one (1.0) foot-candle as measured at the floor level.

(8) It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above, is maintained at all times that a patron is present in the premises.

(b) A person having a duty under Subsections (1) through (8) of Subsection (a) above commits an offense if he knowingly fails to fulfill that duty.

Section 20. DISPLAY OF SEXUALLY EXPLICIT MATERIAL TO MINORS

(a) A person commits an offense if, in a business establishment open to persons under the age of 17 years, he displays a book, pamphlet, newspaper, magazine, film, or video cassette, the cover of which depicts, in a manner calculated to arouse sexual lust or passion for commercial gain or to exploit sexual lust or perversion for commercial gain, any of the following:

(1) human sexual intercourse, masturbation, or sodomy;

(2) fondling or other erotic touching of human genitals, pubic region buttocks, or female breasts;

(3) less than completely and opaquely covered human genitals, buttocks, or that portion of the female breast below the top of the areola; or

(4) human male genitals in a discernibly turgid state, whether covered or uncovered.

(b) In this section "display" means to locate an item in such a manner that, without obtaining assistance from an employee of the business establishment:

(1) it is available to the general public for handling and inspection; or

(2) the cover or outside packaging on the item is visible to members of the general public.

SECTION 21. ENFORCEMENT AND PENALTY

(a) Any person, firm or corporation violating any of the provisions of this Ordinance shall be deemed guilty of a misdemeanor and, upon conviction in the municipal court of the City of Taylor, Texas, or any other Court of proper jurisdiction, shall be subject to a fine not to exceed the sum of Five Hundred Dollars ($500.00) for each offense, except however, where a different penalty has been established by state law for such offense the penalty shall be that fixed by state law, and for any offense which is a violation of any provision of law that governs fire safety, zoning, or public health and sanitation, the penalty shall be a fine not to exceed the sum of two thousand dollars ($2,000.00) for each offense; and each and every day said violation is continued shall constitute a separate offense.

(b) It is a defense to prosecution under Sections 4(a), 13, or 16(d) that a person appearing in a state of nudity did so in a modeling class operated:

(1) by a proprietary school licensed by the State of Texas; a college, junior college, or university supported entirely or partly by taxation;

(2) by a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or

(3) in a structure:

(A) 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

(B) where in order to participate in a class a student must enroll at least three days in advance of the class; and

(C) where no more than one nude model is on the premises at any one time.

(c) It is a defense to prosecution under Section 4(a) or Section 13 that each item of descriptive, printed, film, or video material offered for sale or rental, taken as a whole, contains serious literary, artistic, political, or scientific value.

Section 22. INJUNCTION

A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of Section 13 of this Ordinance is subject to a suit for injunction as well as prosecution for criminal violations.

Section 23. AMENDMENT

Sections 13 and 14 of this Ordinance may be amended only after compliance with the procedure required to amend a zoning ordinance.

Section 24. SEVERABILITY CLAUSE

If any provision of this Ordinance or its application to any person or circumstances is held invalid for any reason, the invalidity does not affect any other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this extent the provisions of this Ordinance are declared to be severable.

Section 25. SAVINGS CLAUSE

An offense committed before the effective date of this Ordinance is governed by the prior law in effect when the offense was committed and the former law is continued in effect for this purpose.

Section 26. REPEALING CLAUSE

All ordinances, parts of ordinances, or resolutions in conflict herewith are expressly repealed.

Section 27. PRONOUNS

All personal pronouns used in this Ordinance, whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural and vice versa.

INTRODUCED, PASSED, APPROVED and ADOPTED on the first reading this the24th day of August, 1999.

 

PASSED, APPROVED and ADOPTED on the second reading this the 31st day of August, 1999.

 

PASSED, APPROVED and ADOPTED on third and final reading this the 23rd day of September, 1999.

 

______________________________
Calvin Janak, Chairman
Board of Commissioners


ATTEST:

______________________________
Barbara S. Belz, City Clerk