HomeMy WebLinkAboutOrdinances (O-10-1765)-09/07/2010ORDINANCE 0-10-1765
AN ORDINANCE OF THE CITY OF COLLEYVILLE, TEXAS AMENDING AND
REPLACING ORDINANCE 0-88-671, AMENDING CHAPTER 22, ARTICLE 5
"SEXUALLY ORIENTED BUSINESSES" OF THE COLLEYVILLE CODE OF
ORDINANCES, PROVIDING A PENALTY OF FINE NOT TO EXCEED THE SUM OF
TWO THOUSAND DOLLARS ($2,000.00) FOR EACH OFFENSE; REPEALING
CONFLICTING ORDINANCES; PROVIDING A SAVINGS CLAUSE; AND PROVIDING
FOR AN EFFECTIVE DATE
WHEREAS, in the City of Colleyville, the current sexually oriented business regulations
have not been revised in light of recent changes in case law; and,
WHEREAS, the City of Colleyville, desires to promote the health, safety, morals and
general welfare of the citizens of the City, and to establish reasonable and
uniform regulations regarding Sexually Oriented Businesses within the
City; and,
WHEREAS, the City of Colleyville does not desire 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; and,
WHEREAS, the City of Colleyville deems the passage of this ordinance to be in the
best interest of its citizens.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
COLLEYVILLE, TEXAS:
Sec. 1. THAT all matters stated hereinabove are found to be true and correct and
are incorporated herein by reference as if copied in their entirety.
Sec. 2. THAT Ordinance 0-88-671 is hereby replaced and, Chapter 22, Article 5.
"Sexually Oriented Businesses" of the Colleyville Code of Ordinances be
amended as follows:
ARTICLE I
PURPOSE AND INTENT
Section 1.01 Adoption of Preamble
The findings contained in the preamble of this ordinance are determined to be true and
correct and are adopted as a part of this ordinance.
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Section 1.02 Purpose and Intent
It is the purpose of this Chapter 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 Chapter 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 neither the intent nor the'.
effect of this Chapter 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.
Section 1.03 Findings
Based on evidence concerning the adverse secondary effects of Sexually Oriented
Businesses on the community presented in hearings and in reports made available to
the City Council, and on findings incorporated in the cases of City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 427 U.S. 50
(1976); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991); City of Erie v. Pap's A. M., 529 U.S. 277, 120 S. Ct. 1382
(2000); City of Los Angeles v. Alameda Books, Inc., 122 S. Ct. 1728 (2002); : City of
Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); Baby Dolls Topless Saloons, Inc.
v. City of Dallas, 295 F.3d 471 (5th Cir. 2002); LLEH, Inc. v. Wichita County, Texas, 289
F.3d 358 (5th Cir. 2002); Mitchell v. Commission on Adult Entertainment, 10 F.3d 123
(3rd Cir. 1993); Schultz v. City of Cumberland, 228 F.3d 831 (7th Cir. 2000); Hang On,
Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); 2300, Inc. v. City of Arlington, 888
S.W.2d 123 (Tex. App. -Fort Worth, 1994); Colacurcio v. City of Kent, 163 F.3d 545
(9th Cir. 1998), cert denied, 529 U.S. 1053 (2000); Kev, Inc. v. Kitsap County, 793 F.2d
1053 (9th Cir. 1986); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153
(9th Cir. 2003); DLS, Inc. v. Chattanooga, 107 F.3d 403 (6th Cir. 1997); Jake's, Ltd.,
Inc. v. Coates, 384 F.3d 884 (8th Cir. 2002); H And A Land Corp. v. City of Kennedale,
Tex., 480 F.3d 336 (5th Cir. 2007), cert. denied, 128 S.Ct. 196; Fantasy Ranch, Inc. v.
City of Arlington, 459 F.3d 546 (5th Cir. 2006); N. W. Enterprises, Inc. v. City of Houston,
352 F.3d 162, 173 (5th Cir. 2003); Erotique Shop, Inc. v. City of Grand Prairie, Texas,
2006 WL 3422231 (N.D.Tex. Nov 28, 2006) (NO. 3:06-CV-2066-G); and on studies,
reports and/or testimony in other communities including, but not limited to: Phoenix,
Arizona; Minneapolis, Minnesota; St. Paul, Minnesota; Houston, Texas; Indianapolis,
Indiana; Dallas, Texas; Amarillo, Texas; Garden Grove, California; Los Angeles,
California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City,
Oklahoma; Cleveland, Ohio; Beaumont, Texas; Newport News, Virginia; Bellevue,
Washington; New York, New York; St. Croix County, Wisconsin; Kitsap County,
Washington; Los Angeles, California Police Department (dated August 12, 2003);
Arlington, Texas, License and Amortization Appeal Board hearings, 2001 and 2002;
Arlington Community Health Profile (dated July 2003); a summary of land use studies
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compiled by the National Law Center for Children and Families; Centralia, Washington -
2004; Greensboro, North Carolina - 2003; and also on findings of physical abuse from
the papers enuuea ~~~tnpciuos Hccoramg to ~tnppers: txposing vvorrcpiace ~exuai ~,
Violence," by Kelly Holsopple, Program Director, Freedom and Justice Center for''
Prostitution Resources, Minneapolis, Minnesota; Expert Report of Richard McCleary,
Ph.D., Dec. 18, 2004, and report of Richard McCleary, Ph.D., "Crime-Related
Secondary Effects", June 2008; Affidavits of Tom McCarren; "Sexually Oriented
Businesses: An Insider's View," by David Sherman, presented to the Michigan House
Committee on Ethics and Constitutional Law, Jan. 12, 2000; and the Report of the
Attorney General's Working Group On The Regulation Of Sexually Oriented
Businesses, (June 6, 1989, State of Minnesota, and also on findings from the Report of
the Attorney General's Working Group On The Regulation Of Sexually Oriented'.
Businesses (June 6, 1989, State of Minnesota), the City Council finds:
Sexually Oriented Businesses lend themselves to ancillary unlawful and
unhealthy activities that are presently uncontrolled by the operators of the
establishments. Further, absent municipal regulation aimed at reducing
adverse secondary effects there is no mechanism to make the owners of
these establishments responsible for the activities that occur on their
premises.
2. Certain employees of Sexually
ordinance as Sexually Oriented
Agency, and Sexually Oriented
certain types of illicit sexual
establishments.
Oriented Businesses, defined in this
Theater, Nude Model Business, Escort
cabaret, engage in higher incidence of
behavior than employees of other
3. Sexual acts, including masturbation, prostitution, sexual contact, and oral
and anal sex, occur at Sexually Oriented Businesses, especially those
which provide private or semi-private booths or cubicles, or rooms for
viewing films, videos, or live sex shows.
4. Offering and providing private or semi-private areas in Sexually Oriented
Businesses encourages such sexual activities, which creates unhealthy
conditions.
5. Persons frequent certain Sexually Oriented Theaters, Sexually Oriented
Arcades, and other Sexually Oriented Businesses for the purpose of
engaging in sex within the premises of such Sexually Oriented
Businesses.
6. At least 50 communicable diseases may be spread by activities occurring
in Sexually Oriented Businesses, including, but not limited to, syphilis,
gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital
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7
herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and
shigella infections.
Since 1981 and to the present, there has been an increasing cumulative
number of reported cases of AIDS (acquired immunodeficiency syndrome) I,
caused by the human immunodeficiency virus (HIV) in the United States: ',
600 in 1982; 2,200 in 1983; 4,600 in 1984; 8,555 in 1985, and 253,448 ''
through December 31, 1992.
8. As of December 31, 2001, there have been 57,199 reported cases of
AIDS in the State of Texas.
9. Since the early 1980s and to the present, there has been an increasing
cumulative number of persons testing positive for the HIV antibody test in
Tarrant County, Texas and across the State of Texas.
10
The number of cases of early (less than one year) syphilis in the United
States reported annually has risen, with 33,613 cases reported in 1982,
and 45,200 through November, 1990. According to Texas Department of
Health records there were 1,175 cases of early syphilis reported in the i
State of Texas during 2000 and an additional 972 cases reported in 2001. j
11. The number of cases of gonorrhea in the United States reported annually
remains at a high level, with over one-half million cases being reported in
1990. Again, according to Texas Department of Health records there
were 32,895 cases of gonorrhea reported in the State of Texas during
2000 and an additional 30,116 cases reported in 2001. During the same
time period there were also 138,692 cases of chlamydia reported in the
State of Texas. [Arlington Community Health Profile (dated July 2003)].
12. In his report of October 22, 1986, the Surgeon General of the United
States has advised the American public that AIDS and HIV infection may
be transmitted through sexual contact, intravenous drug abuse, exposure
to infected blood and blood components, and from an infected mother to
her newborn.
13. According to the best scientific evidence, AIDS and HIV infection, as well
as syphilis and gonorrhea, are principally transmitted by sexual acts.
14. Sanitary conditions in some Sexually Oriented Businesses are unhealthy,
in part, because the activities conducted there are unhealthy, and, in part,
because of the unregulated nature of the activities and the failure of the
owners and the operators of the facilities to self-regulate those activities
and maintain those facilities.
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15. Numerous studies and reports have determined that semen is found in the
areas of Sexually Oriented Businesses where persons view "sexually
oriented" films.
16. Sexually Oriented Businesses have operational characteristics which
should be reasonably regulated in order to protect substantial
governmental concerns.
17. A reasonable licensing procedure is an appropriate mechanism to place
the burden of that reasonable regulation on the owners and the operators
of the Sexually Oriented Businesses. Further, such a licensing procedure
will place an incentive on the operators to see that the Sexually Oriented
Business is run in a manner consistent with the health, safety, and welfare
of its patrons and employees, as well as the citizens of the City. It is
appropriate to require reasonable assurances that the licensee is the
actual operator of the Sexually Oriented Business, fully in possession and
control of the premises and activities occurring therein.
18. Removal of doors on booths and requiring sufficient lighting on premises
with booths advances a substantial governmental interest in curbing the
illegal and unsanitary sexual activity occurring in Sexually Oriented
Theaters.
19. Requiring licensees of Sexually Oriented Businesses to keep information
regarding current employees and certain past employees will help reduce
the incidence of certain types of criminal behavior by facilitating the
identification of potential witnesses or suspects and by preventing minors
from working in such establishments.
20. The disclosure of certain information by those persons ultimately
responsible for the day-to-day operation and maintenance of the Sexually
Oriented Business, where such information is substantially related to the
significant governmental interest in the operation of such uses, will aid in
preventing the spread of sexually transmitted diseases.
21. In the prevention of the spread of communicable diseases, it is desirable
to obtain a limited amount of information regarding certain employees who
may engage in the conduct that this ordinance is designed to prevent, or
who are likely to be witnesses to such conduct.
22. The fact that an applicant for a Sexually Oriented Business license has
been convicted of a sexually related crime leads to the rational
assumption that the applicant may engage in that conduct in contravention
of this ordinance. There is a correlation between Sexually Oriented
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Businesses, specifically their hours of operation and the type of people
which such businesses attract, and higher crime rates. [Baby Dolls
Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002)].
23. The barring of such individuals from the management of Sexually Oriented
Businesses for a period of years serves as a deterrent to, and prevents
conduct which leads to, the transmission of sexually transmitted diseases.
24. It is reasonably believed that to better protect the public health, safety, and
welfare, it is necessary to adopt additional amendments to this chapter.
25. It is reasonably believed that partially nude performances are also
included within the purview of the regulations, since they have the same
harmful secondary effects on the surrounding community as Sexually
Oriented Businesses currently regulated under the Ordinance. [Baby
Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002)].
26. There is no Constitutional right for Sexually Oriented Business employees
in a state of nudity to touch customers. [Hang On, Inc. v. City of Arlington,
65 F.3d 1248 (5th Cir. 1995)].
27. One court has characterized the acts of Sexually Oriented Business
employees in a state of nudity and being paid to touch or be touched by
customers as prostitution. [People v. Hill, 2002 III. App. LEXIS 792 (IIL'~
App. 2 Dist. Sep. 4, 2002); See also, Tex. Penal Code Sections 43.01
("sexual conduct" and "sexual contact") and 43.02 ("prostitution")].
28. Attempts by the other cities to require Sexually Oriented Businesses to
advise customers and employees, in a state of nudity, to refrain from
intentionally touching and fondling each other through signage posted at
the business entrance have not been effective.
29. Sexually Oriented Businesses have not complied with the "no touch"
provisions in other cities, and have flagrantly disregarded them and/or
encouraged employees and customers to violate the "no touch" provision.
30. Provocative touching between customers and employees in a Sexually
Oriented Business, where at least one is in a state of nudity, frequently
leads to the commission of sex crimes, illegal drug use, and increased
health risks due to sexually transmitted diseases. ',
31. Compelling signage at the entrances of Sexually Oriented Businesses has '~
not been effective in halting "no touch" violations.
i
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32. Other cities have had to expend considerable law enforcement resources
to enforce the "no touch" provisions.
33. The City Council reasonably believes that requiring employees in a state
of nudity to be physically separated from customers by the use of elevated
stages and buffer zones is necessary to better ensure ordinance
compliance while still not inhibiting constitutionally protected expressive
conduct or speech. [LEER, Inc. v. Wichita County, Texas, 289 F.3d 358
(5th Cir. 2002)].
34. It is reasonably believed by the City Council that the general welfare,
health, and safety of the citizens of the City will be promoted by the'
enactment of this Ordinance.
35. The findings noted in Subsections (1) through (33) raise substantial
governmental concerns.
ARTICLE II
DEFINITIONS
Section 2.01 Definitions
Unless otherwise expressly stated, the following terms shall, for the purposes of this j
Chapter, have the meanings indicated in this section.
"Applicant" means a person or persons listed as such on an application for a license
as a Sexually Oriented Business.
"Business Days" means the days of the week from Monday through Friday, excluding
legal holidays.
"Chief of Police" means the Chief of Police, Assistant Chief of Police, Deputy Chief of
Police or a designated acting chief of police. In Sections 4.01, 4.02 and 4.04 of this
Ordinance, Chief of Police shall also mean a member of the Police Department Covert
Operations Unit designated by the Chief of Police.
"Church" means a building, whether situated within the City or not, in which persons'
regularly assemble for religious worship and said building is intended primarily for'
purposes connected with such worship or for propagating a particular form of religious
belief.
"Customer" means any person who:
1. is allowed to enter a Sexually Oriented Business in return for the payment
of an admission fee or any other form of consideration or gratuity; or
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2. enters a Sexually Oriented Business 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 Sexually Oriented Business
operating as a private club.
"Conviction" or "convicted" means a finding of guilty by a court of record, regardless
of whether an appeal is pending.
"Day" means, unless otherwise indicated, calendar days.
"Employee" means any person who renders any service whatsoever to the customers
of a Sexually Oriented Business or who works in or about a Sexually Oriented Business
and who receives compensation for such service or work from the operator or owner of
the Sexually Oriented Business or from the customers therein.
"Entertainment District" means any subsequent resolutions or ordinances establishing
an Entertainment District or Entertainment Overlay District.
"Escort" means a person who, for consideration, agrees or offers to act as a
companion or date for another person, or who agrees or offers to privately model
lingerie or to privately perform a striptease for another person.
"Escort Agency" means a person or business association that furnishes, offers to
furnish or advertises to furnish escorts as its principal business purpose, for a fee, tip or
other consideration.
"Licensee" means a person in whose name a license to operate a Sexually Oriented
Business has been issued, as well as any and all individuals listed as applicants,
owners or licensees on the application for a license.
"Licensed Day Care Center" means a facility licensed by the State of Texas, whether
situated within the City or not, that provides care, training, education, custody treatment
or supervision for more than six (6) children under fourteen (14) years of age, where
such children are not related by blood, marriage or adoption to the owner or operator of
the facility, for less than twenty-four (24) hours a day, regardless of whether or not the
facility is operated for a profit or charges for the services it offers.
"Nude Model Business" means any place where a person who appears in a state of
nudity or displays "specified anatomical areas" is provided or allowed to be observed,
sketched, drawn, painted, sculptured, photographed or similarly depicted by other
persons who pay money or give any other form of consideration. Nude model business
shall not include those activities excepted from the below definition of Sexually Oriented
Business.
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"Nudity or A State of Nudity" means:
1. The appearance of a human bare buttock, vulva, anus, anal cleft with less
than a full opaque covering, male genitals, female genitals or female
breast; or
2. A state of dress which fails to completely and opaquely cover a human
buttock, vulva, 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 of the female breast.
"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, licensee or
manager of the establishment.
"Operator" means an individual who is in control of the operations of a Sexually
Oriented Business, including, but not limited to, a person designated by the licensee
under Section 5.01(H) of this Chapter. This control can be either on an hourly basis,
daily basis, weekly basis, or shift basis, or any combination thereof. An operator
includes, but is not limited to manager, assistant manager, house mother, floor
manager, or shift manager.
"Person" means an individual, proprietorship, partnership, corporation, association or
other legal entity.
"Premises" means the grounds and all buildings, vehicles, and appurtenances
pertaining to the grounds, including any adjacent premises if they are directly or
indirectly under the control of the same person.
"Principal" means over fifty percent (50%) of customers, volume of sales, revenue,
stock in trade, display areas, floor space, advertising, or presentation time in any three
(3) month increment period beginning from the date of issuance of a certificate of
occupancy. Stock in trade shall be measured with all titles or objects available on the
premises for sale or rental including those that are identical, considered a separate title
or object.
"Regularly" means featuring, promoting, permitting to occur or advertising a happening
or occurrence on a recurring basis.
"Residential District" means a residentially zoned district as set out in the Zoning
Ordinances of the Code of the City of Colleyville, Texas. For purposes of this Chapter,
a "residential use" may exist even in the absence of a corresponding "residential
district".
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"Residential
family use a:
Texas.
Use" means a single family, townhouse, duplex, mobile home or multiple
set out in the Zoning Ordinances of the Code of the City of Colleyville,
"Sexual Encounter Center" means a commercial establishment to which the public is
permitted or invited, which as its principal business purpose, offers for any form of
consideration:
1. physical contact in the form of specified sexual activities between persons
of the same or opposite sex; or
2. activities between male and female persons and/or persons of the same
sex when one (1) or more of the persons is in a state of nudity.
"Sexually Oriented Business" means:
1. A Sexually Oriented Arcade, Sexually Oriented Bookstore or Sexually
Oriented Video Store, Sexually Oriented Cabaret, Sexually Oriented
Motel, Sexually Oriented Theater, Sexually Oriented Motion Picture
Theater, Escort Agency, Nude Model Business or Sexual Encounter
Center; and/or
2. Any establishment whose principal business 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 its 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; or whose employees or customers appear in a state of ~',
nudity.
3. The term "Sexually Oriented Business" shall not be construed to include:
a. Any business operated by or employing a licensed psychologist,
licensed physical therapist, licensed masseuse, licensed
vocational nurse, registered nurse, licensed athletic trainer,
licensed cosmetologist, or licensed barber engaged in performing
the normal and customary functions authorized under the license
held;
b. Any business operated by or employing a licensed physician or
licensed chiropractor engaged in practicing the healing arts;
c. Any retail establishment whose principal business is the offering
of wearing apparel for sale to customers and that does not exhibit
merchandise on live models; or
d. An activity conducted or sponsored:
1. By a proprietary school licensed by the State of Texas or a
college, junior college or university supported entirely or
partly by taxation; or
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2. By a private college or university which maintains or'~
operates educational programs in which credits are
transferable to a college, junior college, or university
supported entirely or partly by taxation; and any activity
conducted or sponsored by an entity identified in
subparagraph (1) or (2) must be situated in a structure:
a. which has no sign or other advertising visible from the
exterior of the structure indicating a nude person is
available for viewing; and
b. where in order to participate in a class, a student
must enroll at least three (3) days in advance of the',
class; and
c. where no more than one (1) nude model is on thel
premises at any one time. I,
"Sexually Oriented Arcade" means any commercial establishment 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 (5) 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."
"Sexually Oriented Bookstore or Sexually Oriented Video Store" means a
commercial establishment to which the public is permitted or invited which, as its
principal business purpose, offers for sale or rental for any form of consideration any
one (1) or more of the following:
1. books, magazines, periodicals or other printed matter, or photographs,
films, motion pictures, video cassettes or video reproductions, slides or
other visual representations which depict or describe "specified sexual
activities" or "specified anatomical areas"; or
2. instruments, devices, or paraphernalia which are designed for use in
connection with "specified sexual activities." This does not include items
used for birth control or for prevention of sexually transmitted diseases.
"Sexually Oriented Cabaret" means a nightclub, bar, restaurant or similar commercial
establishment which regularly has:
1. persons who appear in a state of nudity; or
2. live performances which are characterized by the exposure of "specified'
anatomical areas" or by "specified sexual activities"; or '
3. films, motion pictures, video cassettes, slides, or other photographic~~
reproductions, closed-circuit television transmissions, cable television ~~~
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transmissions, subscriber programming, any disk, diskette, or other
physical medium that allows an image to be displayed on a computer or
other video screen and any image transmitted to a computer or other
video screen by telephone line, cable, satellite transmission or other
method, which are characterized by the depiction or description of
"specified sexual activities" or "specified anatomical areas."
"Sexually Oriented Motel" means a hotel, motel or similar commercial establishment
which:
1. offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, cable
television transmissions, subscriber programming, any disk, diskette, or
other physical medium that allows an image to be displayed on a
computer or other video screen and any image transmitted to a computer
or other video screen by telephone line, cable, satellite transmission or
other method, films, motion pictures, video cassettes, slides or other
photographic reproductions which are characterized by the depiction or
description of "specified sexual activities" or "specified anatomical areas";
and has a sign visible from the public right-of-way which advertises the
availability of this type of material; or
2. offers a sleeping room for rent for a period of time that is less than ten (10)
hours; or
3. allows a tenant or occupant of a sleeping room to subrent the room for a
period of time that is less than ten (10) hours. Evidence that a sleeping
room in a hotel, motel or similar commercial establishment has been
rented and vacated two (2) or more times in a period of time that is less
than ten (10) hours creates a rebuttable presumption that the business is
a Sexually Oriented Motel.
"Sexually Oriented Motion Picture Theater" means a commercial establishment to
which the public is permitted or invited where, for any form of consideration, films,
motion pictures, video cassettes, slides or similar photographic reproductions, any disk,
diskette, or other physical medium that allows an image to be displayed on a computer
or other video screen and any image transmitted to a computer or other video screen by
telephone line, cable, satellite transmission or other method, are regularly shown which
are characterized by the depiction or description of "specified sexual activities" or
"specified anatomical areas."
"Sexually Oriented Theater" means a theater, concert hall, auditorium or similar
commercial establishment to which the public is permitted or invited which regularly
features persons who appear in a state of nudity or live performances which are
characterized by the exposure of "specified anatomical areas" or by "specified sexual
activities."
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"Specified Anatomical Areas" means:
1. human genitals in a state of sexual arousal or simulated to be in a state of
sexual arousal, even if completely and opaquely covered; or
2. any of the following, or any combination of the following, when less than
completely and opaquely covered:
a. any human genitals, pubic region, or pubic hair;
b. any buttock; or
c. any portion of the female breast or breasts that is situated below a !.
point immediately above the top of the areola.
"Specified Sexual Activities" means and includes any of the following:
1. the fondling or other erotic touching of another's or one's own human
genitals, pubic region, pubic hair, perineum, buttocks, anus or female
breasts;
2. sex acts, actual or simulated, including intercourse, oral copulation,
sodomy or bestiality;
3. masturbation, actual or simulated, of oneself or another; or
4. excretory functions as part of or in connection with, any of the activities set
forth in (1) through (3) above.
"Transfer of Ownership or Control" of a Sexually Oriented Business means and
includes any of the following:
1. the sale, lease, or sublease of the business;
2. the transfer of securities which constitute a controlling interest in the
business, whether by sale, exchange, or similar means; or
3. the establishment of a trust, gift, or other similar legal device which
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.
ARTICLE III
LOCATION OF SEXUALLY ORIENTED BUSINESSES
Section 3.01 Location
A. A Sexually Oriented Business shall be located within a specific zoning district as
set forth in the Zoning Ordinances of the Code of the City of Colleyville, Texas.
B. A person commits an offense if he establishes, operates or causes to be
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operated or expanded a Sexually Oriented Business within 1,000 feet of:
1. a church;
2. a public or private elementary or secondary school;
3. a boundary of a residential district;
4. a boundary of the Entertainment District as defined in this Chapter;
5. a licensed day care center;
6. a public park; or
7. the property line of a lot devoted to a residential use as defined in this
Chapter.
However, if there is a controlled access highway between the district boundary/property
line and the Sexually Oriented Business, the Sexually Oriented Business must be at
least five hundred (500) feet from such district boundary/property line.
C. A person commits an offense if he establishes, operates or causes to be
operated or expanded a Sexually Oriented Business within 1,000 feet of any
other Sexually Oriented Business.
D. A person commits an offense if he establishes, operates or causes to be
operated or expanded a Sexually Oriented Business in any building, structure or
portion thereof containing another Sexually Oriented Business.
E. For the purposes of Subsection (B), 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 tenant space occupied for a Sexually
Oriented Business to the nearest property line of the premises of a church, public
or private elementary or secondary school, licensed day care center, or to the
nearest boundary of an affected public park, residential district, Entertainment
District or residential lot.
F. For purposes of Subsection (C) of this section, the distance between any two (2)
Sexually Oriented Businesses shall be measured in a straight line, without regard
to intervening structures or objects, from the closest exterior wall of the structure
in which each business is located. If the establishment is located within a
structure with multiple spaces available for occupancy, the measurement will be
from the closest wall of the tenant space occupied by the Sexually Oriented
Business.
Section 3.02 Nonconforminu Sexually Oriented Business
A. Any Sexually Oriented Business lawfully operating prior to the effective date
this ordinance, that is in violation of Section 3.01 and has continuously operate
and maintained a valid and effective Sexually Oriented Business license at sup
location, shall be deemed a nonconforming Sexually Oriented Business. TI
nonconforming Sexually Oriented Business will be permitted to continue for
Ordinance 0-10-1765
Page 15 of 43
period not to exceed three (3) years from the effective date of this ordinance. ~
Any nonconforming status shall terminate if the Sexually Oriented Business ~I
voluntarily discontinues operating as a Sexually Oriented Business or abandons.
such use at such location for thirty (30) days or more, or if there has been a final'
administrative determination, pursuant to Sections 4.02(A)(1) and/or 4.11,
denying an application for such business at such location without further appeal,
or a judicial determination upholding such denial. Such nonconforming Sexually
Oriented Businesses shall not be increased, enlarged, extended or altered
except that the business may be changed to a use other than a Sexually'.:
Oriented Business to the extent allowed by the Zoning Chapter of the Code of
Ordinances of the City of Colleyville, as amended. If two (2) or more Sexually
Oriented Businesses are within 1,000 feet of one another and otherwise in a~
permissible location, the Sexually Oriented Business which was first established
and has continuously operated and maintained a valid and effective Sexually
Oriented Business license at a particular location is the conforming Sexually
Oriented Business. The later-established business that was lawfully operating
prior to the effective date of this ordinance and has continuously operated and
maintained a valid and effective Sexually Oriented Business license at such ~
location is nonconforming. I,
B. Notwithstanding anything contained herein to the contrary, the City Council may
extend the amortization period hereinabove provided to a reasonable period of
time for any nonconforming Sexually Oriented Business upon a showing by a
particular business that without an extension it will be unable to recoup its
investment in the nonconforming structure. ~
C. Any nonconforming Sexually Oriented Business which desires an extension must
register with the City as a nonconforming Sexually Oriented Business no later'
than six months after the effective date of this ordinance, and must file an
application for an extension of the amortization period not later than 24 months
after the effective date of this ordinance. Requests for an extension of the
amortization period shall be limited to one (1) application.
D. A Sexually Oriented Business lawfully operating as a conforming Sexually
Oriented Business after the effective date of this Ordinance is not rendered a
nonconforming use by the location, subsequent to the commencement of
operation of the Sexually Oriented Business, of a church, public or private
elementary or secondary school, public park, licensed day care center,
Entertainment District, residential use or residential zoning district within 1,000
feet of the Sexually Oriented Business.
E. A person commits an offense if the person increases, enlarges, extends, or alters
or causes to be increased, enlarged or extended or altered the premises of a
nonconforming Sexually Oriented Business.
Ordinance 0-10-1765
Page 16 of 43
ARTICLE IV
LICENSE FOR SEXUALLY ORIENTED BUSINESS
Section 4.01 License Required
A.
A person commits an offense if the person operates or causes to operate a
Sexually Oriented Business without a valid license, issued by the City for the'
particular type of business.
B. Any person, association, firm, partnership or corporation desiring to obtain a
Sexually Oriented Business license shall make application 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 it
marked dimensions of the interior of the premises to an accuracy of plus or
minus six inches (6").
C. The applicant must be qualified according to the provisions of this article.
D. An individual person who wishes to operate a Sexually Oriented Business must
sign the application for a license as applicant. If a person who wishes to operate
a Sexually Oriented Business is, other than an applicant, each individual who has ~'.
a twenty percent (20%) or greater interest in the business must sign the
application for a license as applicant. Each applicant must be qualified under
Section 4.02, and each applicant shall be considered a licensee if a license is
granted. ~,
E. The fact that a person possesses other types of State or City permits does not
exempt that person from the requirement of obtaining a license for a Sexually
Oriented Business.
F. The provisions of this article shall apply to existing Sexually Oriented Businesses
beginning ninety (90) days after the effective date of this Ordinance.
G. All applications for a license under this article shall be accompanied by a
nonrefundable application fee. The annual fee is Five Hundred Dollars
($500.00). An application shall not be considered to have been received until the
fee is paid and all information required by the application form has been
submitted. The application fee shall not be prorated in the event an application is
tendered before or during the licensing period.
H. An applicant for a Sexually Oriented Business must first obtain a Certificate of
Ordinance 0-10-1765
Page 17 of 43
Occupancy for a Sexually Oriented Business from the Building Official. The
Building Official shall issue or deny a Certificate of Occupancy to a Sexually
Oriented Business not more than sixty (60) business days subsequent to the
date of the applicant's submission of such application to the City's Office of
Building Inspections. Such application for a Certificate of Occupancy shall be
deemed approved if not approved or denied within such time period.
If an applicant for a Sexually Oriented Business requires a building permit under
applicable city ordinances, the Building Official shall cause all building, fire,'
health and other necessary permits to be issued within thirty (30) business days
subsequent to the date of the applicant's submission of an application to the
City's Office of Building Inspections. The Building Official shall cause all ~
necessary inspections to occur within five (5) business days of the applicant's
request for an inspection made to the Building Official. Such application shall be
deemed approved if not approved or denied within such time period. The
applicant must specify on the face of its application that the proposed use is for a
sexually oriented business and give the name and address of the applicant's ,
contact person for all communications and notices.
J. Notwithstanding any other ordinance, an applicant for a Sexually Oriented
Business may appeal any decision of the Building Official by filing suit in the
appropriate county court at law within thirty (30) calendar days after receipt of
notice of decision or the expiration of the deadlines set forth in (H) or (I) above.
The filing of such suit shall have the effect of staying denial of such building
permit or certificate of occupancy pending a judicial determination. A provisional
permit or certificate shall be granted upon the filing of a court action to appeal the
denial of such permit or certificate. The provisional permit or certificate will
expire upon entry of judgment on such appeal.
K. A licensee or operator commits an offense if the licensee or operator fails to
display a legible copy of the complete provisional permit or certificate described
in Subsection 4.01(J), if applicable, on the exterior of the Sexually Oriented
Business premises. Such copy of the provisional permit or certificate must be
prominently and continuously displayed where customers enter the premises and
immediately adjacent to such entrances.
Section 4.02 License Issuance and Grounds for Denial
A. The Chief of Police shall approve the issuance of a license to an applicant within
thirty (30) days after receipt of an application, unless the Chief of Police finds one
(1) or more of the following to be true:
The location of the Sexually Oriented Business is or would be in violation
of Article III of this Chapter.
Ordinance 0-10-1765
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2. The applicant failed to supply all of the information requested on the
application.
3. The applicant gave false, fraudulent or untruthful information on the
application.
4. An applicant is under eighteen (18) years of age.
5. 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'.
6
7
8
9
10
Business.
An applicant or an applicant's spouse has been convicted or placed on
deferred disposition, probation or community supervision for a violation of
a provision of this Chapter, within two (2) years immediately preceding they
application. The fact that a conviction is being appealed shall have no
effect. (Amend Ord 03-088, 7/29/03)
The license fee required by this Article has not been paid.
The applicant has not demonstrated that the owner of the Sexually'
Oriented Business owns or holds a lease for the property or the applicable
portion thereof upon which the Sexually Oriented Business will be situated
or has a legally enforceable right to acquire the same.
An applicant or the proposed establishment is in violation of or is not in
compliance with Sections 4.03 or 4.10, or Sections 5.03(H), 5.05(A)(1),
5.05(A)(5), 5.06(A)(1), or 5.06(A)(5), as applicable.
An applicant or an applicant's spouse has been convicted or placed on
deferred disposition, probation, or community supervision for: (Amend
Ord 03-088, 7/29/03)
a. Any offense under the laws of the United States of America,
another state or the Uniform Code of Military Justice for an
offense described in this Section 4.02(A)(10); or
b. Any of the below offenses of the State of Texas or criminal
attempt, conspiracy, or solicitation to commit same:
1. Any of the following offenses as described in Chapter 43 of
the Texas Penal Code:
a. Prostitution;
b. Promotion of prostitution;
c. Aggravated promotion of prostitution;
d. Compelling prostitution;
e. Obscenity;
f. Sale, distribution or display of harmful material to a
minor;
g. Sexual performance by a child;
h. Possession of child pornography;
2. Any of the following offenses as described in Chapter 21 of
Ordinance 0-10-1765
Page 19 of 43
the Texas Penal Code:
a. Public lewdness;
b. Indecent exposure;
c. Indecency with a child;
3. Sexual assault or aggravated sexual assault as described in
Chapter 22 of the Texas Penal Code; or
4. Incest, solicitation of a child or harboring a runaway child as
described in Chapter 25 of the Texas Penal Code;
c. For which:
1. Less than two (2) years have elapsed since the date of j
conviction, or the date of release from the terms of ~I
community supervision, probation, parole or deferred !,
disposition or the date of release from confinement imposed I,
for the conviction, whichever is the later date, if the'I
conviction is of a misdemeanor offense; or
2. Less than five (5) years have elapsed since the date of 'I
conviction, or the date of release from the terms of II
community supervision, probation, parole or deferred
disposition or the date of release from confinement for the
conviction, whichever is the later date, if the conviction is of
a felony offense; or
3. Less than five (5) 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 (2) or more misdemeanor offenses or
combination of misdemeanor offenses occurring within any
twenty-four (24) month period.
11. The applicant or the applicant's spouse is required to register as a sex
offender under the provisions of Chapter 62 of the Texas Code of Criminal
Procedure.
12. The applicant failed to comply with any of the requirements of Section
243.0075 of the Texas Local Government Code regarding the posting of
an outdoor sign.
B. An applicant, or applicant's spouse, who has been convicted of or placed on
deferred disposition, probation or community supervision for an offense listed in
Section 4.02(A)(10) may qualify for a Sexually Oriented Business license only
when the time period required by Section 4.02(A)(10)(c) has elapsed.
C. The license, if granted, shall state on its face the name of the person or persons
to whom it is granted, the expiration date and the address of the Sexually
Oriented Business.
Ordinance 0-10-1765
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D. The license shall be posted in a conspicuous place at or near the entrance to the
Sexually Oriented Business, so that it is visible to the public at all times and may
be easily read.
Section 4.03 Inspection and Maintenance of Records
A. A licensee, operator or employee of a Sexually Oriented Business shall be
subject to regulation under this Chapter and shall permit representatives of the
Police Department, Health Department, Fire Department, Building Inspections
Division and Code Enforcement Division to inspect all portions of the premises
where customers are allowed and the records required to be maintained under
this Chapter by the Sexually Oriented Business for the purpose of ensuring
compliance with this Chapter at any time it is occupied or open for business.
B. A licensee or operator of a Sexually Oriented Business commits an offense if the
person operates the establishment without maintaining a current list of all
employees of the business, along with a complete updated employment
application for each employee. A legible copy of a valid driver's license, state
identification card, or passport, with a photograph, together with an original
photograph accurately depicting the employee as the person appears at the time
the person is hired, shall be required and maintained on the premises with the
employee's application.
C. A licensee or operator of a Sexually Oriented Business commits an offense if the
person refuses to permit a lawful inspection of the records and premises by a
representative of the Police Department at any time the Sexually Oriented
Business is occupied or open for business.
D. The licensee or operator of a Sexually Oriented Business shall maintain all
records required to be maintained under the provisions of this Chapter on the
licensed premises.
E. The licensee or operator of a Sexually Oriented Business commits an offense if
the person does not maintain the required records on the premises of the
licensed establishment.
F. A licensee, operator or employee of a Sexually Oriented Business shall permit
representatives of the Police Department to take photographs of the licensee,
operator or employees of the Sexually Oriented Business for the purpose of
ensuring compliance with this Chapter at any time it is occupied or open for
business.
G. A licensee, operator or employee of a Sexually Oriented Business commits an
Ordinance 0-10-1765
Page 21 of 43
offense if that person does not permit representatives of the Police Department
to take photographs of the licensee, operator or employee of the Sexually'.
Oriented Business at any time it is occupied or open for business.
H. The provisions of this section do not apply to areas of a Sexually Oriented Motel
which are currently being rented by a customer for use as a permanent or
temporary habitation.
Section 4.04 Expiration and Renewal of License
A. Each license shall expire one year after the date of issuance.
B. Renewal of a license may be applied for by submission to the Chief of Police of
an application on the form prescribed by such official and payment of a
nonrefundable renewal processing fee of Five Hundred Dollars ($500).
C. Application for renewal shall be made at least thirty (30) days before the
expiration date of the current license.
Section 4.05 Suspension
A. Subject to Section 4.05(8), the Chief of Police shall suspend a Sexually Oriented
Business license if the Chief of Police determines that a licensee(s), operator(s)
or employee(s) of a licensee (or any combination thereof) has/have:
1. (a) On five (5) or more occasions within any twelve (12) month period of i
time been cited for a violation of Sections 6.02, 6.03, 6.04 or any of the
provisions of Article V of this Chapter; (b) been convicted or placed on
deferred disposition or probation for the violations; and (c) the Chief of Police
determines that notice of the citations has been sent to the licensee in
accordance with Section 7.02 of this Chapter; or
2. (a) On five (5) or more occasions within any twelve (12) month period of
time been cited for a violation of Section 4.03 of this Chapter; (b) been
convicted or placed on deferred disposition or probation for the violations;
and (c) the Chief of Police determines that notice of the citations has been
sent to the licensee in accordance with Section 7.02 of this Chapter; or
3. (a) Been cited for any combination of offenses under subsections (1) or (2)
above that total five (5) within any twelve (12) month period of time; (b) been
convicted or placed on deferred disposition or probation for the violations;
and (c) the Chief of Police determines that notice of the citations has been ~,
sent to the licensee in accordance with Section 7.02 of this Chapter. ~~,
A period of suspension will begin the first day after the decision of the Chief of
Ordinance 0-10-1765
Page 22 of 43
Police becomes final as provided in Section 4.07, unless the licensee appeals to'
district court under Section 4.09. If appeal is taken under Section 4.09, the'
period of suspension begins the day after all appeals are final.
B. It shall be an affirmative defense to the suspension authorized under Section
4.05(A) if such licensee shows by a preponderance of the evidence that it was
powerless to prevent such violations.
C. Each day in which a violation is permitted to continue shall constitute a separate
violation for purposes of suspension.
Section 4.06 Grounds for Revocation
A. The Chief of Police may revoke a Sexually Oriented Business license:
1. If a cause of suspension in Section 4.05 occurs and the license has been
ordered suspended by the Chief of Police for a thirty (30) day period
pursuant to Section 4.08(8)(4) within the preceding year; or
2. If the Chief of Police determines that on two or more occasions within a
five (5) year period of time a licensee(s) or operator(s) (or any combination
thereof) has/have been convicted of or placed on deferred disposition,
probation or community supervision for conduct occurring in a licensing
period on the premises of a Sexually Oriented Business that constitutes
any of the offenses of the State of Texas or criminal attempt, conspiracy,
or solicitation to commit same for;
a. Any of the following offenses as described in Chapter 43 of the
Texas Penal Code:
1. Prostitution;
2. Promotion of prostitution;
3. Aggravated promotion of prostitution;
4. Compelling prostitution;
5. Obscenity;
6. Sale, distribution or display of harmful material to a
minor;
7. Sexual performance by a child;
8. Possession of child pornography;
b. Any of the following offenses as described in Chapter 21 of the
Texas Penal Code:
1. Public lewdness;
2. Indecent exposure;
3. Indecency with a child;
c. Sexual assault or aggravated sexual assault as described in
Chapter 22 of the Texas Penal Code;
d. Incest, solicitation of a child or harboring a runaway child as
Ordinance 0-10-1765
Page 23 of 43
described in Chapter 25 of the Texas Penal Code; or
3. If a licensee or operator gave false or misleading information in the
material submitted to the Chief of Police during the application process;
4. If a licensee or operator has knowingly allowed possession, use or sale of
a controlled substance on the premises;
5. If a licensee or operator has on two (2) or more occasions knowingly
allowed prostitution on the premises;
6. If a licensee or operator knowingly operated the Sexually Oriented'
Business during a period of time when the licensee's license was
suspended;
7. If a licensee or operator has, on two (2) or more occasions, 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 21.01, Texas Penal Code;
8. If 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;
9. If the licensee is required to register as a sex offender under the provisions
of Chapter 62 of the Texas Code of Criminal Procedure.
10. If a license is transferred in violation of Section 4.10(A).
B. The fact that a conviction is being appealed shall have no effect on the
revocation of the license.
C. Section 4.06(A)(7) does not apply to Sexually Oriented 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.
Section 4.07 Denial, Suspension and Revocation Procedures
A. A denial, suspension, or revocation is an administrative procedure. In any
hearing relating to such actions under this Section, the burden of proof shall be
on the City (except for affirmative defenses), and shall be by a preponderance of
the evidence.
B. If the Chief of Police is authorized to deny the issuance of a license, or suspend
or revoke a license, the Chief of Police shall give written notice to the applicant or
licensee of his intent to implement denial, suspension, or revocation procedures.
1. The notice shall state the reason for such denial, suspension, or
revocation.
2. The notice shall provide that the denial of issuance, suspension or
revocation shall take effect at the expiration of the tenth calendar day after
Ordinance 0-10-1765
Page 24 of 43
3
4
notification, unless the licensee provides a written request for hearing to'=1
the Chief of Police before the expiration of the tenth calendar day.
If a written request for hearing from the applicant or licensee is received
by the Chief of Police before the expiration of the tenth calendar day, the
suspension, denial of issuance or revocation will be stayed pending a',
hearing and a decision by the Chief of Police.
The applicant or licensee shall have ten (10) calendar days from the date;
notice is received, to request a hearing on the denial, suspension on
revocation. The request shall be in writing and delivered to the Chief of!
Police. Upon receipt of the request for hearing, a hearing before the Chief
of Police shall be scheduled to take place within thirty (30) calendar days
unless both parties agree to a certain date beyond the thirty days. The
Chief of Police shall consider only the testimony and evidence admitted for
consideration at the hearing by the Administrative Law Judge. The Chief
of Police shall have five (5) business days from the date of the hearing to
notify the applicant or licensee of the decision.
a. In making a determination as to the denial of a license, the Chief of
Police shall consider whether the applicant has established the
applicant's entitlement to a license under the requirements imposed
by Section 4.02 of this Chapter and/or whether the City has
established a disqualifying factor under the requirements imposed
by Section 4.02 of this Chapter.
b. In making a determination of the suspension of a license under
Section 4.05 of this Chapter, the Chief of Police shall consider: (1)
whether the required number of citations under Section 4.05(A)(1),
(2), or (3) were issued to the licensee, operator, or employee of the
licensee within a twelve (12) month period of time; (2) whether
notice of such citations was sent to the proper Sexually Oriented
Business in compliance with Section 7.02 of this Chapter; (3)
whether the licensee, operator, or employee of the licensee was
convicted or placed on deferred disposition or probation for the
citations; and (4) whether licensee was powerless to prevent
violations.
c. In making a determination of the revocation of a license under
Section 4.06(A)(1) of this Chapter, the Chief of Police shall
consider: (1) whether the required number of citations under
Section 4.05(A)(1), (2), or (3) were issued to the licensee, operator,
or employee of the licensee within a twelve (12) month period of
time; (2) whether notice of such citations was sent to the propel
Sexually Oriented Business in compliance with Section 7.02 of this
Chapter; (3) whether the licensee, operator, or employee of the
licensee was convicted or placed on deferred disposition of
probation for the citations; and (4) whether the license at issue hay
Ordinance 0-10-1765'
Page 25 of 43
been ordered suspended for a thirty (30) day period of time ''
pursuant to Section 4.08(8)(4) of this Chapter within the preceding
twelve (12) month period of time. (Amend Ord 03-088, 7/29/03)
d. In making a determination of the revocation of a license under
Sections 4.06(A)(2)-(10) of this Chapter, the Chief of Police shall
consider whether the evidence shows that the specified
convictions, events, or actions occurred as set forth in those
sections of this Chapter.
5. All hearings under this Section will be presided over by an Administrative
Law Judge appointed the City Manager. The Administrative Law Judge
must be licensed to practice law in Texas and have at least five (5) years
experience presiding over administrative hearings, or hearings as a judge
or master of a court. The hearing will be open to the public. The
provisions of Texas Government Code, Sections 2001.081-.088 shall be
used as procedural and evidentiary guidelines. The Administrative Law
Judge will be responsible for the procedural oversight of the hearing,
including the manner and order of presentation and ruling on the
admissibility of testimony and evidence and any objections thereto. In
accordance with Article XI of the Administrative Chapter of the Code of
Ordinances of the City of Colleyville, the Administrative Law Judge may
subpoena witnesses and compel the production of books, papers and
other evidence material to such hearing. All such subpoenas must be
signed by the Mayor prior to issuance and subject to the following:
a. The subpoena must be issued in pursuit of an objective authorized !,,
by the Sexually Oriented Business Chapter of the Code of I
Ordinances of the City of Colleyville;
b. Information sought must be germane to the lawful subject of'~
inquiry;
c. Demands for information must be as specific as the requesting
party's knowledge will permit and must not be unreasonably
burdensome;
d. The subpoena shall not purport to require privileged information
which is recognized by law as such; and
e. A subpoena will be issued only upon request of either the City or
the applicant or licensee. A request for subpoena must be served
on the other party at the time of the request as evidenced by a'
certificate of service on the request. The opposing party has three
(3) business days to file a written objection to the request with the
Administrative Law Judge, setting forth an objection. The
Administrative Law Judge may grant the objection, overrule the
objection and issue the subpoena, or give the requesting party
three (3) business days to file a response to the objection, after',
which time the Administrative Law Judge may issue the subpoena ~,
Ordinance 0-10-1765
Page 26 of 43 j
or deny the request for subpoena in writing stating the grounds for
denial.
6. The decision by the Chief of Police is effective thirty (30) calendar days
after the applicant or licensee is notified of the decision, unless a
reinstatement fee under Section 4.08(6)(1) of this Chapter is paid (if
available), or an appeal is made to District Court in accordance with the
provisions of Section 4.09 of this Chapter. Written notice of the Chief of
Police's decision will be given in the manner set forth in Section 7.02 of
this Chapter, unless the City and the applicant or licensee agree on a
different form of notice at the hearing. Such agreement will be entered on
the record.
Section 4.08 Period of Suspension or Revocation
A. The revocation of a license as provided for in Section 4.06 of this Chapter shall
be for a period of twelve (12) months.
B. The suspension of a license as provided for in Section 4.05 of this Chapter shall
be as follows:
1. The first suspension of a license shall be for a period of three (3) calendar
days. When the Chief of Police is authorized to suspend a license for three'
(3) days, he shall notify the licensee in the notice of decision of the
licensee's opportunity to pay a reinstatement fee in the amount of $1,500 in
lieu of the suspension. Payment of this administrative fee shall be'
considered, for the purposes of this Subsection, the first suspension and an
administrative admission of the violations. However, this shall not be used
as an admission of guilt in a criminal prosecution under this Chapter. If the
licensee does not pay the reinstatement fee before the expiration of the
thirtieth calendar day after notification, the licensee loses the opportunity to
pay it. '~
2. The second suspension of a license shall be for a period of seven (7) ~
calendar days.
3. The third suspension of a license shall be for a period of fifteen (15) ~
calendar days.
4. The fourth suspension of a license shall be for a period of thirty (30)
calendar days. Except where grounds for revocation of a license exist
under Section 4.06(A)(1), each subsequent suspension of a license shall
be for a period of thirty (30) calendar days.
Section 4.09 Appeal to District Court
A. Upon receipt of written notice of the denial, suspension or revocation of a license,
the applicant whose application for a license has been denied or whose license
Ordinance 0-10-1765
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has been suspended or revoked shall have the right to appeal by filing suit in the;
appropriate district court within thirty (30) calendar days after the receipt of notice
of the decision of the Chief of Police or decision of the City Council, as
applicable. The filing of such suit shall have the effect of staying denial,
suspension or revocation for the Sexually Oriented Business licensed under this
Chapter at such location, pending a judicial determination of the appeal. The
City shall grant a provisional license upon the filing of a court action to appeal the
denial of a Sexually Oriented Business license if the applicant is not currently
licensed for such business at the subject location; provided, however, a
provisional license shall not be issued under the following circumstances: (a) the
location of the proposed Sexually Oriented Business is or would be in violation of
Article III of this Chapter; (b) the duration of the provisional license would
coincide with any period of license suspension or revocation set forth in Section
4.08; or (c) there has been a judicial determination upholding the denial of a
license for such Sexually Oriented Business at such location within the previous
twelve (12) calendar months. Written notice of the denial of a provisional license
and the basis for the denial will be provided by the Chief of Police within ten (10)
calendar days of service of the court action upon the City.
B. Any provisional license and certificate of occupancy issued under this section will',
expire upon the court's entry of judgment on such appeal. The applicant shall',,
bear the burden of proof in court. The substantial evidence standard of review',
shall apply to such appeal.
Section 4.10 Transfer of License
A. A person commits an offense if the person transfers a license to another person
or operates a Sexually Oriented Business under the authority of a license at any
place other than the address designated on the license. A transfer of a license is
deemed to have occurred if there is a transfer of more than fifty percent (50%) of
the ownership or control of a Sexually Oriented Business.
B. A person commits an offense if the person counterfeits, forges, changes, defaces
or alters a license.
Section 4.11 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 is in violation of Section 3.01, and
such establishment was in operation on the effective date of this Ordinance, then
the applicant may, not later than ten (10) calendar days after receiving notice of
the denial, file with the City Secretary a written request for an exemption from the
location restrictions.
Ordinance 0-10-1765.
Page 28 of 43 I,
B
If the written request is filed with the City Secretary within the ten (10) day limit,
the City Council shall consider the request. The City Secretary shall set a date ~
for the hearing within sixty (60) days from the date the written request is filed,
unless both parties agree to a certain date beyond the sixty (60) days. If a timely ~~
request is so filed, the existing license is deemed not to have expired until the
decision of the City Council on such request. The City Council shall issue a
written ruling on the request no later than five (5) days of the hearing.
C. The City Council may grant an exemption from the location restriction of Section'
3.01 if it makes the following findings: ''
1. That the location of the Sexually Oriented Business will not have a
detrimental effect on nearby properties or be contrary to the public safety
or welfare; '~
2. That the location of the Sexually Oriented Business will not downgrade the ~I
property values or quality of life in the adjacent areas or encourage the I,
development of urban blight;
3. That the location of the 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
4. That all other applicable provisions of this Chapter will be observed.
D. In making the findings specified in Section 4.11(E), the City Council may take into
account among other things:
1. Crime statistics of the location and its 1,000 foot radius maintained by the
appropriate law enforcement agency for the previous twelve (12) month
period;
2. Assessed values for the location and properties within the surrounding
1,000 foot radius, taking into account any decline or increase in property
values or rates of decrease or increase in property values in relation to
otherwise comparable properties;
3. Sales, leases, and vacancy rates of all property types within the
surrounding 1,000 foot radius in relation to otherwise comparable
properties; and
4. Any evidence regarding the award or denial of any public or private grants
for neighborhood conservation, urban renewal or restoration for any
property located within a 1,000 foot radius.
E. The City Council shall grant or deny the appeal by a majority vote. Failure to
reach a majority vote approving the appeal shall result in denial. Disputes of fact
shall be decided on the basis of a preponderance of the evidence. A decision by
the City Council shall be considered a final action.
F. If the City Council grants an exemption to the location restrictions, the exemption
Ordinance 0-10-1765
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is valid for one (1) year from the date of the Board's action. Except as provided
in Section 4.11(B), the Sexually Oriented Business is in violation of the location
restrictions of Section 3.01 until the applicant applies for and receives another
exemption.
G. The grant of an exemption does not exempt the applicant from any provisions of
this Chapter other than the location restrictions.
Section 4.12 Administrative Review Relating to Request for Provisional License
A. If the Chief of Police denies the issuance of a provisional license to an applicant'
because there has been a judicial determination upholding the denial of a license
for such Sexually Oriented Business at such location within the previous twelve'.
(12) calendar months, then the applicant may, not later than ten (10) calendar'
days after receiving notice of the denial, file with the City Secretary a written
request for a hearing before the City Council to determine whether there has
been a material change of circumstances during said twelve (12) calendar
months that would warrant the issuance of a provisional Sexually Oriented
Business license. Said request shall also contain a recitation of all evidence
upon which the applicant will rely to prove the requisite material change of
circumstances.
B. If the written request is filed with the City Secretary within the ten (10) day limit,
the City Council considers the request. The hearing shall be held within sixty
(60) days from the date the written request is filed, unless both parties agree to a
certain date beyond the sixty (60) days. The City Council shall enter a written
ruling on the request within five (5) days of the hearing.
C. The City Council shall have the powers set forth elsewhere in this Chapter
including, but not limited to, Sections 4.11(C), 4.11(D), and 4.11(G), and to
prescribe rules of procedure not inconsistent with this Chapter, including the use
of an Administrative Law Judge or the creation of a board to preside over any
hearings. In addition, the City Council shall have the power to rule upon the
appropriate dispositions of an applicant's request for a determination of material
change of circumstances regarding the granting of a provisional license, as
described in Sections 4.12(A) and 4.12(C).
D. The City Council shall grant the application fora provisional license if it
determines that a material change of circumstances has occurred within twelve
(12) calendar months of a judicial determination upholding the denial of a license
for such business at such location. A material change of circumstances shall
mean the disabling condition(s) which resulted in the previous denial of the
Ordinance 0-10-1765
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license has/have been cured. The provisional license becomes effective
immediately and remains effective pending a court's entry of judgment in the
appeal under Section 4.09.
E. Upon receipt of a written notice of denial of a provisional license by the City
Council, the applicant shall have the right to appeal such denial by filing suit in
the appropriate district court within thirty (30) calendar days after the receipt of
notice of a decision of the City Council. The applicant shall bear the burden of
proof in court. The substantial evidence standard of review shall apply to such
appeal
ARTICLE V ~
ADDITIONAL REGULATIONS
Section 5.01 Additional Regulations for Sexually Oriented Cabaret
A. An employee of a Sexually Oriented Cabaret, while appearing in a state of
nudity, commits an offense if the employee touches a customer or the clothing of
a customer.
B. A customer at a Sexually Oriented Cabaret commits an offense if the customer
touches an employee appearing in a state of nudity or the clothing of an
employee appearing in a state of nudity.
C. A licensee or employee commits an offense if the licensee or employee 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 private,
exclusive, closed, curtained, or otherwise screened area, excluding restrooms.
The view required in this subsection shall be by direct line of sight. The view
shall be deemed insufficient if clear visibility of such line of sight must be attained
by utilizing flashlights or spotlights in addition to overhead house lighting.
D. A licensee, operator or employee commits an offense if the licensee, operator or
employee appears in a state of nudity or knowingly allows another to appear in a
state of nudity in an area of the Sexually Oriented Cabaret business premises
which can be viewed from the public right-of-way.
E. A licensee commits an offense if the licensee fails to display the signs on the
interior of the Sexually Oriented Cabaret business premises as required in
Section 6.04(A) and/or the floor markings required in Section 6.04(6).
F. A person commits an offense if the person employs at a Sexually Oriented
Cabaret any person under the age of eighteen (18) years.
G. An employee of a Sexually Oriented Cabaret must attend training given by the
Ordinance 0-10-1765
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licensee concerning the requirements of this Chapter as they pertain to Sexually
Oriented Cabarets, including but not limited to Sections 4.03, 4.05, 4.06, 5.01,
6.01, 6.02, 6.03, 6.04, and 7.01, before the employee receives any compensation
for the person's services. The licensee shall provide this training to all
employees at the beginning of employment before the employee receives any
compensation for services; and, at least once a year thereafter. The licensee
shall maintain written records of the training provided to each employee pursuant
to this subsection. These records shall include a signed and dated statement
from each employee verifying the employee's attendance at and participation in'.
training provided by the licensee identifying the date on which the training was'.
provided and the specific topics discussed. ',
H. A licensee shall designate and appoint one or more individuals to manage, direct,
and control the premises and operations of the Sexually Oriented Cabaret. At
least one person so appointed shall be on the premises at any time the Sexually
Oriented Cabaret is open.
An operator or a person appointed under Subsection (H) above shall at all times
have the duty to ensure that each employee in the Sexually Oriented Cabaret
has received the training required by Subsection (G) above and each employee''
is instructed to commit no act which would constitute a violation of this Chapter or
which would provide grounds, or part of the grounds, for suspension or
revocation of a license issued under this Chapter.
Section 5.02 Additional Regulations for Escort Agencies
A. A person commits an offense if the person employs at an Escort Agency any
person under the age of eighteen (18) years.
B. A person commits an offense if the person acts as an escort or agrees to act as
an escort for any person under the age of eighteen (18) years.
C. An employee of an Escort Agency must attend training given by the licensee
concerning the requirements of this Chapter as they pertain to Escort Agencies,
including but not limited to Sections 4.03, 4.05, 4.06, 5.02, 6.01, 6.02, 6.03, 6.04,
and 7.01, before the employee receives any compensation for the person's
services. The licensee shall provide this training to all employees at the
beginning of employment before the employee receives any compensation for
services; and, at least once a year thereafter. The licensee shall maintain written
records of the training provided to each employee pursuant to this subsection.
These records shall include a signed and dated statement from each employee
verifying the employee's attendance at and participation in training provided by
the licensee identifying the date on which the training was provided and the
specific topics discussed.
Ordinance 0-10-1765
Page 32 of 43
D. A licensee shall designate and appoint one or more individuals to manage, direct,
and control the premises and operations of the Escort Agency. At least one
person so appointed shall be on the premises at any time the Escort Agency is
open.
E. An operator or a person appointed under Subsection (D) above shall at all times
have the duty to ensure that each employee in the Escort Agency has received ',
the training required by Subsection (C) above and each employee is instructed to'
commit no act which would constitute a violation of this Chapter or which would
provide grounds, or part of the grounds, for suspension or revocation of a license
issued under this Chapter.
Section 5.03 Additional Regulations for Nude Model Businesses
A. A person commits an offense if the person employs at a Nude Model Business
any person under the age of eighteen (18) years.
B. A person under the age of eighteen (18) years commits an offense if the person
appears in a state of nudity in or on the premises of a Nude Model Business.
C. A person commits an offense if the person appears in a state of nudity or
knowingly allows another to appear in a state of nudity in an area of a Nude
Model Business premises which can be viewed from the public right-of-way.
D. A person commits an offense if the person places or permits a bed, sofa or
mattr8ss in any room on the premises of a nude model business, except that a
sofa may be placed in a reception room open to the public.
E. A licensee or employee commits an offense if the person permits any customer
access to an area of the premises not visible from the manager's station by direct
line of sight or not visible by a walk through of the premises without entering a
private, exclusive, closed, curtained, or otherwise screened area, excluding
restrooms. The view required in this subsection shall be by direct line of sight.
The view shall be deemed insufficient if clear visibility of such line of sight must
be attained by utilizing flashlights or spotlights in addition to overhead house
lighting.
F. An employee of a Nude Model Business, while appearing in a state of nudity,
commits an offense if the employee touches a customer or the clothing of a
customer.
G. A customer at a Nude Model Business commits an offense if the customer
Ordinance 0-10-1765
Page 33 of 43
touches an employee or the clothing of an employee while the employee is'
appearing in a state of nudity.
H. A licensee commits an offense if the licensee fails to display the signs on the
interior of the Nude Model Business premises as required in Section 6.04(A)
and/or the floor markings required in Section 6.04(B).
An employee of a Nude Model Business commits an offense if that employee
allows, asks, directs, or suggests that a customer disrobe to a state of nudity.
J. An employee of a Nude Model Business must attend training given by the
licensee concerning the requirements of this Chapter as they pertain to Nude
Model Businesses, including but not limited to Sections 4.03, 4.05, 4.06, 5.03,
6.01, 6.02, 6.03, 6.04, and 7.01, before the employee receives any compensation
for the person's services. The licensee shall provide this training to all
employees at the beginning of employment before the employee receives any
compensation for services; and, at least once a year thereafter. The licensee
shall maintain written records of the training provided to each employee pursuant
to this subsection. These records shall include a signed and dated statement
from each employee verifying the employee's attendance at and participation in
training provided by the licensee identifying the date on which the training was
provided and the specific topics discussed.
K. A licensee shall designate and appoint one or more individuals to manage, direct,
and control the premises and operations of the Nude Model Business. At least
one person so appointed shall be on the premises at any time the Nude Model
Business is open.
L. An operator or a person appointed under Subsection (K) above shall at all times
have the duty to ensure that each employee in the Nude Model Business has
received the training required by Subsection (J) above and each employee is
instructed to commit no act which would constitute a violation of this Chapter or
which would provide grounds, or part of the grounds, for suspension or
revocation of a license issued under this Chapter.
Section 5.04 Additional Regulations for Sexually Oriented Theaters and Sexually
Oriented Motion Picture Theaters
A. A person commits an offense if the person knowingly allows a person under the
age of eighteen (18) years to appear in a state of nudity in or on the premises of
a Sexually Oriented Theater or Sexually Oriented Motion Picture Theater.
B. A person under the age of eighteen (18) years commits an offense if the person
Ordinance 0-10-1765
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knowingly appears in a state of nudity in or on the premises of a Sexually
Oriented Theater or Sexually Oriented Motion Picture Theater.
C. Sexually Oriented Theaters and Sexually Oriented Motion Picture Theaters shall
also comply with the requirements of Section 5.05 of this Chapter.
D. An employee of a Sexually Oriented Theater or Sexually Oriented Motion Picture
Theater must attend training given by the licensee concerning the requirements
of this Chapter as they pertain to Sexually Oriented Theaters or Sexually
Oriented Motion Picture Theaters, including but not limited to Sections 4.03, 4.05,
4.06, 5.04, 6.01, 6.02, 6.03, 6.04, and 7.01, before the employee receives any
compensation for the person's services. The licensee shall provide this training
to all employees at the beginning of employment before the employee receives
any compensation for services; and, at least once a year thereafter. The
licensee shall maintain written records of the training provided to each employee
pursuant to this subsection. These records shall include a signed and dated
statement from each employee verifying the employee's attendance at and
participation in training provided by the licensee identifying the date on which the
training was provided and the specific topics discussed.
E. A licensee shall designate and appoint one or more individuals to manage, direct,
and control the premises and operations of the Sexually Oriented Theater or
Sexually Oriented Motion Picture Theater. At least one person so appointed
shall be on the premises at any time the Sexually Oriented Theater or Sexually
Oriented Motion Picture Theater is open.
F. An operator or a person appointed under Subsection (E) above shall at all times
have the duty to ensure that each employee in the Sexually Oriented Theater or
Sexually Oriented Motion Picture Theater has received the training required by
Subsection (D) above and each employee is instructed to commit no act which
would constitute a violation of this Chapter or which would provide grounds, or
part of the grounds, for suspension or revocation of a license issued under this
Chapter.
Section 5.05 Regulations Pertaining to Exhibition of Sexually Explicit Films,
Photographs, Pictures or Videos
A. A person who operates or causes to be operated a Sexually Oriented Business,
other than a Sexually Oriented Motel, which exhibits on the premises in a viewing
room, a film, photograph, picture, video cassette or other video reproduction
which depicts specified sexual activities or specified anatomical areas, shall
comply with the following requirements:
An application for a Sexually Oriented Business license shall be
Ordinance 0-10-1765
Page 35 of 43
accompanied by a diagram of the premises showing a plan thereof'
specifying the location of one (1) or more manager's stations and the
location of all overhead lighting fixtures and designating any portion of the
premises in which patrons will not be permitted. A manager's station may
not exceed thirty-two (32) square feet of floor area. The diagram shall
also designate the place at which the permit will be conspicuously posted,
if granted. A professionally prepared diagram in the nature of an
engineer's or architect's blueprint shall not be required; however each
diagram shall be oriented to the north, or to some designated street or
object, and shall be drawn to a designated scale or with marked
dimensions sufficient to show the various internal dimensions of all areas
of the interior of the premises to an accuracy of plus or minus six inches
(6"). 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 the previously submitted diagram 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.
4. The licensee commits an offense if the licensee permits a manager's,
station to be unattended by an employee at any time a customer is
present on, in or about 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 customer is permitted access for any purpose,'.
excluding restrooms. Restrooms may not contain video reproduction
equipment or any other equipment allowing for the viewing of film, videos,
photographs or other video reproduction. If the premises has two (2) 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 customer is permitted access for
any purpose from at least one (1) of the manager's stations. The view
required in this subsection must be by direct line of sight from the
manager's station.
6. The licensee commits an offense if the licensee permits a customer
access to any area of the premises that is not visible from the manager's
station for any purpose, excluding restrooms.
7. The licensee, operator and any agents and employees present on the
premises shall ensure: that the view area specified in Subsection (5) o
this section remains unobstructed by any doors, curtains, partitions, walls,
merchandise, display racks or other materials at all times that any
customer is present on, in or about the premises; and, that no customer is
permitted access to any area of the premises which has been designated
as an area in which customers will not be permitted in the application filed
Ordinance 0-10-1765
Page 36 of 43
pursuant to Subsection (1) of this section.
8. The premises shall be equipped with overhead lighting fixtures of sufficient '
intensity to illuminate every place to which customers are permitted
access at an illumination of not less than five (5.0) foot-candles as
measured at the floor level.
9. The licensee commits an offense if the licensee permits illumination of any
area of the premises to which customers have access to be less than five
(5.0) foot-candles as measured at the floor level.
10. No viewing room or booth of less than 150 square feet of floor space shall
be occupied by more than one (1) person at any time. (Amend Ord 04-
002, 1 /6/04)
11. No licensee shall allow openings or holes of any kind to exist between
adjacent or adjoining viewing rooms or booths. ~
12. No person shall make or attempt to make an opening or hole of any kind
between adjacent or adjoining viewing rooms or booths.
13. The licensee shall, during each business day, regularly inspect the walls of
all viewing rooms or booths to determine if any openings or holes exist.
14. In a viewing room or booth of less than 150 square feet of floor space, the
walls shall be no more than forty-eight (48) inches tall. At least one wall of
any such viewing room or booth shall be visible in a direct unobstructed
line of sight from the manager's station. Each wall or door of any such
viewing room or booth shall be constructed of clear transparent glass, '~
plastic or substantially equivalent materials that allow an unobstructed
view of the entire interior of the viewing room or booth. ',
15. Live entertainment is prohibited in any viewing room or booth of less than '~,
500 square feet of floor space, as well as any other room adjacent to or
visible from any viewing room or booth.
16. The licensee or operator commits an offense if the licensee knowingly j
allows a person to appear in a state of nudity in, on or about the premises
of a Sexually Oriented Business, other than a Sexually Oriented Motel,
which exhibits on the premises in a viewing room of less than 500 square
feet of floor space, a film, photograph, picture, video cassette or other
video reproduction which depicts specified sexual activities or specified
anatomical areas.
17. A person commits an offense if the person knowingly appears in a state of
nudity in or on the premises of a Sexually Oriented Business, other than a
Sexually Oriented Motel, which exhibits on the premises in a viewing room
of less than 500 square feet of floor space, a film, photograph, picture, ',
video cassette or other video reproduction which depicts specified sexual
activities or specified anatomical areas.
18. It is a defense to prosecution under Subsections (16) and (17) of this
section if the person was in a restroom not open to public view or persons
of the opposite sex.
B. A person having a duty under Subsection (1) through (18) of Subsection (A)
Ordinance 0-10-1765
Page 37 of 43
herein commits a misdemeanor if he or she knowingly fails to fulfill that duty.
C. An employee of a Sexually Oriented Business that exhibits sexually explicit films, '.
photographs, pictures or videos must attend training given by the licensee
concerning the requirements of this Chapter as they pertain to such a business, '~,
including but not limited to Sections 4.03, 4.05, 4.06, 5.04, 5.05, 6.01, 6.02, 6.03,'
6.04, and 7.01, before the employee receives any compensation for the person's
services. The licensee shall provide this training to all employees at the
beginning of employment before the employee receives any compensation for
services; and, at least once a year thereafter. The licensee shall maintain written
records of the training provided to each employee pursuant to this subsection.
These records shall include a signed and dated statement from each employee
verifying the employee's attendance at and participation in training provided by
the licensee identifying the date on which the training was provided and the
specific topics discussed.
D. A licensee shall designate and appoint one or more individuals to manage, direct,
and control the premises and operations of the Sexually Oriented Business as
described in this Section. At least one person so appointed shall be on the
premises at any time the Sexually Oriented Business as described in this Section
is open.
E. An operator or a person appointed under Subsection (D) above shall at all times
have the duty to ensure that each employee in the Sexually Oriented Business
as described in this Section has received the training required by Subsection (C)
above and each employee is instructed to commit no act which would constitute
a violation of this Chapter or which would provide grounds, or part of the
grounds, for suspension or revocation of a license issued under this Chapter.
Section 5.06 Additional Regulations Pertaining to Sexually Oriented Bookstores,
Sexually Oriented Novelty Stores and Sexually Oriented Video Stores
A. A person who operates or causes to be operated a Sexually Oriented Bookstore,
Sexually Oriented Novelty Store or Sexually Oriented Video Store shall comply
with the following requirements:
An application for a Sexually Oriented Business license shall be
accompanied by a diagram of the premises showing a plan thereof
specifying the location of one (1) or more manager's stations and the
location of all overhead lighting fixtures and designating any portion of the
premises in which patrons will not be permitted. A manager's station may
not exceed thirty-two (32) square feet of floor area. The diagram shall
also designate the place at which the permit will be conspicuously posted,
if granted. A professionally prepared diagram in the nature of an
Ordinance 0-10-1765
Page 38 of 43
2
3
4.
5
6.
7
8.
engineer's or architect's blueprint shall not be required; however, each
diagram shall be oriented to the north, or to some designated street or i
object, and shall be drawn to a designated scale or with marked
dimensions sufficient to show the various internal dimensions of all areas
of the interior of the premises to an accuracy of plus or minus six inches
(6"). The Chief of Police may waive the foregoing diagram for renewal ~~~
applications if the applicant adopts a diagram that was previously I,
submitted and certifies that the configuration of the premises has not been II
altered since the previously submitted diagram was prepared.
The application shall be sworn to be true and correct by the applicant. ''
No alteration in the configuration or location of a manager's station may be
made without the prior approval of the Chief of Police.
The licensee commits an offense if the licensee permits a manager's
station to be unattended by an employee at any time a customer is
present on, in or about the premises.
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 customer is permitted access for any purpose,
excluding restrooms. Restrooms may not contain video reproduction
equipment or any other equipment allowing for the viewing of film, videos,
photographs or other video reproduction. If the premises has two (2) 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 customer is permitted access for
any purpose from at least one (1) of the manager's stations. The view
required in this subsection must be by direct line of sight from the
manager's station.
The licensee commits an offense if the licensee permits a customer'
access to any area of the premises that is not visible from the manager's
station for any purpose, excluding restrooms.
The owners, operator and any agents and employees present on the
premises shall ensure: that the view area specified in Subsection (5) of
this section remains unobstructed by any doors, curtains, partitions, walls,
merchandise, display racks or other materials at all times that any
customer is present on, in or about the premises; and, that no customer is
permitted access to any area of the premises which has been designated
as an area in which customers will not be permitted in the application filed
pursuant to Subsection (1) of this section.
The premises shall be equipped with overhead lighting fixtures of sufficient
intensity to illuminate every place to which customers are permitted
access at an illumination of not less than twenty (20.0) foot-candles as
measured at the floor level.
9. The licensee commits an offense if the licensee permits illumination of any
Ordinance 0-10-1765
Page 39 of 43
area of the premises to which customers have access to be less than '
twenty (20.0) foot-candles as measured at the floor level.
10. No viewing room or reading room may be occupied by more than one (1)
person at any time.
11. No licensee shall allow openings or holes of any kind to exist between
adjacent or adjoining viewing rooms or booths or reading rooms or booths.
12. No person shall make or attempt to make an opening or hole of any kind
between adjacent or adjoining viewing rooms or booths or reading rooms
or booths.
13. The licensee shall, during each business day, regularly inspect the walls of
all viewing rooms or booths and reading rooms or booths to determine if
any openings or holes exist.
14. The walls of any viewing room or booth and any reading room or booth ~
shall be no more than forty-eight (48) inches tall. At least one wall of any
viewing room or booth shall be visible in a direct unobstructed line of sight
from the manager's station. Each wall or door of any viewing room or
booth shall be constructed of clear transparent glass, plastic or
substantially equivalent materials that allow an unobstructed view of the
entire interior of the viewing room or booth.
15. Live entertainment is prohibited in any viewing room or booth and any
reading room or booth as well as any other room adjacent to or visible
from any reading or viewing room or booth.
16. The licensee or operator commits an offense if the licensee knowingly ,
allows a person to appear in a state of nudity in, on or about the premises',
of a Sexually Oriented Bookstore, Sexually Oriented Novelty Store or
Sexually Oriented Video Store that contains a viewing room or reading
room of less than 500 square feet of floor space.
17. A person commits an offense if the person knowingly appears in a state of
nudity in, on or about the premises of a Sexually Oriented Bookstore, ;
Sexually Oriented Novelty Store or Sexually Oriented Video Store that
contains a viewing room or reading room of less than 500 square feet of
floor space.
18. It is a defense to prosecution under Subsections (16) and (17) of this
section if the person was in a restroom not open to public view or persons
of the opposite sex.
B. A person having a duty under Subsections (1) through (18) of Subsection (A)
herein commits a misdemeanor if he or she knowingly fails to fulfill that duty.
C. An employee of a Sexually Oriented Bookstore, Sexually Oriented Novelty Store
or Sexually Oriented Video Store must attend training given by the licensee
concerning the requirements of this Chapter as they pertain to such a business,
including but not limited to Sections 4.03, 4.05, 4.06, 5.04, 5.05, 5.06, 6.01, 6.02,
6.03, 6.04, and 7.01, before the employee receives any compensation for the
Ordinance 0-10-1765
Page 40 of 43
person's services. The licensee shall provide this training to all employees at the ~
beginning of employment before the employee receives any compensation for'
services; and, at least once a year thereafter. The licensee shall maintain written
records of the training provided to each employee pursuant to this subsection.
These records shall include a signed and dated statement from each employee
verifying the employee's attendance at and participation in training provided by
the licensee identifying the date on which the training was provided and the
specific topics discussed.
D. A licensee shall designate and appoint one or more individuals to manage, direct,
and control the premises and operations of the Sexually Oriented Bookstore,
Sexually Oriented Novelty Store or Sexually Oriented Video Store. At least one
person so appointed shall be on the premises at any time the Sexually Oriented
Bookstore, Sexually Oriented Novelty Store or Sexually Oriented Video Store is'
open. ''
E. An operator or a person appointed under Subsection (D) above shall at all times',
have the duty to ensure that each employee in the Sexually Oriented Bookstore, ',
Sexually Oriented Novelty Store or Sexually Oriented Video Store has received
the training required by Subsection (C) above and each employee is instructed to
commit no act which would constitute a violation of this Chapter or which would
provide grounds, or part of the grounds, for suspension or revocation of a license'
issued under this Chapter.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Hours of Operation
No Sexually Oriented Business, may remain open at any time between the hours of
10:00 p.m. and 10:00 a.m. on Sunday through Thursday, and 12:00 p.m. and 10:00,
a.m. on Friday and Saturday. If the Sexually Oriented Business holds a valid license
from the Texas Alcoholic Beverage Commission that permits alcoholic beverages to be
sold at times different from those set out in this section, then the Sexually Oriented
Business may remain open during those hours.
Section 6.02 Prohibition Against Children in a Sexually Oriented Business
A licensee, operator or employee commits an offense if the licensee, operator or
employee knowingly allows a person under the age of eighteen (18) years on the
premises of a Sexually Oriented Business.
Section 6.03 Additional Regulations Concerning Public Nudity
Ordinance 0-10-1765
Page 41 of 43
A.
A licensee, operator or employee commits an offense if the licensee, operator or'
employee knowingly allows, in a Sexually Oriented Business, another to appear
in a state of nudity, unless the person is an employee who, while in a state of
nudity, is on a stage (on which no customer is present) at least eighteen (18)
inches above the floor, and is: (1) at least six (6) feet from any customer
(hereinafter called "unenclosed performance stage"); or (2) physically separated
from customers by a wall or partition composed of solid glass or light-transmitting
plastic, or substantially equivalent material extending from the floor of the
performance stage to at least five (5) feet above the level of the performance
stage, but such that there are no openings in the wall or partition that would
permit physical contact between customers and such employee (hereinafter
called "enclosed performance stage").
B. It is an offense for an employee, while in a state of nudity in a Sexually Oriented
Business, to receive directly any pay or gratuity from any patron or customer, or
for any patron or customer to pay or give any gratuity directly to any employee,
while that employee is in a state of nudity in a Sexually Oriented Business. Such
gratuity or pay may be provided to such employee through a tip receptacle,
located more than six (6) feet from the nearest point of the performance stage
where such employee is in a state of nudity, or may be paid to an employee that
is not in a state of nudity, as part of the customer's bill.
C. It is an offense if an employee, while in a state of nudity, touches a customer or
the clothing of a customer.
D. It is an offense if a customer touches an employee appearing in a state of nudity
or clothing of the employee.
Section 6.04 Conspicuous Signage and Markings Required
A. A licensee or operator commits an offense if the licensee or operator fails to
display a sign on the interior of the Sexually Oriented Business premises
notifying customers and employees of the prohibition prescribed by Subsections
6.03(6), (C), (D) and (E), above. The sign must be prominently and continuously
displayed where customers enter the premises, and immediately adjacent to
each stage required by Section 6.03(6), and must state in letters at least two
inches high:
TOUCHING OR TIPPING AN EMPLOYEE WHO IS IN A STATE OF
NUDITY IS A CRIME (MISDEMEANOR), PUNISHABLE BY FINE UP TO
$2,000. PATRONS SHALL REMAIN AT LEAST SIX FEET FROM ALL
UNENCLOSED PERFORMANCE STAGES.
Ordinance 0-10-1765
Page 42 of 43
The Chief of Police may require, at the time of issuance or renewal of the license,
the licensee to also display the sign in a language other than English if he
determines that a substantial portion of the expected customers speak the other
language as their familiar language. Upon notification, a licensee commits an I,
offense if the sign does not contain this language in the required language, in',
addition to English.
B. A licensee or operator commits an offense if the licensee, operator or employee
fails to prominently and continuously display a two inches wide glow-in-the-dark
line on the floor of the Sexually Oriented Business marking a distance of six feet
from each unenclosed stage on which an employee in a state of nudity may
appear in accordance with Section 6.03(B).
ARTICLE VII
ENFORCEMENT
Section 7.01 Violation a Misdemeanor
Any person, firm, corporation, agent or employee thereof who violates any of the
provisions of this ordinance shall be guilty of a misdemeanor, and upon conviction
thereof shall be fined an amount not to exceed Two Thousand Dollars and No Cents
($2,000.00) for each offense. Each day that a violation is permitted to exist shall
constitute a separate offense.
Section 7.02 Notice of Violation
The City shall send to a Sexually Oriented Business written notice of each citation
issued to an operator or employee of the business for an alleged violation of Sections
6.02, 6.03, 6.04 or any provision of Article V of this Chapter. The notice will be sent
within three (3) business days of the issuance of the citation to the operator or
employee. The notice will be sent by certified mail, return receipt requested, to the
business address of the Sexually Oriented Business as it appears on its license
application, to the attention of the licensee, as it appears on the license application. A
failure of the City to provide such notice is not a violation of this Chapter. It is not a
defense to a citation issued to an employee or operator for an alleged violation of
Sections 6.02, 6.03, 6.04, or any provision of Article V of this Chapter, that notice of the
issuance of that citation was not given to the Sexually Oriented Business in accordance
with this Section.
Sec. 3. THAT any person, firm or corporation violating any of the provisions or
terms of this ordinance shall be deemed guilty of a misdemeanor and upon
final conviction thereof fined in an amount not to exceed the sum of Two
Thousand Dollars ($2,000.00) for each offense. Each day any such
violation continues or is allowed to exist shall constitute a separate
Ordinance 0-10-1765
Page 43 of 43
violation and be punishable hereunder.
Sec. 4. THAT in desiring to promote the health, safety, morals and general
welfare of the citizens of the City, and to establish reasonable and uniform
regulations regarding Sexually Oriented Businesses within the City, that
this ordinance shall take effect immediately from and after its passage.
Sec. 5
THAT If any section, article, paragraph, sentence, clause, phrase or word
in this ordinance, or application thereto any person or circumstances is ',
held invalid or unconstitutional by a Court of competent jurisdiction, such'
holding shall not affect the validity of the remaining portions of this'
ordinance; and the City Council hereby declares it would have passed'i
such remaining portions of the ordinance despite such invalidity, which ~,
remaining portions shall remain in full force and effect. ~
Sec. 6. THAT the City Secretary is hereby authorized and directed to cause
publication of the description caption and penalty clause hereof as an
alternative method of publication provided by law.
AND IT IS SO ORDERED.
da of
Th first reading and public hearing being conducted on the ~_ y
2010.
The second readin and ublic hearin bein conducted on the
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~~o~.p/Yr~/~P~Y 2010.
ATTES - \
Cynthia Singleton, TRMC, CMC
City Secretary
APPROVED AS TO FORM AND LEGALITY:
vJ•
Matthew C. G. Boyle
City Attorney
CITY OF COLLEYVILLE
David Kelly
Mayor
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