O352ORDINANCE NO. 352
AN ORDINANCE AMENDING ARTICLE VIII OF CHAPTER 11 OF THE
KENNEDALE CITY CODE (1991), AS AMENDED, REGARDING
SEXUALLY ORIENTED BUSINESSES; BY AMENDING CERTAIN
DEFINITIONS; AMENDING THE REQUIRED MENTAL STATE FOR
OFFENSES WITH A PENALTY OF FIVE HUNDRED DOLLARS OR LESS;
PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL
ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING
FOR A PENALTY FOR VIOLATIONS HEREOF; PROVIDING A SAVINGS
CLAUSE; PROVIDING FOR PUBLICATION IN PAMPHLET FORM;
PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Kennedale, Texas is a home rule city acting under its charter
adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and
Chapter 9 of the Texas Local Government Code; and
WHEREAS, the City Council of the City of Kennedale previously adopted Ordinance
No. 108, as amended, codified as Article VIII of Chapter 11 of the Kennedale City Code,
which regulates the location and operation of sexually oriented businesses within the City
of Kennedale; and
WHEREAS, in adopting Ordinance No. 108 and subsequent amendments to the
regulations contained in that ordinance, the City Council has relied on numerous studies,
reports, and findings regarding the harmful effects of sexually oriented businesses on
surrounding land uses, and on reported court cases and the factual findings reviewed by
those courts; and
WHEREAS, the City Council has reviewed the findings, purpose and intent of
Ordinance No. 108 and subsequent amendments to the regulations contained in that
ordinance, and finds them to be applicable to the provisions in this ordinance; and
WHEREAS, in considering this current ordinance, evidence concerning the adverse
secondary effects of sexually oriented businesses on the community where they are
located has been presented in hearings and in the studies, reports and findings referred
to below that were made available to the City Council, including findings incorporated into
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); City of Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. 1382 (2002); City of Los
Angeles, v. Alameda Books, Inc., 535 U.S. 425 (2002); Woodall v. City of El Paso (Woodall
1), 959 F.2d 1305 (5th Cir. 1992); Woodall v. Cify of EI Paso (Woodall ll), 49 F.3d 1120 (5th
Cir. 1995); Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255 (5th Cir.
1992); Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993); 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 (3d Cir.1993); Encore Videos, Inc. v. City of San Antonio, 330
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F.3d 288 (5th Cir. 2003); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th
Cir. 1999); N.W. Enters. Inc. v. City of Houson, 352 F.3d 162, on rehearing 372 F.3d 333
(5th Cir. 2004); Fantasy Ranch, Inc. v. Tazz Man, Inc., No. 3:03-CV-0089-R, 2004 WL
1779014 (N.D. Tex. Aug. 9, 2004); Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th
Cir. 1995); Robinson v. CityofLongview, 936 S.W.2d 413 (Tex. App.-Tyler 1996, no writ);
People of the State of Illinois v. The Lion's Den, Inc., Circuit Court of the Fourth Judicial
Circuit, Effingham County, Illinois, filed June 10, 2005; Illinois One News, Inc. V. City of
Marshall, 2006 WL 449018 (S.D. III. 2006); Fantasy Ranch, Inc. v. City of Arlington, ---
F.3d---, 2006 WL 2147559 (5th Cir. Aug. 2, 2006); and
WHEREAS, studies, reports and findings conducted by the City of Amarillo, Texas,
the City of Austin, Texas, the City of Beaumont, Texas, the City of Dallas, Texas, the City
of EI Paso, Texas, the City of Fort Worth, Texas, the City of Houston, Texas, the City of
Indianapolis, Indiana, the City of Kennedale, Texas, the Attorney General of the State of
Minnesota, the City of Garden Grove, California, the City of Los Angeles, California, the
Attorney General's Commission on Pornography, the City of Sioux City, Iowa, the City of
Las Vegas, Nevada, and the City of Oklahoma City, Oklahoma; and publications written
by recognized experts regarding the harmful secondary effects of sexually oriented
businesses on surrounding land uses have been presented to and reviewed by the City
Council and made part of the public record; and
WHEREAS, the City Council finds that the cities represented in the relevant studies,
reports and findings reviewed by the City of Kennedale have similar community
characteristics to those of the City of Kennedale in relevant respects; and
WHEREAS, the City Council finds, based on the above studies, reports and
findings, as well as the Attorney General's Commission on Pornography, that sexually
oriented businesses have a deleterious effect on both the existing businesses around them
and the surrounding residential areas adjacent to them, causing increased crime and the
downgrading of property values, and municipal regulation aimed at reducing adverse
secondary effects is the most effective and appropriate mechanism to make the owners
of these establishments responsible for the activities that occur on their premises; and
WHEREAS, the City Council finds, based in part upon the results of the Survey of
Fort Worth and Dallas Appraisers, September 2004, that sexually oriented businesses that
engage in only retail sales or rental of sexually oriented adult merchandise for off-premise
use have adverse effects on surrounding property values and the ability of surrounding
properties to sell or develop, similar to the adverse effects generated by sexually oriented
businesses which offer on-site adult entertainment; and
WHEREAS, the City Council finds, based in part upon the reports/affidavit of Dr.
Richard McCleary to the City of Kennedale and the City of Sioux City, that sexually oriented
businesses that engage in only retail sales or rental of sexually oriented adult merchandise
for off-premise use cause public safety orcrime-related adverse effects on the surrounding
community, similar to the adverse effects generated by sexually oriented businesses which
offer on-site adult entertainment; and
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WHEREAS, the City Council finds, based on the above studies, reports and findings
presented to the City Council that it is reasonably likely that these adverse secondary
effects will occur in the City of Kennedale; and
WHEREAS, the City Council, in order to meet its police power responsibilities in
providing the quality and character of environment desired by its citizens has determined
that it is reasonable and necessary and advisable to amend the regulations for sexually
oriented businesses to clarifytheirapplicabilityto certain businesses, to complywith recent
changes in state law regarding the mental state requirement for violations, and to protect
the public health, safety and welfare; and
WHEREAS, the City Council desires to minimize and control the adverse secondary
effects of sexually oriented businesses and thereby protect the health, safety and welfare
of the citizenry; protect the citizens from increased crime; preserve the quality of life;
preserve and protect propertyvalues and the characterof surrounding neighborhoods; and
deter the spread of urban blight; and
WHEREAS, the City has a legitimate and substantial governmental interest in
limiting the detrimental secondary effects associated with sexually oriented businesses as
a means of promoting the public health, safety and welfare; and
WHEREAS, the City Council finds that a reasonable number of locations are
available within the city limits of Kennedale and within surrounding areas for the operation
of sexually oriented businesses including sexually oriented businesses that engage in only
retail sales or rental of sexually oriented adult merchandise for off-premise use; and
WHEREAS, the City Council finds thatthese amendments have neitherthe purpose
nor effect of imposing a limitation or restriction on the content of any communicative
materials, including sexually oriented materials, nor do these amendments have the effect
of restricting or denying access by adults to sexually oriented materials protected by the
First Amendment, or deny access by the distributors and exhibitors of sexually oriented
entertainment to their intended market; and
WHEREAS, a public hearing was duly held by the City Council of the City of
Kennedale on the 12th day of October, 2006 with respect to the regulations in this
ordinance and the adverse secondary effects of sexually oriented businesses on the
surrounding community; and
WHEREAS, the testimony at this public hearing, in addition to the reported court
cases, studies, reports and findings referred to above, has formed the basis of the City
Council's factual findings and determinations in support of this ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
KENNEDALE,TEXAS:
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SECTION 1.
The following definitions in Section 11-203 of the Kennedale City Code are hereby
changed as follows. The remaining definitions in Section 11-203 of the Kennedale City
Code are retained unaltered.
Adult bookstore means a commercial establishment which as one (1) of its
business purposes offers for sale or rental for any form of consideration
books, magazines, periodicals or other printed matters, or any combination
thereof, which are distinguished or characterized by an emphasis on matters
depicting or describing specified sexual activities or specified anatomical
areas.
Adult novelty store means a commercial establishment which as one (1) of
its business purposes 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, videocassettes or video
reproductions, slides, objects, or other visual representations
which depict or describe specified sexual activities or specified
anatomical areas; or
(2) Instruments, devices, or paraphernalia which are designed or
manufactured for use in connection with specified sexual
activities. This does not include items used for birth control or
for prevention of sexually transmitted diseases.
Adult video store means a commercial establishment which as one (1) of its
business purposes offers for sale or rental for any form of consideration
photographs, films, motion pictures, video cassettes, video reproductions,
slides or other visual representations, or any combination thereof, which are
distinguished or characterized by an emphasis on matters depicting or
describing specified sexual activities or specified anatomical areas.
Sexually oriented business means an adult arcade, adult bookstore, adult
cabaret, adult novelty store, adult motel, adult movie theater, adult service
establishment, adult video store, sex parlor, sexual encounter center, nude
modeling studio or other commercial enterprise, or any combination thereof,
which devotes a significant or substantial portion of its business to 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
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state of nudity. As used in this definition, "significant or substantial portion"
shall be construed with reference to all relevant factors, including but not
limited to the following:
(1) whether the business uses advertising or signage identifying
the business as having sexually explicit merchandise or
services for sale, rental, or viewing, including the use of terms
such as "adult," "sex," or "~JCX;"
(2) the proportion of retail floor space, display areas, presentation
time, or stock in trade devoted to sexually explicit content
(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.);
(3) the percentage of the business's overall sales or revenues
attributable to sexually explicit content; and
(4) the percentage of sales or revenues attributable to sexually
explicit content within each category of merchandise, including
books, magazines, movies for rental, movies for sale, movies
for on-site viewing, performances, sexual paraphernalia, or
other products or services.
The term "sexually oriented business" shall not be construed to include:
(1) Any business operated by or employing licensed
psychologists, licensed physical therapists, registered
massage therapists, registered nurses, or licensed athletic
trainers engaged in practicing such licensed professions;
(2) Any business operated by or employing licensed physicians or
licensed chiropractors engaged in practicing the healing arts;
(3) Any retail establishment whose principal business is the
offering of wearing apparel for sale to customers, which does
not exhibit merchandise on live models, and which does not
offer for sale or rental any:
(i) materials of any kind containing depictions of specified
anatomical areas, or
(ii) instruments, devices, or paraphernalia which are
designed or manufactured for use in connection with
specified sexual activities; or
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(4) Any activity conducted or sponsored by any Texas
independent school district, licensed or accredited private
school, or public or private college or university.
SECTION 2.
Section 11-221 of the Kennedale City Code is hereby amended to read as follows:
Sec. 11-221. Violation a misdemeanor.
(a) Any person who violates any of the provisions of this article shall be
guilty of a misdemeanor and upon conviction shall be fined an amount
not to exceed two thousand dollars ($2,000.00) for each offense
affecting zoning, fire safety or public health and sanitation, and five
hundred dollars ($500.00) for all other offenses. Each day that a
violation is permitted to exist shall constitute a separate offense.
(b) It is the city's intention to dispense with any mental element from the
definition of any prohibited act, offense, or misdemeanor in this article
for which the punishment is by a fine not exceeding five hundred
dollars ($500.00) or whenever in this article the doing of any act is
required orthe failure to do any act is declared to be unlawful and the
punishment is by a fine not exceeding five hundred dollars ($500.00).
No culpable mental state will be required to prove such a violation of
this article.
SECTION 3.
This Ordinance shall be cumulative of all other Ordinances of the City of Kennedale,
and shall not repeal any of the provisions of such ordinances except in those instances
when provisions of such ordinances are in direct conflict with the provisions of this
ordinance, in which event the conflicting provisions of such ordinances are hereby
repealed.
SECTION 4.
It is hereby declared to be the intention of the City Council that the phrases, clauses,
sentences, paragraphs, and sections of this ordinance are severable, and if any phrase,
clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional
by the valid judgment or decree of any court of competent jurisdiction, such
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unconstitutionality shall not affect any of the remaining phrases, clauses, sentences,
paragraphs and sections of this ordinance, since the same would have been enacted by
the City Council without the incorporation in this ordinance of any such unconstitutional
phrase, clause, sentence, paragraph or section.
SECTION 5.
Any person, firm or corporation who violates, disobeys, omits, neglects or refuses
to comply with or who resists the enforcement of any of the provisions of this ordinance
shall be fined, upon conviction, not more than Two Thousand Dollars ($2,000.00) for each
offense affecting zoning, fire safety or public health and sanitation, and Five Hundred
Dollars ($500.00) for all other offenses. Each day that a violation is permitted to exist shall
constitute a separate offense. It is the City's intention to dispense with any mental element
from the definition of any offense for which the punishment is by a fine not exceeding Five
Hundred Dollars ($500.00); no culpable mental state will be required to prove such a
violation.
SECTION 6.
All rights or remedies of the City of Kennedale, Texas are expressly saved as to any
and all violations of Ordinance Number 108, as amended, and any other ordinance
affecting sexually oriented businesses that have accrued at the time of the effective date
of this Ordinance; and, as to such accrued violations and all pending litigation, both civil
and criminal, whether pending in court or not, same shall not be affected by this Ordinance
but may be prosecuted until final disposition by the Courts.
SECTION 7.
The City Secretary of the City of Kennedale is hereby authorized to publish this
ordinance in book or pamphlet form for general distribution among the public, and the
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operative provisions of this ordinance as so published shall be admissible in evidence in
all courts without further proof than the production thereof.
SECTION 8.
The City Secretary of the City of Kennedale is hereby directed to publish in the
official newspaper of the City of Kennedale the caption, penalty clause, publication clause
and effective date clause of this ordinance as provided by Section 3.10 of the Charter of
the City of Kennedale.
SECTION 9.
This ordinance shall be in full force and effect from and after its passage and
publication as required by law, and it is so ordained.
PASSED AND APPROVED this 14t'' day of December, 2006.
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APPROVED AS TO FORM AND LEGALITY:
City Attorney
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