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O186~~~;~;s~~ C~~y ORDINANCE NO. 186 5~~~;L~hz Y'S C~1PY AN ORDINANCE AMENDING ARTICLE VIII OF CHAPTER 11 OF THE KENNEDALE CITY CODE (1991), AS AMENDED, REGARDING SEXUALLYORIENTEDBUSlNESSES; BY AMENDING DEFINITIONS; BY AMENDING PROVISIONS REGARDING LOCATION; NONCONFORMING USES; LICENSES; DENIAL, SUSPENSION, OR REVOCATION OF LICENSES; AND APPEALS; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; 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, Chapter 243 of the Texas Local Government Code authorizes cities to adopt regulations concerning the location and operations of sexually oriented businesses; and WHEREAS, the City Council of the City of Kennedale previously adopted Ordinance No. 108, codified as Article VII I 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, the City Council now deems it advisable and in the public interest to amend the regulations applicable to sexually oriented businesses as provided herein; and WHEREAS, the Gity Council has reviewed the findings previously made by Ordinance No. 108 and finds them to be applicable to the provisions of this ordinance; and WHEREAS, the City Council finds that, unless the regulations contained herein are adopted, sexually oriented businesses will have an adverse effect on surrounding ORDINANCE NO. 186 PAGE 1 of 16 W:\KenneOale\OrdinandSOBAm.tnl.wpd (Rev.03/10/00) properties; and WHEREAS, a public hearing was duly held by the Planning and Zoning Commission of the City of Kennedale on the 20th day of January, 2000 and by the City Council of the City of Kennedale on the 10th day of February, 2000 with respect to the regulations in this ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS: 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 of its principal 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 movie theater means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, video reproductions, slides or other visual representations, or any combination thereof, are regularly shown which are distinguished orcharacterized 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 of its principal business purposes offers for sale or rental for any form of consideration any one or more of the following: a. Books, magazines, periodicals, or other printed matter, or photographs, 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 b. Instruments, devices, or paraphernalia which are designed or manufactured for use in connection with ORDINANCE NO. 186 PAGE 2 of 16 W:U(ennedale\OrOinanc\SOBAm.fn7.wptl (Rev.03/10/00) specified sexual activities. This does not include items used for birth control or for prevention of sexually transmitted diseases. Adulf service establishment means a commercial establishment which offers services or sells products to customers and in which one or more of the employees or the customer appears in a state of nudity, semi-nudity, or simulated nudity. Adult video store means a commercial establishment which as one of its principal 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. Escort agency means a person or business association who, as one of its principal business purposes, furnishes, offers to furnish, or advertises to furnish escorts, or any combination thereof, for a fee, tip, or other consideration. The term love parlor is hereby deleted. Principal means over 35 percent of customers, volume of sales, stock in trade, display areas, or presentation time, or any combination thereof in any three-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. Sex parlormeans an establishment that is operated for the purpose of giving massages, at the establishment or on a home-call basis, that are intended to provide sexual stimulation or sexual gratification in combination with a massage. Sexual encounter center means a business or commercial enterprise that offers for any form of consideration physical contact in the form of wrestling or tumbling between persons of the opposite sex, or activities between male and female persons and/or persons of the same sex, when one or more of the persons is in a state of nudity, semi-nudity, or simulated nudity. 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 ORDINANCE NO. 186 PAGE 3 of 16 W:\Kannatlale\OrdinandSOBAm.fnl.wpd (R9v.03/t0100) modeling studio or other commercial enterprise, or any combination thereof, a principal business ofwhich is the offering of a service orthe 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, orwhose employees or customers appear in a state of nudity. 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 and which does not exhibit merchandise on live models; or (4) Any activity conducted or sponsored by any Texas independent school district, licensed or accredited private school, or public or private college or university. Simulated nudity means a state of dress in which any device or covering is worn and exposed to view that simulates any part of the genitals, buttocks, anus, pubic region, or areola of the female breast. SECTION 2. Subsections 11-204(b) and (d) of the Kennedale City Code are hereby amended to read as follows: (b) A person commits an offense if he establishes, operates or causes to be operated, or expands a sexually oriented business within the Business 287 Overlay District orthe Interstate 20 /Loop 820 Overlay District as established in the Kennedale Zoning Ordinance. ** (d) For the purposes of subsection (a) above, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a use listed in ORDINANCE NO. 186 PAGE 4 of 16 W:U(enne0ale\Ordinanc\SOBAm.lnl.wptl (Rev.03/7N00) subsections (a)(1)-(7) of this section. SECTION 3. Subsections 11-204 (e), (f), (g), (h), and (i) of the Kennedale City Code are hereby repealed. SECTION 4. The Kennedale City Code is hereby amended by adding a new Section 11-204A to read as follows: Sec. 11-204A. Nonconforming uses. (a) Any sexually oriented business that is in violation of Section 11-204 or any other location requirement of any other city ordinances, that was legally operating on the effective date of adoption or amendment of such ordinance or regulation, shall be deemed a nonconforming use and the provisions of Section 17-428 of the Kennedale Zoning Ordinance shall apply, except if two or more sexually oriented businesses are within 800 feet of one another, or are located in the same building or structure, and otherwise in a permissible location, the sexually oriented business that was first established and continually operating as a sexually oriented business at a particular location (regardless of which business was first located in the City), even if operating under a different name, ownership, or selling different sexually oriented merchandise or services, is the conforming use and the later-established business is nonconforming. (b) The provisions of this section shall also apply to legally operating sexually oriented businesses made nonconforming by annexation into the city limits, or by the location of a protected use listed in Subsection 11-204(a) within 800 feet of the sexually oriented business after the commencement of operation of the sexually oriented business. (c) Nonconforming sexually oriented businesses shall be subject to amortization under the procedures set forth in the Kennedale Zoning Ordinance. (d) Notwithstanding anything contained in this article or in Section 17-428 of the Kennedale Zoning Ordinance to the contrary, a nonconforming sexually oriented business shall be required to meet all applicable ORDINANCE NO. 186 PAGE 5 of 16 W:\Kennedale\Ordinanc\SOBAm.(nl.wpd (Rev.03/t0100) requirements ofthis article except locational requirements established by Section 11-204(a)-(c) by May 8, 2000 or the date that it becomes nonconforming, whichever is later. The Zoning Board of Adjustment may grant a nonconforming sexually oriented business an extension if the business shows, upon written application, that meeting these requirements within sixty (60) days imposes an unnecessary hardship on the business. SECTION 5. Subsection 11-205(a) of the Kennedale City Code is hereby amended ro read as follows: (a) A person commits an offense if he operates or causes to be operated a sexually oriented business without a valid sexually oriented business license or nonconforming sexually oriented business license, issued by the city for the particular type of business. SECTION 6. Subsection 11-206(a) of the Kennedale City Code is hereby amended to read as follows: (a) Any person desiring to obtain a sexually oriented business license shall make application on a form provided by the chief of police. The application must: (1) be accompanied by a diagram of the premises showing a plan of the premises, specifying the location of all overhead lighting fixtures, designating any portion of the premises in which customers will not be permitted, and specifying the location of all manager's stations, if applicable. The diagram shall designate the place at which the license will be conspicuously displayed, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches; (2) contain all information required pursuantto Section 11-207 and be supported by any necessary documentation; ORDINANCE NO. 186 PAGE 6 of 16 W:V(ennetlale\ORDINANC\SOBAm.fil.wpA (Rev.03110/00) (3) include a current list of all employees or prospective employees, along with copies of complete updated employment application, valid driver's license, state identification card, or passport containing a photograph of the employee; (4) contain any other information requested by the chief of police in order to assist the chief in deciding whether the grant the license; and (5) be sworn to be true and correct by the applicant. SECTION 7. Subsection 11-207(a)(1) ofthe Kennedale City Code is hereby amended to read as follows: (a) (1) The location of the sexually oriented business is or will be in violation of section 11-204 and no exemption has been granted under Section 11-223. SECTION 8. Section 11-207(a)(10)a.4. of the Kennedale City Code is hereby amended to read as follows: 4. Incest (prohibited sexual conduct), enticing a child, or harboring a runaway child as described in V.T.C.A., Penal Code, ch. 25; SECTION 9. Section 11-207 of the Kennedale City Code is amended by adding a new subsection (a)(11) to read as follows: (11) For an existing business, the business is in violation of any other applicable requirement of this article. SECTION 10. Subsection 11-207(c) of the Kennedale City Code is hereby repealed. ORDINANCE NO. 186 PAGE 7 of 16 W:UCennedale\OrdinandSOBAm.(nt.wp0 (Rev.IX3110J00) SECTION 11. The Kennedale City Code is hereby amended by adding a new Section 11-207A to read as follows: Sec. 11-207A. License for nonconforming sexually oriented business. (a) Notwithstanding anything contained in this article to the contrary, the chief of police shall issue a nonconforming sexually oriented business license to a nonconforming sexually oriented business under Section 11-204A if the chief of police finds: (1) a proper application fora license has been made in accordance with this article; (2) the applicant would qualify for a license under the provisions of section 11-207(a)(2) through (11); (3) the sexually oriented business is a nonconforming use under the provisions of section 11-204A; (4) the building in which the applicant proposes to locate the sexually oriented business is not a dangerous or substandard building pursuant to Article II of Chapter 15 of the City Code; and (5) the sexually oriented business complies with all other requirements of this article. (b) a nonconforming sexually oriented business license issued underthis section shall be subject to expiration, suspension, revocation, appeal, transfer and all other requirements of this article that are applicable to sexually oriented business licenses. (c) The issuance of a nonconforming sexually oriented business license shall not be deemed to make the sexually oriented business a legal use or to grant any other rights or waivers other than to allow the nonconforming sexually oriented business to operate in compliance with Section 11-205(a). ORDINANCE NO. 186 PAGE 8 of 16 W:U(ennedale\Ordinarw\SOBAm.fnl.wptl (Rev.03/10/00) SECTION 12. Subsection 11-209(c) of the Kennedale City Code is hereby amended to read as follows: (c) Application for renewal shall be made at least 30 days before the expiration date of the license. If application is made less than 30 days before the expiration date and the new license is granted after the expiration of the previous license, the new license shall still expire in one year from the previous expiration date. SECTION 13. Subsections 11-210(a) and (b) of the Kennedale City Code are hereby amended to read as follows. Subsections (1)-(3) of subsection (b) shall remain unaltered. (a) The chief of police shall suspend a license for a period not to exceed thirty (30) days if he determines that a licensee or an employee or spouse of a licensee: (1) has violated or is not in compliance with section 11-208; (2) is in a state of public intoxication while on the sexually oriented business premises; (3) knowingly permits gambling by any person on the sexually oriented business premises; or (4) is delinquent in payment to the City for taxes, fees, fines, or penalties assessed against or imposed on the licensee or the licensee's employee or spouse in relation to a sexually oriented business. (b) When the chief of police is authorized to suspend a license under this section, he shall give the licensee the opportunity to pay a reinstatement fee of two hundred dollars ($200.00) rather than have the license suspended. In addition to and included as a part of the reinstatement fee, a licensee whose license is suspended for a violation of subsection (a)(4) must pay all delinquent taxes, fees, fines, or penalties before the license will be reinstated. ORDINANCE NO. 186 PAGE 9 of 16 W:UCenneOale\Ordinanc\SOBAm.fnl.wptl (Rev.03/10/00) SECTION 14. Subsection 11-211(b) of the Kennedale City Code is hereby amended to read as follows: (b) The chief of police shall revoke a license if he determines that: (1) one or more statements contained in Section 11-207(a) is true; (2) the licensee violated or is not in compliance with section 11- 204 or 11-213; (3) the licensee or an employee of the licensee knowingly allowed possession, use, or sale of a controlled substance on the sexually oriented business premises; (4) the licensee or an employee of the licensee knowingly allowed prostitution on the sexually oriented business premises; (5) the licensee or an employee of the licensee knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended; (6) on two or more occasions within atwelve-month period, an employee of the licensee committed in or on the sexually oriented business premises an offense listed in subsection 11- 207(a)(10) forwhich aconviction or a deferred adjudication or other form of probation has been obtained; or (7) the licensee or an employee of the licensee knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in or on the sexually oriented business premises. The term "sexual contact" shall have the same meaning as it is defined in V.T.C.A., Penal Code § 21.01. SECTION 15. Subsection 11-211(e) of the Kennedale City Code is hereby amended to read as follows: (e) When the chief of police revokes a license, the revocation shall continue for one (1) year and the licensee shall not be issued a ORDINANCE NO. 186 PAGE 10 of 16 W:UCenrietlale\OrOinarwiSOBAm.tnl.wp0 (Rev.IXUtiX00) sexually oriented business license for one (1) year from the date revocation became effective. If, subsequent to revocation, the chief of police finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least ninety (90) days have elapsed since the date the revocation became effective. If the license was revoked under subsection 11-211(b)(1) for an offense listed in subsection 11-207(a)(10) for which the time period required has not elapsed, an applicant may not be granted another license until the appropriate number of years required under subsection 11-207(a)(10) has elapsed. SECTION 16. Section 11-212 of the Kennedale City Code is hereby amended to read as follows: Sec. 11-212. Appeal. (a) If the chief of police is authorized to deny the issuance of a license, or suspend or revoke a license as provided in this article, the chief of police shall give written notice to the applicant or licensee of such intention and the bases for the denial, suspension, or revocation. (1) The notice of intent shall provide that the denial of issuance, or the suspension or revocation shall be effective at the expiration of the third working day after the chief of police gave the notification, unless the applicant or licensee provides a written response to the chief of police before the expiration of the third working day. (2) If the chief of police receives a timely written response from the applicantor licensee, the denial of issuance, orthe suspension or revocation will be stayed pending a final decision by the chief of police. (b) The chief of police may request from the applicant or licensee any additional information necessary to finally decide whether to deny, suspend, or revoke a license. (c) After reviewing the written response from and any additional information submitted by the applicant or licensee, the chief of police shall render a final written decision. The chief of police shall deliver this final decision to the applicant or licensee by hand delivery or by certified mail, return receipt requested, to the address provided on the application. ORDINANCE NO. 186 PAGE 11 of 16 W:U(em~eOale\ONinanc\SOBAm.fnl.wptl (Rev.03/10/00) (d) The final decision by the chief of police shall be final and effective immediately. (e) Upon receipt of written notice of denial, suspension, or revocation, the applicant or licensee shall have the right to appeal to district court. If the chief of police denies, suspends, or revokes the license because the location of the sexually oriented business is or would be in violation of the locational requirements of section 11-204, the applicant may request an exemption from the Location Appeal Board pursuant to section 11-223. (f) The appeal to district court must be filed within thirty (30) days after: (1) the applicant or licensee receives notice of the chief of police's decision; or (2) the Location Appeal Board denies the exemption. (g) The licensee or applicant shall bear the burden of proof in court. SECTION 17. Subsection 11-219(1) of the Kennedale City Code is hereby amended to read as follows: (1) Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises as required by section 11-206(a)(1). The diagram shall show the location of the manager's stations. A manager's station shall not exceed 32 square feet of floor area. SECTION 18. Subsections 11-219 (2), (8) and (9) of the Kennedale City Code are hereby repealed. SECTION 19. Subsection 11-220(c) of the Kennedale City Code is hereby amended to read as follows: (c) The premises of any sexually oriented business shall be equipped ORDINANCE NO. 186 PAGE 12 of 16 W:U(ennetlale\OrdinarKiSOBAm.fit.wpd (Rev.IXil1N00) 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) footcandles. SECTION 20. Subsections 11-220(d), (e), and (f) of the Kennedale City Code are hereby added to read as follows: (d) During hours of darkness when a sexually oriented business is in operation, all required parking and all outdoor areas to which pedestrians have access on the premises of the sexually oriented business shall be lighted to an intensity of not less than five (5) footcandles measured at ground level. (e) No models, mannequins, pictures, drawings, sketches, or other live or simulated, pictorial or graphic displays of nudity or simulated nudity shall be allowed in a manner that is visible to the public from any street, sidewalk, or other public place. (f) The licensee commits an offense if he violates subsection (c), (d), or (e) of this Section. SECTION 21. Subsection 11-223(a) of the Kennedale City Code is hereby amended to read as follows. (a) The zoning board of adjustment shall serve as a Location Appeal Board, and shall have the power to rule on the appropriate disposition of applications for exemptions from the location restrictions for sexually oriented businesses set forth in Section 11-204. The Location Appeal Board shall follow the rules and procedures set forth in this section. SECTION 22. Subsections 11-223(b) through (j) of the Kennedale City Code are hereby amended by replacing "license appeal board" with "Location Appeal Board." ORDINANCE NO. 186 PAGE 13 of 16 W:VCennedale\Ordinanc\SOBAm.(nl.wpd (Rev.03110100) SECTION 23. Section 11-224 of the Kennedale City Code is hereby amended to read as follows: Sections 11-204 and 11-204A may be amended only after compliance with procedures required to amend a zoning ordinance. All other sections of this article may be amended by an ordinance approved by the city council. SECTION 24. 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 25. 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 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. ORDINANCE NO. 186 PAGE 14 of 16 W:U(enne0ale\ONinanc\SOBAm.fn7.wpd (Rev.03/10/00) SECTION 26. 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. SECTION 27. 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 28. 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 operative provisions of this ordinance as so published shall be admissible in evidence in all courts without further proof than the production thereof. SECTION 29. 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 ORDINANCE NO. 186 PAGE 15 of 16 W:U(ennetlak\ONinanc\SOBAm.fnt.wptl (Rev.03/10/00) the City of Kennedale. SECTION 30. 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 9th day of March, 2000 i t•:;' 'F; *' =9: .9: .' '-. ~. City Secr tary ~~ Mayor APPROVED AS TO FORM AND LEGALITY: ~~Go City Attorney ORDINANCE NO. 186 PAGE 16 of 16 W:V(ennedale\OrOinand50BAm.fnl.wpd (Rev.03110Po0)