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ORDINANCE NO. 10 8
AN ORDINANCE AMENDING THE COMPREHENSIVE ZONING
ORDINANCE AND CHAPTER 11 "LICENSES, TAXATION AND
MISCELLANEOUS BUSINESS REGULATIONS" OF THE KENNEDALE
CITY CODE (1991), AS AMENDED; PROVIDING FOR THE LICENSING
OF SEXUALLY ORIENTED BUSINESSES; PROVIDING LOCATIONAL
REQUIREMENTS; PROVIDING ADDITIONAL REGULATIONS
APPROPRIATE TO DIFFERENT TYPES OF SEXUALLY ORIENTED
BUSINESSES; PROVIDING. FOR APPEALS; PROVIDING FOR
AMORTIZATION OF NONCONFORMING SEXUALLY ORIENTED
BUSINESSES; 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 Type A general-law municipality
located in Tarrant County, created in accordance with the provisions of Chapter 6 of the
Local Government Code and operating pursuant to the enabling legislation of the State of
Texas; and
WHEREAS, Section 243.007 of the Local Government Code authorizes cities to adopt
regulations concerning the licensing and permitting of sexually oriented businesses; and
WHEREAS, the City Council of the City of Kennedale, Texas, heretofore adopted
regulations restricting the location of sexually oriented businesses within the City of
Kennedale based upon studies, reports, and findings regarding the harmful effects of sexually
oriented businesses on surrounding land uses; and
WHEREAS, the city council deems it necessary and advisable to amend these
regulations to clarify their applicability to certain businesses and to provide for the licensing
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Page 1
and other regulation of sexually oriented businesses; and
WHEREAS, studies, reports, and findings conducted by the cities of Austin, El Paso,
and Indianapolis regarding the harmful effects of sexually oriented businesses on surrounding
land uses have been presented to and reviewed by the city council; and
WHEREAS, studies, reports, and findings conducted by the cities of Los Angeles,
Las Vegas, Houston, Amarillo, and Beaumont were presented to the city council and made
part of the public record; and
WHEREAS, the city finds that churches, synagogues, licensed day care centers, public
parks, schools and public libraries are centers of family oriented activities and therefore
enhance the quality of life in surrounding areas; and
WHEREAS, there is convincing documented evidence that sexually oriented
businesses, because of their very nature, have a deleterious effect on surrounding land uses,
causing increased crime and the downgrading of property values; and
WHEREAS, the city council desires to minimize and control these adverse effects and
thereby protect the health, safety, and welfare of the citizenry; protect the citizens from
increased crime; preserve the quality of life; preserve the property values and character of
surrounding neighborhoods; and deter the spread of urban blight; and
WHEREAS, convincing documented evidence regarding the physiological and sexual
distinctions between male and female breasts has been reviewed; and
WHEREAS, Section 243.001(b) of the Local Government Code does not diminish the
authority of a municipality to regulate sexually oriented businesses with regard to any
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matters; and
WHEREAS, the twenty-first amendment to the United States Constitution delegates
broad powers to the states to regulate alcoholic beverages;
WHEREAS, Section 109.57(d) of the Texas Alcoholic Beverage Code allows a
municipality to regulate the location of sexually oriented businesses; and
WHEREAS, the city council finds that sexually oriented businesses are frequently used
for activities such as prostitution or sexual liaisons of a casual nature; and
WHEREAS, the concern over sexually transmitted diseases is a legitimate health
concern of the city which demands reasonable regulation of sexually oriented businesses in
order to protect the health and well-being of the citizens; and
WHEREAS, the city council finds that these amendments will promote the public
health, safety, morals and general welfare of the citizens of the city; and
WHEREAS, the city council finds that these amendments have neither the 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, the city council further finds that the adoption of these amendments will
still leave available reasonable alternative locations for the location of sexually oriented
businesses; and
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WHEREAS, a public hearing was duly held by the Planning and Zoning Commission
of the City of Kennedale on the 20th day of June, 1996, and by the City Council of the City
of Kennedale on the 11th day of July, 1996 and the 10th day of October, 1996 with respect
to the regulations in this ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF KENNEDALE, TEXAS, THAT:
SECTION 1.
Chapter 11, "Licenses, Taxation and Miscellaneous Business Regulations" of the
Kennedale City Code (1991), as amended, is hereby amended by adding a new Article VIII
to read as follows:
"ARTICLE VIII.
SEXUALLY ORIENTED BUSINESS
Sec. 11-201. Adoption of Preamble.
The findings contained in the preamble of the ordinance adopting this article are
determined to be true and correct and are adopted as a part of this article.
Sec. 11-202. Purpose and Intent.
It is the purpose of this article 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 article have neither the purpose nor effect
of imposing a limitation or restriction on the content of any communicative materials,
including sexually oriented materials. Similarly, it is not the intent nor effect of this article
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.
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Sec. 11-203. Definitions.
The words and terms used in this article that are not defined herein shall have the
meanings commonly ascribed to them. Words used in the present tense include the future
tense. Words in the singular number include the plural number and words in the plural
number include the singular number. The word he shall be defined to include the word she.
(a) Adult arcade means any place to which the public is permitted or invited
wherein coin-operated, token-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 (1) time, and where the images so displayed are distinguished or
characterized by an emphasis on matter depicting or describing specified sexual
activities or specified anatomical areas.
(b) 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 which are distinguished or
characterized by an emphasis on matters depicting or describing specified sexual
activities or specified anatomical areas.
(c) Adult cabaret means a nightclub, bar, restaurant, or similar commercial
establishment which regularly features persons who appear in a state of nudity or give
live performances which are distinguished or characterized by an emphasis on the
exposure of specified anatomical areas or by an emphasis on specified sexual
activities.
(d) Adult motel means a hotel, motel or similar commercial establishment which:
(1) Offers accommodations to the public for any form of consideration and
provides patrons with closed-circuit television transmissions, films, motion
pictures, video cassettes, slides, or other pornographic reproductions which are
distinguished or characterized by an emphasis on matters depicting or
describing specified sexual activities or specified anatomical areas and has a
sign visible from the public right-of-way which advertises the availability of this
adult type of photographic reproductions; or
(2) Offers a sleeping room for rent for a period of time that is less than
ten hours; or
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(3) Allows a tenant or occupant of a sleeping room to subrent the room
for a period of time that is less than ten hours.
(e) 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 are regularly shown which are distinguished or
characterized by an emphasis on matters depicting or describing specified sexual
activities or specified anatomical areas.
(f) 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 which are distinguished or characterized by an emphasis
on matters depicting or describing specified sexual activities or specified anatomical
areas.
(g) Chief of Police means the chief of police of the City of Kennedale or the
chief's designated representative.
(h) 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
(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.
(i) 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 its customers.
(j) 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.
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(k) Escort agency means a person or business association who furnishes, offers to
furnish, or advertises to furnish escorts as its principal business purpose, for a fee, tip,
or other consideration.
(1) 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 on the application for a license.
(m) Licensed day-care center means a child care center or facility or a group day-
care home as defined in Section 17-431 of the Kennedale Zoning Ordinance.
(n) Love parlor means 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.
(o) Nude modeling studio 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 any form of consideration.
(p) Nudity or state of nudity means less than completely and opaquely covered:
(1) Human genitals, pubic region, or pubic hair;
(2) All portions of a female breast below a point immediately above the
top of the areola continuing downward to the lowest portion of the breast;
(3) Human buttock; or
(4) Any combination of the above.
(q) Operated or causes to be operated means to cause to function or to put or
keep in operation. A person maybe 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.
(r) Person means and individual, firm, association, organization, partnership, trust,
foundation, company or corporation.
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(s) Principal means over 35 percent of customers, volume of sales, stock in trade,
display areas, or presentation time 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.
(t) Regularly means featuring, promoting, or advertising a happening or
occurrence on a recurring basis.
(u) Residential district means a district zoned for residential uses under the
Zoning Ordinance of the City of Kennedale.
(v) Residential use means a one family, townhouse, duplex, triplex, fourplex,
mobile home, manufactured home, or multiple family dwelling as defined in the
Zoning Ordinance of the City of Kennedale.
(w) Sexually oriented business means an adult arcade, adult bookstore, adult
cabaret, adult motel, adult movie theater, adult video store, love parlor, nude
modeling studio or other commercial enterprise, the primary business of which is the
offering of a service or the selling, renting or exhibiting of devices or any other items
intended to provide sexual stimulation or sexual gratification to 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.
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.
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(x) Specified anatomical areas means human genitals, pubic regions, buttocks and
female breast below a point immediately above the top of the areola.
(y) Specified sexual activities means and includes any of the following:
(1) The fondling or other erotic touching of human genitals, pubic region,
pubic hair, perineum, buttocks, anus, or female breasts;
(2) Sex acts, normal or perverted, actual or simulated, including
intercourse, oral copulation, sodomy, or bestiality;
(3) Masturbation, actual or simulated; or
(4) Excretory functions.
Sec. 11-204. Location of Sexually Oriented Businesses.
(a) A person commits an offense if he establishes, operates or causes to be
operated, or expands a sexually oriented business within 800 feet, without regard to
city boundaries, of:
(1) A church or synagogue;
(2) A public or private elementary or secondary school or licensed day-care
center;
(3) A boundary of a residential district;
(4) A public park;
(5) A public library;
(6) The property line of a lot devoted to a residential use as defined in this
article; or
(7) Another sexually oriented business.
(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 as established in the Kennedale Zoning Ordinance.
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(c) A person commits an offense if he establishes, operates, or causes to be
operated, a sexually oriented business in any building, structure or portion thereof
containing another sexually oriented business.
(d) For the purposes of subsection (a), 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 residential
use, church, synagogue, public or private elementary or secondary school, licensed
day-care center, public library, or to the nearest boundary of a public park, residential
district, or residential lot.
(e) For purposes of subsection (c) of this section, the distance between any two
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 or from the wall of the tenant space occupied, as
applicable.
(f) Any sexually oriented business lawfully operating on the effective date of this
article that is in violation of the locational requirements of Subsections (a), (b) or (c)
shall be deemed a nonconforming use. A nonconforming use under this subsection
shall not be increased, enlarged, extended or altered except that the use may be
changed to a conforming use. If two or more sexually oriented businesses are within
800 feet of one another and otherwise in a permissible location, the sexually oriented
business which was first established and continually operating at a particular location
is the conforming use and the later-established business is nonconforming.
(g) Any sexually oriented business lawfully operating after the effective date of this
article that later becomes a nonconforming use because of a change in zoning or an
amendment to the regulations in this article or any other ordinance or law shall not
be increased, enlarged, extended or altered except that the use may be changed to
a conforming use.
(h) Asexually oriented business lawfully operating as a conforming use is not
rendered a nonconforming use by the location, subsequent to the grant or renewal
of the sexually oriented business license, of a church, synagogue, public or private
elementary or secondary school, licensed day-care center, public park, public library,
residential district or a residential lot within 800 feet of the sexually oriented business.
This provision applies only to the renewal of a valid license, and does not apply when
an application for a license is submitted after a license has expired or has been
revoked.
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(i) Nothing contained in this article shall be construed to limit the amortization
of a nonconforming sexually oriented business under the Kennedale Zoning
Ordinance as provided therein.
Sec. 11-205. License Required.
(a) A person commits an offense if he operates or causes to be operated a
sexually oriented business without a valid license, issued by the city for the particular
type of business.
(b) The applicant must be qualified according to the provisions of this article.
(c) The fact that a person possesses other types of state or city permits or licenses
does not exempt the person from the requirement of obtaining a license for a
sexually oriented business.
Sec. 11-206. License Application.
(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 be
accompanied by a sketch or diagram showing the configuration of the premises,
including a statement of total floor space occupied by the business. The sketch or
diagram need not be professionally prepared but must be drawn to a designated scale
or drawn with marked dimensions of the interior of the premises to an accuracy of
plus or minus six inches.
(b) If a person who wishes to operate a sexually oriented business is an individual,
he must sign the application for a license as applicant. If a person who wishes to
operate a sexually oriented business is other than an individual, each individual who
has a 20 percent or greater interest in the business must sign the application for a
license as applicant. Each applicant must be qualified under Section 11-207 and each
applicant shall be considered a licensee if a license is granted.
(c) All applications for a license under this article shall be accompanied by a
nonrefundable application fee of $500. An application shall not be considered to
have been filed until the fee is paid and all information required by the application
form has been submitted.
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Sec. 11-207. License Issuance.
(a) The chief of police shall approve the issuance of a license to an applicant
within 30 days after filing of an application unless the chief of police finds one or
more of the following to be true:
(1) The location of the sexually oriented business is or would be in
violation of Section 11-204 of this article.
(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 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 business.
(6) An applicant or an applicant's spouse has been convicted of a violation
of a provision of this article, other than the offense of operating a sexually
oriented business without a license, within two years immediately preceding
the application. The fact that a conviction is being appealed shall have no
effect on the denial of a license.
(7) The application or renewal fee required by this article has not been
paid.
(8) 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 within which the sexually oriented business will be situated or
has a legally enforceable right to acquire the same.
(9) An applicant or the proposed establishment is in violation of or is not
in compliance with Section 11-208 or 11-213 of this article.
(10) An applicant or an applicant's spouse has been convicted of a crime:
(A) Involving:
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(i) Any of the following offenses as described in Chapter 43
of the Texas Penal Code:
(aa) Prostitution;
(bb) Promotion of prostitution;
(cc) Aggravated promotion of prostitution;
(dd) Compelling prostitution;
(ee) Obscenity;
(ff) Sale, distribution, or display of harmful material
to a minor;
(gg) Sexual performance by a child;
(hh) Possession of child pornography;
(ii) Any of the following offenses as described in Chapter 21
of the Texas Penal Code:
(aa) Public lewdness;
(bb) Indecent exposure;
(cc) Indecency with a child;
(iii) Sexual assault or aggravated sexual assault as described
in Chapter 22 of the Texas Penal Code;
(iv) Incest, solicitation of a child or harboring a runaway child
as described in Chapter 25 of the Texas Penal Code;
(v) Possession or distribution of a controlled substance; or
(vi) Criminal attempt, conspiracy, or solicitation to commit
any of the foregoing offenses; and
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(B) For which:
(i) Less than two years have elapsed since the date of
conviction, or the date of release from the terms of probation,
parole, or deferred adjudication, or the date of release from
confinement imposed for the conviction, whichever is the later
date, if the conviction is of a misdemeanor offense;
(ii) Less than five years have elapsed since the date of
conviction, or the date of release from the terms of probation,
parole, or deferred adjudication, or the date of release from
confinement for the conviction, whichever is the later date, if
the conviction is of a felony offense; or
(iii) Less than five years have elapsed since the date of the
last conviction or the date of release from confinement for the
last conviction, whichever is the later date, if the convictions are
of two or more misdemeanor offenses or combination of
misdemeanor offenses occurring within any two year period.
(b) The fact that a conviction of the applicant or applicant's spouse is being
appealed shall have no effect on the disqualification.
(c) An applicant who has been convicted or whose spouse has been convicted of
an offense listed in Section 11-207(a)(10)(A) may qualify for a sexually oriented
business license only when the time period required by Section 11-207(a)(10)(B) has
elapsed.
(d) 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.
(e) The license shall be posted in a conspicuous place at or near the entrance to
the sexually oriented business so that it may be easily read at any time.
Sec. 11-208. Inspection and Maintenance of Records.
(a) An applicant or licensee shall permit representatives of the police department,
health department, fire department, and building inspections division to inspect the
premises of a sexually oriented business for the purpose of insuring compliance with
the law, at any time during the 30-day application period or after it is occupied or
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I open for business. The provisions of this section do not apply to areas of an adult
motel which are currently being rented by a customer for use as a permanent or
temporary habitation.
(b) A person who operates a sexually oriented business or his agent or employee
commits an offense if he refuses to permit a lawful inspection of the premises by a
representative of the police department, health department, fire department, or
building inspections division at any time during the 30-day application period or after
it is occupied or open for business.
(c) A person who operates a sexually oriented business or his agent or employee
commits an offense if he operates the establishment without maintaining a current
list of all employees employed by the business, along with a complete updated
employment application. Each employment application shall include a copy of a valid
driver's license, state identification card, or passport, all with a photo.
Sec. 11-209. Expiration of License.
(a) Each license shall expire one year from the date of issuance.
(b) A license may be renewed by submission to the chief of police of an
application on the form prescribed by the chief of police and payment of a
nonrefundable renewal processing fee of $500.
(c) Application for renewal shall be made at least 30 days before the expiration
date of the license. When application is made less than 30 days before the expiration
date, the new expiration date will not be affected.
Sec. 11-210. Suspension.
(a) The chief of police shall suspend a license for a period not to exceed 30 days
if he determines that a licensee or an employee of a licensee:
(1) Has violated or is not in compliance with Section 11-204, 11-208(b), or
11-213 of this article.
(2) Is in a state of public intoxication while on the sexually oriented
business premises;
(3) Refuses to allow an inspection of the sexually oriented business
premises as authorized by this article; or
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(4) Knowingly permits gambling by any person on the sexually oriented
business premises.
(5) Is delinquent in payment to the city for hotel occupancy taxes, ad
valorem taxes, or sales taxes related to the 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 $200 rather
than have the license suspended.
(1) Payment of this reinstatement fee shall be considered an administrative
admission of the violation. However, this shall not be used as an admission
of guilt in a criminal prosecution under this article.
(2) If the licensee does not pay the reinstatement fee before the expiration
of the third working day after notification, he loses the opportunity to pay it
and the chief of police shall impose the suspension.
(3) Each day in which a violation is permitted to continue shall constitute
a separate cause for suspension.
Sec. 11-211. Revocation.
(a) The chief of police shall revoke a license if a cause of suspension in
Section 11-210 occurs and the license has been suspended or a reinstatement fee paid
within the preceding 12 months.
(b) The chief of police shall revoke a license if he determines that:
(1) A licensee gave false or misleading information in the material
submitted to the chief of police during the application process;
(2) A licensee or an employee has knowingly allowed possession, use, or
sale of controlled substances on the sexually oriented business premises;
(3) A licensee or an employee has knowingly allowed prostitution on the
sexually oriented business premises;
(4) A licensee or an employee knowingly operated the sexually oriented
business during a period of time when the licensee's license was suspended;
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(5) A licensee has been convicted of an offense listed in
Section 11-207(a)(10) for which the time period required has not elapsed;
(6) On two or more occasions within a 12-month period, an employee of
the establishment committed in or on the licensed premises an offense listed
in Section 11-207(a)(10) for which a conviction has been obtained; or
(7) A licensee or an employee has knowingly allowed any act of sexual
intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur
in or on the sexually oriented business premises. The term "sexual contact"
shall have the same meaning as it is defined in Section 21.01, Texas Penal
Code.
(c) The fact that a conviction is being appealed shall have no effect on the
revocation of the license.
(d) Section 11-211(b)(7) does not apply to adult motels as a ground for revoking
the license unless the licensee or employee knowingly allowed the act of sexual
intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in a
public place or within public view.
(e) When the chief of police revokes a license, the revocation shall continue for
one year and the licensee shall not be issued a sexually oriented business license for
one year from the date revocation became effective. If, subsequent to revocation, the
chief of police finds that the basis for the revocation has been corrected or abated,
the applicant maybe granted a license if at least 90 days have elapsed since the date
the revocation became effective. If the license was revoked under
Section 11-211(b)(5), an applicant may not be granted another license until the
appropriate number of years required under Section 11-207(a)(10) has elapsed.
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 ordinance, the chief of police shall give written
notice to the applicant or licensee of such intention.
(1) The notice shall provide that the denial of issuance, suspension, or
revocation shall take effect at the expiration of the third working day after
notification unless the licensee provides a written response to the chief of
police before the expiration of the third working day.
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(2) If a written response from the applicant or licensee is received by the
chief of police before the expiration of the third working day, the suspension,
denial of issuance or revocation will be stayed pending a decision by the chief
of police. The chief of police shall review the response before the rendering
of a decision.
(3) The chief of police shall give written notice of this decision to the
applicant or licensee.
(4) The decision by the chief of police is effective immediately and final
pending any appeal.
(S) Notice shall be deemed delivered by hand delivery to a licensee, owner,
or employee of the establishment or by a posting of the notice at the usual
business entrance of the establishment. Notice may also be sent by certified
mail, return receipt requested. Such notice shall be mailed to the address
listed in the license application for receipt of notice.
(b) Upon receipt of written notice of the denial, suspension, or revocation, the
licensee whose application for a license has been denied or whose license has been
suspended or revoked shall have the right to appeal to an appropriate court.
(c) An appeal to the appropriate court must be filed within 30 days after the
receipt of notice of the decision of the chief of police.
(d) The licensee or applicant shall bear the burden of proof in court.
Sec. 11-213. Transfer of License.
(a) A person commits an offense if he transfers his license to another person or
operates a sexually oriented business under the authority of a license at any place
other than the address designated in the application.
(b) A person commits an offense if he counterfeits, forges, changes, defaces, or
alters a license.
Sec. 11-214. Additional Regulations for Adult Cabarets.
(a) An employee of an adult cabaret while appearing in a state of nudity, semi-
nudity, or simulated nudity commits an offense if he touches a customer or the
clothing of a customer.
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(b) A customer at an adult cabaret commits an offense if he touches an employee
appearing in a state of nudity, semi-nudity, or simulated nudity.
(c) A licensee or employee of an adult cabaret commits an offense if he permits
any customer access to an area of the premises not visible from the manager's station
or not visible by a walk through of the premises without entering a closed area,
excluding restrooms.
Sec. 11-215. Additional Regulations for Escort Agencies.
(a) A person commits an offense if he employs at an escort agency any person
under the age of 18 years.
(b) A person commits an offense if he acts as an escort or agrees to act as an
escort for any person under the age of 18 years.
Sec. 11-216. Additional Regulations for Nude Model Businesses.
(a) A person commits an offense if he employs at a nude model business any
person under the age of 18 years.
(b) A person under the age of 18 years commits an offense if he appears in a
state of nudity, semi-nudity, or simulated nudity in or on the premises of a nude
model business. It is a defense to prosecution under this subsection if the person
under 18 years was in a restroom not open to public view or persons of the opposite
sex.
(c) A person commits an offense if he appears in a state of nudity, semi-nudity,
or simulated nudity, or knowingly allows another to appear in a state of nudity, semi-
nudity, or simulated 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 he places or permits a bed, sofa, or mattress
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 of a nude model business commits an offense if he
permits any customer access to an area of the premises not visible from the
manager's station or not visible by a walk through of the premises without entering
a closed area, excluding restrooms.
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(f) An employee of a nude model business, while appearing in a state of nudity,
semi-nudity or simulated nudity, commits an offense if he touches a customer or the
clothing of a customer.
(g) A customer at a nude model business commits an offense if he touches an
employee appearing in a state of nudity, semi-nudity or simulated nudity.
Sec. 11-217. Additional Regulations for Adult Theaters and Adult Motion Picture
Theaters.
(a) A person commits an offense if he knowingly allows a person under the age
of 18 years to appear in a state of nudity, semi-nudity, or simulated nudity in or on
the premises of an adult theater or adult motion picture theater.
(b) A person under the age of 18 years commits an offense if he knowingly
appears in a state of nudity, semi-nudity, or simulated nudity in or on the premises
of an adult theater or adult motion picture theater.
(c) It is a defense to prosecution under subsections (a) and (b) of this section if
the person under 18 years was in a restroom not open to public view or persons of
the opposite sex.
Sec. 11-218. Additional Regulations for Adult Motels.
(a) Evidence that a sleeping room in a hotel, motel, or similar commercial
establishment has been rented and vacated two or more times in a period of time
that is less than 10 hours creates a rebuttable presumption that the establishment is
an adult motel as that term is defined in this article.
(b) A person commits an offense if, as the person in control of a sleeping room
in a hotel, motel, or similar commercial establishment that does not have a sexually
oriented business license, he rents or subrents a sleeping room to a person and,
within 10 hours from the time the room is rented, he rents or subrents the same
sleeping room again.
(c) For purposes of Subsection (b) of this section, the terms "rent" or "subrent"
mean the act of permitting a room to be occupied for any form of consideration.
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. Sec. 11-219. Regulations Pertaining to Exhibition of Sexually Explicit Films or Videos.
A person who operates or causes to be operated a sexually oriented business other
than an adult motel, which exhibits on the premises in a viewing room of less than 150
square feet of floor space, a film, video cassette, or other video reproduction which depicts
specified sexual activities or specified anatomical areas, shall comply with the following
requirements:
(a) Upon application for a sexually oriented business license, the application shall
be accompanied by a diagram of the premises showing a plan thereof specifying the
location of one or more manager's stations and the location of all overhead lighting
fixtures and designating any portion of the premises in which customers will not be
permitted. A manager's station may not exceed 32 square feet of floor area. The
diagram shall also designate the place at which the permit will be conspicuously
posted, if granted. A professionally prepared diagram in the nature of an engineer's
or architect's blueprint shall not be required; however, each diagram should be
oriented to the north or to some designated street or object and should be drawn to
a designated scale or with marked dimensions sufficient to show the various internal
dimensions of all areas of the interior of the premises to an accuracy of plus or minus
six inches. The chief of police may waive the foregoing diagram for renewal
applications if the applicant adopts a diagram that was previously submitted and
certifies that the configuration of the premises has not been altered since it was
prepared.
(b) The application shall be sworn to be true and correct by the applicant.
(c) No alteration in the configuration or location of a manager's station may be
made without the prior approval of the chief of police or his designee.
(d) The licensee commits an offense if he permits a manager's station to be
unattended by an employee at any time a customer is present on the premises.
(e) 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. If the premises has two
or more manager's stations designated, then the interior of the premises shall be
configured in such a manner that there is an unobstructed view of each area of the
premises to which any customer is permitted access for any purpose, excluding
restrooms, from at least one of the manager's stations. The view required in this
subsection must be by direct line of sight from the manager's station.
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(f) The licensee commits an offense if he permits access to a customer of any
area of the premises that is not visible from the manager's station for any purpose,
excluding restrooms.
(g) The owners, operator, and any agents and employees present on the premises
shall ensure that the view area specified in Section 11-219(e) remains unobstructed
by any doors, walls, merchandise, display racks, or other materials at all times that
any customer is present in the premises and to ensure 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 Section 11-219(a)
of this section.
(h) The premises of an adult bookstore, adult video store, adult novelty store,
adult service establishment, nude model business, sex parlor, and sexual encounter
center 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 20 footcandles as measured at the floor level.
(i) The licensee commits an offence if he permits illumination of any area of the
premises to which customers have access to be less than 20 footcandles.
Sec. 11-220. Additional Regulations for Sexually Oriented Businesses.
(a) Public and employee restrooms in a sexually oriented business shall not, at any
time, contain or be used for sexually oriented business activity, video reproduction
equipment, or sexually oriented merchandise.
(b) An adult arcade, adult bookstore, adult video store, adult novelty store, adult
service establishment, adult cabaret, adult theater, adult motion picture theater, nude
model business, sex parlor, and sexual encounter center shall at all times maintain at
least one legible sign posted in a conspicuous place at each public entrance easily
visible by all persons prior to entry into the establishment with lettering of at least
one inch in height in english and spanish which contains the following statement:
"THIS IS A SEXUALLY ORIENTED BUSINESS
ESTABLISHMENT WHICH REGULARLY FEATURES [description
of the type of activity licensed to be conducted]. IF NUDITY OR
ACTIVITY OF A SEXUAL NATURE OFFENDS YOU DO NOT
ENTER. NO PERSONS UNDER EIGHTEEN YEARS OF AGE
ALLOWED ENTRY [or "NO PERSON UNDER TWENTY-ONE
YEARS OF AGE ALLOWED ENTRY," if alcohol is served].
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(c) During hours of darkness when a sexually oriented business is in operation, all
required parking and all outdoor pedestrian areas on the premises of the sexually
oriented business shall be lighted to an intensity of not less than five footcandles
measured at ground level.
Sec. 11-221. Violation a Misdemeanor.
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 $2,000 for each
offense affecting zoning, fire safety or public health and sanitation, and $500.00 for all other
offenses. Each day that a violation is permitted to exist shall constitute a separate offense.
Sec. 11-222. Defenses.
It is a defense to prosecution under Sections 11-204, 11-205, and 11-216 that a person
appearing in a state of nudity, semi-nudity, or simulated nudity did so in a modeling class
operated:
(a) By a proprietary school licensed by the State of Texas; a college, junior
college, or university supported entirely or partly by taxation;
(b) By a private college or university which maintains and operates educational
programs in which credits are transferrable to a college, junior college, or university
supported entirely or partly by taxation; or
(c) In a structure:
(1) Which has no sign or other advertising visible from the exterior of the
structure indicating a nude, semi-nude or simulated nude person is available
for viewing; and
(2) Where in order to participate in a class a student must enroll at least
three days in advance of the class; and
(3) Where no more than one nude, semi-nude or simulated nude model is
on the premises at any one time.
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1 Sec. 11-223. License Appeal Board; Exemptions From Location Restrictions of Sexually
Oriented Businesses.
(a) A license appeal board is hereby created. The license appeal board shall have
the power to rule upon the appropriate disposition of applications for exemptions
from the location restrictions for sexually oriented businesses set forth in Section 11-
204.
(b) 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 11-204, then
the applicant may, not later than 10 calendar days after receiving notice of the denial,
file with the city secretary a written request for an exemption from the location
restrictions.
(c) If the written request is filed with the city secretary within the 10-day limit, a
license appeal board shall consider the request. The city secretary shall set a date
for the hearing within 60 days from the date the written request is received.
(1) The license appeal board shall consist of five members.
(2) The city council shall by majority vote appoint five members to the
board and may appoint as many as two alternate members.
(3) Board members shall be appointed to two-year terms.
(4) All members shall be residents of the City of Kennedale.
(d) A hearing by the board may proceed only if five of the board members or
alternates are present. The board shall hear and consider evidence offered by any
interested person. The formal rules of evidence do not apply.
(e) The license appeal board may grant an exemption from the location
restrictions of Section 11-204 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 property values or quality of life in the adjacent areas or encourage the
development of urban blight;
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(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 article will be observed.
(f) In making the findings specified in Section 11-223(e), the board shall take into
account, among other things:
(1) Crime statistics of the location and its 800-foot radius, without regard
to city boundaries, maintained by the appropriate law enforcement agency for
the previous six-month period;
(2) Tarrant Appraisal District appraisals for the location and its 800 -foot
radius, without regard to city boundaries, taking into account any decline or
increase in property values;
(3) Vacancy rates of residential, commercial, or office space within the
surrounding 800-foot radius, without regard to city boundaries; 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 800-foot radius, without regard to city boundaries.
(g) The board shall grant or deny the exemption by a majority vote. Failure to
reach a majority vote approving the exemption shall result in denial of the exemption.
Disputes of fact shall be decided on the basis of a preponderance of the evidence.
The decision of the license appeal board is final.
(h) If the board grants the exemption, the exemption is valid for one year from
the date of the board's action. Upon the expiration of an exemption, the sexually
oriented business is in violation of the locational restrictions of Section 11-204 until
the applicant applies for and receives another exemption.
(i) If the board denies the exemption, the applicant may not reapply for an
exemption until at least 12 months have elapsed since the date of the board's action.
(j) The grant of an exemption does not exempt the applicant from any provisions
of this article other than the locational restrictions.
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Sec. 11-224. Amendment of this Article.
Section 11-204 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 2.
Section 17-418, "PD Planned Development District" of the Kennedale Zoning
Ordinance is hereby amended by adding "sexually oriented business" to the list of permitted
uses set forth in paragraph B thereof.
SECTION 3.
Section 17-421, "Schedule of Uses and Off-Street Parking Requirements", of the
Kennedale Zoning Ordinance is hereby amended to allow sexually oriented businesses as a
permitted use in the "C-2" and "I" zoning districts, and to delete said use as a specific use
permit in the "I" zoning district.
SECTION 4.
Section 17-431, "Definitions", of the Kennedale Zoning Ordinance is hereby amended
by deleting the definitions of adult arcade, adult bookstore, adult cabaret, adult motel, adult
movie theater, adult video store, nudity or a state of nudity, specified anatomical areas, and
specified sexual activities, and revising the definition of sexually oriented business to read
as follows:
"Sexually oriented business - an establishment as defined in Section 11-203 of the
Kennedale City Code."
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r
SECTION 5.
This ordinance shall be cumulative of all provisions of ordinances of the City
of Kennedale, Texas, except where the provisions of this ordinance are in direct conflict with
the provisions of such ordinances, in which event the conflicting provisions of such
ordinances are hereby repealed.
SECTION 6.
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.
SECTION 7.
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 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.
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SECTION 8.
All rights and remedies of the City of Kennedale are expressly saved as to any and
all violations of the provisions of Ordinance No. 40, as amended, or any other ordinance or
code provision affecting sexually oriented businesses which 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, under such ordinances, same shall
not be affected by this ordinance but maybe prosecuted until final disposition by the courts.
SECTION 9.
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 10.
The City Secretary of the City of Kennedale is hereby directed to publish the caption,
penalty clause, publication clause and effective date clause of this ordinance in every issue
of the official newspaper of the City of Kennedale for two days, or one issue of the
newspaper if the official newspaper is a weekly newspaper, as authorized by Section 52.011
of the Local Government Code.
SECTION 11.
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.
E\files\kennedal\ordinanc\sob.fn7 (10-11-96)
Page 28
PASSED AND APPROVED ON THI5 10 DAY OF OCTOBER , 1996.
Y MAYOR
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EFFECTIVE: OCTOBER 18 , 19 9 6
ATTEST:
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CITY SE ETARY
APPROVED AS TO FORM AND LEGALITY:
City Attorney
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