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O-92-2603 - 11/24/1992ORDINANCE NO. ,_771P03 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, ADDING SECTION 4.500 TO THE CODE OF ORDINANCES (1990 EDITION) CITY OF ROUND ROCK, TEXAS, RELATING TO THE REGULATION OF SEXUALLY ORIENTED BUSINESSES WITHIN THE CITY OF ROUND ROCK, TEXAS; INCLUDING ZONING REGULATIONS AND LICENSING REQUIREMENTS OF SUCH BUSINESSES; MAKING VARIOUS PROVISIONS AND FINDINGS RELATED THERETO; PROVIDING FOR SEVERABILITY; PROVIDING FOR A SAVINGS CLAUSE AND REPEALING CONFLICTING ORDINANCES OR RESOLUTIONS. WHEREAS, Section 215.074 of the Local Government Code authorizes home rule municipalities to regulate the location and conduct of theaters, movie theaters and other places of public amusement; WHEREAS, Section 215.075 of the Local Government Code authorizes home rule municipalities to license any lawful business or occupation that is subject to the police power of the municipality; WHEREAS, Section 54.004 of the Local Government Code authorizes home rule municipalities to enforce ordinances necessary to protect health, life, and property and to preserve the good government, order, and security of the municipality and its inhabitants; WHEREAS, the Texas Legislature has determined that the unrestricted operation of certain sexually oriented businesses may be detrimental to the public health, safety, and welfare by contributing to the decline of residential and business neighborhoods and the growth of criminal activity; WHEREAS, Section 243.003 of the Local Government Code authorizes municipalities and counties to adopt regulations restricting the location of sexually oriented businesses, which are defined in Section 243.002 to include a massage parlor, nude studio, modeling studio, love parlor, or other similar commercial enterprise the major business of which is the offering of a service that is intended to provide sexual stimulation or sexual gratification to the customer; WHEREAS, the City Council finds that sexually oriented businesses tend to require special supervision from public safety agencies of the city in order to protect and preserve the health, OR11122E safety, and welfare of the patrons of such businesses as well as the residents of the City; WHEREAS, the City Council finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature; WHEREAS, the City Council finds that churches and schools are centers of family oriented activities; WHEREAS, the City Council finds that sexually oriented businesses can exert a dehumanizing influence on persons attending churches or schools in the surrounding area; WHEREAS, the City Council finds a concentration of sexually oriented businesses can contribute to a decline in the value of surrounding properties; WHEREAS, the City Council finds that a concentration of sexually oriented businesses can contribute to an increase in criminal activities in surrounding areas; WHEREAS, the City Council finds that the sexually oriented businesses having alcoholic beverage licenses and permits exert the same influences on churches and schools, have the same effect on property values, and contribute in the same manner to criminal activities as do those which do not serve alcohol, and that they should be included in the scope of the regulations regarding sexually oriented businesses; WHEREAS, the City Council finds that sexually oriented businesses exert the same influences on day care centers as on churches and schools, and that child care facilities should be afforded the same degree of land use protection; WHEREAS, the City Council acknowledges that sexually oriented businesses should be located in particular areas; WHEREAS, the City Council recognizes that sexually oriented businesses should not be located near churches, schools or within residential areas; WHEREAS, in order to protect the health and welfare of all residents within the City of Round Rock, the City Council has found it necessary to restrict the areas in which sexually oriented businesses shall be located; Now Therefore 2. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS: I. The facts and recitations contained in the preamble of this ordinance are hereby found and declared to be true and correct, and are incorporated by reference herein and expressly made a part hereof, as if copied verbatim. II. That Chapter 4, Code of Ordinances (1990 Edition) City of Round Rock, Texas is hereby amended by adding Section 4.500 which shall read as follows: SECTION 4.500 SEXUALLY ORIENTED BUSINESSES 4.501 AUTHORITY This Section is adopted by the City Council of Round Rock, Texas acting in its capacity as the governing body of Round Rock, Texas, to promote the public health, safety, and welfare, as authorized by Vernon's Texas Civil Statutes. (TEX.LOC.GOV'T. CODE ANN. S243.003 (Vernon Supp. 1992)). 4.502 DEFINITIONS As used in this Section: (1) "County" means Williamson County or Travis County, as may be applicable; (2) "Church or place of religious worship" means a building in which persons regularly assemble for worship, intended primarily for purposes connected with faith, or for propagating a particular form of belief; "Child care facility" means a building used as a day nursery, children's boarding home, child placing agency or other place for the care or custody of children under fifteen years of age, licensed by the State of Texas pursuant to Vernon's Texas Civil Statutes. (TEX.HUM.RES.CODE ANN. §42.041 (Vernon 1990)); (3) 3. (4) "City" means the City of Round Rock, Texas; (5) (6) (7) "Director" means the Director of Planning of the City, or his duly appointed successor(s); "Dwelling" means a house, duplex, apartment, townhouse, condominium, mobile home or any other building used for residential purposes; "Hospital" means a building used to provide health services for human in-patient medical care for the sick or injured licensed pursuant to the Texas Hospital Licensing law (Tex.Civ.Stat.Ann.art.4437f(Vernon 1976)) or operated by an agency of the federal government, or a convalescent facility licensed pursuant to Vernon's Texas Civil Statutes (TEX. HEALTH & SAFETY CODE ANN. §242.031 (Vernon 1992)); "Person" means an or other entity; "Public building" state, or local public; individual, partnership, means a building used government and open to corporation, by federal, the general "Public park" means a tract of land maintained by the federal, state, or local government for the recreation and enjoyment of the general public; "Regulations" means the regulations of the City of certain Sexually Oriented Businesses contained in this Section 4.500; "School" means a building where persons regularly assemble for the purposes of instruction or education together with the playgrounds, dormitories, stadiums, and other structures or ground used in conjunction therewith; (13) "Sexually Oriented Business" means a sex parlor, nude studio, modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel, or other commercial enterprise the primary business of which is the offering of a service or the selling, renting or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer; (14) "State" means the State of Texas. 4. 4.503 EXEMPT BUSINESSES The following are exempt from regulation under this chapter: (1) A bookstore, movie theater, or video store, unless that business is a Sexually Oriented Business as defined in paragraph 4.502 above; (2) A business operated by or employing a licensed psychologist, licensed physical therapist, licensed athletic trainer, licensed cosmetologist, or licensed barber engaged in performing functions authorized under the license held; or (3) A business operated by or employing a licensed physician or licensed chiropractor engaged in practicing the healing arts. 4.504 PERMIT REQUIRED (1) It shall be unlawful for any person to own or operate a Sexually Oriented Business at a location within the corporate limits of the City without a valid permit issued therefor by the Director of Planning in accordance with the provisions of these Regulations. (2) Before the issuance of a permit, the applicant must certify that the proposed Sexually Oriented Business will be located a minimum of 1,000 feet from the following restricted establishments: (3) (a) A child care facility; (b) A church or place of religious worship; (c) A dwelling; (d) A public park; (e) A school; or (f) Another sexually oriented business. Subsection (2) of this paragraph 4.504 will apply to all Sexually Oriented Businesses regardless of whether or not they exist on the effective date of these Regulations. However, should any court determine that such requirement is unconstitutional or invalid insofar as it applies to Sexually Oriented Businesses existing on or before the effective date of these Regulations, then and in that event, the applicant may certify that the Sexually 5. Oriented Business was in existence on the effective date of these Regulations in lieu of making the certification provided for in said paragraph 4.504(2), above. (4) For the purposes of paragraph 4.504(2), measurements shall be made in a straight line, without regard to intervening structures or objects, from the property line of the property on which the Sexually Oriented Business is located to the property line of the property on which the use described in subparagraph (2) above, is located. 4.505 PERMIT AND AIDS WARNING DISPLAYED (1) A Sexually Oriented Business permit issued under these Regulations shall be displayed at all times in an open and conspicuous place at or near the entrance to the Sexually Oriented Business for which it was issued, so that it may be easily read at any time. (2) In addition to the permit described above, a sign shall be displayed which warns patrons of a Sexually Oriented Business of the symptoms and causes of Acquired Immune Deficiency Syndrome (AIDS). Such sign shall conform to the guidelines for AIDS warning signs promulgated by the Director of Planning. 4.506 PERMIT APPLICATION Any person desiring a Sexually Oriented Business permit shall file a written application with the Director of Planning on a form to be prescribed by the Director of Planning. (1) The application shall set forth the following: (a) The name of the applicant and whether the applicant is an individual, general partnership, limited partnership, corporation or other entity. i. In the case of a partnership, limited partnership, or other entity, the application shall set forth the names and addresses of all persons of entities having a pecuniary interest in the partnership, limited partnership, or other entity. ii. In the case of a corporation, the application shall set forth the names and addresses of the incorporators, board of directors, officers, and all shareholders thereof. iii. In no case may an entity which is not a 6. natural person hold a pecuniary interest in the applicant entity (whether natural or legal) . (b) The name under which the Sexually Oriented Business is to be operated and a specific description of the service to be provided. (c) The address and full legal description of the parcel of land on which the Sexually Oriented Business is to be located. (d) The name and address of the legal owner of the property. (e) The name, residence address and telephone number, if any, of the manager or other individual to be principally in charge of the operation of the Sexually Oriented Business. (f) (g) Written declaration that the information contained in the application is true and correct, said declaration being duly dated and signed. If the applicant is an individual, the application shall be signed and sworn to by the applicant. If the applicant is a partnership, the application shall be signed and sworn to by a partner thereof. If the applicant is a corporation or other entity, the application shall be signed and sworn to by an authorized officer of such corporation or entity. Certification that the Sexually Oriented Business is not located within 1,000 feet of one of the enumerated uses set out in paragraph 4.504(2) above. (h) Certification that the Applicant has not been convicted of a felony or crime involving moral turpitude for the past ten (10) years. (i) Any Sexually Oriented Business existing on or before the effective date of these Regulations will have thirty (30) days to apply for a Sexually Oriented Business permit under these Regulations. (2) The application shall be accompanied by the following: (a) A tender of correct permit fee as hereinafter provided; (b) A certified copy of the assumed name certificate 7. filed in compliance with the Assumed Business or Professional Name Act (TEX.BUS. & COM.CODE ANN. SS36.10, 36.11 (Vernon Supp. 1992)) if the applicant is to operate the restricted establishment under an assumed name; (c) A certified copy of the articles of incorporation, together with all amendments thereto, if applicant is a corporation; (d) A certified copy of the certificate of authority to transact business in this state, together with all amendments thereto, if applicant is a foreign corporation; (e) A certified copy of the certificate of limited partnership, together with all amendments thereto, filed in the Office of the Secretary of State under the Uniform Limited Partnership Act (Tex.Civ.Stat.Ann.art. 6132a (Vernon Supp. 1992)), if the applicant is a limited partnership formed under the laws of Texas; and (f) A certified copy of the certificate of limited partnership and the qualification documents, together with all amendments thereto, filed in the Office of the Secretary of State under the Texas Limited Partnership Act, if the applicant is a foreign limited partnership. 4.507 REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS (1) A person who operates or causes to be operated a Sexually Oriented Business which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, video cassette, or other video reproduction which depicts sexual activities, shall comply with the following requirements: (a) Upon application for a Sexually Oriented Business permit, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty-two (32) square feet of floor area. The diagram shall also designate the place at which the permit and the AIDS warning sign will be conspicuously posted. A 8. 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 (6) inches. The Director may waive the foregoing requirement for a 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) No alteration in the configuration or location of a manager's station may be made without the prior approval of the Director. (c) It is the duty of the owners and operator of the premises to ensure that at least one employee is on duty and situated in each manager's station at all times that any patron is present inside the premises. (d) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station. (e) It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in subparagraph (d) above, remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times that any patron is present in the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be 9. (f) (g) permitted in the application filed pursuant to subparagraph (a) above. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than thirty (30.0) footcandle as measured at the floor level. It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described in subparagraph (f) above, is maintained at all times that any patron is present in the premises. (2) A person having a duty under subparagraphs 1(a) -(g) above, commits an offense if he knowingly fails to fulfill that duty. 4.508 INVESTIGATION BY DIRECTOR OF PLANNING (1) Upon receiving the application for a Sexually Oriented Business permit, the Director shall cause to be conducted an investigation for the purpose of determining whether or not such premises comply with the requirements set forth in these Regulations. (2) Once a permit has been issued, the Director or his duly authorized representative, including but not limited to any peace officer certified by the State of Texas, may at any and all reasonable times inspect the premises in which the Sexually Oriented Business is located with respect to requirements under these Regulations. Any denial of this inspection is grounds for immediate revocation of applicant's permit to operate a Sexually Oriented Business. 4.509 ISSUANCE OF SEXUALLY ORIENTED BUSINESS PERMIT (1) Any permit required by these Regulations shall be issued and signed by the Director or his duly authorized representative. (2) The Director shall issue a Sexually Oriented Business permit within thirty (30) days of receipt of the application unless he finds that: (a) The application or the establishment location does 10. not meet all requirements of these Regulations; (b) An applicant is under 18 years of age; (c) 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; (d) An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form; (e) An applicant or an applicant's spouse has been convicted of a violation of a provision of these Regulations, other than the offense of operating a Sexually Oriented Business without a license, within two years immediately preceding the application; (f) The license fee required by these Regulations has not been paid; (g) An applicant has been employed in a Sexually Oriented Business in a managerial capacity within the preceding 12 months and has demonstrated an inability to operate or manage a Sexually Oriented Commercial Enterprise in a peaceful and law-abiding manner, thus necessitating action by law enforcement officers; (h) An applicant or an applicant's spouse has been convicted of a crime involving: i. any of the following offenses as described in Chapter 43 of the Texas Penal Code: prostitution; promotion of prostitution; aggravated promotion of prostitution; obscenity, sale, distribution, or display of harmful material to minors, sexual performance by a child; or possession of child pornography; ii. any of the following offenses as described in Chapter 21 of the Texas Penal Code: public lewdness; indecent exposure; or indecency with a child; iii. sexual assault or aggravated sexual assault as 11. described in Chapter 22 of the Texas Penal Code; iv. incest, solicitation of a child, or harboring a runaway child as described in Chapter 25 of the Texas Penal Code; or v. criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses, for which: (aa) less than five years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction was for a misdemeanor offense; (bb) less than ten years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction was for a felony offense; or (cc) less than ten years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction is the later date, if the convictions were for two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24 -month period. (3) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or the applicant's spouse. (4) An applicant who has been convicted or whose spouse has been convicted of an offense listed in subparagraph (2)(h) above, may qualify for a Sexually Oriented Business permit only when the time period required has elapsed. (5) The Director shall notify each applicant of their eligibility for a Sexually Oriented Business permit within thirty (30) days of receipt of the completed application. If the applicant complies with the provisions of these Regulations, then the Director shall issue the permit. It the applicant fails to comply with the provisions of these Regulations, then the applicant 12. shall be so notified and shall be entitled to a hearing pursuant to the provisions of paragraph 4.510 below. 4.510 APPEAL PROCEDURES (1) Upon issuance, denial or revocation by the Director of an applicant's permit to operate a Sexually Oriented Business, applicant or any aggrieved party shall within ten (10) working days submit to the City Countil a written request for a hearing on the action taken. An aggrieved party means any person who resides within 1,000 feet of an applied -for Sexually Oriented Business, or who owns or operates one of the restricted establishments enumerated under paragraph 4.504(2) of these Regulations, within 1,000 feet of an applied -for Sexually Oriented Business. (2) If the City Council denies the issuance of a license, or suspends or revokes a license, the City shall send to the applicant or licensee, by certified mail, return receipt requested, written notice of the action and the right to an appeal. Upon receipt of this notice, the applicant or licensee shall have the right to appeal to a state district court. An appeal to state district court must occur within thirty (30) days after receipt of notice from City Council. 4.511 FEE (1) To defray the actual cost of processing the Sexually Oriented Business permit application, the applicant shall be required to pay a fee of Two Hundred Fifty Dollars ($250.00) to be submitted with the application. 4.512 PERMIT RENEWAL (1) A Sexually Oriented Business permit shall be valid for twelve (12) months from its date of issuance, at which time the permit shall expire. (2) On or before its date of expiration, applicant may file a written application for renewal of permit with the Director on a form to be prescribed by him. If issued, each successive renewal permit shall be valid for twelve (12) months from its date of issuance, at which time it shall expire. (3) Should a permit expire before the filing of a written application for renewal, then applicant must file for a new permit in accordance with the provisions of paragraphs 4.508 and 4.509 of these Regulations. 13. 4.513 PERMIT RENEWAL FEE (1) To defray the actual cost of processing the Sexually Oriented Business permit renewal application, the applicant shall be required to pay a fee of Fifty Dollars ($50.00) to be submitted with the permit renewal application. 4.514 RETURN OF FEES (1) No portion of any fee collected under these Regulations shall be returned after a permit, renewal or otherwise, has been issued or refused. 4.515 MISCELLANEOUS PROVISIONS (1) A Sexually Oriented Business permit is not transferable, assignable, or divisible. (2) Each permit issued under these Regulations shall be valid at the location therein specified, and not otherwise. It shall be unlawful for any person to knowingly make any false, fraudulent or untruthful statement, either written or oral, or in any way knowingly to conceal any material fact, or to give or to use any assumed name or fictitious name other than one duly filed for record in compliance with the Assumed Business or Professional Name Act (Vernon's Texas Codes Annotated, Business and Commerce Code, Chapter 36). (4) It shall be unlawful for any person to use a Sexually Oriented Business permit which has been issued to another person. (3) (5) It shall be unlawful for any person to counterfeit, forge, change, deface, or alter a Sexually Oriented Business permit. (6) Violation of any provision of these Regulations is a Class C misdemeanor. (7) The operation of a Sexually Oriented Business without a Sexually Oriented Business permit is hereby declared to be a public nuisance. (8) The City may sue in the district courts of Williamson County to enjoin the violation of any provision of these Regulations. 14. (9) These Regulations do not legalize anything prohibited under the Texas Penal Code or any other laws of the State of Texas. (10) The hours of operation for a Sexually Oriented Business licensed under these Regulations is from 9:00 a.m. until 10:00 p.m. every day. (11) If any provision of these Regulations or its application to any person or circumstances is held invalid for any reason, the invalidity does not affect any other provision or application of these Regulations which can be given effect without the invalid provision or application, and to this extent the provisions of these Regulations are declared to be severable. III. A. All ordinances, parts of ordinances, or resolutions in conflict herewith are expressly repealed. B. The invalidity of any section or provision of this ordinance shall not invalidate other sections or provisions thereof. t�v READ and APPROVED on first reading this the / - day of /7-641(UrnIVAJ , 1992. READ, APPROVED and ADOPTED on second reading this the 6Q � W— day of /401 ATTEST: LAND, City Secretary , 1992. MIKE ROBINSON, Mayor City of Round Rock, Texas 15. Permissible Locations for Sekually Oriented Businesses l GS January 4, 1993 Detailed map available in the Round Rock Planning Department Legend Inside city. limits (no sexually—oriented businesses permitted) Inside city limits (commercially zoned parcels outside buffer areas) Extraterritorial jurisdiction (city has no regulatdry control for commercial enterprises) N City limit line ;v Extraterritorial jurisdiction line f DATE: November 20, 1992 SUBJECT: City Council Meeting, November 24, 1992 ITEM: 12.A. Consider an ordinance to regulate sexually oriented businesses within the city limits. (Second Reading) STAFF RESOURCE PERSON: Joe Vining STAFF RECOMMENDATION: Approval