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Ordinance 1993-12 ORDINANCE NO. fJj ~/J... AN ORDINANCE OF THE CITY OF WYLIE, TEXAS, PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF WYLIE, TEXAS, BE AMENDED BY ADDING A CHAPTER TO BE NUMBERED 13, AND TITLED "SEXUALLY ORIENTED BUSINESSES"; PROVIDING DEFINITIONS AND REGULATIONS FOR SEXUALLY ORIENTED BUSINESS ESTABLISHMENTS WITHIN THE CITY OF WYLIE BY ESTABLISHING CRITERIA FOR ISSUANCE, SUSPENSION, REVOCATION, TERM, AND FEES FOR LICENSES; PROVIDING PROCEDURES FOR APPEAL OF DENIAL, SUSPENSION OR REVOCATION OF A LICENSE; PROVIDING FOR THE INSPECTION OF SEXUALLY ORIENTED BUSINESSES AND EXEMPTIONS FROM SAID RESTRICTIONS; ESTABLISHING ADDITIONAL REGULATIONS FOR ESCORT AGENCIES, NUDE MODEL STUDIOS, ADULT THEATERS AND ADULT MOTION PICTURE THEATERS, AND ADULT MOTELS; ESTABLISHING REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS; ESTABLISHING PENALTY AND FINES FOR VIOLATION; AND PROVIDING AMENDMENT PROCEDURES, A SEVERABILITY CLAUSE, A REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the city council makes the following findings with regard to sexually oriented establishments: (1) Section 215.075 of the Local Government Code, V. T . C. A., authorizes home rule cities to license any lawful business, occupation, or calling that is susceptible to the control of the police power. (2) Section 54.004 of the Local Government Code, V.T.C.A., authorizes home rule cities to enforce all ordinances necessary to protect health, life, and property, and to preserve the good government, order and security of such cities and their inhabitants. (3) There are a potentially substantial number of sexually oriented businesses in the area that would require special supervision from the public safety agencies of the city in order to protect and preserve the health, safety, and welfare of the patrons of such businesses as well as the citizens of the city. (4) Sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature. (5) 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. (6) Licensing is a legitimate and reasonable means of accountability to ensure that operators of sexually oriented businesses comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation. (7) There is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the ORDINANCE NO. PAGE TWO surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values. (8) It is recognized that sexually oriented businesses, due to their nature have serious objectionable operational characteristics particularly when they are located in close proximity to each other, there by contributing to urban blight and downgrading the quality of life in the adjacent areas. (9) The City Council desires to minimize and control these adverse effects and thereby preserve the property values and character of surrounding neighborhoods, deter the spread of urban blight, protect the citizens from increased crime, preserve the quality of life, and protect the health, safety, and welfare of the citizenry; and, WHEREAS, the City council makes the following findings with regard to the licensing of sexually oriented business establishments: (1) It is in the interest of the public safety and welfare to prohibit persons convicted of certain crimes from engaging in the occupation of operating a sexually oriented business. (2) The City Council, in accordance with Article 6252-13c of Vernon's Texas Civil Statutes, has considered the following criteria: (a) the nature and seriousness of the crimes; (b) the relationship of the crimes to the purposes for requiring a license to engage in the occupation; (c) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved, and (d) the relationship of the crimes to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation; and has determined that the crimes listed in Sections 13-5(a) (8) of Chapter 13 "SEXUALLY ORIENTED BUSINESSES," of the Wylie City Code, as set forth in this Ordinance, are serious crimes which are directly related to the duties and responsibilities of the occupation of operating a sexually oriented business. The City Council has further determined that the very nature of the occupation of operating a sexually oriented business brings a person into constant contact with persons interested in sexually oriented materials and activities thereby giving the person repeated opportunities to commit offenses against public order and decency or crimes against the public health, safety, or morals should he be so inclined. Thus, the listed crimes render a person unable, incompetent, and unfit to perform the duties and responsibilities accompanying the operation of a sexually oriented business in a manner that would promote the public safety and trust. ORDINANCE NO. PAGE THREE (3) No person who has been convicted of a crime listed in, as set forth in this Ordinance, is presently fit to operate a sexually oriented business until the respective time periods designated in that section have expired. (4) It is the intent of the City Council to disqualify a person from being issued a sexually oriented business license by the City of Wylie if he is currently under indictment or misdemeanor information for, or has been convicted within the designated time period of, any of the crimes listed in Section 13-5 (a) (8), as set forth in this Ordinance; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS, AS FOLLOWS: SECTION I That the Wylie City Code, as amended, is hereby further amended by adding Chapter 13, "Sexually Oriented Businesses", to read as follows: " CHAPTER 13. SEXUALLY ORIENTED BUSINESSES SEC. 13-1. PURPOSE AND INTENT. (a) It is the purpose of Chapter 13 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 continued concentration of sexually oriented businesses within the city. the provisions of this Chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. (b) It is the intent of the City Council that the locational regulations of Section 13-13 of this Chapter are promulgated pursuant to Chapter 243 of the Local Government Code of the State of Texas. It is the intent of the City Council that all other provisions of this chapter are promulgated pursuant to the Wylie City Charter, the Texas Local Government Code V.T.C.A., and Article 1175, V.A.C.S. SEC. 13-2. DEFINITIONS. In this chapter: (1) ADULT ARCADE means any place to which the public is permitted or invited wherein coin-operated or slug operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five (5) or fewer persons per machine at anyone time, and where the images so displayed are distinguished ORDINANCE NO. PAGE FOUR or characterized by the depicting or describing of "specified sexual activities" or "specified anatomical areas" . (2) ADULT BOOKSTORE means a commercial establishment which as one of its principal business purposes offers for sale or rental for any form of consideration anyone or more of the following: (a) books, magazines, periodicals or other printed matter which depict or describe "specified sexual activities" or "specified anatomical areas"; or (b) instruments, devices, or paraphernalia which are designed for use in connection with "specified sexual activities" . (3) 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 anyone or more of the following: (a) photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe "specified sexual activities" or "specified anatomical areas", and are either unrated or rated "X" by the Motion Picture Association of America (4) ADULT CABARET means a nightclub, bar, restaurant, or similar commercial establishment which regularly features: (a) persons who appear in a state of nudity; or (b) live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or (c) films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas" . (5) ADULT MOTEL means a hotel, motel or similar commercial establishment which: (a) offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas"; and has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions; or ORDINANCE NO. PAGE FIVE (b) offers a sleeping room for rent for a period of time that is less than ten (10) hours; or (c) offers a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten (10) hours. (6) ADULT MOTION PICTURE THEATER means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction of description of "specified sexual activities" or "specified anatomical areas" . (7) ADULT THEATER means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities" . (8) BOARD OF ADJUSTMENT shall mean the Board of Adjustment of the City of Wylie, Texas, which Board shall act as the appeals board for all purposes of this ordinance. The Board shall hear all appeals from denial, suspension or revocation of a license hereunder. All appeals shall be heard by a minimum number of four (4) members, and the concurring vote ofa majority of the members shall be necessary to affirm, modify or reverse any decision. (9) CHIEF OF POLICE means the chief of police of the City of Wylie or his designated agent. (10) ESCORT means a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person. (11) ESCORT AGENCY means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes, for a fee, tip, or other consideration. (12) ESTABLISHMENT means and includes any of the following: (a) the opening or commencement of any sexually oriented business as a new business: (b) the conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; (c) the addition of any sexually oriented business to any other existing sexually oriented business; or ORDINANCE NO. PAGE SIX (d) the relocation of any sexually oriented business (13) LICENSEE means a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license. (14) NUDE MODEL STUDIO means any place where a person who appears in a state of nudity or displays "specified anatomical areas" is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. (15) NUDITY or a STATE OF NUDITY means: (a) the appearance of a human bare buttock, anus, male genitals, female genitals, or female breast, or (b) a state of dress which fails to opaquely cover a human buttock, anus, male genitals, female genitals, or areola of the female breast. (16) OPERATES OR CAUSES TO BE OPERATED means to cause to function or to put or keep in operation. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner, part owner, or licensee of the business. (17) RESIDENTIAL DISTRICT means a single family, duplex, town house, multiple family or mobile home zoning district as defined in the Comprehensive Zoning Ordinance of the City of Wylie, as amended. (18) PERSON means an individual, proprietorship, partnership, corporation, association, or other legal entity. (19) RESIDENTIAL USE means a single family, double family, multiple family, single family attached, mobile home park, or mobile home subdivision as defmed in Chapter 12 of the City Code, the Comprehensive Zoning Ordinance of the City of Wylie. (20) SEMI-NUDE means a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices. (21) SEXUAL ENCOUNTER CENTER means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration: (a) opposite sex; or physical contact in the form of wrestling or tumbling between persons of the (b) activities between male and female persons and! or persons of the same sex when ORDINANCE NO. PAGE SEVEN one or more the persons is in a state of nudity or semi-nudity, including "tub clubs" or "exotic tan centers" . (22) SEXUALLY ORIENTED BUSINESS means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center. (23) SPECIFIED ANATOMICAL AREAS means human genitals in a state of sexual arousal. (24) SPECIFIED SEXUAL ACTIVITIES means and includes any of the following: (a) the fondling or other erotic touching of human genitals, pubic regions, buttocks, anus, or female breasts; (b) sex acts, normal or pervert, actual or simulated, including intercourse, oral copulation, or sodomy; (c) masturbation, actual or simulated; or (d) excretory functions as part of or in connection with any of the activities set for in (a) through (c) above. (25) SUBSTANTIAL ENLARGEMENT of a sexually oriented business means the increase in floor area occupied by the business by more than twenty-five (25) percent, as the floor area exists as of the date of adoption of this ordinance. (26) TRANSFER OF OWNERSHIP OR CONTROL of a sexually oriented business means and includes any of the following: (a) the sale, lease, or sublease of the business; (b) the transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or (c) the establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for the transfer by bequest or other operation of law upon the death of the person possessing the ownership or control. SEC. 13-3. CLASSIFICATION. Sexually oriented businesses are classified as follows: (a) adult arcades; ORDINANCE NO. PAGE EIGHT (b) adult bookstores or adult video stores; (c) adult cabarets; (d) adult motels; (e) adult motion picture theaters; (f) adult theaters; (g) escort agencies; (h) nude model studios; and (i) sexual encounter centers SEC. 13-4. LICENSE REQUIRED. (a) A person commits an offense if he operates a sexually oriented business without a valid license, issued by the City for the particular type of business. (b) An application for a license must be made 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 to scale, including a statement of the 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. Applicants who must comply with Section 13-19 of this Chapter shall submit a diagram meeting the requirements of Section 13-19. (c) The applicant must be qualified according to the provisions of this Chapter. (d) 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 twenty (20) percent or greater interest in the business must sign the application for license as applicant. Each applicant must be qualified under Section 13-5 and each applicant shall be considered a licensee if a license is granted. (e) The fact that a person possesses a valid license for any other type of business does not exempt him from the requirement of obtaining a sexually oriented business license. SEC. 13-5. ISSUANCE OF LICENSE. (a) The chief of police shall approve and issue any license required hereunder to an applicant within forty-five (45) days after receipt of an application unless the chief of police finds one (1) or more ORDINANCE NO. PAGE NINE of the following to be true: (1) An applicant is under eighteen (18) years of age. (2) An applicant or an applicant's spouse owes delinquent taxes, delinquent paving assessments or any other delinquent debts or obligations to the City unless an arrangement satisfactory to the City Manager has been made for the payment of such debt or obligation. (3) 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. (4) An applicant or an applicant's spouse has been convicted of a violation of a provision of this Chapter, other than the offense of operating a sexually oriented business without a license, within two (2) years immediately preceding the application. The fact that a conviction is being appealed shall have no effect. (5) The license fee required by this Chapter has not been paid. (6) An applicant has been employed in a sexually oriented business in a managerial capacity within the preceding twelve (12) months and has demonstrated an inability to operate or manage a sexually oriented business premises in a peaceful and law-abiding manner, thus necessitating action by law enforcement officers. (7) An applicant or the proposed establishment is in violation of or is not in compliance with Section 13-7,13-12,13-15,13-16,13-17,13-18, 13-19 or 13-20 of this ordinance. (8) An applicant or an applicant's spouse has been convicted of a crime: (A) involving: (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; ORDINANCE NO. PAGE TEN (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) criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses; (B) for which: (i) less than two (2) 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 is of a misdemeanor offense; (ii) less than five (5) years have elapsed since the date of conviction 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 (5) years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two (2) or more misdemeanor offenses or combination of misdemeanor offenses occurring within any twenty-four (24) month period. (9) An applicant is residing with a person who has been denied a license by the City of Wylie to operate a sexually oriented business within the preceding 12 months or residing with a person whose license to operate a sexually oriented business has been revoked within the preceding 12 months (b) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant's spouse. (c) An applicant who has been convicted or whose spouse has been convicted of an offense listed in Subsection (a)(8) may qualify for a sexually oriented business license only when the time period ORDINANCE NO. PAGE ELEVEN required by Section 13-5(a)(8)(B) has elapsed. (d) The license, if granted, shall state on its fact the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. 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. 13-6. FEES. (a) The annual fee for a sexually oriented business license is FIVE HUNDRED AND NO/loo DOLLARS ($500.00). SEe. 13-7. INSPECTION. (a) An applicant or licensee shall permit representatives of the police department, health department, fIre department, and building inspection department of the City of Wylie to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business. (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 City as outlined in paragraph (a) above, at any time it is occupied or open for business. (c) 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. SEC. 13-8. EXPIRATION OF LICENSE. Each license shall expire one (1) year from the date of issuance and may be renewed only by making application as provided in Section 13-4. Application for renewal should be made at least thirty (30) days before the expiration date, and when made less than thirty (30) days before the expiration date, the expiration of the license will not be affected. SEC. 13-9. SUSPENSION. The chief of police may suspend a license for a period not to exceed thirty (30) days if he determines that a licensee or an employee of a licensee has: (1) violated or is not in compliance with Section 13-7, 13-12, 13-13, 13-15, 13-16, 13-17, 13-18, or 13-20 of this Chapter; (2) engaged in excessive use of alcoholic beverages while on the sexually oriented business premises; ORDINANCE NO. PAGE TWELVE (3) refused to allow an inspection of the sexually oriented business premises as authorized by this Chapter; (4) business; knowingly permitted gambling by any person on the premises of the sexually oriented (5) demonstrated inability to operate or manage a sexually oriented business in a peaceful and law-abiding manner thus necessitating action by law enforcement officers. SEC. 13-10. REVOCATION (a) The chief of police shall revoke a license if a cause of suspension in Section 13-9 occurs and the license has been suspended within the preceding twelve (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 a controlled substance on the premises; (3) a licensee or an employee has knowingly allowed prostitution on the 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; (5) a licensee has been convicted of an offense listed in Section 13-5(a) (8)(A) for which the time period required in Section 13-5(a)(8)(B) has not elapsed; (6) on two (2) or more occasions within a twelve (12) month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in Section 13-5(a)(8)(A), for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed; (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 licensed premises. The term "sexual contact" shall have the same meaning as it is defined in Section 21.01, Texas Penal Code; or (8) a license is delinquent in payment to the City for hotel occupancy taxes, ad valorem taxes, or sales taxes related to the sexually oriented business. ORDINANCE NO. PAGE THIRTEEN (c) license. The fact that a conviction is being appealed shall have no effect on the revocation of the (d) Subsection (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 (1) year and the licensee shall not be issued a 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 (b)(5), an applicant may not be granted another license until the appropriate number of years required under Section 13-5(a)(8)(B) has elapsed. SEC.13-11. APPEAL. If the chief of police denies the issuance of a license, or suspends or revokes a license, the chief of police shall send to the applicant, or licensee, by certified mail, return receipt requested, written notice of the action and the right to an appeal. In the case of a suspension or revocation of an existing license, written notice shall also be posted upon the business premises. Upon receipt of a written notice of a 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 the Board of Adjustments of the City of Wylie. The appeal shall be filed with the City Secretary and when filed shall have the effect of staying the action of the chief of police in suspending, denying or revoking a license until the Board of Adjustments makes a fmal decision. The decision of the Board of Adjustments shall be final and any appeal therefrom shall be made directly to the state district court. An appeal to the state district court must be filed within (30) days after the receipt of notice of the Board of Adjustments. The licensee shall bear the burden of proof in court. SEC. 13-12. TRANSFER OF LICENSE. A licensee shall not transfer his license to another, nor shall a licensee operate a sexually oriented business under authority of a license at any place other than the address designated in the application. SEe. 13-13. LOCATION OF SEXUALLY ORIENTED BUSINESSES. (a) A person commits an offense if he operates or causes to be operated a sexually oriented business within one thousand (1,000) feet of: (1) a church; (2) a public or private elementary or secondary school, or a school zone in which the speed of traffic is regulated by posted signs during certain school hours; ORDINANCE NO. PAGE FOURTEEN (3) a boundary of a residential district as defined in this chapter; (4) a public park; or (5) the property line of a lot devoted to residential use as defmed in this chapter. (b) A person commits an offense if he causes or permits the operation establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within one thousand (1,000) feet of another sexually oriented business. (c) A person commits an offense if he causes or permits the operation, establishment, or maintenance of more than (1) sexually oriented business in the same building, structure, or portion thereof, or the increase of floor area of any 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 a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church or public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential district, or residential lot. (e) For the purposes of Subsection (b) of this Section, the distance between any (2) sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located. (f) Any sexually oriented business lawfully operating on the effective date of this ordinance that is in violation of Subsections (a), (b), or (c) of this Section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed one (1) year, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two (2) or more sexually oriented businesses are within one thousand (1,000) 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(es) is nonconforming. (g) A sexually 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, public or private elementary or secondary school, public park, residential district, or residential lot within one thousand (1,000) 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. ORDINANCE NO. PAGE FIFTEEN SEC. 13-14. APPEAL FROM LOCATION RESTRICTIONS. (a) If the chief of police denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of Section 22-13 of this Ordinance, then the applicant may, not later than ten (10) calendar days after receiving notice of the denial, file with the chief of police a written request for an exemption from the locational restrictions of section 13-13. (b) If the written request is filed with the chief of police within the ten (10) day limit, the Board of Adjustment selected in accordance with Section 13-11 of this Ordinance, shall consider the request. the chief of police shall set a date for the hearing of said appeal within sixty (60) days from the date the written request is received. (c) A hearing by the Board of Adjustment may only proceed if at least four (4) of the five (5) board members are present. The board shall hear and consider evidence offered by any interested person. The formal rules of evidence do not apply. (d) The Board of Adjustments may, in its discretion, grant an exemption from the locational restrictions of Section 13-13 if it makes the following findings: (1) That the location of the proposed sexually oriented business will not have a detrimental effect on nearby properties or be contrary to the public safety or welfare; (2) That the granting of the exemption will not violate the spirit and intent of this Chapter of the City Code; (3) That the location of the proposed sexually oriented business will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban blight; (4) That the location of an additional 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 (5) That all other applicable provisions of this Chapter will be observed. (e) The Board of Adjustment shall grant or deny the exemption by a majority vote of those members present. Failure to reach a majority vote 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 Board of Adjustment shall be final. (f) If the Board of Adjustment grants the exemption, the exemption is valid for one (1) year from the date of the Board of Adjustment's action. Upon the expiration of an exemption, the sexually oriented business is in violation of the locational restrictions of Section 13-13 until the applicant applies ORDINANCE NO. PAGE SIXTEEN for and receives another exemption. (g) If the Board of Adjustment denies the exemption, the applicant may not reapply for an exemption until at least twelve (12) months have elapsed since the date of the Board of Adjustment's action. (h) The grant of an exemption does not exempt the applicant from any other provisions of the Chapter other than the locational restrictions of Section 13-13. SEC. 13-15. ADDITIONAL REGULATIONS FOR ESCORT AGENCIES. (a) An escort agency shall not employ any person under the age of eighteen (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 eighteen (18) years. SEC. 13-16. ADDITIONAL REGULATIONS FOR NUDE MODEL STUDIOS. (a) A nude model studio shall not employ any person under the age of eighteen (18) years. (b) A person under the age of eighteen (18) years commits an offense if he appears in a state of nudity in or on the premises of a nude model studio. It is a defense to prosecution under this subsection if the person under eighteen (18) years was in a rest room 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 or knowingly allows another to appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude model studio premises which can be viewed from the public right-of-way. (d) A nude model studio shall not place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception room open to the public. SEC. 13-17. ADDITIONAL REGULATIONS FOR ADULT THEATERS AND ADULT MOTION PICTURE THEATERS. (a) The requirements and provisions of this Ordinance remain applicable to adult theaters and adult motion picture theaters. (b) A person commits an offense if he allows a person under the age of eighteen (18) years in or on the premises of an adult theater or adult motion picture theater. (c) A person under the age of eighteen (18) years commits an offense if he knowingly appears in a state of nudity in or on the premises of an adult theater or adult motion picture theater. ORDINANCE NO. PAGE SEVENTEEN SEe. 13-18. 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 (2) or more times in a period of time that is less than ten (10) hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this chapter. (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 ten (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" means the act of permitting a room to be occupied for any form of consideration. SEC. 13-19. REGULA TIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS. (a) 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 one hundred fifty (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: (1) 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 (1) or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty-two (32) square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram 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 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. (2) The application shall be sworn to be true and correct by the applicant. (3) No alteration in the configuration or location of a manager's station may be made without the prior approval of the chief of police or his designee. ORDINANCE NO. PAGE EIGHTEEN (4) It is the duty of the owners and operator of the premises to ensure that at least one (1) employee is on duty and situated in each manager's station at all times that any patron is present inside the premises. (5) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose excluding rest rooms. Rest rooms may not contain video reproduction equipment. If the premises has two (2) or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one (1) of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station. (6) 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 Subsection (5) 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 are of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection (1) of this Section. (7) 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 one (1.0) footcandle as measured at the floor level. (8) 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 above is maintained at all times that any patron is present in the premises. (b) A person having a duty under Subsections (1) through (8) of Subsection (a) above commits an offense if he knowingly fails to fulfill that duty. SEC. 13-20. ENFORCEMENT. (a) Except as provided by Subsection (b), any person violating Section 13-13 of this chapter, upon conviction, is punishable by a fine not to exceed TWO THOUSAND AND NO/loo DOLLARS ($2,000.00). (b) If the sexually oriented business involved is a nude model studio or sexual encounter center, then violation of 13-13 of this chapter is punishable as a Class A misdemeanor. (c) Except as provided by Subsection (b), any person violating a provision of this chapter ORDINANCE NO. PAGE NINETEEN other than Section 13-13, upon conviction, is punishable by a fine not to exceed FIVE HUNDRED AND NO/loo DOLLARS ($500.00). (d) It is a defense to prosecution under Section 13-4( a), 13-13, or 13-16( d) that a person appearing in a state of nudity did so in a modeling class operated: (1) by a proprietary school licensed by the State of Texas; a college, junior college, or university supported entirely or partly by taxation; (2) 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 (3) in a structure: (A) which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and (B) where in order to participate in a class a student must enroll at least three (3) days in advance of the class; and (C) where no more than one (1) nude model in on the premises at anyone time. (e) It is a defense to prosecution under Section 3-4(a) or Section 13-13 that each item of descriptive, printed, film, or video material offered for sale or rental, taken as a whole, contains serious literary, artistic, political, or scientific value. (f) A violation of this chapter shall be deemed committed each day in which a violation occurs or continues. SEC. 13-21. INJUNCTION. A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of Section 13-13 of this chapter is subject to a suit for injunction as well as prosecution for criminal violations. SECTION II Should any paragraph, sentence, sub-division, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal or invalid, the same shall not affect the validity of this ordinance as a whole or any part or provision thereof, other than the part or parts as declared to be invalid, illegal, or unconstitutional. ORDINANCE NO. PAGE TWENTY SECTION III This ordinance shall be in full force and effect from and after its adoption by the City Council and publication of its caption as the law and the City Charter provide in such cases. SECTION IV That all other ordinances and code provisions in conflict herewith are hereby repealed to the extent of any such conflict or inconsistency and all other provisions of the Wylie City Code not in conflict herewith shall remain in full force and effect. SECTION V The repeal of any ordinance, of parts thereof, by the enactment of this Ordinance, shall not be construed as abandoning any action now pending under or by virtue of such ordinance; nor shall it have the effect of discontinuing, abating, modifying or altering any penalty accruing or to accrue, nor as affecting any rights of the municipality under any section or provisions of any ordinances at the time of passage of this ordinance. DULY PASSED AND APPROVED by the City Council of the City of Wylie, Texas, this the 23rd day of February, 1993. ~Ji: dA::;~ /1000 W. Akin, Mayor !/ ~lLd~ Mary . Ni ols, ity Secretary