HomeMy WebLinkAbout95-3050318
Sexually oriented businesses
ORDINANCE NO. 95-3050
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF PLAINVIEW, TEXAS, CREATING ARTICLE VII,
SEXUALLY ORIENTED BUSINESSES, OF CHAPTER 7,
BUSINESSES AND OCCUPATIONS, OF THE PLA. INVIEW
CODE OF ORDINANCES TO PROVIDE FOR THE
REGULATION OF SEXUALLY ORIENTED BUSINESSES
WITHIN THE CITY OF PLAINVIEW; CUMULATIVENESS
CLAUSE; SEVERABILITY CLAUSE; CONFLICTS CLAUSE;
AND EFFECTIVE DATE.
WHEREAS, the City Council of the City of Plainview, Texas, recognizes that there exists
a need to regulate sexually oriented businesses within Plainview; and
WHEREAS, the City Council feels that it is in the best interest of the citizens of Plainview
to enact said regulations;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
PLAINVIEW THAT:
SECTION I
The following sections are hereby created for addition to Chapter 7, Businesses and
Occupations, of the Plainview Code of Ordinances:
Secs. 7-292 to 7-300 Reserved.
~ ............... ARTI~E VIII.
SEXUALLY ORIENTED BUSINESSES
Sec. 7-301. Findings.
Based on public testimony and other evidence before it, including information,
studies and court decisions from other jurisdictions, the Plainview City Council makes the
following legislative findings and statement of purpose:
The council recognizes that some activities which occur in connection with sexually
oriented businesses are protected as expression under the First Amendment to the United
States Constitution. The Council further recognizes that Firs Amendment fights are among
our most precious and highly protected fights, and wishes to act consistently with full
protection of those fights. The Council is aware, however, that sexually oriented businesses
may and do generate secondary effects which are detrimental to the public health, safety,
Page I of 10 - S.O.B. Ordinance
319
and welfare. Among these secondary effects are (a) prostitution and other sex related
offenses (b) drug use and dealing (c) health risks through e spread of AIDS and other
sexually transmitted diseases and (d) infiltration by organized crime for the purpose of drug
and sex related business activities, laundering of money and other illicit conduct. This
ordinance is not intended to interfere with legitimate expression but to avoid and mitigate
the secondary effects enumerated above. Specifically, Council finds that licensing of persons
who operate and manage sexually oriented businesses and persons who provide adult
services will further the goals of the ordinance by enabling the City to ascertain if an
applicant is underage or has engaged in criminal or other behavior of the sort the ordinance
is design o limit. This information will enable the City to allocate law enforcement resource
effectively and otherwise protect the community. The Council finds that limiting proximity
and Contact between adult service providers and patron promotes the goal of reducing
prostitution and other casual sexual conduct and the attendant risk of sexually transmitted
diseases. The Council finds the foregoing to be true with respect to places where alcohol is
served and where it is not. Council finds that individual and interactive sexual activities in
adult video facilities pose a risk of sexually transmitted disease, especially AIDS, and that
the open booth requirement of the ordinance will reduce that risk. The Council finds that
the harmful secondary effect of sexually oriented businesses are more pronounced when
conduced continuously or during late night hour. The fees established for licenses and
permits in this ordinance are based on the estimated cost of implementation, administration,
and enforcement of the licensing program.
Sec 7-302. Definitions. -
The following words, terms and phrases when used in this article shall have the
meanings ascribed to them in this section, except where the context clearly indicates a
different meaning:
Adult service means dancing, service of food or beverages, modeling, posing,
wresting, singing, reading, talking or listening, or other performances or activities conducted
for any consideration in an adult business by a person who is nude during all or part of the
time that the person is providing the service.
Adult service business means a business establishment or premises where any adult
service is provided to patrons in the regular course of business and as one of its principal
business purposes.
Adult service provider or "provider" means any person who provides an adult service.
Adult video facility means a commercial establishment where, for any consideration,
films, motion pictures, video cassette projections, videos, or other visual media characterized
by depiction of "specified sexual activities" or "specified anatomical areas" are shown in the
regular course of business as a principal business purpose of the establishment. "Adult video
facility" does not include a theater where all viewing occurs in a common area with seating
for fifty (50) or more persons.
Booth means a partitioned area, in which coin or token operated video machines
projectors or other electronically or mechanically controlled devices are used in the regular
course of business to produce still or moving picture images characterized by depiction of
specified sexual activities or specified anatomical areas.
Page 2 of 10 - S.O.B. Ordinance
320
Cabaret means a sexually oriented business licensed to provide alcoholic beverages
pursuant to a license described in Chapter 11 of the Texas Alcoholic Beverages Code.
Chief of Police means the Chief of Police of the City of Plainview or the Chief's
designee.
Employee means any person hired, engaged or authorized to perform any service on
the premise of an adult service business, including an adult service provider, whether
denominated as an employee, independent contract or otherwise.
Enterprise means a corporation, association, labor union or: other legal entity, as
provided in
Finance director means the finance director of the City of Plainview or the finance
director's designee.
License means, the license required by his article as a condition of conducting a
sexually oriented business.
Licensee means a person or enterprise holding a sexually oriented business license
issued under this article, including those persons required to provide information under
section 7-305(c) of this article.
Manager's station means a permanently designated area marked accordingly within
a sexually oriented business where a sexually oriented business manager is located in the
normal course of operations.
Nudemeans without opaque non-flesh colored fabric fully covering the genitals, pubic
hair, vulva, mons veneris, anus, cleft of the buttocks, and the part of the female breast
directly below the areola.
Patron means a person invited or permitted to enter and remain upon the premises
of a sexually oriented business, whether or not for a consideration.
Permit means the permit required by this article to engage in the activity of an adult
service provider or sexually oriented business manager.
Sexually oriented business mean an adult service business or an adult video facility.
Sexually oriented business manager or "manager" means a person on the premise of
a sexually oriented business who is authorized to exercise overall operational control of the
business.
Specified anatomical areas mean human genitals, pubic hair. vulva, mons veneris,
anus, cleft of the buttock, female breasts below the top of the areola or human male genitals
in a discernibly turgid state, even if completely and opaquely covered.
Specified sexual activities means actual or simulated sexual intercourse, masturbation,
fellatio, cunnilingus, sodomy, flagellation, bestiality, fondling or touching of human genitals,
pubic region, buttocks or the female breast, or any combination of the foregoing.
Sec. 7-303. Administration.
a) The administration of this article, including the duty of prescribing forms, is vested
in the Chief of Police, except as otherwise specifically provided.
(b) License or permit applications made pursuant to this article shall be submitted
to the Chief of Police~ He/She shall grant, deny, suspend, or revoke licenses or permits in
accordance with the provisions of this article.
(c) Licenses or permits issued pursuant o this article shall be valid for period of one
Page 3 of 10 - S.O.B. Ordinance
321
year from date of issuance.
Sec. 7-304. Sexually oriented business license required.
(a) A person may not conduct a sexually oriented business without first obtaining a
sexually oriented business license pursuant to this article. The license shall state the name
of the license holder; the name, address and phone number of the licensed premise; and the
dates of issuance and expiration of the license.
(b) A sexually oriented business for which a license has been issued pursuant to this
article may conduct business only under the name or designation specified in the license.
(c) A licensee shall conduct business only at the address shown on the license. Each
additional place of business shall require a separate license.
(d) A sexually oriented business license shall be displayed on the premise in such a
manner as to be readily visible to patrons.
Sec. %305. Application for sexually .oriented business license.
(a.) An applicant for a sexually oriented business license shall file in person at the
office of the Chief of Police an application, signed under oath by the applicant and
notarized, accompanied by the fee required under section 7-320. An applicant or other
person whose fingerprints and photograph are required under paragraph (c) may, at his
option, be photographed and fingerprinted at the office of the Chief of Police or other city
location not later than close of business of the first business day after filing of an application
and payment o the required fees. An application shall be deemed complete when the Chief
has received the required fees, all information required in paragraph (c), photograph and
fingerprints of the applicant and, in the case of a corporation or other business organization,
photograph and fingerprints of all persons for whom information is required under
paragraph (c) of this section.
(b) Fingerprints and photograph, if not taken at the office of the Chief, shall be taken
by a law enforcement agency and accompanied by a notarized verification by the agency.
(c) The application shall include the information called for in subparagraphs (1)
through (9). If the applicant is an enterprise, it shall designate an officer or partner as
applicant. In such case, in addition to the information required in subparagraphs (1)
through (9) for the applicant, the application shall include the state and date of formation
of the organization and the information called for in subparagraph (2) through (6) of this
section with respect to each officer director, general partner, and all other persons with
authority participate directly and regularly in of the business, provided that, such
information need not be provided with respect to attorneys, accountants and other persons
whose primary function is to provide profesSional advice and assistance to the licensee.
(1) The name, business location, business mailing address and phone number
of the proposed sexually oriented business establishment.
(2) The full true name and any other names, aliases or stage names used in
the preceding five (5) years.
(3) Current residential mailing address and telephone number.
(4) Written proof of age, in the form of a birth certificate, current drivers
license with picture, or other picture identification document issued by a governmental
Page 4 of 10 - S.O.B. Ordinance
322
agency
(5) The issuing jurisdiction and the effective dates of any license or permit
relating to a sexually oriented business or adult service, whether any such license or permit
has been revoked or suspended and if so, the reason or reasons therefor.
(6) All criminal charges, complaints or indictments in the preceding three (3)
years which resulted in a conviction or a plea of guilty or no contest for an "organized crime
and fraud" offense under chapter 71 of the Texas Penal Code, a "prOstitution" offense under
chapter 43 of the Texas Penal Code, a "drug offense" under chapters 481 and 483 of the
Texas Health & Safety Code, or a "sexual offense" under chapters 21, 22, 25 and/or 42 of
the Texas Penal Code, or for conduct in another jurisdiction which: if:carried out in Texas
would constitute an offense under one of the statutory provisions enumerated in this
subparagraph.
(7) The name and address of the statutory agent or other agent authorized to
receive service of process,
(8) The names of the sexually oriented business managers who shall have
actual supervisory authority over the operations of the business.:
(9) An accurate, to scale, but not necessarily professionally drawn, floor plan
of the business or premises clearly indicating the location of one or more manager's stations.
(d) The information provided pursuant to subparagraphs (5) and (6) of paragraph (c)
f this section shall be supplemented in writing by certified: mail to the Chief within ten (10)
working days of a change of circumstances which would render the information originally
submitted false or incomplete.
Sec. 7-306. Sexually oriented business manager permit
(a) A person may not serve as a sexually oriented business manager unless the person
has first secured a sexually oriented business manager permit under this article.
(b) Application for a sexually oriented business manager permit shall be made in the
same manner as application for a sexually oriented business license, except that the applicant
need provide only the information called for in subparagraphs (2) through (6) Of section
7-305(c).
Sec. 7-307 Adult service provider permit
(a) A person may not work a an adult service provider unless the person has first
obtained an adult service provider permit under this article.
(b) Application for a adult service provider permit shall be made in the same manner
as application for a sexually oriented business license except that the applicant need provide
only the information called for in subparagraphs (2) through (6) of section 7-305(c).
Sec. 7-308. Confidentiality,
The information provided by an applicant in connection with the application for a
license or permit under this chapter shall be maintained by the Chief on a confidential basis,
except that such information may be disclosed to other governmental agencies in connection
with a law enforcement or public safety function.
Page 5 of 10 - S.O.B. Ordinance
323
Sec 7-309. Grant or denial of license or permit
(a) Within forty-five (45) days after receipt of a completed application for a sexually
oriented bu~siness license, the Chief shall mail to the applicant a license or a notice of intent
to deny. If the Chief fails to do so, the license shall be deemed granted.
(b) Upon receipt of a complete application for a sexually oriented business manager
permit or an adult service provider permit, payment of the required fees and completion of
photograph and fingerprinting requirements of this article, the Chief shall issue to the
applicant a temporary permit. Within thirty (30) days after issuance of a temporary permit,
the Chief shall mail to the applicant a regular permit or a notice of intent to deny.
(c) The issuance of any license or permit does not waive any right of revocation or
denial the City may have at the time of issuance.
(d) The Chief shall grant the license or permanent permit to an applicant who has
completed all requirements for application, unless the Chief finds any of the following
conditions. For purposes of this paragraph, a person required to submit information
pursuant to section 7-305(c) shall be deemed an applicant.
(1) The application is incomplete or contains a misrepresentation, false
statement or omission.
(2) The applicant has failed to comply with applicable zoning or other land
use ordinances and regulations of the city, relating to the business or activity to be carried
out under the license or permit; or is delinquent in payment of any city taxes, fees or other
payments due in connection with such business or activity.
(3) The applicant is not at least eighteen (18) years of age.
(4) The applicant or other person required to provide information under
section 7-305 (c), in the past three (3) years has been convicted, or plead guilty or no
contest with respect to a felony violation or two misdemeanor violations of one or more
offenses in the categories stated in section 7-305(c)(6).
(5) Within the past (2) years a license or permit under this article held by an
applicant, or other person required to provide information pursuant to section 7-305 (c), has
been revoked, or a similar license in another jurisdiction has been revoked on h basis of
conduct which would be a ground for revocation of a license or permit issued under this
article if committed in the City.
Sec. 7-310. Non-transferability.
Licenses and permits issued under this article are non-transferable.
Sec. 7-311. Adult service provider or manager work identification card.
The Chief shall provide to all adult service providers and sexually oriented business
managers a work identification card. The card shall contain a photograph of the permittee,
the number of the permit issued to that permittee and the date of expiration of the permit.
Sec. 7-312. Adult service business; operating requirements.
(a) A person employed or acting as an adult service provider or manager shall have
a valid permit issued pursuant to the provisions of this article. A permit or a certified copy
hereof for each manager or provider shall be maintained on the premises in the custody of
Page 6 of 10 - S.O.B. Ordinance
324
the manager at all times during which a person is serving as a provider or manager on the
premises. Such permits shall be produced by the manager for inspection upon request by
law enforcement officer or other authorized city official.
(b) An adult service business shall maintain a daily log of all persons providing adult
services on the premises, the log shall cover the preceding twelve (12) month period and
shall be available for inspection upon request by a law enforcement officer during regular
business hours.
(c) A person below the age of eighteen (18) years may not observe or provide an
adult service.
(d) A person may not provide an adult service in an adult service business except
upon a stage elevated at least eighteen (18) inches above floor level. All parts of the stage,
or a clearly designated area thereof within which the adult service is provided, shall be a
distance of at least three (3) feet from all parts of a clearly designated area in which
patrons may be present. The stage or designated area thereof shall be separated fi'om the
area in which patrons may be located by a barrier or railing, the top of which is a least three
(3) feet above floor level. A provider or patrons may not extend any part of his or her
body over or beyond the barrier or railing.
(e) An adult service provider, in the course of providing an adult service, may not
perform a specified sexual activity.
(f) Adult services may not be provided between the hours of 1:30 a m. and 6 00 a.m.
Monday through Saturday or between 1:30 a.m. and 10:00 a m. on Sunday.
(g) An adult service may not be provided in any location which is not visible by direct
line of sight at all times from a manager's station located in a potion of the premises which
is accessible to patrons of the adult service business..
(h) An adult service provider shall wear his or her adult service provider work
identification card at all times while on the premises except while providing an adult service.
The card shall be affixed to clothing on the front of the person and above waist level so that
the picture and permit number are clearly visible to patrons.
(i) A sexually oriented business manager shall be on the premises of an adult service
business at all times during which any adult service is provided on the premises. The
manager shall wear his or her identification card in the manner described in subparagraph
(h) above.
(j) An employee may not touch the breast, buttocks, or genitals of a patron nor may
a patron touch the breast, buttocks, or genitals of an employee.
(k) A sign, in a form to be prescribed by the Chief summarizing the provisions of
subparagraphs 3, 4, 10 and 12 of this section shall be posted near the entrance of an adult
service business in such a manner as to be clearly visible to patrons upon entry.
(1) A patron may not place any money on the person or in or on the costume of an
adult service provider.
(m) Manager or licensee may or knowingly permit or tolerate a violation of any
provision of this section. ·
(n) With respect a cabaret, the requirements of this section shall apply to the extent
that they are not in conflict with specific statutory or valid regulatory requirement applicable
Page 7 of 10 - S.O.B. Ordinance
325
to persons licensed to dispense alcoholic beverages.
Sec. 7-313 Adult video facility-operating requirements.
(a) An adult video facility shall be equipped with overhead lightning fixtures of
sufficient intensity to illuminate every place to which patrons are permitted access at an
illumination of not less than one (1) foot candle, as measured at the floor level.
(b) An adult video facility shall bc configured in such a way that a patron, whether
sitting or standing, is visible below the waist by direct line of sight from a manager's station
at all times during which the patron is viewing video material characterized by depiction of
specified anatomical areas or specified sexual activities. The manager's station shall be
located in a portion of the premises accessible to patrons.
(c) A sexually oriented business manager shall be on the premises of an adult video
facility at all times that the facility is open for business. The manager shall wear his or her
identification card in the manner described in section 7-312(h) above.
(d) A patron may not engage in specified sexual activities on the premises of an adult
video facility.
(e) A booth (i) shall be rectangular in shape, (ii) shall have one side open without
any door, wall, curtain or other obstruction on that side and (iii) shall not have any hole or
aperture in any wall separating one such booth or viewing area from another.
(f) A manager or licensee may not knowingly permit or tolerate a violation of any
provision of this section.
Sec 7-314. Inspection of premises and records.
The manager of a sexually oriented business shall maintain on the premises business
records reflecting all receipts and expenditures with respect to the business for the preceding
(2) years. The Manager shall permit it law enforcement officers of the city to inspect the
premises and the finance director to inspect the business records upon request during
regular business hours, subject to section 7-308.
Sec 7-315. Suspension license or permit.
The Chief shall suspend a license or permit for a period of ten (10) days if
licensee or permittee is convicted of violating a provision of this article.
the
Se. 7-316. Revocation of license or permit
The Chief shall revoke a license or permit issued pursuant to this article if the
licensee or permittee:
(1) is convicted of three (3) or more violations of this article in any twelve (12)
month period.
(2) is convicted or pleads guilty or no contest to an offense stated in section 7-
305(c)(6).
Sec. 7-317. Procedure for denial, revocation or suspension; appeal.
Page 8 of 10 - S.O.B. Ordinance
326
If the Chief determines that grounds exist for denial; suspension, or revocation of a
license or permit under this article, he shall notify the applicant, licensee or permittee
(respondent) in writing of his intent to deny, suspend, or revoke, including; a summary of
the grounds therefor. The notification shall be by certified mail to the address n file with
the Chief within ten (10)working days of receipt of such notice, the respondent may provide
to the Chief in writing a response which shall include a statement of reasons why the license
or permit should not be denied, suspended, or revoked and may include a request for a
heating. If a response is: not received by the Chief in the time stated, the notification shall
be final administrative action of denial, suspension or revocation and notice of such will be
sent to the permittee or licensee within five (5) working days after expiration of the period
for submitting a response. Within five (5) working days after receipt of a response, the Chief
shall either withdraw the intent to deny, suspend, or revoke, and send notification of the
withdrawal to the respondent in writing by certified mail, or shall Schedule .a heating before
the City Manager or his designee and shall send notification to the respondent in writing
by certified mail of the date, time and place of the heating. If the Chief: fails to send a
timely notification either withdrawing the intent or scheduling a heating, the intent to deny,
suspend or revoke shall be deemed withdrawn. The heating, if requested, Shall be scheduled
not less than fifteen (15) nor more than twenty (20) working days after receipt by the Chief
of the request for a hearing.. The .hearing shall be conduced in an informal manner. The
respondent may be represented by counsel. The rules of evidence shall not apply. The City
Manager shall render a written decision within five (5) working days after completion of the
hearing and shall mail a copy of the decision by certified mail to the address of the
respondent on file with the Chief. In no case, shall more than forty-five (45) days elapse
between receipt by the Chief of a request for a hearing and mailing by the City Manager
of a final decision to the respondent, a decision in favor of the applicant, licensee or
permittee shall be deemed to have been rendered. In the case of an intent to revoke,
suspend or non-renew a license or permit, or to deny a regular permit the permittee or
licensee may continue to function under the license or permit pending receipt of the final
decision of the City Manager. The decision shall be final at the end of five (5) working days
after it is mailed and shall constitute final administrative action.
Sec. 7-318. Judicial appeal.
Final administrative action to deny, revoke, or non-renew a license or permit may be
appealed to the District Court by special action or other viable procedure within thirty five
(35) days after receipt of written notice of he decision. The City shall consent to expedited
heating and disposition.
Sec. 7-319.
(a)
application
application,
provided in
application.
License and permit renewal.
A license or permit may be renewed by filing an application for renewal. The
shall contain the information required to be submitted with the original
provided that, a renewal application need not contain information that has been
a previous application and has not changed since the time of the most recent
An application for license renewal shall be received by the Chief not less than
Page 9 of 10 - S.O.B. Ordinance
327
forty-five(45) days before the eXpiration of the license. Application for permit renewal shall
be received by the Chief before the eXpiration of the permit.
(b) The Chief may deny an application for renewal for the reasons and in
accordance with the procedure set forth in section 7-309.
Sec. 7-320. Fees.
(a) An original application for a sexually oriented business license shall be
accompanied by a non-refundable application fee in the amount of five hundred dollars
($500) and by a license fee in the amount of five hundred dollars ($500). The license fee will
be refunded if the license is denied. An application for renewal shall be accompanied by
he amount of. the license fee.
(b) An application for issuance or renewal of an adult service provider permit shall
be accompanied by a non-refundable fee of one hundred dollars ($100).
(c) An application for issuance or renewal of a sexually oriented business manager
permit shall bc accompanied by a non-refundable fee of one hundred and fifty dollars
($150).
(d) A duplicate or certified copy of a license, permit or identification card shall be
issued by the director upon payment of a fee of ten dollars ($10.00).
(e) A fee of twenty-five dollars ($25) shall be paid at the time of fingerprinting for
each set of fingerprints to be provided for by the Chief under section 7-305.
Sec. 7-321. Other regulations.
A license or permit required by this article is in addition to any other license or
permit required by the city, the county, or the state to engage in the business or occupation.
Persons engaging in activities described in this article shall comply with all other ordinances
and laws, i~cluding the city zoning orfli~&~ as may be required, to engage in a business
Sec. 7-322. Penalty. ·
(a) The violation of any provision of this article, including the doing of anything
which is herein prohibited or declared to be unlawful or the failure to do anything or
perform any duty which is required herein, shall be punichable as provided by Section
243.010(b) of the Local Government Code, as amended...
(b) In addition to other penalties, a sexually oriented business which operates without a
valid license shall constitUte a public nuisance which may be abated by a suit for injunctive
relief.
Sec. 7-323. AppliCabili.ty.
This article shall apply to all persons engaging in the activities described herein,
whether or not such activities were commenced prior to the effective date of this article.
Persons so engage as of the effective date of this article shall be in full compliance with this
article, including receipt of any required license or permit, within one hundred eighty (180)
days after the effective date of this article.
Page 10 of 10 ~ S.O.B. Ordinance
3.28
SECTION II
Provisions of this ordinance are cumulative and nothing herein shall prevent, alter, or
diminish the applicability or enforcement of other ordinances restricting, regulating or
governing the subject matter herein.
SECTION III
Should any section, subsection, or any portion hereof be deemed invalid for any reason, such
holding shall not render or invalidate any other section, sub-section, sentence, provision,
clause, phrase, or word severable therefrom and the same shall be deemed severable for this
purpose.
SECTION IV
All ordinances or portions of any ordinance of the City of Plainview, Texas in conflict
herewith, are hereby amended to conform with the provisions hereof.
SECTION V
This ordinance shall be of full force and effect upon its passage and publication as required
by law.
PASSED AND APPROVED this 25th day of July, 1995.
Lloyd C. Woods, Mayor
ATTEST:
Khren McBetl~, City Secretary
Page 11 of 10 - S.O.B. Ordinance