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ORD 744 05/15/2006 ORDINANCE NO. 744 AN ORDINANCE REPEALING ORDINANCE NO. 498 AND ADOPTING A NEW ORDINANCE ENTITLED "SEXUALLY ORIENTED BUSINESS REGULATIONS"; PROVIDING FOR CLASSIFICATION OF A SEXUALLY ORIENTED BUSINESS; PROVIDING FOR APPLICATION AND LICENSE REQUIREMENTS FOR A SEXUALLY ORIENTED BUSINESS AND EMPLOYEES OF THE BUSINESS; PROVIDING FOR LOCATION OF A SEXUALLY ORIENTED BUSINESS; PROVIDING FOR EXEMPTIONS, ENFORCEMENT AND PENALTIES; AND PROVIDING FOR PUBLICATION AND AN EFFECTIVE DATE. WHEREAS, sexually oriented businesses require special supervision from the public safety agencies of the City in order to protect and preserve the health, safety, morals, and welfare of the patrons of such businesses, as well as the citizens of the City; and WHEREAS, the City Council finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution, and for sexual liaisons of a casual nature; and WHEREAS, the concern over sexually transmitted diseases is a legitimate health concern of the City which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of the citizens; and WHEREAS, 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; and WHEREAS, there is convincing documented evidence as recognized in Resolution No. that sexually oriented businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values; and WHEREAS, the studies and case law referenced , reviewed and approved by the Council in Resolution No. recognized that Cibolo can rely on secondary effects studies prepared for other communities even if those cities are larger in population; and WHEREAS, 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 oth?r, thereby contributing to urban blight and downgrading the quality of life in the adjacent area; and Page 1 of 24 WHEREAS, the Council has reviewed the reports, studies, and statistics regarding the adverse secondary effects and has made findings in Resolution No. declaring the necessity for the regulation of sexually oriented businesses; and WHEREAS, the City Council desires to minimize and control these adverse secondary effects and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of surrounding neighborhoods; and deter the spread of urban and suburban blight; and WHEREAS, the City Council has determined that locational criteria alone do not adequately protect the health, safety, and general welfare of the people of this City; and WHEREAS, it is not the intent of this Ordinance to suppress any speech activities protected by the First Amendment, but to enact a content-neutral ordinance which addresses the secondary effects of sexually oriented businesses; and WHEREAS, it is not the ii itcnt of the City Council to condone or legitimize-the, distribution of obscene material, and the Council recognizes that state and federal laid - prohibits the distribution of obscene materials, and expects and encourages state law enforcement officials to enforce state obscenity statutes against any such illegal activities in the City; and WHEREAS, the City of Cibolo is a Home Rule Municipality located in Guadalupe County, Texas, created in accordance with provisions of the Texas Local Government Code and operating pursuant to a City Charter duly approved and adopted by the citizens of Cibolo in September 2004; and WHEREAS, the City Council of the City of Cibolo is empowered under Texas Local Government Code § 54.001 to authorize all acts and enact and enforce all regulations which may be necessary or expedient for the promotion of the public health, safety and general welfare; and WHEREAS, Title 7, Section 243.003 of the Texas Local Government Code, empowers a municipality to regulate sexually oriented businesses as deemed necessary to protect the health, safety, or welfare of the citizens; and -WHEREAS, Cibolo Ordinance No. 498, Adult Entertainment Regulations, has been reviewed and recommendation has been made that said ordinance be repealed by the City Council; and WHEREAS, the City Council has considered, among other things, the effect of the recommended modifications and believes it is in the best interest of the City to adopt a new ordinance entitled "Sexually Oriented Business Regulations"; and Page 2 of 24 WHEREAS, the City Council, in the exercise of its legislative discretion, has concluded that a new ordinance entitled "Sexually Oriented Business Regulations" should be adopted. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CIBOLO: SEXUALLY ORIENTED BUSINESS REGULATIONS ARTICLE I SECTION 1.01 Adoption of Preamble The findings contained in Resolution No. , previously adopted by the City Council for the City of Cibolo, are determined to be true and correct and are incorporated by reference into this ordinance. SECTION 1.02 Purposes Purpose: It is the purpose of this Ordinance to regulate sexually oriented businesses in order 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 deleterious location and concentration of sexually oriented businesses within the City. The provisions of this Ordinance 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 Ordinance 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. Neither is it the intent nor effect of this Ordinance to condone or legitimize the distribution of obscene material. It is the intent of the City Council of the City of Cibolo that the location regulations, application, license and permit regulations; sign, inspection and fee regulations contained in this Ordinance are promulgated pursuant to Tex. Loc. Gov't. Code Ch. 243. ARTICLE II DEFINITIONS SECTION 2.01 Definitions Words, terms and phrases in this Ordinance shall be defined as follows: (a) Adult Arcade means any place to which the public is permitted or invited, wherein coin-operated or slug-operated or electronically, electrical, or mechanically controlled still or motion picture machines, Droiectors, or other image-producing devices are regularly maintained to show images to five (5) or fewer persons per Page 3 of 24 machine at any one time, and where the images so d;splayed are distinguished or characterized by their emphasis upon matters exhibiting "specified sexual activities" or"specified anatomical areas." (b) Adult Bookstore, Adult Novelty Store or Adult Video Store means a commercial establishment which has as a significant or substantial portion of its stock-in-trade, or derives significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising, or maintains a substantial section of its sales or display space for the sale or rental, for any form of consideration, of any one or more of the following: (1) books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, slides, video reproductions, or other visual representations, which are characterized by their emphasis upon the exhibition or display of "specified sexual activities" or "specified anatomical areas;" (2) instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genitals organs or for sadomasochistic use or abuse of the user or others. This does not include items used for birth control or for prevention of sexually transmitted diseases. (c) Adult Cabaret means a nightclub, bar, restaurant, or similar commercial establishment which regularly features: (1) persons who appear semi-nude; or (2) live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or (3) films, motion pictures, video cassettes, DVD's, slides, or other photo- graphic reproductions which are characterized by the exhibition or display of "specified sexual activities" or"specified anatomical areas." (d) Adult Motel means a hotel, motel, or similar commercial establishment, which: (1) offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmission, films, motion pictures, video cassettes, DVD's, slides, or other photographic reproductions which are characterized by the exhibition or display 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; and either (2) offers a sleeping room for rent for a period of time that is less than ten (10) hours; or Page 4 of 24 (3) allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten (10) hours; or (4) 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 business is an adult motel. (e) Adult Motion Picture Theater means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, DVD's, slides, or similar photographic reproductions are regularly shown which are characterized by the depicting or description of "specified sexual activities" or "specified anatomical areas." (f) Adult Theater means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear nude or semi-nude, or live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities." (g) Child Day Care means a facility licensed by the State of Texas in accordance with 40 T.A.C. § 745.33. (h) Church means a church, synagogue, mosque, temple, or building which is used primarily for religious worship and related religious activities. (i) Distinguished or Characterized by an Emphasis Upon means the dominant or principal theme of the object referenced. For instance, when the phrase refers to films "which are distinguished or characterized by an emphasis upon the exhibition or display of specified sexual activities or specified anatomical areas," the films so described are those whose dominant or principal character and theme are the exhibition or display of"specified anatomical areas" or"specified sexual activities." (j) Customer means any person who: (1) Is allowed to enter an Adult Establishment in return for the payment of an admission fee or any other form of consideration or gratuity; or (2) Enters a sexually oriented business and purchases, views, rents or otherwise partakes of any merchandise, goods, entertainment or other services offered therein; or (3) Is a member of and on the premises of a sexually oriented business operating as a private club. Page 5 of 24 (k) Employee, Employ, and Employment describe and pertain to any person who performs any service on the premises of a sexually oriented business on a full-time, part-time, or contract basis, regardless of whether the person is designated as an employee, independent contractor, agent, or by another status. Employee does not include a person exclusively on the premises for repair or maintenance of the premises, or for the delivery of goods to the premises. (I) Enforcement Officer shall mean the City Manager or designee. (m) Escort means a person who, for consideration, and for another person, agrees or offers: (1) to act as a companion, guide, or date, or (2) to privately model lingerie, or (3) to privately perform a striptease. (n) Escort Agency means a person or business association that for a fee, tip, or other consideration, furnishes, offers to furnish, or advertises to furnish, escorts as one of its primary business purposes. (o) Establish or Establishment means and includes any of the following: (1) the opening or commencement of any sexually oriented business as a new business; (2) the conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; (3) the addition of any sexually oriented business to any other existing sexually oriented business; or (4) the relocation of any sexually oriented business. (p) 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; and in the case of an employee, a person in whose name a license has been issued authorizing employment in a sexually oriented business. (q) Nude, Nudity or a State of Nudity means the showing of the human male or female genitals, pubic area, vulva, anus, or anal cleft with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state. Page 6 of 24 (r) Operated or Caused to Be Operated means to cause to function or to put or keep in a state of doing business. Operator means any person on the premises of a sexually oriented business who is authorized to exercise operational control of the business, or who causes to function or who puts or keeps in operation, the business. A person may be found to be operating or causing to be operated a sexually oriented business regardless of whether that person is an owner, part owner, or licensee of the business. (s) Person means an individual, proprietorship, partnership, corporation, association, or other legal entity. (t) Principal Business or Primary Business means: (1) Thirty-five percent or more of the gross floor area is devoted to the sale, display, or inventory of items which depict or describe specified sexual activities or specified anatomical areas or which are designed for use in connection with specified sexual activities; or (2) Thirty-five percent or more of the gross receipts are derived from the sale or rental of items described in Subsection (1) of this definition. (u) Regularly Features or Regularly Shown means a consistent or substantial course of conduct, such that the films or performances exhibited constitute a substantial portion of the films or performances offered as a part of the ongoing business of the sexually oriented business. (v) Residential District means a residentially zoned district as defined by the Zoning Ordinance of the City of Cibolo. (w) Residential Use means a single-family, townhouse, duplex, mobile home, or multiple-family use as defined in the Zoning Ordinance of the City of Cibolo. (x) School means any public or private educational facility including, but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, special education schools, junior colleges, and universities. This definition includes any building used for home schools. "School" includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school. (y) Semi-nude or in a Semi-nude Condition means the showing of the female breast below a horizontal line across the top of the areola at its highest point or the showing of the male or female buttocks. This definition shall include the lower portionof the human female breast, but shall not include any portion of the cleavage of the human female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel, provided the areola is not exposed in whole or in part. Page 7 of 24 (z) Semi-nude Model Studio means a commercial establishment which regularly features a person (or persons) who appears semi-nude and is provided to be observed, sketched, drawn, painted, sculptured, or photographed by other persons who pay money or any form of consideration, but shall not include a proprietary school licensed by the State of Texas or a college, junior college or university supported entirely or in part by public taxation; a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation. (aa) Sexual Encounter Center means a business or commercial establishment that as one of its principal business purposes, offers for any form of consideration, a place where two (2) or more persons may congregate, associate, or consort for the purpose of "specified sexual activities." The definition of sexual encounter center or any sexually oriented business shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized sexual therapy. (bb) Sexually Oriented Business means an adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theatre, adult theater, escort agency, semi-nude model studio, or sexual encounter center. (cc) Specified Anatomical Areas means: (1) the human male genitals in a discernibly turgid state, even if completely and opaquely covered; or (2) less than completely and opaquely covered human genitals, pubic region, buttocks, or a female breast below a point immediately above the top of the areola (dd) Specified Criminal Activity means any of the following offenses: (1) prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution, or display of harmful material to a minor; sexual performance by a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; engaging in organized criminal activity relating to a sexually oriented business; sexual assault; molestation of a child; distribution of a controlled substance; or any similar offense to those described above under the criminal penal code of other states or countries; (2) for which: (A) 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; Page 8 of 24 (B) 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 (C) 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 a combination of misdemeanor offenses or a combination of misdemeanor offenses occurring within any twenty-four (24) month period. (3) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or a person residing with the applicant. (ee) Specified Sexual Activities means any of the following: (1) the fondling of another person's genitals, pubic region, anus or female breasts; (2) sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation, or sodomy; or (3) excretory functions as part of, or in connection with, any of the activities set forth in (1) through (2) above. (ft) Substantial Enlargement of a sexually oriented business means the increase in floor areas occupied by the business by more than twenty-five (25) percent, as the floor areas exist on the date this Ordinance takes effect. (gg) Tanning Salon means a commercial establishment where a person appearing in a state of nudity or displaying specified anatomical areas engages in activities related to sunbathing or tanning within the view of customers. This does not include the use of opaque tanning devices, which are not visible to other customers or patrons of the establishment. (hh) Transfer of Ownership or Control of a Sexually Oriented Business means and includes any of the following: (1) the sale, lease, or sublease of the business; (2) the transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or (3) the establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, including the transfer by bequest or other operation of law upon the death of the person possessing the ownership or control. Page 9 of 24 ARTICLE III CLASSIFICATION SECTION 3.01 Classification Sexually oriented businesses are classified as follows: a. adult arcades; b. adult bookstores, adult novelty stores, or adult video stores; c. adult cabarets; d. adult motels; e. adult motion picture theatres; f. adult theaters; g. escort agencies; h. semi-nude model studios; i. sexual encounter centers; and j. tanning salons. ARTICLE IV LICENSE FOR SEXUALLY ORIENTED BUSINESS SECTION 4.01 License Required A. It is unlawful: 1. For any person to operate a sexually oriented business without a valid sexually oriented business license issued by the City pursuant to this Ordinance. 2. For any person who operates a sexually oriented business to employ a person to work for the sexually oriented business who is not licensed as a sexually oriented business employee by the City pursuant to this Ordinance. 3. For any person to obtain employment with a sexually oriented business without having secured a sexually oriented business employee license pursuant to this Ordinance. B. An application for a license must be made on a form provided by the City. All applicants must be qualified according to the provision of this Ordinance. C. An applicant for a sexually oriented business license or a sexually oriented business employee license shall file with the Enforcement Officer a completed application made on a form prescribed and provided by the City. An application shall be considered complete if it includes the information required in this Page 10 of 24 Section. The applicant shall be qualified according to the provisions of this Ordinance. The application shall be notarized. The application shall include the information called for in Subsections (1) though (6), and where applicable, Subsection (7), as follows: 1. The full true name and any other names used in the preceding five (5) years. 2. The current home and business address of the applicant. 3. Either a set of fingerprints suitable for conducting necessary background checks pursuant to this Ordinance, or the applicant's Social Security Number and copy of the applicant's driver's license to be used for the same purpose. . 4. If the application is for a sexually oriented business license, the name, business location, legal description, business mailing address and phone number of the proposed sexually oriented business. 5. Written proof of age, in the form of either (i) a copy of 'a birth certificate and current photo, (ii) a current driver's license with picture, or (iii) other picture identification document issued by a government agency. 6. The issuing jurisdiction and the effective dates of any license or permit held by the applicant relating to a sexually oriented business, and whether any such license or permit has been denied, revoked, or suspended, and if so, the reason or reasons thereof. 7. If the application is for a sexually oriented business license, the name and address of the statutory agent or other agent authorized to receive service of process. The information provided pursuant to Subsections (1) through (7) shall be supplemented in writing by certified mail, return receipt requested, to the Enforcement Officer within ten (10) working days of a change of circumstances which would render the information originally submitted false or incomplete. D. The application for a sexually oriented business license shall be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but shall be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy plus or minus six (6) inches. E. If the person who wishes to operate a sexually oriented business is an individual, he or she shall sign the application for a license as an applicant. If the person that wishes to operate a sexually oriented business is other than an individual Page 11 of 24 (such as a corporation), each officer, director, general partner, or other person who will participate directly in decisions relating to management of the business shall sign the application for a license as the applicant. Each applicant must be qualified under Section 4.02, and each applicant shall be considered as a licensee if a license is granted. F. A person who possesses a valid business license is not exempt from the requirement of obtaining any required sexually oriented business license. A person who operates a sexually oriented business and possesses a business license shall comply with the requirements and provisions of this Ordinance, where applicable. G. The information provided by an applicant in connection with the application for a license under this Ordinance shall be maintained by the Enforcement Officer on a confidential basis, and may be disclosed only: (1) to other governmental agencies in connection with a law enforcement or public safety function, or (2) as may otherwise be required by law or a court order. SECTION 4.02 License Issuance A. Upon the filing of a completed application for a sexually oriented business license or a sexually oriented business employee license, the Enforcement Officer shall issue a Temporary License to the applicant, which Temporary License shall expire upon the final decision of the Enforcement Officer to deny or grant the license. Within thirty (30) days after the receipt of a completed application, the Enforcement Officer shall either issue a license, or issue a written notice of intent to deny a license, to the applicant. The Enforcement Officer shall approve the issuance of a license unless one or more of the following is found to be true: 1. An applicant is less than eighteen (18) years of age. 2. An applicant is delinquent in the payment to the City of taxes, fees, fines, or penalties assessed against or imposed upon the applicant in relation to a sexually oriented business. 3. An applicant who has failed to provide information as required by Section 4.01 for issuance of the license. 4. An applicant or applicant's spouse has been convicted of a specified criminal activity. For the purpose of this Subsection, "conviction:" a. means a conviction or a guilty plea; and b. includes a conviction of any business entity for which the applicant had, at the time of the offense leading to the conviction for a specified criminal activity, a management responsibility or a controlling interest. Page 12 of 24 5. The license application fee required by this Ordinance has not been paid. 6. An applicant has falsely answered a question or request for information on the application form. 7. The proposed sexually oriented business is located in an area in violation of Article V of this Ordinance and/or the physical layout of the premises does not comply with the requirements of Article VI of this Ordinance. 8. The applicant has not demonstrated that the owner of the sexually oriented business owns or holds a lease for the property or the applicable portion thereof upon which the sexually oriented business will be situated or has a legally enforceable right to acquire the same. B. An applicant who has been convicted or whose spouse has been convicted of an offense listed in Article II, Section 2.01(dd)(1) may qualify for a sexually oriented business license only when the time period required by Article II, Section 2.01(dd)(2) has elapsed. C. The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the number of the license issued to that applicant, the expiration date, and, if the license is for a sexually oriented business, the address of the sexually oriented business. A sexually oriented business employee license shall contain a photograph of the licensee. The sexually oriented business 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. A sexually oriented business employee shall keep the employee's license on his or her person or on the premises where the licensee is then working or performing, and shall produce such license for inspection upon request by a law enforcement officer or other authorized city official. SECTION 4.03 Inspection and Records Required on Premises A. For the purposes of ensuring compliance with this Ordinance, an applicant, operator or licensee shall permit law enforcement officers and any other federal, state, county or city agency in the performance of any function connected with the enforcement of this Ordinance, normally and regularly conducted by such agencies, to inspect for compliance, at any time the business is occupied or open for business, those portions of the premises of a sexually oriented business which patrons or customers are permitted to occupy. B. 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. Page 13 of 24 C. A person who operates a sexually oriented business or his agent or employee commits an offense if he operates the establishment without maintaining a current list of all employees employed by the business, along with a complete updated application. A valid driver's license, state identification card, or passport, all with a photo, shall be required for all employees. These records must be maintained on premises and made available for inspection. D. 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 and records required to be maintained on the premises by the Enforcement Officer at any time it is occupied or open for business. SECTION 4.04 Expiration of License A. Each license shall expire one (1) year from the date of issuance and may be • renewed only by making application as provided by Article IV, Section 4.01. An application for renewal shall 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. B. A license may be renewed by submission to the Enforcement Officer of an application on the form by such official and payment of a nonrefundable renewal processing fee. C. When the City denies the renewal of a license, the applicant shall not be issued a license for one (1) year from the date of denial. If, subsequent to the denial, the City finds that the basis for denial of the renewal license has been corrected or abated, the applicant shall be granted a license. SECTION 4.05 Suspension The Enforcement Officer shall issue a written intent to suspend a license for a period not to exceed thirty (30) days if it determines that a licensee or an employee of a licensee has: a) violated or is not in compliance with any section of this Ordinance; or b) refused to allow an inspection of the sexually oriented business premises as authorized by this Ordinance. c) engaged in public intoxication while on duty at the sexually oriented business premises; d) knowingly permitted gambling by any person on the sexually oriented business premises. Page 14 of 24 SECTION 4.06 Revocation A. The Enforcement Officer shall issue a written statement of intent to revoke a sexually oriented business license if a cause of suspension in Article IV, Section 4.05 occurs and the license has been suspended within the preceding twelve (12) months. B. The Enforcement Officer shall issue a written statement of intent to revoke a sexually oriented business license if the Officer determines that: < , 1. a licensee gave false or misleading information in the material submitted during the application process; 2. a licensee has knowingly allowed possession, use or sale of controlled substances on the premises; 3. a licensee has knowingly allowed prostitution on the premises; 4. a licensee has knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended; 5. a licensee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sex act to occur in or on the licensed premises. This Subsection will not apply to an adult motel, unless the licensee knowingly allowed sexual activities to occur either (i) in exchange for money, or (ii) in a public place or within public view; 6. A licensee has been convicted of an offense listed in Article II, Section 2.01(dd)(1) for which the time period required has not elapsed; 7. A licensee is delinquent in payment of hotel occupancy taxes, ad valorem taxes or sales taxes related to the sexually oriented business. C. When, after the notice and hearing procedure described in Article IV, Section 4.07, the Enforcement Officer 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 becomes effective, provided that, if the conditions of Article IV, Section 4.07(B) are met, a Provisional License will be granted pursuant to that Section. If, subsequent to revocation, the Enforcement Officer finds that the basis for the revocation found in Subsections (B)(1) and (B)(4) of this Section has been corrected or abated, the applicant shall be granted a license. Page 15 of 24 SECTION 4.07 Hearing; License Denial, Suspension, Revocation; Appeal A. If the Enforcement Officer determines that facts exist for denial, suspension, or revocation of a license under this Ordinance, the Enforcement Officer shall notify the applicant or licensee (respondent) in writing of the intent to deny, suspend, or revoke the license, including the grounds therefore, by personal delivery, or by certified mail. The notification shall be directed to the most current business address on file with the Enforcement Officer. Within five (5) working days of receipt of such notice, the respondent may provide to the.City Manager, in writing, a response that shall include a statement of reasons why the license or permit should not be denied, suspended, or revoked. Within three (3) working days of the receipt of respondent's written response, the City Manager shall notify respondent in writing of the hearing date on respondent's denial, suspension, or revocation proceeding. Within ten (10) working days of the receipt of respondent's written response, the City Manager shall conduct a hearing at which respondent shall have the opportunity to be represented by counsel and present evidence and witnesses on his or her behalf. If a response is not received by the City Manager in the time stated or, if after the hearing, the City Manager finds that grounds as specified in this Ordinance exist for denial, suspension, or revocation, then such denial, suspension, or revocation shall become final five (5) days after the City Manager sends, by certified mail, written notice that the license has been denied, suspended, or revoked. Such notice shall include a statement advising the applicant or licensee of the right to appeal such decision to a court of competent jurisdiction. If the City Manager finds that no grounds exist for denial, suspension, or revocation of a license, then within five (5) days after the hearing, the City Manager shall withdraw the intent to deny, suspend, or revoke the license, and shall so notify the respondent in writing by certified mail of such action and shall contemporaneously issue the license. B. When a decision to deny, suspend, or revoke a license becomes final, the applicant or licensee (aggrieved party) whose application for a license has been denied, or whose license has been suspended or revoked, shall have the right to appeal such action to a court of competent jurisdiction. Upon the filing of any court action to appeal, challenge, restrain, or otherwise enjoin the City's enforcement of the denial, suspension, or revocation, the City shall immediately issue the aggrieved party a Provisional License. The Provisional License shall allow the aggrieved party to continue operation of the sexually oriented business or to continue employment as a sexually oriented business employee, as the case may be, and will expire upon the court's entry of a judgment on the aggrieved party's action to appeal, challenge, restrain, or otherwise enjoin the City's enforcement. Page 16 of 24 SECTION 4.08 Transfer of License A licensee shall not transfer his or her license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application. SECTION 4.09 Fees All applications for a license under this Ordinance shall be accompanied by a non-refundable application fee of four-hundred dollars ($400) for a sexually oriented business license and one-hundred dollars ($100) for an employee of a sexually oriented business license. An application shall not be considered to have been filed until the fee is paid and all information required by the application form has been submitted. Renewal of a sexually oriented business license is a non-refundable fee of $200 and renewal of an employee of a sexually oriented business license is a non-refundable fee of fifty dollars ($50). ARTICLE V LOCATION OF SEXUALLY ORIENTED BUSINESS SECTION 5.01 Location A. A sexually oriented business shall be located within the appropriate, specific zoning district as set forth in the Cibolo Zoning Ordinance. B. A person commits an offense if he establishes, operates or causes to be operated or expanded a sexually oriented businesses within 1,500 feet of: 1. A church, synagogue, mosque, temple, or building which is used primarily for religious worship and related religious activities; 2. A public or private educational facility including, but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, special education schools, junior colleges, and universities. This definition includes any building used for home schools. "School" includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school; 3. A boundary of a residential district as defined in the Cibolo Zoning Ordinance; Page 17 of 24 4. A public park or recreational area which has been designated for park or recreational activities including, but not limited to, a park, playground, nature walking trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, wilderness areas, or other similar public land within the City which is under the control, operation, or management of the City; 5. An entertainment business which is oriented primarily towards . children or family entertainment; or 6. Any premise licensed pursuant to the alcoholic beverage control regulations of the State. C. A person commits a misdemeanor if that person causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 1500 feet of another sexually oriented business. D. A person commits a misdemeanor if that person causes or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building or structure. E. For the purpose of Subsection (B), of this Section, 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 the part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a use listed in Subsection (B). The presence of a city, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this Section. F. For the purpose of Subsection (C) of this Section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects or political boundaries, from the closest exterior wall of the structure in which each business is located. ARTICLE VI ADDITIONAL REGULATIONS SECTION 6.01 Additional Regulations for Escort Agencies A. A person commits an offense if he employs at an escort agency 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. Page 18 of 24 SECTION 6.02 Additional Regulations Concerning Public Nudity (a) It shall be a misdemeanor for a person to knowingly and intentionally, in a sexually oriented business, appear in a state of nudity or engage in specified sexual activities. (b) It shall be a misdemeanor for a person to knowingly or intentionally, in a sexually oriented business, appear in a semi-nude condition, unless the person is an employee who, while semi-nude, is at least six (6) feet from any patron or customer and on a stage at least two (2) feet from the floor. (c) It shall be a misdemeanor for an employee, while semi-nude in a sexually oriented business, to receive directly any pay or gratuity from any patron or customer, or for any patron or customer to pay or give any gratuity directly to any employee, while that employee is semi-nude in a sexually oriented business. (d) It shall be a misdemeanor for an employee, while semi-nude, to knowingly and intentionally touch a customer or the clothing of a customer. SECTION 6.03 Regulations 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, DVD, 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 license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designate 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, if granted, will be conspicuously posted. 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 Enforcement Officer may waive the foregoing diagram for renewal applications if the application adopts a diagram that was previously submitted and certifies that the configuration of the'premises has not been altered since it was prepared. 2. No alteration in the configuration or location of a manager's station may be made without the prior approval of the Enforcement Officer. Page 19 of 24 3. It is the duty of the licensee of the premises to ensure that at least one (1) licensed employee is on duty and situated in each manager's station at all times that any patron is present inside the premises. 4. 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 or display equipment. If the premise has two (2) or more manager's stations designated, then the interior of the premise shall be configured in such a manner that there is an unobstructed view of each area of the premise 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. 5. It shall be the duty of the licensee to ensure that the view area specified in Subsection (4) remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks, or other materials, and, at all times, 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 permitted in the application filed pursuant to Subsection (1) of this Section. 6. No viewing rooms may be occupied by more than one (1) person at any time. 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 five (5) foot-candles as measured at the floor level. 8. It shall be the duty of the licensee to ensure that the illumination described above is maintained at all times that any patron is present in the premises. 9. No licensee shall allow openings of any kind to exist between viewing rooms or booths. 10.No person shall make or attempt to make an opening of any kind between viewing booths or rooms. 11.The licensee shall, during each business day, regularly inspect the walls between the viewing booths to determine if any openings or holes exist. 12.The licensee shall cause all floor coverings in viewing booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting. 13.The licensee shall cause all wall surfaces and ceiling surfaces in viewing booths to be constructed of, or permanently covered by, nonporous, easily cleanable material. No wood, plywood, composition board, or other porous material shall be used within forty-eight (48) inches of the floor. Page 20 of 24 B. A person having a duty under Subsection (1) through (13) of Subsection (A) herein commits a misdemeanor if he or she knowingly fails to fulfill that duty. SECTION 6.07 Prohibition Against Children in a Sexually Oriented Business A person commits a misdemeanor if the person knowingly allows a person under the age of eighteen (18) years on the premises of a sexually oriented business. SECTION 6.08 Hours of Operation No sexually oriented business, except for an adult motel, may remain open at any time between the hours of one o'clock (1:00) A.M. and eight o'clock (8:00) A.M. on weekdays and Saturdays, and one o'clock (1:00) A.M. and noon (12:00) P.M. on Sundays. SECTION 6.09 Exemptions It is a defense to prosecution under Article VI, Section 6.02 that a person appearing in a state of nudity did so in a modeling class operated: (a) by a proprietary school, licensed by the State of Texas; a college, junior college, or university supported entirely or partly by taxation; (b) by a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or (c) in a structure: (1) 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 (2) where, in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and (3) where no more than one (1) nude model is on the premises at any one time. Page 21 of 24 ARTICLE VII ENFORCEMENT SECTION 7.01 Penalties Any person, firm, corporation, agent or employee thereof who violates any provisions of this Ordinance shall be guilty of a Class A misdemeanor under the Texas Penal Code if the violation involved the location of a sexually oriented business; the application, license, or permit of a sexually oriented business; a Sign/Billboard requirement in the City's Sign/Billboard Ordinance; or any regulation regarding inspection and fees as authorized by Tex. Loc. Gov't. Code Ch. 243. Each day a sexually oriented business operates in violation of any of the regulations listed above is a separate offense. SECTION 7.02 Injunction The City may sue in District Court for an injunction to prohibit a violation of a regulation of this Ordinance that is authorized by Tex. Loc. Gov't. Code Ch. 243. SECTION 7.03 Class C Misdemeanor Any person, firm, corporation, agent or employee thereof who violates any of the other provisions of this Ordinance not governed by Tex. Loc. Gov't. Code Ch. 243 shall be guilty of a Class C misdemeanor and upon conviction thereof shall be fined an amount not to exceed two-thousand dollars ($2,000) for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. ARTICLE VIII OTHER PROVISIONS SECTION 8.01. Severability Each section and provision of this Ordinance are hereby declared to be independent divisions and subdivisions and, not withstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of said Ordinance, or the application thereof to any person or circumstance is held to be invalid, the remaining sections or provisions and the application of such sections and provisions to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions would have been passed independently of such section or provision so known to be invalid. Page 22 of 24 SECTION 8.02 Conflicting Ordinances All ordinances or parts of other ordinances in conflict with the provisions of this Ordinance are hereby repealed. SECTION 8.02 Effective Date This Ordinance shall become effective on the date of passage and the caption and penalty provision shall be published in the City's officially designated newspaper as required by state law. Passed and approved the /5 day of May 200 Jo- y SuttoP ayor r of Cibolo ATTEST: 7 Peggy Cimics, City Secretary City of Cibolo Page 23 of 24 APPR ' : DASTO e ' Susan .7 R•cha, ' Attorney City of Cibolo • Page 24 of 24