HomeMy WebLinkAboutOrd 342-2007 Amends Ors. No. 338-2007 Regulating SOB.pdfCITY OF ANNA, TEXAS
ORDINANCE NO. 342-2007
AN ORDINANCE OF THE CITY OF ANNA, TEXAS AMENDING ORDINANCE NO.
338-2007. REGULATING SEXUALLY ORIENTED BUSINESSES, ADDING A
PROVISION AS TO DISTANCE REQUIREMENTS APPLYING TO BUSINESSES
OPEN 24 HOURS A DAY; PROVIDING A SAVINGS CLAUSE; PROVIDING A
SEVERABILITY CLAUSE; PROVIDING A REPEALING CLAUSE; PROVIDING A
PENALTY CLAUSE NOT TO EXCEED $2,000; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, there is the potential for the location of sexually oriented businesses in the
City of Anna ("City) and such businesses require special supervision from the public
safety agencies to protect and preserve the health, safety 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 sexual liaisons of the casual
nature; and
WHEREAS, the concern over sexually transmitted diseases is a legitimate health
concern of the City which demands reasonable regulations of sexually oriented
businesses to protect the health and well-being of the citizens; and
WHEREAS, licensing has been authorized and endorsed by the Texas legislature, and
is a legitimate and reasonable means of accountability to ensure that operators of
sexually oriented businesses comply with reasonable regulations and to ensure that the
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 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 value; 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 other, thereby contributing to urban and rural blight and
downgrading the quality of life in the adjacent areas; and
WHEREAS, the City Council desires to: minimize and control these adverse effects and
thereby protect the health, safety and welfare of the citizens; prevent increased crime;
preserve the quality of life; preserve the property values and character of surrounding
neighborhoods; and deter the spread of urban blight; and
WHEREAS, convincing documented evidence and case law acknowledging the
physiological and sexual distinction between male and female breasts has been
reviewed; and
WHEREAS, it is not the intent of the City Council to condone or legitimize the promotion
of obscene material; and
WHEREAS, the City Council recognizes that applicable state law prohibits the
promotion of obscene materials, and the City Council expects and encourages state law
enforcement officials to enforce state obscenity statutes against any such illegal
activities in the City of Anna; and
WHEREAS, the City Council, as elected representatives of the citizens of the City of
Anna, has a duty to investigate the feasibility of adopting reasonable regulations to
protect the citizens of the City from activities that have adverse effects which are
harmful to the health, safety and general welfare of the citizenry; and
WHEREAS, the City Council has conducted public meetings concerning sexually
oriented businesses; and
WHEREAS, the City Council has received reports and heard testimony from staff and
attorneys at such public meetings regarding the secondary effects of such businesses,
including increased crime, prostitution, drug use and other illegal activities, and
depreciation of property values; and
WHEREAS, the following studies and reports regarding the adverse secondary effects
associated with sexually oriented businesses have been reviewed by City staff and the
findings and conclusions of said studies have been presented to, reviewed by, and
discussed by the City Council:
1) A report prepared by the Amarillo, Texas Planning Department entified "A Report on
Zoning and Other Methods of Regulating Adult Entertainment in Amarillo."
2) A report prepared by the Beaumont, Texas Planning Department entitled "Regulation
of Adult Uses."
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3) "A Report on the Secondary Impact of Adult Use Businesses in the City of Denver,"
prepared by multiple city departments for Denver City Council.
4) A report by Richard McCleary, Ph.D., and James W. Meeker, J.D., Ph.D., entitled
"Final Report to the City of Garden Grove: The Relationship Between Crime and Adult
Business Operations on Garden Grove Boulevard"
5) A report prepared by the Indianapolis, Indiana Department of Metropolitan
Development Division of Planning entitled "Adult Entertainment Businesses in
Indianapolis: An Analysis."
6) "A Study of Sexually Oriented Businesses in Kansas City," by Eric Damian Kelly,
FAICP, and Connie B. Cooper, FAICP, Kansas City, Missouri.
7) A report prepared by the Los Angeles, California Department of City Planning entitled
"Study of the Effects of the Concentration of Adult Entertainment Establishments in the
City of Los Angeles."
8) A report by the Newport News, Virginia Department of Planning and Development
entitled "Adult Use Study."
9) "Adult Entertainment Study," prepared by the Department of City Planning, New York
City, New York.
10) A report by the Oklahoma City, Oklahoma Community Development Department
Planning Division entitled "Adult Entertainment Businesses in Oklahoma City: A Survey
of Real Estate Appraisers."
11) "Adult Business Study," by City of Phoenix, Arizona Planning Department.
12) "Effects on Surrounding Area of Adult Entertainment Businesses in Saint Paul," City
of Saint Paul Division of Planning, Department of Planning and Management; and
Community Crime Prevention Project, Minnesota Cities Crime Control Planning Board.
13) A report of the Seattle, Washington Department of Construction and Land Use
entitled "Directors Report: Proposed Land Use Code Text Amendment -Adult Cabarets."
14) A memorandum from the Assistant Chief of Police of the City of Tucson, Arizona to
the City Prosecutor entitled "Adult Entertainment Ordinance."
15) A report of the Whittier, California Planning Department Staff entitled "Amendment
to Zoning Regulations; Adult Business in C-2 Zone with Conditional Use Permit."
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16) "Everything You Always Wanted to Know about Regulating Sex Businesses,"
Planning Advisory Services Report, American Planning Association, Eric Damian Kelly,
FAICP and Connie B. Cooper, FAICP.
17) Survey of Appraisers Fort Worth & Dallas, "Effects of Land Uses on Surrounding
Property Values," Duncan Associates, Eric Damien Kelly, FAICP, and Connie B.
Cooper, FAICP; and
WHEREAS, such studies differentiate between the secondary effects of sexually
oriented businesses that provide on-site entertainment and those that are retail facilities
that sell goods intended for off-site consumption; and
WHEREAS, based on the secondary effects studies, testimony, case law and other
information before it, the City Council has made the following legislative findings of fact:
A. That certain conduct occurring on the premises of sexually oriented businesses is
detrimental to the public health, safety and general welfare of the citizens of the City
and, therefore, such conduct must be regulated; and
B. That sexually oriented businesses are associated with and promote prostitution,
illegal drug use and other criminal activity that constitute an immediate threat to the
public peace, health, morals and safety; and
C. That regulation of sexually oriented businesses is necessary because in the
absence of such regulation, significant criminal activity, including prostitution, illegal
drug use, disruptive behavior and high-risk sexual conduct that may result in health
hazards, has historically and regularly occurred; and
D. That sexually oriented businesses have a deleterious effect on both the existing
businesses around them and the surrounding residential areas adjacent to them,
causing increased crime and downgrading of property values; these deleterious effects
create a legitimate concern of the City to protect property values, business interests and
generally protect the City from urban blight associated with sexually oriented
businesses; and
E. That sexually oriented businesses have serious objectionable operational
characteristics, particularly when they are located in close proximity to each other,
thereby contributing to urban blight; and
F. That sexually oriented videos and films shown in sexually oriented video viewing
booths are available for viewing, purchase or rental in other businesses which are less
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harmful to the health, safety and welfare of the community, and therefore sexually
oriented video viewing booths should be prohibited in favor of other venues; and
G. That the secondary effects precipitated by establishment of a sexually oriented
business can be substantially mitigated by requiring separation of the sexually oriented
business from residential uses and places of public assembly and from one another;
and
H. That retail -only sexually oriented businesses with no on -premises entertainment
have deleterious effects on surrounding commercial, residential and public properties by
causing increased crime and adversely affecting property values and the marketability
of surrounding properties; and
I. That at the present time there are no sexually oriented businesses known to be
operating in the City; and
J. That, as a consequence of greater visual impacts and impacts on property values,
distances separating sexually oriented businesses from residential uses, places of
assembly and educational institutions and other land uses should be greater than the
normal distances between commercial establishments in the City; and
K. That certain sexually oriented businesses involving touching between employees
and clients (sexual encounter center, sexually oriented entertainment studio, sexually
oriented motels, sexually oriented video viewing arcades, bath houses, body painting
studios, and massage pariors) promote prostitution and other criminal behavior and thus
the touching between employees and clients of a sexually oriented business should be
prohibited; and
WHEREAS, based on evidence concerning the adverse secondary effects of adult uses
on the community presented in hearings and in reports made available to the City
Council, and on findings incorporated in the cases of City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50
(1976), Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), City of Erie v. Pap's A.M.,
TDA "Kandyland," 529 U.S. 277 (2000), and City of Los Angeles v. Alameda Books,
Inc., 121 S. Ct. 1223 (2001) and on studies in other communities including, but not
limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis,
Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier,
California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland,
Ohio; and Beaumont, Texas; and also on findings from the Report of the Attorney
Ord, No. 342-2007 Amending Ord. No. 338-2007 SOB RegWations.doc 5 Ns 14-2007
General's Working Group on the Regulation of Sexually Oriented Businesses, (June 6,
1989, State of Minnesota), the City Council makes the further legislative findings:
A. That sexually oriented businesses lend themselves to ancillary unlawful and
unhealthy activities that are generally uncontrolled by the operators of the
establishments. Further, mechanisms are needed to make the owners of these
establishments responsible for the activities that occur on their premises; and
B. That certain employees of some sexually oriented businesses defined in this
ordinance engage in higher incidence of certain types of illicit sexual behavior than
employees of other establishments; and
C. That sexual acts, including, but not limited to, masturbation and oral and anal sex,
occur at sexually oriented businesses, especially those which provide private or semi-
private booths or cubicles for viewing films, videos, or live sex shows; and
D. That offering and providing such space encourages such activities, which creates
unhealthy conditions, undesirable incidental effects and increases the possibility of the
spread of communicable diseases; and
E. That persons frequent certain adult theaters, adult arcades, and other sexually
oriented businesses for the purpose of engaging in sexual activity within the premises of
such sexually oriented businesses; and
F. That engaging in physical contact at a sexually oriented business is not a form of
expression protected by the First Amendment; and
G. That at least 50 communicable diseases may be spread by activities that occur in
sexually oriented businesses, including, but not limited to, syphilis; gonorrhea; human
immunodeficiency virus infection (HIV -AIDS); genital herpes; hepatitis B, non-A, and
non-B; amebiasis; salmonella infections and shigella infections; and
H. That from 1999 to 2002 there has been an increasing cumulative number of reported
cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States
-- 25,174 in 1999; 25,522 in 2000; 25,643 in 2001; and 26,464 in 2002, compared to
1982 when only 600 cases were reported; and
1. That the number of cases of early (less than one year) syphilis in the United States
reported annually has risen, with 33,613 cases reported in 1982 and 45,200 through
November of 1990; and
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J. That the number of cases of gonorrhea in the United States reported annually
remains at a high level, with more than one-half million cases being reported in 1990;
and
K. That the surgeon general of the United States in his report of October 22, 1986,
advised the American public that AIDS and HIV infection may be transmitted through
sexual contact, intravenous drug abuse, exposure to infected blood and blood
components, and from an infected mother to her newborn; and
L. That according to the best scientific evidence, AIDS and HIV infection, as well as
syphilis and gonorrhea, are principally transmitted by sexual acts; and
W That sanitary conditions in some sexually oriented businesses are unhealthy, in part,
because the activities conducted there are unhealthy, and, in part, because of the
unregulated nature of the activities and the failure of the owners and the operators of
the facilities to self -regulate those activities and maintain those facilities; and
K That numerous studies and reports have determined that semen is found in the
areas of sexually oriented businesses where persons view "adult" oriented films; and
O. That numerous studies and reports have determined that areas around sexually
oriented businesses experience increased criminal activity, including increased property
crimes, violent crimes and sex crimes; and
P. That the findings above raise substantial governmental concerns; and
Q. That sexually oriented businesses have operational characteristics that should be
reasonably regulated in order to protect those substantial governmental concerns; and
R. That a reasonable licensing procedure is an appropriate mechanism to apply to the
owners and the operators of the sexually oriented businesses. Further, such a licensing
procedure will place an incentive on the operators to see that the sexually oriented
business is operated in a manner consistent with the health, safety and welfare of its
patrons and employees, as well as the citizens of the City. It is appropriate to require
reasonable assurances that the licensee is the actual operator of the sexually oriented
business, fully in possession and control of the premises and activities occurring
therein; and
S. That removal of doors on adult booths and requiring sufficient lighting and visibility by
a manager or third party on premises with adult booths advances a substantial
Ord. No. 342-2007 Amending Ord. No. 338-2007 SOB Regulations.doc 7 0&142007
governmental interest in curbing the illegal and/or unsanitary sexual activity occurring
therein; and
T. That requiring licensees of sexually oriented businesses to keep information
regarding current employees and certain past employees will help reduce the incidence
of certain types of criminal behavior by facilitating the identification of potential
witnesses or suspects and by preventing minors from working in such establishments;
and
U. That the disclosure of certain information by those persons ultimately responsible for
the day -today operation and maintenance of the sexually oriented business, where
such information is substantially related to the significant governmental interest in the
operation of such uses, will aid with the prevention of the spread of sexually transmitted
diseases; and
V. That it is desirable in the prevention of the spread of communicable diseases to
obtain a limited amount of information regarding certain employees who may engage in
the conduct that this ordinance is designed to prevent or who are likely to be witnesses
to such activity; and
W. That the fact that an applicant for an adult use license has been convicted of a
sexually related crime leads to the rational assumption that the applicant may engage in
that conduct in contravention of this ordinance; and
X. That the barring of such individuals from the management of adult uses for a period
of years serves as a deterrent to and prevents conduct which leads to the transmission
of sexually transmitted diseases and sex related crimes; and
Y. That the general welfare, health, morals and safety of the citizens of the City will be
promoted by the enactment of this ordinance; and
WHEREAS, the City Council desires to minimize and control the adverse secondary
effects associated with sexually oriented businesses and thereby protect the health,
safety and welfare of the citizenry, preserve the quality of fife, preserve property values
and the character of surrounding neighborhoods and to deter the spread of urban blight;
and
WHEREAS, it is not the intent of this ordinance or any previously enacted ordinance to
suppress or limit any speech activities protected by the First Amendment to the United
States Constitution, but to enact a content neutral, reasonable time, place and manner
Ord. No. 342-2007 Amending Ord. No. 338-2007 SOB Regulattom.doc a 08-142007
regulation that effectively addresses the harmful secondary effects associated with
sexually oriented businesses.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ANNA, TEXAS:
SECTION 1. All ordinances directly in conflict with this ordinance are hereby repealed to
the extent of such conflict.
SECTION 2. Incorporation of recitals and findings.
The recitals and findings preceding Section 1 of this ordinance are hereby incorporated
into this ordinance as if set forth in full for all purposes.
SECTION 3. SECTION 5.02 of City of Anna Ordinance No. 338-2007 Amended:
Section 5.02 of City of Anna Ordinance No. 338-2007 is hereby amended to read as
follows:
5.02. A person commits an offense if the person operates or
causes to be operated, within the city limits, a sexually
oriented business within 1,320 feet of any of the following
located within the city limits or its extraterritorial jurisdiction:
(1) A religious institution, church, synagogue, mosque,
temple or structure that is used primarily for religious
worship and related religious activities or real property
owned by, or for the benefit of, a religious organization that
intends to use the property for such purposes if such
ownership has been registered with the City;
(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, continuing education schools, special education
schools, junior colleges, colleges and universities; school
includes the school grounds and related athletic or other
facilities regularly visited by students;
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(3) A boundary of a zoning district zoned for residential uses
under the Zoning Ordinance of the City, or any area
designated as residential on the City's Comprehensive Plan
and maps showing future uses;
(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 trails, swimming
pool, golf course, 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 a governmental entity;
(5) The property line of a lot devoted to a residential use;
(6) An entertainment business which is oriented primarily
towards children or family entertainment;
(7) A licensed premises, licensed pursuant to the Texas
Alcoholic Beverage Code; or,
(8) A business or establishment that is open or operates 24
hours a day.
SECTION 4. That all provisions of the ordinances of the City, in conflict with the
provisions of this ordinance be, and the same are hereby, repealed, and all other
provisions of the ordinances of the City not in conflict with the provisions of this
ordinance shall remain in full force and effect.
SECTION 5. That should any word, sentence, paragraph, subdivision, clause, phrase
or section of this ordinance, be adjudged or held to be void or unconstitutional, the
same shall not affect the validity of the remaining portions of said ordinance, which shall
remain in full force and effect.
SECTION 6. That any person violating any of the provisions or terms of this ordinance
shall be subject to the same penalty as provided for in the Code of Ordinances of the
City of Anna as heretofore amended and upon conviction shall be punished by a fine
not to exceed the sum of $2,000 for each offense.
SECTION 7. An offense committed before the effective date of this ordinance is
governed by prior law and the provisions of the Ordinances of the City of Anna, as
Ord. No. 342-2007 Amending Ord. No. 338-2007 SOB Regulalions.doc 10 08-14-2007
amended, in effect when the offense was committed and the former law is continued in
effect for this purpose.
SECTION 8. That this ordinance shall take effect immediately from and after its
passage and the publication of the caption, as the law and charter in such cases
provides.
PASSED AND APPROVED by the City Council of the City of Anna, Texas this the
14th day of August , 2007.
AYE 7 NAY 0 ABSTAINED 0
ATTEST:
--
Natha Wilkison, City Secretary Kenneth Pelham, Mayor
.,ww
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