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HomeMy WebLinkAboutOrdinance 2266 Ordinance Governing ADULT ENTERTAINMENT in the CITY OF NORTH RICHLAND HILLS TEXAS ORDINANCE NO. 2266 WHEREAS, the City Council finds that the passage of this Ordinance is necessary to protect the health, safety and general welfare of the citizens of this City; and WHEREAS, the City Council finds that the constitutional rights of all persons should not be infringed upon or violated; and WHEREAS, the City Council finds that the terms of this Ordinance will affectively regulate this Adult Entertainment industry without violation of civil rights. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS, that the following document is hereby passed as the ADULT ENTERTAINMENT ORDINANCE of this City. 1 ARTICLE I Section 1.01 Section 1.02 ARTICLE II Section 2.01 ARTICLE III Section 3.01 Section 3.02 ARTICLE IV Section 4.01 Section 4.02 Section 4.03 Section 4.04 Section 4.05 Section 4.06 Section 4.07 Section 4.08 Section 4.09 Section 4.10 ARTICLE V Section 5.01 Section 5.02 Section 5.03 Section 5.04 Section 5.05 ARTICLE VI Section 6.01 Section 6.02 ADULT ENTERTAINMENT Table of Contents PURPOSE AND INTENT Adoption of Preamble Purpose and Intent DEFINITIONS Definitions LOCATION OF ADULT ENTERTAINMENT ESTABLISHMENTS Location Nonconforming Uses LICENSE FOR ADULT ENTERTAINMENT ESTABLISHMENTS License Required License Application License Issuance Inspection and Maintenance of Records Expiration of License Suspension Revocation Appeal Transfer of License Exemption from Location Restrictions ADDITIONAL REGULATIONS Additional Regulations for Adult Cabaret Additional Regulations for Escort Agencies Additional Regulations for Nude Model Businesses Additional Regulations for Adult Theaters and Adult Motion Picture Theaters Regulations Pertaining to Exhibition of Sexually Explicit Films or Videos ENFORCEMENT Violation a Misdemeanor Defenses 2 ADULT ENTERTAINMENT ORDINANCE Article I PURPOSE AND INTENT Section 1.01 Adoption of Preamble The findings contained in the preamble of this ordinance are determined to be true and correct and are adopted as a part of this ordinance. Section 1.02 Purpose and Intent It is the purpose of this Ordinance to regulate Adult Entertainment Establishments 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 concentration of Adult Entertainment Establishments 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. Article II DEFINITIONS Section 2.01 Definitions A. For purposes of this ordinance, the word "he" shall be defined to include the word "she". B. Unless otherwise expressly stated, the following terms shall, for the purposes of this Ordinance, have the meanings indicated in this section. 1. Adult Entertainment Establishment means: a. An adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult theater, adult motion picture theater, escort agency, nude model business or sexual encounter center; and/or b. Any establishment whose principal business is the offering of a service or the selling, renting or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to its customers, and which is distinguished by or characterized by an 3 emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas; or whose employees or customers appear in a state of nudity. c. The term "adult entertainment" shall not be construed to include: (1) Any business operated by or employing licensed psychologists, licensed physical therapists, registered nurses, licensed athletic trainers; (2) Any business operated by or employing licensed physicians or licensed chiropractors engaged in practicing the healing arts; (3) Any retail establishment whose principal business is the offering of wearing apparel for sale to customers and does not exhibit merchandise on live models; or (4) Any activity conducted or sponsored by any Texas independent school district, licensed or accredited private school or public or private college or University. 2. Adult arcade means any place to which the public is permitted or invited wherein coin operated or slug-operated or electronically, electrically or mechanically controlled, still or motion picture machines, projectors or other image-producing devices are maintained to show images to five (5) or fewer persons per machine at anyone time, and where the images so displayed are distinguished or characterized by the depicting or describing of "specified sexual activities" or "specified anatomical areas." 3. Adult bookstore or adult video store means a commercial establishment which, as its principal business purpose, offers for sale or rental for any form of consideration anyone (1) or more of the following: a. books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides or other visual representations which depict or describe "specified sexual activities" or "specified anatomical areas"; or b. instruments" devices, or paraphernalia which are designed for use in connection with "specified sexual activities." This does not include items used for birth control or for prevention of sexually transmitted diseases. 4 4. Adult cabaret means a nightclub, bar, restaurant or similar commercial establishment which regularly features: a. persons who appear in a state of nudity; or b. live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or c. films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas." 5. Adult motel means a hotel, motel or similar commercial establishment which: a. offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas"; and has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions; or b. offers a sleeping room for rent for a period of time that is less than ten (10) hours; or c. 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. d. 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. 6. Adult Motion Picture Theater means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photograph reproductions are regularly shown which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas." 7. Adult Theater means a theater, concert hall, auditorium or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities." 5 8. Church means a building, whether situated within the City or not, in which persons regularly assemble for religious worship intended primarily for purposes connected with such worship or for propagating a particular form of religious belief. 9. Customer means any person who: a. is allowed to enter an Adult Entertainment Establishment in return for the payment of an admission fee or any other form of consideration or gratuity; or b. enters an Adult Entertainment Establishment and purchases, rents or otherwise partakes of any merchandise, goods, entertainment or other services offered therein; or c. is a member of and on the premises of an Adult Entertainment Establishment operating as a private club. 10. Employee means any person who renders any service whatsoever to the customers of an Adult Entertainment Establishment or who works in or about an Adult Entertainment Establishment and who receives compensation for such service or work from the operator or owner of the Adult Entertainment Establishment or from the customers therein. 11. Entertainment District means the Entertainment District, as set out in Ordinance No. 2257, or any subsequent resolutions or ordinances establishing the Entertainment District or Entertainment Overlay District. 12. Escort means a person who, for consideration, agrees or offers to act as a companion or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person. 13. Escort agency means a person or business association who furnishes, offers to furnish or advertises to furnish escorts its principal business purpose, for a fee, tip or other consideration. 14. Licensee means a person in whose name a license to operate an Adult Entertainment Establishment has been issued, as well as any and all individuals listed as applicants on the application for a license. 15. Licensed day care center means a facility licensed by the State of Texas, whether situated within the City or not, that provides care, training, education, custody treatment or supervision for more than six (6) children under fourteen (14) years of age, where such children are not related by blood, marriage or adoption to the owner or operator of the facility, for less 6 than twenty-four (24) hours a day, regardless of whether or not the facility is operated for a profit or charges for the services it offers. 16. Nude model business means any place where a person who appears in a state of nudity or displays "specified anatomical areas" is provided or allowed to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons who pay money or any form of consideration. 17. Nudity or a state of nudity means: a. The appearance of a human bare buttock, anus, male genitals, female genitals or female breast; or b. A state of dress which fails to opaquely cover a human buttock, anus, male genitals, female genitals or areola of the female breast. 18. Operated or causes to be operated means to cause to function or to put or keep in operation. A person may be found to be operating or causing to be operated an Adult Entertainment Establishment whether or not that person is an owner, part owner, licensee or manager of the establishment. 19. Person means an individual, proprietorship, partnership, corporation, association or other legal entity, 20. Principal means over fifty percent (50%) of customers, volume of sales, stock in trade, display areas or presentation time in any three (3) month increment period beginning from the date of issuance of a certificate of occupancy. Stock in trade shall be measured with all titles or objects available on the premises for sale or rental including those that are identical, considered a separate title or object. 21. Regularly means featuring, promoting or advertising a happening or occurrence on a recurring basis. 22. Residential district means a residentially zoned district as defined in the "Zoning" Ordinance of the Code of the City of North Richland Hills, Texas. 23. Residential use means a single family, townhouse, duplex, mobile home or multiple family use as defined in the "Zoning" Ordinance of the City of North Richland Hills, Texas. 24. Sexual Encounter Center means a business or commercial enterprise that, as its principal business purpose, offers for any form of consideration: 7 a. physical contact in the form of wrestling or tumbling between persons of the opposite sex; or b. activities between male and female persons and/or persons of the same sex when one (1) or more of the persons is in a state of nudity. 25. Specified anatomical areas means human genitals in a state of sexual arousal. 26. Specified sexual activities means and includes any of the following: a. the fondling or other erotic touching of human genitals, pubic region, pubic hair, perineum, buttocks, anus or female breasts; b. sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, sodomy or bestiality; c. masturbation, actual or simulated; or d. excretory functions. Article III LOCATION OF ADULT ENTERTAINMENT ESTABLISHMENTS Section 3.01 Location A. An Adult Entertainment Establishment shall be located within a specific zoning district as set forth in the "Zoning" Ordinance of the City of North Richland Hills, Texas. B. A person commits an offense if he establishes, operates or causes to be operated or expanded an Adult Entertainment Establishment within 1,000 feet of: 1. a church; 2. a public or private elementary or secondary school; 3. a boundary of a residential district; 4. a boundary of the Entertainment District as defined in this Ordinance; 5. a licensed day care center; 6. a public park; or 8 7. the property line of a lot devoted to a residential use as defined in this section. However, if there is a controlled access highway between the district boundary/property line and the Adult Entertainment Establishment, the Adult Entertainment Establishment must be at least five hundred (500) feet from such district boundary/property line. C. A person commits an offense if he establishes, operates or causes to be operated or expanded an Adult Entertainment Establishment within 1,000 feet of any other Adult Entertainment Establishment. D. A person commits an offense if he establishes, operates or causes to be operated or expanded an Adult Entertainment Establishment in any building, structure or portion thereof containing another Adult Entertainment Establishment. E. For the purposes of Subsection B, 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 tenant space occupied for an adult entertainment establishment to the nearest property line of the premises of a church, public or private elementary or secondary school, licensed day care center, or to the nearest boundary of an affected public park, residential district, Entertainment District or residential lot. F. For purposes of Subsection C of this section, the distance between any two (2) Adult Entertainment Establishments shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located or from the wall of the tenant space occupied as applicable. Section 3.02 Nonconforming Uses A. Any Adult Entertainment Establishment lawfully operating prior to the effective date of this ordinance, that is in violation of Section 3.01 shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed three (3) years from the effective date of this ordinance, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two (2) or more Adult Entertainment Establishments are within 1,000 feet of one another and otherwise in a permissible location, the Adult Entertainment Establishment which was first established and continually operating at a particular location is the conforming use, and the later-established business(es) is nonconforming. 9 B. Notwithstanding anything contained herein to the contrary, the License and Amortization Appeal Board may extend the amortization period hereinabove provided to a reasonable period of time for any nonconforming Adult Entertainment Establishment upon a showing by a particular business that without an extension it will be unable to recoup its investment in the nonconforming structure. 1. Any nonconforming Adult Entertainment Establishment which desires an extension must register with the License and Amortization Appeal Board as a nonconforming use no later than June 15, 1998, and must file an application for an extension of the amortization period not later than July 15, 1998. Requests for an extension of the amortization period shall be limited to one (1) application with the License and Amortization Appeal Board. 2. Section 3.02(B) shall not apply to any establishment which has undergone a change in ownership since the effective date of this ordinance. C. An Adult Entertainment Establishment lawfully operating as a conforming use after the effective date of this ordinance is not rendered a nonconforming use by the location, subsequent to the commencement of operation of the Adult Entertainment Establishment, of a church, public or private elementary or secondary school, public park, licensed day care center, Entertainment District, residential use or residential zoning district within 1,000 feet of the Adult Entertainment Establishment. ARTICLE IV LICENSE FOR ADULT ENTERTAINMENT ESTABLISHMENT Section 4.01 License Required A. A person commits an offense if he operates or causes to operate an Adult Entertainment Establishment without a valid license, issued by the City for the particular type of business. B, An application for a license must be made on a form provided by the Chief of Police. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business, The sketch or diagram need not be professionally prepared but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches (6") . C, The applicant must be qualified according to the provisions of this Ordinance. D. If a person who wishes to operate an Adult Entertainment Establishment is an individual, he must sign the application for a license as applicant. If a person who 10 wishes to operate an Adult Entertainment Establishment is other than an individual, each individual who has a twenty percent (20%) or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under Section 4.03, and each applicant shall be considered a licensee if a license is granted. E. The fact that a person possesses other types of State or City permits does not exempt him from the requirement of obtaining a license for an Adult Entertainment Establishment. F. The provisions of this article shall apply to existing Adult Entertainment Establishments beginning ninety(90) days after the effective date of this ordinance. Section 4.02 License Application A. Any person, association, firm, Partnership or corporation desiring to obtain an Adult Entertainment Establishment license shall make application on a form provided by the City Secretary or her designee. B. All applications for a license under this article shall be accompanied by a quarterly, nonrefundable application fee. The annual fee is Five Hundred Dollars ($500.00), which shall be divided into quarterly payments. Each payment shall be for One Hundred Twenty-Five Dollars ($125.00), and this payment shall be made with the application submitted prior to operating the adult business for that quarter. For subsequent quarters, the applicant must resubmit an abbreviated application form, to be provided by the City, at least thirty (30) days before the expiration date of the quarter in which the business is operating. 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. The fee of One Hundred Twenty Five Dollars ($125.00) shall be due regardless of the time of commencement of operations within any given quarter. There shall be no prorating of the required fee for an adult entertainment business that begins operations within a quarterly period, Section 4.03 License Issuance A. The Chief of Police shall approve the issuance of a license to an applicant within thirty (30) days after receipt of an application, unless the Chief of Police finds one (1) or more of the following to be true: 1. The location of the Adult Entertainment Establishment is or would be in violation of Article III of this Ordinance. 2. The applicant failed to supply all of the information requested on the application. 11 3. The applicant gave false, fraudulent or untruthful information on the application. 4. An applicant is under eighteen (18) years of age. 5. An applicant or applicant's spouse is overdue in payment to the City of taxes, fees, fines or penalties assessed against or imposed upon the applicant or the applicant's spouse in relation to an Adult Entertainment Establishment. 6. An applicant or an applicant's spouse has been convicted of a violation of a provision of this Ordinance, other than the offense of operating an Adult Entertainment Establishment without a license, within two (2) years immediately preceding the application. The fact that a conviction is being appealed shall have no effect. 7. The license fee required by this article has not been paid. 8. The applicant has not demonstrated that the owner of the Adult Entertainment Establishment owns or holds a lease for the property or the applicable portion thereof upon which the Adult Entertainment Establishment will be situated or has a legally enforceable right to acquire the same. 9. An applicant or the proposed establishment is in violation of or is not in compliance with Sections 4.04 or 4.09 of this article, 10. An applicant or an applicant's spouse has been convicted of a crime: a. Involving: (1 ) Any of the following offenses as described in Chapter 43 of the Texas Penal Code: (a) Prostitution; (b) Promotion of prostitution; (c) Aggravated promotion of prostitution; (d) Compelling prostitution; (e) Obscenity; (f) Sale, distribution or display of harmful material toa minor; 12 (g) Sexual performance by a child; (h) Possession of child pornography; (2) Any of the following offenses as described in Chapter 21 of the Texas Penal Code: (a) Public lewdness; (b) Indecent exposure; (c) Indecency with a child; (3) Sexual assault or aggravated sexual assault as described in Chapter 22 of the Texas Penal Code; (4) Incest, solicitation of a child or harboring a runaway child as described in Chapter 25 of the Texas Penal Code; or (5) Criminal attempt, conspiracy or solicitation to commit any of the foregoing offenses; b. For which: (1) Less than two (2) years have elapsed since the date of conviction, or the date of release from the terms of probation, parole or deferred adjudication or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense; (2) Less than five (5) years have elapsed since the date of conviction, or the date of release from the terms of probation, parole or deferred adjudication or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or (3) Less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two (2) or more misdemeanor offenses or combination misdemeanor offenses occurring within any twenty-four (24) month period, B. The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant's spouse. 13 C. An applicant who has been convicted or whose spouse has been convicted of an offense listed in Section 4.03(A) (10) (a) may qualify for an Adult Entertainment Establishment license only when the time period required by Section 4.03(A)(10)(b) has elapsed. D. The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date and the address of the Adult Entertainment Establishment. E. The license shall be posted in a conspicuous place at or near the entrance to the Adult Entertainment Establishment, so that it may be easily read at any time. Section 4.04 Inspection and Maintenance of Records A. An applicant or licensee shall permit representatives of the Police Department, Health Department, Fire Department and Building Inspections Division to inspect the premises of an Adult Entertainment Establishment for the purpose of ensuring compliance with the law at any time it is occupied or open for business. B. A person who operates an Adult Entertainment Establishment 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 employment applications. C. A person who operates an Adult Entertainment Establishment, or his agent or employee, commits an offense if he refuses to permit a lawful inspection of the premises by a representative of the Police Department at any time it is occupied or open for business. D. 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. Section 4.05 Expiration of License A. Each license issued after January 1, 1998, shall expire on a quarterly basis. A quarter shall be a calendar quarter, dividing the year into three (3) month increments, beginning with January, February and March as the first quarter. All Adult Entertainment licenses issued or renewed under this ordinance must reapply thirty (30) days prior to the expiration of the quarter in which the business is currently operating, B. A license may be renewed by submission to the Chief of Police or his designee of an application on the form prescribed by such official and payment of a nonrefund- 14 able renewal processing fee of One Hundred Twenty-Five ($125.00) quarterly. C. Application for renewal shall be made at least thirty (30) days before the expiration date. Section 4.06 Suspension A. The Chief of Police shall suspend a license for a period not to exceed thirty (30) days if he determines that a licensee or an employee of a licensee has: 1. Violated or is not in compliance with Sections 3.01, 4.04(B) or 4.09 of this Ordinance; 2. Engaged in public intoxication while on the Adult Entertainment Establishment premises; 3. Refused to allow an inspection of the Adult Entertainment Establishment premises as authorized by this article; or 4. Knowingly permitted gambling by any person on the Adult Entertainment Establishment premises. B. When the Chief of Police is authorized to suspend a license under this section, he shall give the licensee the opportunity to pay a reinstatement fee of Two Hundred Dollars ($200) rather than have the license suspended. 1. Payment of this reinstatement fee shall be considered an administrative admission of the violation. However, this shall not be used as an admission of guilt in a criminal prosecution under this Ordinance. 2. If the licensee does not pay the reinstatement fee before the expiration of the third working day after notification, he loses the opportunity to pay it, and the Chief of Police shall impose the suspension. 3. Each day in which a violation is permitted to continue shall constitute a separate cause for suspension. Section 4.07 Revocation A. The Chief of Police shall revoke a license if a cause of suspension in Section 4.06 occurs and the license has been suspended or a reinstatement fee paid within the preceding twelve (12) months. B. The Chief of Police shall revoke a license if he determines that: 15 1. A licensee gave false or misleading information in the material submitted to the Chief of Police during the application process; 2. A licensee or an employee has knowingly allowed possession, use or sale of controlled substances on the premises; 3. A licensee or an employee has knowingly allowed prostitution on the premises; 4. A licensee or an employee knowingly operated the Adult Entertainment Establishment during a period of time when the licensee's license was suspended; 5. A licensee has been convicted of an offense listed in Section 4.03(A) (10) for which the time period required has not elapsed; 6. On two (2) or more occasions within a twelve (12) month period, an employee of the establishment committed in or on the licensed premises an offense listed in Section 4.03(A) (10) for which a conviction has been obtained, 7. A licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or sexual contact to occur in or on the licensed premises. The term "sexual contact" shall have the same meaning as it is defined in Section 21.01, Texas Penal Code; or 8. A licensee is delinquent in payment to the City for hotel occupancy taxes, ad valorem taxes or sales taxes related to the Adult Entertainment Establ ishment. C. The fact that a conviction is being appealed shall have no effect on the revocation of the license. D. Section 4.07(B) (7) does not apply to adult motels as a ground for revoking the license, unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation or sexual contact to occur in a public place or within public view. E. When the Chief of Police revokes a license, the revocation shall continue for one (1) year, and the licensee shall not be issued an Adult Entertainment Establishment license for one (1) year from the date revocation became effective. If, subsequent to revocation, the Chief of Police finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least ninety (90) days have elapsed since the date the revocation became effective. If the license was revoked under Section 4.07(B)(5), an applicant may not be granted another 16 license until the appropriate number of years required under Section 4.03(A)(10) has elapsed. Section 4.08 Appeal A. If the Chief of Police is authorized to deny the issuance of a license, or suspend or revoke a license, the Chief of Police shall give written notice to the applicant or licensee of such intention. 1. The notice shall provide that the denial of issuance, suspension or revocation shall take effect at the expiration of the third working day after notification, unless the licensee provides a written response to the Chief of Police before the expiration of the third working day. 2. If a written response from the applicant or licensee is received by the Chief of Police before the expiration of the third working day, the suspension, denial of issuance or revocation will be stayed pending a decision by the Chief of Police. The Chief of Police shall review the response before the rendering of a decision. 3. The Chief of Police shall give written notice of this decision to the applicant or licensee. 4. The decision by the Chief of Police is effective immediately and final pending any appeal. 5. Notice shall be deemed delivered by hand delivery to a licensee, owner or employee of the establishment or by a posting of the notice at the usual business entrance of the establishment. Notice may also be sent by certified mail, return receipt requested. Such notice shall be mailed to the address listed in the license application for receipt of notice. B. Upon receipt of written notice of the denial, suspension or revocation, the licensee whose application for a license has been denied or whose license has been suspended or revoked shall have the right to appeal to an appropriate court. C. An appeal to the appropriate court must be filed within thirty (30) days after the receipt of notice of the decision of the Chief of Police or decision of the License and Amortization Appeal Board, as applicable. D. The licensee shall bear the burden of proof in court. Section 4.09 Transfer of License A. A person commits an offense if he transfers his license to another person or 17 operates an Adult Entertainment Establishment under the authority of a license at any place other than the address designated in the application. B. A person commits an offense if he counterfeits, forges, changes, defaces or alters a license. Section 4.10 Exemption From Location Restrictions A. If the Chief of Police denies the issuance of a license to an applicant because the location of the Adult Entertainment Establishment is in violation of Section 3.01, and such establishment was in operation on the effective date of the ordinance, then the applicant may, not later than ten (10) calendar days after receiving notice of the denial, file with the City Secretary a written request for an exemption from the locational restrictions. B. If the written request is filed with the City Secretary within the ten (10) day limit, a License and Amortization Appeal Board shall consider the request. The City Secretary shall set a date for the hearing within sixty (60) days from the date the written request is received. If a timely request is so filed, the existing license is deemed not to have expired until the decision of the Board on such request. C. There shall be created a License and Amortization Appeal Board. It shall have the powers described in Section 3.02(B) and the power to rule upon the appropriate disposition of applications for exemption from the location restrictions for Adult Entertainment Establ ishments. 1. The City Council shall, by majority vote, appoint a Board chairperson and four (4) other members to the License and Amortization Appeal Board. 2. Board members shall be appointed to two years staggered terms. 3. All Board members shall be residents of the City of North Richland Hills, Texas. D, The License and Amortization Appeal Board may grant an exemption from the location restrictions of Section 3.01, if it makes the following findings: 1. That the location of the Adult Entertainment Establishment will not have a detrimental effect on nearby properties or be contrary to the public safety or welfare; 2. That the location of the Adult Entertainment Establishment will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban blight; 18 3. That the location of the Adult Entertainment Establishment in the area will not be contrary to any program of neighborhood conservation, nor will it interfere with any efforts of urban renewal or restoration; and 4. That all other applicable provisions of this Ordinance will be observed. F. In making the findings specified in Section 4,1 O(E), the panel shall take into account among other things: 1. Crime statistics of the location and its 1,000 foot radius maintained by the appropriate law enforcement agency for the previous six (6) month period; 2. Tarrant Appraisal District appraisals for the location and its 1,000 foot radius, taking into account any decline or increase in property values; 3. Vacancy rates of residential, commercial or office space within the surrounding 1,000 foot radius; and 4. Any evidence regarding the award or denial of any public or private grants for neighborhood conservation, urban renewal or restoration for any property located within a 1,000 foot radius, G. The panel of the Board shall grant or deny the appeal by a majority vote. Failure to reach a majority vote approving the appeal shall result in denial. Disputes of fact shall be decided on the basis of a preponderance of the evidence. A decision by a panel of the License and Amortization Appeal Board shall be considered as a final action by the Board. H. If the panel grants an exemption to the location restrictions, the exemption is valid for one (1) year from the date of the panels action. Except as provided in Section 4.10(B), the Adult Entertainment Establishment is in violation of the location restrictions of Section 3.01 until the applicant applies for and receives another exemption. I. If the panel of the Board denies the exemption, the applicant may not reapply for an exemption until at least twelve (12) months have elapsed since the date of the panel's action. J. The grant of an exemption does not exempt the applicant from any provisions of this Ordinance other than the location restrictions. Article V ADDITIONAL REGULATIONS 19 Section 5.01 Additional Regulations for Adult Cabaret A. An employee of an adult cabaret, while appearing in a state of nudity, commits an offense if he touches a customer or the clothing of a customer. B. A customer at an adult cabaret commits an offense if he touches an employee appearing in a state of nudity or clothing of the employee. C. A licensee or employee commits an offense if he permits any customer access to an area of the premises not visible from the manager's station or not visible by a walk through of the premises without entering a closed area, excluding restrooms. Section 5.02 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. Section 5.03 Additional Regulations for Nude Model Businesses A. A person commits an offense if he employs at a nude model business any person under the age of eighteen(18) years. B. A person under the age of eighteen (18) years commits an offense if he appears in a state of nudity in or on the premises of a nude model business. It is a defense to prosecution under this subsection if the person under eighteen (18) years was in a restroom not open to public view or persons of the opposite sex. C. A person commits an offense if he appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude model business premises which can be viewed from the public right-of-way. D. A person commits an offense if he places or permits a bed, sofa or mattress in any room on the premises of a nude model business, except that a sofa may be placed in a reception room open to the public. E. A licensee or employee commits an offense if he permits any customer access to an area of the premises not visible from the manager's station or not visible by a walk through of the premises without entering a closed area, excluding restrooms. 20 Section 5.4 Additional Regulations for Adult Theaters and Adult Motion Picture Theaters A. A person commits an offense if he knowingly allows a person under the age of eighteen (18) years to appear in a state of nudity in or on the premises of an adult theater or adult motion picture theater, B. A person under the age of eighteen (18) years commits an offense if he knowingly appears in a state of nudity in or on the premises of an adult theater or adult motion picture theater. C. It is a defense to prosecution under subsections (A) and (B) of this section if the person under eighteen (18) years was in a restroom not open to public view or persons of the opposite sex. Section 5.05 Regulations Pertaining to Exhibition of Sexually Explicit Films or Videos A. A person who operates or causes to be operated an Adult Entertainment Establishment, other than an adult motel, which exhibits on the premises in a viewing room of less than 150 square feet of floor space, a film, video cassette or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements: 1. Upon application for an Adult Entertainment Establishment license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one (1) or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty-two (32) square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however each diagram should be oriented to the north, or to some designated street or object, and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches (6"). The Chief of Police may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. 2. The application shall be sworn to be true and correct by the applicant. 3. No alteration in the configuration or location of a manager's station may be made without the prior approval of the Chief of Police or his designee. 21 4. The licensee commits an offense if he permits a manager's station to be unattended by an employee at any time a customer is present on the premises. 5. The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any customer is permitted access for any purpose, excluding restrooms, Restrooms may not contain video reproduction equipment. If the premises has two (2) or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any customer is permitted access for any purpose from at least one (1) of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station. 6. The licensee commits an offense if he permits access to a customer of any area of the premises that is not visible from the manager's station for any purpose, excluding restrooms. 7. The owners, operator and any agents and employees present on the premises shall ensure that the view area specified in Subsection (5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times that any customer is present in the premises, and to ensure that no customer is permitted access to any area of the premises which has been designated as an area in which customers will not be permitted in the application filed pursuant to Subsection (1) of this section. 8. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which customers are permitted access at an illumination of not less than one (1.0) footcandle as measured at the floor level. 9. The licensee commits an offense if he permits illumination of any area of the premises to which customers have access to be less than one (1.0) footcandle. Article VI ENFORCEMENT Section 6.01 Violation a misdemeanor Any person, firm, corporation, agent or employee thereof who violates any of the provisions of this ordinance shall be guilty of a misdemeanor, and upon conviction thereof shall be fined an amount not to exceed Two Thousand Dollars and No Cents ($2,000.00) 22 for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. Section 6.02 Defenses A. It is a defense to prosecution under Sections 3.01, 4.01 and 5.03 that a person appearing in a state of nudity did so in a modeling class operated: 1. By a proprietary school licensed by the State of Texas; a college, junior college or university supported entirely or partly by taxation; 2. By a private college or university which maintains and operates educational programs in which credits are transferrable to a college, junior college or university supported entirely or partly by taxation; or 3. In a structure: a. which has no sign or other advertising visible from the exterior of the structure indicating a nude person is available for viewing; and b. where in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and c. where no more than one (1) nude model is on the premises at any one (1) time. B. It is a defense to prosecution under Sections 3.01 and 4.01 that said item of descriptive, printed, film or video material offered for sale or rental: 1. Taken as a whole, contains serious literary, artistic, political or scientific value; and 2. when taken as a whole, does not appeal to the prurient interest in sex. EFFECTIVE DATE This Ordinance shall be in full force and effect from and after its passage. PASSED and APPROVED this 22nd day of December, 1997. APPROVED: 23 ATTEST: ~cÚ~ Patricia Hutson, City Secretary APPROVED AS TO FORM AND LEGALITY: ReXMC&~Y 24