1990-063 No.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING APPENDIX B -
ZONING OF THE CODE OF ORDINANCES BY ADDING A NEW ARTICLE 28C
DEFINING AND REGULATING THE LOCATION OF SEXUALLY ORIENTED BUSI-
NESSES; PROVIDING ADDITIONAL REGULATIONS FOR ESCORT AGENCIES, NUDE
MODEL STUDIOS, ADULT MOTELS, ADULT THEATERS, AND ADULT MOTION
PICTURE THEATERS; AMENDING THE SCHEDULE OF USES TO PROHIBIT
SEXUALLY ORIENTED BUSINESSES IN CERTAIN DISTRICTS; PROVIDING FOR
A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS OF
LOCATION REQUIREMENTS; PROVIDING FOR A PENALTY IN THE MAXIMUM
AMOUNT OF $500.00 FOR ALL OTHER VIOLATIONS; PROVIDING FOR A
SEVERABILITY CLAUSE; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, after a comprehensive study, review, and discussion
of sexually oriented businesses, the Planning and Zoning Commission
has recommended that the City regulate those businesses; and
WHEREAS, on January 10 and February 28, 1990, the Commission
held public hearings on a proposed ordinance regulating sexually
oriented businesses for which notice was given as required by law
and all interested parties had an opportunity to speak; and
WHEREAS, the City Council has received the report and
recommendation of the Planning and Zoning Commission; and
WHEREAS, on April 3, 1990, the City Council held a public
hearing on the proposed sexually oriented business ordinance for
which notice was given as required by law and all interested
parties had an opportunity to speak; and
WHEREAS, based on the recommendation of the Planning and
Zoning Commission and its own study, review, and discussion, the
city Council makes the following findings regarding sexually
oriented businesses:
(1) There is a need for the regulation of businesses which
offer sexually oriented materials, activities, or services to the
public because they have been shown to have various adverse or
secondary effects on surrounding land uses and the community;
(2) This ordinance is not intended to limit a person's access
to materials or services offered by sexually oriented businesses or
to regulate the content of protected speech, but only to alleviate
the secondary effects of sexually oriented businesses;
(3) Sexually oriented businesses located too closely to
residential uses have been shown to cause a reduction in property
values of the residential properties and may adversely affect the
stability of neighborhoods;
(4) There is generally a higher incidence of illegal drug
activity, prostitution, and other criminal offenses in and near
sexually oriented businesses, which can adversely affect the
enjoyment and use of nearby churches, schools, and public parks by
the general public;
(5) The concentration of sexually oriented businesses has
been shown to cause cumulative secondary effects on surrounding
properties. Concentration can impact the ability of other types of
businesses located nearby to attract customers, resulting in the
gradual failure of nearby businesses and the general deterioration
of the neighborhood. Generally, sexually oriented businesses have
also been shown to have the ability to pay higher rental rates than
other types of businesses and therefore tend to displace other
types of businesses and attract other sexually oriented businesses;
(6) The proposed ordinance prohibits sexually oriented
businesses in neighborhood service districts because those
districts are intended to serve nearby residences with essential
goods and services, including professional offices, convenience
stores, cleaners, and other similar businesses. The types of
businesses allowed in these districts are often frequented by
families and children. Allowing sexually oriented businesses in
neighborhood service districts would discourage the types of
businesses that provide the usual neighborhood services for
residential developments;
(7) The proposed ordinance regulates adult theaters because
there is evidence that adult theaters containing private viewing
rooms or darkened areas are often used for drug use, prostitution,
and other illegal activities. Illegal sexual conduct encourages
the spread of sexually transmitted diseases, which requires the
need for greater health services. These types of activities also
historically foster thefts and assaults and other types of crimes,
all of which create a public nuisance and require greater police
services; and
(8) The location restrictions and regulations of the ordinance
leave available sufficient sites for the operation of sexually
oriented businesses so as not to unduly restrict access to the
products and services offered by those businesses; NOW, THEREFORE,
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THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That Appendix B - Zoning of the Code of Ordinances
is amended by adding a new Article 28C to read as follows:
ARTICLE 28C. SEXUALLY ORIENTED BUSINESSES
Sec. 28C-1. Purpose and Intent.
Sec. 28C-2. Definitions.
Sec. 28C-3. Classification.
Sec. 28C-4. Inspection.
Sec. 28C-5. Location of Sexually Oriented Businesses.
Sec. 28C-6. Additional Regulations for Escort Agencies.
Sec. 28C-7. Additional Regulations for Nude Model Studios.
Sec. 28C-8. Additional Regulations for Adult Theaters and
Adult Motion Picture Theaters.
Sec. 28C-9. Additional Regulations for Adult Motels.
Sec. 28C-10. Regulations Pertaining to Exhibition of
Sexually Explicit Films or Videos.
Sec. 28C-11 Enforcement.
Sec. 28C-12. Amendment of this Article.
Article 28C. SEXUALLY ORIENTED BUSINESSES
Sec. 28C-1. Purpose and Intent.
(A) It is the purpose of this article to regulate sexually
oriented businesses to promote the health, safety,
morals, and general welfare of the citizens of the City,
and to establish reasonable and uniform regulations to
prevent the concentration of sexually oriented businesses
within the City. The provisions of this article 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
article to restrict or deny access by adults to sexually
oriented materials protected by the First Amendment, or
to deny access by the distributors and exhibitors of
sexually oriented entertainment to their intended market.
(B) The location regulations of Section 28C-5 are enacted
pursuant to the authority of Chapter 211 of the Local
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Government Code. Ail other provisions of this article
are enacted pursuant to the City's police power and the
authority of Article XI, Section 5 of the Texas Constitu-
tion.
Sec. 28C-2. Definitions.
In this article:
Adult Arcade means any place to which the public is permitted
or invited wherein coin-operated or slug-operated or electronical-
ly, electrically, or mechanically controlled still or motion
picture machines, projectors, or other image-producing devices are
maintained to show images to five or fewer persons per machine at
any one time, and where the images so displayed are distinguished
or characterized by an emphasis on matter depicting, describing or
relating to "specified sexual activities" or "specified anatomical
areas."
Adult Bookstore or Adult Video Store means:
(A) A commercial establishment which as one of its principal
business purposes offers for sale or rental for any form
of consideration any one or more of the following:
(1) books, magazines, periodicals or other printed
matter, or photographs, films, motion pictures,
video cassettes or video reproductions, slides, or
other visual representations distinguished or char-
acterized by an emphasis on matter depicting,
describing or relating to "specified sexual' activi-
ties'' or "specified anatomical areas"; or
(2) instruments, devices, or paraphernalia which are
designed for use in connection with "specified
sexual activities".
(B) For the purpose of this definition, a commercial estab-
lishment shall be considered to have as "one of its
principal business purposes" the sale or rental of the
materials described in (A) above, if:
(1) The establishment makes use of a sign visible from
any public street, whether located on or off the
property of the establishment, advertising the
availability at the establishment of any material
described in (A);
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(2) The establishment devotes more than thirty percent
(30%) of its total floor area which is open to the
public to the display of items for sale or rental
that are materials described in (A);
(3) More than thirty percent (30%) of the total number
of items displayed for sale or rental by the estab-
lishment are materials described in (A); or
(4) The establishment regularly maintains on the prop-
erty for sale or rental materials described in (A)
whose total retail value is more than fifty percent
(50%) of the total retail value of all materials
kept on the premises for sale or rental.
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 distinguished or character-
ized by an emphasis on "specified sexual activities" or
the exposure of "specified anatomical areas"; or
(C) films, motion pictures, video cassettes, slides, or other
photographic reproductions which are distinguished or
characterized by an emphasis on matter depicting,
describing or relating to "specified sexual activities"
or "specified anatomical areas."
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 distinguished or characterized by an emphasis
on matter depicting, describing or relating to "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 10 hours; or
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(C) allows a tenant or occupant of a sleeping room to sub-
rent the room for a period of time that is less than 10
hours.
Adult Motion Picture Theater means a commercial establishment
where, for any form of consideration, films, motion pictures, video
cassettes, slides, or similar photographic reproductions are
regularly shown which are distinguished or characterized by an
emphasis on matter depicting, describing or relating to "specified
sexual activities" or "specified anatomical areas."
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
distinguished or characterized by an emphasis on "specified sexual
activities" or the exposure of "specified anatomical areas."
Building Official means the Building Official of the City of
Denton or his designated representative.
Day nursery or Kinderqarten means a facility that provides,
for less than twenty-four (24) hours a day, whether for profit or
not, 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.
Escort means a person who, for consideration, agrees or offers
to act as a companion, guide, or date for another person, or who,
for consideration, agrees or offers to privately model lingerie or
to privately perform a striptease for another person.
Escort Agency means a person or business association who
furnishes, offers to furnish, or advertises to furnish escorts as
one of its primary business purposes, for a fee, tip, or other
consideration.
Nude Model Studio means any place where a person who appears
in a state of nudity or displays "specified anatomical areas" is
provided to be observed, sketched, drawn, painted, sculptured,
photographed, or similarly depicted by other persons who pay money
or any form of consideration.
Nudity or a State of Nudity means:
(A) the appearance of a human bare buttock, anus, male
genitals, female genitals, or female breasts; or
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(B) a state of dress which fails to opaquely cover a human
buttock, anus, male genitals, female genitals, or areola
of the female breast.
Person means an individual, proprietorship, partnership,
corporation, association, or any other legal entity.
Public Park or Playground means the real property and
improvements thereon owned, operated, or maintained by a city,
university, or other public entity, which are designed or used for
recreational purposes and are available to the general public. The
defined terms include public swimming pools, golf courses, tennis
courts, stadiums, field houses, and similar uses and facilities.
Residential District means an agricultural, one-family, two-
family, or multi-family zoning district, or any area within a
planned development zoning district which is designated for
residential use, as shown on the approved site plan for the
district.
Residential Use means a one-family, two-family, or multi-
family dwelling, trailer camp, mobile home, or mobile home park, as
defined in Appendix B - Zoning of the Code of Ordinances.
School means a building where persons regularly assemble for
the purpose of instruction or education and includes playgrounds,
stadia, and other structures or grounds used in conjunction
therewith. The term is limited to (1) public and private schools
having a curriculum generally equivalent to elementary or secondary
schools, and (2) special educational facilities in which students
who have physical or learning disabilities receive specialized
education in lieu of attending regular classes in a kindergarten or
grades one through twelve.
Semi-Nude means a state of dress in which clothing covers no
more than the genitals, pubic region, and areola of the female
breast, as well as portions of the body covered by supporting
straps or devices.
Sexual Encounter Center means an establishment whose major
business is the furnishing of a location where customers either
congregate, associate, or consort with employees who engage in
"specified sexual activities" with or in the presence of such
customers, or who display "specified anatomical areas" in the
presence of such customers, with the intent of providing sexual
stimulation or sexual gratification to such customers.
Sexually Oriented Business means an adult arcade, adult
bookstore or adult video store, adult cabaret, adult motel, adult
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motion picture theater, adult theater, escort agency, nude model
studio or sexual encounter center.
Specified Anatomical Areas means human genitals in a state of
sexual arousal.
Specified Sexual Activities means and includes any of the
following:
(A) the fondling or other erotic touching of the human
genitals, pubic region, buttocks, anus, or female
breasts;
(B) sex acts, normal or perverted, actual or simulated,
including intercourse, oral copulation, or sodomy;
(C) masturbation, actual or simulated; or
(D) excretory functions as part of or in connection with any
of the activities set forth in (A) through (C) above.
Sec. 28C-3. Classification.
Sexually oriented businesses are classified as follows:
(A) adult arcades;
(B) adult bookstores or adult video stores;
(C) adult cabarets;
(D) adult motels;
(E) adult motion picture theaters;
(F) adult theaters;
(G) escort agencies;
(H) nude model studios; and
(I) sexual encounter centers.
Sec. 28C-4. Inspection.
(A) Any person who is operating, managing, or otherwise in
control of a sexually oriented business shall permit City
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representatives of the police department, fire depart-
ment, health department, Building Official, and code
enforcement department to inspect the premises of a
sexually oriented business for the purpose of insuring
compliance with the law at any time it is occupied or
open for business.
(B) A person who is operating, managing, or otherwise in
control of a sexually oriented business commits an
offense if the person refuses to permit a lawful inspec-
tion of the premises by City representatives of the
police department, fire department, health department,
Building Official, or code enforcement department at any
time it is occupied or open for business.
(C) The provisions of this section do not apply to areas of
an adult motel which are currently being rented by a
customer for use as a permanent or temporary habitation.
Sec. 28C-5. Location of Sexually Oriented Businesses.
(A) A person commits an offense if he operates or causes to
be operated a sexually oriented business within 1,000
feet of any of the following, whether located within or
outside the corporate limits of the City of Denton:
(1) a boundary of a residential district, as defined in
this article;
(2) the property line of a lot devoted to a residential
use, as defined in this article.
(3) a church or rectory, as defined in this Appendix;
(4) a school, as defined in this article;
(5) a day care or kindergarten, as defined in this
article; or
(6) a public park or playground, as defined in this
article, if any portion of the park or playground,
or a street abutting any portion of the park or
playground, is within or abuts a residential dis-
trict.
(B) For the purposes of Subsection (A), measurement shall be
made in a straight line, without regard to intervening
structures or objects, from the nearest portion of the
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building or structure used as a part of the premises
where a sexually oriented business is conducted, to the
nearest property line of the premises of a church or
rectory, school, day care or kindergarten, or to the
nearest boundary of an affected public park or play-
ground, residential district, or lot devoted to a
residential use.
(C) A person commits an offense if he or she operates or
establishes, or causes or permits another to operate or
establish a sexually oriented business which is located
within 1,000 feet of another sexually oriented business.
The distance between two sexually oriented businesses
shall be measured in a straight line, without regard to
intervening structures or objects, from the closest
exterior walls of the structures in which the businesses
are located.
(D) A person commits an offense if he causes or permits the
operation, establishment, or maintenance or more than one
sexually oriented business in the same building, struc-
ture, or portion thereof.
Sec. 28C-6. Additional Regulations for Escort Agencies.
(A) An escort agency shall not employ any person under the
age of 18 years.
(B) A person commits an offense if he or she acts as an
escort or agrees to act as an escort for any person under
the age of 18 years.
Sec. 28C-7. Additional Regulations for Nude Model Studios.
(A) A nude model studio shall not employ any person under the
age of 18 years.
(B) A person under the age of 18 years commits an offense if
he or she appears in a state of nudity in or on the
premises of a nude model studio. It is a defense to
prosecution under this subsection if the person under 18
years was in a rest room not open to public view or view
of persons of the opposite sex.
(C) A person commits an offense if he or she appears in a
state of nudity or knowingly allows another to appear in
a state of nudity in an area of a nude model studio
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premises which can be viewed from the public right-of-
way.
(D) A nude model studio shall not place or permit a bed,
sofa, or mattress in any room on the premises, except
that a sofa may be placed in a reception room open to the
public.
Sec. 28C-8. Additional Regulations for Adult Theaters and
Adult Motion Picture Theaters.
(A) A person commits an offense if he or she knowingly allows
a person under the age of 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 18 years commits an offense if
he or she 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 this section if the
person under 18 years was in a rest room not open to
public view or view of persons of the opposite sex.
Sec. 28C-9. Additional Regulations for Adult Motels.
(A) Evidence that a sleeping room in a hotel, motel, or
similar commercial establishment has been rented and
vacated two or more times in a period of time that is
less that 10 hours creates a rebuttable presumption that
the establishment is an adult motel as that term is
defined in this article.
(B) A person commits an offense if, as the person in control
of a sleeping room in a hotel, motel, or similar commer-
cial establishment that does not comply with the location
requirements of Section 28C-5, he or she rents or sub-
rents a sleeping room to a person and, within 10 hours
from the time the room is rented, he or she rents or sub-
rents the same sleeping room again.
(C) For purposes of Subsection (B) of this section, the terms
"rent" or "sub-rent" mean that act of permitting a room
to be occupied for any form of consideration.
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Sec. 28C-10. 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 that 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 distinguished or character-
ized by an emphasis on matter depicting "specified sexual
activities" or "specified anatomical areas," shall comply
with the following requirements:
(1) The establishment shall provide for one or more
manager's stations, none of which shall exceed 32
square feet of floor area. The manager's stations
shall be designed to provide a monitoring location
for the operators or employees of the establishment
during business hours and to exclude members of the
general public. The interior of the premises shall
be configured so that there is an unobstructed view
from a manager's station of every area of the
premises to which any patron is permitted access
for any purpose, excluding rest rooms. Rest rooms
may not contain video reproduction equipment. If
the premises has two or more manager's stations,
then the interior of the premises shall be config-
ured in such a manner that there is an unobstructed
view of each area of the premises to which any
patron is permitted access for any purpose from at
least one of the manager's stations. The view
required in this subsection must be by direct line
of sight from the manager's station.
(2) It is the duty of the owners and operator of the
premises to ensure that at least one employee is on
duty and situated in each manager's station at all
times that any patron is present inside any part of
the premises.
(3) It shall be the duty of the owners and operator,
and it shall also be the duty of any agents and
employees present in the premises, to ensure that
the view area specified in Subsection (1) remains
unobstructed by any doors, walls, merchandise,
display racks or other materials at all times that
any patron is present in the premises and to ensure
that no patron is permitted access to any area of
the establishment that does not have an unobstruct-
ed view from a manager's station.
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(4) The premises shall be equipped with overhead light-
ing fixtures of sufficient intensity to illuminate
every place in which patrons are permitted access
at an illumination of not less than one (1.0)
footcandle as measured at the floor level.
(5) It shall be the duty of the owners and operator,
and it shall also be the duty of any agents and
employees present in the premises, to ensure that
the illumination described above is maintained at
all times that any patron is present in the premis-
es.
(B) A person having a duty as provided in Subsections (1)
through (5) of Subsection (A) above commits an offense if
he or she knowingly fails to fulfill that duty.
Sec. 28C-11. Enforcement.
(A) Any person violating Section 28C-5 of this article, upon
conviction, is punishable by a fine not to exceed Two
Thousand Dollars ($2,000.00).
(B) Any person violating a provision of this article other
than Section 28C-5, upon conviction, is punishable by a
fine not to exceed Five Hundred Dollars ($500.00).
(C) It is a defense to prosecution under Section 28C-5 or
28C-7 that the 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;
(2) by a college, junior college, or university supported
entirely or partly by taxation;
(3) by a private college or university which maintains and
operates educational programs in which credits are
transferable to a college, junior college, or univer-
sity supported entirely or partly by taxation; or
(4) in a structure:
(A) which has no sign visible from the exterior of
the structure and no other advertising that
indicates a nude person is available for viewing;
and
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(B) where in order to participate in a class a stu-
dent must enroll at least three days in advance
of the class; and
(C) where no more than one nude model is on the
premises at any one time.
(D) It is a defense to prosecution under Section 28C-5 that
each item of descriptive, printed, film, or video material
offered for sale or rental, taken as a whole, contains
serious literary, artistic, political, or scientific
value.
(E) Each day on which a violation occurs shall be separate and
distinct violation.
Sec. 28C-12. Amendment of this Article.
Section 28C-5 of this article may be amended only after
compliance with the procedure required to amend a zoning ordinance.
Other sections of this article may be amended by vote of the city
council without compliance with the procedure required to amend a
zoning ordinance.
SECTION II. That Section E ("Recreational and Entertainment
Uses") of the schedule of uses of article 7 of Appendix B - Zoning
is amended by adding "Sexually Oriented Business" as a new use, to
provide as follows:
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SECTION III. If any provision, section, sentence, clause or
phrase of this ordinance, or its application to any person or set
of circumstances is for any reason held to be unconstitutional,
void, invalid, or unenforceable, the validity of the remaining
portion of this ordinance or its application to other persons or
sets of circumstances shall not be affected thereby. It is the
intent of the City Council of the City of Denton in adopting this
ordinance, that no portion of it or provision or regulation
contained in it shall become inoperative or fail by reason of any
unconstitutionality or invalidate any other portion, provision or
regulations.
SECTION IV. That this ordinance shall become effective
fourteen (14) days from the date of its passage, and the City
Secretary is hereby directed to cause the caption of this ordinance
to be published twice in the Denton Record-Chronicle, the official
newspaper of the City of Denton, Texas, within ten (10) days of the
date of its passage.
PASSED AND APPROVED this the /~day of ~~ , 1990.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
DEBRA A. DRAYOVITCH, CITY ATTORNEY
4/17/9~/draftll
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