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HomeMy WebLinkAboutOrdinance 10788 ORDINANCE N0. AN ORDINANCE AMENDING THE COMPREHENSIVE ZONING ORDI- NANCE OF THE CITY OF FORT WORTH (APPENDIX "A" OF THE CODE OF THE CITY OF FORT WORTH), BY ADDING A NEW SECTION 18B, "ADULT ENTERTAINMENT CABARETS"; PROVIDING FOR DEFINITIONS; REGULATING THE LOCATION OF ADULT ENTERTAINMENT CABARETS; PROVIDING THAT NO ADULT ENTER- TAINMENT CABARET MAY BE LOCATED WITHIN 1,000 FEET OF A CHURCH, SCHOOL, PARK, RESIDENTIAL LOT, OR ANOTHER ADULT ENTERTAINMENT CABARET, OR WITHIN 1,000 FEET OF A SEXUALLY ORIENTED BUSINESS; PROVIDING FOR ADDITIONAL REGULATIONS FOR ADULT ENTERTAINMENT CABARETS; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDI- NANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR ENGROSSMENT AND ENROLLMENT; PROVIDING FOR PUBLICATION IN PAMPHLET FORM; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on December 9, 1986, the City Council of the City of Fort Worth adopted Ordinance No. 9780, which was amended by Ordinance 9957 on September 15, 1987, and which ordinances regu- late the location and operation of sexually oriented businesses in the City of Fort Worth, Texas; and WHEREAS, on November 30, ].989, the Fort Worth Court of Appeals held that a portion of said Ordinance No. 9957, in particular, Part (c) of the "state of nudity" definition, relating to female breasts was null and void in its application to adult night clubs and bars, because it violated the Texas Equal Rights Amendment, which decision was upheld by the Texas Supreme Court on October 10, 1990; and WHEREAS, the City of Fort Worth wishes to comply with the terms of said hereinabove referred to decision by enacting an additional ordinance regulating the location of "adult entertain- ment cabarets" in which the City of Fort Worth expressly states its intent not to discriminate against female topless dancers and proprietors of clubs featuring female topless dancers and further- more expressly states that any distinction made in this ordinance between men and women is based on the different physical charac- teristics between men and women and not merely because of gender; and WHEREAS, the City Council of the City of Fort Worth express- ly states its intent not to ban adult entertainment cabarets but only to regulate their location for the purpose of promoting the health, safety, morals and general welfare of the citizens of the City of Fort Worth and to establish reasonable and uniform regula- tions to prevent the adverse secondary effects that studies show that such businesses have on neighboring businesses and residen- tial property, such as reduced property values, increased law enforcement problems and general deterioration of neighborhoods where they are located; and WHEREAS, the City Council of the City of Fort Worth now desires to enact this additional ordinance and specifically finds that all previous findings made in connection with Ordinances 9780 and 9957, including but not limited to the adverse secondary effects caused by sexually oriented businesses and the existence of sufficient alternate locations within the City of Fort Worth for these businesses are applicable to this ordinance as well; 2 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: SECTION 1. That Section 10, "F", Commercial District, of the Comprehensive Zoning Ordinance (Appendix "A" of the Code of the City of Fort Worth) is hereby amended by adding the following as a permitted use to Subsection A, "Use Regulations", to read as follows: 12. Adult Entertainment Cabarets (as defined in Section 18B. SECTION 2. That the Comprehensive Zoning Ordinance (Appendix "A" of the Code of the City of Fort Worth) is hereby amended by adding a new Section 18B, "Adult Entertainment Cabarets", which section shall read as follows: Sec. 18B. ADULT ENTERTAINMENT CABARETS. A. PURPOSE AND INTENT. It is the purpose of this section to regulate adult entertainment cabarets as defined herein to pro- mote the health, safety, morals and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the continued concen- tration of adult entertainment cabarets within the City. The provisions of this section have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials. Similarly, it is not the intent nor the effect of this section to restrict or deny access by adults to adult entertain- ment cabarets protected by the First Amendment, nor to deny access by the distributors and exhibitors of adult entertainment cabarets to their intended market. B. DEFINITIONS. In this section: ADULT ENTERTAINMENT CABARET means a commercial estab- lishment which regularly features live entertainment 3 which is intended to provide s e x u a l s t i mu l a t i o n o r sexual gratification to the customers of such establish- ment. ENTERTAINMENT means live performances which are dis- tinguished or characterized by an emphasis on the exposure of "specified anatomical areas" or by an emphasis on "specified sexual activities", whether per- formed by employees, agents, contractors, or customers. The term "entertainment" shall also mean bartenders, waiters, waitresses, or other employees exposing speci- fied anatomical areas or engaging in specified sexual activities in the presence of customers. PERSON means an individual, proprietorship, partner- ship, corporation, association or other legal entity. SEXUALLY ORIENTED BUSINESS means a sexually oriented business as defined in Section 18A, Appendix A - Zoning Regulations, Code of the City of Fort Worth, Texas (1986), as amended. SPECIFIED ANATOMICAL AREAS means less than completely and opaquely covered: (a) human genitals, pubic region or pubic hair; or (b) human buttocks; or (c) female breast or breasts below a point immedi- ately above the top of the areola; or (d) human male genitals in a discernibly erect state, even if completely and opaquely covered; or (e) any combination of the foregoing. SPECIFIED SEXUAL ACTIVITIES means: (a) acts of human masturbation, sexual inter- course or sodomy, whether actual or simu- lated; or (b) fondling or other erotic touching of human genitals, pubic region or pubic hair, buttock, anus or female breast or breasts; or (c) excretory functions; or (d) any combination of the foregoing. 4 C. LOCATION OF ADULT ENTERTAINMENT CABARETS. 1. A person commits an offense if he operates or causes to be operated an adult entertainment cabaret within 1,000 feet of: (1) a church; (2) a public or private elementary or secondary school; (3) residentially zoned property; or (4) a public park. 2. A person commits an offense if he operates or causes to be operated an adult entertainment cabaret within 1,000 feet of another adult entertainment cabaret or within 1,000 feet of a sexually oriented business. 3. A person commits an offense if he causes or per- mits the operation, establishment or maintenance of more than one adult entertainment cabaret in the same building, structure or portion thereof, or the increase of floor area of any adult entertainment cabaret busi- ness in any building, structure or portion thereof con- taining another adult entertainment cabaret. 4. For the purposes of subparagraph 1. above, measure- ment 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 a part of the premises where an adult entertainment cabaret busi- ness is conducted, to the nearest property line of the premises of a church or public or private elementary or secondary school, or the nearest boundary of an affected public park or residential zoning district. 5. For the purposes of subparagraph 2. above, the distance between any two adult entertainment cabarets, or between an adult entertainment cabaret and a sexually oriented business, 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. 6. Any adult entertainment cabaret business lawfully operating prior to the effective date of this ordi- nance, that is in violation of subparagraph 1, 2 or 3 of this section, shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for one year from the effective date of this ordinance, unless sooner terminated for any reason or voluntarily 5 discontinued for a period of 30 days or more. Such nonconforming use shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more adult entertain- ment cabaret businesses are located within 1,000 feet of one another and otherwise in a permissible location, the adult entertainment cabaret business which was first established and continually operating at a partic- ular location is the conforming use the later estab- lished business is the nonconforming use. 7. An adult entertainment cabaret 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 operation of the adult entertainment cabaret, of a church, public or private elementary or secondary school, public park, or resi- dential zoning district within 1,000 feet of the adult entertainment cabaret. 8. Notwithstanding anything contained herein to the contrary, the Board of Adjustment may extend the amorti- zation period hereinabove provided to a reasonable period of time for any nonconforming adult entertain- ment cabaret upon a showing by a particular business that without an extension it will be unable to recoup its investment in the nonconforming structure. Any nonconforming adult entertainment cabaret which desires an extension must register with the Board of Adjustment as a nonconforming use no later than 60 days prior to the hereinabove referred to one-year amortization period, and must file an application for an extension of the amortization period no later than 30 days prior to the expiration of the hereinabove referred to one-year amortization period. D. ENFORCEMENT. Any person violating the terms of this ordinance, upon conviction, shall be punished by a fine not to exceed Two Thousand Dollars ($2,000) for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. SECTION 3. This ordinance shall be cumulative of all provisions of ordi- nances and of the Code of the City of Fort Worth, Texas (1986), as amended, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances and such 6 Code, in which event conflicting provisions of such ordinances and such Code are hereby repealed. SECTION 4. It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and, if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, para- graphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sen- tence, paragraph or section. SECTION 5. It is hereby declared to be the intention of the City Council that this ordinance shall not be construed to either expressly or impliedly repeal the provisions of Section 18A, "Sexually Oriented Businesses", Appendix A - Zoning Regulations, Code of the City of Fort Worth, Texas (1986), as amended, and that all of the provisions of Section 18A shall remain in full force and effect except to the extent that portions thereof were declared unconstitutional, as applied, in R. B. Williams, Citv Vending Co Inc and B R Management Corporation, Appellants v_. The City of Fort Worth, Texas, Appellee, 782 S.W.2d 290 (Tex App. - Fort Worth 1989, writ den.). 7 .= SECTION 6. All rights and remedies of the City of Fort worth, Texas, are expressly saved as to any and all violations of the provi- sions of Ordinance No. 3011 or any other ordinances affecting zoning which have accrued at the time of the effective date of this ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this ordinance but may be prosecuted until final disposition by the courts. SECTION 7. The City Secretary of the City of Fort Worth is hereby directed to engross and enroll this ordinance by copying the cap- tion, penalty clause and effective date in the minutes of the City Council and by filing the ordinance in the ordinance records of the City. SECTION 8. The City Secretary of the City of Fort worth, Texas, is here- by authorized to publish this ordinance in pamphlet form for general distribution among the public, and the operative provi- sions of this ordinance as so published shall be admissible in evidence in all courts without further proof than the production thereof, as provided in Chapter XXV, Section 3, of the Charter of the City of Fort Worth, Texas. SECTION 9. The City Secretary of the City of Fort Worth, Texas, is here- by directed to publish the caption and Sections 1, 2 and 10 of 8 this ordinance for two (2) days in the official newspaper of the City of Fort Worth, Texas, as authorized by Section 52.013, Texas Local Government Code. SECTION Z0. This ordinance shall be in full force and effect from and after its passage and publication as required by Iaw, and it is so ordained. APPROVED AS TO FORM AND LEGALITY: City Attorney Date : ~ -- ~ 3 '- q~ ADOPTED: ~,[ " ~~ EFFECTIVE: 9