HomeMy WebLinkAboutOrdinance 20901-09-2013 ORDINANCE NO. 20901-09-2013
AN ORDINANCE AMENDING THE ZONING ORDINANCE OF THE
CITY OF FORT WORTH, BEING ORDINANCE NO. 13896, AS
AMENDED, CODIFIED AS APPENDIX "A" OF THE CODE OF THE
CITY OF FORT WORTH, BY AMENDING SECTION 5.201.
"CLASSIFICATIONS" TO ADD TO THE CLASSIFICATION OF A
SEXUALLY ORIENTED BUSINESS; AND CHAPTER 9 TO REVISE THE
DEFINITIONS RELATED TO ENTERTAINMENT, ENTERTAINMENT
PERSONNEL AND NUDITY; PROVIDING THAT THIS ORDINANCE
SHALL BE CUMULATIVE; PROVIDING A SEVERABILITY CLAUSE;
PROVIDING A PENALTY CLAUSE; PROVIDING FOR PUBLICATION
IN THE OFFICIAL NEWSPAPER; AND 'PROVIDING AN EFFECTIVE
DATE
WHEREAS, the City Council of Fort Worth finds that it has a governmental interest in
protecting the general welfare, health, safety and order of the citizens of Fort Worth; and
WHEREAS, the City Council finds that prostitution, promotion of prostitution, indecent
exposure, lewd conduct, illegal drug possession, and illegal drug dealing occur with greater
frequency at or near places where a state of nudity, semi-nudity or specified acts occur or exist;
and
WHEREAS, the City Council finds that property values for both residential and
commercial properties tend to depreciate in areas in close proximity to Sexually Oriented
Businesses: and
WHEREAS, the City Council finds that Sexually Oriented Businesses provide enhanced
opportunities for employee participation in various forms of criminal activities, including
prostitution, lewd conduct, indecent exposure, obscenity law violations, and related crimes that
are associated with sexual conduct or sexually oriented materials; and
WHEREAS, the City has a substantial public concern that its residents be protected from
criminal activity and be protected from casual sexual activity that facilities the spread of sexually
transmitted diseases; and
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WHEREAS, based on evidence concerning the adverse secondary effects of Sexually
Oriented Businesses on the community presented in public hearings to the Zoning Commission
and the City Council and made available to the both the Commission and the Council, and on
findings incorporated in the cases of City of Renton v. Playtime Theaters, Inc,, 475 U.S. 41
(1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); FIVIPBS, Inc. v. City of Dallas,
493 U.S. 215 (1990); Barnes v. Glen Theatres, Inc., 501 U.S. 560 (1991); City of Erie v. Pap's
A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000); City oj'Los Angeles v. Alameda Books, Inc,, 122 S.
Ct. 1728 (2002); Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5"Cir. 2002);
LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358 (5" Cir. 2002); Mitchell v. Commission on
Adult Entertainment, 10 F.3d 123 (3"d Cir. 1993); Schultz v. City of Cumberland, 228 F.3d 831
(7`h Cir. 2000); Hang On, Inc. v. City of Arlington, 65 F3d 1248 (5`h Cir. 1995), N.Tv
Enterprises, Inc. v. City of Houston, 352 F.3d 162 (5" Cir. 2003); 2300, Inc, v, City of Arlington,
888 S.W. 123 (Tex. App- Fort Worth, 1994): Colacurcio v. City of Kent, 163 F.3d 545 (91h Cir.
1998), cert denied, 529 U.S. 1053 (2000); Kev, Inc. v, Kitsap County, 793 F.2d 1053 (9" Cir.
1986); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1 53 (9" Cir. 2003); DLS,
Inc. v. Chattanooga, 107 F.3d 403 (6`h Cir. 1997); Jake's Ltd., Inc. v. Coates, 384 F.3d 884 (8"
Cir. 2002); DFW Vending, Inc. v. Jefferson County, 991 F.Supp. 578 (E.D. Tex 1998) and on
studies, report and/or testimony in other communities including, but not limited to, Rochester,
New York, Austin, Texas; Denver, Colorado; Minneapolis, Mimiesota; Newport News, Virginia;
Kansas City, Missouri; Dallas, Texas; Phoenix and Tucson, Arizona; Garden Grove, Los
Angeles, and Whittier, California; Adams County, Colorado; Environmental Research Group to
the American Center for Law & Justice, March 31, 1996; Manatee County, Florida; Indianapolis,
Indiana; Saint Paul, Minnesota; Las Vegas, Nevada; Ellicottville, Islip, New York City, New
Ordinance No. 20901-09-2013
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York Times Square, and Syracuse, New York; New Hanover, North Carolina; Cleveland, Ohio;
Oklahoma City, Oklahoma; Amarillo, Beaumont, Cleburne, El Paso, Fort Worth, and Houston
(1983 and 1997) Texas; Bellevue, Des Moines, and Seattle, Washington; Saint Croix County,
Wisconsin, the City Council finds:
1. Sexually Oriented Businesses tend themselves to ancillary unlawful and
unhealthy activities that are presently uncontrolled by the operators of the
establishments. Further, absent municipal regulation aimed at reducing
adverse effects there is not mechanism to make the owners of these
establishments responsible for the activities that occur on their premises.
2. Sexually Oriented Businesses offering a public place where a state of
nudity, semi-nudity or specified sexual acts occur or exist pose public
health risks by engaging in unsanitary disposition of bodily secretion there
by posing a threat of spreading infection or disease.
3. Sexually Oriented Businesses have operational characteristics, which
should be reasonably regulated in order to protect substantial
governmental concerns.
4. There is no Constitutional right for Sexually Oriented Businesses
employees in a state of nudity to touch customers. [Hang On, Inc. v. City
of Arlington, 65 F3d 1248 (5" Cir. 1995)]
5. A court has characterized the acts of Sexually Oriented Businesses
employees in a state of nudity and being paid to touch or be touched by
customers as prostitution, [People v. Hill, 2002 Ill., App. LEXIS 792 (111
App 2 Dist., Sep. 4, 2002); See also, Texas Penal Code Sections 43.01
("sexual conduct" and "sexual contact") and 43.02 ("prostitution").
WHEREAS, the Sexually Oriented Business Ordinance should be amended to clarify
that businesses who personnel or employees appear in a state of nudity to entertain or serve
customers will be classified as a sexually oriented business; and
WHEREAS, the amendment to the current ordinance provides for revised definitions of
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entertainment, ooheduomout personnel and nudity, as well as adds to the |inL of classified
Sexually Oriented Bmsiueonco u uomo)erdoJ venture whose operations include the providing,
featuring n/offering of employees vvbi|n in umtate of nudity or simulated nudity and provide live
pertonnuucms, xerv/ocn or Entertainment focoomUoruerm; and
WHEREAS, The City Council does not intend to o/omm Sexually Oriented Businesses
that are engaged ioconveying erotic messages though dance; and
WH]O8lIIA8, the City Council does not intend to prohibit any speech activities protected
by the First Amendment of the United States Constitution, but it does intend to enact u content-
neutral ordinance to address the adverse secondary effects resulting from nudity, semi-nudity,
and opodficdsexual acts utu public place; and
WHEREAS, it is not the purpose or intent of this ordinance to ncstho( or deny |uvvfu|
000esa by adults in sexually oriented rooinda|s or to deny access by the distributors and
exhibitors of sexually oriented materials to their intended market; and
WHEREAS, it is the purpose and intent of this Article to regulate moxuu|}y oriented
humioeaa establishments yo as in protect and promote the hcu}(h` safety, and general welfare of
the citizens of the City and visitors thereto, and to establish reasonable and uoifhon regulations
to prevent the concentration of sexually oriented businesses within the City; and.
WHEREAS,by adopting this ordinance, it is the intent of the City Council to balance the
hgb\ of the oi1izcom of the City to maintain u decent cuorn| society and, on the other hand, the
bgb\ of individuals to express tbcozoe\vco freely in accordance with the guidelines of the
Constitution of the United States and O,dKx\ States Supreme Court rulings pursuant thereto; and
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WHEREAS, the City Council also intends to deter property uses and activities
conducted thereon which, directly or indirectly, cause or would cause adverse effects on the
stability of the immediate neighborhood surrounding the sexually oriented business; and
WHEREAS, it is reasonably believed by the City Council that the general welfare,
health and safety of the citizens of Fort Worth will be promoted by the enactment of this
ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF' THE
CITY OF FORT WORTH,TEXAS
SECTION 1.
Article, 2 "Sexually Oriented Businesses" of Chapter 5 "Supplemental Use Standards" is
amended to add a new classification to Section 5.201 "Classifications " to read as follows:
5.201 Classifications
Sexually Oriented Businesses are classified as follows:
9. Any commercial venture whose operations include the providing, featuring or
offering of employees or entertainment personnel who appear on the premises
white in a state of nudity or simulated nudity and provide live performances,
services or Entertainment for customers.
SECTION 2.
Chapter 9 "Definitions" of Ordinance No. 13896, the Zoning Ordinance of the City of
Fort Worth, is hereby amended to revise the definitions for, entertainment, entertainment
personnel and nudity to read as follows:
Entertainment. For the purposes of chapter 5, article 2, Sexually Oriented Businesses, any
variety of live or non-Live performances, services, exhibitions or displays by
entertainment personnel which are distinguished or characterized by an emphasis on
matters exhibiting, depicting or engaging in "specified sexual activities" or while
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exposing "Specified anatomical areas," or which provide sexual gratification or sexual
stimulation to customers.
Entertainment personnel. For the purposes of chapter 5, article 2, Sexually Oriented
Businesses, any person, including persons traditionally regarded as "independent
contractors," who receives any form of compensation, including tips or gratuities, from
the operator, customers, employees or other entertainment personnel and in exchange
therefore:
a. Renders any live entertainment, service, performance, exhibition or display whatsoever, directly or indirectly, to or for a customer or the furtherance of the
business operation; and
b. Shall include but is not necessarily limited to bat-tenders, cashiers, dancers,
disc jockeys, escorts, hosts, hostesses, models, masseurs, Out call-persons,
strippers, models, waiters, waitresses, or other persons working on or about the
premises.
Nudity or a state of nudity. Appearing while any of the following portions of the human
body are less than completely and opaquely covered:
(1) The appearance of a bare buttock, vulva, anus, anal cleft, pubic region,
pubic hair, male genitals, female genitals or female breast; or
(2) A state of dress which fails to completely and opaquely cover a buttock,
vulva, anus, anal cleft, pubic region, pubic hair, male genitals, female
genitals or any part of the female breast or breasts that is situated below a
point immediately above the top of the areola of the female breast.
For purposes of this definition, body paint, body dyes, tattoos, liquid latex,
whether wet or dried and other similar substances shall not be considered
an opaque covering.
SECTION 3.
This ordinance shall be cumulative of all provisions of ordinances 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 Code, in which event
conflicting provisions of such ordinances and such Code are hereby repeated.
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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 udgment or decree of any court of competent jurisdiction, such unconstitutionality shall not
affect any of the remaining phrases, clauses, sentences, paragraphs 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, sentence, paragraph
or section.
SECTION 5.
Any person, firm, or corporation, who violates, disobeys, omits, neglects or refuses to
comply with or who resists the enforcement of any of the provisions of this ordinance shall be
fined not more than Two Thousand Dollars ($2,000.00) for each offense. Each day that a
violation exists shall constitute a separate offense.
SECTION 6.
All rights and remedies of the City of Fort Worth, Texas, are expressly saved as to any
and all violations of the provisions of Ordinances No. 3011, 13896 and 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, Texas, is hereby directed to publish the
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caption, penalty clause and effective date of 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 8.
All other provisions of the Zoning Ordinance of the City of Fort Worth not herein
amended shall remain in full force and effect.
SECTION 9.
This ordinance shall take effect upon adoption and publication as required by law.
APPROVED AS TO-FARM AND LEGALITY:
By:
Assistant City Attorney Mary J. Kay er i S etary
ADOPTED: September 10, 2013
EFFECTIVE:
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