Kyle City Zoning Code
ARTICLE VIII
SEXUALLY ORIENTED BUSINESSES
§ 53-1159 Purpose and intent.
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 deleterious location and concentration of sexually oriented businesses within the city. The provisions of this article have neither the purpose or effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent or effect of this article to restrict or deny access by adults to distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this article to condone or legitimize the distribution of obscene materials.
(Ordinance 438, § 65(a), adopted 11/24/2003)
§ 53-1160 Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning.
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 or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
means 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:
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
Instruments, devices, or paraphernalia which are designed for use in connection with specified sexual activities.
A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing specified sexual activities or specified anatomical areas and still be categorized as an adult bookstore or adult video store. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an adult bookstore or adult video store as long as either two percent or more of its:
means a nightclub, bar, restaurant, or similar commercial establishment which regularly features:
Persons who appear in a state of nudity;
Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
Films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
means a hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, 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;
Offers a sleeping room for rent for a period of time that is less than ten hours; or
Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than ten hours.
means a commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
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.
means a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
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.
means and includes any of the following:
The opening or commencement of any sexually oriented business as a new business;
The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
The addition of any sexually oriented business to any other existing sexually oriented business; or
The relocation of any sexually oriented business.
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.
means the appearance of a human's bare buttock, anus, male genitals, female genitals, or female breast.
means a person in whose name a conditional use permit to operate a sexually oriented business has been issued and the person who owns the building and/or land on which the business is located, as well as the individual listed as an applicant on the application for a permit.
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.
means a business or commercial enterprise that, as one of its primary business purposes, offers any of the following for consideration:
means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.
means the male genitals in a state of sexual arousal and/or the vulva or more intimate parts of the female genitals.
means and includes any of the following:
The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
Sex acts, normal or perverted, actual or stimulated, including intercourse, oral copulation, or sodomy;
Masturbation, actual or simulated; or
Excretory functions as part of or in connection with any of the activities set forth in this definition.
means the increase in floor area occupied by the business by more than 25 percent, as the floor area existed on the effective date of the ordinance from which this article is derived, or under a certificate of occupancy therefor.
means and includes any of the following:
The sale, lease or sublease of the business;
The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
(Ordinance 438, § 65(b), adopted 11/24/2003)
§ 53-1161 Classification.
Sexually oriented businesses are classified as follows:
(1)
Adult arcades;
(2)
Adult bookstores or adult video stores;
(3)
Adult cabarets;
(4)
Adult motels;
(5)
Adult motion picture theaters;
(6)
Adult theaters;
(7)
Escort agencies;
(8)
Nude model studios; and
(9)
Sexual encounter centers.
(Ordinance 438, § 65(c), adopted 11/24/2003)
§ 53-1162 Location.
(a)
This article allows the opportunity for consideration of conditional use permits to be issued for sexually oriented businesses in construction/manufacturing CM or warehouse W zoning districts only.
(b)
The following uses may be permitted within the city by conditional use permit only in the CM zoning districts.
(c)
No use listed in subsection (b) of this section shall be established within 1,000 feet of any of the following uses in existence prior to the beginning of such business:
(1)
A church, chapel, or other regular place of religious worship;
(2)
A public or private elementary, secondary school or institute of higher learning;
(3)
A boundary of any residentially zoned district;
(4)
A public park or playground;
(5)
The property line of a lot used for residential purposes; or
(6)
Within 1,000 feet of another sexually oriented business.
(d)
For the purpose of this article, 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 a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church, public or private elementary or secondary school, institute of higher learning, nearest boundary of a public park or playground or residential lot; or from the closest exterior wall of the structure in which the business is proposed to be located to the nearest exterior wall of any other sexually oriented business.
(Ordinance 438, § 65(d), adopted 11/24/2003; Ordinance 850, § 2, adopted 6/2/2015)
§ 53-1163 Sexually explicit films and videos.
(a)
A person who operates or causes to be operated a sexually oriented business, 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, videocassette, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
(1)
The application for a conditional use permit for a sexually oriented business shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one 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 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 one foot. The building official may waive the diagram in this subsection for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises is correct and 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 an amendment to the conditional use permit.
(4)
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 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 patron is permitted access for any purpose excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two 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 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.
(6)
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 (a)(5) of this section remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection (a)(1) of this section.
(7)
No viewing room may be occupied by more than one person at any time.
(8)
The premise shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than one footcandle as measured at the floor level.
(9)
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 premises.
(Ordinance 438, § 65(e), adopted 11/24/2003)
§ 53-1164 Exemptions.
It is a defense to prosecution under this article 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; 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 transferable to a college, junior college, or university supported entirely or partly by taxation; or
(3)
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;
b.
Where, in order to participate in a class a student 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.
(Ordinance 438, § 65(f-1), adopted 11/24/2003)
§ 53-1165 Specific violations.
(a)
A person commits a misdemeanor if he:
(1)
Operates or causes to be operated a sexually oriented business without a conditional use permit. All sexually oriented businesses shall be located within the CM or W zoning districts.
(2)
Operates or causes to be operated a sexually oriented business within 1,000 feet of any of the following uses in existence prior to the beginning of such business:
(3)
Causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 1,000 feet of another sexually oriented business.
(4)
Causes or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, or the increase of floor area of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business.
(b)
For the purpose of this article, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure in which any, or any part of any, sexually oriented business is conducted, to the nearest property line of the premises of a church, public or private elementary or secondary school, institute of higher learning, the nearest boundary of a public park or playground, or residential lot.
(Ordinance 438, § 65(f-2), adopted 11/24/2003; Ordinance 850, § 3, adopted 6/2/2015)
§ 53-1166 Nonconforming uses.
(a)
Any sexually oriented business lawfully operating on the effective date of the ordinance from which this article is derived that is in violation of this article shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed two years, unless sooner terminated for any reason or voluntarily discontinued for a period of 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 or more sexually oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business is nonconforming.
(b)
A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant of a conditional use permit for a sexually oriented business, of a church, public or private elementary or secondary school, institute of higher learning, public park or playground, or a residential lot within 1,000 feet of the sexually oriented business. This provision applies only to the renewal of a valid permit, and does not apply when an application for a permit is submitted after a permit and/or license has expired or has been revoked.
(Ordinance 438, § 65(h), adopted 11/24/2003)