§ 12-1142. Authority; findings of fact.

This article is the controlling authority and contains a listing of all investigated studies and findings of the city council made prior to its adoption as follows:

(1)

The city council has investigated and determined that it would be advantageous and beneficial to the city and its citizens to amend chapter 27 of the 1982 City of Rockwall Code of Ordinances by deleting sections 27-1 through 27-20 and inserting sections 27-1 through 27-26 which are incorporated in this article, establishing updated requirements for sexually oriented businesses and employees of sexually oriented businesses including licensing requirements;

(2)

There is the potential for the location of sexually oriented businesses in the city and such businesses require special supervision from the public safety agencies to protect and preserve the health, safety and welfare of the patrons of such businesses as well as the citizens of the city;

(3)

The city council finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of the casual nature;

(4)

The concern over sexually transmitted diseases is a legitimate health concern of the city which demands reasonable regulations of sexually oriented businesses to protect the health and well-being of the citizens;

(5)

Licensing has been authorized and endorsed by the state legislature, and is a legitimate and reasonable means of accountability to ensure that operators of sexually oriented businesses comply with reasonable regulations and to ensure that the operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation;

(6)

There is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property value;

(7)

It is recognized that sexually oriented businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to urban and rural blight and downgrading the quality of life in the adjacent areas;

(8)

The city council desires to: minimize and control these adverse effects and thereby protect the health, safety and welfare of the citizens; prevent increased crime; preserve the quality of life; preserve the property values and character of surrounding neighborhoods; and deter the spread of urban blight;

(9)

Convincing documented evidence and case law acknowledging the physiological and sexual distinction between male and female breasts has been reviewed;

(10)

It is not the intent of the city council to condone or legitimize the promotion of obscene material;

(11)

The city council recognizes that applicable state law prohibits the promotion of obscene materials, and the city council expects and encourages state law enforcement officials to enforce state obscenity statutes against any such illegal activities in the city;

(12)

The city council, as elected representatives of the citizens of the city, has a duty to investigate the feasibility of adopting reasonable regulations to protect the citizens of the city from activities that have adverse effects which are harmful to the health, safety and general welfare of the citizenry;

(13)

The city council has conducted public meetings concerning sexually oriented businesses;

(14)

The city council has received reports and heard testimony from staff and attorneys at such public meetings regarding the secondary effects of such businesses, including increased crime, prostitution, drug use and other illegal activities, and depreciation of property values;

(15)

The following studies and reports regarding the adverse secondary effects associated with sexually oriented businesses have been reviewed by city staff and the findings and conclusions of said studies have been presented to and reviewed by the city council:

a.

A report prepared by Richard McCleary, Ph.D. in association with Alexi Alexander, J.D., Larry Bush, M.A., and Mark Vasquez, B.A. entitled "Survey of Texas Appraisers Secondary Effects of Sexually-Oriented Businesses on Market Values";

b.

An article by Richard McCleary and Alan C. Weinstein, entitled "Do 'Off-Site' Adult Businesses Have Secondary Effects? Legal Doctrine, Social Theory, and Empirical Evidence";

c.

A report prepared by the Amarillo, Texas Planning Department entitled "A Report on Zoning and Other Methods of Regulating Adult Entertainment in Amarillo";

d.

A report prepared by the Beaumont, Texas Planning Department entitled "Regulation of Adult Uses";

e.

"A Report on the Secondary Impact of Adult Use Businesses in the City of Denver," prepared by multiple city departments for Denver City Council;

f.

A report by Richard McCleary, Ph.D., and James W. Meeker, J.D., Ph.D., entitled "Final Report to the City of Garden Grove: The Relationship Between Crime and Adult Business Operations on Garden Grove Boulevard";

g.

A report prepared by the Indianapolis, Indiana Department of Metropolitan Development Division of Planning entitled "Adult Entertainment Businesses in Indianapolis: An Analysis";

h.

"A Study of Sexually Oriented Businesses in Kansas City," by Eric Damian Kelly, FAICP, and Connie B. Cooper, FAICP, Kansas City, Missouri;

i.

A report prepared by the Los Angeles, California Department of City Planning entitled "Study of the Effects of the Concentration of Adult Entertainment Establishments in the City of Los Angeles";

j.

A report by the Newport News, Virginia Department of Planning and Development entitled "Adult Use Study";

k.

"Adult Entertainment Study," prepared by the Department of City Planning, New York City, New York;

l.

A report by the Oklahoma City, Oklahoma Community Development Department Planning Division entitled "Adult Entertainment Businesses in Oklahoma City: A Survey of Real Estate Appraisers";

m.

"Adult Business Study," by City of Phoenix, Arizona Planning Department;

n.

"Effects on Surrounding Area of Adult Entertainment Businesses in Saint Paul," City of Saint Paul Division of Planning, Department of Planning and Management, and Community Crime Prevention Project, Minnesota Cities Crime Control Planning Board;

o.

A report of the Seattle, Washington Department of Construction and Land Use entitled "Directors Report: Proposed Land Use Code Text Amendment-Adult Cabarets";

p.

A memorandum from the assistant chief of police of the City of Tucson, Arizona to the City Prosecutor entitled "Adult Entertainment Ordinance";

q.

A report of the Whittier, California Planning Department Staff entitled "Amendment to Zoning Regulations; Adult Business in C-2 Zone with Conditional Use Permit";

r.

"Everything You Always Wanted to Know about Regulating Sex Businesses," Planning Advisory Services Report, American Planning Association, Eric Damian Kelly, FAICP, and Connie B. Cooper, FAICP; and

s.

Survey of Appraisers Fort Worth & Dallas, "Effects of Land Uses on Surrounding Property Values," Duncan Associates, Eric Damien Kelly, FAICP, and Connie B. Cooper, FAICP;

(16)

Studies differentiate between the secondary effects of sexually oriented businesses that provide on-site entertainment and those that are retail facilities that sell goods intended for off-site consumption;

(17)

Based on the secondary effects studies, testimony, case law and other information before it, the city council has made the following legislative findings of fact:

a.

That certain conduct occurring on the premises of sexually oriented businesses is detrimental to the public health, safety and general welfare of the citizens of the city and, therefore, such conduct must be regulated;

b.

That sexually oriented businesses are associated with and promote prostitution, illegal drug use and other criminal activity that constitute an immediate threat to the public peace, health, morals and safety;

c.

That regulation of sexually oriented businesses is necessary because in the absence of such regulation, significant criminal activity, including prostitution, illegal drug use, disruptive behavior and high-risk sexual conduct that may result in health hazards, has historically and regularly occurred;

d.

That sexually oriented businesses have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and downgrading of property values; these deleterious effects create a legitimate concern of the city to protect property values, business interests and generally protect the city from urban blight associated with sexually oriented businesses;

e.

That sexually oriented businesses have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to urban blight;

f.

That sexually oriented videos and films shown in sexually oriented video viewing booths are available for viewing, purchase or rental in other businesses which are less harmful to the health, safety and welfare of the community, and therefore sexually oriented video viewing booths should be prohibited in favor of other venues;

g.

That the secondary effects precipitated by establishment of a sexually oriented business can be substantially mitigated by requiring separation of the sexually oriented business from residential uses and places of public assembly and from one another;

h.

That retail-only sexually oriented businesses with no on-premises entertainment have deleterious effects on surrounding commercial, residential and public properties by causing increased crime and adversely affecting property values and the marketability of surrounding properties;

i.

That, as a consequence of greater visual impacts and impacts on property values, distances separating sexually oriented businesses from residential uses, places of assembly and educational institutions and other land uses should be greater than the normal distances between commercial establishments in the city; and

j.

That certain sexually oriented businesses involving touching between employees and clients (sexual encounter center, sexually oriented entertainment studio, sexually oriented motels, sexually oriented video viewing arcades, bath houses, body painting studios, and massage parlors) promote prostitution and other criminal behavior and thus the touching between employees and clients of a sexually oriented business should be prohibited;

(18)

Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the city council, and on findings incorporated in the cases of H & A Land Corp v. City of Kennedale , 480 F.3d 336, 1 (5th Cir. Tex. 2007), cert. den. 128 S. Ct. 196, 169 L. Ed.2d 36 (U.S. 2007); ILQ Invs. v. City of Rochester , 25 F.3d 1413 (8th Cir. Minn. 1994), cert. den. 513 U.S. 1017, 115 S. Ct. 578, 130 L. Ed. 2d 493 (1994); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), City of Erie v. Pap's A.M., TDA "Kandyland," 529 U.S. 277 (2000), and City of Los Angeles v. Alameda Books, Inc., 121 S. Ct. 1223 (2001) and on studies in other communities including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and also on findings from the Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota), the city council makes the further legislative findings:

a.

That sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are generally uncontrolled by the operators of the establishments. Further, mechanisms are needed to make the owners of these establishments responsible for the activities that occur on their premises;

b.

That certain employees of some sexually oriented businesses defined in this article engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments;

c.

That sexual acts including, but not limited to, masturbation and oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semiprivate booths or cubicles for viewing films, videos, or live sex shows;

d.

That offering and providing such space encourages such activities, which creates unhealthy conditions, undesirable incidental effects and increases the possibility of the spread of communicable diseases;

e.

That persons frequent certain adult theaters, adult arcades, and other sexually oriented businesses for the purpose of engaging in sexual activity within the premises of such sexually oriented businesses;

f.

That engaging in physical contact at a sexually oriented business is not a form of expression protected by the First Amendment;

g.

That at least 50 communicable diseases may be spread by activities that occur in sexually oriented businesses including, but not limited to, syphilis; gonorrhea; human immunodeficiency virus infection (HIV-AIDS); genital herpes; hepatitis B, non-A, and non-B; amebiasis; salmonella infections; and shigella infections;

h.

That from 1999 to 2002, there has been an increasing cumulative number of reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States—25,174 in 1999; 25,522 in 2000; 25,643 in 2001; and 26,464 in 2002, compared to 1982 when only 600 cases were reported;

i.

That the number of cases of early (less than one year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982 and 45,200 through November of 1990;

j.

That the number of cases of gonorrhea in the United States reported annually remains at a high level, with more than one-half million cases being reported in 1990;

k.

That the surgeon general of the United States in his report of October 22, 1986, advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, and from an infected mother to her newborn;

l.

That according to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts;

m.

That sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities and the failure of the owners and the operators of the facilities to self-regulate those activities and maintain those facilities;

n.

That numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view adult oriented films;

o.

That numerous studies and reports have determined that areas around sexually oriented businesses experience increased criminal activity, including increased property crimes, violent crimes and sex crimes;

p.

That the findings in subsection (18)a. through o. of this section raise substantial governmental concerns;

q.

That sexually oriented businesses have operational characteristics that should be reasonably regulated in order to protect those substantial governmental concerns;

r.

That a reasonable licensing procedure is an appropriate mechanism to apply to the owners and the operators of the sexually oriented businesses. Further, such a licensing procedure will place an incentive on the operators to see that the sexually oriented business is operated in a manner consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of the city. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein;

s.

That removal of doors on adult booths and requiring sufficient lighting and visibility by a manager or third party on premises with adult booths advances a substantial governmental interest in curbing the illegal and/or unsanitary sexual activity occurring therein;

t.

That requiring licensees of sexually oriented businesses to keep information regarding current employees and certain past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments;

u.

That the disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually oriented business, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid with the prevention of the spread of sexually transmitted diseases;

v.

That it is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain employees who may engage in the conduct that this article is designed to prevent or who are likely to be witnesses to such activity;

w.

That the fact that an applicant for an adult use license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this article;

x.

That the barring of such individuals from the management of adult uses for a period of years serves as a deterrent to and prevents conduct which leads to the transmission of sexually transmitted diseases and sex related crimes; and

y.

That the general welfare, health, morals and safety of the citizens of the city will be promoted by the enactment of the ordinance from which this article is derived;

(19)

The city council desires to minimize and control the adverse secondary effects associated with sexually oriented businesses and thereby protect the health, safety and welfare of the citizenry, preserve the quality of life, preserve property values and the character of surrounding neighborhoods and to deter the spread of urban blight; and

(20)

It is not the intent of this article or any previously enacted ordinance to suppress or limit any speech activities protected by the First Amendment to the United States Constitution, but to enact a content neutral, reasonable time, place and manner regulation that effectively addresses the harmful secondary effects associated with sexually oriented businesses.