Full opinion text
MEMORANDUM OPINION BUCHMEYER, District Judge. The law of zoning allows the will of a majority, expressed through a representative body, to control the evolution of a community and shape its character. The law of free speech, in contrast, prevents the majority will from suppressing minority expression that the majority finds intolerable. It is perhaps inevitable that the two values should clash, when a zoning ordinance attempts to limit the freedoms of those involved in expressing unpopular views. A body of first amendment/zoning jurisprudence has thus emerged, in an attempt to reconcile this potential for conflict. Because the zoning law under attack in this case — the recently enacted “sexually oriented business” ordinance of the City of Dallas — follows the dictates of this recent hybrid body of law, it is constitutional, except for the four minor exceptions discussed below. I. The Ordinance On June 12, 1986, the Dallas city attorney presented a proposed ordinance regulating sexually oriented businesses to the Dallas City Plan Commission. The Commission considered studies carried out in other cities, but did not undertake a study of Dallas. See Defendants’ Exhibit (DX) 6 (Austin), DX 7 (Indianapolis), and DX 11 (Los Angeles). The Commission did consider, however, a map of Dallas indicating areas in which sexually oriented businesses could locate under the proposed ordinance. See Transcript (DX 1) at 5, 30-33. The Commission also heard public testimony, both for and against the proposed ordinance. See id. at 11-51. The Commission voted unanimously to recommend adoption of an ordinance regulating sexually oriented businesses. The Ordinance went before the Dallas City Council on June 18,1986. The Council considered the three studies that were before the Commission, see Transcript (DX 17) at 3. The Council also considered a Dallas study comparing crime rates in two commercial sections, one with sexually oriented businesses and one without. See id. at 3 (finding crime rates 90 percent higher in adult district). After hearing public comment — unanimously in favor of the ordinance — the Council adopted it by unanimous vote. See id. at 28. Both representative bodies were in unanimous accord on the benefits of the ordinance. Legislative intent. Divining the intent of a legislative body is inherantly problematic, but the intent of both the Commission and the Council in adopting the Ordinance is transparently clear. Five of the 15 members of the Commission and four of the 11 members of the Council stated unequivocally — to no dissent — that the Ordinance was concerned solely with controlling the secondary effects of sexually oriented businesses on surrounding neighborhoods. Both groups stated that they were concerned not with the content of the speech associated with sexually oriented businesses, but with the crime, urban blight, and plummeting property values that inevitably seize the neighborhoods where such businesses locate. It is of no moment that the public speakers in favor of the Ordinance supported it almost singularly in hopes that it would indeed suppress the speech purveyed by sexually oriented businesses, as neither the Council nor the Commission relied on the specious view that pornography “causes” Various social ills and should thus be eliminated. The intent of the City in passing the Ordinance was solely to control the secondary effects of sexually oriented speech on the neighborhoods its purveyors inhabit, rather than to eliminate the speech itself. The Council’s findings. The Ordinance enacted by the City incorporated several findings. The City first found that it has authority to regulate businesses pursuant to its police power, and that licensing is a reasonable means to ensure that subject businesses comply with regulations. See Ordinance (DX 16) at 2. The Council then found that a substantial number of sexually oriented businesses require regulation to protect the “health, safety, and welfare” of the establishments’ patrons and citizens in general. Public safety authorities should regulate such businesses, the Council reasoned, because the businesses “are frequently used for unlawful sexual activities, including prostitution and sexual liasons of a casual nature” and because of the “concern over sexually transmitted disease.” Id. The Council next found that arrests for sex-related crimes near sexually oriented businesses have been “substantial,” and that there is “convincing documented evidence” that sexually oriented businesses are associated with falling property values of surrounding business and residential areas. Then, the Council found that when such businesses are located in close proximity to one another, “urban blight” and a decrease of the quality of life in adjacent areas results. Finally, the Council stated that its intent was to minimize these adverse effects, thus preserving property values in surrounding neighborhoods, detering the spread of urban blight, and decreasing crime. Id. at 5. The Council emphasized, however, that it did not intend to limit access by adults to sexually oriented material protected by the first amendment. Id. The Ordinance’s terms. Based on these findings, the Council enacted an ordinance that pervasively regulates the operation of all sexually oriented businesses in Dallas. The most important changes made by the Ordinance, which is discussed in detail with the relevant arguments, are (1) strict locational prohibitions, including the requirement that a business be at least 1,000 feet from another sexually oriented business, or a church, school, residential area, or park; (2) required licensing and inspection for all regulated businesses; (3) disqualification from licensure of any applicant who has been convicted of a specified crime, or whose spouse has been so convicted; (4) requirements that all patrons in an arcade — even if within a closed booth — be within the sight of a manager; and (5) various layout, furnishing, hiring, and lighting restrictions on regulated businesses. II. The Plaintiffs The plaintiffs in this case operate seven of the nine types of sexually oriented businesses classified in the Ordinance: (1) adult arcades; (2) adult bookstores or adult videostores; (3) adult cabarets; (4) adult motels; (5) adult motion picture theatres; (6) adult theatres; and (7) nude model studios. There are no escort agencies or sexual encounter centers that have appeared to challenge the Ordinance. Under section 41A-13(f) of the Ordinance, each business is deemed a “nonconforming use” because of its location within 1000 feet of another sexually oriented business, or a church, school, residential district, or park. The plaintiffs may continue their business for a period of three years from June 18, 1986, unless “sooner terminated for any reason or voluntarily discontinued for a period of 30 days or more.” Plaintiffs are also prohibited from “increasing, extending, or altering” their businesses unless they are changed to a conforming use. At the conclusion of the three-year period under 41A-13(f), only the “first-established and continually operating” sexually oriented business at a particular location may continue to operate — so that the dispersal of sexually oriented businesses in Dallas will be completed by June 18,1989. The Ordinance would force many plaintiffs to relocate. Many are near specified-use areas; others are within 1000 feet of one another — as are plaintiffs Deja Vu, Texas Rose, Baby Dolls Saloon, Million Dollar Saloon II, Expose, and Bachman Cafe. The relocation provisions threaten the businesses with enormous expenditures; many have great investments in their locations and the value of their property-such as S.B. Sugars, Inc., which has obtained financing on a parking lot valued at $1,000,000. Other plaintiffs face economic hardship from the Ordinance’s restrictions on their activities. Adult motels, for example, will be restricted to renting rooms for at least ten hours, rather than the two-hour period common now — thus cutting their income by up to 80 percent. The main attack in this case is, therefore, the location restriction and the three-year amortization period of section 41A-13(f). Plaintiffs also level attacks against each provision of the Ordinance that applies to them, claiming that the Ordinance’s provisions are vague and overbroad, that its licensure requirement is unconstitutional, that it vests overbroad discretion in the Chief of Police, and that the Ordinance is not sufficiently related to the City’s objectives. III. Standing As a threshold issue, the City makes the argument — apparently one considered obligatory in cases such as this — that various defendants have no standing to challenge the Ordinance. See City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 1666, 75 L.Ed.2d 675 (1983); Brown v. Edwards, 721 F.2d 1442, 1446-47 (5th Cir.1984). Moreover, the City claims that the plaintiffs’ challenges are not ripe, because there is no “real and immediate threat” of closure of their businesses. Plaintiffs do not, however, present “abstract” questions of possible injuries. There is no doubt that the Ordinance, once effective, would pervasively change the manner in which each plaintiff runs his or her business; many would close. “It is clear that a party may challenge a licensing statute regardless of whether he or she was denied a permit, or whether one has ever been sought.” Fernandes v. Limmer, 663 F.2d 619, 625 (5th Cir.1981); see also Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074, 1078 (5th Cir.1986); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969). The City’s position amounts to a claim that plaintiffs’ attacks could be asserted as a defense to an eventual state prosecution for defiance of the Ordinance. Such a forum would not, however, protect plaintiffs’ rights. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (defense in state suit “will not assure adequate vindication of constitutional rights ... a substantial loss of or impairment of freedoms of expression will occur if appellants must await the state court’s disposition”); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973); Gerstein v. Pugh, 420 U.S. 103, 108 n. 9, 95 S.Ct. 854, 860 n. 9, 43 L.Ed.2d 54 (1975) . No state prosecution is underway, and the complete determination of plaintiffs’ claims here will aid and expedíate the City’s efforts, rather than delaying and hindering them. Cf. Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975); Trainor v. Hernandez, 431 U.S. 434, 446 & n. 8, 97 S.Ct. 1911, 1919 & n. 8, 52 L.Ed.2d 486 (1977). Under the factual allegations presented, plaintiffs do have standing to challenge the Ordinance and their challenge is ripe for determination. IV. Constitutionality Regardless of the Ordinance’s focus on the secondary effects of sexually oriented businesses, there is no doubt that its terms have an incidental impact on expression that is protected by the first amendment. Because of this impact, it is appropriate to analyze the statute under the four-part test of United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). See City of Renton v. Playtime Theatres, Inc., — U.S. —, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Young v. American Mini Theatres, 427 U.S. 50, 79, 96 S.Ct. 2440, 2456, 49 L.Ed.2d 310 (1976) (Powell, J., concurring). Under the O’Brien test, regulation is justified despite its impact on first amendment interests “[1] if it is within the constitutional power of the government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on ... first amendment freedoms is no greater than is essential to the furtherance of that interest.” O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679. Incidental burdens on free expression may be analyzed under this test as time, place, and manner regulations. Renton, 106 S.Ct. at 927. The first three elements may be considered without reference to the specific requirements of the Ordinance; a determination of whether the Ordinance’s particular terms follow the least restrictive means available must, however, be made independently for each of the Ordinance’s restrictions. First, it is without doubt that the police power of the City encompasses the power to enact a zoning and regulatory ordinance such as that considered here. See ante at 1063 n. 1; see also Renton, 106 S.Ct. at 927 (similar ordinance within police power). Second, the interests the City studied and intended to further by the Ordinance— crime control, protection of property values, and prevention of urban blight, see ante at 1064 & nn. 8-9—are both important and substantial. See Young, 427 U.S. at 79, 96 S.Ct. at 2456 (Powell, J., concurring). Third, the intent of the City — garnered from complete reports of both the Plan Commission and City Council proceedings — demonstrates that the governmental interest was unrelated to the suppression of free expression. See ante at 1064-65 nn. 8-10. The legislative response to the secondary effects of sexually oriented businesses evinced a clear intent to leave alternative avenues open for expression of that genre, while lessening the effects of such businesses on the surrounding community. The first three elements of the O’Brien test are satisfied; evaluation of the fourth factor requires reference to each challenged section of the Ordinance. Locational restrictions. The element of the Ordinance that is most vigorously challenged is the one element that is least susceptible to challenge after Young and Renton. Section 41A-13 states that a sexually oriented business cannot be located within 1000 feet of (1) a church; (2) a public or private elementary or secondary school; (3) a boundary of a residential district; (4) a public park adjacent to a residential district; (5) the property line of a lot devoted to residential use; or (6) another sexually oriented business. If a regulated business is currently in violation of this section, it is deemed a nonconforming use and allowed to continue to operate for three years. A properly located regulated business is not rendered a nonconforming use by the subsequent location of a church, school, park, or residential area within 1000 feet of the business. No doubt remains after Renton and Young that dispersed zoning of sexually oriented businesses is permissible, provided that “reasonable alternative avenues of communication” exist. See Renton, 106 S.Ct. at 928; see also Schad v. Borough of Mount Ephraim, 452 U.S. 61, 75-6, 101 S.Ct. 2176, 2186, 68 L.Ed.2d 671 (1981); Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972). In Young, a Detroit zoning plan similar to that challenged here was approved, but “[t]he situation would have been quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech.” Id. 427 U.S. at 71 n. 35, 96 S.Ct. at 2453 n. 35; accord, Basiardanes v. City of Galveston, 682 F.2d 1203, 1214 (5th Cir.1982) (only “oppressive options remained to an aspiring promoter of adult films”); Olmos Realty Co. v. State, 693 S.W.2d 711, 714 (Tex.Civ.App.—San Antonio, no writ); Keego Harbor Co. v. Keego Harbor, 657 F.2d 94 (6th Cir.1981) (ordinance prohibited all theatres); Alexander v. City of Minneapolis, 698 F.2d 936, 937-38 (8th Cir.1983) (ordinance led to closing all theatres); Purple Onion, Inc., v. Jacksonville, 511 F.Supp. 1207, 1217 (N.D.Ga.1981) (sites either “unavailable, unusable, or so inaccessible to the public [that] they amount to no locations”); Renton, 106 S.Ct. at 938, 54 U.S.L.W. at 4167 (Brennan, J., dissenting) (must have “reasonable opportunity to operate”). The majority opinion in Renton, however, has made it clear that there need be only a “reasonable” opportunity to locate within the city; the Court expressly rejected findings of fact that the 520 acres left open by the ordinance was not truly “available” for regulated use. The land available for sexually oriented businesses under the Dallas ordinance is substantial, and satisfies Basiardanes and Renton. The maps considered by the City upon enacting the Ordinance detail several areas that are open to sexually oriented businesses, and it cannot be said that a “reasonable” opportunity for such businesses does not exist under the Ordinance. The plan adopted by Dallas differs markedly from the Galveston plan rejected in Basiardanes, 682 F.2d at 1214; that plan incorporated an outright ban on 85-90 percent of the city’s total area, and the remaining areas, located “among warehouses, shipyards, undeveloped areas, and swamps,” were reached by “few access roads.” Id. The Dallas plan, in contrast, permits location in several areas stretching from the inner city area to the north and south suburbs, accessed by such major thoroughfares as Interstate 35, Interstate 30, Loop 12, Highway 183, and Harry Hines Boulevard. Eight to ten percent of the city’s total area — 21,000 acres — is available. Cf. Renton, 106 S.Ct. at 930 (5 percent). See DX 15; PX 1; DX 27. There is no impediment to the locational restrictions enacted in the Ordinance. The three-year amortization clause is also challenged. Such clauses, however, are uniformly upheld. See Hart Bookstores v. Edmisten, 612 F.2d 821, 830 (4th Cir.1979), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980) (upholding six-month amortization period); Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709, 585 P.2d 1153, 1160 (1978), cert. denied sub nom. Apple Theatre v. Seattle, 441 U.S. 946, 99 S.Ct. 2166, 60 L.Ed.2d 1048 (1979) (upholding three-month amortization period); see also Note, Using Constitutional Zoning to Neutralize Adult Entertainment—Detroit to New York, 5 Fordham Urban L.J. 455, 472-74 (1977) (advocating one-year amortization period); SDJ, Inc. v. City of Houston, 636 F.Supp. 1359, 1371 (S.D.Tex.1986) (six-month period). See generally Lubbock Poster Co. v. City of Lubbock, 569 S.W.2d 935, 940-43 (Tex.Civ.App.—Amarillo, writ ref’d n.r.e.). The period allowed by the Ordinance is more generous than others that have been upheld; it is a valid mechanism used to enforce valid locational regulations. Licensure requirement. Although there is no constitutional impediment to the concept of requiring sexually oriented businesses to obtain licenses and pay reasonable fees, plaintiffs challenge the manner in which the licensing scheme is implemented and the qualifications the scheme imposes upon licensees. The challenge is sustained only as to subsections 41A-5(a)(8), 41A-5(a)(10)(B)(c), part of 41A-5(a)(10), and 41A-5(10)(A)(iii) and (vi)-(ix); the City will be enjoined from enforcing those sections, which may be easily severed from the remainder of the Ordinance. It is settled constitutional principle that any license requirement for an activity related to expression must contain narrow, objective, and definite standards to guide the licensing authority. See Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948). The City argues that the Ordinance vests no discretion in the Chief of Police, as it states that he “shall” approve the issuance of a license “unless” a factual basis for denial exists. This assertion is largely correct, but it is a simplistic view of the actual operation of two subsections of the Ordinance. First, section 41A-5(a)(8) allows the police chief to deny a license to an applicant who has been employed in a sexually oriented business on a finding that “he is unable to operate or manage a sexually oriented business premises in a peaceful and law-abiding manner” (emphasis added). Second, the Ordinance allows an applicant with a past conviction to be granted a license if the sufficient amount of time has elapsed, but section 41A-5(c) allows the police chief to grant a license to such an applicant “only if the chief of police determines that the applicant or applicant’s spouse is presently fit to operate a sexually oriented business” (emphasis added). Neither section provides sufficiently definite standards to pass constitutional muster. Both sections ask the police chief to make subjective judgments on the fitness of an applicant; neither, then, is controlled by standards “susceptible of objective measurement.” Keyishian v. Board of Regents, 385 U.S. 589, 603-04, 87 S.Ct. 675, 683-84, 17 L.Ed.2d 629 (1967). The Ordinance is silent to what conduct may reasonably be considered operation of a business in a “peaceful manner.” The Ordinance is more specific in addressing the “present fitness” of an applicant with a past conviction; in at least one case, however, the specificity itself constitutes overbroad discretion — one factor the police chief is to take into account is “the amount of time that has elapsed since his last criminal activity.” See subsection 41A-5(c)(3). Under this subsection, then, the police chief is permitted to extend indefinitely the periods specifically enumerated by the Ordinance in subsections 41A-5(a)(10)(B)(i-iii). By reference to the “extent and nature” of the applicant’s past criminal activity, id. at 41A-5(c)(l), the applicant’s age at the time of the offense, id. at 41A-5(c)(2), the applicant’s “conduct and work activity,” id. at 41A-5(c)(4), evidence of the applicant’s “rehabilitation,” id. at 41A-5(c)(5), and letters “from prosecution, law enforcement, and correctional officers,” id. at 41A-5(c)(6), then, the police chief may determine that an applicant will not be granted a license. These two subsections vest unfettered discretion in the police chief, and cannot survive constitutional scrutiny. Shorn of the two sections that vest subjective and unguided authority in the police chief, however, the largest part of the licensure section is constitutional. The findings the police chief must make in licensing sexually oriented businesses are based on objectively determinable facts, and are thus permissible. See Memet v. State, 642 S.W.2d 518, 524 (Tex.Civ.App— Houston [14th Dist.] 1982, writ ref’d n.r.e.); Schope v. State, 647 S.W.2d 675, 680 (Tex.Civ.App. —Houston [14th Dist.] 1982, writ ref’d n.r. e.). Age restrictions are factually based, see subsection 41A-5(a)(l), as are determinations of past due fees and taxes, see id. at 41A-5(a)(2), and false statements on application forms, see id. at 41A-5(a)(3), see Schope, 647 S.W.2d at 680 (upholding ordinance including such factors); Bayside Enterprises v. Carson, 470 F.Supp. 1140, 1148 (M.D.Fla.1979) (upholding unpaid tax or fee provision); Genusa, 619 F.2d at 1219-20 (upholding provision for false statements). Failure to comply with the Ordinance, subsections 41A-5(a)(4) and (9), may be objectively verified, as may approval of premises by health, fire, and building officials, subsection 41A-5(a)(6). See SDJ, Inc. v. City of Houston, 636 F.Supp. at 1368-69 (S.D.Tex.1986). Whether an applicant resides with someone who has been recently denied a license or whose license has been revoked, subsection 41A-5(1)(5), may be objectively verified. Finally, although this Court agrees that “persons with prior criminal records are not first amendment outcasts,” Fernandes v. Limmer, 663 F.2d 619, 630 (5th Cir.1981), cert. dismissed, 458 U.S. 1124, 103 S.Ct. 5, 73 L.Ed.2d 1395 (1982), denial of licensure to those convicted of certain specified crimes that are related to the crime-control intent of the law is undoubtedly permitted. Five enumerated crimes, however, are not sufficiently related to the purpose of the Ordinance to withstand scrutiny. Although thirteen of the offenses are clearly related to the purpose of the Ordinance as it was debated by the City, no findings exist to justify prohibiting one convicted of (1) a controlled substances act violation, (2) bribery, (3) robbery, (4) kidnapping, or (5) organized criminal activity from obtaining a license to operate a sexually oriented business. In the absence of such findings, this Court cannot say that the offenses enumerated are sufficiently related to the purpose of the Ordinance — either for constitutional purposes, or for purposes of the City’s authority under Texas law. See Young, 427 U.S. 50, 56 n. 11, 96 S.Ct. 2440, 2445 n. 11; see also Tex.Civ.Stat.Ann. art. 6252-13c (supp.1986) (denial of license proper only if crime “directly relates to an occupation”). Subsections 41A-5(a)(10)(A)(iii), (vi), (vii), (viii) and (ix) are thus constitutionally and statutorily invalid. The language of subsection 41A-5(a)(10) that compels the police chief to deny licensure to an applicant “under indictment or misdemeanor information” for a specified crime must also fail. Although the City undoubtedly has a legitimate interest in preventing one convicted of a specified crime from holding a license, see ante at 1073 and n. 34, denial on the basis of mere indictment or information cannot pass constitutional scrutiny. An indictment or information is not evidence of an applicant’s guilt, but merely indicates that an ex parte procedure navigated solely by a prosecutor has resulted in a finding of probable cause. See United States v. Calandra, 414 U.S. 338, 344-45, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974). The simple act of indictment or information cannot carry the heavy burden implicit in suppressing speech that is protected by the first amendment, and may implicate overbreadth in chilling protected speech. Dispositively, however, the prohibition against licensure of one under indictment or information fails the fourth O’Brien test in that less restrictive means of accomplishing the legislative goal exist. If the City intends to forestall revocation procedures against one who is eventually convicted of a specified crime by denying a license to an applicant under indictment, it may easily accomplish this purpose by amending to defer decision for a limited period of time on an application to see if an adjudication of guilt has been made during this period — requiring denial and subsequent reapplication is both inefficient, see Posner, Economic Analysis of the Law, passim (1972) (duplicative expending of administrative and legal resources), and constitutionally infirm. Plaintiffs also attack various procedural aspects of the licensure system, including the appeal process, under Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Primary to their contention is their claim that “no judicial review is provided for.” This assertion, however, is entirely meritless. Although no provision for judicial review is made, “none is needed. One denied a permit may seek a hearing, appeal that hearing, and then turn to courts of law.” Memet, 642 S.W.2d at 524; see also Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977); Harper v. Lindsay, 616 F.2d 849, 858 (5th Cir.1980). The appeal, revocation, and suspension provisions are replete with procedural protections and reviewable standards, and comport with Freedman and fundamental tenets of due process. Definitions. Vagueness challenges are imposed against the various definitions and terms utilized in the Ordinance. All terms used, however, are designed to “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute,” Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1971), in light of common understanding and practices. Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1971). Indeed, the language of many provisions has been taken from ordinances upheld by the Supreme Court, see Young, 427 U.S. at 53, 96 S.Ct. at 2244 (“specified sexual activities” and “specified anatomical areas”); City of Renton, 106 S.Ct. at 927 (“primary purpose”). Other elements of the Ordinance have been upheld by the courts. See Hart Bookstores v. Edmisten, 612 F.2d 821, 833 (4th Cir.1979), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980) (“distinguished or characterized by”; Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (“depicting or describing”); Hart Bookstores, 612 F.2d at 834 (“adult bookstore”); Stansberry v. Holmes, 613 F.2d 1285, 1290 (5th Cir.1980) (“major business,” similar to “principal business purpose” used in Ordinance); Basiardanes v. City of Galveston, 682 F.2d 1203, 1210 (5th Cir.1982) (“regularly” features); Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709, 585 P.2d 1153 (1978), cert. denied sub nom. Apple Theatre v. Seattle, 441 U.S. 946, 99 S.Ct. 2166, 60 L.Ed.2d 1048 (1979) (“adult theatre”); 15192 Thirteen Mile Road, Inc. v. City of Warren, 626 F.Supp. 803, 808 (E.D.Mich.1985) (“escort agency”); SDJ, Inc. v. City of Houston, 636 F.Supp. at 1364 (topless bars). There is no constitutional impediment to the phraseology of the Ordinance. Internal restrictions. The Ordinance requires various internal restrictions of regulated businesses — from major renovations in the design of adult arcades to the allowance of sofas in nude modeling studios. While such intrusions into the internal design of regulated businesses may seem unduly restrictive, they have consistently been upheld. See Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165, 1169 (4th Cir.1986) (requiring closed viewing booths to be within view of management “falls within the broad general limits of the police power” and satisfies O’Brien), Ellwest Stereo Theatres v. Wenner, 681 F.2d 1243, 1246 (9th Cir.1982) (same); EWAP, Inc. v. City of Los Angeles, 97 Cal.App.3d 179, 158 Cal.Rptr. 579 (1979) (same); Purple Onion, Inc. v. Jackson, 511 F.Supp. 1207, 1227 (N.D.Ga.1981) (nude modeling studios may be pervasively regulated, as they contain no element of “expression”); Upper Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389 (8th Cir.1985) (display to minors); Pollard v. Cockrell, 578 F.2d 1002, 1013 (5th Cir.1978) (permissible to distinguish between “legitimate” and regulated use of nude models). The City did indeed make sufficient findings to justify restrictions on adult motels, see ante at 4 n. 9 (statement of Ms. Ragsdale), cf. Patel & Patel v. South San Francisco, 606 F.Supp. 666, 671 (N.D.Cal.1985) (no findings); moreover, recent pronouncements of state power to regulate morality and private consensual sexual activity are probably broad enough to encompass regulations on adult motels. See Bowers v. Hardwick, — U.S.—, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (no privacy right to consensual homosexual, and, arguably, heterosexual sodomy); Baker v. Wade, 769 F.2d 289 (5th Cir.1985) (en banc), cert. denied, — U.S.—, 106 S.Ct. 3338, 92 L.Ed.2d 742 (1986). As the City has made the requisite findings, the various restrictions on the operation, layout, design, and furnishing of regulated businesses must be upheld. See Young, 427 U.S. at 56 nn. 11-12, 96 S.Ct. at 2445 nn. 11-12. Summary. Only the four subsections described above — 41A-5(a)(8), 41A-5(c), the “under indictment or information” language of 41A-5(a)(10), and the five unrelated crimes of 41A-5(a)(10) — fail to satisfy the fourth prong of the O’Brien test. The ordinance is thus constitutional, with the above minor exceptions — which are severable, see section 41A-23(5), and may be cured by amendment. V. Conclusion Efforts to restrict the accessability of sexually oriented speech have long been part of Western legal tradition, as has the principle that expression should be free and unfettered. The reconciliation of the competing values implicit in these two longstanding concepts inevitably shifts over time, in response to technological change and evolving conceptions of the legality of legislating majoritarian conceptions of morality. Restrictions in the place and manner of sexually oriented expression through zoning regulation is the most recent jurisprudential attempt to allow majority community structure to coexist with minority expression; the sexually oriented business ordinance enacted by the City follows the substantive dictates of this body of law, and must be upheld. APPENDIX A CHAPTER 41A. SEXUALLY ORIENTED BUSINESSES SEC. 41A-1. Purpose and intent. SEC. 41A-2. Definitions. SEC. 41A-3. Classification. SEC. 41A-4. License required. SEC. 41A-5. Issuance of license. SEC. 41A-6. Fees. SEC. 41A-7. Inspection. SEC. 41A-8. Expiration of license. SEC. 41A-9. Suspension. SEC. 41A-10. Revocation. SEC. 41A-11. Appeal. SEC. 41A-12. Transfer of license. SEC. 41A-13. Location of sexually oriented businesses. SEC. 41A-14. Exemption from location restrictions. SEC. 41A-15. Additional regulations for escort agencies. SEC. 41A-16. Additional regulations for nude model studios. SEC. 41A-17. Additional regulations for adult theaters and adult motion picture theaters. SEC. 41A-18. Additional regulations for adult motels. SEC. 41A-19. Regulations pertaining to exhibition of sexually explicit films or videos. SEC. 41A-20. Display of sexually explicit material to minors. SEC. 41A-21. Enforcement. SEC. 41A-22. Injunction. SEC. 41A-23. Amendment of this chapter. CHAPTER 41A. SEXUALLY ORIENTED BUSINESSES SEC. 41A-1. PURPOSE AND INTENT. (a) It is the purpose of this chapter 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 continued concentration of sexually oriented businesses within the city. The provisions of this chapter 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 chapter 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) It is the intent of the city council that the locational regulations of Section 41A-13 of this chapter are promulgated pursuant to Article 2372w, Revised Civil Statutes of Texas, as they apply to nude model studios and sexual encounter centers only. It is the intent of the city council that all other provisions of this chapter are promulgated pursuant to the Dallas City Charter and Article 1175, Revised Civil Statutes of Texas. (Ord. 19196) SEC. 41A-2. DEFINITIONS. In this chapter: (1) ADULT ARCADE 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.” (2) ADULT BOOKSTORE or ADULT VIDEO STORE 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: (A) 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 (B) instruments, devices, or paraphernalia which are designed for use in connection with “specified sexual activities.” (3) 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 characterized by the exposure of “specified anatomical areas” or by “specified sexual activities”; or (C) films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.” (4) 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 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; or (B) offers a sleeping room for rent for a period of time that is less than 10 hours; or (C) allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours. (5) 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 characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.” (6) 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 characterized by the exposure of “specified anatomical areas” or by “specified sexual activities.” (7) CHIEF OF POLICE means the chief of police of the city of Dallas or his designated agent. (8) ESCORT 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. (9) 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. (10) ESTABLISHMENT means and includes any of the following: (A) the opening or commencement of any sexually oriented business as a new business; (B) the conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; (C) the addition of any sexually oriented business to any other existing sexually oriented business; or (D) the relocation of any sexually oriented business. (11) LICENSEE means a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license. (12) 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. (13) NUDITY or a STATE OF NUDITY means the appearance of a human bare buttock, anus, male genitals, female genitals, or female breast. (14) PERSON means an individual, proprietorship, partnership, corporation, association, or other legal entity. (15) SEMI-NUDE means a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices. (16) SEXUAL ENCOUNTER CENTER means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration: (A) physical contact in the form of wrestling or tumbling between persons of the opposite sex; or (B) activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nude. (17) SEXUALLY ORIENTED BUSINESS 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. (18) SPECIFIED ANATOMICAL AREAS means human genitals in a state of sexual arousal. (19) SPECIFIED SEXUAL ACTIVITIES means and includes any of the following: (A) the fondling or other erotic touching of 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. (20) SUBSTANTIAL ENLARGEMENT of a sexually oriented business means the increase in floor area occupied by the business by more than 25 percent, as the floor area exists on June 18, 1986. (21) TRANSFER OF OWNERSHIP OR CONTROL of a sexually oriented business means and includes any of the following: (A) the sale, lease, or sublease of the business; (B) the transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or (C) 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. (Ord. 19196) SEC. 41A-3. 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. (Ord. 19196) SEC. 41A-4. LICENSE REQUIRED. (a) A person commits an offense if he operates a sexually oriented business without a valid license, issued by the city for the particular type of business. (b) An application for a license must be made on a form provided by the chief of police. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. Applicants who must comply with Section 41A-19 of this chapter shall submit a diagram meeting the requirements of Section 41A-19. (c) The applicant must be qualified according to the provisions of this chapter and the premises must be inspected and found to be in compliance with the law by the health department, fire department, and building official. (d) If a person who wishes to operate a sexually oriented business is an individual, he must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a 20 percent or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under Section 41A-5 and each applicant shall be considered a licensee if a license is granted. (e) The fact that a person possesses a valid theater license, dance hall license, or public house of amusement license does not exempt him from the requirement of obtaining a sexually oriented business license. A person who operates a sexually oriented business and possesses a theater license, public house of amusement license or dance hall license shall comply with the requirements and provisions of this chapter as well as the requirements and provisions of Chapter 46‘ and Chapter 14 of this code when applicable. (Ord. 19196) SEC. 41A-5. ISSUANCE OF LICENSE. (а) The chief of police shall approve the issuance of a license by the assessor and collector of taxes to an applicant within 30 days after receipt of an application unless he finds one or more of the following to be true: (1) An applicant is under 18 years of age. (2) An applicant or an applicant’s spouse is overdue in his payment to the city of taxes, fees, fines, or penalties assessed against him or imposed upon him in relation to a sexually oriented business. (3) An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form. (4) An applicant or an applicant’s spouse has been convicted of a violation of a provision of this chapter, other than the offense of operating a sexually oriented business without a license, within two years immediately preceding the application. The fact that a conviction is being appealed shall have no effect. (5) An applicant is residing with a person who has been denied a license by the city to operate a sexually oriented business within the preceding 12 months, or residing with a person whose license to operate a sexually oriented business has been revoked within the preceding 12 months. (б) The premises to be used for the sexually oriented business have not been approved by the health department, fire department, and the building official as being in compliance with applicable laws and ordinances. (7) The license fee required by this chapter has not been paid. (8) An applicant has been employed in a sexually oriented business in a managerial capacity within the preceding 12 months and has demonstrated that he is unable to operate or manage a sexually oriented business premises in a peaceful and law-abiding manner. (9) An applicant or the proposed establishment is in violation of or is not in compliance with Section 41A-7, 41A-12, 41A-13, 41A-15, 41A-16, 41A-17, 41A-18, 41A-19 or 41A-20. (10) An applicant or an applicant’s spouse has been convicted of or is under indictment or misdemeanor information for a crime: (A) involving: (i) any of the following offenses as described in Chapter 43 of the Texas Penal Code: (aa) prostitution; (bb) promotion of prostitution; (cc) aggravated promotion of prostitution; (dd) compelling prostitution; (ee) obscenity; (ff) sale, distribution, or display of harmful material to minor; (gg) sexual performance by a child; (hh) possession of child pornography; (11) any of the following offenses as described in Chapter 21 of the Texas Penal Code: (aa) public lewdness; (bb) indecent exposure; (cc) indecency with a child; (iii) engaging in organized criminal activity as described in Chapter 71 of the Texas Penal Code; (iv) sexual assault or aggravated sexual assault as described in Chapter 22 of the Texas Penal Code; (v) incest, solicitation of a child, or harboring a runaway child as described in Chapter 25 of the Texas Penal Code; (vi) kidnapping or aggravated kidnapping as described in Chapter 20 of the Texas Penal Code; (vii) robbery or aggravated robbery as described in Chapter 29 of the Texas Penal Code; (viii) bribery or retaliation as described in Chapter 36 of the Texas Penal Code; (ix) a violation of the Texas Controlled Substances Act or Dangerous Drugs Act punishable as a felony, Class A misdemean- or, or Class B misdemeanor; or (x) criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses; (B) for which: (i) less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense; (ii) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or (iii) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24-month period. (b) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant’s spouse. (c) An applicant who has been convicted or whose spouse has been convicted of an offense listed in Subsection (a)(10), for which the required time period has elapsed since the date of conviction or the date of release from confinement imposed for the conviction, may qualify for a sexually oriented business license only if the chief of police determines that the applicant or applicant’s spouse is presently fit to operate a sexually oriented business. In determining present fitness under this section, the chief of police shall consider the following factors concerning the applicant or applicant’s spouse, whichever had the criminal conviction: (1) the extent and nature of his past criminal activity; (2) his age at the time of the commission of the crime; (3) the amount of time that has elapsed since his last criminal activity; (4) his conduct and work activity prior to and following the criminal activity; (5) evidence of his rehabilitation or rehabilitative effort while incarcerated or following release; and (6) other evidence of his present fitness, including letters of recommendation from prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for him; the sheriff and chief of police in the community where he resides; and any other persons in contact with him. (d) It is the responsibility of the applicant, to the extent possible, to secure and provide to the chief of police the evidence required to determine present fitness under Subsection (c) of this section. (e) The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. The license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time. (Ord. 19196) SEC. 41A-6. FEES. (a) The annual fee for a sexually oriented business license is $500. (b) If an applicant is required by this code to also obtain a dance hall license or public house of amusement license for the business at a single location, payment of the fee for the sexually oriented business license exempts the applicant from payment of the fees for the dance hall or public house of amusement licenses. (Ord. 19196) SEC. 41A-7. INSPECTION. (a) An applicant or licensee shall permit representatives of the police department, health department, fire department, housing and neighborhood services department, and building inspection division 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 operates a sexually oriented business or his agent or employee commits an offense if he refuses to permit a lawful inspection of the premises by a representative of the police department at any time it is occupied or open for business. (Ord. 19196) SEC. 41A-8. EXPIRATION OF LICENSE. (a) Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in Section 41A-4. Application for renewal should be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the license will not be affected. (b) When the chief of police denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. If, subsequent to denial, the chief of police finds that the basis for denial of the renewal license has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date denial became final. (Ord. 19196) SEC. 41A-9. SUSPENSION. The chief of police shall suspend a license for a period not to exceed 30 days if he determines that a licensee or an employee of a licensee has: (1) violated or is not in compliance with Section 41A-7, 41A-12, 41A-13, 41A-15, 41A-16, 41A-17, 41A-18, 41A-19, or 41A-20 of this chapter; (2) engaged in excessive use of alcoholic beverages while on the sexually oriented business premises; (3) refused to allow an inspection of the sexually oriented business premises as authorized by this chapter; (4) knowingly permitted gambling by any person on the sexually oriented business premises; (5) demonstrated inability to operate or manage a sexually oriented business in a peaceful and law-abiding manner thus necessitating action by law enforcement officers. (Ord. 19196) SEC. 41A-10. REVOCATION. (a) The chief of police shall revoke a license if a cause of suspension in Section 41A-9 occurs and the license has been suspended within the preceding 12 months. (b) The chief of police shall revoke a license if he determines that: (1) a licensee gave false or misleading information in the material submitted to the chief of police during the application process; (2) a licensee or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises; (3) a licensee or an employee has knowingly allowed prostitution on the premises; (4) a licensee or an employee knowingly operated the sexually oriented business during a period of time when the licensee’s license was suspended; (5) a licensee has been convicted of an offense listed in Section 41A-5(a)(10)(A) for which the time period required in Section 41A-5(a)(10)(B) has not elapsed; (6) on two or more occasions within a 12-month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in Section 41A-5(a)(10)(A), for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed; (7) a licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in or on the licensed premises. The term “sexual contact” shall have the same meaning as it is defined in Section 21.01, Texas Penal Code; or (8) a licensee is delinquent in payment to the city for hotel occupancy taxes, ad valorem taxes, or sales taxes related to the sexually oriented business. (c) The fact that a conviction is being appealed shall have no effect on the revocation of the license. (d) Subsection (b)(7) does not apply to adult motels as a ground for revoking the license. (e) When the chief of police revokes a license, the revocation shall continue for one year and the licensee shall not be issued a sexually oriented business license for one year from the date revocation became effective. If, subsequent to revocation, the chief of police finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license was revoked under Subsection (b)(5), an applicant may not be granted another license until the appropriate number of years required under Section 41A-5(a)(10)(B) has elapsed since the termination of any sentence, parole, or probation. (Ord. 19196) SEC. 41A-11. APPEAL. If the chief of police denies the issuance of a license, or suspends or revokes a license, he shall send to the applicant, or licensee, by certified mail, return receipt requested, written notice of his action and the right to an appeal. The aggrieved party may appeal the decision of the chief of police to a permit and license appeal board in accordance with Section 2-96 of this code. The filing of an appeal stays the action of the chief of police in suspending or revoking a license until the permit and license appeal board makes a final decision. If within a 10 day period the chief of police suspends, revokes, or denies issuance of a dance hall license or public house of amusement license for the same location involved in the chief’s actions on the sexually oriented business license, then the chief may consolidate the requests for appeals of those actions into one appeal. (Ord. 19196) SEC. 41A-12. TRANSFER OF LICENSE. A licensee shall not transfer his license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application. (Ord. 19196) SEC. 41A-18. 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: (1) a church; (2) a public or private elementary or secondary school; (3) a boundary of a residential district as defined by the Dallas Development Code; (4) a public park adjacent to a residential district as defined by the Dallas Development Code; or (5) the property line of a lot devoted to residential use. (b) A person commits an offense if he 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. (c) A person commits an offense if he 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. (d) 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 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 public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential district, or residential lot. (e) For purposes of Subsection (b) of this section, the distance between any two sexually oriented businesses 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. (f) Any sexually oriented business lawfully operating on June 18, 1986, that is in violation of Subsections (a), (b), or (c) of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed three 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 bust nesses 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(es) is nonconforming. (g) A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewai of the sexually oriented business license, of a church, public or private elementary or secondary school, public park, residential district, or residential lot within 1,000 feet of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application for a license is submitted after a license has expired or has been revoked. (Ord. 19196) SEC. 41A-14. EXEMPTION FROM LOCATION RESTRICTIONS. (a) If the chief of police denies the issuance of a license to an applicant because the location of the sexually orient