ARTICLE 4.07 SEXUALLY ORIENTED BUSINESSES [1]

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 concentration of sexually oriented businesses within the city. The regulations contained herein have been established for the purpose of limiting the well documented, adverse secondary effects suffered by properties located within one thousand (1,000) feet of a sexually oriented business.

§ 4.07.002 Findings and basis for regulation.

The provisions of this article have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative speech, expression or communicative materials, including sexually oriented speech, expression or communicative materials. Similarly, it is not the intent or effect of this article to restrict or deny access by adults to sexually oriented speech, expression or communicative materials protected by the First Amendment or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

Regulations contained herein, including those pertaining to the licensing, operation, and location of sexually oriented businesses, are based on the sexually oriented business revision committee, October 21, 2010 report, together with studies, reports, findings, court case decisions, and evidence presented and made available to the City Council.

Copies of the October 21, 2010, sexually oriented business revision committee report, together with the studies, reports, and court case decisions referenced in subsection (a) above are on file in the office of the City Secretary.

Adult bookstore, adult novelty store or adult video store.

Regulations contained herein have been established under the authority granted to municipalities by section 243.003 of the Texas Local Government Code.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.003 Definitions.

Adult arcade.

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 regularly depicting or describing specified sexual activities or specified anatomical areas.

A commercial establishment for which the regular offering of a service or the selling, renting or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer constitutes twenty-five percent (25%) or more of the items in inventory and/or floor space of the sexually oriented business, including:

Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, DVD’s, videocassettes or video reproductions, slides, or other visual representations, that depict or describe specified sexual activities or specified anatomical areas; or

Instruments, devices, or paraphernalia that are designed for use in connection with specified sexual activities, but not including items used for birth control or for the prevention of sexually transmitted diseases.

Adult cabaret.

A commercial establishment that regularly features the offering to customers of live entertainment that:

Is intended to provide sexual stimulation or sexual gratification to such customer; and

Is distinguished by or characterized by an emphasis on matter depicting, simulating, describing, or relating to specified anatomical areas or specified sexual activities.

Adult motel.

A hotel, motel, or similar commercial establishment that:

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 that are characterized by the regular depiction or description of specified sexual activities or specified anatomical areas; and has a sign visible from the public right-of-way that 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 10 hours; or

Adult motion picture theater.

Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than 10 hours.

A commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides, or similar photographic reproductions are regularly shown that are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

Adult theater.

A theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear nude or semi-nude, or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.

Applicant.

A person or entity in whose name a license to operate a sexually oriented business will be issued;

Each individual who signs an application for a sexually oriented business license as required by section 4.07.006;

Each individual who is an officer of a sexually oriented business for which a license application is made under section 4.07.006, regardless of whether the individual’s name or signature appears on the application;

Each individual who has a 20 percent (20%) or greater ownership interest in a sexually oriented business for which a license application is made under section 4.07.006, regardless of whether the individual’s name or signature appears on the application; and

Distinguished or characterized by an emphasis upon.

Each individual who exercises substantial de facto control over a sexually oriented business for which a license application is made under section 4.07.006, regardless of whether the individual’s name or signature appears on the application.

Chief of police.

The chief of police of the city or the chief’s designated agent.

Child-care facility.

A facility licensed by the state, whether situated within the city or not, that provides care, training, education, custody, treatment or supervision for more than six (6) children under fourteen (14) years of age, where such children are not related by blood, marriage or adoption to the owner or operator of the facility, for less than twenty-four (24) hours a day, regardless of whether or not the facility is operated for a profit or charges for the services it offers.

Conviction.

A conviction in a federal court or a court of any state or foreign nation or political subdivision of a state or foreign nation that has not been reversed, vacated, or pardoned. Conviction includes disposition or charges against a person by probation or deferred adjudication.

The dominant or principal theme of the object referenced. For instance, when the phrase refers to films “which are distinguished or characterized by an emphasis upon the exhibition or display of specified sexual activities or specified anatomical areas,” the films so described are those whose dominant or principal character and theme are the exhibition or display of specified anatomical areas or specified sexual activities.

Employee.

Any individual who:

Is listed as a part-time, full-time, temporary, or permanent employee on the payroll of an applicant, licensee, or sexually oriented business; or

Performs or provides entertainment on the sexually oriented business premises for any form of compensation or consideration.

Escort.

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.

Escort agency.

A person or business association that furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes, for a fee, tip, or other consideration.

Establishment.

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;

The relocation of any sexually oriented business; or

Any building operated as a sexually oriented business.

Hearing officer.

The City Manager, or his or her designee. The hearing officer shall exercise those powers authorized under the Texas Local Government Code, the charter of the city, and the Code of Ordinances of the city, as appropriate in the furtherance of his or her duties.

Hospital.

A facility or area for providing health services primarily for human in-patient medical or surgical care for the sick or injured and including related facilities such as laboratories, out-patient departments, training facilities, central services facilities, and staff offices that are an integral part of the facilities.

Licensee.

A person in whose name a license to operate a sexually oriented business has been issued;

Each individual listed as an applicant on the application for a license;

Each individual who is an officer of a sexually oriented business for which a license has been issued under this article, regardless of whether the individual’s name or signature appears on the license application;

Each individual who has a twenty percent (20%) or greater ownership interest in a sexually oriented business for which a license has been issued under this article, regardless of whether the individual’s name or signature appears on the license application;

Nudity or a state of nudity.

Each individual who exercises substantial de facto control over a sexually oriented business for which a license has been issued under this article, regardless of whether the individual’s name or signature appears on the license application.

Nude model studio.

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; however, nude modeling at or on behalf of any properly accredited institution of higher learning shall not fall within this definition.

A state of dress which fails to fully and opaquely cover the anus, genitals, pubic region, or perineum anal region, or the exposure of any device, costume or covering that gives the realistic appearance of or simulates the anus, genitals, pubic region, or perineum anal region, regardless of whether the nipple and areola of the human female breast are exposed, or shows the covered male genitals in a discernibly turgid state.

Operates or causes to be operated.

To cause to function or to put or keep in a state of doing business. Operator means any person on the premises of a sexually oriented business who is authorized to exercise operation control of the business. A person may be found to be operating or causing to be operated a sexually oriented business regardless of whether that person is an owner, part owner, or licensee of the business.

Person.

An individual, proprietorship, partnership, corporation, association, or other legal entity.

Public park.

Any city park defined by article 1.10 [sic] of the Code of Ordinances, or any park or recreational area operated by a county government.

Regularly features or regularly shown.

A consistent or substantial course of conduct, such that the films or performances exhibited constitute a substantial portion of the films or performances offered as a part of the ongoing business of the sexually oriented business.

Religious institution.

A building or group of buildings in which persons regularly assemble for religious worship and activities intended primarily for purposes connected with such worship or for propagating a particular form of religious belief. For the purposes of this definition, the term religious institution shall include, but not be limited to, a church, synagogue, mosque or temple.

Residential district.

A single-family, duplex, townhouse, multiple family, or mobile home zoning district as defined in the city’s zoning ordinance.

Residential use.

A single-family, duplex, multiple family, or mobile home park, mobile home subdivision, and campground use as defined in the city’s zoning ordinance.

Semi-nude or semi-nudity or state of semi-nudity.

The exposure of the post-puberty female nipple or areola, or the exposure of any device, costume or covering that gives the realistic appearance of or simulates the post-puberty female nipple or areola, so long as the following anatomical areas of an individual are fully and opaquely covered: the anus, genitals, pubic region and the perineum anal region of the human body. The term semi-nude shall not apply to an individual exposing a post-puberty female nipple or areola in the process of breastfeeding a child under that person’s care.

Sexual encounter center.

A business or commercial establishment that as one of its principal business purposes, offers for any form of consideration, a place where two (2) or more persons may congregate, associate, or consort for the purpose of specified sexual activities. The definition of sexual encounter center or any sexually oriented business shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized sexual therapy.

Sexually oriented business.

An adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, escort agency, nude model studio, or other commercial enterprise for which the regular offering of a service or the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer constitutes twenty-five percent (25%) or more of the items in inventory and/or floor space of the sexually oriented business. The terms shall also mean any commercial enterprise that self-identifies as an adult arcade, adult bookstore, adult video store, adult cabaret, adult motel, adult motion picture theater, escort agency or nude model studio, regardless of whether the percentage of items in inventory and/or floor space constitute twenty-five percent (25%) or more of the total items in inventory and/or floor space.

Sign.

Any display, design, pictorial, or other representation that is:

Constructed, placed, attached, painted, erected, fastened, or manufactured in any manner whatsoever so that it is visible from the outside of a sexually oriented business; and

Specified anatomical areas.

Used to seek the attraction of the public to any goods, services, or merchandise available at the sexually oriented business.

The term sign also includes any representation painted on or otherwise affixed to any exterior portion of a sexually oriented business establishment or to any part of the tract upon which the establishment is situated.

Any of the following, or any combination of the following, when less than completely and opaquely covered:

Any human genitals, pubic region, or pubic hair;

Any buttock; or

Any portion of the female breast or breasts that is situated below a point immediately above the top of the areola; or

Specified sexual activities.

Human male genitals in a discernibly erect state, even if completely and opaquely covered.

Any of the following:

The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;

Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy;

Masturbation, actual or simulated; or

Transfer of ownership or control of a sexually oriented business.

Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (3) above.

Any of the following:

The sale, lease, or sublease of the business;

The transfer of securities that 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 that 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.

Violation.

Any offense under or failure to comply with this article, the punishment for which shall be in accordance with section 4.07.021.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.004 Classification.

Sexually oriented businesses are classified as follows:

Adult arcades;

Adult bookstores, adult novelty stores or adult video stores;

Adult cabarets;

Adult motels;

Adult theaters;

Adult motion picture theaters;

Escort agencies;

Nude model studios; and

Sexual encounter centers.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.005 Nonconforming uses.

Any sexually oriented business that is in violation of section 4.07.014, or any other location requirement of any other city ordinance, that was legally operating at the time it was licensed, or the effective date of any amendment of such ordinance or regulation, shall be deemed a nonconforming use.

Any legally established, sexually oriented business that is in violation of this article because of annexation into the city shall be deemed to be a nonconforming use.

A sexually oriented business that is lawfully operating within the city on or after the effective date of this article shall not be rendered a nonconforming use by the subsequent location of a protected use listed in section 4.07.014 within one thousand (1,000) feet of the sexually oriented business.

Notwithstanding anything contained in this article or in the city’s zoning ordinance as amended to the contrary, a legal nonconforming sexually oriented business shall be required to meet all applicable requirements of this article except locational requirements established by section 4.07.014(b) within sixty (60) days of the date it becomes nonconforming. The zoning board of adjustment may grant a nonconforming sexually oriented business an extension if the business shows, upon written application, that meeting these requirements within sixty (60) days imposes an unnecessary hardship on the business.

Legal nonconforming sexually oriented businesses shall not be increased, enlarged, extended or altered except that the use may be changed to a use other than a sexually oriented business to the extent allowed by the city’s zoning ordinance. A person commits an offense if he increases, enlarges, extends or alters, or causes to be increased, enlarged, extended or altered, a nonconforming sexually oriented business.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.006 License required.

A person commits an offense if the person operates or causes to be operated a sexually oriented business without a valid license, issued by the city for the particular classification of sexually oriented business.

Any person, association, firm, partnership or corporation desiring to obtain a sexually oriented business license shall make application on a form provided by the chief of police.

The fact that a person, association, firm, partnership or corporation possesses other types of state or city permits or licenses does not exempt the person from the requirement of obtaining a license for a sexually oriented business.

An application for a sexually oriented business license shall only be considered to be complete if it contains all information specified in subsections (1) through (13) below:

The applicant’s full and true name along with any other names used in the preceding five (5) years. Any individual with a twenty (20) percent or greater interest in the business shall:

Be considered to be an applicant and shall sign the license application form;

Provide all information and documentation required of the applicant;

Be qualified under section 4.07.005;

Be considered a licensee if a license is granted.

The applicant’s current address;

Either a set of fingerprints suitable for conducting necessary background checks pursuant to this article, or the applicant’s Social Security number, to be used for the same purpose;

The business name as it is to be displayed on the premises, the company name, if different than the preceding, the property address and legal description, the business mailing address, business telephone number, and any e-mail or website addresses that are to be used in conjunction with the business;

Written proof of age, in the form of a birth certificate accompanied by a current photograph, a current driver’s license, or other picture identification issued by a domestic governmental agency;

The issuing jurisdiction and the effective dates of any license or permit held by the applicant relating to a sexually oriented business, and whether any such license or permit has been denied, revoked, or suspended, and if so, the reason or reasons therefor;

The name and address of the statutory agent or other agent authorized to receive service of process;

A diagram showing a plan of the premises. A diagram prepared in support of a sexually oriented business license application need not be professionally drawn. The diagram shall:

Be oriented to the north, or to a designated street;

Be drawn to a designated scale 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 six (6) inches;

Specify the location of all overhead lighting fixtures;

Designate any portion of the premises in which customers will not be permitted;

(E)

Specify the location of all manager’s stations, if applicable; and

(F)

Designate the place at which the license, if granted, will be conspicuously displayed.

An approved city sign permit accompanied by a photograph verifying posting of notification signage required by section 243.075 of the Texas Local Government Code;

All information, supported by any necessary documentation, required by this section;

(11)

A list of all employees, or prospective employees, along with copies of complete updated employment application, valid driver’s license, state identification card, or passport containing a photograph of the employee;

(12)

A notarized affidavit signed by each applicant and certifying all information and documentation provided with the application to be true and correct;

(13)

A nonrefundable application fee as specified by appendix A, fee schedule, article 3.000;

(14)

An application submitted without all required information, or without the specified application fee shall be deemed incomplete. Incomplete applications shall be denied and within thirty (30) days of its receipt by the city, be returned to the applicant, accompanied by a notice specifying the reasons for application denial.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.007 Issuance of license.

The chief of police shall approve the issuance of a license by the City Secretary to an applicant within thirty (30) days after receipt of an application, unless the chief of police finds one (1) or more of the following to be true:

The location of the sexually oriented business is or would be in violation of section 4.07.014 of this article.

The applicant failed to supply all of the information requested on the application.

The applicant gave false, fraudulent or untruthful information on the application.

An applicant is under eighteen (18) years of age.

An applicant or an applicant’s spouse is overdue in payment to the Secretary of State or the city of taxes, fees, fines or penalties assessed against or imposed upon the applicant or the applicant’s spouse in relation to a sexually oriented business.

An applicant or an applicant’s spouse has been convicted or placed on deferred dispositions, probation or community supervision for a violation of a provision of this article, within two (2) years immediately preceding the application. The fact that a conviction is being appealed shall have no effect.

The license fee required by this article has not been paid.

The applicant has not demonstrated that the owner of the sexually oriented business owns or holds a lease for the property or the applicable portion thereof upon which the sexually oriented business will be situated or has a legally enforceable right to acquire the same.

An applicant of the proposed establishment is in violation of or is not in compliance with section 4.07.007, issuance of license, or section 4.07.014, location requirements.

An applicant or an applicant’s spouse has been convicted or placed on deferred disposition, probation, or community supervision for:

Any offense under the laws of the United States of America, another state or the Uniform Code of Military Justice for an offense described in this subsection; or

Any of the below offenses of the state or criminal attempt, conspiracy, or solicitation to commit same;

Any of the following offenses as described in chapter 43 of the Texas Penal Code:

Prostitution;

Promotion of prostitution;

Aggravated promotion of prostitution;

(iv)

Compelling prostitution;

(v)

Obscenity;

(vi)

Sale, distribution or display of harmful material to a minor;

(vii)

Sexual performance by a child;

(viii)

Possession of child pornography;

Any of the following offenses as described in chapter 21 of the Texas Penal Code:

Public lewdness;

Indecent exposure;

Indecency with a child;

(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; or

(vi)

Those crimes defined as “drug-defined offenses” or “drug-related offenses” by the Bureau of Justice Statistics Drug and Crime Data Fact Sheet, 1994, for which punishment would be classified as a felony as set forth in section 12.04 of the Texas Penal Code;

(E)

For which:

Less than two (2) years have elapsed since the date of conviction, or the date of release from the terms of community supervision, probation, parole or deferred disposition or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is a misdemeanor offense; or

Less than five (5) years have elapsed since the date of conviction, or the date of release from the terms of community supervision, probation, parole or deferred disposition or the date of release from confinement for the conviction, whichever is the later date, if the conviction is a felony offense; or

Less than five (5) 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 (2) or more misdemeanor offenses or combination of misdemeanor offenses occurring within any twenty-four-month period.

(11)

The applicant or the applicant’s spouse is required to register as a sex offender under the provisions of chapter 62 of the Texas Code of Criminal Procedure.

(12)

The applicant failed to comply with any of the requirements of section 243.0075 of the Texas Local Government Code regarding the posting of an outdoor sign.

An applicant, or applicant’s spouse, who has been convicted of or placed on deferred disposition, probation or community supervision for an offense listed in subsection (a)(10) above, may qualify for a sexually oriented business license only when the time period required by subsection (a)(10)(E) above, has elapsed.

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 accordance with the provisions of section 4.07.006(d)(8)(F).

Upon approval of a sexually oriented business license, an applicant for a sexually oriented business license must obtain a certificate of occupancy from the building official.

If applicable city ordinances do not require that a building permit be obtained, the building official shall issue or deny a certificate of occupancy not later than forty-five (45) business days subsequent to the date of the applicant’s submission of such application. A certificate of occupancy application not issued or denied by the building official by the forty-fifth (45th) business day following submission shall be deemed to be approved.

§ 4.07.008 Inspection and maintenance of records.

If a building and/or other construction related permit is required under applicable city ordinances, the applicant shall submit to the building inspection department, all necessary plans and permit applications. The building official shall cause all plans and permit applications to be processed and reviewed under the terms of applicable codes and ordinances. Permit applications found to be in compliance with applicable codes and ordinances shall not be unreasonably withheld. Upon approval of a final inspection, by applicable city departments, the building official shall issue a certificate of occupancy.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

A licensee, operator or employee of a sexually oriented business shall be subject to regulation under this article and shall permit representatives of the police department, health department, fire department, building inspections division and code enforcement division to inspect all portions of the premises where customers are allowed and the records required to be maintained under this article by the sexually oriented business for the purpose of ensuring compliance with this article at any time it is occupied or open for business.

A licensee or operator of a sexually oriented business commits an offense if the person operates the establishment without maintaining a current list of all employees of the business, along with a completed updated employment application for each employee. A legible copy of a valid driver’s license, state identification card, or passport, with a photograph, together with an original photograph accurately depicting the employee as the person appears at the time the person is hired, shall be required and maintained on the premises with the employee’s application.

A licensee or operator of a sexually oriented business commits an offense if the person refuses to permit a lawful inspection of the records and premises by a representative of the police department at any time the sexually oriented business is occupied or open for business.

The licensee or operator of a sexually oriented business shall maintain all records required to be maintained under the provisions of this article on the licensed premises.

The licensee or operator of a sexually oriented business commits an offense if the person does not maintain the required records on the premises of the licensed establishment.

(f)

A licensee, operator or employee of a sexually oriented business shall permit representatives of the police department to take photographs of the licensee, operator or employees of the sexually oriented business for the purpose of ensuring compliance with this section at any time it is occupied or open for business.

(g)

A licensee, operator or employee of a sexually oriented business commits an offense if that person does not permit representatives of the police department to take photographs of the licensee, operator or employee of the sexually oriented business, for official police department purposes, at any time it is occupied or open for business.

(h)

The provisions of this section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.009 Expiration of license.

A sexually oriented business license shall be valid from the date of issuance through January 31 of the following year.

A license may be renewed by submission to the chief of police of an application on the form prescribed by the chief of police and payment of a nonrefundable renewal processing fee as provided for in the fee schedule found in the appendix of this code.

Application for renewal of a sexually oriented business license shall be made at least thirty (30) days before the expiration date of the license.

Sexually oriented business licenses shall be renewed no later than January 31st of each calendar year. A business that fails to renew a license shall forfeit the right to conduct business within the city until such time as the renewal is approved.

The annual fee for a sexually oriented business license shall be as provided for in the fee schedule found in appendix A, fee schedule, section 3.700 of this code. Annual renewal fees shall not be prorated.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.010 Suspension of license.

The chief of police shall issue a written intent to suspend a license for a period not to exceed thirty (30) days if it determines that a licensee or an employee of a licensee has:

Violated or is not in compliance with any section of this article; or

Refused to allow an inspection of the sexually oriented business premises as authorized by this article; or

Knowingly permitted gambling by any person on the sexually oriented business premises; or

Demonstrated inability to operate or manage a sexually oriented business in a peaceful and law-abiding manner thus necessitating action by law enforcement officers.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.011 Revocation of license.

The chief of police shall issue a written statement of intent to revoke a sexually oriented business license if:

A cause of suspension in section 4.07.010 occurs and the license has been suspended within the preceding twelve (12) months;

On two or more occasions within a five-year period of time a licensee(s) or operator(s) (or any combination thereof) has/have been convicted of or placed on deferred disposition, probation or community supervision for conduct occurring in a licensing period on the premises of a sexually oriented business that constitutes any of the offenses of the state or criminal attempt, conspiracy, or solicitation to commit same for:

Any of the following offenses as described in chapter 43 of the Texas Penal Code:

Prostitution;

Promotion of prostitution;

Aggravated promotion of prostitution;

(iv)

Compelling prostitution;

(v)

Obscenity;

(vi)

Sale, distribution or display of harmful material to a minor;

(vii)

Sexual performance by a child;

(viii)

Possession of child pornography;

Any of the following offenses as described in chapter 21 of the Texas Penal Code:

Public lewdness;

Indecent exposure;

Indecency with a child;

Sexual assault or aggravated sexual assault as described in chapter 22 of the Texas Penal Code;

Incest, solicitation of a child or harboring a runaway child as described in chapter 25 of the Texas Penal Code; or

(E)

A licensee or operator gave false or misleading information in the material submitted to the chief of police during the application process;

A licensee or operator has knowingly allowed possession, use or sale of a controlled substance on the premises;

A licensee or operator has on two (2) or more occasions knowingly allowed prostitution on the premises;

A licensee or operator knowingly operated the sexually oriented business during a period of time when the licensee’s license was suspended;

A licensee or operator has, on two (2) or more occasions, 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;

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;

The licensee is required to register as a sex offender under the provisions of chapter 62 of the Texas Code of Criminal Procedure;

A license is transferred in violation of section 4.07.014(a).

The fact that a conviction is being appealed shall have no effect on the revocation of the license.

§ 4.07.012 Denial, suspension and revocation procedures.

Subsection (a) does not apply to adult motels as a ground for revoking the license, unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation or sexual contact to occur in a public place or within public view.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

If the chief of police determines that facts exist for denial, suspension or revocation of a license under this article, the chief of police shall notify the applicant or licensee (respondent) in writing of the intent to deny, suspend or revoke the license, including the grounds therefor, by personal delivery, or by certified mail. The notification shall be directed to the most current business address on file with the city. Within five (5) working days of receipt of such notice, the respondent may provide to the City Manager, in writing, a response that shall include a statement of reasons why the license or permit should not be denied, suspended or revoked. Within three (3) days of the receipt of respondent’s written response, the City Manager shall notify respondent in writing of the hearing date on respondent’s denial, suspension or revocation proceeding.

Within ten (10) working days of the receipt of respondent’s written response, the City Manager shall conduct a hearing at which respondent shall have the opportunity to be represented by counsel and present evidence and witnesses on his or her behalf. If a response is not received by the City Manager in the time stated or, if after the hearing, the City Manager finds that grounds as specified in this article exist for denial, suspension or revocation, then such denial, suspension, or revocation shall become final five (5) days after the hearing unless within that time the City Manager sends, by certified mail, written notice that the license has been denied, suspended, or revoked or has been accepted. If denied, such notice shall include a statement advising the applicant or licensee of the right to appeal such decision to a court of competent jurisdiction.

If the City Manager finds that no grounds exist for denial, suspension or revocation of a license, then within five (5) days after the hearing, the City Manager shall withdraw the intent to deny, suspend or revoke the license, and shall so notify the respondent in writing by certified mail of such action and shall contemporaneously issue the license.

When a decision to deny, suspend, or revoke a license becomes final, the applicant or licensee (aggrieved party) whose application of a license has been denied, or whose license has been suspended or revoked, shall have the immediate right to appeal such action to a court of competent jurisdiction. Until the court of competent jurisdiction issues its final judgment, the decision to deny, suspend or revoke a license shall remain in force and be enforced.

A sexually oriented business license or the ownership or control of a sexually oriented business which is directly or indirectly a part of civil litigation or administrative hearings or procedures regarding the denial, suspension or revocation shall not be transferred, sold or given to another during the pendency of the judicial or administrative processes.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.013 Transfer of license.

A person commits an offense if the person transfers a license or permit to another person or operates a sexually oriented business under the authority of a license at any place other than the address designated on the license. A transfer of a license is deemed to have occurred if there is a transfer of more than fifty percent (50%) of the ownership or control of a sexually oriented business.

A person commits an offense if the person counterfeits, forges, changes, defaces or alters a license.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.014 Location requirements.

A person commits a violation if that person operates or causes to be operated a sexually oriented business in any zoning district other than a heavy industrial (HI) district as defined and described in chapter 11, zoning, of this code.

A person commits a violation if he operates or causes to be operated a sexually oriented business within one thousand (1,000) feet of:

A religious institution including a church, synagogue, mosque, temple, or building which is used primarily for religious worship and related religious activities;

A public or private educational facility including, but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges and universities. The term school includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school;

A boundary of a residential district as defined by chapter 11, zoning, of this code;

A public park or recreational area which has been designated for park or recreational activities including, but not limited to, a park, playground, nature trail, swimming pool, athletic field, basketball, or tennis court, pedestrian/bicycle path, or other similar public land within the city, or its ETJ, which is under the control of either the city or county park and recreation authorities;

The property line of a lot or parcel devoted to a residential use as defined by chapter 11, zoning, of this code;

A family oriented recreation facility including but not limited to a roller skating rink, an ice skating rink or a facility devoted to children’s athletic activities;

Any premise licensed pursuant to the alcoholic beverage control regulations of the state;

A public library.

A person commits a violation if that person causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within one thousand (1,000) feet of another sexually oriented business.

A person commits a violation if that person 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.

§ 4.07.015 Regulations pertaining to exhibition of sexually explicit films, videos, or live entertainment in viewing rooms.

For the purpose of subsection (b) of this section, measurement shall be made in a straight ling, without regard to the intervening structures or objects, from the nearest portion of the building or structure used as the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a use listed in subsection (b). The presence of a city, county or other political subdivision boundary shall be irrelevant for the purposes of calculating and applying the distance requirements of this section.

(f)

For the purposes of subsection (c) of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to the intervening structures or objects or political boundaries, from the closest exterior wall of the structure in which each business is located.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

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 one hundred fifty (150) square feet of floor space, a film, video, or live entertainment which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:

Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises providing all information specified in section 4.07.006(d)(8) of this article. Manager stations shown on this diagram shall be dimensioned and shall not contain in excess of thirty-two (32) square feet of floor area per station.

No alteration in the configuration or location of a manager’s station may be made without the prior approval of the city.

It is the duty of the licensee 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.

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 (2) or more managers’ 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.

It shall be the duty of the licensee to ensure that the view area specified in subsection (4) remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks, or other materials and, at all times, 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 (1) of this section.

No viewing room may be occupied by more than one (1) person at any time.

The premises 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 five (5) footcandles as measured at the floor level.

It shall be the duty of the licensee to ensure that the illumination described above is maintained at all times that any patron is present in the premises.

No licensee shall allow openings of any kind to exist between viewing rooms or booths.

No person shall make or attempt to make an opening of any kind between viewing rooms or booths.

(11)

The licensee shall, during each business day, regularly inspect the walls between the viewing booths or rooms to determine if any openings or holes exist.

(12)

The license shall cause all floor coverings in viewing booths or rooms to be nonporous, easily cleanable surfaces, with no rugs or carpeting.

(13)

The licensee shall cause all wall surfaces and ceiling surfaces in viewing booths to be constructed of, or permanently covered by, nonporous, easily cleanable material. No wood, plywood, composition board, or other porous material shall be used within forty-eight (48) inches of the floor.

§ 4.07.016 Additional regulations for escort agencies.

A person having a duty under subsections (1) through (13) above, commits a violation if he or she knowingly fails to fulfill that duty.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

An escort agency shall not employ any person under the age of eighteen (18) years.

§ 4.07.017 Additional regulations concerning public nudity.

A person commits a violation if the person acts as an escort, or agrees to act as an escort, for any person under the age of eighteen (18) years.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

A person commits a violation if the person knowingly and intentionally, in a sexually oriented business, appears nude or in a state of nudity or engages in specified sexual activities.

A person commits a violation if the person knowingly and intentionally, in a sexually oriented business, appears in a semi-nude state, unless the person is an employee who, while semi-nude, is at least six (6) feet from any patron or customer and on a stage at least two (2) feet from the floor.

A person commits a violation if the person receives directly any pay or gratuity from any patron or customer, or if any patron or customer pays or gives any gratuity directly to the person, while the person is an employee and semi-nude in a sexually oriented business.

§ 4.07.018 Prohibition against children in a sexually oriented business.

A person commits a violation if the person, while semi-nude, knowingly and intentionally touches a part on or the clothing of a patron or customer.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

A person commits a violation if the person knowingly allows a person under the age of eighteen (18) years on the premises of a sexually oriented business.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.019 Hours of operation.

No sexually oriented business, except for an adult motel, may remain open at any time between the hours of twelve o’clock (12:00) a.m. and eight o’clock (8:00) a.m. on weekdays and Saturdays, and twelve o’clock (12:00) a.m. and noon (12:00) p.m. on Sundays.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.020 Exemptions.

It is a defense to prosecution under section 4.07.017 that a person appearing in a state of nudity did so in a modeling class operated:

By a proprietary school, licensed by the state; a college, junior college, or university supported entirely or partly by taxation;

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 in a structure:

Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and

Where in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and

§ 4.07.021 Violation a class A misdemeanor.

Where no more than one (1) nude model is on the premises at any one time.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

Except as otherwise stated herein, any person, firm, corporation, agent or employee thereof who violates any provision of this article (a violation) shall be guilty of a class A misdemeanor punishable by a fine not to exceed $4,000.00 and/or confinement in jail for a term not to exceed one (1) year.

Each day that a violation exists or is permitted to exist shall constitute a separate offense.

The refusal to issue a permit based on ineligibility shall not prohibit the imposition of a criminal penalty and the imposition of a criminal penalty shall not prevent the refusal to issue a permit based on ineligibility.

The revocation or suspension of a permit shall not prohibit the imposition of a criminal penalty and the imposition of a criminal penalty shall not prevent the revocation or suspension of a permit.

(Ordinance CO08-10-11-18-C1 adopted 11/18/10)

§ 4.07.022 Civil remedies.

The city reserves the right to seek all available civil remedies in a court of law to include, but not be limited to, injunction and civil fines for any violations of this article.