It is the purpose of this article to regulate sexually oriented
businesses to promote the health, safety, and general welfare of the
citizens of the city, and to establish reasonable and uniform regulations
to prevent the unregulated operation of sexually oriented businesses
within the city. The provisions of this article 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 the effect of this article 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.
(1983 Code, sec. 14-240; Ordinance 9903, sec. 1, adopted 7/11/1996; Ordinance 10020, sec. 1, adopted 10/9/1997)
The following words and phrases, whenever used in this article,
shall be construed as defined in this section unless in context it
appears that a different meaning is intended:
Applicant.
The term “applicant” shall include each member
of a partnership when the applicant is a partnership. If a member
of the applicant partnership is not a person, the applicant shall
include those persons holding a ten-percent or greater interest in
the entity which constitutes that member of the partnership applicant.
The term “applicant” shall include each officer, director
and holder of a ten-percent or greater interest of a corporation,
firm or association when the applicant is a corporation, firm or association.
If the holder of a ten-percent or greater interest in a corporation,
firm or association applicant is not a person, the applicant shall
include those persons holding a ten-percent or greater interest in
the entity which holds a ten-percent or greater interest in the corporation,
firm or association which is the applicant. When a permit is issued
under this article, the applicant becomes the permit holder.
Chief of police.
Chief of police means the chief of police of the City of
Lubbock or his designated agent.
Customer.
Customer means any person who:
(1)
Is allowed to enter an establishment in return for the payment
of an admission fee or any form of consideration or gratuity; or
(2)
Enters an establishment for the purpose of purchasing or renting
a commodity or services therein.
Employee.
Employee means every owner, partner, manager, supervisor,
agent, independent contractor[,] employee, entertainment person or
worker who renders personal services of any nature in the conduct
of a sexually oriented business. It includes any person who renders
any service whatsoever to the customers of an establishment regulated
by this article or who works in or about such an establishment and
who receives compensation or consideration for such service or work
from the operator or owner of such establishment or from the customers
therein.
Nude, nudity or a state of nudity.
Nude, nudity or a state of nudity means appearing while any
of the following portions of the human body are less than completely
and opaquely covered:
(1)
Genitals, whether or not in a state of sexual arousal;
(2)
Pubic region or pubic hair;
(4)
The portions of the female breast(s) beginning from a point
immediately above the top of the areola and continuing downward to
the lowest portion of the breast(s); or
(5)
Any combination of the above.
Operate or cause to operate.
Operate or cause to operate means to permit or cause to function,
or to put or keep in operation. A person may be found to be operating
or causing to be operated a sexually oriented business whether or
not that person is an applicant as defined herein, an owner, part
owner, licensee or manager of the venture.
Primary business activity.
Primary business or primary business activity for purposes
of determining whether a business is subject to regulation shall mean
and include:
(1)
Any live performance or entertainment as described in the definition
of the term “sexually oriented business” in this section;
or
(2)
Any nonlive, sexually oriented retail sale, service or rental
business activity when, on a calendar day, thirty-five (35) percent
or more of either inventory held for sale, rent or display; or display
space; or exhibition time; or sales include sexually explicit entertainment,
materials or items that are intended to provide sexual stimulation
or gratification and the entertainment, materials or items are distinguished
by or characterized by an emphasis on subject matter depicting, describing
or related to specified sexual activities and/or specified anatomical
areas.
The operation of a commercial venture may include more than
one primary business activity.
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Seminude and simulated nudity.
(1)
Seminude or seminudity means a state of dress in which clothing
covers only the genitals, anus, and pubic region.
(2)
Simulated nudity means a state of dress in which any artificial
device or covering is worn on a person and exposed to view so as to
simulate an actual “state of nudity.”
Sexually oriented business.
Sexually oriented business shall mean and include any commercial
venture whose operations on any calendar day include: The providing,
featuring or offering of employees or entertainment personnel who
appear in a state of nudity, seminude or simulated nudity and provide
live performances or entertainment intended to provide sexual stimulation
or sexual gratification to customers and which is offered as a feature
of a primary business activity of the venture; or, the providing,
featuring or offering, as a primary business activity as defined herein,
of nonlive, sexually explicit entertainment materials, or items for
sale or rental to customers, or the providing or offering of a service
or exhibition of materials or items which are intended to provide
sexual stimulation or sexual gratification to its customers, said
materials, items or services being distinguished by or characterized
by an emphasis on subject matter depicting, describing or relating
to specified sexual activities and/or specified anatomical areas.
The term “sexually oriented business” shall include,
but not be limited to the following:
(1)
Sexually oriented cabaret.
A sexually oriented cabaret is an establishment whose business
is the offering to customers of live entertainment which is intended
to provide sexual stimulation or sexual gratification to such customers,
and which is distinguished or characterized by an emphasis on matter
depicting, describing or relating to specified sexual activities,
specified anatomical areas, nudity, simulated nudity, or any combination
thereof.
(2)
Sexually oriented modeling studio.
A sexually oriented modeling studio is an establishment whose
business is the providing, to customers, figure models who are so
provided with the intent of providing sexual stimulation or sexual
gratification to such customers and to display specified anatomical
areas while being observed, painted, sketched, drawn, sculptured,
photographed, or otherwise depicted by such customers.
(3)
Sexually oriented bookstore, film or video store.
A sexually oriented bookstore, film or video store is an
establishment having a primary business activity of marketing, selling,
displaying or dispensing stock in trade, books, films, videos, magazines,
periodicals, computer imaging products or other reproductions which
are intended to provide sexual stimulation or sexual gratification
to customers, and which are distinguished or characterized by an emphasis
on depicting or describing “specified sexual activity”
or “specified anatomical areas.”
(4)
Sexually oriented viewing booth or arcade.
A sexually oriented viewing booth or arcade is an establishment
or commercial venture which has within its structure any coin-operated
or slug-operated or electrical or mechanical device, which projects
or displays any image into a viewing area or other enclosure which
is designed for presenting material intended to provide sexual stimulation
or sexual gratification to customers, and which is distinguished or
characterized by a predominant emphasis on matter depicting, describing,
or relating to “specified sexual activities” or “specified
anatomical areas.”
(5)
Sexually oriented theater or sexually oriented
motion picture theater.
A sexually oriented theater or sexually oriented motion picture
theater is an establishment or commercial venture which is conducted
within an enclosed building and which projects or displays for viewing
by an audience material intended to provide sexual stimulation or
sexual gratification to customers, and which is distinguished or characterized
by a predominant emphasis on matter depicting, describing or relating
to “specified anatomical areas” or “specified sexual
activities” for observation by patrons.
(6)
Sexually oriented lounge.
A sexually oriented lounge is a “sexually oriented
cabaret” as defined above which allows the consumption of alcoholic
beverages on the premises.
(7)
Sexually oriented retail store.
A sexually oriented retail store is a retail establishment
which has a primary business activity of marketing, selling, displaying
or dispensing stock in trade, books, films, magazines, periodicals,
instruments, devices, paraphernalia, or any other products which are
intended to provide sexual stimulation or sexual gratification to
customers, and which are distinguished or characterized by an emphasis
on depicting, describing or related to “specified sexual activities”
or “specified anatomical areas.”
(8)
Sexually oriented motel or adult motel.
Sexually oriented motel or 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, videocassettes, slides, or other photographic or
computer-generated reproductions which are intended to provide sexual
stimulation or sexual gratification to customers, and 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
such adult types of photographic or computer-generated reproductions;
or
(B)
Offers a sleeping room for rent on an hourly basis or allows
a tenant or occupant of a sleeping room to subrent the room on an
hourly basis.
(9)
Sexually oriented escort agency.
A sexually oriented escort agency is 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. For purposes of this definition an 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.
(10)
Sexually oriented encounter center.
A sexually oriented encounter center is a business or commercial
venture that offers for any form of consideration physical activities
between persons when one or more of the persons is in a state of nudity
or seminudity.
Specified anatomical areas.
Specified anatomical areas means the following portions of
the human body:
(1)
Genitals, whether or not in a state of sexual arousal;
(2)
Pubic region or pubic hair;
(4)
The portions of the female breast below a point immediately
above the top of the areola; and
(5)
Any combination of the above.
Specified sexual activities.
Specified sexual activities means one or more of the following:
(1)
The fondling, massaging or other erotic touching or stimulation
of “specified anatomical areas.”
(2)
Ultimate sex acts, normal or perverted, actual or simulated,
including, but not limited to, intercourse, oral copulation, sodomy.
(3)
Masturbation, actual or simulated.
(4)
Excretory functions as part of or in connection with any of
the activities set forth in (1) through (3) above.
(1983 Code, sec. 14-241; Ordinance 9903, sec. 1, adopted 7/11/1996; Ordinance 10020, sec. 1, adopted 10/9/1997)
This article shall be cumulative of all other ordinances of
the city.
(1983 Code, sec. 14-267; Ordinance 9903, sec. 1, adopted 7/11/1996; Ordinance 10020, sec. 1, adopted 10/9/1997)
All notices required hereunder shall be in writing and shall
be deemed delivered three (3) days after deposited in a United States
post office receptacle.
(1983 Code, sec. 14-264; Ordinance 9903, sec. 1, adopted 7/11/1996; Ordinance 10020, sec. 1, adopted 10/9/1997)
Wherever in this article any act is prohibited or declared to
be unlawful, or the doing of any act is required or the failure to
do any act is declared to be unlawful, the violation of any such provision
of this article is punishable by a fine of not more than two thousand
dollars ($2,000.00). Each day such violation continues shall constitute
a separate offense. Revocation of a permit shall not be a defense
against prosecution.
(1983 Code, sec. 14-265; Ordinance 9903, sec. 1, adopted 7/11/1996; Ordinance 10020, sec. 1, adopted 10/9/1997; Ordinance 10055, sec. 3, adopted 3/12/1998)
It is an affirmative defense to prosecution under this article
that the person was practicing a profession or participating in an
activity described as follows:
(1) Physicians,
surgeons, chiropractors, osteopaths, massage therapists or physical
therapists who are duly licensed to practice their respective professions
in the State of Texas when practicing their respective professions;
(2) Nurses
registered under the laws of the State of Texas when practicing nursing;
(3) Trainers
of any amateur, semiprofessional or professional athlete or athletic
team when training or engaging in their sport;
(4) Barbers
or cosmetologists who are duly licensed under the laws of the State
of Texas when practicing their profession;
(5) Any
activity conducted or sponsored by any school district or other public
agency;
(6) Any
activity conducted by a person pursuant to any permit issued by the
State of Texas or any agency thereof or political subdivision which
permits, prescribes standards for and supervises such activity or
profession;
(7) Private
schools providing a course of instruction in photography, or photography
studios which do not provide for consideration photography equipment,
models and a studio;
(8) Modeling
agencies, schools or services, except those which provide live modeling
services for consideration in which a customer may obtain an exclusive
modeling exhibition at which he or she is the only observer.
(1983 Code, sec. 14-242; Ordinance 9903, sec. 1, adopted 7/11/1996; Ordinance 10020, sec. 1, adopted 10/9/1997)
In addition to any criminal penalties sought, the city attorney
is hereby authorized to file suit to enjoin the violation of any regulation
of this article.
(1983 Code, sec. 14-266; Ordinance 9903, sec. 1, adopted 7/11/1996; Ordinance 10020, sec. 1, adopted 10/9/1997)
(a) Every
sexually oriented business permit holder shall maintain a current
list of all employees employed by the business, to include current
residence address and date of birth, along with a completed employee
application on a form approved by the chief of police, for each employee
employed by the permit holder during the term or extended term of
a permit. A legible and clear copy of each employee’s driver’s
license, state identification card, or passport, with photo, shall
be maintained by the permit holder. The permit holder shall cause
these employment records to be updated as necessary to keep them current
at all times.
(b) The records required by subsection
(a) of this section shall be kept available and open for inspection upon demand by the chief of police or his designated agent(s).
(1983 Code, sec. 14-261; Ordinance 9903, sec. 1, adopted 7/11/1996; Ordinance 10020, sec. 1, adopted 10/9/1997)
It shall be unlawful for a permit holder or an agent or employee
of a permit holder to allow a person who is younger than eighteen
(18) years of age, or under twenty-one (21) years of age if the sale
or consumption of alcoholic beverages is an aspect of the venture,
to enter the premises of the sexually oriented business.
(1983 Code, sec. 14-263; Ordinance 9903, sec. 1, adopted 7/11/1996; Ordinance 10020, sec. 1, adopted 10/9/1997)
(a) No
part of the premises used as a sexually oriented business, other than
a sexually oriented motel, shall be used as living quarters or as
a residence on a temporary or permanent basis.
(b) No
sexually oriented business shall use an entrance or exit that also
provides a direct passageway to any other type of business, residence
or living quarters.
(c) When
open for business, all entry and exit doors shall remain unlocked,
and no obstruction shall be placed so as to prevent or impede ingress
or egress.
(d) The permit holder or individual designated under section
8.09.043(a)(20) shall remain upon the premises and on duty at all times said business is open.
(e) The permit holder and each person designated under section
8.09.043(a)(20) by the permit holder to manage, direct or control the business shall remain legally responsible for the conduct of each employee subject to his control.
(1983 Code, sec. 14-254; Ordinance 9903, sec. 1, adopted 7/11/1996; Ordinance 10020, sec. 1, adopted 10/9/1997)
(a) A
person commits an offense if, in a business establishment open to
persons under the age of seventeen (17) years, he displays a book,
pamphlet, newspaper, magazine, film, or videocassette, the cover of
which depicts, in a manner calculated to arouse sexual lust or passion,
any of the following:
(1) Human sexual intercourse, masturbation, or sodomy;
(2) Fondling or other erotic touching of human genitals, pubic region,
buttocks, or female breasts;
(3) Less than completely and opaquely covered human genitals, or that
portion of the female breast below the top of the areola; or
(4) Human male genitals in a discernibly turgid state, whether covered
or uncovered.
(b) In
this section “display” means to locate an item in such
a manner that, without obtaining assistance from an employee of the
business establishment:
(1) It is available to the general public for handling and inspection;
or
(2) The outside cover on the item is visible to members of the general
public.
(1983 Code, sec. 14-257; Ordinance 9903, sec. 1, adopted 7/11/1996; Ordinance 10020, sec. 1, adopted 10/9/1997)