(a)
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 continued concentration 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 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.
(b)
It is the intent of the city council that the location regulations of section 4.05.013 of this article are promulgated pursuant to chapter 243 of the Local Government Code of the state. It is the intent of the city council that all other provisions of this article are promulgated pursuant to the city charter and article 1175, Revised Civil Statutes of Texas and its successor provisions in the Local Government Code.
(1996 Code, sec. 4.401)
As used in this article, unless the context otherwise indicates:
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.”
A commercial establishment which as one of its principal
business purposes offers for sale or rental for any form of consideration
any one or more of the following:
Books, magazines, periodicals or other printed matter, or photographs,
films, motion pictures, videocassettes or video reproductions, slides,
or other visual representations which depict or describe “specified
sexual activities” or “specified anatomical areas”;
or
Instruments, devices, paraphernalia which are designed for use
in connection with “specified sexual activities.”
A nightclub, bar, restaurant, 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”;
or
Films, motion pictures, videocassettes, slides, or other photographic
reproductions which are characterized by the depiction or description
of “specified sexual activities” or “specified anatomical
areas.”
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films,
motion pictures, videocassettes, slides, or other photographic reproductions
which are characterized by the depiction or description of “specified
sexual activities” or “specified anatomical areas”;
and has a sign visible from the public right-of-way which advertises
the availability of this adult type of photographic reproductions;
or
Offers a sleeping room for rent for a period of time that is
less than ten (10) hours; or
Allows a tenant or occupant of a sleeping room to subrent the
room for a period of time that is less than ten (10) hours.
A commercial establishment where, for any form of consideration,
films, motion pictures, videocassettes, slides, or similar photographic
reproductions are regularly shown which are characterized by the depiction
or description of “specified sexual activities” or “specified
anatomical areas.”
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.”
The board of adjustment of the city, which shall act as the
appeals board for all purposes of this article.
The chief of police or his designated agent.
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 privately perform a striptease
for another person.
A person or business association who furnishes, offers to
furnish, or advertises to hire escorts as one of its primary business
purposes, for a fee, tip, or other consideration.
Any of the following:
The opening or commencement of any sexually oriented business
as a new business;
The conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business;
The addition of any sexually oriented business to any other
existing sexually oriented business; or
The relocation of any sexually oriented business.
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.
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.
To 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 owner, part owner,
or licensee of the business.
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
A single-family, duplex, townhouse, multiple-family or mobile
home zoning district as defined in the city zoning ordinances as amended.
A single-family, duplex, multiple-family, townhouse, or mobile
home park use as defined in the city zoning ordinances as amended.
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.
A business or commercial enterprise that, as one of its primary
business purposes, offers for any form of consideration:
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.
Human genitals in a state of sexual arousal.
Any of the following:
The fondling or other erotic touching of human genitals, pubic
region, buttocks, anus, or female breasts;
Sex acts, normal or perverted, actual or simulated, including
intercourse, oral copulation, or sodomy;
Masturbation, actual or simulated; or
Excretory functions as part of or in connection with any of
the activities set forth in (1) through (3) above.
The increase in floor area occupied by the business by more
than twenty-five (25) percent, as the floor area exists as of the
date of adoption of this article. (July 18, 1994)
Any of the following:
The sale, lease, or sublease of the business;
The transfer of securities which constitute a controlling interest
in the business, whether by sale, exchange, or similar means; or
The establishment of a trust, gift, or other similar legal device
which transfers the ownership or control of the business, except for
transfer by bequest or other operation of law upon the death of the
person possessing the ownership or control.
(1996 Code, sec. 4.402)
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.
(1996 Code, sec. 4.403)
(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 the accuracy of plus or minus six inches. Applicants who must comply with section 4.05.019 of this article shall submit a diagram meeting the requirements of section 4.05.019.
(c)
The
applicant must be qualified according to the provisions of this article.
(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 twenty (20) percent or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under section 4.05.005 and each applicant shall be considered a licensee if a license is granted.
(e)
The
fact that a person possesses a valid license for any other type of
business does not exempt him from the requirement of obtaining a sexually
oriented business license.
(1996 Code, sec. 4.404)
(a)
The
chief of police shall approve and issue any license required hereunder
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:
(1)
An applicant is under 18 years of age.
(2)
An applicant or an applicant’s spouse is overdue in payment
to 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.
(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 article, other than the offense
of operating a sexually oriented business without a license, within
two (2) years immediately preceding the application. The fact that
a conviction is being appealed shall have no effect.
(5)
The license fee required by this article has not been paid.
(6)
An applicant has been employed in a sexually oriented business in
a managerial capacity within the preceding twelve (12) months and
has demonstrated an inability to operate or manage a sexually oriented
business premises in a peaceful and law-abiding manner, thus necessitating
action by law enforcement officers.
(8)
An applicant or an applicant’s spouse has been convicted of
a crime
(A)
Involving:
(i)
Any of the following offenses as described in chapter 43 of
the Texas Penal Code:
(ii)
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;
(dd)
Sexual assault or aggravated sexual assault as
described in chapter 22 of the Texas Penal Code;
(ee)
Incest, solicitation of a child, or harboring
a runaway child described in chapter 25 of the Texas Penal Code; or
(ff)
Criminal attempt, conspiracy, or solicitation
to commit any of the foregoing offenses;
(B)
For which:
(i)
Less than two (2) 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 a misdemeanor offense;
(ii)
Less than five (5) 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 (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 or more misdemeanor offenses or combination of misdemeanor offenses
occurring within any twenty-four (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 4.05.005(a)(8)(A) may qualify for a sexually oriented business license only when the time period required by subsection 4.05.005(a)(8)(B) has elapsed.
(d)
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.
(1996 Code, sec. 4.405)
The annual fee for a sexually oriented business license shall be as provided for in the fee schedule found in appendix A to this code.
(1996 Code, sec. 4.406)
(a)
An
applicant or licensee shall permit representatives of the police department,
health department, fire department, planning department, code services
department, and building inspection department 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 city at any time it is occupied
or open for business.
(c)
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.
(1996 Code, sec. 4.407)
Each license shall expire one (1) year from the date of issuance and may be renewed only by making application as provided in section 4.05.004. Application for renewal should be made at least thirty (30) days before the expiration date, and when made less than thirty (30) days before the expiration date, the expiration of the license will not be affected.
(1996 Code, sec. 4.408)
The chief of police shall suspend a license for a period not
to exceed thirty (30) days if he determines that a licensee or an
employee of a licensee has:
(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 article;
(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.
(1996 Code, sec. 4.409)
(a)
The chief of police shall revoke a license if a cause of suspension in section 4.05.009 occurs and the license has been suspended within the preceding twelve (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 4.05.005(a)(8)(A) for which the time period required in section 4.05.005(a)(8)(B) has not elapsed;
(6)
On two (2) or more occasions within a twelve (12) month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in section 4.05.005(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 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 4.05.010(b)(7) 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.
(e)
When the chief of police revokes a license, the revocation shall continue for one (1) year, and the licensee shall not be issued a sexually oriented business license for one (1) 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 ninety (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 subsection 4.05.005(a)(8)(B) has elapsed.
(1996 Code, sec. 4.410)
If the chief of police denies the issuance of a license or suspends
or revokes a license, the chief of police shall send to the applicant,
or licensee, by certified mail, return receipt requested, written
notice of the action and the right to an appeal. In the case of suspension
or revocation of an existing license, written notice shall also be
posted upon the business premises. Upon receipt of written notice
of the denial, suspension, or revocation, the licensee whose application
for a license has been denied or whose license has been suspended
or revoked shall have the right to appeal to the board of adjustment.
The filing of an appeal stays the action of the chief of police in
suspending, denying or revoking a license until the board of adjustment
makes a final decision. The decision of the board of adjustment shall
be final and any appeal shall be made directly to the state district
court. An appeal to the state district court must be filed within
thirty (30) days after the receipt of notice of the decision of the
board of adjustment. The licensee shall bear the burden of proof in
court.
(1996 Code, sec. 4.411)
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.
(1996 Code, sec. 4.412)
(a)
A
person commits an offense if he operates or causes to be operated
a sexually oriented business within fifteen hundred (1,500) feet of:
(1)
A church, rectory, or church-related structure;
(2)
A public, private or parochial elementary or secondary school, or
a school zone in which the speed of traffic is regulated by posted
signs during certain school hours;
(3)
A boundary of a residential district or historical district;
(4)
A public park, playground or recreational facility, library, day
care center, nursery school or kindergarten; or
(5)
The property line of a lot devoted to a residential use;
(6)
Any public transportation facility (DART Park & Ride).
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The above location restrictions apply whether or not the church,
rectory, church-related structure, public school, private school,
parochial school, elementary school, secondary school, school zone,
residential district boundary, public park, playground, recreational
facility, library, day care center, nursery school, kindergarten or
property line devoted to residential use is located within or outside
the city.
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(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 one thousand (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, rectory, public or private elementary or secondary school, day care center, nursery school, kindergarten, or to the nearest boundary of an affected public park, playground, library, recreational facility, 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 the effective date of this article (July 18, 1994), that is in violation of subsection (a), (b), or (c) 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 thirty (30) days or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within one thousand (1,000) feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business is nonconforming.
(g)
A
sexually oriented business lawfully operating on the effective date
of this article (July 18, 1994) as a conforming use is not rendered
a nonconforming use by the location, subsequent to grant or renewal
of the sexually oriented business license, of a church, rectory, or
church-related structure; a public, private or parochial elementary
or secondary school, or a school zone in which the speed of traffic
is regulated by posted signs during certain school hours; a boundary
of a residential district or historical district within fifteen hundred
(1,500) feet of the sexually oriented business; a public park, playground
or recreation facility, library, day care center, nursery school or
kindergarten; or the property line of a lot devoted to a residential
use. 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.
(1996 Code, sec. 4.413)
(a)
If the chief of police denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of section 4.05.013, then the applicant may, not later than ten (10) calendar days after receiving notice of the denial, file with the chief of police a written request for an exemption from the locational restrictions of section 4.05.013.
(b)
If
the written request is filed with the chief of police within the ten
(10) day limit, the board of adjustment shall consider the request.
The board shall set a date for the hearing within sixty (60) days
from the date the written request is received.
(c)
A
hearing by the board may only proceed if all the board members are
present. The board shall hear and consider evidence offered by any
interested person. The formal rules of evidence do not apply.
(d)
The board may, in its discretion, grant an exemption from the locational restrictions of section 4.05.013 if it makes the following findings:
(1)
That the location of the proposed sexually oriented business will
not have a detrimental effect on nearby properties or be contrary
to the public safety or welfare;
(2)
That the granting of the exemption will not violate the spirit and
intent of this article;
(3)
That the location of the proposed sexually oriented business will
not downgrade the property values or quality of life in the adjacent
areas or encourage the development of urban blight;
(4)
That the location of an additional sexually oriented business in
the area will not be contrary to any program of neighborhood conservation
nor will it interfere with any efforts of urban renewal or restoration;
and
(5)
That all other applicable provisions of this article will be observed.
(e)
The
board shall grant or deny the exemption by a majority vote. A majority
of the members shall be necessary to affirm, modify or reverse any
decision. Disputes of fact shall be decided on the basis of a preponderance
of the evidence. The decision of the board is final.
(f)
If the board grants the exemption, the exemption is valid for one (1) year from the date of the board’s action. Upon the expiration of an exemption, the sexually oriented business is in violation of the locational restrictions of section 4.05.013 until the applicant applies for and receives another exemption.
(g)
If
the board denies the exemption, the applicant may not reapply for
an exemption until at least twelve (12) months have elapsed since
the date of the board’s action.
(1996 Code, sec. 4.414)
(a)
An
escort agency shall not employ any person under the age of 18 years.
(b)
A
person commits an offense if he acts as an escort or agrees to act
as an escort for any person under the age of 18 years.
(1996 Code, sec. 4.415)
(a)
A
nude model studio shall not employ any person under the age of 18
years.
(b)
A
person under the age of 18 years commits an offense if he appears
in a state of nudity in or on the premises of a nude model studio.
It is a defense to prosecution under this subsection if the person
under 18 years was in a restroom not open to public view or persons
of the opposite sex.
(c)
A
person commits an offense if he appears in a state of nudity or knowingly
allows another to appear in a state of nudity in an area of a nude
model studio premises which can be viewed from the public right-of-way.
(d)
A
nude model studio shall not place or permit a bed, sofa, or mattress
in any room on the premises which can be viewed from the public right-of-way.
(1996 Code, sec. 4.416)
(a)
The
requirements and provisions of this article remain applicable to adult
theaters and adult motion picture theaters.
(b)
A
person commits an offense if he knowingly allows a person under the
age of eighteen (18) years to appear in a state of nudity in or on
the premises of an adult theater or adult motion picture theater.
(c)
A
person under the age of eighteen (18) years commits an offense if
he knowingly appears in a state of nudity in or on the premises of
an adult theater or adult motion picture theater.
(1996 Code, sec. 4.417)
(a)
Evidence
that a sleeping room in a hotel, motel, or similar commercial establishment
has been rented and vacated two (2) or more times in a period of time
that is less than ten (10) hours creates a rebuttable presumption
that the establishment is an adult motel as that term is defined in
this article.
(b)
A
person commits an offense if, as the person in control of a sleeping
room in a hotel, motel, or similar commercial establishment that does
not have a sexually oriented business license, he rents or subrents
a sleeping room to a person and within ten (10) hours from the time
the room is rented, he rents or subrents the same sleeping room again.
(1996 Code, sec. 4.418)
(a)
A
person who operates or causes to be operated a sexually oriented business,
other than an adult motel, which exhibits on the premises in a viewing
room of less than one hundred fifty (150) square feet of floor space,
a film, videocassette, or other video reproduction which depicts specified
sexual activities or specified anatomical areas, shall comply with
the following requirements:
(1)
Upon application for a sexually oriented business license, the application
shall be accompanied by a diagram of the premises showing a plan thereof
specifying the location of one or more manager’s stations and
the location of all overhead lighting fixtures and designating any
portion of the premises in which patrons will not be permitted. A
manager’s station may not exceed thirty-two (32) square feet
of floor area. The diagram shall also designate the place at which
the permit will be conspicuously posted, if granted. A professionally
prepared diagram in the nature of an engineer’s or architect’s
blueprint shall not be required; however, each diagram should be oriented
to the north or to some designated street or object and should be
drawn to a designated scale or with marked dimensions sufficient to
show the various internal dimensions of all areas of the interior
of the premises to an accuracy of plus or minus six (6) inches. The
chief of police may waive the foregoing diagram for renewal applications
if the applicant adopts a diagram that was previously submitted and
certifies that the configuration of the premises has not been altered
since it was prepared.
(2)
The application shall be sworn to be true and correct by the applicant.
(3)
No alteration in the configuration or location of a manager’s
station may be made without the prior approval of the chief of police
or his designee.
(4)
It is the duty of the owners and operator of the premises to ensure
that at least one employee is on duty and situated in each manager’s
station at all times that any patron is present inside the premises.
(5)
The interior of the premises shall be configured in such a manner
that there is an unobstructed view from a manager’s station
of every area of the premises to which any patron is permitted access
for any purpose excluding restrooms. Restrooms may not contain video
reproduction equipment. If the premises has two (2) or more manager’s
stations designated, then the interior of the premises shall be configured
in such a manner that there is an unobstructed view of each area of
the premises to which any patron is permitted access for any purpose
from at least one (1) of the manager’s stations. The view required
in this subsection must be by direct line of sight from the manager’s
station.
(6)
It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in subsection (a)(5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times that any patron is present in the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection (a)(1) of this section.
(7)
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 one (1.0) footcandle
as measured at the floor level.
(8)
It shall be the duty of the owners and operator and it shall also
be the duty of any agents and employees present in the premises to
ensure that the illumination described above is maintained at all
times that any patron is present in the premises.
(1996 Code, sec. 4.419)
(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 perversion
for commercial gain, 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, buttocks,
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:
(1996 Code, sec. 4.420)
(b)
If the sexually oriented business involved is a nude model studio or sexual encounter center, then violation of section 4.05.013 of this article is punishable as a class A misdemeanor.
(d)
It is a defense to prosecution under sections 4.05.004(a), 4.05.013, 4.05.016(d) that a person appearing in a state of nudity did so in a modeling class operated:
(1)
By a proprietary school licensed by the state, a college, junior
college, or university supported entirely or partly by taxation;
(2)
By a private college or university which maintains and operates educational
programs in which credits are transferable to a college, junior college,
or university supported entirely or partly by taxation; or
(3)
In a structure:
(A)
Which has no sign visible from the exterior of the structure and
no other advertising that indicates a nude person is available for
viewing; and
(B)
Where in order to participate in a class a student must enroll at
least three days in advance of the class; and
(C)
Where no more than one nude model is on the premises at any one time.
(e)
It is a defense to prosecution under section 4.05.004(a) or section 4.05.013 that each item of descriptive, printed, film, or video material offered for sale or rental, taken as a whole, contains serious literary, artistic, political, or scientific value.
(1996 Code, sec. 4.421)
A person who operates or causes to be operated a sexually oriented business, without a valid license or in violation of section 4.05.013 of this article is subject to a suit for injunction as well as prosecution for criminal violations.
(1996 Code, sec. 4.422)
