It is the purpose of this article to regulate sexually oriented
businesses to promote health, safety, and morals, 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. It is also [the intent of this article]
to limit the display of such materials where they may be visible to
persons who have no desire to see them. Similarly, it is not the intent
[to deny] adults [access] 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.
(1998 Code, sec. 4.401)
An establishment having as a substantial or significant portion
of its stock in trade, books, magazines, and other printed matter,
or photographs, films, motion pictures, videocassettes or video reproductions,
slides, or “peep shows” of those items, which are distinguished
or characterized by their emphasis on pictorial or photographic representations
of “specified sexual activities” or “specified anatomical
areas” (as defined herein), or an establishment with a segment
or section devoted to the sale or display of such material. A “significant
or substantial portion” shall mean more than one-third (1/3)
of the stock in trade or sales of the described material in excess
of five thousand dollars ($5,000.00) retail value per year.
A nightclub, bar, restaurant, or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity;
Live performances which are characterized by the exposure of
“specified anatomical areas” or [by] “specified
sexual activities,” or “specified anatomical areas”;
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 description of “specified sexual
activities”; and has a sign visible from the public right-of-way
which advertises the availability of this type of photographic reproductions;
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.
An enclosed building or outdoor screen presenting material
distinguished or characterized by an emphasis on matter depicting,
describing or relating to “specified sexual activities”
or “specified anatomical areas” (as defined herein) for
observation by patrons of such establishments.
A person or business association who furnishes, offers to
furnish, or advertises to furnish escorts, as one of its primary business
purposes, for a fee, tip, or other consideration.
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.
A business or commercial enterprise that, as one of its primary
business purposes, offers for any form of consideration:
The commercial enterprises whose major business is the offering
of a service which is intended to provide sexual stimulation or sexual
gratification to the customer, including, but not limited to, massage
parlors, nude modeling studios, love parlors, adult bookstores, adult
video stores, adult motion picture theaters, adult cabarets, escort
agencies, adult motels, and sexual encounter centers, and such establishment
is customarily not open to the public and excludes any minor by reason
of age.
Less than completely covered human genitals, pubic region,
buttocks, and female breast below a point immediately above the top
of the areola.
Human genitals in a state of actual or simulated sexual stimulation
or arousal;
Acts of human masturbation, sexual intercourse or sodomy;
Fondling or other erotic touching of human genitals, pubic region,
buttocks, or female breast;
“Sexual intercourse,” “sexual contact,”
or “deviate sexual intercourse” as defined in section
21.01, Texas Penal Code.
(1998 Code, sec. 4.402)
No building permit or certificate of occupancy may be granted
for, and a person commits an offense if he operates or causes to be
operated, a sexually oriented commercial activity nearer than one
thousand (1,000) feet from the nearest property line of any land in
any residential zone, or any public, private, or parochial school,
day care center, library, park, playground, or other recreational
facility, whether commercial or nonprofit, in any other zones, or
any church, convent, monastery, synagogue, or other similar place
of religious worship, or the property line of a lot devoted to residential
use.
(1998 Code, sec. 4.403(a))
No individual, proprietorship, partnership, corporation, association,
or other legal entity, whether as owner, manager, operator, employee
or person in charge of an establishment conducting sexually oriented
commercial activities, shall cause, suffer, or permit any advertisements,
displays, or other promotional materials to be shown or exhibited
so as to be visible to the public from pedestrian sidewalks or walkways
or from other public streets, alleys or areas, nor permit any building
opening, entry or window for any structure containing a sexually oriented
commercial activity to be located, covered, or screened in such a
manner as to permit a view into the interior of such structure from
any public, semi-public, or private area not a part of the property
of said structure.
(1998 Code, sec. 4.403(c))
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 permit, the application
shall be accompanied by a diagram of the premises showing a plan thereof
specifying the location of one (1) 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 subject and should be
drawn to a designated scale or with marked dimensions sufficient to
show the various interior [areas] of the premises to accuracy of plus
or minus six (6) inches. The city administrator 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 the manager’s
station may be made without the prior approval of the city administrator
or his designee.
(4)
It
is the duty of the owners and operator of the premises to ensure that
at least one (1) 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 have 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 of the manager’s stations. The view required herein
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 (5) of this section 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 (1) of this section.
(7)
The
premises shall be equipped with overhead lighting fixtures of sufficient
intensity to [maintain] illumination of not less than one (1) footcandle
as measured at 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.
(1998 Code, sec. 4.403(d))
An additional regulation for an adult motel is if 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 no more less [sic] than ten (10) hours creates a rebuttable
presumption that the establishment is an adult motel as that term
is defined in this article and a person in control of a sleeping room
in a hotel, motel, or similar commercial establishment that does not
have a sexually oriented business permit [commits an offense if]:
(1)
He
rents or subrents a sleeping room to a person;
(1998 Code, sec. 4.403(e))
(a)
A
person commits an offense if he operates a sexually oriented business
without a valid permit issued by the city for the particular type
of business.
(b)
An
application for a permit must be made on a form provided by the city.
The application form shall be sworn to and shall include:
(1)
The name and address of the applicant;
(2)
State whether or not the applicant meets each of the requirements
set forth in this article;
(3)
The name and address of each person required to sign the application pursuant to subsection (d) of this section, and the name and address of the type of entity (if any) of each person which owns or controls an interest in the business to be licensed; and
(4)
Such other matters, consistent with this article, as may be specified
in the application form.
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The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied in the business. The sketch or diagram need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches. Applicants who must comply with [section 4.08.005 shall] submit a diagram meeting the requirements of section 4.08.005.
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(c)
The
applicant must be qualified according to the provisions of this article
and the premises must be inspected and found to be in compliance with
the law by the health department, fire department, and building official.
(d)
If a person who wishes to operate a sexually oriented business is an individual, he must sign an application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual who directly, or indirectly through one (1) or more intermediaries, owns or controls a ten (10) percent or greater interest in the business [such person] must sign and submit, as an applicant, a separate application containing all applicable information required by subsection (b) of this section. Each applicant must be qualified under section 4.08.042 and each applicant shall be considered the holder of a permit if a permit is granted.
(1998 Code, sec. 4.403(b))
(a)
The
city administrator shall approve the issuance of a permit to an applicant
or the transfer by an applicant of all or any part of his ownership
or control of a sexually oriented business within thirty (30) days
after receipt of an application unless he finds one (1) or more of
the following to be true:
(1)
An applicant is under eighteen (18) years of age;
(2)
An applicant or an applicant’s spouse is overdue in his payment
to the city of taxes, fees, or penalties assessed against him or imposed
upon him in relation to a sexually oriented business;
(3)
An applicant has failed to provide information reasonably necessary
for issuance of the permit 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
(2) years immediately preceding the application. The fact that a conviction
is being appealed shall have no effect;
(5)
An applicant is residing with a person who has been denied a permit
by the city to operate a sexually oriented business within the preceding
twelve (12) months, or residing with a person whose permit to operate
a sexually oriented business has been revoked within the preceding
twelve (12) months;
(6)
The premises to be used for the sexually oriented business are not
in compliance with applicable zoning laws or have not been approved
by the health department, the fire department, and the building official
as being in compliance with applicable laws and ordinances;
(7)
The license fee required by this article has not been paid;
(8)
An applicant or the proposed establishment is in violation of or
is not in compliance with any of the regulations of this article;
(9)
An applicant or an applicant’s spouse has been convicted of
a crime:
(A)
Involving:
(i)
Prostitution;
(ii)
Promotion of prostitution;
(iii)
Aggravated promotion of prostitution;
(iv)
Compelling prostitution;
(v)
Obscenity;
(vi)
Sale, distribution or display of harmful material to minor;
(vii)
Sexual performance by a child;
(viii)
Possession of child pornography;
(x)
Sexual assault or aggravated sexual assault as described in
chapter 22 of the Texas Penal Code;
(xi)
Incest, solicitation of a child, or harboring a runaway child
as described in chapter 25 of the Texas Penal Code; or
(xii)
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 of 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 (2) or more misdemeanor offenses or combination of misdemeanor
offenses occurring within any 24-month period.
(b)
The
permit, 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 permit 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.
(1998 Code, sec. 4.404)
The annual fee for a sexually oriented business permit is as provided for in the fee schedule found in appendix A of this code.
(1998 Code, sec. 4.405)
(a)
An
applicant or the holder of the permit shall permit representatives
of the police department, health department, fire department, electrical
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 above-described departments
at any time it is occupied or open for business.
(1998 Code, sec. 4.406)
(a)
Each permit shall expire one (1) year from the date of issuance and may be renewed only by making application as provided in section 4.08.041. Application for renewal should be made at least thirty (30) days before the expiration date.
(b)
When
the city administrator denies renewal of a permit, the applicant shall
not be issued a permit for one (1) year from the date of denial. If,
subsequent to denial, the city administrator finds that the basis
for denial of the renewal permit has been corrected or abated, the
applicant may be granted a permit if at least ninety (90) days have
elapsed since the date denial became final.
(1998 Code, sec. 4.407)
(a)
If
the city administrator denies the issuance of a permit or the renewal
of a permit, he shall send to the applicant, by certified mail, return
receipt requested, written notice of his action and the right to an
appeal. The aggrieved party may appeal the decision of the city administrator
to the city council. The filing of an appeal stays the action of the
city.
(b)
The
applicant may, not later than ten (10) calendar days after receiving
notice of the denial, file with the city secretary a written request
for a hearing before the city council.
(c)
A
hearing by the council may proceed if a quorum is present. The council
shall hear and consider evidence offered by any interested person.
(d)
The city council may, in its discretion, grant an exemption from the locational restrictions of section 4.08.003 if it meets all of 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 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 of the city code;
(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
city council shall grant or deny the exemption by a majority vote[.
Failure to reach a majority vote] shall result in denial of the exemption.
Disputes of fact shall be decided on the basis of a preponderance
of the evidence. The decision of the council regarding the permit
appeal is final.
(f)
If the city council grants the exemption, the exemption is valid for one (1) year from the date of the council’s action. Upon the expiration of an exemption, the sexually oriented business is in violation of the locational restriction in section 4.08.003 [until the applicant applies for and] receives another exemption.
(g)
If
the city council denies the exemption, the applicant may not reapply
for an exemption until at least twelve months have elapsed since the
date of the council’s action.
(1998 Code, sec. 4.408)
