This chapter will be known, and may be cited, as the Sexually
Oriented Business Ordinance of the City of Pflugerville.
(Ordinance 540-99-04-27, passed 4-27-99; Am. Ordinance 834-06-06-27, passed 6-27-06; Ordinance
1148-13-06-25, passed 6-25-13)
For the purpose of this chapter, the following definitions will
apply unless the context clearly indicates or requires a different
meaning. Terms not defined herein will be construed in accordance
with customary usage. The following terms are not necessarily mutually
exclusive as one Sexually Oriented Business operation may provide
more than one form of activity, entertainment or merchandise.
Any place to which the public is permitted or invited wherein
coin-operated, 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 5 or fewer
Persons per machine at any time, and where the images so displayed
are distinguished or characterized by an emphasis on matters exhibiting,
depicting or describing Specified Sexual Activities or Specified Anatomical
Areas as defined herein.
A commercial establishment that offers for sale or rental
any one or more of the following:
Books, magazines, periodicals or other printed matter, photographs,
films, motion pictures, video cassettes or video reproductions, slides,
or other visual representations that are distinguished or characterized
by an emphasis on matters exhibiting, depicting or describing Specified
Sexual Activities or Specified Anatomical Areas; or
Instruments, devices, or paraphernalia that are designed for
use in connection with Specified Sexual Activities or Simulated Nudity.
This does not include items used for conception control or for protection
from sexually transmitted diseases.
A nightclub, bar, lounge, or similar commercial establishment
which provides or features to Customers live performances by Employees
or Entertainment Personnel that are distinguished or characterized
by any one or more of the following:
A hotel, motel or similar commercial establishment that Rents
or otherwise permits a room to be occupied in exchange for any form
of consideration, and:
Offers accommodations to the tenant or occupier of the room
for any television transmissions, films, motion pictures, video cassettes,
slides, or other photographic reproductions that are distinguished
or characterized by an emphasis on matters exhibiting, depicting or
describing Specified Sexual Activities and/or Specified Anatomical
Areas and has a sign visible from the public right-of-way or otherwise
advertises the availability of this type of adult accommodations;
or
Offers a sleeping room(s) for Rent for a period of time that
is less than 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 10 hours;
Evidence that a sleeping room in a hotel, motel or similar commercial
establishment has been Rented and vacated two or more times in less
than a ten-hour period creates a rebuttable presumption that the establishment
is Operated as an Adult Motel.
A commercial establishment that Regularly features non-live
performances or entertainment such as films, motion pictures, video
cassettes, slides, or similar photographic reproductions that are
distinguished or characterized by an emphasis on matters exhibiting,
depicting or describing Specified Sexual Activities and/or Specified
Anatomical Areas.
A theater, concert hall, auditorium, or similar commercial
establishment that Regularly features Persons who appear in a State
of Nudity, or features live performances which are distinguished or
characterized by an emphasis on the exposure of Specified Anatomical
Areas or by an emphasis on Specified Sexual Activities.
Any Person required to sign an application for a Specialized
Certificate of Occupancy.
Any person required to sign an application for an Employee
license.
A building used as a children’s boarding home, child
placing agency or other place for the care or custody of children
under 14 years of age.
A building 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.
An authorized representative of any of the following city
departments or divisions:
The Planning and Zoning Commission of the City of Pflugerville.
Any Person who:
Enters the premises and patronizes a Sexually Oriented Business,
whether or not in exchange for the payment of an admission fee or
any other form of consideration, gratuity or as a guest of a member;
or
Purchases, Rents, otherwise partakes of any sexually oriented
merchandise, goods, entertainment or other services while on the premises.
A house, duplex, apartment, townhouse, condominium, mobile
home, or any other building used for residential purposes, whether
single family or multi-family, attached or detached, and regardless
of whether tenant or owner occupies land that is not Residentially
Zoned Land.
A building used to provide services for the elderly, whether
residential, on an interim basis or on an out-patient basis.
Any Person on the premises of a Sexually Oriented Business
who receives any form of compensation, including tips or gratuities,
from the Operator, manager, Customers, other Employees or Entertainment
Personnel, and in exchange therefor:
Renders any work, service, performance or exhibition whatsoever,
directly or indirectly, to or for a Customer; or
Renders any other support service whatsoever, directly or indirectly,
for or on behalf of the furtherance of the business operations; and
Includes, but is not necessarily limited to, bartenders, cashiers,
dancers, disc jockeys, Escorts, hosts, hostesses, models, masseurs,
outcall Persons, strippers, models, waiters, waitresses, or other
Persons working on or about the premises.
Any Person, including Persons traditionally regarded as “independent
contractors,” who receives any form of compensation, including
tips or gratuities, from the Operator, Customers, Employees or other
Entertainment Personnel and in exchange therefor:
Renders any live entertainment, service, performance or exhibition
whatsoever, directly or indirectly, to or for a Customer for the furtherance
of the business operation; and
Includes, but is not necessarily limited to, bartenders, cashiers,
dancers, disc jockeys, Escorts, hosts, hostesses, models, masseurs,
outcall Persons, strippers, models, waiters, waitresses, or other
Persons working on or about the premises.
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 striptease
for another Person.
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.
An establishment or area directed primarily to families including,
but not limited to, restaurants, movie theaters, private parks, and
shopping centers.
A building used to provide health services including, but
not limited to, human in-patient or out-patient medical care facilities
for the sick or injured licensed pursuant to Texas Hospital Licensing
Law, Vernon’s Texas Codes Annotated Health and Safety Code Chapter
241, facilities operated by an agency of the federal government, or
convalescent facilities licensed pursuant to Vernon’s Texas
Codes Annotated Health and Safety Code Chapter 242.
A Person who owns or leases real property within 1,500 feet
of a proposed Sexually Oriented Business.
Any method by which a Person utilizes his or her hands, feet
or an instrument for treating the superficial parts of a Customer’s
body for medical, hygienic, exercise, entertainment, relaxation, or
stimulation purposes by rubbing, stroking, kneading, tapping, pounding
or vibrating.
Any establishment where an Employee or Entertainment Personnel
performs a Massage or Specified Sexual Activities while appearing
in a State of Nudity, Simulated Nudity or while displaying Specified
Anatomical Areas, and is also provided or allowed to be observed,
sketched, drawn, painted, sculptured, photographed, or similarly depicted
to Customers.
Any establishment where an Employee or Entertainment Personnel
appears in a State of Nudity, Simulated Nudity or displays Specified
Anatomical Areas, and is also provided or allowed to be observed,
sketched, drawn, painted, sculptured, photographed, or similarly depicted
to Customers.
Appearing while any of the Specified Anatomical Areas are
less than completely and opaquely covered.
To cause to function or to put or keep in operation.
The Person(s) in whose name a valid Specialized Certificate
of Occupancy has been issued for a Sexually Oriented Business pursuant
to this chapter; or
The Person(s) in whose name a Specialized Certificate of Occupancy
would be required in order to lawfully operate a Sexually Oriented
Business pursuant to this chapter; or
The Person(s) who operates or causes to be Operated any form
of Sexually Oriented Business which is subject to regulation by this
chapter.
Any individual, proprietorship, partnership, corporation,
association, or other legal entity.
For the purposes of determining whether a business is subject
to regulation, this term means and includes any non-live, sexually
oriented retail sale or rental business activity as defined herein
that is 25% or more of the total business operation at a particular
location. The 25% criteria may be determined by percentages of:
Floor space utilized, inventory of items for sale or rental;
Display areas;
Presentation time of entertainment or performances; or
Gross revenue of the business as measured over any continuous
60-day period.
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Since all live activity is subject to regulations as a sexually
oriented business, the 25% criteria does not apply to any sexually
oriented business featuring or offering any form of live performances,
entertainment, modeling or other live activity.
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A building used by a federal, state or local governmental
agency and open to the general public.
Any land area dedicated to or maintained by a governmental
entity for traditional park-like recreational purposes, but does not
include:
Offering, featuring, promoting or advertising a happening,
occurrence or activity on a recurring basis or at fixed intervals,
or as a customary and regular aspect of the business.
The act of permitting a room or other portion of the premises
to be occupied in exchange for any form of consideration.
Any residentially owned land within the city or a primarily
residential zone that may be created by the city council after the
passage of this chapter or land located in another jurisdiction that
bears a zoning district that permits residential uses, or land outside
the city that either allows residential uses or actually includes
land used as residences.
Includes any of the following:
A building where persons regularly assemble for the purpose
of instruction or education together with the playgrounds, dormitories,
stadium and other structures or grounds used in conjunction therewith;
and
Licensed day care centers, meaning a facility licensed by the
State of Texas or by another governmental entity that provides care,
training, education, custody, treatment or supervision for children
under 14 years of age for less than 24 hours per day.
The term Sexually Oriented Business will be construed to regulate:
The providing, featuring or offering of Employees or Entertainment
Personnel who appear on the premises while in a State of Nudity or
Simulated Nudity and provide live performances or entertainment for
Customers; or
As a Principal Business Operation as defined herein, provides,
features or offers non-live, sexually-explicit entertainment, materials,
or items for sale or rental to Customers; or, provides or offers a
service or exhibition of materials or items that are intended to provide
sexual stimulation or sexual gratification to its Customers, if the
materials or items are distinguished by or characterized by an emphasis
on subject matter depicting, describing or relating to Specified Sexual
Activities or Specified Anatomical Areas; and
Includes, but is not limited to, any form of Sexually Oriented
Business, Adult Arcade, adult bath, Adult Bookstore, Adult Video Store,
adult cabaret, Adult Entertainment Cabaret, Adult Motel, Adult Motion
Picture Theater, Adult Theater, Nude Modeling Business, Massage parlor,
Nude Modeling Studio, adult out-call establishment, Escort Agency,
Sexually Oriented Encounter Center, or other business establishment
conducting sexually oriented activity or Sexually Oriented Entertainment
as defined or regulated herein.
The term Sexually Oriented Business will not be construed to
regulate:
An otherwise lawfully operating retail business that does not
offer or feature sexually explicit merchandise, material or items
for sale or rental to Customers as a Principal Business Operation
(25 percent or less) and does not offer or feature any form of live
Sexually Oriented Entertainment;
Any clothing business that offers wearing apparel for sale to
Customers but does not exhibit merchandise on live models;
A bar, nightclub or lounge or other non-Sexually Oriented Business
that occasionally promotes a swimsuit or similar contest in which
the contestants do not appear “nude” or in a State of
Nudity;
Any medical practice Operated by or employing licensed psychologists,
physicians, physical therapists, registered nurses, chiropractors,
or athletic trainers engaged in practicing the healing arts; or
Any educational courses conducted at a proprietary School licensed
by the State of Texas, or conducted by a private college or university
that operates educational programs in which credits are transferable
to a junior college, college or university licensed by the State of
Texas; if a student must enroll at least 3 days in advance of the
class in order to participate in a class and no more than one nude
model appears before the class at any time.
A commercial enterprise that, for any form of consideration
or prize, offers physical activities, contact, wrestling or tumbling
between male and female Persons, or between Persons of the same sex,
when one or more of the Persons is in a State of Nudity or Simulated
Nudity and the activity is intended to provide sexual stimulation
or sexual gratification to its Customers.
Any variety of live or non-live performances or exhibitions
that are distinguished or characterized by an emphasis on matters
exhibiting, depicting or engaging in Specified Sexual Activities or
while exposing Specified Anatomical Areas, or that provide sexual
gratification or sexual stimulation to Customers.
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.
License issued by the City of Pflugerville that allows a
Sexually Oriented Business to operate at a specific location.
One or more of the following portions of the human body:
Genitals, whether or not in a state of sexual arousal;
Pubic region or pubic hair;
Buttock(s);
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
Any combination of the above.
One or more of the following:
The fondling, massaging or other erotic touching or stimulation
of Specified Anatomical Areas or of an erogenous zone;
Normal or perverted sexual activity, actual or simulated, including
intercourse, oral copulation, or sodomy;
Masturbation, actual or simulated; or
Excretory functions as part of or in conjunction with any of
the activities above.
(Ordinance 540-99-04-27, passed 4-27-99; Am. Ordinance 834-06-06-27, passed 6-27-06; Ordinance
1148-13-06-25, passed 6-25-13)
The following are provided as guidelines for the construction,
interpretation and enforcement of this section:
(A)
It
is the purpose and intent of this section to regulate Sexually Oriented
Business establishments to protect and promote the health, safety,
and general welfare of the citizens of the city and visitors thereto,
and to prevent the decline of residential and business neighborhoods
and the growth of criminal activity, and to establish reasonable and
uniform regulations to prevent the concentration of Sexually Oriented
Businesses within the city.
(B)
It
is the intent of this chapter that these regulations are based on
evidence concerning adverse secondary effects of Sexually Oriented
Businesses on the community presented in hearings and in reports made
available to the City Council, and on findings incorporated in the
cases of City Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986);
Young v. American Mini Theatres, 426 U.S. 50 (1976); FW/PBS, Inc.
v. City of Dallas, 493 U.S. 215 (1990); and City of Los Angeles v.
Alameda Books, Inc., 535 U.S. 425 (2002).
(C)
This
section intends to balance the right of the city’s citizens
to maintain a decent moral society and, on the other hand, the right
of individuals to express themselves freely in accordance with the
guidelines of the Constitution of the United States and United States
Supreme Court rulings pursuant thereto.
(D)
It
is the intent of the City Council to promulgate this chapter pursuant
to Chapter 243 of the Texas Local Government Code, as amended.
(E)
This
chapter is also intended to deter property uses and activities conducted
thereon that, directly or indirectly, cause or would cause adverse
effects on the stability of the immediate neighborhood surrounding
the Sexually Oriented Business.
(F)
It
is not this chapter’s purpose nor is it intended to impose a
limitation or restriction on the content of any communicative materials,
including sexually oriented materials.
(G)
Similarly,
it is not this chapter’s purpose or intent to restrict or deny
lawful access by adults to sexually oriented materials nor to deny
access by the distributors and exhibitors of sexually oriented materials
to their intended market.
(H)
Similarly,
it is not this chapter’s purpose or intent to impose judgment
on the content or merits of any constitutionally protected form of
speech or expression.
(I)
A Specialized
Certificate of Occupancy or Employee license granted under this chapter
does not authorize or legalize any conduct, activity or business that
is illegal under state or federal law.
(Ordinance 540-99-04-27, passed 4-27-99; Am. Ordinance 834-06-06-27, passed 6-27-06; Ordinance
1148-13-06-25, passed 6-25-13)
(A)
Whenever
a Person does an act that is forbidden, fails to perform an act that
is required, or commits an act that is made an offense by any provision
of this chapter, the violation is punishable as provided by Section
243.010(b) of the Texas Local Government Code as a Class A misdemeanor,
as amended. City Enforcement Personnel may issue citations for any
violations of this chapter.
(B)
Each
day that a violation is permitted or continues to exist is a separate
violation.
(C)
When
a citation is issued, the Person to whom the citation was issued must
make appropriate arrangements in the city’s municipal courts
to either plead guilty, plead no contest or request a docket setting
within 12 days. As stated in Section 243.007 (c) of the Local Government
Code, nothing in this chapter limits the ability of plaintiffs to
pursue an appeal for the denial, suspension, or revocation of a Specialized
Certificate of Occupancy or Employee license.
(Ordinance 540-99-04-27, passed 4-27-99; Am. Ordinance 834-06-06-27, passed 6-27-06; Ordinance
1148-13-06-25, passed 6-25-13)
