It is the purpose of this article to regulate sexually oriented
businesses in order to promote the health, safety, morals, and general
welfare of the citizens of the city, and to establish reasonable and
uniform regulations to prevent the concentration of sexually oriented
businesses within the city. The 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 neither 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.
(Ordinance 2011-07-18-02 adopted 7/18/11)
The following definitions apply in this article; words used
but not defined in this article shall have their ordinarily accepted
meaning:
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 image
is so displayed are distinguished or characterized by the depicting
or describing of “specified sexual activities” or “specified
anatomical areas.”
A commercial establishment that 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 that depict or describe specified
sexual activities or specified anatomical areas; or
Instruments, devices, or paraphernalia that are designed for
use in connection with specified sexual activities.
A nightclub, bar, restaurant, or similar commercial establishment
that regularly features:
Persons who appear in a state of nudity or semi-nudity, including
topless dancers, nude dancers or strippers, male or female;
Live performances that are characterized by the exposure of
specified anatomical areas or by specified sexual activities; or
Films, motion pictures, videocassettes, slides, or other photographic
reproductions that are characterized by the depiction or description
of specified sexual activities or specified anatomical areas.
A hotel, motel or similar commercial establishment that:
Offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films,
motion pictures, videocassettes, slides, or other photographic reproductions
that are characterized by the 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 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.
A commercial establishment where, for any form of consideration,
films, motion pictures, videocassettes, slides, or similar photographic
reproductions are shown that are characterized by the depiction or
description of specified sexual activities 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 live performances which are characterized by the exposure
of specified anatomical areas or specified sexual activities.
Any facility that provides care, training, education, custody,
treatment or supervision for one or more children who are not related
by blood, marriage, or adoption to the owner or operator of the facility,
for all or part of the 24-hour day, whether or not the facility operated
for profit or charges for the services it offers.
A facility in which persons regularly assemble for worship,
intended primarily for purposes connected with religious faith, or
for propagating a particular form of belief.
The City of Lakeway’s city manager 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 to privately perform a striptease
for another person.
A person who, or business association that furnishes, offers
to furnish, or advertises to furnish escorts as one of its business
purposes, for a fee, tip, or consideration.
Includes 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 semi-nudity or displays specified anatomical areas is provided
to be observed, sketched, drawn, painted, sculpted, photographed,
or similarly depicted by other persons who pay money or any form of
consideration.
The appearance of a human bare buttock, anus, male genitals,
female genitals, or female breast.
To cause to function or to put or keep in operation. A person
may be found to be operating or causing to be operating 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, condominium, or multifamily district
or area so designated by such uses.
Property used for single-family, duplex, condominium, or
multifamily purposes.
Any public or private learning center, elementary school,
secondary school, junior college, community college, college, university
or other center for post-secondary education.
A state of dress in which clothing covers no more than the
genitals, pubic region, and areolae of the female breasts, 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:
Adult arcade, adult theater, adult bookstore, massage parlor,
nude studio, modeling studio, love parlor or other similar commercial
enterprise, the major business of which is the offering of a service
that is intended to provide sexual stimulation or sexual gratification
to the customer.
Human genitals in a state of sexual arousal.
Includes any of the following:
The increase in floor area occupied by the business by more
than twenty (20) percent, as the floor area existed on the date of
the enactment of this article.
Includes any of the following:
The sale, lease, or sublease of the business;
The transfer of securities that constitute a controlling interest
in the business, whether by sale, exchange, or similar means; or
The establishment of a trust, gift, or other similar legal device
that transfers the ownership or control of the business, except for
transfer by bequest or other operation of law upon the death of the
person possessing the ownership or control.
(Ordinance 2011-07-18-02 adopted 7/18/11)
(a)
The
police department and building and development services department
of the city are hereby authorized to enforce this article, including
but not limited to, the issuance of citations and the revocation of
licenses.
(b)
Except as provided by subsection (c) of this section, any person, firm or corporation who violates any provision of this article or any order made under the authority of this article, or who causes or permits any such violation, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than two thousand dollars ($2,000.00), and assessed court costs as provided by law. Each and every day on which any violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such.
(c)
If the sexually oriented business involved is a nude model studio or sexual encounter center, then violation of section 6.04.031(a) of this article is punishable as a class A misdemeanor.
(Ordinance 2011-07-18-02 adopted 7/18/11)
(a)
It is a defense to prosecution under sections 6.04.031(a) or 6.04.009(d) of this article that a person appearing in a state of nudity or semi-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 or semi-nude person is
available for viewing;
(B)
Where in order to participate in a class a student must enroll at
least three (3) days in advance of the class; and
(C)
Where no more than one (1) nude or semi-nude model is on the premises
at any one time.
(b)
It is a defense to prosecution under section 6.04.031(a) of this article 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.
(Ordinance 2011-07-18-02 adopted 7/18/11)
A person who operates or causes to be operated a sexually oriented
business without a valid license or in violation of this article is
subject to a suit for injunction as well as prosecution for criminal
violations.
(Ordinance 2011-07-18-02 adopted 7/18/11)
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.
(Ordinance 2011-07-18-02 adopted 7/18/11)
(a)
An
applicant or licensee shall permit representatives of the police department
and the building and development services department of the city to
inspect the premises of a sexually oriented business for the purpose
of ensuring 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 police department 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
that are currently being rented by a customer for use as a permanent
or temporary habitation.
(Ordinance 2011-07-18-02 adopted 7/18/11)
(a)
An
escort agency shall not employ any person under the age of eighteen
(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 eighteen (18) years.
(Ordinance 2011-07-18-02 adopted 7/18/11)
(a)
A
nude model studio shall not employ any person under the age of eighteen
(18) years.
(b)
A
person under the age of eighteen (18) years commits an offense if
he appears in a state of nudity or semi-nudity in or on the premises
of a nude model studio. It is a defense to prosecution under this
subsection if the person under eighteen (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 semi-nudity
or knowingly allows another to appear in a state of nudity or semi-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; except that a sofa may be placed in a
reception room open to the public.
(Ordinance 2011-07-18-02 adopted 7/18/11)
(a)
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 or semi-nudity
in or on the premises of an adult theater or adult motion picture
theater.
(b)
A
person under the age of eighteen (18) years commits an offense if
he knowingly appears in a state of nudity or semi-nudity in or on
the premises of an adult theater or adult motion picture theater.
(Ordinance 2011-07-18-02 adopted 7/18/11)
(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.
(Ordinance 2011-07-18-02 adopted 7/18/11)
(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 of 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 (1) or more manager’s stations,
the location of all overhead lighting fixtures, and switches, which
lights are controlled by which switches and designating any portion
of the premises in which patrons will not be permitted. Only agents
or employees shall have access to light switches. 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 inches (6"). The director
of public works may waive the foregoing diagram for renewal applications
if the applicant adopts a diagram that was previously submitted and
certifies that the configuration for 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 director of
public works.
(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 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 also shall be the duty of any agents and employees present in the premises to ensure that the view area specified in subsection (a)(5) of this section remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times that any patron is present on 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 also shall
be the duty of any agents and employees present on the premises to
ensure that the illumination described above is maintained at all
times that any patron is present on the premises.
(Ordinance 2011-07-18-02 adopted 7/18/11)
(a)
A
person commits an offense, if, in a business establishment open to
persons under the age of eighteen (18) 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 agent or employee
of the business establishment:
(Ordinance 2011-07-18-02 adopted 7/18/11)
(a)
A
person commits an offense if he operates, owns, or causes to be operated,
within the territorial limits of the city, 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 city manager. The application form shall be sworn to and shall: (1) include the name and address of the applicant; (2) state whether the applicant meets each of the requirements set forth in section 6.04.032 of this article; (3) state whether the applicant has for a location not previously licensed or permitted not later than the 60th day before the application is filed, prominently posted an outdoor sign at the location stating that a sexually oriented business is intended to be located on the premises and providing the name and business address of the applicant as required by section 243.0075, Texas Local Government Code; (4) include the name and address of each person required to sign the application pursuant to subsection (d) of this section, and the name, address and type of entity (if applicable) of each person or entity owned or controlled by such person that owns or controls an interest in the business to be licensed; and (5) such other matters, consistent with this article, as may be specified in the application form. 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 an accuracy of plus or minus six inches (6"). Applicants who must comply with section 6.04.012 of this article shall submit a diagram meeting the requirements of section 6.04.012 of this article.
(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 city manager.
(d)
If a person who wishes to operate a sexually oriented business is an individual, he or she 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 percent (20%) or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under section 6.04.032 of this article and each applicant shall be considered a licensee if a license is granted.
(Ordinance 2011-07-18-02 adopted 7/18/11)
(a)
The
city manager shall approve the issuance of a license to an applicant
within thirty (30) days after receipt of an application unless the
city manager finds one 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 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.
(7)
An applicant or the proposed establishment is in violation of or
is not in compliance with any provision of this article.
(8)
The premises to be used for the sexually oriented business are not
in compliance with all applicable city laws, regulations and city
council orders.
(9)
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:
(iii)
Sexual assault or aggravated sexual assault as described in chapter 22 of the Texas Penal Code;
(iv)
Incest, solicitation of a child, or harboring a runaway child
as described in chapter 25 of the Texas Penal Code;
(v)
Gambling, gambling promotion, keeping a gambling place, communicating
gambling information, possession of gambling devices or equipment
or possession of gambling paraphernalia as described in chapter 47
of the Texas Penal Code;
(vi)
Forgery, credit card abuse or commercial bribery as described
in chapter 32 of the Texas Penal Code;
(vii)
A criminal offense as described in chapter 481 subchapter D,
of the Texas Health and Safety Code;
(viii)
A criminal offense as described in chapter 34
of the Texas Penal Code; or
(ix)
Criminal attempt, conspiracy, or solicitation to commit any
of the foregoing offenses; or any other offense in another state that,
if committed in this state, would have been punishable as one or more
of the aforementioned offenses.
(B)
For which:
(i)
Less than two (2) years have elapsed since the date of conviction
of 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
convictions are of two (2) or more misdemeanor offenses or combination
of misdemeanor offenses occurring within any 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)
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.
(Ordinance 2011-07-18-02 adopted 7/18/11)
The annual fee for a sexually oriented business license shall
be set according to the city fee schedule.
(Ordinance 2011-07-18-02 adopted 7/18/11)
Each license shall expire one (1) year from the date of issuance and may be renewed only by making application as provided in section 6.04.031. 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.
(Ordinance 2011-07-18-02 adopted 7/18/11)
The city manager shall suspend a license for a period not to
exceed thirty (30) days if he determines that a licensee or an agent
or employee of a licensee has:
(1)
Violated
or is not in compliance with any section of this article;
(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; or
(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.
(Ordinance 2011-07-18-02 adopted 7/18/11)
(a)
The city manager shall revoke a license if a cause of suspension in section 6.04.035 of this article occurs and the license has been suspended within the preceding twelve (12) months.
(b)
The
city manager shall revoke a license if he determines that:
(1)
A licensee gave false or misleading information in the material submitted
to the city manager during the application process;
(2)
A licensee, an agent or an employee has knowingly allowed possession,
use, or sale of controlled substances on the premises;
(3)
A licensee, an agent or an employee has knowingly allowed prostitution
on the premises;
(4)
A licensee, an agent 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 6.04.032(a)(9)(A) for which the time period required in section 6.04.032(a)(9)(B) has not elapsed;
(6)
On two (2) or more occasions within a 12-month period, a person or persons committed an offense, occurring in or on the licensed premises, of a crime listed in section 6.04.032(a)(9)(A), for which a conviction has been obtained, and the person or persons were agents or employees of the sexually oriented business at the time the offenses were committed;
(7)
A licensee or agent 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 any ad valorem
taxes, sales or other 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 (b)(7) of this section does not apply to adult motels as a ground for revoking the license unless the licensee, agent 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 city manager 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 city manager 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 elapsed since the date the revocation became effective. If the license was revoked under subsection (b)(5) of this section, an applicant may not be granted another license until the appropriate number of years required under section 6.04.032(a)(9)(B) has elapsed.
(Ordinance 2011-07-18-02 adopted 7/18/11)
If the city manager denies the issuance of a license, or suspends
or revokes a license, the city manager shall send to the applicant,
or licensee, by certified mail, return receipt requested, written
notice of the action and the right to an appeal. 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 city council.
An appeal to the city council must be filed within thirty (30) days
after the receipt of notice of the decision of the city manager. The
filing of an appeal stays the action of the city manager.
(Ordinance 2011-07-18-02 adopted 7/18/11)
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.
(Ordinance 2011-07-18-02 adopted 7/18/11)
