In this article:
means a business which offers its customers, in one or more
enclosures designed for occupancy by up to five persons, still or
motion pictures characterized by depiction of sexual nudity or sexual
activities.
means a business in which a substantial portion of the stock
in trade consists of books, videos, tapes, cassettes, photographs,
slides, computer media or similar materials that emphasize the depiction
of sexual nudity or sexual activities.
means a business which offers its customers live performances
that include the depiction of sexual nudity or sexual activities.
means a business which offers its customers a sleeping room
for a period of time less than ten hours and provides in the room
still or motion pictures that emphasize the depiction of sexual nudity
or sexual activities.
means an establishment which holds itself out to be primarily
in the business of selling products which are distinguished or characterized
by an emphasis on matter depicting, describing, or relating to specified
sexual activities or specified anatomical areas, and in which thirty-five
percent (35%) or more of the gross floor area is devoted to the sale
of such products.
means a business which offers its customers, in one or more
areas designated for occupancy by more than five persons, still or
motion pictures that emphasize the depiction of sexual nudity or sexual
activities.
means a business which offers its customers alcoholic beverages
for on-premises consumption, and derives 51% or more of its income
from the sale of alcoholic beverages for on-premises consumption.
means a person who, for consideration, accompanies or offers
to accompany another person and to view sexual nudity by, or display
sexual nudity to, the other person.
means a business which offers one or more escorts to its
customers.
means a business which offers its customers persons displaying
sexual nudity to be observed, drawn, sculpted or photographed by the
customers.
means a single-family, duplex, townhouse, multifamily or
mobile home zoning district as defined in the general zoning ordinance.
means use of a structure as a residence as defined in the
general zoning ordinance.
means a business which offers its customers physical contract
with one or more persons when any of the persons is displaying sexual
nudity. This term does not include:
means:
means the erotic display of a bare human buttock, pubic region,
genitals, anus, or female breast.
means an adult arcade, adult bookstore, adult video store,
adult cabaret, adult motel, adult theater, escort agency, nude model
studio or sexual encounter center, or any combination of such enterprises,
when either the primary business, or a major business, of the enterprise
is the offering of a service or selling, renting, or exhibiting of
devices or any other item intended to provide sexual stimulation or
sexual gratification to the customer. In determining the primary business,
or a major business, of an enterprise, the following factors will
be considered:
The portion of the floor area of the enterprise devoted to services,
devices or items described above.
The portion of merchandise display areas of the enterprise devoted
to services, devices, or items described above.
The portion of advertising or signage of the enterprise devoted
to services, devices, or items described above.
The portion of the gross or net revenues of the enterprise derived
from services, devices, or items described above.
The portion of the local employees of an enterprise who perform
a service described above.
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If one or more of the factors is 50% or more for an enterprise,
the test for primary business of an enterprise, the test for primary
business of an enterprise [sic] is met. If one or more of the factors
is between 20% and 50% for an enterprise, the test for a major business
of an enterprise is met.
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(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.901; Ordinance adopting 2020 Code)
(a)
The
city council finds that:
(1)
The legislature of the state has determined that sexually oriented
businesses such as the businesses regulated in this article may be
detrimental to the public health, safety and welfare of a community
by contributing to the decline of neighborhoods and contributing to
the growth of criminal activity.
(2)
The legislature of the state has granted cities authority to regulate
sexually oriented businesses in chapter 243, Texas Local Government
Code.
(3)
The city, as a general-law city, has other authority under the Texas
Constitution and Local Government Code to enforce ordinances to protect
the health, safety and welfare of its citizens.
(4)
Studies from other cities have found that sexually oriented businesses
have an adverse effect on property values, contribute to an increased
crime rate in neighborhoods containing these businesses, cause an
increase in sex-related crimes in such neighborhoods, and show a compounding
of ill effects when two or more sexually oriented businesses are located
in close proximity.
(5)
Sexually transmitted diseases are a legitimate public health concern,
and can be controlled to a certain extent by regulation of certain
aspects of sexually oriented businesses.
(b)
The
purpose of this article is to regulate adult businesses in order to
control their adverse effects in the community. The purpose of this
article is not to deny access to materials protected by the First
Amendment to the United States Constitution.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.902)
(a)
A person who violates any provision of this article regarding a sexually oriented business meeting the primary business test in section 4.09.001 is subject to prosecution under section 243.010, Texas Local Government Code (Vernon’s Supp. 1995).
(b)
It is a defense to prosecution under section 4.09.009 or section 4.09.010 [4.09.041] 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 or university
supported entirely or partly by taxation;
(2)
By a private college or university that maintains and operates educational
programs in which credits are transferable to a college, junior college
or university supported entirely or party by taxation; or
(3)
In a structure:
(A)
That has no sign visible from the exterior of the structure and no
other advertising that indicates a nude person is available for viewing;
(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.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.903)
A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of section 4.09.002 [4.09.007] is subject to a suit for injunction and/or for administrative penalties in addition to prosecution for criminal violations.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.904)
(a)
It
is unlawful for a person to operate or cause to be operated a sexually
oriented business within the central business area zoning district
or within 1,000 feet of [the following] public buildings:
(1)
A church;
(2)
A licensed day care;
(3)
A public or private elementary, secondary, or high school;
(4)
A residential district or lot which is zoned residential;
(5)
A public park contiguous with or across a street from a residential
district;
(6)
A bar;
(7)
A hospital or nursing home;
(8)
Another sexually oriented business.
(b)
Distance
requirements are to be measured in a straight line from the structure
housing the sexually oriented business to the boundary line of a residential
district, residential use or public park, or to a structure used as
a church, a school, a bar, or another sexually oriented business.
(c)
Any sexually oriented business lawfully operating on what [the effective date of this article that] is in violation of subsection (a) is a nonconforming use, and is permitted to continue at its present location for a period not to exceed one year after that date, unless sooner terminated or discontinued for a period of 30 days. A nonconforming use may not be enlarged or structurally altered. In the case of two sexually oriented businesses in violation of subsection (a)(7) [sic] on [the effective date of this article] the one continuously operating at its present location the longer period of time is conforming, and the other one is nonconforming and is permitted to continue only for the period described above.
(d)
Any lawfully operating sexually oriented business which becomes in violation of subsection (a) because of the establishment of a church, a school, or a bar, or the initiation of a residential use, or the moving of a residential district boundary, within the offset distance, is a nonconforming use, and is permitted to continue at its existing location for a period not to exceed one year, unless sooner terminated or discontinued for a period of 30 days. A nonconforming use may not be enlarged or structurally altered.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.905; Ordinance adopting 2020 Code)
(a)
Each
sexually oriented business shall be available for inspection by representatives
of the police department, fire department, health department and building
inspections department during all the times it is open for business.
(b)
It
is unlawful for a person who operates a sexually oriented business
or the person’s agent or employee to refuse a lawful inspection
of the premises by a representative of the police department, fire
department, health department or building inspections division at
any time it is occupied or open for business.
(c)
This
section does not apply to areas of an adult motel that are being rented
by a customer for use as a permanent or temporary habitation.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.906)
(a)
It
is unlawful for a person, in a business establishment open to persons
under the age of 17 years, to display a book, pamphlet, newspaper,
magazine, film or videocassette, the cover of which depicts, in a
manner calculated to arouse sexual lust or to exploit 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 tumescent state, whether covered
or uncovered.
(b)
In
this section, the term “display” means to locate an item
in a manner that, without obtaining assistance from an employee of
the business establishment:
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.907)
(a)
It
is unlawful for an escort agency to employ any person under the age
of 18 years.
(b)
It
is unlawful for a person to act as an escort for any person under
the age of 18 years.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.908)
(a)
It
is unlawful for a nude model studio to employ any person under the
age of 18 years.
(b)
It
is unlawful for a person under the age of 18 years to appear in a
state of nudity in or on the premises of a nude model studio. It is
a defense to prosecution under this section if the person under 18
years is in a restroom not open to public view or view of persons
of the opposite sex.
(c)
It
is unlawful for a person to appear in a state of nudity or knowingly
allow another to appear in a state of nudity in an area of a nude
model studio premises that 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 the
reception room open to the public.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.909)
(a)
It
is unlawful for a person to knowingly allow a person under the age
of 18 years to appear in a state of nudity in or on the premises of
an adult theater or adult motion picture theater.
(b)
It
is unlawful for a person, under the age of 18 years, to knowingly
appear in a state of nudity in or on the premises of an adult theater
or adult motion picture theater.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.910)
(a)
Evidence
that a sleeping room in a hotel, motel or similar commercial establishment
has been rented and vacated two or more times in a period of time
that is less than ten hours creates a rebuttable presumption that
the establishment is an adult motel, as that term is defined in this
article.
(b)
It
is unlawful for a person in control of a sleeping room in a hotel,
motel or similar commercial establishment that does not have a sexually
oriented business license to rent or subrent a sleeping room to another
person and, within ten hours from the time the room is rented, to
rent or subrent the same sleeping room again. For purposes of this
section, the term “rent” or “subrent” means
the act of permitting a room to be occupied for any form of consideration.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.911)
(a)
Sexual
encounter centers shall not contain 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.
(b)
Sexual
encounter centers shall have a manager’s station that affords
an unobstructed view of every area of the premises to which any patron
is permitted access for any purpose, excluding restrooms.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.912)
Adult bookstores shall have a manager’s station that affords
an unobstructed view of every area of the premises to which any patron
is permitted access for any purpose, excluding restrooms.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.913)
(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 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:
(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 32 square feet of floor area.
The diagram shall also designate the place at which the license 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. The code enforcement
officer may waive the 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 any walls or doors
or of a manager’s station may be made after a license is granted,
without the prior approval of the code enforcement officer.
(4)
The owner and operator of the premises shall 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 any part of the premises
which can be viewed from each manager’s station.
(5)
The interior of the premises shall be configured in 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 or more manager’s stations
designated, the interior of the premises shall be configured in 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 in this
section must be by direct line of sight from the manager’s station.
(6)
The owner and operator and any agents and employees present in the premises shall 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 in the premises and shall 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 in which patrons are
permitted access at an illumination of not less than one footcandle
as measured at the floor level.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.914)
(a)
Each
sexually oriented business shall have a sign clearly visible from
the outside identifying it as a sexually oriented business and notifying
people that persons under 18 are prohibited from entering the building.
(b)
Each
separate room or compartment of a sexually oriented business into
which patrons are allowed access will be posted with an AIDS educational
message, which will consist of one of the following statements:
(1)
STOP AIDS. AVOID CONTACT WITH SEXUAL FLUIDS AND DIRTY NEEDLES.
(2)
AIDS IS TRANSMITTED BY SEX WITHOUT CONDOMS OR BY SHARING NEEDLES.
(3)
A poster or sign with a similar message as approved in writing by
the city health officer.
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As to subsection (1) or (2), said statements shall be in lettering not less than one and one-half inches (1-1/2") in height; as to subsection (3), the height of the lettering shall be within the discretion of the city health officer. All signs shall be in both the English and Spanish languages and shall include a designated AIDS information telephone number.
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(c)
Each
adult sexually oriented business shall be required to prominently
display and make available to patrons of the sexually oriented business
literature concerning sexually transmitted diseases and/or AIDS to
be provided by the county health department.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.915)
(a)
It
is unlawful for a person to operate 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 code enforcement officer. 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. Applicants who must comply with section 4.09.014 shall submit a diagram meeting the requirements of that section.
(c)
The
applicant must be qualified according to this article and the premises
must be inspected and found to be in compliance with the various laws
enforced by the city/county health department, the city fire department
and the city building official. All inspections shall be completed
within 30 days of the filing of the application.
(d)
If a person who wishes to operate a sexually oriented business is an individual, the person 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 10% or greater interest in the business must sign the application for a license as applicant. If the person who wishes to operate a sexually oriented business is not the owner of the property where the business is or will be located, the owner of the property must also sign the application for a license as an applicant. If a corporation owns the property, all of the officers of the corporation must sign for a license as applicants. Each applicant must be qualified under section 4.09.043, and each applicant shall be considered a licensee if a license is granted.
(e)
The
code enforcement officer may request any information necessary to
verify the actual ownership interest of the applicant or the actual
ownership of the business seeking to be licensed, including but not
limited to certified copies of assumed name certificates, verified
copies of partnership agreements and similar documents that will assist
him in verifying ownership.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.917)
The annual fee for a sexually oriented business license is as
established by the city council.
(Ordinance 9710-296 adopted 10/13/97 adopted 10/13/97; Ordinance 9711-304 adopted 11/10/97; 2001 Code, sec. 4.918)
(a)
The
code enforcement officer shall issue a license required under this
article to that applicant within 60 days after receipt of an application
unless he finds one 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 the
applicant or the applicant’s spouse or imposed upon the applicant
or the applicant’s spouse in relation to a sexually oriented
business;
(3)
If 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 section of this article, other than the offense of
operating a sexually oriented business without a license, within two
years immediately preceding the application. The fact that a conviction
is being appealed has no effect;
(5)
The premises to be used for the sexually oriented business have not
been approved by the city/county health department, the city fire
department, and the city building official as being in compliance
with applicable laws and ordinances;
(6)
The license fee has not been paid;
(8)
An applicant has been convicted of a crime:
(A)
(B)
For which:
(i)
Less than two 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 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 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 conviction is of two or more misdemeanor
offenses or combination of misdemeanor offenses occurring within any
24-month period.
(b)
The
fact that a conviction is being appealed has no effect on the disqualification
of the applicant or the applicant’s spouse.
(c)
The
license, if granted, shall state on its face the name of the person
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 by a visitor to the premises at any time.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.919)
Under this article, 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 9710-296 adopted 10/13/97; 2001 Code, sec. 4.920)
(a)
Each license issued under this article expires one year from the date of issuance and may be renewed only by making application as provided in section 4.09.041. Application for renewal should be made at least 60 days before the expiration date; however, when made less than 60 days before the expiration date, the expiration of the license will not be affected.
(b)
When
the code enforcement officer denies renewal of a license, the applicant
should not be issued a license unless the code enforcement officer
finds that the basis for denial of the license renewal has been corrected
or abated and a new public hearing is then held as provided in this
article.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.921)
Under this article, the code enforcement officer shall suspend
a license for a period not to exceed 30 days if he determines that
a licensee or an employee of a license has:
(2)
Been
intoxicated or under the influence of a controlled substance while
on the premises of the sexually oriented business;
(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 premises of the sexually oriented
business;
(5)
Demonstrated
inability to operate or manage a sexually oriented business in a peaceful
and law-abiding manner resulting in law enforcement actions at, on
or around the premises.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.922)
(a)
The code enforcement officer shall revoke a sexually oriented business license if a cause of suspension in section 4.09.046 occurs and the license has been suspended within the preceding 12 months.
(b)
The
code enforcement officer shall revoke a license if he determines that:
(1)
A licensee gave false or misleading information on the material submitted
during the application process;
(2)
A licensee or an employee has knowingly allowed possession, use or
sale of a controlled substance 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 license was suspended;
(5)
A licensee has been convicted of an offense listed in section 4.09.043(a)(8) or for which the time period required in section 4.09.043(a)(8)(B) has not elapsed;
(6)
On two or more occasions within a 12-month period, a person committed a criminal offense in or on the licensed premises and the criminal offense is listed in section 4.09.043(a)(8), for which a conviction has been obtained, and the person was an employee of the sexually oriented business at the time the offense was 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”
has the same meaning as defined in V.T.C.A., Penal Code 21.01; or
(8)
A licensee is delinquent in payment to the city for hotel occupancy
taxes, ad valorem taxes or sales taxes related to the sexually oriented
business.
(c)
The
fact that a conviction is being appealed has 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 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 code enforcement officer revokes a license, the revocation shall continue for one year, and the licensee shall not be issued a sexually oriented business license for one year from the date revocation became effective. If, subsequent to revocation, the code enforcement officer finds that, for a violation of subsection (b)(1) or (8) of this section, the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have 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 4.09.043(a)(8).
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.923)
(a)
An
applicant for a license who is denied may appeal the denial to district
court as authorized by law.
(b)
A
licensee whose license is suspended or revoked may abate the suspension
or revocation by filing an appeal with a district court as authorized
by law and obtaining a temporary restraining order.
(Ordinance 9710-296 adopted 10/13/97; 2001 Code, sec. 4.924)
