(a) 
It is the purpose of this article to regulate sexually oriented businesses to promote the health, safety, morals and general welfare of the citizens of the city and to establish reasonable and uniform regulations to prevent the 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 distributors and exhibitors of sexually oriented entertainment to their intended market.
(b) 
It is the intent of the city council that the locational regulations of this article are promulgated pursuant to V.T.C.A., Local Government Code ch. 243, as amended.
(c) 
A license granted under this article or under any other city ordinance does not authorize or legalize any conduct, activity or business that is illegal under state or federal law.
(2006 Code, sec. 22-21; Ordinance 10-09-853, sec. 2, adopted 9/7/10)
Based on evidence concerning the 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 of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S.Ct. 1382 (2000); City of Los Angeles v. Alameda Books, Inc., 122 S.Ct. 1728 (2002); Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002); LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358 (5th Cir. 2002); Mitchell v. Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993); Schultz v. City of Cumberland, 228 F.3d 831 (7th Cir. 2000); Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); 2300, Inc. v. City of Arlington, 888 S.W.2d 123 (Tex. App.–Fort Worth, 1994); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied, 529 U.S. 1053 (2000); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); DLS, Inc. v. Chattanooga, 107 F.3d 403 (6th Cir. 1997); Jake’s, Ltd., Inc. v. Coates, 384 F.3d 884 (8th Cir. 2002); and on studies, reports and/or testimony in other communities including, but not limited to: Phoenix, Arizona; Minneapolis, Minnesota; St. Paul, Minnesota; Houston, Texas; Indianapolis, Indiana; Dallas, Texas; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; Beaumont, Texas; Newport News, Virginia; Bellevue, Washington; New York, New York; St. Croix County, Wisconsin; Kitsap County, Washington; Los Angeles, California Police Department (dated August 12, 2003); Arlington, Texas, License and Amortization Appeal Board hearings, 2001 and 2002; Arlington Community Health Profile (dated July 2003); a summary of land use studies compiled by the National Law Center for Children and Families; and also on findings from the Report of the Attorney General’s Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989), State of Minnesota), and the study entitled Survey of Texas Appraisers - Secondary Effects of Sexually Oriented Businesses on Market Values, by Cooper and Kelley, and Crime-Related Secondary Effects - Secondary Effects of “Off-Site” Sexually-Oriented Businesses, by McCleary, June 2008, the city council finds:
(1) 
Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments. Further, absent municipal regulation aimed at reducing adverse secondary effects, there is no mechanism to make the owners of these establishments responsible for the activities that occur on the premises.
(2) 
Certain employees of sexually oriented businesses, defined in this article as adult arcade, adult bookstore, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio or sexual encounter center, engage in a higher incidence of certain types of illicit sexual behavior than employees of other establishments.
(3) 
Sexual acts, including masturbation, prostitution, sexual contact, and oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semi-private booths or cubicles or rooms for viewing films, videos, or live sex shows.
(4) 
Offering and providing private or semi-private areas in sexually oriented businesses encourages such sexual activities, which creates unhealthy conditions.
(5) 
Persons frequent certain sexually oriented businesses, adult arcades, adult motion picture theaters and adult theaters for the purpose of engaging in sex within the premises of such sexually oriented businesses.
(6) 
At least 50 communicable diseases may be spread by activities occurring in sexually oriented businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, non A, non B, amebiasis, salmonella infections and shigella infections.
(7) 
Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS (acquired immunodeficiency syndrome) caused by the human immunodeficiency virus (HIV) in the United States: 600 in 1982, 2,200 in 1983, 4,600 in 1984, 8,555 in 1985, and 253,448 cumulative through December 31, 1992. In 2007, the estimated number of persons diagnosed with AIDS in the United States and dependent areas was 37,041. Of these, 35,962 were diagnosed in the 50 states and the District of Columbia and 812 were diagnosed in the dependent areas. In the 50 states and the District of Columbia, adult and adolescent AIDS cases totaled 35,934 with 26,355 cases in males and 9,579 cases in females. The cumulative estimated number of diagnoses of AIDS through 2007 in the United States and dependent areas was 1,051,875. Of these, 1,018,428 were diagnosed in the 50 states and the District of Columbia and 32,051 were diagnosed in the dependent areas. In the 50 states and the District of Columbia, adult and adolescent AIDS cases totaled 1,009,220 with 810,676 cases in males and 198,544 cases in females. (Source: U.S. Centers for Disease Control, U.S. Dept. of Health and Human Services. February 26, 2009.)
(8) 
Since the early 1980s and to the present, there has been an increasing cumulative number of persons testing positive for the HIV antibody test in Collin County, Texas and across the State of Texas. As of December 31, 2001, there had been 57,199 reported cases of AIDS in the State of Texas. In 2008, 63,019 persons were reported to be living with HIV/AIDS in Texas (Tex. Dept. of State Health Services).
(9) 
The number of cases of early (less than one year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982, and 45,200 through November 1990. According to department of state health services records, there were 1,175 cases of early syphilis reported in the State of Texas during 2000 and an additional 972 cases reported in 2001. Between 2007 and 2008, the number of cases of early latent syphilis reported to CDC increased 15.2 percent (from 10,768 to 12,401), while the number of cases of late and late latent syphilis increased 9.3 percent (from 18,256 to 19,945). The total number of cases of syphilis (all stages: P&S, early latent, late, late latent, and congenital syphilis) reported to CDC increased 13.1 percent (from 40,921 to 46,277) between 2007 and 2008. In 2008, P&S syphilis cases reported to CDC increased to 13,500 from 11,466 in 2007, an increase of 17.7 percent. The rate of P&S syphilis in the United States in 2008 (4.5 cases per 100,000 population) was 18.4 percent higher than the rate in 2007 (3.8 cases per 100,000 population) (Source: U.S. Centers for Disease Control, Sexually Transmitted Disease Surveillance, 2008.)
(10) 
The number of cases of gonorrhea in the United States reported annually remains at a high level, with over one-half million cases being reported in 1990. Again, according to department of state health services records, there were 32,895 cases of gonorrhea reported in the State of Texas during 2000 and an additional 30,116 cases reported in 2001. During the same time period there were also 138,692 cases of chlamydia reported in the State of Texas (Arlington Community Health Profile, dated July 2003). In 2008, 336,742 cases of gonorrhea were reported in the United States, a rate of 111.6 cases per 100,000 population, reflecting a small decrease of 5.4 percent since 2007. Gonorrhea rates have remained relatively stable over the past 12 years. Texas ranked 15th in the nation in 2008 with 32,199 cases at a rate of 134.7 cases per 100,000 population. In 2008, 1,210,523 chlamydial infections were reported to CDC from 50 states and the District of Columbia. This case count corresponds to a rate of 401.3 cases per 100,000 population, an increase of 9.2% compared with the rate of 367.5 in 2007. Over the past 20 years, from 1989 through 2008, the rate of reported chlamydial infection increased from 102.5 to 401.3 cases per 100,000 population (Source: U.S. Centers for Disease Control, Sexually Transmitted Disease Surveillance, 2008.)
(11) 
In his report of October 22, 1986, the Surgeon General of the United States has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, and from an infected mother to her newborn.
(12) 
According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.
(13) 
Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities and the failure of the owners and the operators of the facilities to self-regulate those activities and maintain those facilities.
(14) 
Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view “sexually oriented” films.
(15) 
Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect substantial governmental concerns.
(16) 
A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the sexually oriented businesses. Further, such a licensing procedure will place an incentive on the operators to see that the sexually oriented business is run in a manner consistent with the health, safety, and welfare of its patrons and employees, as well as the citizens of the city. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein.
(17) 
Removal of doors on booths and requiring sufficient lighting on premises with booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult motion picture theaters.
(18) 
Requiring licensees of sexually oriented businesses to keep information regarding current employees and certain past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments.
(19) 
The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually oriented businesses, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases.
(20) 
In the prevention of the spread of communicable diseases, it is desirable to obtain a limited amount of information regarding certain employees who may engage in the conduct that this article is designed to prevent, or who are likely to be witnesses to such conduct.
(21) 
The barring of such individuals from the management of sexually oriented businesses for a period of years serves as a deterrent to, and prevents conduct which leads to, the transmission of sexually transmitted diseases.
(22) 
It is reasonably believed that to better protect the public health, safety, and welfare, it is necessary to adopt additional amendments to this article.
(23) 
Partially nude performances in sexually oriented businesses are also included within the purview of the regulations, since they have the same harmful secondary effects on the surrounding community as sexually oriented businesses currently regulated under the ordinance. (See Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002).)
(24) 
There is no constitutional right for sexually oriented business employees in a state of nudity to touch customers. (Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995).)
(25) 
One court has characterized the acts of sexually oriented business employees in a state of nudity and being paid to touch or be touched by customers as prostitution. (People v. Hill, 2002 Ill. App. LEXIS 792 (Ill. App. 2 Dist. Sept. 4, 2002); see also V.T.C.A., Penal Code secs. 43.01 (“sexual conduct” and “sexual contact”) and 43.02 (“prostitution”).)
(26) 
Attempts by the City of Arlington to require sexually oriented businesses to advise customers and employees in a state of nudity to refrain from intentionally touching and fondling each other through signage posted at the business entrance have not been effective.
(27) 
Sexually oriented businesses have not complied with the “no touch” provisions, but have flagrantly disregarded them and/or have encouraged employees and customers to violate the “no touch” provision.
(28) 
Provocative touching between customers and employees in a sexually oriented business where at least one is in a state of nudity frequently leads to the commission of sex crimes, illegal drug use, and increased health risks due to sexually transmitted diseases.
(29) 
Compelling signage at the entrances of sexually oriented businesses has not been effective in halting “no touch” violations.
(30) 
The City of Arlington has had to expend considerable law enforcement resources to enforce the “no touch” provisions.
(31) 
The city council reasonably believes that requiring employees in a state of nudity to be physically separated from customers by the use of elevated stages and buffer zones is necessary to better ensure ordinance compliance while still not inhibiting constitutionally protected expressive conduct or speech. (LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358 (5th Cir. 2002).)
(32) 
The city council reasonably believes that sexual activity occurring in private viewing booths at sexually oriented businesses leads to unhealthy and unsanitary conditions and to the transmission of sexually transmitted and other communicable diseases. (Matney v. County of Kenosha, 86 F.3d 692, 695 (7th Cir. 1996).)
(33) 
The city council reasonably believes that certain negative secondary effects, including prostitution, drug trafficking and assaultive offenses are associated with nude or semi-nude dancing in environments where alcohol is served or allowed. (J.L. Spoons, Inc. v. Dragani, 538 F.3d 379, 382 (6th Cir. 2008).)
(34) 
The city council reasonably believes that the licensing and permitting requirements imposed on sexually oriented businesses that offer on-site entertainment comport with the prompt judicial review and preservation of the status quo requirements enunciated by the United States Supreme Court, and thus do not constitute an unconstitutional prior restraint. (Richland Bookmart, Inc. v. Knox County, Tenn., 555 F.3d 512 (6th Cir. 2009), rehearing, en banc denied, 2009 U.S. App. LEXIS 12994 (6th Cir. April 23, 2009).)
(35) 
The city council reasonably believes that inadequately illuminated parking lots and parking lots that are not visible from the public right-of-way by virtue of being fenced or otherwise shielded from view present increased opportunities for criminal and sexual activity.
(36) 
The city council reasonably believes that video monitoring the parking lots of sexually oriented businesses will deter individuals from engaging in criminal and sexual activity in the area being monitored and retaining recordings will assist law enforcement in criminal investigations should any crimes be committed in the area.
(37) 
It is reasonably believed by the city council that the general welfare, health, and safety of the citizens of the city will be promoted by the enactment of this article.
(38) 
It is reasonably believed by the city council that adequate sites are reasonably available for sexually oriented businesses that meet licensing and otherwise applicable requirements to locate and operate in the city.
(39) 
The fact that an applicant for a sexually oriented business license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this article. There is correlation between sexually oriented businesses, specifically their hours of operation and the type of people which such businesses attract, and higher crime rates. (Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002).)
(40) 
The findings noted in subsections (1) through (39) raise substantial governmental concerns.
(2006 Code, sec. 22-22; Ordinance 10-09-853, sec. 2, adopted 9/7/10)
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Adult arcade.
Any place to which the public is permitted or invited wherein coin-operated, slug-operated, or for any form of consideration, electronically, electrically, or mechanically controlled still or motion pictures, projectors, or other image-producing devices are maintained to show images to one or more persons per machine at any one time, and where the images so displayed are distinguished or characterized by regularly depicting or describing specified sexual activities or specified anatomical areas.
Adult audio or video center.
Any place at which any of the following activities regularly occurs:
(1) 
Inbound or outbound telephone or other audio communications in which a topic or purpose of the communication between an occupant of the premises and a third party is the discussion or description of specified sexual activities or specified anatomical areas for consideration;
(2) 
Video or audio broadcasting, whether live, delayed, by film, by tape recording or otherwise, of specified sexually activities or specified anatomical areas for consideration; or
(3) 
Filming, taping or otherwise creating video or audio recordings of specified sexually activities or specified anatomical areas, including but not limited to, films, movies, video tapes, DVDs, audio tapes or compact disks, of specified sexually activities or specified anatomical areas that are broadcast, sold, manufactured or distributed for consideration.
Adult bookstore, adult novelty store or adult video store.
A commercial establishment for which the primary business is the offering of a service or the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer, including:
(1) 
Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, DVDs, videocassettes or video reproductions, slides, or other visual representations, that depict or describe specified sexual activities or specified anatomical areas; or
(2) 
Instruments, devices, or paraphernalia that are designed for use in connection with specified sexual activities, but not including items for birth control or for the prevention of sexually transmitted diseases.
Adult cabaret.
A nightclub, bar, restaurant, or similar commercial establishment which regularly features:
(1) 
Persons who appear in a state of nudity or semi-nudity;
(2) 
Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
(3) 
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.
Adult motel.
A hotel, motel or similar commercial establishment which:
(1) 
Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions;
(2) 
Offers a sleeping room for rent for a period of time that is less than ten hours; or
(3) 
Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten hours.
Adult motion picture theater.
A commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
Adult theater.
A theater, concert hall, auditorium or similar commercial establishment which regularly features persons who appear in a state of nudity or semi-nude, or live performances which are characterized by the exposure of specified sexual activities or specified anatomical areas.
Applicant.
(1) 
A person or entity in whose name a license to operate a sexually oriented business will be issued;
(2) 
Each individual who signs an application for a sexually oriented business license as required by section 6.07.031;
(3) 
Each individual who is an owner or operator of a sexually oriented business for which a license application is made under section 6.07.031, regardless of whether the individual’s name or signature appears on the application;
(4) 
Each individual who has a 20 percent or greater ownership interest in a sexually oriented business for which a license application is made under section 6.07.031, regardless of whether the individual’s name or signature appears on the application; and
(5) 
Each individual who exercises substantial de facto control over a sexually oriented business for which a license application is made under section 6.07.031, regardless of whether the individual’s name or signature appears on the application.
Article, chapter or ordinance.
Reference to “this article,” “this chapter” or “this ordinance” shall mean and refer to this article of the Code of Ordinances of the city, as amended.
Chief of police.
The chief of police of the City of Murphy or the chief of police’s designated agent.
City manager.
The city manager for the City of Murphy or the city manager’s designated agent.
Conviction.
A conviction in a federal court or a court of any state or foreign nation or political subdivision of a state or foreign nation that has not been reversed, vacated, or pardoned. “Conviction” includes disposition of charges against a person by probation or deferred adjudication.
Customer.
Any person who:
(1) 
Is allowed to enter a sexually oriented business or any portion of a sexually oriented business in return for the payment of an admission fee, membership fee or any other form of consideration or gratuity;
(2) 
Enters a sexually oriented business or any portion of a sexually oriented business and purchases, rents or otherwise partakes of any merchandise, goods, entertainment or other services offered therein; or
(3) 
Is a member of and on the premises of a sexually oriented business operating as a private or membership club or a sexually oriented business that reserves any portion of the premises of the sexually oriented business as a private or membership club.
Employee.
A person who performs any service on the premises of a sexually oriented business on a full-time, part-time or contract basis, whether or not the person is designated an employee, independent contractor, agent or otherwise and whether or not the person is paid a salary, wage or other compensation by an owner or operator of the sexually oriented business. “Employee” does not include a person exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises.
Enterprise.
An adult arcade, adult audio or video center, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude modeling studio or any establishment whose primary business is the offering of a service or the selling, renting or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to its customers, and which is distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. The term “enterprise” shall include any premises for which a permit or license is required under either or both of divisions 2 and 3 of this article. However, the term “sexually oriented business” shall not be construed to include:
(1) 
Any business operated by or employing licensed psychologists, licensed physical therapists, licensed athletic trainers, licensed cosmetologists, or licensed barbers performing functions authorized under the license held;
(2) 
Any business operated by or employing licensed physicians or licensed chiropractors engaged in practicing the healing arts; or
(3) 
Any retail establishment whose major business is the offering of wearing apparel for sale to customers.
Entertainer.
Any employee of a sexually oriented business who performs or engages in entertainment.
Entertainer’s permit.
A permit issued by the chief of police to an entertainer pursuant to this article.
Entertainment.
Any act or performance, such as a play, skit, reading, revue, fashion show, modeling performance, pantomime, role playing, encounter session, scene, song, dance, musical rendition or striptease, that involves the display or exposure of specified sexual activities or specified anatomical areas. The term “entertainment” shall include any employee or entertainer exposing any specified anatomical areas or engaging in any specified sexual activities whatever in the presence of customers.
Escort.
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.
Escort agency.
A person or business association which furnishes, offers to furnish or advertises to furnish escorts as one of its primary business purposes, for a fee, tip or other consideration.
Establishment.
Any of the following:
(1) 
The opening or commencement of any sexually oriented business as a new business;
(2) 
The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
(3) 
The addition of any sexually oriented business to any other existing sexually oriented business; or
(4) 
The relocation of any sexually oriented business.
Hearing officer.
The city manager, or his or her designee. The hearing officer shall exercise those powers authorized under the Texas Local Government Code, the charter of the city, and the Code of Ordinances of the city, as appropriate in the furtherance of his or her duties.
License.
A license issued to a licensee pursuant to this article.
Licensee.
(1) 
A person in whose name a license to operate a sexually oriented business has been issued;
(2) 
Each individual listed as an applicant on the application for a license;
(3) 
Each individual who is an owner or operator of a sexually oriented business for which a license has been issued under this article, regardless of whether the individual’s name or signature appears on the license application;
(4) 
Each individual who has a 20 percent or greater ownership interest in a sexually oriented business for which a license has been issued under this article, regardless of whether the individual’s name or signature appears on the license application; and
(5) 
Each individual who exercises substantial de facto control over a sexually oriented business for which a license has been issued under this article, regardless of whether the individual’s name or signature appears on the license application.
Manager.
Any person, including an on-site manager, who supervises, directs or manages any employee or other person who conducts business on the premises of a sexually oriented business and/or performs certain services including, but not limited to, the following:
(1) 
Operating a cash register, cash drawer or other depository on the premises of the sexually oriented business where cash funds or records of credit card or other credit transactions are generated in any manner by the operation of the sexually oriented business or the activities at the premises of the sexually oriented business;
(2) 
Displaying or taking orders from any customer for any merchandise, goods, entertainment or other services offered on the premises of the sexually oriented business;
(3) 
Delivering or providing to any customer any merchandise, goods, entertainment or other services offered on the premises of the sexually oriented business;
(4) 
Acting as an attendant to regulate entry, flow or traffic of customers or other persons into the premises of the sexually oriented business; or
(5) 
Supervising or managing other person(s) in the performance of any of the foregoing activities on the premises of the sexually oriented business.
Manager’s permit.
A permit issued by the chief of police to a manager pursuant to this article.
Nude model studio.
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; however, nude modeling at or on behalf of any properly accredited institution of higher learning shall not fall within this definition.
Nudity or a state of nudity.
A state of dress which fails to fully and opaquely cover the anus, genitals, pubic region, or perineum anal region, or the exposure of any device, costume or covering that gives the realistic appearance of or simulates the anus, genitals, pubic region, or perineum anal region, regardless of whether the nipple and areola of the human female breast are exposed.
On-site manager.
Any person charged by an owner or operator of a sexually oriented business with the responsibility for direct supervision of the operation of the sexually oriented business and/or responsible for monitoring and observing areas of the sexually oriented business to which customers are admitted when the sexually oriented business is open for business and/or when customers are admitted to the premises of the sexually oriented business.
Opaquely.
Impervious to the rays of light; not transparent; impenetrable to sight.
Operates or causes to be operated.
To cause, to function or to put or keep in operation. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is a licensee, owner or operator of the sexually oriented business.
Operator.
The individual or natural person who is principally in charge of the operations of a sexually oriented business.
Owner or owners.
The proprietor, if a sole proprietorship, or all general partners if a partnership, or the corporation if a corporation, of a sexually oriented business.
Permit.
A current, valid permit issued by the chief of police or building official pursuant to this article.
Permit holder.
A person who holds a permit pursuant to this article.
Person.
An individual, proprietorship, partnership, corporation, limited liability company, association or other legal entity.
Semi-nude or semi-nudity or state of semi-nudity.
The exposure of the post-puberty female nipple or areola, or the exposure of any device, costume or covering that gives the realistic appearance of or simulates the post-puberty female nipple or areola, so long as the following anatomical areas of an individual are fully and opaquely covered: the anus, genitals, pubic region and the perineum anal region of the human body. The term “semi-nude” shall not apply to an individual exposing a post-puberty female nipple or areola in the process of breastfeeding a child under that person’s care.
Separate area.
Any portion of the interior of a sexually oriented business separated from any other portion of a sexually oriented business by a wall, partition or other divider.
Sexual encounter center.
A business or commercial sexually oriented business that, as one of its primary business purposes, offers for any form of consideration:
(1) 
Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
(2) 
Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nude.
Sexually oriented business.
An adult arcade, adult audio or video center, adult bookstore, adult novelty store or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude modeling studio or sexual encounter center, or other sexually oriented business the primary business of which is the offering of a service or the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer. For purposes of this article, “primary business” means 25 percent or more of the items in inventory and/or floor space used for the offering of a service or the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer. Inventory shall be measured with all titles or objects available on the premises for sale or rental, including those that are identical being considered a separate title or object. The term shall also mean any commercial sexually oriented business that self-identifies as an adult arcade, adult audio or video center, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude modeling studio or sexual encounter center, regardless of whether the percentage of items in inventory and/or floor space constitute 25 percent or more of the total items in inventory and/or floor space. The term “sexually oriented business” shall not be construed to include:
(1) 
Any business operated by or employing a licensed psychologist, licensed physical therapist, licensed athletic trainer, licensed cosmetologist, licensed massage therapist, or licensed barber engaged in performing functions authorized under the lawful license held;
(2) 
Any business operated by or employing a licensed physician or chiropractor engaged in practicing the healing arts;
(3) 
Any business licensed as a tattoo studio or a body piercing studio and was engaged in practices authorized under the license; or
(4) 
An activity conducted or sponsored:
(A) 
By a proprietary school licensed by the state or a college, junior college or university supported entirely or partly by taxation; or
(B) 
By a private college or university which maintains or operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation;
and any activity conducted or sponsored by an entity identified in subsection (A) or (B) must be situated in a structure: (i) which has no sign or other advertising visible from the exterior of the structure indicating a nude or semi-nude person is available for viewing; and (ii) where in order to participate in a class, a student must enroll at least three days in advance of the class; and (iii) where no more than one nude or semi-nude model is on the premises at any one time.
Specified anatomical area.
(1) 
Any of the following, or any combination of the following, when less than completely and opaquely covered:
(A) 
Any human genitals, pubic region or pubic hair;
(B) 
Any buttock; or
(C) 
Any portion of the female breast or breasts that is situated below a point immediately above the top of the areola; or
(2) 
Human male genitals in a discernibly erect state, even if completely and opaquely covered.
Specified sexual activity.
Any of the following:
(1) 
The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast;
(2) 
Sex acts, normal or perverted, actual or situated, including intercourse, oral copulation, or sodomy;
(3) 
Masturbation, actual or simulated; or
(4) 
Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (3) of this definition.
Substantial enlargement of a sexually oriented business.
The increase in floor area occupied by the business of more than 25 percent, as the floor area exists on the date of passage of this article.
Temporary entertainer.
An individual who holds a temporary entertainer’s permit.
Temporary entertainer’s permit.
An entertainer’s permit that is valid for a reduced period of time, pursuant to this article.
Temporary manager.
An individual who holds a temporary manager’s permit.
Temporary manager’s permit.
A manager’s permit that is valid for a reduced period of time, pursuant to this article.
Temporary permit.
A permit that is valid for a reduced period of time, pursuant to this article.
Transfer of ownership or control.
Pertaining to a sexually oriented business, means and includes any of the following:
(1) 
The sale, lease or sublease of the business;
(2) 
The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means; or
(3) 
The establishment of a trust, gift or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
(2006 Code, sec. 22-23; Ordinance 10-09-853, sec. 2, adopted 9/7/10)
(a) 
A person commits an offense if the person operates or causes to be operated a sexually oriented business in any zoning district other than as allowed by the city’s comprehensive zoning ordinance, as amended.
(b) 
A person commits an offense if the person causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 1,000 feet of any of the following:
(1) 
A religious institution, church, synagogue, mosque, temple or structure that is used primarily for religious worship and related religious activities or real property owned by, or for the benefit of, a religious organization that intends to use the property for such purposes if such ownership has been registered with the city;
(2) 
A public or private educational facility, including, but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuing education schools, special education schools, junior colleges, colleges and universities; school includes the school grounds and related athletic or other facilities regularly visited by students;
(3) 
A boundary of a zoning district zoned for residential uses under the comprehensive zoning ordinance, an area designated as residential on the city’s comprehensive plan, or a historic district as designated by the city’s comprehensive zoning ordinance or comprehensive plan;
(4) 
A public park or recreational area which has been designated for park or recreational activities, including but not limited to a park, playground, nature trails, swimming pool, golf course, reservoir, athletic field, basketball or tennis courts, pedestrian/ bicycle paths, wilderness areas, or other similar public land within the city which is under the control, operation, or management of a governmental entity;
(5) 
The property line of a lot devoted to a residential use;
(6) 
An entertainment business which is oriented primarily towards children or family entertainment; or
(7) 
A licensed premises, licensed pursuant to the Texas Alcoholic Beverage Code (except premises holding a food and beverage certificate whose primary business being operated on the premises is food service).
(c) 
A person commits an offense if he causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 1,000 feet of another sexually oriented business.
(d) 
For the purposes of subsection (b), measurement must be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the property line or boundary of the premises where a sexually oriented business is operated or to be operated, to the nearest portion of a property line or boundary for the uses listed in subsection (b). The presence of a city, county, or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section.
(e) 
For purposes of subsection (c), the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to the intervening structures or objects or political boundaries, from the nearest property line of each property sought to be used as a sexually oriented business. Presence of a city, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section.
(f) 
Any sexually oriented business lawfully operating prior to the effective date of this article or the ordinance from which this article is derived that is in violation of one or more subsections of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed one year, unless sooner terminated for any reason, including but not limited to suspension or revocation of license, or voluntary discontinuance for a period of 30 days or more. Such nonconforming uses shall not be increased, enlarged, extended, or altered except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first lawfully established and continually operating at a particular location is the conforming use and the later established business is nonconforming.
(g) 
A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant of a renewal of the sexually oriented business license, of a use listed in subsection (b) within 1,000 feet of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application for a license is submitted after a license has expired or been revoked.
(h) 
Exemption from location restrictions.
(1) 
If the chief of police denies the issuance of a license to an applicant because the location of the sexually oriented business is in violation of any section of this article, then the applicant may, not later than ten calendar days after receiving notice of the denial, file with the city secretary a written request for an exemption of the locational restrictions of this article.
(2) 
If the written request is filed with the city secretary within the ten calendar day limit, the city council shall consider the request. The city secretary shall set a date for the hearing within sixty 60 days from the date the written request is received, unless both parties agree to a certain date beyond the 60 days.
(3) 
A hearing by the council may proceed if a quorum of the council members is present. The council shall hear and consider evidence offered by any interested person. The normal rules of evidence do not apply.
(4) 
The council may, in its discretion, grant an exemption from the locational restrictions of this article if it makes the following findings:
(A) 
That the location of the sexually oriented business will not have a detrimental effect on nearby properties or be contrary to the public safety or welfare;
(B) 
That the location of the sexually oriented business will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban blight;
(C) 
That the location of the sexually oriented business in the area will neither be contrary to any program of neighborhood conservation nor will it interfere with any efforts of urban renewal or restoration; and
(D) 
That all other applicable provisions of this article will be observed.
(5) 
In making the findings specified in subsection (4), the council may take into account among other things:
(A) 
Crime statistics and forecasts of the location and its 1,000-foot radius maintained by the appropriate law enforcement agency;
(B) 
Assessed property values for the location and properties within the surrounding 1,000-foot radius, taking into account any decline or increase in property values or rates of decrease or increase in property values in relation to otherwise comparable properties;
(C) 
Sales, leases, and vacancy rates of all property types within the surrounding 1,000-foot radius in relation to otherwise comparable properties; and
(D) 
Any evidence regarding the award or denial of any public or private grants for neighborhood conservation, urban renewal or restoration for any property located within the surrounding 1,000-foot radius.
(6) 
The city council shall grant or deny the exemption by a majority vote of a quorum of the city council, no later than ten days after the hearing. The failure to grant or deny the exemption no later than ten days after the hearing and/or the 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 is final.
(7) 
If the council grants the exemption, the exemption is valid for one 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 restrictions of this article until the applicant applies for and receives another exemption pursuant to this subsection. If the applicant applies for another exemption within ten days following the expiration of the exemption, the city secretary shall set a date for a hearing as set out in this subsection. If a timely request is so filed, the existing license is deemed not to have expired until the decision of the council on such request.
(8) 
If the council denies the exemption, the applicant may not reapply for an exemption until at least 12 months have elapsed since the date of the council’s action.
(9) 
The grant of an exemption does not exempt the applicant from any other provisions of this article other than the locational restrictions.
(2006 Code, sec. 22-25; Ordinance 10-09-853, sec. 2, adopted 9/7/10)
Locational requirements of this article may be amended only after compliance with the procedure required to amend the zoning code or any applicable zoning ordinance. Other sections of this article may be amended by vote of the city council.
(2006 Code, sec. 22-26; Ordinance 10-09-853, sec. 2, adopted 9/7/10)
A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of locational requirements of this article is subject to a suit for injunction as well as prosecution for criminal violations.
(2006 Code, sec. 22-27; Ordinance 10-09-853, sec. 2, adopted 9/7/10)
(a) 
Any person, firm, corporation, agent or employee who violates any of the provisions of this article shall be guilty of a class A misdemeanor.
(b) 
Each day that a violation is permitted to exist shall constitute a separate offense.
(c) 
The refusal to issue a permit based on ineligibility shall not prohibit the imposition of a criminal penalty and the imposition of a criminal penalty shall not prevent the refusal to issue a permit based on ineligibility.
(d) 
The revocation or suspension of a permit shall not prohibit the imposition of a criminal penalty and the imposition of a criminal penalty shall not prevent the revocation or suspension of a permit.
(e) 
Except where otherwise specified, a culpable mental state is not required for the commission of an offense under this article.
(2006 Code, sec. 22-28; Ordinance 10-09-853, sec. 2, adopted 9/7/10)