It is the purpose of this article to regulate sexually oriented
businesses to promote the public health, safety, morals, and general
welfare of the citizens of the city, and to establish reasonable and
uniform regulations to prevent the deleterious location and 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 distributors
and exhibitors of sexually oriented entertainment to their intended
market. Neither is it the intent nor effect of this article to condone
or legitimize the distribution of obscene materials.
(Ordinance 2009-18, sec. a, adopted 10/13/09)
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.
Any place to which the public is permitted or invited wherein
coin-operated or slug-operated or electronically, electrically, or
mechanically operated 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 images
so displayed are distinguished or characterized by the depicting or
describing of specified sexual activities or specified anatomical
areas.
A commercial establishment which, 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, video cassettes or video reproductions, compact
visual discs, digital video discs, slides, or other visual representations
which depict or describe specified sexual activities or specified
anatomical areas; or
Instruments, devices, or paraphernalia which are designed for
use in connection with specified sexual activities.
A commercial establishment may have other principal business
purposes that do not involve the offering for sale or rental of material
depicting or describing ‘specified sexual activities’
or ‘specified anatomical areas’ and still be categorized
as an adult bookstore or adult video store. Such other business purposes
will not serve to exempt such commercial establishments from being
categorized as an adult bookstore or adult video store so long as
either:
Two percent (2%) or more of its gross revenue is derived from
the sale or rental of the specified materials which depict or describe
specified sexual activities or specified anatomical areas; or
Two percent (2%) or more of its inventory consists of the specified
materials which depict or describe specified sexual activities or
specified anatomical areas.
A nightclub, bar, restaurant, or similar commercial establishment
which regularly features:
Persons who appear in a state of total nudity or seminudity;
Live performances which are characterized by the exposure of
specified anatomical areas or by specified sexual activities; or
Films, motion pictures, video cassettes, slides, or other photographic
reproductions which are characterized by the depiction or description
of specified sexual activities or specified anatomical areas.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films,
motion pictures, video cassettes, 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;
Offers a sleeping room for rent for a period of time that is
less than ten (10) hours or based on an hourly rate; or
Allows a tenant or occupant of a sleeping room to sub-rent the
room for a period of time that is less than ten (10) hours or based
on an hourly rate.
Commercial establishments 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.
A theater, concert hall, auditorium, or similar commercial
establishment which regularly features persons who appear in a state
of nudity and/or seminudity or live performances which are characterized
by the exposure of specified anatomical areas or by specified sexual
activities.
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 body
rub, bathing of the body, or striptease for another person for sexual
arousal.
A person or business association who furnishes, offers to
furnish, or advertises to furnish escorts as one of its primary business
purposes for a fee, tip, or other consideration.
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.
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.
The appearance of a human bare buttock, anus, male genitals,
female genitals, or areola of the breast.
A person in whose name a conditional use permit to operate
a sexually oriented business has been issued and the person who owns
the building and/or land on which the business is located, as well
as the individual listed as an applicant on the application for a
permit.
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
A state of dress in which clothing covers no more than the
genitals, pubic region, and/or areola of the breast, 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 any of the following for consideration:
An adult arcade, adult bookstore or adult video store, adult
cabaret, adult motel, adult motion picture theater, adult theater,
escort agency, nude model studio, or sexual encounter center.
The male genitals in a state of sexual arousal and/or the
vulva or more internal portion of the female genitals.
Includes any of the following:
The fondling or other erotic touching of human genitals, pubic
region, buttocks, anus, or female breasts;
Sex acts, normal or perverted, actual or stimulated, including
intercourse, oral copulation, or sodomy;
Masturbation, actual or simulated; or
Excretory functions as part of or in connection with any of
the activities set forth in (1) through (3) above.
The increase in floor area occupied by the business by more
than twenty-five percent (25%), as the floor area existed on the effective
date of this article, or under a certificate of occupancy therefor.
Includes any of the following:
The sale, lease or sublease of the business;
The transfer of securities which 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
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.
(Ordinance 2009-18, sec. b, adopted 10/13/09)
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 2009-18, sec. c, adopted 10/13/09)
This article allows the opportunity for consideration of conditional
use permits to be issued for sexually oriented businesses in the Commercial/Light
Industrial (herein ‘C-2’ or ‘I-1’) zoning
districts only.
(1)
The
following uses may be permitted within the city by conditional use
permit only in the commercial/industrial zoning districts noted above
in this section:
(2)
No use listed in subsection (1) above shall be established within one thousand (1,000) feet of any of the following uses in existence prior to the beginning of such business:
(A)
A church, chapel, or other regular place of religious worship;
(B)
A public or private elementary, secondary school or institute of
higher learning;
(C)
A boundary of any residentially zoned district;
(D)
A public park/playground/swimming pool, or public library;
(E)
The property line of a lot used for residential purposes;
(F)
Nursing homes, hospitals or child/adult care centers; or
(G)
Within one thousand (1,000) feet of another sexually oriented business.
(3)
For
the purpose of this article, measurement shall be made in a straight
line, without regard to intervening structures or objects, from the
nearest portion of the building or structure used as a part of the
premises where a sexually oriented business is conducted, to the nearest
property line of the premises of a church, public or private elementary
or secondary school, institute of higher learning, nearest boundary
of a public park/playground/swimming pool or public library or residential
lot; or to the nearest boundary of any residentially zoned district;
or hospital, nursing home, or child/adult care center; or from the
closest exterior wall of the structure in which a sexually oriented
business is proposed to be located to the nearest exterior wall of
any other sexually oriented business.
(4)
For
the purposes of this article, if sexually oriented businesses can
not be located within a minimum of 3% of the existing zoning districts
within the city limits, including all nonconforming use sexually oriented
businesses, due to limitations as set forth in this article, the city
will upon written request from an applicant review the current zoning
districts and shall allow zoning alterations as necessary so that
a minimum of 3% of the city-wide zoning, cumulatively within the city
limits, can be occupied by a conditional use permitted sexually oriented
business, including all nonconforming use sexually oriented business.
(Ordinance 2009-18, sec. d, adopted 10/13/09)
(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, video cassette, or other video reproduction which depicts
specified sexual activities or specified anatomical areas, shall comply
with the following requirements:
(1)
The application for a conditional use permit for a sexually oriented
business 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 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 one (1) foot. The
building official may waive the foregoing diagram for renewal applications
if the applicant adopts a diagram that was previously submitted and
certifies that the configuration of the premises is correct and 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 an amendment to
the conditional use permit.
(4)
It is the duty of the owners and operator of the premises to 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 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 has two or more manager’s
stations designated, then the interior of the premises shall be configured
in such a manner that there is an unobstructed view of each area of
the premises to which any patron is permitted access for any purpose
from at least one of the manager’s stations. The view required
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 shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in the above subsection (5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection (1) of this subsection.
(7)
No viewing room may be occupied by more than one person at any time.
(8)
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.
(9)
It shall be the duty of the owners and operator and it shall also
be the duty of any agents and employees present in the premises to
ensure that the illumination described above is maintained at all
times that any patron is present in the premises.
(Ordinance 2009-18, sec. e, adopted 10/13/09)
It is a defense to prosecution under this article 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, 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 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 nude model is on the premises at any one time.
(Ordinance 2009-18, sec. f, adopted 10/13/09)
All sexually oriented businesses located within the city limits
must have a conditional use permit in accordance with this article.
Each owner must have filled out an application and his or her name
must appear on the permit.
(1)
Permits required.
A commercial establishment that is
a sexually oriented business as herein defined, shall at all times
of operation within the city limits have a valid permit.
(A)
A person commits an offense if that person conducts business as a
sexually oriented business within the city unless a valid conditional
use permit has been issued by the city for the conduct of such business.
(B)
A person commits an offense if that person conducts business as a
sexually oriented business within the city limits unless the person
has a valid permit which is posted at or near the principal public
entrance to the business in such a manner that it will be conspicuous
to patrons who enter the premises, or behind the bar in a conspicuous
manner.
(C)
Every permittee shall have and maintain exclusive occupancy and control
of the entire permitted premises in every phase of the operation of
the sexually oriented business on the permitted premises. A permittee
commits an offense if the permittee attempts to avoid such responsibility
by creating any device, scheme or plan which surrenders control of
the employees, premises or business of the permittee to persons other
than the permittee.
(2)
Issuance or denial of permit.
A permit or renewal shall
be issued unless one (1) or more of the following conditions exists:
(A)
The applicant has located the sexually oriented business in violation
of this article, unless the business is a nonconforming use as defined
herein.
(B)
The applicant(s) failed to supply all of the information required
on the application.
(C)
The applicant, or any one applicant, gave fraudulent or untruthful
information on the application. This does not apply to clerical errors.
(D)
The applicant, or any one applicant, has been convicted of a felony
for which not less than five (5) years have elapsed since the date
of conviction or the date of release from confinement imposed for
the conviction, whichever is the later date, or a misdemeanor for
which less than two (2) years have elapsed since the date of conviction
or the date of release from confinement imposed for the conviction,
whichever date is the later date, of a crime in any state involving:
(i)
Public lewdness, indecent exposure, or indecency with a child as
described in the Texas Penal Code;
(ii)
Prohibited sexual conduct, enticing a child, harboring a runaway
child, or sale or purchase of a child as described in the Texas Penal
Code;
(iii)
Prostitution, promotion of prostitution, aggravated promotion
of prostitution, compelling prostitution, obscenity, sale, distribution,
or display of harmful material to a minor, sexual performance by a
child, employment harmful to children, or possession or promotion
of child pornography as defined in the Texas Penal Code;
(iv)
Facilitation, attempt, conspiracy, or solicitation to commit
any of the foregoing offenses; or
(v)
Any similar offense to those described above under the criminal or
penal code of another state.
(3)
Renewal of permit.
Permits shall be valid for one (1)
year from the issuance of the permit. Permits must be renewed annually
by all owners of the sexually oriented business. Failure to renew
the permit voids the permit.
(4)
Permit transfers.
A permit is personal to the owner
designated in the application. A permit may not be transferred except
pursuant to and in compliance with this article. A transfer application
must be filed within thirty (30) days of any change of owner designated
on the current permit. A transfer application shall allow continuation
of business under an existing permit while a new application is being
processed. Any transfer application shall require and be treated in
all respects as an original permit application. In the event that
a transfer application is not timely filed, then the existing permit
shall be invalid for any purpose relating to the operation of business.
Provided, however, that nothing in this article shall affect the nonconforming
use provisions herein.
(5)
Revocation of permit.
Any violation of this article
shall constitute grounds for revocation of a permit. A permit shall
be revoked for any of the following violations:
(A)
The permittee(s) have located the sexually oriented business in violation
of this article; unless the business is a nonconforming use as defined
herein.
(B)
The permittee(s) failed to supply all of the information required
on the renewal application.
(C)
The permittee(s) gave fraudulent or untruthful information on the
renewal application. This does not apply to clerical errors.
(D)
The permittee, or any one permittee, has been convicted of a felony
for which not less than five (5) years have elapsed since the date
of conviction or the date of release from confinement imposed for
the conviction, whichever is the later date, or a misdemeanor for
which less than two (2) years have elapsed since the date of conviction
or the date of release from confinement imposed for the conviction,
whichever date is the later date, of a crime in any state involving:
(i)
Public lewdness, indecent exposure, or indecency with a child as
described in the Texas Penal Code;
(ii)
Prohibited sexual conduct, enticing a child, harboring a runaway
child, or sale or purchase of a child as described in the Texas Penal
Code;
(iii)
Prostitution, promotion of prostitution, aggravated promotion
of prostitution, compelling prostitution, obscenity, sale, distribution,
or display of harmful material to a minor, sexual performance by a
child, employment harmful to children, or possession or promotion
of child pornography as defined in the Texas Penal Code;
(iv)
Facilitation, attempt, conspiracy, or solicitation to commit
any of the foregoing offenses; or
(v)
Any similar offense to those describe above under the criminal or
penal code of another state.
(E)
More than four criminal offenses are committed on the permitted premises
in any consecutive twelve-month period which fall in one or more of
the following categories:
(i)
Public lewdness, indecent exposure, or indecency with a child as
described in the Texas Penal Code;
(ii)
Prohibited sexual conduct, enticing a child, harboring a runaway
child, or sale or purchase of a child as described in the Texas Penal
Code;
(iii)
Prostitution, promotion of prostitution, aggravated promotion
of prostitution, compelling prostitution, obscenity, sale, distribution,
or display of harmful material to a minor, sexual performance by a
child, employment harmful to children, or possession or promotion
of child pornography as defined in the Texas Penal Code; or
(iv)
Facilitation, attempt, conspiracy, or solicitation to commit
any of the foregoing offenses.
(F)
Any person under the age of eighteen, not otherwise permitted by
the laws of the state to view the material contained on the premises
is permitted to enter the premises.
(6)
Appeal.
All denials and revocations of permit applications
and renewals must be appealed to the city council.
(A)
If an application for issuance or renewal of a permit is denied a
permit or a permit is revoked, upon notice of the denial or revocation
of a permit, the aggrieved applicant or permittee shall have ten (10)
days to appeal to the decision to the city council.
(B)
The appeal of a revocation of a permit to the city council shall
abate the revocation of the permit until such time as the city council
may hold a public hearing.
(Ordinance 2009-18, sec. g, adopted 10/13/09)
(a)
A
person commits a misdemeanor if he or she:
(1)
Operates or causes to be operated a sexually oriented business without
a conditional use permit. All sexually oriented businesses shall be
located within the C-2/Industrial-1 zoning districts.
(2)
Operates or causes to be operated a sexually oriented business within
one thousand (1,000) feet of any of the following uses in existence
prior to the beginning of such business:
(A)
A church, chapel, or other regular place of religious worship;
(B)
A public or private elementary, secondary school or institute of
higher learning;
(C)
A boundary of any residentially zoned district;
(D)
A public park/playground/swimming pool;
(E)
Public library;
(F)
Nursing home, hospital or child/adult care centers; or
(G)
The property line of a lot used for residential purposes.
(3)
Causes or permits the operation, establishment, substantial enlargement,
or transfer of ownership or control of a sexually oriented business
within one thousand (1,000) feet of another sexually oriented business.
(4)
Causes or permits the operation, establishment, or maintenance of
more than one sexually oriented business, as defined herein, in the
same building, structure, or portion thereof, or the increase of floor
area of any sexually oriented business in any building, structure,
or portion thereof containing another sexually oriented business.
(b)
For the purposes of subsection (a)(2) of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure in which any, or any part of any, sexually oriented business is conducted, to the nearest property line of the premises of a church, public or private elementary or secondary school, institute of higher learning, the nearest boundary of a public park or playground, or public library or residential lot; or the boundary of a residentially zoned district.
(Ordinance 2009-18, sec. h, adopted 10/13/09)
(a)
Any
sexually oriented business lawfully operating on the effective date
of this article that is in violation of this article shall be deemed
a nonconforming use. The nonconforming use will be permitted to continue
for a period not to exceed two years, unless sooner terminated for
any reason or voluntarily discontinued for a period of thirty (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 established and continually operating
at a particular location is the conforming use and the later-established
business is nonconforming.
(b)
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 conditional use permit for a sexually oriented business,
of a church, public or private elementary or secondary school, institute
of higher learning, public park or playground, public library, or
a residential lot within one thousand (1,000) feet of the sexually
oriented business. This provision applies only to the renewal of a
valid permit, and does not apply when an application for a permit
is submitted after a permit and/or license has expired or has been
revoked.
(Ordinance 2009-18, sec. i, adopted 10/13/09)
