(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 continued 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 not the intent or effect of this article to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market.
(b) 
It is the intent of the city council that the provisions of this article are promulgated pursuant to the city’s constitutional and legislative delegation of powers and authority, both express and those that are necessarily implied.
(Ordinance 2011-07, sec. 1, adopted 8/23/11; 2007 Code, sec. 22-80)
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 or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of “specified sexual activities” or “specified anatomical areas.”
Adult cabaret.
A nightclub, bar, restaurant, or similar commercial establishment which regularly features:
(1) 
Persons who appear in a state of nudity or seminudity;
(2) 
Live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities”; or
(3) 
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.”
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, 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 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, video cassettes, 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 seminudity or live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities.”
City.
The City of McLendon-Chisholm, Texas.
Consideration.
Any giving or exchange of money, an item of value, or service requested, solicited, provided, or bargained for in connection with:
(1) 
Gaining entrance or the permission to remain on a premises, or any portion thereof;
(2) 
Obtaining an item or any marking permitting entrance or the permission to remain on a premises, or any portion thereof; or
(3) 
A membership or other form of affiliation that allows one to enter or remain on a premises, or any portion thereof.
Donation.
Any act or instance of presenting money, an item or thing of value, or a service as a grant or contribution in association with the availability of some benefit, including but not limited to, a good or service, admission or access to a location or event, or use of facilities.
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 privately perform a striptease for another person.
Escort agency.
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.
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 a 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.
Licensee.
A person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license.
Mayor.
The Mayor of the City of McLendon-Chisholm or his designee.
Media, sexual oriented.
Magazines, books, videotapes, movies, slides, CD’s, DVD’s or other devices used to record computer images, or other media which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to “specified sexual activities” or “specified anatomical areas.”
Media store, sexually oriented.
An establishment that rents and/or sells sexually oriented media, and that meets any of the following three tests:
(1) 
More than 40 percent of the gross public floor area is devoted to sexually oriented media;
(2) 
More than 40 percent of the stock in trade consists of sexually oriented media; or
(3) 
It advertises or holds itself out in any forum as a “XXX,” “adult” or “sex” business, or otherwise as a sexually oriented business, other than adult cabaret, adult motion picture theater or adult theater.
Nude model studio.
Any place where a person who appears in a state of nudity or seminudity 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 other form of consideration.
Nudity or a state of nudity.
The appearance of a human bare buttock, anus, male genitals, female genitals, or female breast.
Operate and maintain.
To organize, manage, control, design, perpetuate, publicize, invite, or solicit. Operate and maintain includes providing financial support by paying utilities, rent, maintenance costs, or advertising costs; providing food, beverages, or other entertainment; supervising activities or work schedules, and directing or furthering the aims of the enterprise or organization.
Person.
An individual, proprietorship, trust, partnership, corporation, association, or other legal entity.
Principal business.
An establishment having a 20 percent or greater interest of its stock and trade in books, magazines and other periodicals of which such books, magazines and other periodicals are distinguished or characterized by their emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas,” or a 20 percent or greater interest in other sexually related activities as defined by this article.
School.
Any public or private nursery, preschool, day-care center, learning center, elementary or secondary school.
Seminude.
A state of dress in which clothing covers more than the genitals, pubic region, and areola of the female breast, as well as portions of the body covered by supporting straps or devices.
Sex club.
Any organization, location or real property and its improvements where for a solicited fee, donation, or other consideration, there is an opportunity or invitation to engage in or to observe sexual activity.
Sex shop.
An establishment offering goods for sale or rent and that meets any of the following tests:
(1) 
It offers for sale items from any two of the following categories: Sexually oriented media; lingerie; leather goods marketed or presented in a context to suggest their use for sadomasochistic practices; sexually oriented novelties; and the combination of such items constitutes more than ten percent of its stock in trade or occupies more than ten percent of its floor area;
(2) 
More than five percent of its stock in trade consists of sexually oriented toys or novelties;
(3) 
More than five percent of its gross public floor area is devoted to the display of sexually oriented toys or novelties.
Sexual encounter center.
A business or commercial enterprise that regularly 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 seminude.
Sexually oriented business.
An inclusive term used to describe collectively the following businesses: Adult arcade, sexually oriented media store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, sex shop, nude model studio, sexual encounter center, or sex club.
Specified anatomical areas.
Include:
(1) 
Less than completely and opaquely covered human genitals, pubic region, or the areola or nipple of the female breasts;
(2) 
Human male genitals in a discernibly turgid state, even if completely and opaquely covered; and
(3) 
Areas of the human anatomy included in the definition of “nudity or state of nudity.”
Specified sexual activities.
Acts of human masturbation, sexual intercourse, or sodomy. These activities include, but are not limited to the following: Bestiality, erotic or sexual stimulation with objects or mechanical devices, acts of human analingus, cunnilingus, fellatio, flagellation, masturbation, sadism, sadomasochism, sexual intercourse, sodomy, or any excretory functions as part of or in connection with any of the activities set forth above with any person on the premises. This definition shall include apparent sexual stimulation of another person’s genitals whether clothed or unclothed.
Substantial enlargement of a sexually oriented business.
The increase in floor area occupied by the business by more than 20 percent, as the floor area exists on the effective date of the ordinance from which this article is derived.
Transfer of ownership or control of a sexually oriented business.
Any of the following:
(1) 
The sale, lease or sublease of the business;
(2) 
The transfer of securities or other ownership interest which constitute a direct, indirect, legal, equitable or beneficial 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 direct, indirect, legal, equitable or beneficial 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 to a person meeting all of the requirements of this article, who shall have notified the mayor of the transfer and furnished all of the information required to be submitted in an application for a license, within 60 days of the transfer.
(Ordinance 2011-07, sec. 1, adopted 8/23/11; 2007 Code, sec. 22-81)
Sexually oriented business is defined and classified as any establishment operating in the city, in whole or in part, as any one or more of the following:
(1) 
Adult arcade;
(2) 
Sexually oriented media store;
(3) 
Adult cabaret;
(4) 
Adult motel;
(5) 
Adult motion picture theater;
(6) 
Adult theaters;
(7) 
Escort agency;
(8) 
Nude model studio;
(9) 
Sexual encounter center; and/or
(10) 
Sex club.
(Ordinance 2011-07, sec. 1, adopted 8/23/11; 2007 Code, sec. 22-82)
(a) 
At any time it is occupied or open for business, an applicant or licensee shall permit representatives of the city, including but not limited to, health officials, fire department personnel, code enforcement, and building inspection to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with law.
(b) 
A person who operates a sexually oriented business, or whose agent or employee operates the same, commits an offense if the person or agent or employee refuses to permit a lawful inspection of the premises by a representative of the departments described in subsection (a) of this section at any time it is occupied or open for business.
(Ordinance 2011-07, sec. 1, adopted 8/23/11; 2007 Code, sec. 22-86)
(a) 
Except as provided by subsection (b) of this section, any violation of section 4.06.061 of this article is punishable by fine not to exceed $2,000.00 for each violation, and a separate offense shall be deemed committed each day during which a violation occurs.
(b) 
A violation of any provision of this article other than section 4.06.061 is punishable by a fine not to exceed $500.00 for each offense, and a separate offense shall be deemed committed upon each day during or on which a violation occurs.
(c) 
It is a defense to prosecution under this article that a person appearing in a state of nudity or seminudity did so in a modeling class operated:
(1) 
By a proprietary school licensed by the state, a college, junior college, or university supported entirely or partly by taxation;
(2) 
By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or
(3) 
In a structure:
(A) 
Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude or seminude 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 or seminude model is on the premises at any one time.
(d) 
It is a defense to prosecution under this article that each item of descriptive, printed, film, or video material offered for sale or rental, taken as a whole, contains serious literary, artistic, political, or scientific value.
(e) 
Unless otherwise specifically required in the definition of an offense, no intent shall be required in the charging or prosecution of any offense under this article, it being the intent of the council to impose strict liability for violations of this article.
(Ordinance 2011-07, sec. 1, adopted 8/23/11; 2007 Code, sec. 22-100)
A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of section 4.06.061 of this article is subject to a suit for injunction as well as prosecution for criminal violations. Any enforcement remedies provided under this article or by state law shall not be mutually exclusive and violations of any provision of this article may be enforced by any one or means lawfully available.
(Ordinance 2011-07, sec. 1, adopted 8/23/11; 2007 Code, sec. 22-101)