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 town and to establish reasonable and uniform
regulations on the operation of the same without imposing a limitation
or restriction on the contents of any communicative materials, including
sexually oriented materials.
(2002 Code, sec. 4.101)
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 (5) 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” as defined herein.
A commercial establishment which as one (1) of its principal
business purposes offers for sale or rental for any form of consideration
any one (1) or more of the following:
Books, magazines, periodicals or other printed matter or photographs,
films, motion pictures, video cassettes or video reproductions, 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 nightclub, bar, restaurant, or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity; or
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
and 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;
or
Offers a sleeping room for rent for a period of time that is
less than ten (10) hours; or
Allows a tenant or occupant of a sleeping room to sub-rent the
room for a period of time that is less than ten (10) hours.
A commercial establishment where, for any form of consideration,
films, motion pictures, 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.”
A theater, concert hall, auditorium, or similar commercial
establishment which regularly features persons who appear in a state
of nudity or live performances which are characterized by the exposure
of “specified anatomical areas” or by “specified
sexual activities.”
The mayor or any individual duly designated to perform the
duties established herein.
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.
Any of the following:
The opening or commencement of any sexually oriented business
as a new business;
The conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business;
The addition of any sexually oriented business to any other
existing sexually oriented business; or
The relocation of any sexually oriented business.
A person in whose name a license to operate a sexually oriented
business has been issued, as well as the individual listed as an applicant
on the application for a license.
Any building, room, place, or establishment, other than a
regularly licensed hospital, where manipulated massage or manipulated
exercises are practiced upon the human body by anyone not a duly licensed
physician, osteopath, chiropractor or a registered massage therapist,
nurse or a doctor whether with or without the use of mechanical, therapeutic
or bathing devices, and shall include Turkish bathhouses. This term
shall not include, however, duly licensed beauty parlors or barber
shops or a place wherein registered physical therapists treat only
patients recommended by a licensed physician and operate only under
such physician’s direction.
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.
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 an owner, part owner,
or licensee of the business.
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
A single family, duplex, townhouse, multiple family, or mobile
home zoning district as defined in the zoning ordinance of the town.
A single family, duplex, multiple family, mobile home park,
mobile home subdivision, or any other traditionally residential use
as defined in the zoning ordinance of the town.
A state of dress in which clothing covers no 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.
A business or commercial enterprise that, as one of its primary
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore, or adult video store, adult
cabaret, adult motel, adult motion picture theater, adult theater
or nude model studio.
Less than completely covered human genitals, pubic region,
buttocks, and female breast below a point immediately above the top
of the areola.
Any of the following:
The fondling or other erotic touching of human genitals, pubic
regions, buttocks, anus, or female breasts;
Sex acts, normal or perverted, actual or simulated, including
intercourse, oral copulation, or sodomy;
Masturbation, actual or simulated;
Excretory functions as part of or in connection with any of
the activities set forth in (1) through (3) above.
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 request or other operation of law upon the death of the
person possessing the ownership or control.
(2002 Code, sec. 4.102; Ordinance
adopting Code)
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)
Massage
establishments;
(9)
Nude
model studios;
(10)
Sexual encounter centers.
(2002 Code, sec. 4.103)
(a)
A
person commits an offense if he/she operates or causes to be operated
a sexually oriented business within one thousand (1,000) feet of:
(b)
A
person commits an offense if he/she 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.
(c)
A
person commits an offense if he/she causes or permits the operation,
establishment, or maintenance of more than one sexually oriented business
in the same building, structure, or portion thereof.
(d)
For the purposes of subsection (a), 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 or public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential district, or residential lot.
(e)
For purposes of subsection (b) of this section, the distance between any two (2) sexually oriented businesses shall be measured in a straight line, without regard to intervening structure or objects, from the closest exterior wall of the structure in which each business is located.
(f)
A
sexually oriented business lawfully operating in conformance with
this article is not rendered nonconforming by the location, subsequent
to the grant or renewal of the sexually oriented business license,
of a church, public or private elementary or secondary school, public
park, residential district, or residential lot within one thousand
(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 has been revoked.
(2002 Code, sec. 4.104)
(a)
A
person commits an offense if he/she operates a sexually oriented business
without a valid license, issued by the town for the particular type
of business.
(b)
The
applicant must be qualified according to the provisions of this article.
(c)
If a person who wishes to operate a sexually oriented business is an individual, he/she must fully execute the application for a license. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a ten percent (10%) or greater interest in the business must sign the application for a license. Each applicant must be qualified under section 4.02.006 and each applicant shall be considered a licensee if a license is granted.
(2002 Code, sec. 4.105)
(a)
The
enforcement agent shall approve the issuance of a license to an applicant
within thirty (30) days after receipt of an application unless he/she
finds one or more of the following to be true:
(1)
An applicant is under eighteen (18) years of age.
(2)
An applicant or an applicant’s spouse is overdue in payment
to the town of taxes, fees, fines, or penalties assessed against or
imposed upon the applicant or applicants spouse in relation to a sexually
oriented business.
(3)
An applicant has failed to provide information reasonably necessary
for issuance of the license or has falsely answered a question or
request for information on the application form.
(4)
An applicant or an applicant’s spouse has been convicted of
a violation of a provision of this article, other than the offense
of operating a sexually oriented business without a license, within
two (2) years immediately preceding the application. The fact that
a conviction is being appealed shall have no effect.
(5)
The license fee required has not been paid.
(6)
An applicant has been employed in a sexually oriented business in
a managerial capacity within the preceding twelve (12) months and
has demonstrated that he/she is unable to operate or manage a sexually
oriented business premises in a peaceful and law-abiding manner, thus
necessitating action by law enforcement officers.
(7)
An applicant or the proposed establishment is in violation of or
is not in compliance with any of the provisions of this article.
(8)
An applicant or an applicant’s spouse has been convicted of
a crime:
(A)
Involving:
(i)
Any of the following offenses as described in chapter 43 of
the state penal code:
(iii)
Sexual assault or aggravated sexual assault as described in
chapter 22 of the state penal code;
(iv)
Incest, solicitation of a child, or harboring a runaway child
as described in chapter 25 of the state penal code; or
(v)
Criminal attempt, conspiracy, or solicitation to commit any
of the foregoing offenses;
(B)
For which:
(i)
Less than two (2) years have elapsed since the date of conviction
or the date of release from confinement imposed for the conviction,
whichever is the later date, if the conviction is of a misdemeanor
offense;
(ii)
Less than five (5) years have elapsed since the date of conviction
or the date of release from confinement for the conviction, whichever
is the later date, if the conviction is of a felony offense; or
(iii)
Less than five (5) years have elapsed since the date of the
last conviction or the date of release from confinement for the last
conviction, whichever is the later date, if the convictions are of
two or more misdemeanor offenses or combination of misdemeanor offenses
occurring within any twenty-four (24) month period.
(b)
The
fact that a conviction is being appealed shall have no effect on the
disqualification of the applicant or applicant’s spouse.
(d)
The
license, if granted, shall state on its face the name of the person
or persons to whom it is granted, the expiration date, and the address
of the sexually oriented business. The license shall be posted in
a conspicuous place at or near the entrance to the sexually oriented
business so that it may be easily read at any time.
(2002 Code, sec. 4.106)
The annual fee for a sexually oriented business license is as
provided for in the fee schedule found in the appendix of this code.
(2002 Code, sec. 4.107)
(a)
An
applicant or licensee shall permit representatives of the police department,
health department, fire department, and building inspection division
to inspect the premises of a sexually oriented business for the purpose
of insuring compliance with the law, at any time it is occupied or
open for business.
(b)
A
person who operates a sexually oriented business or his/her agent
or employee commits an offense if he/she refuses to permit a lawful
inspection of the premises by a representative of the police department
at any time it is occupied or open for business.
(c)
The
provisions of this section do not apply to areas of an adult motel
which are currently being rented by a customer for use as a permanent
or temporary habitation.
(2002 Code, sec. 4.108)
(a)
Each license shall expire one (1) year from the date of issuance and may be renewed only by making application as provided in section 4.02.006 of this article. Application for renewal should be made at least thirty (30) days before the expiration date. Applications made less than thirty (30) days before the expiration date will have no effect on the expiration of the license.
(b)
When
the enforcement agent denies renewal of a permit, the applicant shall
not be issued a license for one (1) year from the date of denial.
If, subsequent to denial, the enforcement agent finds that the basis
for the denial of the renewal has been corrected, the applicant may
be granted a license if at least ninety (90) days have elapsed since
the date denial became final.
(2002 Code, sec. 4.109)
The enforcement agent shall suspend a license for a period not
to exceed thirty (30) days if he/she determines that a licensee or
an employee of a licensee has:
(1)
Violated
or is not in compliance with the provisions of this article;
(2)
Engaged
in excessive use of alcoholic beverages while on the sexually oriented
business premises;
(3)
Refused
to allow an inspection of the sexually oriented business premises
as authorized by this article;
(4)
Knowingly
permitted gambling by any person on the sexually oriented business
premises;
(5)
Demonstrated
inability to operate or manage a sexually oriented business in a peaceful
and law-abiding manner thus necessitating action by law enforcement
officers.
(2002 Code, sec. 4.110)
(a)
The enforcement agent shall revoke a license if a cause of suspension in section 4.02.010 of this article occurs and the license has been suspended within the preceding twelve (12) months.
(b)
The
enforcement agent shall remove a license if he/she determines that:
(1)
A licensee gave false or misleading information in the material submitted
to the enforcement agent during the application process;
(2)
A licensee or an employee has knowingly allowed possession, use,
or sale of controlled substances on the premises;
(3)
A licensee or an employee has knowingly allowed prostitution on the
premises;
(4)
A licensee or an employee knowingly operated the sexually oriented
business during a period of time when the licensee’s license
was suspended;
(6)
On two (2) or more occasions within a twelve (12) month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in subsection (a)(8)(A) of section 4.02.006 of this article, for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed;
(7)
A licensee or an employee has knowingly allowed any act of sexual
intercourse, sodomy, oral copulation, masturbation, or sexual contact
to occur in or on the licensed premises. The term “sexual contact”
shall have the same meaning as it is defined in section 21.01, state
penal code;
(8)
A licensee is delinquent in payment to the town for hotel occupancy
taxes, ad valorem taxes, or sales taxes related to the sexually oriented
business; or
(9)
A licensee has refused to permit an inspection of the premises by
the enforcement agent or his/her designee.
(c)
The
fact that a conviction is being appealed shall have no effect on the
revocation of the license.
(d)
Subsection (b)(7) does not apply to adult motels as a ground for revoking the license unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in a public place or within public view.
(e)
When the enforcement agent revokes a license, the revocation shall continue for one (1) year and the licensee shall not be issued a sexually oriented business license for one (1) year from the date revocation became effective. If, subsequent to revocation, the enforcement agency finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least ninety (90) days have elapsed since the date the revocation became effective. If the license was revoked under subsection (b)(5), an applicant may not be granted another license until the appropriate number of years required under Subsection (a)(8)(B) of section 4.02.006 of this article has elapsed.
(2002 Code, sec. 4.111)
(a)
If
the enforcement agent denies the issuance of a license or the renewal
of a license, he or she shall send to the applicant, by certified
mail, return receipt requested, written notice of his or her action
and the right to an appeal. The aggrieved party may appeal the decision
of the enforcement agent to the town council. The filing of an appeal
stays the action of the town.
(b)
The
applicant may, not later than ten (10) calendar days after receiving
notice of the denial, file with the town secretary a written request
for a hearing before the town council.
(c)
A
hearing by the town council may proceed if a quorum is present. The
town council shall hear and consider evidence offered by any interested
person.
(d)
The
town council may, in its discretion, grant an exemption from the locational
restrictions of this article if the following is found:
(1)
That the location of the proposed sexually oriented business will
not have a detrimental effect on nearby properties or be contrary
to the public safety or welfare;
(2)
That the granting of the exemption will not violate the spirit and
intent of this article;
(3)
That the location of the proposed sexually oriented business will
not downgrade the property values or quality of life in the adjacent
areas or encourage the development of urban blight;
(4)
That the location of an additional sexually orient business in the
area will not be contrary to any program of neighborhood conservation
nor will it interfere with any efforts of urban renewal or restoration;
and
(5)
That all other applicable provisions of this article will be observed.
(e)
The
town council shall grant or deny the exemption by majority vote. 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 town council regarding the permit
appeal is final.
(f)
If
the town council grants the exemption, the exemption is valid for
one (1) year from the date of the council’s action. Upon expiration
of an exemption, the sexually oriented business is in violation of
the locational restrictions until the applicant applies for and receives
another exemption.
(g)
If
the town council denies the exemption, the applicant may not re-apply
for an exemption until at least twelve (12) months have elapsed since
the date of the council’s action.
(h)
The
grant of an exemption does not exempt the applicant from any other
provisions of this article other than the locational restrictions.
(2002 Code, sec. 4.112)
A licensee shall not transfer his/her license to another, nor
shall a licensee operate a sexually oriented business under the authority
of a license at any place other than the address designated in the
application.
(2002 Code, sec. 4.113)
(a)
A
nude model studio shall not employ any person under the age of eighteen
(18) years.
(b)
A
person under the age of eighteen (18) years commits an offense if
he/she appears in a state of nudity in or on the premises of a nude
model studio. It is a defense to prosecution under this subsection
if the person under eighteen (18) years was in a restroom not open
to public view or persons of the opposite sex.
(c)
A
person commits an offense if he/she appears in a state of nudity or
knowingly allows another to appear in a state of nudity in an area
of a nude model studio premises which can be viewed from the public
right-of-way.
(d)
A
nude model studio shall not place or permit a bed, sofa, or mattress
in any room on the premises, except that a sofa may be placed in a
reception room open to the public.
(2002 Code, sec. 4.114)
(a)
A
person commits an offense if he/she knowingly allows a person under
the age of eighteen (18) years to appear in a state of nudity in or
on the premises of an adult theater or adult motion picture theater.
(b)
A
person under the age of eighteen (18) years commits an offense if
he/she knowingly appears in a state of nudity in or on the premises
of an adult theater or adult motion picture theater.
(2002 Code, sec. 4.115)
(a)
Evidence
that a sleeping room in a hotel, motel, or similar commercial establishment
has been rented and vacated two (2) or more times in a period of time
that is less than ten (10) hours creates a rebuttable presumption
that the establishment is an adult motel as that term is defined in
this article.
(b)
A
person commits an offense if, as the person in control of a sleeping
room in a hotel, motel, or similar commercial establishment that does
not have a sexually oriented business license, he/she rents or sub-rents
a sleeping room to a person and, within ten (10) hours from the time
the room is rented, he/she rents or sub-rents the same sleeping room
again.
(2002 Code, sec. 4.116)
(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, a film, video cassette, or other video reproduction which depicts
specified sexual activities or specified anatomical areas, shall comply
with the following requirements:
(1)
Upon application for a sexually oriented business license, the application
shall be accompanied by a diagram of the premises showing a plan thereof
specifying the location of one (1) 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 six (6) inches. The
enforcement agent 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 has not been altered
since it was prepared.
(2)
The application shall be sworn to be true and correct by the applicant.
(3)
No alteration in the configuration or location of a manager’s
station may be made without the prior approval of the enforcement
agent or his/her designee.
(4)
It is the duty of the owners and operator of the premises to ensure
that a least one (1) employee is on duty and situated in each manager’s
station at all times that any patron is present inside the premises.
(5)
The interior of the premises shall be configured in such a manner
that there is an unobstructed view from a manager’s station
of every area of the premises to which any patron is permitted access
for any purpose excluding restrooms. Restrooms may not contain video
reproduction equipment. If the premises has two (2) 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 paragraph (5) above remains
unobstructed by any doors, walls, merchandise, display racks or other
materials at all times that any patron is present in the premises
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 paragraph (1)
above.
(7)
The premises shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place to which patrons are
permitted access at an illumination of not less than one (1.0) foot-candle
as measured at the floor level.
(8)
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.
(2002 Code, sec. 4.117)
The display of sexually explicit material to minors is unlawful
and punishable in accordance with the provisions of V.T.C.A., Penal
Code, 43.24.
(2002 Code, sec. 4.118)
(a)
It is a defense to prosecution under section 4.02.004 or subsection (d) of section 4.02.014 of 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; and
(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.
(2002 Code, sec. 4.119)
A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of section 4.02.005 herein, is subject to a suit for injunction as well as prosecution for criminal violations.
(2002 Code, sec. 4.120)
That any person, firm, or corporation who shall violate any of the provisions of this article shall be guilty of a misdemeanor and upon conviction shall be fined in accordance with the general penalty provision found in section 1.01.009 of this code, and each and every day’s violation shall constitute a separate offense.
(2002 Code, sec. 4.121)
