(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 not the intent or effect of this article to restrict
or deny access by adults to sexually oriented materials protected
by the First Amendment.
(1976 Code, sec. 26-1/2-1; 1998
Code, sec. 110-1; 2013 Code, sec. 6-19)
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:
means 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.
means 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, videocassettes 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.
means a nightclub, bar, restaurant, or similar commercial
establishment which regularly features:
Persons who appear in a state of nudity;
Live performances which are characterized by the exposure of
specified anatomical areas or specified sexual activities; or
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.
means 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, 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;
Offers a sleeping room for rent for a period of time that is
less than ten hours; or
Allows a tenant or occupant of a sleeping room to subrent the
room for a period of time that is less than ten hours.
means 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.
means 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.
means the chief of police of the city or his designated agent.
means 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.
means 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.
means and 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.
means 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.
means 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.
means:
means 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.
means an individual, proprietorship, partnership, corporation,
association or other legal entity.
means a single-family, duplex, townhouse, multi-family or mobile home zoning district as defined in article 9.02 (zoning).
means a single-family, duplex, multi-family or mobile home use as defined in article 9.02 (zoning).
means a state of dress in which clothing covers no more than
the genitals, pubic region, and areolae of the female breast, as well
as portions of the body covered by supporting straps or devices.
means a business or commercial enterprise that, as one of
its primary business purposes, offers for any form of consideration:
means 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.
means human genitals in a state of sexual arousal.
means and includes any of the following:
means the increase in floor area occupied by the business
by more than 25 percent.
means and 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.
(1976 Code, sec. 26-1/2-2; 1998
Code, sec. 110-2; 2013 Code, sec. 6-20)
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.
(1976 Code, sec. 26-1/2-3; 1998
Code, sec. 110-3; 2013 Code, sec. 6-21)
(a)
A
person commits an offense if he operates a sexually oriented business
without a valid license, issued by the city for the particular type
of business.
(b)
An application for a license must be made on a form provided by the chief of police. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. An applicant who must comply with section 5.14.019 shall submit a diagram meeting the requirements of section 5.14.019.
(c)
The
applicant must be qualified according to the provisions of this article.
(d)
If a person who wishes to operate a sexually oriented business is an individual, he must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a 20 percent or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under section 5.14.005 and each applicant shall be considered a licensee if a license is granted.
(e)
The
fact that a person possesses a valid theater license, dancehall license,
or public house of amusement license does not exempt him from the
requirement of obtaining a sexually oriented business license. A person
who operates a sexually oriented business and possesses a theater
license, public house of amusement license or dancehall license shall
comply with the requirements and provisions of this article as well
as the requirements and provisions of other chapters of this code
when applicable.
(1976 Code, sec. 26-1/2-4; 1998
Code, sec. 110-4; 2013 Code, sec. 6-22)
(a)
The
chief of police shall approve the issuance of a license by the assessor
and collector of taxes to an applicant within 30 days after receipt
of an application unless the chief of police finds one or more of
the following to be true:
(1)
An applicant is under 18 years of age.
(2)
An applicant or an applicant’s spouse is overdue in payment
to the city of taxes, fees, fines, or penalties assessed against or
imposed upon the applicant or the applicant’s 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 years immediately preceding the application. The fact that a conviction
is being appealed shall have no effect.
(5)
The license fee required by this article has not been paid.
(6)
An applicant has been employed in a sexually oriented business in
a managerial capacity within the preceding 12 months and has demonstrated
an inability to operate or manage a sexually oriented business premises
in a peaceful and law-abiding manner, thus necessitating action by
law enforcement officers.
(8)
An applicant or an applicant’s spouse has been convicted of
a crime:
(A)
Involving:
(B)
For which less than:
(i)
Two years have elapsed since the date of conviction or the date
of release from confinement imposed for the conviction, whichever
is the later date, if the conviction is of a misdemeanor offense;
(ii)
Five years have elapsed since the date of conviction or the
date of release from confinement for the conviction, whichever is
the later date, if the conviction is of a felony offense; or
(iii)
Five years have elapsed since the date of the last conviction
or the date of release from confinement for the last conviction, whichever
is the later date, if the convictions are of two or more misdemeanor
offenses or combination of misdemeanor offenses occurring within any
24-month period.
(b)
The
fact that a conviction is being appealed shall have no effect on the
disqualification of the applicant or the 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.
(1976 Code, sec. 26-1/2-5; 1998
Code, sec. 110-5; 2013 Code, sec. 6-23)
The annual fee for a sexually oriented business license shall
be as established by the city council from time to time.
(1976 Code, sec. 26-1/2-6; 1998
Code, sec. 110-6; 2013 Code, sec. 6-24)
(a)
An
applicant or licensee shall permit representatives of the police department,
health department, fire department, housing and neighborhood services
department, and building inspection division to inspect the premises
of a sexually oriented business for the purpose of ensuring 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 agent or employee
commits an offense if he 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.
(1976 Code, sec. 26-1/2-7; 1998
Code, sec. 110-7; 2013 Code, sec. 6-25)
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in section 5.14.004. Application for renewal should be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the license will not be affected.
(1976 Code, sec. 26-1/2-8; 1998
Code, sec. 110-8; 2013 Code, sec. 6-26)
The chief of police shall suspend a license for a period not
to exceed 30 days if he determines that a licensee or an employee
of a licensee has:
(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.
(1976 Code, sec. 26-1/2-9; 1998
Code, sec. 110-9; 2013 Code, sec. 6-27)
(a)
The chief of police shall revoke a license if a cause of suspension in section 5.14.009 occurs and the license has been suspended within the preceding 12 months.
(b)
The
chief of police shall revoke a license if he determines that:
(1)
A licensee gave false or misleading information in the material submitted
to the chief of police 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;
(5)
A licensee has been convicted of an offense listed in section 5.14.005(a)(8)(A) for which the time period required in section 5.14.005(a)(8)(B) has not elapsed;
(6)
On two or more occasions within a 12-month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in section 5.14.005(a)(8)(A), 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 defined in Texas Penal Code section
21.01; or
(8)
A licensee is delinquent in payment to the city for hotel occupancy
taxes, ad valorem taxes or sales taxes related to the sexually oriented
business.
(c)
The
fact that a conviction is being appealed shall have no effect on the
revocation of the license.
(d)
Subsection (b)(7) of this section does not apply to adult motels as a ground for revoking the license unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation or sexual contact to occur in a public place or within public view.
(e)
When the chief of police revokes a license, the revocation shall continue for one year and the licensee shall not be issued a sexually oriented business license for one year from the date the revocation became effective. If, subsequent to revocation, the chief of police finds that the basis of the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license was revoked under subsection (b)(5) of this section, an applicant may not be granted another license until the appropriate number of years required under section 5.14.005(a)(8)(B) has elapsed.
(1976 Code, sec. 26-1/2-10; 1998
Code, sec. 110-10; 2013 Code, sec. 6-28)
If the chief of police denies the issuance of a license, or
suspends or revokes a license, the chief of police shall send to the
applicant or licensee, by certified mail, return receipt requested,
written notice of the action and the right to an appeal. Upon receipt
of written notice of the denial, suspension, or revocation, the licensee
whose application for a license has been denied or whose license has
been suspended or revoked shall have the right to appeal to the state
district court. An appeal to the state district court must be filed
within 30 days after the receipt of notice of the decision of the
chief of police. The licensee shall bear the burden of proof in court.
(1976 Code, sec. 26-1/2-11; 1998
Code, sec. 110-11; 2013 Code, sec. 6-29)
A licensee shall not transfer his license to another, nor shall
a licensee operate a sexually oriented business under the authority
of a license at any place other than the address designated in the
application.
(1976 Code, sec. 26-1/2-12; 1998
Code, sec. 110-12; 2013 Code, sec. 6-30)
(a)
A
person commits an offense if he operates or causes to be operated
a sexually oriented business within 1,000 feet of:
(b)
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.
(c)
A
person commits an offense if he causes or permits the operation, establishment,
or maintenance of more than one sexually oriented business 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.
(d)
For the purposes of subsection (a) 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 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 sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
(f)
A
sexually oriented business lawfully operating as a conforming use
is not rendered a nonconforming use 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 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.
(1976 Code, sec. 26-1/2-13; 1998
Code, sec. 110-13; 2013 Code, sec. 6-31)
(a)
If the chief of police denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of section 5.14.013, 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 from the locational restrictions of section 5.14.013.
(b)
If
the written request is filed with the city secretary within the ten-day
limit, the zoning board of adjustment shall consider the request.
A date for the hearing shall be set within 60 days from the date the
written request is received.
(c)
The zoning board of adjustment may, in its discretion, grant an exemption from the locational restrictions of section 5.14.013 if it makes the following findings:
(1)
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)
The granting of the exemption will not violate the spirit and intent
of this article;
(3)
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 or urban blight;
(4)
The location of an additional sexually oriented 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)
All other applicable provisions of this article will be observed.
(d)
The
board shall grant or deny the exemption by a 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 zoning board of adjustment is
final.
(e)
If the board grants the exemption, the exemption is valid for one year from the date of the board’s action. Upon the expiration of an exemption, the sexually oriented business is in violation of the locational restrictions of section 5.14.013 until the applicant applies for and receives another exemption.
(f)
If
the board denies the exemption, the applicant may not reapply for
an exemption until at least 12 months have elapsed since the date
of the board’s action.
(1976 Code, sec. 26-1/2-14; 1998
Code, sec. 110-14; 2013 Code, sec. 6-32)
(a)
An
escort agency shall not employ any person under the age of 18 years.
(b)
A
person commits an offense if he acts as an escort or agrees to act
as an escort for any person under the age of 18.
(1976 Code, sec. 26-1/2-15; 1998
Code, sec. 110-15; 2013 Code, sec. 6-33)
(a)
A
nude model studio shall not employ any person under the age of 18
years.
(b)
A
person under the age of 18 years commits an offense if he 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 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 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.
(1976 Code, sec. 26-1/2-16; 1998
Code, sec. 110-16; 2013 Code, sec. 6-34)
(a)
The
requirements and provisions of this article remain applicable to adult
theaters and adult motion picture theaters.
(b)
A
person commits an offense if he knowingly allows a person under the
age of 18 to appear in a state of nudity in or on the premises of
an adult theater or adult motion picture theater.
(c)
A
person under the age of 18 years commits an offense if he knowingly
appears in a state of nudity in or on the premises of an adult theater
or adult motion picture theater.
(1976 Code, sec. 26-1/2-17; 1998
Code, sec. 110-17; 2013 Code, sec. 6-35)
(a)
Evidence
that a sleeping room in a hotel, motel, or similar commercial establishment
has been rented and vacated two or more times in a period of time
that is less than ten hours creates a rebuttable presumption that
the establishment is an adult motel as that term is defined in this
article.
(b)
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 rents or subrents
a sleeping room to a person and, within ten hours from the time the
room is rented, he rents or subrents the same sleeping room again.
(1976 Code, sec. 26-1/2-18; 1998
Code, sec. 110-18; 2013 Code, sec. 6-36)
(a)
A
person who operates or causes to be operated a sexually oriented business,
other than an adult motel, which exhibits on the premises, in a viewing
room of less than 150 square feet of floor space, a film, videocassette
or other video reproduction which depicts specified sexual activities
or specified anatomical areas, shall comply with the following 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 or more manager’s stations and
the location of all overhead lighting fixtures and designating any
portion of the premises in which patrons will not be permitted. A
manager’s station may not exceed 32 square feet of floor area.
The diagram shall also designate the place at which the 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 inches. The chief of
police 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 chief of police
or designee.
(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 have 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 subsection (a)(5) of this section remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times that any patron is present in the premises and 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 (a)(1) of this section.
(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 1.0 footcandle
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.
(1976 Code, sec. 26-1/2-19; 1998
Code, sec. 110-19; 2013 Code, sec. 6-37)
(a)
A
person commits an offense if, in a business establishment open to
persons under the age of 17 years, he displays a book, pamphlet, newspaper,
magazine, film or videocassette, the cover of which depicts, in a
manner calculated to arouse sexual lust or passion for commercial
gain or to exploit sexual lust or perversion for commercial gain,
any of the following:
(1)
Human sexual intercourse, masturbation or sodomy;
(2)
Fondling or other erotic touching of human genitals, pubic region,
buttocks or female breasts;
(3)
Less than completely and opaquely covered human genitals, buttocks,
or that portion of the female breast below the top of the areola;
or
(4)
Human male genitals in a discernibly turgid state, whether covered
or uncovered.
(b)
In
this section, the term “display” means to locate an item
in such a manner that, without obtaining assistance from an employee
of the business establishment:
(1976 Code, sec. 26-1/2-20; 1998
Code, sec. 110-20; 2013 Code, sec. 6-38)
(b)
If the sexually oriented business involved is a nude model studio or sexual encounter center, then violation of section 5.14.004(a) or 5.14.013 is punishable as a class A misdemeanor.
(d)
It is a defense to prosecution under section 5.14.004(a), 5.14.013 or 5.14.016(d) 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, or 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 days in advance of the class; and
(C)
Where no more than one nude model is on the premises at any one time.
(e)
It is a defense to prosecution under section 5.14.004(a) or 5.14.013 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.
(1976 Code, sec. 26-1/2-21; 1998
Code, sec. 110-21; 2013 Code, sec. 6-39; Ordinance adopting 2021 Code)
