It is the purpose of this article to regulate sexually oriented
businesses to promote the public health, safety and welfare, and to
establish reasonable and uniform regulations to prevent the harmful
location and concentration of sexually oriented businesses within
the town and to minimize the deleterious secondary effects of sexually
oriented businesses both inside such businesses and outside in the
surrounding communities. The provisions of this article have neither
the purpose nor the effect of imposing a limitation or restriction
on the content of any communicative materials or performances, including
sexually oriented materials. Similarly, it is neither the intent nor
effect of this article to restrict or deny access to sexually oriented
materials protected by the First Amendment, or to deny access by the
distributors and exhibitors of sexually oriented materials, entertainment
or performances to their intended market. Neither is it the intent
nor effect of this article to condone or legitimize the distribution
of obscene material. This article, including but not limited to its
penalty provisions, is intended to apply to all individuals, groups
of two or more individuals, proprietorships, partnerships, corporations,
limited liability companies, associations, or other legal entities.
(Ordinance 2011-12-6C adopted 12/6/11)
The following words, terms and phrases, when used in this section,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
Colorless, lacking in saturation or hue, without limitation,
grays, tans and light earth tones shall be included, but white and
black and any bold coloration that attracts attention shall be excluded
from the definition of achromatic.
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, and
where the images so displayed are distinguished or characterized by
the depicting or describing of specified sexual activities or specified
anatomical areas.
Any place that provides its goods or services to any customer
offsite or remotely - such that no customers physically enter the
premises of the building - and any of the following activities occurs:
Inbound or outbound telephone or other audio communications
in which a topic or purpose of the communication between an occupant
of the premises and a third party is the discussion or description
of specified sexual activities or specified anatomical areas or is
otherwise pornographic in nature and consideration for same is charged
by the business;
Video or audio broadcasting, whether live, delayed, by film,
by tape recording or otherwise, of specified sexual activities, specified
anatomical areas or pornographic material and consideration for same
is charged by the business; or
Filming, taping or otherwise creating video or audio recordings,
including but not limited to, films, movies, videotapes, DVD’s,
audiotapes or compact discs, that are broadcast, sold, manufactured
or distributed for consideration and off-site distribution and which
display specified sexual activities, specified anatomical areas, or
pornographic material.
An establishment where all or a portion of its business is
offering baths and/or showers with other persons present who are in
a state of nudity, in a semi-nude condition, or displaying specified
anatomical areas.
A nightclub, bar, restaurant, or similar commercial establishment
which regularly features or allows the provision of live sexually
oriented entertainment to its customers or which holds itself out
to the public as an establishment where sexually oriented entertainment
is available, but such definition shall not include any sexually oriented
use prohibited by this article. Signs, advertisements or an establishment
name including verbal or pictorial allusions to sexual stimulation
or gratification or by references to “adult entertainment,”
“strippers,” “showgirls,” “exotic dancers,”
“gentleman’s club,” “XXX” or similar
terms, shall be considered evidence that the establishment holds itself
out to the public as a sexually oriented cabaret or nightclub.
Any media distinguished or characterized by their emphasis
on matter depicting, describing, or relating to specified sexual activities
or specified anatomical areas.
Any store with adult media or adult merchandise for sale
and/or rent, and to which any of the following applies:
The sale and/or rental of adult media or adult merchandise constitutes
more than a negligible part of the business or attraction of the establishment,
taking into consideration any of the following:
The business advertises or holds itself out in any forum as
a “XXX,” “adult,” “sexually oriented,”
or similar type of adult media store.
Means and includes any of the following categories of merchandise:
Lingerie presented in combination with other merchandise contained
within this definition;
Leather goods marketed or presented in a context to suggest
their use for sadomasochistic practices;
Condoms or sexual lubricants presented in combination with other
merchandise contained within this definition;
Sexually oriented novelties; and
Adult media.
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 anatomical areas or by specified sexual activities (this definition does not include lodging facilities that offer adult media via commercial cable or satellite services on room televisions as ancillary television programming if such lodging facilities are not described under subsections (2), (3) or (4) of this definition);
Offers a sleeping room for rent for a period of time that is
less than 10 hours;
Allows a tenant or occupant of a sleeping room to subrent the
room for a period of time that is less than 10 hours or allows the
tenant or occupant to have a weekly or monthly rental of the room
for the purposes of providing sexually oriented entertainment; or
Is marketed as or offered as “adult,” “XXX,”
“couples,” “sexually oriented,” or similar
lodging facility.
A commercial establishment where, for any form of consideration,
films, motion picture, videos, DVD’s, slides, or similar photographic
reproductions are regularly shown which are characterized by the depictions
or descriptions of specified anatomical areas or by specified sexual
activities.
A theater, concert hall, auditorium, or similar commercial
establishment which regularly features or allows the provision of
live sexually oriented entertainment to its customers or which holds
itself out to the public as an adult theater, but such definition
shall not include any sexually oriented use or practice prohibited
by this article. Signs, advertisements or an establishment name including
verbal or pictorial allusions to sexual stimulation or gratification
or by references to “adult entertainment,” “XXX
theater” or similar terms, shall be considered evidence that
the establishment holds itself out to the public as an adult theater.
Any kiosk, booth, cubicle, stall, or compartment that is
designed, constructed, or used to hold or seat customers and is used
for presenting videos or viewing publications by any photographic,
electronic, magnetic, digital, or other means or medium (including,
but not limited to, film, video or magnetic tape, laser disc, CD-ROM’s,
books, DVD’s, magazines or periodicals) to show images of specified
sexual activities or specified anatomical areas for observation by
customers therein. The term “booth,” “arcade booth,”
“preview booth,” and “video arcade booth”
shall be synonymous with the term adult video viewing kiosk or booth.
A sign attached to or painted onto an exterior wall of the
main building or structure of a sexually oriented business.
The chief of police for the town or his or her designee.
A person who performs any service on the premises of a sexually
oriented business on a full-time, part-time or contract basis, whether
or not the person is designated an employee, independent contractor,
agent or otherwise and whether or not said person is paid a salary,
wage or other compensation by the operator of said business. Employee
does not include a person on the premises exclusively for repair or
maintenance of the premises or equipment on the premises, or exclusively
for the delivery of goods to the premises.
A person paid to provide entertainment to customers at a
sexually oriented business; entertainment may consist of dancing,
singing, modeling, acting, other forms of performing, or individual
conversations with customers whereby the entertainer is paid any form
of remuneration directly or indirectly for such conversations.
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
or specified sexual activities for another person.
A person or business association who furnishes, offers to
furnish, or advertises to furnish escorts as one of its business purposes,
for a fee, tip, or other consideration.
When used as a verb, 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.
Refers to both a sexually oriented business license and a
sexually oriented business employee license, unless otherwise specified.
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; and in the case of an employee license,
a person in whose name a license has been issued authorizing employment
in a sexually oriented business.
A person designated by the owner or operator of a sexually
oriented business to be responsible for the operation of such business
at a particular location at a particular time; when the owner, proprietor,
or other principal in the business is present, such person may be
considered the manager.
An office or place within a structure allowing for a manager
to have visual observation of places and persons within the structure
as required and defined within this article.
Anything printed or written, or any picture, drawing, photograph,
motion picture, film, videotape or videotape production, or pictorial
representation, or any electrical or electronic reproduction of anything
that is or may be used as a means of communication. Media includes
but shall not necessarily be limited to books, newspapers, magazines,
movies, videos, sound recordings, CD-ROMS, DVD’s, other magnetic
media, and undeveloped pictures.
A natural person under the age of 18 years.
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. Nude
model studio shall not include a proprietary school licensed by the
state or a college, junior college or university supported entirely
or in part by public taxation; 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 in a structure:
That has no sign visible from the exterior of the structure
and no other advertising that indicates a person in a state of nudity
or semi-nude is available for viewing;
Where in order to participate in a class a student must enroll
at least three days in advance of the class; and
Where no more than one model who is in a state of nudity or
is semi-nude is on the premises at any one time.
The showing of the human male or female genitals, pubic area,
vulva, anus, anal cleft or cleavage with less than a fully opaque
(meaning nontranslucent) covering, the showing of the female breast
with less than a fully opaque covering of any part of the nipple or
areola, or the showing of the covered male genitals in a discernibly
aroused state.
The personal photographic identification card for an employee
issued by the chief of police that must be provided by the employee
to the manager or on-site manager in charge of the sexually oriented
business as set forth herein.
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.
Any person who has managerial control of the on-site, day-to-day
operations of a sexually oriented business, regardless of whether
that person is a designated operator of the sexually oriented business.
An individual, a group of two or more individuals, proprietorship,
partnership, corporation, limited liability company, association,
or other legal entity or organization.
The personal photographic identification card for an employee
issued by the chief of police that must be displayed on the employee
as set forth herein.
Over 35% of customers, volume of sales, stock in trade, display
areas, or presentation time, or any combination thereof in any three-month
increment period beginning from the date of issuance of a certificate
of occupancy. Stock in trade shall be measured with all titles or
objects available on the premises for sale or rental, including those
that are identical being considered a separate title or object.
A tract of real property or multiple tracts of real property
under joint ownership or control.
A single-family, townhouse (or town home), condominium, duplex,
triplex, fourplex, mobile home, manufactured housing (or manufactured
home), or multiple-family dwelling and further includes:
Flagellation or torture by or upon a person who is clothed,
nude or semi-nude, or the condition of being fettered, bound, or otherwise
physically restrained on the part of one so clothed nude or semi-nude.
The showing of the female breast below a horizontal line
across the top of the areola at its highest point or the showing of
the male or female buttocks. This definition shall include the entire
lower portion of the human female breast, but shall not include any
portion of the cleavage of the human female breast, exhibited by a
dress, blouse, skirt, leotard, bathing suit, or other wearing apparel
provided the nipple or areola is not exposed in whole or in part.
A business or commercial enterprise that for any form of
consideration:
Any form of physical contact, including massage, by a person
of the buttock, anus, male genitals, female genitals, or female breast
of another person for the primary purpose of sexual stimulation or
sexual gratification and regardless of whether any of the persons
is in a state of nudity or semi-nude; or
Body painting of the buttock, anus, male genitals, female genitals,
or female breast of another person, whether those of the patron or
employee, for the primary purpose of sexual stimulation or sexual
gratification and regardless of whether any of the persons is in a
state of nudity or semi-nude. Sexual encounter centers do not include
any massage establishment lawfully registered under Texas Occupations
Code, chapter 455, as amended, at which services are only provided
by persons registered as a massage therapist under Texas Occupations
Code, chapter 455, as amended.
An adult arcade, adult audio or video center, adult media store,
adult retail store, adult video viewing kiosk or booth, adult cabaret,
adult motel, adult motion picture theater, adult theater, escort agency,
nude model studio, or sexual encounter center or other commercial
enterprise a principal business of which is the offering of a service
or the selling, renting, or exhibiting of devices or any other items
intended to provide sexual stimulation or sexual gratification to
the customer. Sexually oriented businesses do not include:
A bookstore, movie theater, or video store, unless that business
is an adult media store, adult motion picture theater, or adult audio
or video center;
A business operated by or employing a licensed psychologist,
licensed physical therapist, licensed athletic trainer, licensed cosmetologist,
or licensed barber engaged in performing functions authorized under
the license held; or
A business operated by or employing a licensed physician or
licensed chiropractor engaged in practicing the healing arts.
A sexually oriented business may have other business purposes
that are not those of a sexually oriented business or related to a
sexually oriented business. Such other business purposes will not
serve to exempt such commercial establishments from being categorized
as a sexually oriented business so long as one of its business purposes
is a sexually oriented business.
Any of the following offenses:
Prostitution or promotion of prostitution; aggravated promotion
of prostitution, compelling prostitution; obscenity, obscene display
or distribution; sale, distribution or display of harmful material
to a minor; sexual performance by a child; employment harmful to children
as described by Texas Penal Code, section 43.251; possession, promotion,
or distribution of child pornography; public lewdness; indecent exposure;
indecency with a child; engaging in organized criminal activity; sexual
assault or aggravated sexual assault; incest, solicitation of a child
or harboring a runaway child; molestation of a child; gambling; offenses
involving necrophilia or bestiality; or distribution of a controlled
substance; or any similar offenses to those described above as well
as criminal attempt, conspiracy or solicitation to commit any of the
foregoing offenses, under the criminal or penal statutes of the states,
country, county or municipality for which:
Less than two years have elapsed since the date of conviction
or the date of release from the terms of community supervision, probation,
parole or deferred disposition or the date of release from confinement
imposed for the conviction, whichever is the later date, if the conviction
is of a misdemeanor offense;
Less than five years have elapsed since the date of conviction
or the date of conviction or the date of release from the terms of
community supervision, probation, parole or deferred disposition or
the date of release from confinement imposed for the conviction, whichever
is the later date, if the conviction is of a felony offense; or
Less than five years have elapsed since the date of conviction
or the date of release from the terms of community supervision, probation,
parole or deferred disposition or the date of release from confinement
imposed for the 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.
The fact that a conviction is being appealed shall have no effect
on the disqualification of the applicant or a person residing with
the applicant.
Means any of the following:
The increase in floor areas occupied by the business by more
than 25%, as the floor areas exist on:
The date the ordinance from which this article is derived takes
effect; or
For any premises not used as a sexually oriented business on
the date the ordinance from which this article is derived takes effect,
the date an application for a license to use the premises as a sexually
oriented business is received by the town designating the floor area
of the structure or proposed structure in which the sexually oriented
business will be conducted, regardless of any subsequent changes in
applicants, licenses, owners, or operators of the premises or the
sexually oriented business.
The Town of Fairview, Texas.
The town manager for the town or his or her designee.
Includes any of the following:
The sale, lease, or sublease of the business;
The transfer of securities or ownership interests which constitutes
a direct, indirect, legal, equitable or beneficial controlling interest
in the business, whether by sale, exchange, or similar means; or
The establishment of a trust, gift, or other similar legal device
to which a transfer of any 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 of control.
(Ordinance 2011-12-6C adopted 12/6/11)
Sexually oriented businesses are classified as follows:
(1)
Adult
arcades;
(2)
Adult
audio or video center;
(3)
Adult
bathhouses;
(4)
Adult
cabarets;
(5)
Adult
video viewing kiosk or booth;
(6)
Adult
media stores or adult retail stores;
(7)
Adult
motels;
(8)
Adult
motion picture theaters;
(9)
Adult
theaters;
(10)
Escort agencies;
(11)
Nude model studios; and
(12)
Sexual encounter centers.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
A person commits an offense if the person operates or causes to be operated a sexually oriented business in any zoning district other than as allowed by the town’s zoning ordinance as set forth in chapter 14 of this code, as amended, and including any applicable regulations adopted by reference therein.
(b)
A
person commits an offense if the person operates or causes to be operated,
within the town’s corporate limits, a sexually oriented business
on any property located within 1,200 feet of any of the following
uses or areas that are located within the town’s corporate limits
(or any of the following proposed uses for which a final plat has
been approved and filed as of record):
(1)
Property upon which a religious institution, church, synagogue, mosque, temple or structure that is used primarily for religious worship and related religious activities or property owned by, or for the benefit of, a religious organization that intends to use the property for such purposes if the property is the subject of a project for which any development rights have vested under chapter 245 of the Texas Local Government Code or if such ownership and intent has been registered with the town in accordance with section 4.04.026 of this article;
(2)
Property upon which a public or private educational facility, including
but not limited to, child day-care facilities, nursery schools, preschools,
kindergartens, elementary schools, private schools, intermediate schools,
junior high schools, middle schools, high schools, vocational schools,
secondary schools, continuing education schools, special education
schools, junior colleges, colleges and universities (“schools”
or “facilities” include the school grounds and related
athletic or other facilities regularly visited by students);
(3)
Property any part of which is within:
(4)
Property upon which is located a public park or recreational area
which has been designated for park or recreational activities, including
but not limited to, a park, playground, swimming pool, golf course,
reservoir, athletic field, basketball or tennis courts, or other similar
public land - or commonly or privately owned or controlled open-space
land or land dedicated for open-space purposes - within the town any
of which is under the control, operation, or management of a governmental
entity, political subdivision, type A or type B development corporation,
public improvement district, municipal management district, homeowner’s
association, condominium association, or other similar entity or organization
(such property does not include nature trails, hiking trails, pedestrian
or bicycle paths, or wilderness areas except to the extent such trails,
paths, or areas are located within the boundary lines of a public
park or recreational area that has been designated for park or recreational
activities);
(5)
Property devoted to a residential use or property developed for residential
use;
(6)
Property upon which is located an entertainment business which is
oriented primarily towards children or family entertainment;
(7)
Property upon which there is any premises or use licensed pursuant
to the state’s alcoholic beverage code or upon which there is
any premises or use that is the subject of a pending application for
a license or permit governed by the state’s alcoholic beverage
code;
(8)
Property upon which a business or establishment is open or operates
24 hours a day;
(9)
Property upon which is located any use listed in section 14.02.684(4)–(9)
of this code;
(10)
Property upon which is located a hospital, medical or dental clinic
or similar medically-oriented land use; or
(11)
Property upon which is located a meeting place for a nonprofit civic
organization with members who are minors such as YMCA, Boy Scouts,
Girl Scouts and similar organizations that include a primary purpose
resulting in the regular gathering of children and minors on such
property.
(c)
A
person commits an offense if the person operates or causes to be operated,
within the town’s corporate limits, a sexually oriented business
within 1,200 feet of the right-of-way of U.S. Highway 75/Central Expressway
or within 500 feet of the right-of-way of any of the following roadways
located within the town’s corporate limits:
(d)
A
person commits an offense if that person causes or permits the operation,
establishment, substantial enlargement, or transfer of ownership or
control of a sexually oriented business within 1,200 feet of another
sexually oriented business.
(e)
A
person commits an offense if that person causes or permits the operation,
establishment, or maintenance of more than one classification of 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.
(f)
For the purpose of subsection (b) of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, between the point on the property line of the property upon which a sexually oriented business is operated (or proposed to be operated) to the point on the property line of the property upon which one or more of the uses listed in subsection (b) exist (or are proposed to exist under any type of permit application) that results in the shortest distance between said property lines.
(g)
For the purpose of subsection (c) of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, between the point on the property line of the property upon which a sexually oriented business is operated (or proposed to be operated) to the point on the boundary of the right-of-way in question that results in the shortest distance between the property line and the edge of said right-of-way.
(h)
For purposes of subsection (d) of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to the intervening structures or objects or political boundaries, between the respective points on the property lines of each property used (or sought to be used) as a sexually oriented business that results in the shortest distance between said property lines.
(i)
The
existence or location of one or more jurisdictional boundary lines
of a municipality, county or other political subdivision shall not
affect the measurement of the distance requirements of this article.
(j)
Any
sexually oriented business lawfully operating prior to the effective
date of this article that is in violation of one or more subsections
of this section shall be deemed a nonconforming use. The nonconforming
use will be permitted to continue for a period not to exceed one year,
unless sooner terminated for any reason, including but not limited
to, suspension or revocation of license, or voluntary discontinuance
for a period of 30 days or more. Such nonconforming uses shall not
be increased, enlarged, extended, or altered except that the use may
be changed to a conforming use. If two or more sexually oriented businesses
are within 1,200 feet of one another and otherwise in a permissible
location, the sexually oriented business which was first lawfully
established and continually operating at a particular location is
the conforming use and the later established business is nonconforming.
(k)
A
sexually oriented business that is properly licensed under this article
and is otherwise lawfully operating as a conforming use (“conforming
sexually oriented business”) is not rendered a nonconforming
use by the subsequent:
(1)
Location or expansion of a use listed in subsection (b) of this section within 1,200 feet of the conforming sexually oriented business;
(2)
Enlargement or expansion of any of the roadways or rights-of-way listed in subsection (c) of this section within 500 feet (or within 1,200 feet in the case of U.S. Highway 75/Central Expressway) of the conforming sexually oriented business; or
(3)
Location or expansion of another sexually oriented business within
1,200 feet of the conforming sexually oriented business.
(l)
Subsection (k) of this section applies only to the renewal of a valid license, and does not apply when an application for a license is submitted after a license has expired or been revoked. If subsection (k) of this section applies to a conforming sexually oriented business, said conforming sexually oriented business is not in violation of subsections (b), (c) or (d) of this section if the location of said conforming sexually oriented business would violate the distance requirements set forth in said subsections (b), (c) or (d) solely because of the subsequent location or expansion of a use, roadway, or right-of-way listed in said subsections (b), (c) or (d).
(m)
A
person commits an offense if that person causes or permits the operation,
establishment, or maintenance of a sexually oriented business within
any tax increment financing zone, public improvement district or road
district established by the town.
(n)
A
person commits an offense if the person operates or causes to be operated,
within the town’s corporate limits, a sexually oriented business
on property that is located:
(1)
Within 500 feet of the center of the channel of Sloan Creek, Wilson
Creek, or the associated tributaries of said waterways; or
(2)
Between 500 feet and 1,200 feet from the center channel of Sloan
Creek, Wilson Creek, or the associated tributaries of said waterways,
unless the premises of such sexually oriented business - including
but not limited to all structures and parking areas - are visually
screened with screening construction materials, landscaping materials
or a combination of such materials in a configuration that is at least
eight feet in height from ground level and that adequately creates
a visual buffer of the premises of the sexually oriented business
from view from any vantage point of a pedestrian standing or walking
on the ground within 500 feet of the center of the channel of said
waterways.
(o)
A
person commits an offense if the person operates or causes to be operated,
within the town’s corporate limits, a sexually oriented business
on property that is within 1,200 feet of a nature trail, hiking trail,
pedestrian or bicycle path, or wilderness area if such trail, path
or area has been designated for public use, unless the premises of
such sexually oriented business - including but not limited to all
structures and parking areas - are visually screened with screening
construction materials, landscaping materials or a combination of
such materials in a configuration that is at least eight feet in height
from ground level and that adequately creates a visual buffer of the
premises of the sexually oriented business from any vantage point
of a pedestrian standing or walking on the ground on any such trail,
path or area.
(p)
Before a license may be issued for operation of a sexually oriented business, the applicant must submit to the town’s planning department a site plan demonstrating compliance with all distance requirements and restrictions in this section, and, to the extent that either or both of subsections (n) or (o) are applicable, a site plan and construction plans showing compliance with said subsections. The requirements for submission of plans under this subsection are cumulative of any requirements or regulations relating to site plans or constructions plans under other ordinances or regulations adopted by the town.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
It
shall be unlawful for any person to operate or maintain a sexually
oriented business in the town without a valid sexually oriented business
license issued by the town pursuant to this article for the premises
at which the sexually oriented business is operating, or to operate
such business after such license has expired or has been revoked or
suspended by the town.
(b)
It
is unlawful for any person, entertainer, server, employee, manager,
operator or owner to knowingly perform any work, service or entertainment
directly related to the operation of an unlicensed sexually oriented
business.
(c)
It
is unlawful for any person who owns, manages or operates a sexually
oriented business to have an employee or to employ a person, regardless
of the nature of the employment, who works for the sexually oriented
business who is not licensed as a sexually oriented business employee
by the town pursuant to this article.
(d)
It
is unlawful for any person to obtain employment, regardless of the
nature of the employment relationship, with a sexually oriented business
without having secured a sexually oriented business employee license
pursuant to this article.
(e)
It
is unlawful for any person to fail to have at least one manager, who
has a sexually oriented business employee license and who is responsible
for ensuring compliance with this article, on-duty and working at
any time the sexually oriented business is open for business.
(f)
The
failure to post a sexually oriented business license in the manner
required herein shall be prima facie evidence that such business has
not obtained such a license. In addition, it shall be prima facie
evidence that any entertainer, employee, manager or owner who performs
any business, service or entertainment in a sexually oriented business
in which a sexually oriented business license is not posted in the
manner required herein had knowledge that such business is not licensed.
(g)
To
the extent a sexually oriented business is permitted under this article,
a separate license is required for each separately defined type of
sexually oriented business. A sexually oriented business license shall
be issued only for the one sexually oriented business use listed on
the application. Any change in the type of sexually oriented business
use shall invalidate the sexually oriented business license and require
the licensee to obtain a new license for the change in use. The establishment
or maintenance of more than one sexually oriented business in the
same building, structure or portion thereof is prohibited.
(h)
Each
sexually oriented business license and each sexually oriented business
employee license shall expire one year from the date of issuance and
may be renewed only by making application for renewal. Application
for renewal shall be made at least 30 business days prior to the expiration
date, and when made less than 30 business days before the expiration
date, the license will still expire on its expiration date. When the
town denies renewal of a license, the applicant shall not be issued
a license for one year from the date of denial. If, subsequent to
denial, the town finds that the basis for denial of the renewal license
has been corrected or abated, the applicant may be granted a license
if at least 90 business days have elapsed since the date the denial
became final.
(i)
Sexually
oriented business licenses and sexually oriented business employee
licenses are nontransferable.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
An
application for a sexually oriented business license or a sexually
oriented business employee license shall be submitted to the chief
of police on a form provided by the town and shall be sworn to as
true and correct.
(b)
All
applicants must be qualified according to the provisions of this article.
The application may request and the applicant shall provide such information
(including fingerprints) as to enable the town to determine whether
the applicant meets the qualifications established in this section.
(c)
Only
a person who is an officer of or who has an ownership interest in,
a sexually oriented business may apply for a sexually oriented business
license. An individual wishing to operate a sexually oriented business
must sign the application as the applicant. If a person who wishes
to operate a sexually oriented business is an entity other than an
individual, then each individual having the power to control or direct
its operations, each individual who is an officer and/or each individual
having a 20% or greater ownership interest in the sexually oriented
business must sign the application for a license as the applicants.
Such persons include, but are not limited to, general partners, officers,
directors, and controlling shareholders or owners. Each applicant
must be qualified under this article and each applicant shall be considered
a licensee if a license is granted. Each application must be sworn
to be true and correct by each applicant.
(d)
The
completed application for a sexually oriented business license shall
contain the following information and be accompanied by the following
documents:
(1)
If the applicant is:
(A)
An individual, the individual shall state such person’s legal
name and any aliases and submit proof that such person is at least
18 years of age;
(B)
A partnership, the partnership shall state its complete name, the
date of its formation, evidence that the partnership is in good standing
under the laws of the state and if not a Texas partnership, its state
of formation, the names and capacity of all partners and officers,
whether the partnership is general, limited or otherwise, a copy of
the partnership agreement or certificate of partnership, if any, and
the official name and address to be used for process of service on
the partnership; and/or
(C)
A corporation, limited liability company or other legal entity, the
entity shall state its complete name, the date of its incorporation
or formation, evidence that the entity is in good standing under the
laws of the state of formation and if not a Texas entity, the state
of incorporation or formation, the names and capacity of all officers,
directors and controlling stockholders or owners, and the name of
the registered agent and the address of the registered office for
service of process.
(2)
If the applicant intends to operate the sexually oriented business
under a name other than that of the applicant; the application must:
(3)
Whether the applicant, or a person residing with the applicant, has
been convicted of a specified criminal activity, and, if so, the specified
criminal activity involved, the date, place, and jurisdiction of each
conviction, and the date of release from confinement, if applicable.
(4)
Whether the applicant, or a person residing with the applicant, has
had a previous license - governed under this article or other similar
sexually oriented business provisions previously adopted by the town
or adopted by another city or county - denied, suspended or revoked,
including the name and location of the sexually oriented business
for which the permit was denied, suspended or revoked, the date of
the denial, suspension or revocation, and whether the applicant or
a person residing with the applicant has been a partner in a partnership
or an officer, director or principal stockholder or owner of a corporation
or other legal entity that is licensed under this article whose license
has previously been denied, suspended or revoked, including the name
and location of the sexually oriented business for which the permit
was denied, suspended or revoked, and the date of denial, suspension
or revocation.
(5)
Whether the applicant or a person residing with the applicant holds
any other licenses under this article or other similar sexually oriented
business regulations from another city or county and, if so, the names
and locations of such other licensed businesses.
(6)
The classification of the sexually oriented business for which the
applicant is seeking the license. A sexually oriented business may
only have one classification to be eligible for a license.
(7)
The location of the proposed sexually oriented business, including
a legal description of the property, street address, telephone number,
if any, and the dates a notice sign was posted as required by this
article or state law.
(8)
The applicant’s mailing address and residence address.
(9)
For each applicant, a copy of a valid state driver’s license
with photo, or a valid state identification card with photo. The originals
of the required forms of identification shall be presented to the
chief of police for inspection prior to the issuance of a license.
(10)
The applicant’s driver’s license number and state of
issuance.
(11)
A sketch or diagram showing the configuration of the premises, including
all entrances, exits, doorways and windows, a statement of total floor
space occupied by the business, prepared and sealed by an architect
or engineer, 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.
(12)
A current certificate and straight-line drawing prepared within 30 days prior to application by a registered land surveyor depicting the property lines and the structures containing any existing sexually oriented businesses within 1,200 feet of the property to be certified; the property lines or boundaries of the uses, rights-of-way, and locations described in sections 4.04.004(b) and (c) of this article and their respective distances from the property to be certified. For purposes of this article, a use shall be considered existing or established if it is in existence or owned by such type of user at the time an application is submitted.
(13)
A statement whether the applicant or a person with whom applicant
is residing is delinquent in payment to the town of taxes, fees, fines
or penalties.
(e)
The
completed application for a sexually oriented business employee license
shall contain the following information and shall be accompanied by
the following documents:
(1)
The applicant’s name or any other name (including “stage”
names) or aliases used by the individual.
(2)
Age, date, and place of birth.
(3)
Height, weight, hair and eye color.
(4)
Present residence address and telephone number.
(5)
Present business address and telephone number.
(6)
A copy of a valid state driver’s license with photo, or a valid
state identification card with photo. The originals of the required
forms of identification shall be presented to the chief of police
for inspection prior to the issuance of a license.
(7)
Proof that the individual is at least 18 years of age.
(8)
A color photograph of the applicant clearly showing the applicant’s
face, and the applicant’s fingerprints on a form provided by
the town. Any fees for the photographs and fingerprints shall be paid
by the applicant.
(9)
A statement detailing the license history of the applicant for the
five years immediately preceding the date of the filing of the application,
including whether such applicant previously operated or is seeking
to operate, in this or any other county, city, state, or country,
has ever had a license, permit, or authorization to do business denied,
revoked, or suspended, or had any professional or vocational license
or permit denied, revoked, or suspended. In the event of any such
denial, revocation, or suspension, state the name, the name of the
issuing or denying jurisdiction, and describe in full the reason for
the denial, revocation, or suspension. A copy of any order of denial,
revocation, or suspension shall be attached to the application.
(10)
A statement whether the applicant has been convicted of one or more
specified criminal activities as defined in this article and, if so,
the specified criminal activity involved, the date, place and jurisdiction
of each conviction, and the date of release from confinement, if applicable.
(11)
A statement whether the applicant or a person with whom applicant
is residing is delinquent in payment to the town of taxes, fees, fines
or penalties.
(f)
All
employees of a sexually oriented business existing prior to the passage
of this article must submit an application for a sexually oriented
business employee license required by this article no later than 60
days from the effective date of this article and any employee failing
to do so shall not continue to work on the premises of a sexually
oriented business if he/she fails to submit an application within
60 days or if the application for license is denied. Any person who
fails to timely submit an application for a license as required by
this subsection, or any person operating sexually oriented business
who allows an employee to continue working who is not in compliance
with this subsection or who fails to receive a license shall be considered
to be in violation of this section.
(g)
Each
application for a sexually oriented business license, or renewal thereof,
shall be accompanied by a nonrefundable application fee of $3,000.00.
Each application for a sexually oriented business employee license,
or renewal thereof, shall be accompanied by a nonrefundable application
fee of $500.00. An application shall not be considered filed until
the required fee is paid and the application is complete in all respects
and all information and documentation required by the application
form has been submitted.
(h)
Each
applicant shall sign a waiver and authorization form authorizing the
chief of police to request on behalf of the applicant criminal history
from the state’s department of public safety and other appropriate
state and federal agencies. The applicant shall pay all fees and costs
associated with such request for criminal history.
(i)
Each
license issued by the chief of police shall include two photographic
identification cards, a personal card and an on-site card.
(j)
If
any personal card or on-site card is lost or stolen, the holder thereof
shall immediately notify the chief of police and request a replacement,
which shall be issued for a fee of $100.00 within three days following
verification of the identity of the holder.
(Ordinance 2011-12-6C adopted 12/6/11)
The following requirements apply for posting a sign concerning
intent to locate sexually oriented businesses.
(1)
An
applicant for a sexually oriented business license for a location
for which a sexually oriented business license has not previously
been issued shall post an outdoor sign at the location in compliance
with Texas Local Government Code, section 243.0075, as amended, not
later than the 60th day before submitting the application for a sexually
oriented business license.
(2)
The
sign shall comply with the following and Texas Local Government Code,
section 243.0075, as amended:
(A)
The sign must be at least 24 by 36 inches in size;
(B)
All letters must be at least two inches in height and one and one-half
inches in width for each letter on the sign;
(C)
The sign shall state that a sexually oriented business is intended
to be located on the premises;
(D)
The sign shall provide the name and business address of the owner
and operator;
(E)
All required information must be presented in both English and Spanish;
(F)
All required information must read horizontally from left to right;
and
(G)
The sign shall be prominently posted such that it is clearly legible
from the public right-of-way.
(3)
The
operator of a proposed sexually oriented business shall separately
notify the town’s planning director and the town’s chief
of police, by certified mail or hand delivery, when a sign is posted
at the intended location of the business in compliance with Texas
Local Government Code, section 243.0075, as amended. The notification
must be in the form of a sworn statement indicating the location of
the sign and the date it was posted and must be received by the chief
of police and the planning director within five days after the posting
of the sign. If the chief of police and the planning director receive
the notification within five days after the sign was posted, the 60-day
posting period required by Texas Local Government Code, section 243.0075
shall be deemed to begin on the posting date. If the notification
is received by the chief of police or the planning director more than
five days after the sign was posted, the 60-day posting requirement
shall be deemed to begin on the date the chief of police verifies
the sign has been posted.
(4)
When a sign is posted at a proposed location of a sexually oriented business and the proposed location is not in violation of the distance requirements set out in this article on the posting date, the sexually oriented business will be eligible to qualify as a conforming use solely with regard to the distance requirements and if said sexually oriented business becomes a conforming use it will not be rendered nonconforming by any location, subsequent to the posting of the sign, of any of the uses or locations described in sections 4.04.004(b), (c) or (d) within 1,200 feet of the posted location.
(5)
Subsection (4) above of this section does not apply if:
(A)
A completed application for a license for a proposed sexually oriented
business is not filed with the chief of police within 20 days after
the expiration of the 60-day posting requirement under Texas Local
Government Code, section 243.0075, as amended;
(B)
The application for a license is withdrawn or denied;
(C)
The notification requirements of subsection (2) above are not met;
or
(D)
The sexually oriented business does not begin operations within six
months of being issued a license under this article.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
Upon
the filing of a complete application for a sexually oriented business
employee license, the chief of police shall issue a temporary license,
valid for 30 business days, to said applicant. If the sexually oriented
business employee license is denied, the temporary license previously
issued is immediately deemed null and void. The application shall
then be referred to the appropriate town departments for an investigation
to be made on such information as is contained on the application.
The investigation shall be completed within 25 business days from
the date the completed application was filed. Upon completion of the
investigation, the chief of police shall issue a license, not later
than 30 business days from the date the completed application was
filed, unless it is determined by a preponderance of the evidence
that one or more of the following are true:
(1)
The application contains false, fictitious or fraudulent information
or the 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;
(2)
The applicant is a minor;
(3)
The applicant has been convicted of a specified criminal activity;
(4)
The sexually oriented business employee license is to be used for
employment in a business prohibited or unlicensed by local or state
law, statute, rule or regulation, or prohibited by a particular provision
of this article;
(5)
The applicant has had a sexually oriented business employee license
revoked by the town within two years of the date of the current application;
(6)
The license application fee and/or costs required by this article
have not been paid; or
(7)
The applicant or a person with whom applicant is residing is delinquent
in payment to the town of taxes, fees, fines or penalties.
(b)
Sexually
oriented business licenses and sexually oriented business employee
licenses issued pursuant to this article shall be subject to annual
renewal upon the written application of the applicant and a finding
by the chief of police that the applicant has not been convicted of
any specified criminal activity or committed any act during the existence
of the previous license, which would be grounds to deny the initial
license application. The renewal of a sexually oriented business license
shall be subject to the payment of a license renewal application fee
of $1,500.00 and the renewal of a sexually oriented business employee
license shall be subject to the payment of a license renewal application
fee of $250.00.
(c)
Upon
the filing of a complete application for a sexually oriented business
license, the application shall be referred to the appropriate town
departments for an investigation to be made on such information as
is contained on the application. The investigation shall be completed
within 25 business days from the date the completed application was
filed. Upon completion of the investigation, the chief of police shall
issue a license not later than 30 business days from the date the
completed application was filed, unless it is determined by a preponderance
of the evidence that one or more of the following are true:
(1)
An applicant is a minor;
(2)
An applicant or a person with whom applicant is residing is delinquent
in payment to the town of taxes, fees, fines or penalties, including
but not limited to those related to the sexually oriented business
or the property on which the sexually oriented business is located;
(3)
The application contains false, fictitious or fraudulent information
or the 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 a person with whom the applicant is residing has
been denied a license by the town to operate a sexually oriented business
within the preceding 12 calendar months or whose license to operate
a sexually oriented business has been revoked within the preceding
12 calendar months;
(5)
An applicant or a person with whom the applicant is residing has
been convicted of a specified criminal activity;
(6)
The premises to be used for the sexually oriented business have not
been approved by the town’s police department, fire department,
planning department, building official, engineer, public works manager,
health department or other town department or applicable governmental
agency as being in compliance with applicable laws and ordinances;
(7)
The license application fee and/or costs required by this article
have not been paid; or
(8)
An applicant of the proposed establishment is in violation of or
is not in compliance with any of the provisions of this article, the
town’s zoning ordinance, as amended, the town’s 2005 comprehensive
plan, as amended, the town’s future land use plan, as amended,
or any other applicable town code provisions, ordinances or other
regulations, as amended.
(d)
The
sexually oriented business license, if issued, shall state on its
face the name of the person or persons to whom it is issued, the expiration
date, the address of the sexually oriented business and the classification
for which the license is issued. All sexually oriented business licenses
shall be posted in a conspicuous place at or near the entrance to
the sexually oriented business so that they may be easily read at
any time the establishment is occupied or open for business. A sexually
oriented business license is only valid for the premises for which
it was issued. The sexually oriented business employee license, if
granted, shall state on its face the name of the person to whom it
is granted, the expiration date and the address of the applicant.
The holder of a sexually oriented business employee license shall
have the license available for inspection at the premises where such
person is working pursuant to the authority granted under the license.
The holder of a sexually oriented business license shall be responsible
for verifying that each employee holds a valid sexually oriented business
employee license and for maintaining copies of such employee licenses
on the premises.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
As
a condition for the issuance of a license, an applicant or licensee
shall permit representatives of the town administration, police department,
fire department, planning department, building official, engineer,
public works manager, health department or other town department or
other applicable governmental agency 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 licensee or 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 town as set forth in subsection (a) above at any time the sexually oriented business is occupied or open for business and at other reasonable times upon request.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
The
chief of police shall suspend a license for a period not to exceed
30 calendar days if the chief of police determines that a licensee
or an employee of a licensee has:
(1)
Violated or is not in compliance with any section of this article,
the town’s zoning ordinance, as amended, the town’s 2005
comprehensive plan, as amended, the town’s future land use plan,
as amended, or any other applicable town code provisions, ordinances
or other regulations; or
(2)
Refused to allow an inspection of the sexually oriented business
premises as authorized by this article.
(b)
A sexually oriented business may not operate while the sexually oriented business license issued for that business is suspended. The holder of a sexually oriented business employee license may not work on the premises of a sexually oriented business while that employee’s license is suspended, except if allowed after appeal under section 4.04.012.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
The chief of police shall revoke a license if a cause of suspension in section 4.04.010 occurs and the license has been suspended within the preceding 12 months.
(b)
The
chief of police shall revoke a license if the chief of police determines
that:
(1)
A licensee gave false or misleading information in the material submitted
during the application process;
(2)
A licensee has knowingly allowed possession, use, or sale of controlled
substances on the premises of the sexually oriented business or failed
to report such activities to the police;
(3)
A licensee has knowingly allowed prostitution on the premises of
the sexually oriented business or failed to report such activities
to the police;
(4)
A licensee knowingly operated the sexually oriented business during
a period of time when the licensee’s license was suspended;
(5)
Except in the case of an adult motel, a licensee has knowingly allowed
any act of sexual intercourse, sodomy, oral copulation, masturbation,
or other sex act to occur in or on the licensed premises;
(6)
A licensee is delinquent in payment to the town of taxes, fees, fines
or penalties, including but not limited to those related to the sexually
oriented business or the property on which the sexually oriented business
is located; or
(7)
A manager, having a sexually oriented business employee license,
responsible for ensuring compliance with this article is not on-duty
and working at any time the premises is open for business.
(c)
When
the chief of police revokes a license, the revocation shall continue
for one year, and the licensee shall not be issued a license for one
year from the date the revocation became effective. If, subsequent
to revocation, the chief of police finds that the basis for 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.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
Any applicant for a license who is denied a license or the holder of any license that is suspended or revoked shall have the right to appeal such decision to the town manager. The appeal may be made by filing with the town manager within 10 business days after notice of the denial, suspension or revocation has been received, a written statement setting forth fully the grounds for the appeal and the name, mailing address, facsimile number and/or email address, and telephone number to be used by the town to provide notice of an appeal hearing as required by subsection (b), below.
(b)
The
town manager shall provide for a hearing on such appeal and shall
notify the appellant and chief of police in writing of the date, time
and location of such hearing at least seven calendar days prior to
the hearing, unless appellant agrees in writing to a shorter period.
The appeal shall be decided on the basis of a preponderance of the
evidence. For purposes of this article, notice by facsimile or hand
delivery shall be considered delivered on the date of fax, or delivery,
if faxed or delivered prior to 5:00 p.m. (local time of the recipient),
and if after 5:00 p.m. it shall be considered delivered on the next
day. Notice sent by U.S. mail shall be deemed delivered on the second
day following deposit in the United States mail.
(c)
The
decision of the town manager shall be made no later than 30 business
days after receipt of notice of the appeal unless waived by the appellant.
The decision of the town manager is final.
(d)
If
the appellant being denied a license renewal holds an unrevoked, unsuspended
license for the preceding year, such person shall be permitted to
continue to operate under the existing license until a final decision
is made by the town manager under this section, unless the chief of
police determines from evidence or information presented to it that
continued operation or work by the appellant would constitute a continuing
and imminent threat to the public welfare; however, if said license
expired prior to the denial of the renewal, the license shall be considered
expired and the appellant may not use the expired license.
(e)
An
appellant appealing the suspension or revocation of a license may
continue to use such license until a final decision is made by the
town manager, unless the town manager determines from evidence or
information presented to him/her that continued operation or work
by the appellant would constitute a continuing and imminent threat
to the public welfare.
(f)
The
decision of the town manager may be appealed to the state district
court of the county. An appeal to the state district court must be
filed within 30 days after notice of the decision of the town manager
is delivered to the applicant or licensee in accordance with this
article. The applicant or licensee shall bear the burden of proof
in court. The filing of an appeal to state district court stays a
suspension or revocation of the license, or denial of renewal of a
license that was valid on the date the application for renewal was
submitted, pending a judicial determination of the appeal by the trial
court.
(Ordinance 2011-12-6C adopted 12/6/11)
A licensee commits an offense if the licensee transfers or attempts
to transfer a license to another person or entity, or operates a sexually
oriented business under the authority of a license at any place other
than at the address for which the license was issued.
(Ordinance 2011-12-6C adopted 12/6/11)
Adult media stores or adult retail stores shall be subject to
the following additional standards:
(1)
Separate room.
If a business offers for sale or rent
other media or merchandise, any adult media or adult merchandise shall
be kept in a separate room physically and visually separate from the
remainder of the store by an opaque wall reaching at least eight (8)
feet high or to the ceiling, whichever is less. In buildings that
have adjoining areas of differing floor or ceiling heights, such as
an area with a connected mezzanine or elevated floor area, any such
opaque wall must be constructed in a manner such that any adult media
or adult merchandise shall be physically and visually separate from
the remainder of the store.
(2)
Access.
If a business offers for sale or rent other
media or merchandise, access to the room containing any adult media
or adult merchandise shall be through a solid door, accessed by an
electronic-control device controlled and monitored by an employee
through direct visual control.
(3)
Location.
If a business offers for sale or rent other
media or merchandise, the entrance to the room containing any adult
media or adult merchandise shall be located so that it is as far as
reasonably practicable from media and/or merchandise likely to be
of interest to children.
(4)
Room size.
Any room wherein any adult media or adult
merchandise is offered for sale or rent shall be in an area containing
at least six hundred (600) square feet and having no walls, dividers,
curtains, screens, shades or other similar devices to obscure any
part of the room from being monitored by a manager, unless it is to
separate the adult media or adult merchandise from nonadult media/merchandise.
(5)
On-site entertainment prohibited.
At no time shall the
store provide any type of sexually oriented on-site entertainment
or show any type of sexually oriented electronic imagery on the premises.
(6)
Displays.
No displays of adult media, adult merchandise
or sexually oriented images shall be visible from outside the room
containing sexually oriented media and/or merchandise or from the
exterior of the business.
(7)
Lighting.
Any business that offers for sale or rent
sexually oriented media and/or sexually oriented merchandise shall
be well lit at a lighting level of at least 30 footcandles measured
three feet from the floor.
(8)
Monitoring.
Activities in any room having adult media
or adult merchandise shall be monitored at all times by a manager
through direct line of site or live video.
(Ordinance 2011-12-6C adopted 12/6/11)
Adult motion picture theaters and adult arcades shall be subject
to the following additional standards:
(1)
Presentation area.
All screenings of motion pictures,
videos or other media and the use of all arcade machines and devices
shall occur in one or more rooms open to all customers of the establishment
and each such room shall contain at least 1,000 square feet of floor
area. No walls, dividers, curtains, screens, shades or other similar
devices shall be used to obscure any part of the room to which any
customer has access.
(2)
Lighting.
The lighting level in the area occupied by
customers shall be at least five footcandles as measured at the floor.
(3)
Seating.
Shall consist of individual, theater-style
chairs (maximum seat width 20 inches), with solid arms separating
the chairs. No couches, benches, portable chairs, beds, loose cushions
or mattresses, or other forms of seating shall be provided. Separate
spaces for wheelchairs shall be provided in accordance with the applicable
provisions of the building code and the Americans with Disabilities
Act.
(4)
Adult media/adult merchandise.
No adult motion picture
theatre shall sell or rent any adult media or adult merchandise.
(Ordinance 2011-12-6C adopted 12/6/11)
Adult cabarets and adult theaters shall be subject to the following
additional standards:
(1)
Room.
All customer-related activities and entertainment
shall take place in one or more rooms of at least 600 square feet
and in a room that has an unobstructed view by all persons from any
part of such room.
(2)
Stage.
All adult cabaret entertainment shall take place
on a stage elevated at least 18 inches above the surrounding floor
area, with a minimum area of 100 square feet, and with a horizontal
separation of at least 60 inches between the edge of the stage and
the nearest space to which customers have access. The horizontal separation
shall be physically enforced by a partial wall, rail, or other physical
barrier measuring a minimum of four feet in height.
(3)
Access.
Managers, entertainers and persons responsible
for security shall prohibit any person other than an entertainer to
occupy the stage area.
(4)
Tip.
All tips for sexually oriented entertainment shall
be collected in containers that are accessible to customers and located
at least 10 feet from the stage area.
(5)
Lighting.
The lighting level in the area occupied by
customers shall be at least 15 footcandles as measured three feet
from the floor.
(6)
Seating.
Shall consist of chairs or open benches; no
couches, beds, loose cushions or mattresses, or other forms of seating
shall be provided or used by customers.
(7)
Adult merchandise or media.
No adult cabaret shall allow
on its premises any adult media or adult merchandise.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
Sexual
encounter centers, adult bathhouses, adult motels, escort agencies,
nude modeling studios, and adult video viewing kiosks or booths are
prohibited. No license shall be issued for the operation of any such
establishment.
(b)
A
person commits an offense if the person owns, operates or causes to
be operated a sexual encounter center, adult bathhouse, adult motel,
escort agency, nude modeling studio, or adult video viewing kiosk
or booth. Any person in control of the premises shall be presumed
to be operating such establishment.
(Ordinance 2011-12-6C adopted 12/6/11)
(b)
Manager’s identification.
Each manager or entertainer
shall conspicuously display his personal card upon his person at all
times while acting as an entertainer or manager of or in a sexually
oriented business and said manager’s name shall be posted in
a conspicuous, easily viewable location, at eye level, at the main
cash register for such business and lighted in a manner for ease of
inspection.
(c)
On-site card.
Each manager or entertainer shall provide
his on-site card to the manager or on-site manager in charge of the
sexually oriented business to hold while the manager or entertainer
is on the premises of the sexually oriented business.
(d)
Employee rosters.
All sexually oriented businesses shall
maintain a current list of all employees along with their completed
employment application and photo readily accessible for inspection
within the premises.
(e)
Interior observation.
The interior of all sexually oriented
businesses shall be configured in such a manner that offers an unobstructed
view from a manager’s station of every area of the premises
excluding restrooms.
(f)
Exterior display.
No sexually oriented business shall
be conducted in any manner that permits the observation of sexually
oriented entertainers engaged in sexually oriented entertainment or
any depiction relating to specified sexual activities or specified
anatomical areas from any exterior source by display, decoration,
sign, show window or other opening.
(g)
Specified criminal acts and specified sexual activities prohibited.
No owner, manager, employee, entertainer or customer shall engage
in any specified criminal act or any specified sexual activity in
or on the premises of a sexually oriented business.
(h)
A
building or space that a sexually oriented business occupies may not
contain less than a minimum total of 6,000 square feet, and must otherwise
comply with all town maximum height requirements and setbacks and
all other local, state and federal regulations. To the extent that
this provision conflicts with any other building-related regulation,
ordinance or code provision adopted by the town, the most restrictive
provision shall govern.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
A
person commits an offense if the person knowingly allows a minor to
enter or be on the premises of a sexually oriented business. It shall
be unlawful for any minor to enter or be on the premises of a sexually
oriented business.
(b)
A person commits an offense if the person knowingly allows a person under the age of 21 who is not a licensee as defined in section 4.04.002 of this article to enter or be on the premises of a sexually oriented business unless the person under the age of 21 is at least 18 years of age and such person’s presence is:
(Ordinance 2011-12-6C adopted 12/6/11)
No sexually oriented business may remain open at any time except
between the hours of 10:00 a.m. and 12:00 midnight Monday through
Saturday, and 12:00 p.m. (noon) and 12:00 midnight on Sunday.
(Ordinance 2011-12-6C adopted 12/6/11)
It shall be an offense for any person that maintains, owns,
or operates a sexually oriented business to serve or offer for sale
for consumption - or permit to be consumed - alcoholic beverages anywhere
on the premises of the sexually oriented business.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
A
person commits an offense if the person allows:
(1)
The merchandise or activities of the sexually oriented business to
be visible from any point outside the premises;
(2)
Any exterior portion of the premises of a sexually oriented business to have flashing lights, or any words, lettering, photographs, silhouettes, drawings, graphics or pictorial representations of any manner except for the words or letters allowed under subsection (b), below;
(3)
Any sign to exist that does not comply with any of the town’s
sign regulations as they exist or may be amended; or
(4)
Any exterior portion of the premises of a sexually oriented business
to be any color other than a single achromatic color, unless the following
conditions are met:
(A)
The premises is part of a commercial multi-unit development; and
(B)
The exterior portions of each premises or unit in the commercial
multi-unit development, including the exterior of the sexually oriented
business, are the same color as one another or are colored in such
a way as to be a component of the overall architectural style or pattern
of the commercial multi-unit development.
(b)
A
sexually oriented business is limited to one attached wall sign with
an area not exceeding that calculated by multiplying the lease space
frontage by two feet, and in no case greater than 100 square feet
in area. Off-premises signs calling attention to the existence or
location of an SOB within the town are prohibited. No sign visible
from any point outside the premises shall contain photographs, silhouettes,
drawings, or pictorial representations of any manner, and may contain
only:
(1)
The name of the establishment; and/or
(3)
A person commits an offense by installing or causing to be installed
any sign in violation of this section or by allowing the continued
display of an unlawful sign.
(4)
Should any part of this section conflict with the town’s sign
regulations as amended, the more restrictive provision of any relevant
portion of either this section or the town’s sign regulations
as amended shall govern to the exclusion of any less restrictive rules
or regulations.
(c)
No
sexually oriented business shall be conducted in any manner that permits
the observation of any material depicting, describing or relating
to specified sexual activities or specifies anatomical areas by display,
sign, show window or other opening from any public view.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
At
all times a sexually oriented business is open and for an hour after
closing, there shall be located and actively patrolling on the outside
premises and parking areas of the sexually oriented business a person
whose duty shall be to assist in maintaining order and to report criminal
activity or behavior and such person shall be either a:
(1)
Licensed peace officer hired by and working for the sexually oriented
business who holds a valid and current license (in good standing)
issued by the state commission on law enforcement officer standards
and education; or
(2)
Commissioned security officer hired by and working for the sexually
oriented business in accordance with and under a letter of authority
as set forth in the Texas Occupations Code, section 1702.181, as may
be amended or recodified.
(b)
If a sexually oriented business elects to hire a commissioned security officer to provide security under subsection (a), above, the sexually oriented business shall establish and operate a security department as referenced in Texas Occupations Code, section 1702.181 and in accordance with other applicable law, as may be amended or recodified.
(c)
Parking
areas surrounding a sexually oriented business shall be continually
monitored by video by employees of the sexually oriented business
and said recordings from security cameras shall be maintained for
a period of at least 30 days.
(Ordinance 2011-12-6C adopted 12/6/11)
A person who operates or causes to be operated a sexually oriented
business without a valid license or who violates this article is subject
to a suit for injunction as well as prosecution for criminal violations.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
Whenever
a person does an act that is prohibited, fails to perform an act that
is required, or commits an act that is made an offense by any provision
of this article or any other town ordinance regulating sexually oriented
businesses, the violation is punishable by a fine not to exceed $2,000.00,
or other applicable law. A person violating a provision of this article
is guilty of a separate offense for each day or part of a day during
which the violation is committed, continued, or permitted.
(b)
Except
where otherwise specified, a culpable mental state is not required
for the commission of an offense under this article.
(c)
It is a defense to prosecution under section 4.04.018(a) that a person appearing in a state of nudity or in a semi-nude condition did so in a modeling class operated:
(1)
By a proprietary school, licensed by the state; or a college, a junior
college, or a university supported entirely or partly by governmental
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 person is available for viewing
who is in a state of nudity or is semi-nude;
(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 model who is in a state of nudity or is semi-nude
is on the premises at any one time.
(Ordinance 2011-12-6C adopted 12/6/11)
(a)
Any of the persons referenced under section 4.04.004(b)(1) of this article may register ownership and intent with the town by filing with the director of the town’s planning department a notice of registration, which must:
(1)
Include a statement that the person seeking the registration owns the property sought to be registered and that the person intends to use the property for one or more of the uses listed under section 4.04.004(b)(1) of this article and said statement must be signed - under oath before a notary public - by a duly authorized representative of person;
(2)
Contain a metes and bounds legal description of said property; and
(3)
Specify the date upon which it is expected that a use(s) listed under section 4.04.004(b)(1) of this article is to commence.
(b)
A
notice of registration is not a valid registration for the purposes
of this article unless and until it is signed by the town’s
director of planning or other designee of the town manager, with a
notation of the date of the registration (the “registration
date”).
(c)
A
registration granted under this article expires and is no longer valid
after the expiration of five years after the registration date unless
progress has been made toward the completion of any improvements or
facilities necessary for the intended use(s) of the property. For
the purposes of this section, “progress” means that:
(1)
Any required development application for the property has been submitted
to any regulatory agency, including but not limited to the town;
(2)
A good-faith attempt has been made to file with such regulatory agency
an application for any permit necessary to commence the intended use(s);
(3)
Costs have been incurred for developing the property for the intended
uses including, without limitation, costs associated with roadway,
utility, and other infrastructure facilities designed to serve, in
whole or in part, the project in the aggregate amount of five percent
of the most recent appraised market value of the real property on
which the project is located;
(4)
Fiscal security is posted with such a regulatory agency to ensure
performance of an obligation required by the regulatory agency; or
(5)
Utility connection fees or impact fees for the project have been
paid to a regulatory agency.
(d)
A registration granted under this section may be renewed - or a new registration may be granted after the expiration of the original registration - for one additional period of five years under the same procedures set forth under subsections (a) and (b) regardless of whether any progress has been made with respect to development of the project for its intended use(s).
(e)
A
registration granted under this section is not required for the development
of any property, does not vest any property rights or other rights
in the holder of a registration, and is not transferable except if
transferred as part of the sale or conveyance of the property in which
case the registration remains applicable only to the property for
which it was originally granted.
(Ordinance 2011-12-6C adopted 12/6/11)
Section 4.04.004 of this article may be amended only after compliance with the procedure required to amend a zoning ordinance. Other sections of this article may be amended by vote of the town council without any requirement for review or recommendation by the town’s planning and zoning commission.
(Ordinance 2011-12-6C adopted 12/6/11)
