It is the intent of the city council that the locational regulations of this article are promulgated pursuant to chapter 243, Texas Local Government Code, as they apply to nude model studios and sexual encounter centers only. It is the intent of the city council that all other provisions of this article are promulgated pursuant to the Texas Local Government Code.
(Ordinance 94-1212 adopted 12/7/94)
In this article:
Adult arcade.
Any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of “specified sexual activities” or “specified anatomical areas.”
Adult bookstore or adult video store.
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:
(1) 
Books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video reproductions, slides, or other visual representations which depict or describe “specified sexual activities” or “specified anatomical areas”; or
(2) 
Instruments, devices, or paraphernalia which are designed for use in connection with “specified sexual activities.”
Adult cabaret.
A nightclub, bar, restaurant, or similar commercial establishment which regularly features:
(1) 
Persons who appear in a state of nudity;
(2) 
Live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities”; or
(3) 
Films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”
Adult motel.
A hotel, motel, or similar commercial establishment which:
(1) 
Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”; and has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions;
(2) 
Offers a sleeping room for rent for a period of time that is less than 10 hours; or
(3) 
Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours.
Adult motion picture theater.
A commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”
Adult theater.
A theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities.”
Chief of police.
The chief of police or his designated agent.
Escort.
A person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
Escort agency.
A person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes, for a fee, tip, or other consideration.
Establishment.
Includes any of the following:
(1) 
The opening or commencement of any sexually oriented business as a new business;
(2) 
The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
(3) 
The addition of any sexually oriented business to any other existing sexually oriented business; or
(4) 
The relocation of any sexually oriented business.
Historic district.
A historic overlay zoning district as defined by the city council, as amended.
Permit holder.
A person in whose name a permit to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit.
Nude model studio.
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.
Operates or causes to be operated.
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.
Nudity or a state of nudity.
(1) 
The appearance of a human bare buttock, anus, male genitals, female genitals, or female breast; or
(2) 
A state of dress that falls to opaquely cover a human buttock, anus, male genitals, female genitals, or any part of the female breast below the top of the areola.
Person.
An individual, proprietorship, partnership, corporation, association, or other legal entity.
Residential district.
A single-family, duplex, townhouse, multiple-family or mobile home zoning district as defined by the currently adopted zoning ordinance of the city.
Residential use.
A single-family, duplex, multiple-family, or “mobile home park,” or “mobile home subdivision” as defined by the currently adopted zoning ordinance of the city.
Semi-nude.
A state of dress in which clothing covers no more than the genitals, pubic region, buttocks, and any part of the female breast below the top of the areolae, as well as portions of the body covered by supporting straps or devices.
Sexual encounter center.
A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
(1) 
Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
(2) 
Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nude.
Sexually oriented business.
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.
Specified anatomical areas.
Human genitals in a state of sexual arousal.
Specified sexual activities.
Includes any of the following:
(1) 
The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
(2) 
Sex acts, normal or perverted, actual or stimulated, including intercourse, oral copulation, or sodomy;
(3) 
Masturbation, actual or simulated; or
(4) 
Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (3) above.
Substantial enlargement of a sexually oriented business.
The increase in floor areas occupied by the business by more than 25 percent, as the floor area exists on December 12, 1994.
Transfer of ownership or control of a sexually oriented business.
Includes any of the following:
(1) 
The sale, lease, or sublease of the business;
(2) 
The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
(3) 
The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
(Ordinance 94-1212 adopted 12/7/94)
Sexually oriented businesses are classified as follows:
(1) 
Adult arcades;
(2) 
Adult bookstores or adult video stores;
(3) 
Adult cabarets;
(4) 
Adult motels;
(5) 
Adult motion picture theaters;
(6) 
Adult theaters;
(7) 
Escort agencies;
(8) 
Nude model studios; and
(9) 
Sexual encounter centers.
(Ordinance 94-1212, sec. 94-1212-A, adopted 12/7/94)
(a) 
A person commits an offense if he operates or causes to be operated a sexually oriented business within 1,000 feet of:
(1) 
A church;
(2) 
A public or private elementary or secondary school;
(3) 
A boundary of a residential or historic district as defined in this article;
(4) 
A public park;
(5) 
The property line of a lot devoted to a residential use as defined in this article; or
(6) 
A hospital.
(b) 
A person commits an offense if he causes or permits the operation, establishment, substantial enlargement, or transfer or ownership or control of a sexually oriented business within 200 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), measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church, public or private elementary or secondary [school], or hospital or to the nearest boundary of an affected public park, residential district, historic district, or residential lot.
(e) 
For the 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) 
Any sexually oriented business lawfully operating on December 12, 1994, that is in violation of subsections (a), (b), or (c) of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed three years, unless sooner terminated for any reason or voluntarily discontinued 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 200 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business(es) is nonconforming.
(g) 
A sexually oriented business fully 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 permit, of a church, public or private elementary or secondary school, public park, residential district, historic district, residential lot, or hospital within 1,000 feet of the sexually oriented business. This provision applies only to the renewal of a valid permit, and does not apply when an application for a license is submitted after a license has expired or has been revoked.
(Ordinance 94-1212, sec. 94-1212-K, adopted 12/7/94)
(a) 
If the chief of police denies the issuance of a permit to an applicant because the location of the sexually oriented business establishment is in violation of section 4.03.004 of this article, then the applicant may, not later than 10 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 4.03.004.
(b) 
If the written request is filed with the city secretary within the 10-day limit, a permit and permit appeal board selected in accordance by the city council shall consider the request. The city secretary shall set a date for the hearing within 60 days from the date the written request is received.
(c) 
A hearing by the board may proceed if at least two of the board members are present. The board shall hear and consider evidence offered by any interested person. The formal rules of evidence do not apply.
(d) 
The permit and permit appeal board may, in its discretion, grant an exemption from the locational restrictions of section 4.03.004 if it makes the following findings:
(1) 
That the location of the proposed sexually oriented business will not have a detrimental effect on nearby properties or be contrary to the public safety or welfare;
(2) 
That the granting of the exemption will not violate the spirit and intent of this article;
(3) 
That the location of the proposed sexually oriented business will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban blight;
(4) 
That the location of an additional sexually 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) 
That all other applicable provisions of this article will be observed.
(e) 
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 permit appeal board is final.
(f) 
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 4.03.004 until the applicant applies for and receives another exemption.
(g) 
If the board denies the exemption, the applicant may not re-apply for an exemption until at least 12 months have elapsed since the date of the board’s action.
(h) 
The grant of an exemption does not exempt the applicant from any other provisions of this article other than the locational restrictions of section 4.03.004.
(Ordinance 94-1212, sec. 94-1212-L, adopted 12/7/94)
(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 video cassette, 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 “display” means to locate an item in such a manner that, without obtaining assistance from an employee of the business establishment:
(1) 
It is available to the general public for handling and inspection; or
(2) 
The cover or outside packaging on the item is visible to members of the general public.
(Ordinance 94-1212, sec. 94-1212-R, adopted 12/7/94)
(a) 
Except as provided by subsection (b), any person violating section 4.03.004 of this article, upon conviction, is punishable by a fine not to exceed $2,000.00.
(b) 
If the sexually oriented business involved is a nude model studio or sexual encounter center, then violation of section 4.03.004 of this article is punishable as a class A misdemeanor.
(c) 
Except as provided by subsection (b), any person violating a provision of this article other than section 4.03.004, upon conviction, is punishable by a fine not to exceed $500.00.
(d) 
It is a defense to prosecution under section 4.03.031, section 4.03.004, or section 4.03.062(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; 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 4.03.031 or section 4.03.004 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.
(Ordinance 94-1212, sec. 94-1212-S, adopted 12/7/94)
A person who operates or causes to be operated a sexually oriented business without a valid permit or in violation of section 4.03.004 of this article is subject to a suit for injunction as well as prosecution for criminal violations.
(Ordinance 94-1212, sec. 94-1212-T, adopted 12/7/94)
Sections 4.03.004, 4.03.005 and this section 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 city council.
(Ordinance 94-1212, sec. 94-1212-U, adopted 12/7/94)