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.”
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 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.
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:
(2) Adult
bookstores or adult video stores;
(5) Adult
motion picture theaters;
(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:
(2) A public or private elementary or secondary school;
(3) A boundary of a residential or historic district as defined in this
article;
(5) The property line of a lot devoted to a residential use as defined
in this article; or
(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)