§ 5-14. Sexually oriented businesses.
(a)
Purpose and intent.
(1)
It is the purpose of this section to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the concentration of sexually oriented businesses within the city. The provisions of this section have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this section to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market.
(2)
It is the intent of the City Council of the City of Terrell, Texas, that the location regulations of subsection (m) of this section are promulgated pursuant to article 2372w, Revised Civil Statutes of Texas, as they apply to nude model studios and sexual encounter centers only.
(b)
Definitions.
Achromatic means colorless or lacking in saturation or hue. The term includes, but is not limited to, grays, tans, and light earth tones. The term does not include white, black, or any bold coloration that attracts attention.
Adult arcade means any place to which the public is permitted or invited wherein coin operated or slug operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of "specified sexual activities" or "specified anatomical areas."
Adult bookstore or adult video store means a commercial establishment which as one of its principal business purposes offers for sale or rental for any form of consideration any one or more of the following:
(1)
Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe "specified sexual activities" or "specified anatomical areas;" or
(2)
Instruments, devices, or paraphernalia which are designed for use in connection with "specified sexual activities."
Adult cabaret means a commercial establishment that regularly features the offering to customers of live entertainment that:
(1)
Is intended to provide sexual stimulation or sexual gratification to such customers; and
(2)
Is distinguished by or characterized by an emphasis on matter depicting, simulating, describing, or relating to "specified anatomical areas" or "specified sexual activities"
Adult motel means 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 ten hours; or
(2)
Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten hours.
Adult motion picture theater means 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 means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities."
Chief of police means the Chief of Police of the City of Terrell or his designated agent.
Day nursery or kindergarten school has the meaning given that term in the Terrell Zoning Ordinance.
Escort means a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
Escort agency means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes, for a fee, tip, or other consideration.
Establishment means and includes any of the following:
(1)
The opening or commencement of any sexually oriented business as a new business;
(2)
The conversion of any 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 means an historic overlay zoning district as defined in the Terrell Zoning Ordinance.
Licensee means a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license.
Nude model studio means any place where a person who appears in a state of nudity or displays "specified anatomical areas" is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration.
Nudity or a state of nudity means the appearance of a human bare buttock, anus, male genitals, female genitals, or female breast.
(1)
A state of dress that fails to completely and opaquely cover a human buttock, anus, male genitals, female genitals, or any part of the female breast or breasts that is situated below a point immediately above the top of the areola.
Operates or causes to be operated means to cause to function or to put or keep in operation. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner, part owner, or licensee of the business.
Person means an individual, proprietorship, partnership, corporation, association, or other legal entity.
Residential district means a single family, duplex, townhouse, or multiple family district as defined in this Code of Ordinances.
Residential use means a single family, duplex, multiple family, or mobile home park use as defined in this Code of Ordinances.
Sexual encounter center means 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 seminude.
Sexually oriented business means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.
Specified anatomical areas means:
(1)
Any of the following, or any combination of the following, when less than completely and opaquely covered;
a.
Any human genitals, pubic region, or pubic hair;
b.
Any buttock; or
c.
Any portion of the female breast or breasts that is situated below a point immediately above the top of the areola; or
(2)
Human male genitals in a discernibly erect state, even if completely and opaquely covered.
Specified sexual activities means and 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 simulated, 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 means the increase in floor area occupied by business by more than 25 percent, as the floor exists on September 1, 1992.
Transfer of ownership or control of a sexually oriented business means and 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.
(c)
Classification. Sexually oriented business 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;
(9)
Sexual encounter centers.
(d)
License required.
(1)
A person commits an offense if he operates a sexually oriented business without a valid license, issued by the city for the particular type of business.
(2)
An application for a license must be made on a form provided by the chief of police. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches.
(3)
The applicant must be qualified according to the provisions of this section and the premises must be in compliance with the law by the building official.
(4)
If a person who wishes to operate a sexually oriented business is an individual, he must sign the application for a license as an applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a 20 percent or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under subsection (e) and each applicant shall be considered a licensee if a license is granted.
(5)
The fact that a person possesses a valid dance hall license does not exempt the person from the requirement of obtaining a sexually oriented business license. A person who operates a sexually oriented business and possesses a dance hall license shall comply with the requirements and provisions of this chapter as well as the requirements and provisions of section 5-9 of this Code when applicable.
(e)
Issuance of license.
(1)
The chief of police shall approve the issuance of a license by the city secretary to an applicant within 30 days after receipt of an application unless he finds one or more of the following to be true:
a.
An applicant is under 18 years of age.
b.
An applicant or an applicant's spouse is overdue in his payment to the city of taxes, fees, fines, or penalties asserted against him or imposed upon him in relation to a sexually oriented business.
c.
An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form.
d.
An applicant or an applicant's spouse has been convicted of a violation of a provision of this section, other than the offense of operating a sexually oriented business without a license, within two years immediately preceding the application. The fact that a conviction is being appealed shall have no effect.
e.
An applicant is residing with a person who has been denied a license by the city to operate a sexually oriented business within the preceding 12 months, or residing with a person whose license to operate a sexually oriented business has been revoked within the preceding 12 months.
f.
The premises to be used for the sexually oriented business have not been approved by the building official as being in compliance with applicable laws and ordinances.
g.
Any fee required by this section has not been paid.
h.
An applicant has been employed in a sexually oriented business in a managerial capacity within the preceding 12 months and has demonstrated that he is unable to operate or manage a sexually oriented business premises in a peaceful and law abiding manner.
i.
An applicant or the proposed establishment is in violation of or is not in compliance with any section of this section.
j.
An applicant or an applicant's spouse has been convicted of or is under indictment or misdemeanor information for a crime.
1.
Involving:
i.
Any of the following offenses as described in V.T.C.A., Penal Code ch. 43:
(aa)
Prostitution;
(bb)
Promotion of prostitution;
(cc)
Aggravated promotion of prostitution;
(dd)
Compelling prostitution;
(ee)
Obscenity;
(ff)
Sale, distribution, or display of harmful material to a minor;
(gg)
Sexual performance by a child;
(hh)
Possession of child pornography;
ii.
Any of the following offenses as described in V.T.C.A., Penal Code ch. 21.
(aa)
Public lewdness;
(bb)
Indecent exposure;
(cc)
Indecency with a child;
iii.
Engaging in organized criminal activity as described in V.T.C.A., Penal Code ch. 71;
iv.
Sexual assault or aggravated sexual assault as described in V.T.C.A., Penal Code ch. 22;
v.
Incest, solicitation of a child, or harboring a runaway child as described in V.T.C.A., Penal Code ch. 25.
vi.
Kidnapping or aggravated kidnapping as described in V.T.C.A., Penal Code ch. 20;
vii.
Robbery or aggravated robbery as described in V.T.C.A., Penal Code ch. 29;
viii.
A bribery or retaliation as described in V.T.C.A., Penal Code ch. 36;
ix.
A violation of the Texas Controlled Substances Act or Dangerous Drugs Act punishable as a felony, Class A misdemeanor, or Class B misdemeanor; or
x.
Criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses;
2.
For which:
i.
Less than two years have elapsed since the date of conviction of the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
ii.
Less than five years have elapsed since the date of conviction of the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or
iii.
Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offense or combination of misdemeanor offenses occurring within any 24-month period.
(2)
The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant's spouse.
(3)
An applicant who has been convicted or whose spouse has been convicted of an offense listed in subsection (e)(1)j., for which the, required time period has elapsed since the date of conviction or the date of release from confinement imposed for the conviction, may qualify for a sexually oriented business license only if the chief of police determines that the applicant or applicant's spouse is presently fit to operate a sexually oriented business. In determining present fitness under this section, the chief of police shall consider the following factors concerning the applicant or applicant's spouse, whichever had the criminal conviction:
a.
The extent and nature of his past criminal activity;
b.
His age at the time of the commission of the crime;
c.
The amount of time that has elapsed since his last criminal activity;
d.
His conduct and work activity prior to and following the criminal activity;
e.
Evidence of his rehabilitation or rehabilitative effort while incarcerated or following release; and
f.
Other evidence of his present fitness, including letters of recommendation from prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for him; the sheriff or chief of police in the community where he resides; and any other persons in contact with him.
(4)
It is the responsibility of the applicant, to the extent possible, to secure and provide to the chief of police the evidence requited to determine present fitness under subsection c. of this section.
(5)
The chief of police, upon approving issuance of a sexually oriented business license, shall send to the applicant, by certified mail, return receipt requested, written notice of that action and state where the applicant must pay the license fee and obtain the license. The chief of police's approval of the issuance of a license does not authorize the applicant to operate a sexually oriented business until the applicant has paid all fees required by this section and obtained possession of the license.
(6)
The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. The license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time.
(f)
Fees.
(1)
The annual fee for a sexually oriented business license is provided for in the fee schedule found in Appendix 1 of this Code.
(2)
In addition to the fees required by subsection (1), an applicant for an initial sexually oriented business license shall, at the time of making application, pay a nonrefundable fee of $700.00 for the city to conduct a survey to ensure that the proposed sexually oriented business is in compliance with the locational restrictions.
(3)
If an applicant is required by this Code to also obtain a dance hall license for the business at a single location, payment of the fee for the sexually oriented business license exempts the applicant from payment of the fees for the dance hall license.
(g)
Inspection.
(1)
An applicant or licensee shall permit representatives of the police department, fire department, and building official to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business.
(2)
A person who operates a sexually oriented business or his agent or employee commits an offense if he refuses to permit a lawful inspection of the premises by a representative of the police department at any time it is occupied or open for business.
(3)
The provisions of this section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation.
(h)
Expiration of license.
(1)
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in subsection (e). Application for renewal should be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the license shall not be affected.
(2)
When the chief of police 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 chief of police 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 days have elapsed since the date denial became final.
(i)
Suspension. The chief of police shall suspend a license for a period not to exceed 30 days if he determines that a licensee or an employee of a license has:
(1)
Violated or is not in compliance with any section of this section;
(2)
Engaged in excessive use of alcoholic beverages while on the sexually oriented business premises;
(3)
Refused to allow an inspection of the sexually oriented business premises as authorized by this section;
(4)
Knowingly permitted gambling by any person on the sexually oriented business premises;
(5)
Demonstrated inability to operate or manage a sexually oriented business in a peaceful and law abiding manner, thus necessitating action by law enforcement officers.
(j)
Revocation.
(1)
The chief of police shall revoke a license if a cause of suspension in subsection (i) occurs and the license has been suspended within the preceding 12 months.
(2)
The chief of police shall revoke a license if he determines that:
a.
A licensee gave false or misleading information in the material submitted to the chief of police during the application, process;
b.
A licensee or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises;
c.
A licensee or an employee has knowingly allowed prostitution on the premises;
d.
A licensee or an employee knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended;
e.
A licensee has been convicted of an offense listed in subsection (e)(1)j.1. for which the time period required in subsection (e)(1)j.2. has not elapsed;
f.
On two or more occasions within a 12-month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in subsection (e)(1)j.1., for which a conviction has been obtained, and the person or persons where employees of the sexually oriented business at the time the offenses were committed;
g.
A licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in or on the licensed premises. The term "sexual contact" shall have the same meaning as it is defined in V.T.C.A., Penal Code ch. § 21.01; or
h.
A licensee is delinquent in payment to the city for hotel occupancy taxes, ad valorem taxes, or sales taxes related to the sexually oriented business.
(3)
The fact that a conviction is being appealed shall have no effect on the revocation of the license.
(4)
Subsection (2)g. above does not apply to adult motels as a ground for revoking the license unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in a public place or within public view.
(5)
When the chief of police revokes a license, the revocation shall continue for one year and the licensee shall not be issued a sexually oriented business license for one year from the date 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. If the license was revoked under subsection (2)e., an applicant may not be granted another license until the appropriate number of years required under subsection (e)(1)j.2. has elapsed since the termination of any sentence, parole, or probation.
(k)
Appeal. If the chief of police denies the issuance of a license, or suspends or revokes a license, he shall send to the applicant, or licensee, by certified mail, return receipt requested, written notice of his action and the right to an appeal. The aggrieved party may appeal the decision of the chief of police to the city council in accordance with subsection (k) of this section. The filing of an appeal stays the action of the chief of police in suspending or revoking a license until the city council makes a final decision. If within a ten-day period the chief of police suspends, revokes, or denies issuance of a dance hall license or public house of amusement license for the same location involved in the chief's actions on the sexually oriented business license, then the chief may consolidate the requests for appeals of those actions into one appeal.
(l)
Transfer of license. A licensee shall not transfer his license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application.
(m)
Location of sexually oriented business.
(1)
A person commits an offense if he operates or causes to be operated a sexually oriented business within 500 feet of:
a.
Interstate Highway 20;
b.
U.S. Highway 80;
c.
State Highway 205;
d.
State Highway 34;
e.
Spur 557.
(2)
A person commits an offense if he operates or causes to be operated a sexually oriented business within 1,500 feet of:
a.
A church;
b.
A cemetery;
c.
A public or private elementary or secondary school;
d.
A boundary of a residential district or historic district;
e.
A Public park;
f.
The property line of a lot devoted to residential use;
g.
A hospital;
h.
A nursery or kindergarten school; or
i.
A store, restaurant or a private club that is licensed or permitted to sell alcoholic beverages by the Texas Alcoholic Beverage Commission.
(3)
A person commits an offense if he causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 1,500 feet of another sexually oriented business.
(4)
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.
(5)
For the purposes of subsections (1) and (2), 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 a part of the premises where a sexually oriented business is conducted, to the nearest right-of-way line of Interstate Highway 20, U.S. Highway 80, State Highway 205, State Highway 34, Spur 557 or the nearest property line of the premises of a church, a public or private elementary or secondary school, public park, residential or historic district, residential lot, hospital, nursery or kindergarten school, or a store, restaurant or private club that is licensed or permitted to sell alcoholic beverages by the Texas Alcoholic Beverage Commission.
(6)
For the purposes of subsection (3), the distance between any two sexually oriented businesses shall be structure or objects from the closest exterior wall to the structure in which each business is located.
(7)
Any sexually oriented business lawfully operating on August 1 2007, that is in violation of subsections (1), (2), (3), or (4) above 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 use 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 1,500 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operated at the particular location is the conforming use and the later established businesses(es) is nonconforming.
(8)
A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business license of a church, public or private elementary or secondary school, public park, residential district, historic district, hospital, nursery or kindergarten school, or residential lot, or a store, restaurant or private club that is licensed or permitted to sell alcoholic beverages by the Texas Alcoholic Beverage Commission within 1,500 feet of the sexually oriented business.
This provision applies only to the renewal of a valid license, and does not apply when an application for a license is submitted after a license has expired or has been revoked.
(n)
Exemption from location restrictions.
(1)
If the chief of police denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of subsection (m) of this section, then the applicant may, not later than ten calendar days after receiving notice of the denial, file with the city secretary written request for an exemption from the locational restrictions of subsection (m).
(2)
If the written request is filed with the city secretary within the ten-day limit, 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.
(3)
A hearing by the city council may proceed if a quorum is present. The city council shall hear and consider evidence offered by any interested person. The formal rules of evidence do not apply.
(4)
The city council may, in its discretion, grant an exemption from the locational restrictions of subsection (m) if it makes the following findings:
a.
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;
b.
That the granting of the exemption will not violate the spirit and intent of this section;
c.
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;
d
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
e.
That all other applicable provisions of this section will be observed.
(5)
The city council 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 city council is final.
(6)
If the city council grants the exemption, the exemption is valid for one year from the date of the city council's action. Upon the expiration of an exemption, the sexually oriented business is in violation of the locational restrictions of subsection (m) until the applicant applies for and receives another exemption.
(7)
If the city council denies the exemption, the applicant may not reapply for an exemption until at least 12 months have elapsed since the date of the city council's action.
(8)
The grant of an exemption does not exempt the applicant from any other provisions of this section other than the locational restrictions of subsection (m).
(o)
Sign requirements.
(1)
Notwithstanding any provision of the City of Terrell Code of Ordinances or any other city ordinance, code, or regulation to the contrary, the owner or operator of any sexually oriented business or any other person commits an offense if he erects, constructs, or maintains any sign for the establishment other than one primary sign and one secondary sign, as provided in this section.
(2)
A primary sign or secondary sign must contain no photographs, silhouettes, drawings, or pictorial representations of any manner, and may contain only:
a.
The name of the establishment; and/or
b.
One or more of the following phrases:
1.
"Adult arcade"
2.
"Adult bookstore or adult video store"
3.
"Adult cabaret"
4.
"Adult motel"
5.
"Adult motion picture theater"
6.
"Adult theater"
7.
"Escort agency"
8.
"Nude model studio"
9.
"Sexual encounter center."
(3)
A primary sign for an adult motion picture theater may contain the phrase, "Movie Titles Posted on Premises," in addition to the phrases listed in above subsection.
(p)
Additional regulations for escort agencies.
(1)
An escort agency shall not employ any person under the age of 18 years.
(2)
A person commits an offense if he acts as an escort or agrees to act as an escort for any person under the age of 18 years.
(q)
Additional regulations for nude model studios.
(1)
A nude model studio shall not employ any person under the age of 18 years.
(2)
A person under the age of 18 years commits an offense if he appears in a state of nudity in or on the premises of a nude model studio. It is a defense to prosecution under this subsection if the person under 18 years was in a restroom not open to public view or persons of the opposite sex.
(3)
A person commits an offense if he appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude model studio premises which can be viewed from the public right-of-way.
(4)
A nude model studio shall not place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception room open to the public.
(5)
A person commits an offense if he appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude model studio premises that can be viewed from the public right-of-way.
(6)
An employee of a nude model studio, while exposing any specified anatomical areas, commits an offense if the employee touches a customer or the clothing of a customer.
(7)
A customer at a nude model studio commits an offense if he touches an employee who is exposing any specified anatomical areas or touches the clothing of the employee.
(8)
A licensee or an employee of a nude model studio commits an offense if he permits any customer access to an area of the premises not visible from the manager's station or not visible by a walk through of the premises without entering a closed area excluding a restroom.
(r)
Additional regulations for adult cabarets.
(1)
An employee of an adult cabaret, while exposing any specified anatomical areas, commits an offense if the employee touches a customer or the clothing of a customer.
(2)
A customer of an adult cabaret commits an offense if he touches an employee who is exposing any specified anatomical areas or touches the clothing of the employee.
(3)
A licensee or an employee of an adult cabaret commits an offense if he permits any customer access to an area of the premises not visible from the manager's station or not visible by a walk through of the premises without entering a closed area, excluding a restroom.
(s)
Additional regulations for adult theaters and motion picture theaters.
(1)
A person commits an offense if he knowingly allows a person under the age of 18 years to appear in a state of nudity in or on the premises of an adult theater or adult motion picture theater.
(2)
A person under the age of 18 years commits an offense if he knowingly appears in a state of nudity in or on the premises of an adult theater or adult motion picture theater.
(3)
It is a defense to prosecution under subsections (1) and (2) above if the person under 18 years was in a restroom not open to public view or persons of the opposite sex.
(t)
Additional regulations for adult motels.
(1)
Evidence that a sleeping room in a hotel, motel, or similar commercial establishment has been rented and vacated two or more times in a period of time that is less than ten hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this section.
(2)
A person commits an offense if, as the person in control of a sleeping room in a hotel, motel, or similar commercial establishment that does not have a sexually oriented business license, he rents or subrents a sleeping room to a person and, within ten hours from the time the room is rented, he rents or subrents the same sleeping room again.
(3)
For purposes of subsection (2) above, the terms "rent" or subrent" mean the act of permitting a room to be occupied for any form of consideration.
(u)
Regulations pertaining to exhibition of sexually explicit films or videos.
(1)
A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises in a viewing room of less than 150 square feet of floor space, a film, video cassette, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
a.
Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed 32 square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches. The chief of police may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
b.
The application shall be sworn to be true and correct by the applicant.
c.
No alteration in the configuration or location of a manager's station may be made without the prior approval of the chief of police or his designee.
d.
It is the duty of the owners and operator of the premises to ensure that at least one employee is on duty and situated in each manager's station at all times that any patron is present inside the premises.
e.
The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station.
f.
It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in subsection (5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times that any patron is present in the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection (1) of this section.
g.
The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than one (1.0) footcandle, as measured at the floor level.
h.
It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above is maintained at all times that any patron is present in the premises.
1.
A person having a duty under subsections a. through h. of subsection (l) above commits an offense if he knowingly fails to fulfill that duty.
(v)
Display of sexually explicit materials to minors.
(1)
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:
a.
Human sexual intercourse, masturbation, or sodomy;
b.
Fondling or other erotic touching of human genitals, pubic region, buttocks, or female breasts;
c.
Less than completely and opaquely covered human genitals, buttocks, or that portion of the female breast below the top of the areolae; or
d.
Human male genitals in a discernibly turgid state, whether covered or uncovered.
(2)
In this section "display" means to locate an item in such a manner that, without obtaining assistance from an employee of the business establishment;
a.
It is available to the general public for handling and inspection; or
b.
The cover or outside packaging on the item is visible to members of the general public.
(w)
Enforcement.
(1)
Except as provided by subsection (2), any person violating subsection (m), upon conviction, is punishable by a fine not to exceed $500.00.
(2)
If the sexually oriented business involved is a nude model studio or sexual encounter center, then violation of subsections (d) or (m) of this section is punishable as a Class B misdemeanor.
(3)
Except as provided by subsection (2), any person violating a provision of this section other than subsection (m), upon conviction, is punishable by a fine not to exceed $500.00.
(4)
It is a defense to prosecution under subsections (d), (m) or (q) that a person appearing in a state of nudity did so in a modeling class operated:
a.
By a proprietary school licensed by the State of Texas; a college, junior college or university supported entirely or partly by taxation;
b.
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
c.
In a structure;
1.
Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and
2.
Where in order to participate in a class a student must enroll at least three days in advance of the class; and
3.
Where no more than one nude model is on the premises at any one time.
(5)
It is a defense to prosecution under subsections (m) or (n) that each item of descriptive, printed, film, or video material offered for sale or rental, taken as a whole, contains serious literary, artist, political, or scientific value.
(x)
Injunction. A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of subsection (m) of the section is subject to a suit for injunction as well as prosecution for criminal violations.
(y)
Amendment of this section. Subsections (m) and (n) of this section may be amended only after compliance with the procedure required to amend a zoning ordinance. Other sections of this section may be amended by vote of the city council.
(Ord. No. 1696, 9-1-92; Ord. No. 2019, 6-6-00; Ord. No. 2334, § I, 5-15-07)