It is the purpose of this article to promote the public health, safety and welfare of the citizens of the city and to prevent the concentration of sexually oriented businesses within the city. The provisions of this article have neither the purpose nor effect of imposing a limitation or restriction of the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this article to restrict or deny access by adults to sexually oriented materials protected by the First Amendment to the Constitution of the United States of America, or to deny access by distributors and exhibitors of sexually oriented entertainment to their intended market. However it is the intent of the City Council that locational restrictions are promulgated to address adverse secondary effects of sexually oriented businesses.

(Ord. No. 266, § 1, 10-14-2004; Ord. No. 387, § 1, 12-8-2008)

Definitions which apply to this article are as follows:

Adult cabaret means a nightclub, bar, restaurant, or similar commercial establishment which regularly features:

(1)

Persons who appear in a state of nudity; or

(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 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; or

(2)

Offers a sleeping room for rent for a period of time that is less than ten 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 ten hours.

Adult movie theater means a commercial establishment the primary business of which is the offering or showing, for any form of consideration, of films, motion pictures, video cassettes, slides or similar photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."

Adult novelty store, adult bookstore or adult video store means a commercial establishment wherein 40 percent or more of the displayed inventory which is offered for sale or rental for any form of consideration includes one or more of the following:

(1)

Books, magazines, periodicals or other printed matter, photographs, films, motion pictures, video cassettes, DVDs or video reproductions, slides, or other photographic reproductions 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"; or

(3)

Any other items intended to provide sexual stimulation or sexual gratification to the customer.

A business that does not make on-premise sales of the above noted goods is not subject to the provisions of this article.

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 sexual activities" or "specified anatomical areas."

Adult video arcade or adult movie 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, video tape players or recorders, video reproduction devices 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."

Chief of police means the chief of police of the city or his designated agent.

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 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.

Nude model studio, nude studio or love parlor means any place where a person who appears in the 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:

(1)

The appearance of a human bare buttocks, anus, male genitals, female genitals, or female breast; or

(2)

A state of dress which fails to opaquely cover a human buttock, anus, male genitals, female genitals or areola of the female breast.

Person means an individual, proprietorship, partnership, corporation, association, or other legal entity.

Residential district means a single-family, two-family, multiple-family or mobile home district included in the city zoning districts R-1, R-2 or R-3.

Residential use means a single-family, two-family, multiple-family, or mobile home district use which is located within the city zoning districts R-1, R-2 or R-3. "Residential use" shall also include existing single-family, two-family, multiple-family, or mobile home districts, if in such use as of March 1, 1993, regardless of the zoning district where located.

Semi-nude means a state of dress in which clothing covers no more than the genitals, pubic region, and areolas of the female breast, as well as portions of the body covered by supporting straps or devices, and/or displays commonly known as "G-strings," "pasties," or "wet T-shirt contest," and any similar such devices and/or displays.

Sexual encounter center means a business or commercial enterprise that, as its primary business purpose, offers for any form of consideration:

(1)

Physical contact in the form of wrestling or tumbling between persons of the same sex and/or 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 are in a state of nudity or are semi-nude.

Sexually oriented business means an adult movie arcade, adult video arcade, adult novelty store, adult bookstore, adult video store, adult cabaret, adult motel, adult movie theater, adult theater, escort agency, nude studio, nude model studio, love parlor or sexual encounter center, or any other commercial enterprise, the primary 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 of the customer.

Specified anatomical areas means human genitals in a state of sexual arousal.

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, actual or simulated, including intercourse, or 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 the business by more than 25 percent, as the floor area exists on March 1, 1993.

Transfer of ownership or control of a sexually oriented business means and includes any of the following:

(1)

The sale, lease or sublease of any property, or any portion thereof, used for or in relation to any such 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.

(Ord. No. 266, § 1(1), 10-14-2004; Ord. No. 387, § 1, 12-8-2008)

(a)

A person commits an offense if he operates or causes to be operated a sexually oriented business within 750 feet of any real property boundary line of:

(1)

Any church, synagogue and/or any other public place of worship;

(2)

Any public or private pre-school, elementary and/or secondary school, educational center or facility, youth activity center, or facility;

(3)

Any public library;

(4)

City hall;

(5)

Any public park; or

(6)

Any lot devoted to a residential use as defined in this article.

(b)

A person commits an offense if he causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 750 feet of any real property boundary line of another sexually oriented business.

(c)

A person commits an offense if he causes or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, or the increase of floor area of any sexually oriented business in any building structure, or portion thereof containing another sexually oriented business.

(d)

For the purposes of subsection (a) of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the real property boundary line of an affected church, public or private elementary school, public park, residential 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 portion of the real property of any property boundary line on which each business is located.

(f)

Any sexually oriented business lawfully operating on March 1, 1993, or on the date such use is annexed, that is in violation of subsection (a) or subsection (b) 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 180 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 750 feet of each other, as defined in subsection (b) of this section, and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at that particular location is the conforming use and the later-established business(es) is (are) the nonconforming.

(g)

A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the lawful opening of such a business, of a public place of worship, school, public or private pre-school, elementary or secondary school, youth activity center, public park, residential district, residential use, or the city hall within 750 feet of the sexually oriented business as defined in this article.

(Ord. No. 266, § 1(2), 10-14-2004; Ord. No. 387, § 1, 12-8-2008)

(a)

Survey required. Any person who desires to establish a sexually oriented business as defined in this article shall first provide a survey under seal to the city administrator to establish that the business is at least 750 feet from a lot devoted to residential use or district zoned for residential use, a public place of worship, a public or private pre-school, elementary or secondary school, youth activity center, public library, public park or the city hall.

(b)

Fee. In addition to the survey, the applicant shall pay a non-refundable fee as prescribed in the most recent adopted fee schedule passed and approved by the City Council to offset the costs of the city's investigation to confirm that the proposed location is more than 750 feet from the protected uses established above.

(c)

Investigation. The city administrator shall complete the investigation herein provided for and notify the applicant of the result not more than 20 business days after receiving the sealed survey and application fee.

(d)

Rejection of application. If the application is rejected, the city administrator shall provide a letter that specifies the reason(s) for denial, and the applicant shall have 30 days to either appeal the decision of the city administrator to the City Council or seek review in a court having jurisdiction of such matter. If no appeal is made, the decision of the city administrator is final.

(e)

Application for certificate of occupancy. Subsequent to the verification of the sealed survey herein required, the applicant may apply for a certificate of occupancy which shall be issued in conformance with this Code within 20 business days of application therefor. If upon inspection the premises do not meet the Code requirements, the building inspector shall notify the applicant of the specific reasons for denial, in writing. Provided, however, the applicant may request one 20-business-day extension of the application if the request is in writing and received by the building inspector prior to the expiration of the initial 20-business-day period established herein for issuance of the certificate of occupancy. The fee for a certificate of occupancy shall be in accordance with the fee schedule of the city.

(f)

Appeal of denial of certificate of occupancy. If the certificate of occupancy is denied by the building inspector, the applicant shall have 30 days to either appeal the decision to the City Council or seek review in a court having jurisdiction of such matter. If no appeal is made, the decision of the building inspector is final.

(Ord. No. 266, § 1(3), 10-14-2004; Ord. No. 387, § 1, 12-8-2008; Ord. No. 394, § 10, 2-12-2009)

(a)

Violation of section 98-223 is punishable as a Class C misdemeanor with a fine of not less than $25.00 nor more than $2,000.00 upon conviction, and each day such violation continues shall be deemed a separate offense and punishable as such.

(b)

It is a defense to prosecution under section 98-223 that a person appearing in a state of nudity did so in a modeling class operated:

(1)

By a preparatory school licensed by the State of Texas; or a college, junior college, or university supported entirely or partly by taxation;

(2)

By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college or university supported entirely or partly by taxation; or

(3)

In a structure:

a.

Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and

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.

(c)

It is a defense to prosecution under section 98-223 that each item of descriptive, painted, film, or video material offered for sale or rental, taken as a whole, contains serious literary, artistic, political or scientific value.

(Ord. No. 266, § 1(4), 10-14-2004; Ord. No. 387, § 1, 12-8-2008)

A person who operates or causes to be operated a sexually oriented business in violation of section 98-223 and/or any other section of this article is subject to a suit for injunction to prohibit violation, in addition to prosecution for criminal violations under section 98-225.

(Ord. No. 266, § 1(5), 10-14-2004; Ord. No. 387, § 1, 12-8-2008)