River Oaks City Zoning Code
SECTION 27
ADULT ENTERTAINMENT FACILITIES.
A.
PURPOSE.
It is the purpose of this section to regulate adult entertainment facilities 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 adult entertainment facilities 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 of the United States Constitution or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market.
B. Adult Arcade. Adult Bookstore, Adult Video Store, or Adult Novelty Store.a. b. Adult Cabaret.a. b. c. Adult Entertainment Facility.a. b. c. i. ii. iii. iv. Adult Motel.a. b. c. Adult Motion-Picture Theater. Adult Service Establishment. Adult Theater. Chief of Police. Church or Synagogue. Customer.a. b. c. Employee. Escort. Escort Agency. "He". Licensed Day-Care Center. Licensee. Massage. Nude Model Business. Nudity or a State of Nudity. Operated or Causes to be Operated. Person. Principal. Regularly. Residential District. Residential Use. Semi-nudity. Sex Parlor. Sexual Encounter Center. Simulated Nudity. Specified Anatomical Areas. Specified Sexual Activities.a. b. c. d.
DEFINITIONS.
As used in this section, certain terms and words are defined as follows:
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."
A commercial establishment, which as its principal business purpose offers for sale or rental for any form of consideration any one or more of the following:
Books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, videocassettes, or video reproductions, slides, objects, or other visual representations which depict or describe "specified sexual activities" or "specified anatomical areas"; or
Instruments, devices, or paraphernalia which are designed or manufactured for use in connection with "specified sexual activities." This does not include items used for birth control or for prevention of sexually transmitted diseases.
A nightclub, bar, restaurant, or similar commercial establishment which regularly features:
Persons who appear in a state of nudity, semi-nudity, or simulated nudity; or
Live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or
Films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."
An adult arcade, adult bookstore, or adult video store, adult novelty store, adult service establishment, adult cabaret, adult motel, adult theater, adult motion-picture theater, escort agency, nude model business, sex parlor, or sexual encounter center; and/or
Any establishment whose principal business is the offering of a service or the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to its customers, and which is distinguished by or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas; or whose employees or customers appear in a state of nudity, semi-nudity, or simulated nudity.
The term "adult entertainment facility" shall not be construed to include:
Any business operated by or employing licensed psychologists, licensed physical therapists, registered massage therapists, registered nurses, licensed athletic trainers;
Any business operated by or employing licensed physicians or licensed chiropractors engaged in practicing the healing arts;
Any retail establishment whose principal business is the offering of wearing apparel for sale to customers and does not exhibit merchandise of live models; or
Any activity conducted or sponsored by a Texas independent school district, licensed or accredited private school, or public or private college or university.
A hotel, motel, or similar commercial establishment which:
Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified 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
Offers a sleeping room for rent for a period of time that is less than 10 hours; or
Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than 10 hours.
A commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides, or similar photograph reproductions are regularly shown which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."
A commercial establishment which as its principal business purpose offers services or sells products to customers and in which one or more of the employees or the customer appears in a state of nudity, semi-nudity, or simulated nudity.
A theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity, semi-nudity, or simulated nudity, or live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities."
The chief of police of the city or the chief's designated representative.
A building, whether situated within the city or not, in which persons regularly assemble for religious worship intended primarily for purposes connected with such worship or for propagating a particular form of religious belief.
Any person who:
Is allowed to enter an adult entertainment facility in return for the payment of an admission fee or any other form of consideration or gratuity; or
Enters an adult entertainment facility or purchases, rents, or otherwise partakes of any merchandise, goods, entertainment, or other services offered therein; or
Is a member of and on the premises of an adult entertainment facility operating as a private club.
Any person who renders any service whatsoever to the customers of an adult entertainment facility or who works in or about an adult entertainment facility and who receives compensation for such service or work from the operator or owner of the adult entertainment facility or from its customer.
A person whom, for consideration, agrees or offers to act as a companion or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
A person or business association who furnishes, offers to furnish, or advertises to furnish escorts as its principal business purpose, for a fee, tip, or other consideration.
Shall be defined to include the word "she."
A facility licensed by the State of Texas that provides care, training, education, custody, treatment, or supervision for more than 12 children under the age of 14, where the children are not related by blood, marriage, or adoption to the owner or operator of the facility, for less than 24 hours a day.
A person in whose name a license to operate an adult entertainment facility has been issued, as well as any and all individuals listed as applicants on the application for a license.
Any method of treating the superficial parts of a customer for medical, hygienic, exercise, or relaxation purposes by rubbing, stroking, kneading, tapping, pounding, vibrating or stimulating with the hands, feet, or any other instrument.
Any place where a person who appears in a state of nudity, semi-nudity, or simulated nudity or displays "specified anatomical areas" is provided or allowed to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration.
To cause to function or to put or keep in operation. A person may be found to be operating or causing to be operated an adult entertainment facility whether or not that person is an owner, part owner, licensee, or manager of the establishment.
An individual, proprietorship, partnership, corporation, association, or other legal entity.
Over 35 percent of customers, volume of sales, stock in trade, display areas, or presentation time in any three-month increment period beginning from the date of issuance of a certificate of occupancy. Stock in trade shall be measured with all titles or objects available on the premises for sale or rental including those that are identical considered a separate title or object.
Featuring, promoting, or advertising a happening or occurrence on a recurring basis.
A district zoned for residential uses.
A single-family, mobile home, manufactured home, industrialized housing, or multiple-family dwelling as defined in this Zoning Ordinance of the City of River Oaks.
A state of dress in which opaque clothing covers no more than the genitals, public region, buttocks, and areola of the female breast, as well as parts of the body covered by supporting straps or devices.
An establishment that is operated for the purpose of giving massages, at the establishment or on a home-call basis, that are intended to provide sexual stimulation or sexual gratification in combination with a massage.
A business or commercial enterprise that, as its principal business purpose, offers for any form of consideration:
A state of dress in which any device or covering is worn or exposed to view that simulates any part of the genitals, buttocks, anus, pubic region, or areola of the female breast.
Human genitals in a state of sexual arousal.
Means and includes any of the following:
The fondling or other erotic touching of human genitals, pubic region, pubic hair, perineum, buttocks, anus, or female breasts;
Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, sodomy, or bestiality;
Masturbation, actual or simulated; or
Excretory functions.
C.
LOCATION OF ADULT ENTERTAINMENT FACILITIES.
1.
A person commits an offense if he establishes, operates, or causes to be operated or expanded, an adult entertainment facility within 1,000 feet, without regard to city boundaries, of:
2.
A person commits an offense if he establishes, operates, or causes to be operated, an adult entertainment facility within 1,000 feet of any other adult entertainment facility, without regard to city boundaries.
3.
A person commits an offense if he establishes, operates, or causes to be operated, an adult entertainment facility in any building structure or portion thereof containing another adult entertainment facility.
4.
For the purposes of subsection C.1 of this section, 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 tenant space occupied for an adult entertainment facility to the nearest property line of the premises of a residential use, church, synagogue, public or private elementary or secondary school, licensed day-care center, public library, or to the nearest boundary of a public park, residential district, or residential lot.
5.
For purposes of subsection C.2 of this section, the distance between any two adult entertainment facilities 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 or from the wall of the tenant space occupied as applicable.
6.
Any adult entertainment facility lawfully operating on the effective date of this section that is in violation of the location requirements of subsections C.1 or C.2 shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed 180 days from the effective date of this section unless sooner terminated for any reason. A nonconforming use under this subsection shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more adult entertainment facilities are within 1,000 feet of one another and otherwise in a permissible location, the adult entertainment facility which was first established and continually operating at a particular location is the conforming use and the later-established business is nonconforming.
7.
A person operating an adult entertainment facility that is a nonconforming use who believes that 180 days, when added to previous time in operation, is not sufficient time to amortize the investment the person has in the business, may apply to the board of adjustment for an extension of an additional 180 days. In order to give the board of adjustment time to adequately consider the application, the person must file the appeal with the city secretary within 90 days of the effective date of this section. The city council shall call a public hearing at which the board shall hear evidence from interested parties. The decision of the board is final.
8.
An adult entertainment facility lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the adult entertainment facility license, of a church, synagogue, public or private elementary or secondary school, licensed day-care center, public park, public library, residential district or a residential lot within 1,000 feet of the adult entertainment facility. 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.
D.
LICENSE REQUIRED.
1.
A person commits an offense if he operates or causes to operate an adult entertainment facility 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.
4.
If a person who wishes to operate an adult entertainment facility is an individual, he must sign the application for a license as applicant. If a conviction is being appealed it shall have no effect on the denial of a license.
5.
If the person who wishes to operate an adult entertainment facility 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 F and each applicant shall be considered a licensee if a license is granted.
6.
The fact that a conviction of the applicant or applicant's spouse is being appealed shall have no effect on the disqualification.
E.
LICENSE APPLICATION.
1.
Any person desiring to obtain an adult entertainment facility license shall make application on a form provided by the chief of police or his designee.
2.
All applications for a license under this section shall be accompanied by a nonrefundable application fee of $500.00. An application shall not be considered to have been filed until the fee is paid and all information required by the application form has been submitted.
F.
LICENSE ISSUANCE.
1.
The chief of police shall approve the issuance of a license to an applicant within 30 days after receipt of an application unless the chief of police finds one or more of the following to be true:
a.
The location of the adult entertainment establishment is or would be in violation of subsection C;
b.
The applicant failed to supply all of the information requested on the application;
c.
The applicant gave false, fraudulent, or untruthful information on the application;
d.
An applicant is under 18 years of age;
e.
An applicant or an applicant's spouse is overdue in payment to the city of taxes, fees, fines, or penalties assessed against or imposed upon the applicant or the applicant's spouse in relation to an adult entertainment facility;
f.
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 an adult entertainment facility without a license, within two years immediately preceding the application. The fact that a conviction is being appealed shall have no effect on the denial of a license;
g.
The required application or renewal fee has not been paid;
h.
The applicant has not demonstrated that the owner of the sexually orientated business owns or holds a lease for the property or the applicable portion thereof upon which the sexually orientated business will be situated or has a legally enforceable right to acquire the same;
i.
An applicant or the proposed establishment is in violation of or is not in compliance with subsection G or L of this Section 27;
j.
An applicant or an applicant's spouse has been convicted of a crime:
i.
Involving:
(a)
Any of the following offenses as described in chapter 43 of the Texas Penal Code:
(c)
Sexual assault or aggravated sexual assault as described in chapter 22 of the Texas Penal Code;
(d)
Incest, solicitation of a child or harboring a runaway child as described in chapter 25 of the Texas Penal Code;
(e)
Possession or distribution of a controlled substance; or
(f)
Criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses:[;]
ii.
For which:
(a)
Less than two years have elapsed since the date of conviction, or the date of release from the terms of probation, parole, or deferred adjudication, or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
(b)
Less than five years have elapsed since the date of conviction, or the date of release from the terms of probation, parole, or deferred adjudication, or the date of release from confinement for conviction, whichever is the later date, if the conviction is a felony offense; or
(c)
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 offenses or combination of misdemeanor offenses occurring within any 24-month period;
2.
An applicant who has been convicted or whose spouse has been convicted of an offense listed in subsection F.1.j.i. may qualify for an adult entertainment facility license only when the time period required by subsection F.1.j.ii. has elapsed.
3.
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 adult entertainment facility.
4.
The license shall be posted in a conspicuous place at or near the entrance to the adult entertainment facility so that it may be easily read at any time.
G.
INSPECTION AND MAINTENANCE OF RECORDS.
1.
An applicant or licensee shall permit representatives of the police department, health department, fire department, and building inspections division to inspect the premises of an adult entertainment facility for the purpose of ensuring compliance with the law, at any time during the 30-day application period or after it is occupied or open for business.
2.
A person who operates an adult entertainment facility or his agent or employee commits an offense if he operates the establishment without maintaining a current list of all employees employed by the business, along with a complete updated application. A valid driver's license, state identification card, or passport, all with a photo, shall be required for all employment applications.
3.
A person who operates an adult entertainment facility 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, health department, fire department, or building inspections division at any item during the 30-day application period or after it is occupied or open for business.
4.
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.
2.
A license may be renewed by submission to the chief of police or his designee of an application on the form prescribed by the chief of police and payment of a nonrefundable renewal processing fee of $500.00.
3.
Application for renewal shall be made at least 30 days before the expiration date of the license. When application is made less than 30 days before the expiration date, the new expiration date will not be affected.
I.
SUSPENSION.
1.
The chief of police shall suspend a license for a period not to exceed 30 days if he determines that a license or an employee of a licensee has:
a.
Violated or is not in compliance with subsections C, G.2, or L of this section;
b.
Engaged in public intoxication while on the adult entertainment facility premises;
c.
Refused to allow an inspection of the adult entertainment facility premises as authorized by this section; or
d.
Knowingly permitted gambling by any person on the adult entertainment facility premises.
2.
When the chief of police is authorized to suspend a license under this section, he shall give the licensee the opportunity to pay a reinstatement fee of $200.00 rather than have the license suspended.
a.
Payment of this reinstatement fee shall be considered an administrative admission of the violation. However, this shall not be used as an admission of guilt in a criminal prosecution under this section.
b.
If the licensee does not pay the reinstatement fee before the expiration of the third working day after notification, he loses the opportunity to pay it and the chief of police shall impose the suspension.
c.
Each day in which a violation is permitted to continue shall constitute a separate cause for suspension.
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 or a reinstatement fee paid 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 adult entertainment facility during a period of time when the licensee's license was suspended;
e.
A licensee has been convicted of an offense listed in subsection F.1.j. for which the time period required has not elapsed;
f.
On two or more occasions within a 12-month period, an employee of the establishment committed in or on the licensed premises an offense listed in subsection F.1.j for which a conviction has been obtained.
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 section 22.01, Texas Penal Code; or
h.
A licensee is delinquent in payment to the city for hotel occupancy taxes, ad valorem taxes, or sales taxes related to the adult entertainment facility.
3.
The fact that a conviction is being appealed shall have no effect on the revocation of the license.
4.
Subsection J.2.c 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 an adult entertainment facility 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 J.2.e, an applicant may not be granted another license until the appropriate number of years required under subsection F.1.j has elapsed.
K.
APPEAL.
1.
If the chief of police is authorized to deny the issuance of a license, or suspend or revoke a license, the chief of police shall give written notice to the applicant or licensee or such intention.
a.
The notice shall provide that the denial of issuance, suspension, or revocation shall take effect at the expiration of the third working day after notification unless the license provides a written response to the chief of police before the expiration of the third working day.
b.
If a written response from the applicant or licensee is received by the chief of police before the expiration of the third working day, the suspension denial of issuance or revocation will be stayed pending a decision by the chief of police. The chief of police shall review the response before the rendering of a decision.
c.
The chief of police shall give written notice of this decision to the applicant or licensee.
d.
The decision by the chief of police is effective immediately and final pending any appeal.
Notice shall be deemed delivered by hand delivery to a licensee, owner, or employee of the establishment or by a posting of the notice at the usual business entrance of the establishment. Notice may also be sent by certified mail, return receipt requested. Such notice shall be mailed to the address listed in the license application for receipt of notice.
2.
Upon receipt of written notice of the denial, suspension, or revocation, the licensee whose application for a license has been denied or whose license has been suspended or revoked shall have the right to appeal to an appropriate court.
3.
An appeal to the appropriate court must be filed within 30 days after the receipt of notice of the decision of the chief of police or decision of the license appeal board, as applicable.
4.
The licensee or applicant shall bear the burden of proof in court.
L.
TRANSFER OF LICENSE.
1.
A person commits an offense if he transfers his license to another person or operates an adult entertainment facility under the authority of a license at any place other than the address designated in the application.
2.
A person commits an offense if he counterfeits, forges, changes, defaces, or alters a license.
M.
EXEMPTION FROM LOCATION RESTRICTIONS.
1.
If the chief of police denies the issuance of a license to an applicant because the location of the adult entertainment facility is in violation of subsection C, 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 location restrictions.
2.
If the written request is filed with the city secretary within the 10-day limit, a license appeal board 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.
There is created a license appeal board. It shall have the power to rule upon the appropriate disposition of applications for exemption from the location restriction for adult entertainment facilities.
4.
A hearing by the board may proceed only if five of the board members or alternates are present. The board shall hear and consider evidence offered by any interested person. The formal rules of evidence do not apply.
5.
The license appeal board may grant an exemption from the location restrictions of subsection C if it makes the following findings:
a.
That the location of the adult entertainment facility will not have a detrimental effect on nearby property or be contrary to the public safety or welfare;
b.
That the location of the adult entertainment facility will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban blight;
c.
That the location of the adult entertainment facility 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
d.
That all other applicable provisions of this section will be observed.
6.
In making the findings specified in subsection M, the board shall take into account among other things:
a.
Crime statistics of the location and its 2,000 foot radius, without regard to city boundaries, maintained by the appropriate law enforcement agency for the previous six month period;
b.
Tarrant Appraisal District appraisals for the location and its 2,000 foot radius, without regard to city boundaries, taking into account any decline or increase in property values;
c.
Vacancy rates of residential, commercial, or office space within the surrounding 2,000 foot radius, without regard to city boundaries; and
d.
Any evidence regarding the award or denial of any public or private grants for neighborhood conservation, urban renewal, or restoration for any property located within a 2,000 foot radius, without regard to city boundaries.
7.
The board shall grant or deny the exemption by a majority vote. Failure to reach a majority vote approving the exemption 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 license appeal board is final.
8.
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 adult entertainment facility is in violation of the locational restrictions of subsection C until the applicant applies for and receives another exemption.
9.
If the board denies the exemption, the applicant may not reapply for an exemption until at least 12 months have elapsed since the date of the board's action.
10.
The grant of an exemption does not exempt the applicant from any provisions of this section other that the locational restrictions.
N.
ADDITIONAL REGULATIONS FOR ADULT CABARETS.
1.
An employee of an adult cabaret while appearing in a state of nudity, semi-nudity, or simulated nudity commits an offense if he touches a customer or the clothing of a customer.
2.
A customer at an adult cabaret commits an offense if he touches an employee appearing in a state of nudity, semi-nudity, or simulated nudity.
3.
A licensee or 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 walkthrough of the premises without entering a closed area, excluding restrooms.
4.
No employee of an adult cabaret may appear in an area of the business visible to customers unless the employee completely and opaquely covers his or her genitals, pubic region, and pubic hair; anus; and, if female, her areolae. In addition, the employee is subject to the requirements of subsection T.
5.
No licensee, owner, operator, or manager of an adult cabaret shall permit an employee to violate subsection N.4, above.
6.
A licensee, operator or employee commits an offense if the licensee, operator or employee appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of the adult cabaret which can be viewed from the public right-of-way.
P.
ADDITIONAL REGULATIONS FOR NUDE MODEL BUSINESSES.
1.
A person commits an offense if he employs at a nude model business 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, semi-nudity, or simulated nudity in or on the premises of a nude model business. 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, semi-nudity, or simulated nudity, or knowingly allows another to appear in a state of nudity, semi-nudity, or simulated nudity, in an area of a nude model business premises which can be viewed from the public right-of-way.
4.
A person commits an offense if he places or permits a bed, sofa, or mattress in any room on the premises of a nude model business except that a sofa may be placed in a reception room open to the public.
5.
A licensee or employee of a nude model business 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 walkthrough of the premises without entering a closed area, excluding restrooms.
Q.
ADDITIONAL REGULATIONS FOR ADULT THEATERS AND ADULT 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, semi-nudity, or simulated 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, semi-nudity, or simulated nudity in or on the premises of an adult theater or adult motion-picture theater.
3.
It is a defense to prosecution under subsections Q.1 and Q.2 of this Section if the person under 18 years was in a restroom not open to public view or persons of the opposite sex.
R.
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 10 hours creates a rebuttal 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 an adult entertainment facility license, he rents or subrents a sleeping room to a person and, within 10 hours from the time the room is rented, he rents or subrents the same sleeping room again.
3.
For purposes of subsection R.2 of this section, the terms "rent" or "subrent" mean the act of permitting a room to be occupied for any form of consideration.
S.
REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS.
1.
A person who operates or causes to be operated an adult entertainment facility 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, videocassettes, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
a.
Upon application for an adult entertainment facility 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 customers 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 street or object and should be drawn to a 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.
The licensee commits an offense if he permits a manager's station to be unattended by an employee at any time a customer is present on 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 customer 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 customer is permitted access for any purpose, excluding restrooms, 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.
The licensee commits an offense if he permits access to a customer of any area of the premises that is not visible from the manager's station for any purpose, excluding restrooms;
g.
The owners, operator, and any agents and employees present on the premises shall ensure that the view area specified in subsection S.1.e. remains unobstructed by any doors, walls, merchandise, display racks, or other materials at all times that any customer is present in the premises and to ensure that no customer is permitted access to any area of the premises which has been designated as an area in which customers will not be permitted in the application filed pursuant to subsection S.1.a of this section;
h.
The premises of an adult bookstore, adult video store, adult novelty store, adult service establishment, nude model business, sex parlor, and sexual encounter center shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which customers are permitted access at an illumination of not less than 20 footcandles as measured a the floor level; and
i.
The licensee commits an offense if he permits illumination of any area of the premises to which customers have access to be less than 20 footcandles.
j.
No viewing rooms or booths of less than 150 square feet of floor space shall be occupied by more than one (1) person at any time.
k.
No licensee or manager shall allow openings or holes of any kind to exist between adjacent or adjoining viewing rooms or booths.
l.
No person shall make or attempt to make an opening or hole of any kind between adjacent or adjoining viewing rooms and booths.
m.
The licensee and any manager shall have a duty, during each business day, regularly to inspect the walls of all viewing rooms or booths to determine if any openings or holes exist.
n.
The licensee or any manager commits an offense if he permits any patron or customer access to a viewing room or booth where any opening or hole exists into an adjacent or adjoining viewing room or booth.
o.
This section shall not prohibit conduits for plumbing, heating, air conditioning, ventilation or electrical service, if the conduits are screened or otherwise configured so as to prevent their use as openings that would permit any portion of a human body to penetrate the wall or barrier separating viewing rooms or booths.
T.
ADDITIONAL REGULATIONS FOR ADULT ENTERTAINMENT FACILITY.
1.
Public and employee restrooms in an adult entertainment facility shall not, at any time, contain or be used for adult entertainment facility activity, video reproduction equipment, or sexually oriented merchandise.
2.
An adult arcade, adult bookstore, adult video store, adult novelty store, adult service establishment, adult cabaret, adult theater, adult motion-picture theater, nude model business, sex parlor, and sexual encounter center shall at all times maintain at least one legible sign posted in a conspicuous place at each public entrance easily visible by all persons prior to entry into the establishment with lettering of at least one-inch in height in English and Spanish which contains the following statement:
"THIS IS AN ADULT ENTERTAINMENT FACILITY ESTABLISHMENT WHICH REGULARLY FEATURES (description of the type of activity licensed to be conducted). IF NUDITY OR ACTIVITY OF A SEXUAL NATURE OFFENDS YOU DO NOT ENTER. NO PERSONS UNDER EIGHTEEN YEARS OF AGE ALLOWED ENTRY (or "NO PERSON UNDER TWENTY-ONE YEARS OF AGE ALLOWED ENTRY," if alcohol is served).
3.
During hours of darkness when an adult entertainment facility is in operation, all required parking and all outdoor pedestrian areas on the premises of the adult entertainment facility shall be lighted to an intensity of not less than 10 footcandles measured at ground level.
4.
A licensee, operator, or employee commits an offense if the licensee, operator, or employee appears in a state of nudity or knowingly allows another person to appear in a state of nudity in an adult entertainment facility, unless the person is an employee who, while in a state of nudity, is on a stage (on which no customer is present) that is at least eighteen (18) inches above the floor, and that is at least six (6) feet from any customer.
5.
It is an offense for an employee, while in a state of nudity in an adult entertainment facility, to receive directly any pay or gratuity from any customer, or for any customer to pay or give any gratuity directly to any employee, while that employee is in a state of nudity in an adult entertainment facility. Such gratuity or pay may be provided to such an employee through a tip receptacle, located more than six (6) feet from the nearest point of the performance stage where the employee is in a state of nudity, or may be paid to an employee that is not in a state of nudity, as part of the customer's bill.
6.
A licensee or operator commits an offense if the licensee or operator fails to display a sign on the interior of the adult entertainment facility premises notifying customers and employees of the prohibitions described in this section. The sign must be prominently and continuously displayed where customers enter the premises, and immediately adjacent to each performance stage, and must state in letters at least two inches high:
TOUCHING OR TIPPING AN EMPLOYEE WHO IS IN A STATE OF NUDITY IS A CRIME (MISDEMEANOR) PUNISHABLE BY A FINE OF UP TO $2,000.00. CUSTOMERS SHALL REMAIN AT LEAST SIX FEET FROM ALL PERFORMANCE STAGES.
The chief of police may also require, at the time of issuance or renewal of the license, the licensee to display the sign in a language other than English if he determines that a substantial portion of the expected customers speak the other language as their familiar language. Upon notification, a licensee commits an offense if the sign does not contain this language in the required language, in addition to English.
7.
A licensee or operator commits an offense if the licensee or operator fails to prominently and continuously display a glow-in-the-dark line on the floor of the adult entertainment facility, at least two (2) inches wide, marking a distance of six feet from each performance stage on which an employee in a state of nudity may appear in accordance with subsection T.4.
U.
DEFENSES.
1.
It is a defense to prosecution under subsections C, D, and P that a person appearing in a state of nudity, semi-nudity, or simulated 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:
i.
Which has no sign or other advertising visible from the exterior of the structure indicating a nude or partially nude person is available for viewing; and
ii.
Where in order to participate in a class a student must enroll at least three days in advance of the class; and
iii.
Where no more than one nude or semi-nude model is on the premises at any one time.
2.
It is a defense to prosecution under subsections C and D that the item of descriptive, printed, film, or video material offered for sale or rental:
V.
EMPLOYEE PERMITS.
1.
Permit required.
a.
It shall be unlawful for any person who does not hold a permit to act as a manager or employee of an adult entertainment facility.
b.
It shall be the duty of the licensee, operator and owners of each adult entertainment facility to ensure that no person acts as a manager or employee of an adult entertainment facility unless that person holds a permit.
2.
Issuance of permits.
a.
Any person who desires to obtain an original or renewal permit shall make application in person at the offices of the police department between the hours of 8:00 a.m. and 12:00 p.m., Monday through Friday, city observed holidays excepted. The application shall be made under oath upon a form prescribed by the chief of police and shall include:
i.
The name, home street address and mailing address (if different) of the applicant;
ii.
Proof of the date of birth of the applicant and the identity of the applicant, including at least one photographic identity card issued by a governmental agency;
iii.
A list of any criminal charges pending, convictions, and time of service in jail or prison as related to any applicable offense that is specified in subsection F of this section; and
iv.
Two passport-type photographs of the applicant of a size specified by the chief of police, which shall become part of the photographic identity card if a permit is issued.
b.
Each application shall be accompanied by a nonrefundable processing fee of $60.00. Each applicant shall be required to provide fingerprints to be used to verify the applicant's identity and criminal history information. Each applicant shall sign a waiver and authorization form authorizing the chief of police to request on behalf of the applicant criminal history reports from the Texas Department of Public Safety and any appropriate federal agency.
c.
The chief of police shall issue the permit within ten days from the date of filing of the application unless he finds that the application is incomplete or that the applicant has been convicted of or spent time in jail or prison for an offense specified in the applicable provisions of subsection F of this section within the time specified therein. If the application is not granted, then the applicant shall be given written notice of the grounds and of his right to provide a written response as provided by subsection K of this article, within ten days from the date of filing of the application.
d.
Each permit issued by the chief of police shall consist of two photographic identification cards.
i.
Each employee of an adult entertainment facility shall have an identification card, called a personal card, to be carried by the employee at all times while on the premises of the adult entertainment facility where the individual is employed.
ii.
Each employee of such a business shall be issued a second identification card, called an on-site card, to be left on the premises of the adult entertainment facility where the individual is employed.
e.
If the chief of police fails to issue or deny a permit application within the time specified in subsection V.2.c of this section, then the applicant shall, upon written request, be immediately issued a temporary permit which shall be valid until the third day after the applicant is given notice of the decision of the chief of police.
f.
If any personal card or on-site card is lost or stolen, the holder thereof shall immediately notify the chief of police and request a replacement, which shall be issued for a fee of $35.00 within three days following verification of the identity of the holder.
g.
No permit application shall be accepted, nor shall a permit be issued to any person who does not provide proof that he is at least 18 years old. Any permit issued by virtue of any misrepresentation or error to any person under age 18 shall be void.
3.
Term, transfer, amendment.
4.
Display.
a.
Each manager or employee shall conspicuously display his personal card upon his person at all times while acting as a manager or employee of an adult entertainment facility.
b.
Each manager or employee shall provide his on-site card to the manager or on-site manager in charge of the adult entertainment facility to hold while the manager or employee is on the premises.
c.
In any prosecution under this section, it shall be presumed that the actor did not have a permit unless the permit was on display as required under subsection V.4.a. of this subsection.
5.
Revocation.
In the event that the chief of police has reasonable grounds to believe that any permit holder has been convicted of or spent time in jail or prison for an offense as specified in the applicable provision of subsection F of this article within the time specified therein, then the chief of police may revoke the permit under the procedures set out in subsection J of this article.
6.
If the chief of police is authorized to deny the issuance of a permit, or revoke a permit as provided in this section, the applicant or permittee may appeal the decision of the chief of police in accordance with the procedures in subsection K of this article.
W.
HOURS OF OPERATION.
No adult entertainment facility, except for an adult motel, may remain open at any time between the hours of twelve o'clock (12:00) a.m. (midnight) and eight o'clock (8:00) a.m. on weekdays and Saturdays, and twelve o'clock (12:00) a.m. (midnight) and two o'clock (2:00) p.m. on Sundays.
(Ordinance 1394-2023 adopted 11/28/2023)