§ 12-1140. Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Achromatic means colorless, lacking in saturation or hue, without limitation, grays, tans and light earth tones shall be included, but white and black and any bold coloration that attracts attention shall be excluded from the definition of achromatic.

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 audio center or adult video center means any place at which any of the following activities occurs:

(1)

Inbound or outbound telephone or other audio communications in which a topic or purpose of the communication between an occupant of the premises and a third party is the discussion or description of specified sexual activities or specified anatomical areas or is otherwise pornographic In nature for consideration;

(2)

Video or audio broadcasting, whether live, delayed, by film, by taperecording or otherwise, of specified sexual activities, specified anatomical areas or pornographic material for consideration; or

(3)

Filming, taping or otherwise creating video or audio recordings including, but not limited to, films, movies, videotapes, DVDs, audiotapes or compact discs, that are broadcast, sold, manufactured or distributed for consideration.

Adult bookstore, adult novelty store or adult video store means a commercial establishment which as one of its principal business purposes openly advertises or displays or offers for sale or rental for any form of consideration any one or more of the following:

(1)

Books, magazine, periodicals or other printed matter, or photographs, films, motion pictures, videocassettes or video reproductions, slides, or other visual representations that depict or describe specified sexual activities or specified anatomical areas; or

(2)

Instruments, devices, or paraphernalia that are designed for use in connection with specified sexual activities or designed to sexually depict specified anatomical areas.

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

(1)

Persons who appear in a state of nudity;

(2)

Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or

(3)

Films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction of 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, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified anatomical areas or by specified sexual activities; and has a sign visible from the public right-of-way which advertises the availability of such photographic reproductions;

(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 motion picture theater means a commercial establishment where, for any form of consideration, films, motion pictures, videocassette, slides, or similar photographic reproductions are regularly shown which are characterized by the depictions or descriptions of specified anatomical areas or by specified sexual activities.

Adult theater means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear nude or in a seminude condition for live performances that are characterized by the exposure of specified anatomical areas or by specified sexual activities.

Chief of police means the chief of police for the city or his designee.

City manager means the city manager or his designee.

Employee.

(1)

The term "employee" means a person who performs any service on the premises of a sexually oriented business on a full-time, part-time or contract basis, whether or not the person is designated an employee, independent contractor, agent or otherwise and whether or not said person is paid a salary, wage or other compensation by the operator of said business.

(2)

The term "employee" does not include a person exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises.

Entertainer means a person paid to provide entertainment to customers at a sexually oriented business; entertainment may consist of dancing, singing, modeling, acting, other forms of performing, or individual conversations with customers whereby the entertainer is paid any form of remuneration directly or indirectly for such conversations.

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 or specified sexual activities 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 business purposes, for a fee, tip, or other consideration.

Establishment , when used as a verb, 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.

License refers to both a sexually oriented business license and a sexually oriented business employee license, unless otherwise specified.

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; and in the case of an employee license, a person in whose name a license has been issued authorizing employment in a sexually oriented business.

Manager means a person designated by the owner or operator of a sexually oriented business to be responsible for the operation of such business at a particular location at a particular time; when the owner, proprietor, or other principal in the business is present, such person may be considered the manager.

Manager's station means an office or place within a structure allowing for a manager to have visual observation of places and persons within the structure as required and defined within this section.

Minor means a natural person under 18 years of age.

Nude model studio.

(1)

The term "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.

(2)

The term "nude model studio" does not include:

a.

A proprietary school licensed by the state or a college, junior college or university supported entirely or in part by public taxation;

b.

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 in a structure:

1.

That has no sign visible from the exterior of the structure and no other advertising that indicates a person in a state of nudity or seminudity is available for viewing;

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 model who is in a state of nudity or is seminudity is on the premises at any one time.

Nudity or state of nudity means:

(1)

The appearance of a human bare buttock, 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.

On-site card means the personal photographic identification card for an employee issued by the chief of police that must be provided by the employee to the manager or on-site manager in charge of the sexually oriented business as set forth in this article.

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.

Operator means any person who has managerial control of the on-site, day-to-day operations of a sexually oriented business, regardless of whether that person is a designated operator of the sexually oriented business.

Personal card means the personal photographic identification card for an employee issued by the chief of police that must be displayed on the employee as set forth in this article.

Principal means over 35 percent of customers, volume of sales, stock in trade, display areas, or presentation time, or any combination thereof 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 being considered a separate title or object.

Property means a tract of real property.

Residential district means a one-family, two-family, townhouse or multiple-family district as defined by the zoning ordinances of the city.

Residential use means a single-family, townhouse, condominium, duplex, triplex, fourplex, mobile home, manufactured home, or multiple-family dwelling.

School means any public or private nursery, preschool, child care center, learning center, elementary or secondary school.

Seminude or in a seminude condition means the showing of the female breast below a horizontal line across the top of the areola at its highest point or the showing of the male or female buttocks.

(1)

The term "seminude" or "in a seminude condition" includes the entire lower portion of the human female breast.

(2)

The term " seminude" or "in a seminude condition" does not include any portion of the cleavage of the human female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel provided the nipple or areola is not exposed in whole or in part.

(3)

The term "seminude" means a state of dress in which clothing covers no more than the genitals, pubic region, and areola of the female breast, as well as portions of the body covered by supporting straps or devices.

Sexual encounter center.

(1)

The term "sexual encounter center" means a business or commercial enterprise that, for any form of consideration, includes:

a.

Any form of physical contact, including massage, by a person of the buttock, anus, male genitals, female genitals, or female breast of another person for the primary purpose of sexual stimulation or sexual gratification and regardless of whether any of the persons is in a state of nudity or seminudity; or

b.

Body painting of the buttock, anus, male genitals, female genitals, or female breast of another person, whether those of the patron or employee, for the primary purpose of sexual stimulation or sexual gratification and regardless of whether any of the persons is in a state of nudity or state of nudity or seminudity.

(2)

The term "sexual encounter center" does not include any massage establishment lawfully registered under V.T.C.A., Occupations Code ch. 455, at which services are only provided by persons registered as a massage therapist under V.T.C.A., Occupations Code ch. 455.

Sexually oriented business.

(1)

The term "sexually oriented business" means an adult arcade, adult audio or video center, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center or other commercial enterprise a principal 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 to the customer.

(2)

The term "sexually oriented business" does not include:

a.

A bookstore, movie theater, or video store, unless that business is an adult bookstore, adult motion picture theater, or adult video store;

b.

A business operated by or employing a licensed psychologist, licensed physical therapist, licensed athletic trainer, licensed cosmetologist, or licensed barber engaged in performing functions authorized under the license held; or

c.

A business operated by or employing a licensed physician or licensed chiropractor engaged in practicing the healing arts.

A commercial establishment may have other business purposes that are not a sexually oriented business or related to a sexually oriented business. Such other business purposes will not serve to exempt such commercial establishments from being categorized as a sexually oriented business so long as one of its business purposes is a sexually oriented business.

Specified anatomical areas means:

(1)

The human male genitals in a discernibly aroused state, even if completely and opaquely covered; or

(2)

Less than completely and opaquely covered human genitals, pubic region, vulva, anus, anal cleft, buttocks or a female breast below a point immediately above the top of the areola.

Specified criminal activity means any of the following offenses:

(1)

Prostitution or promotion of prostitution; aggravated promotion of prostitution, compelling prostitution; obscenity, dissemination of obscenity; sale, distribution or display of harmful material to a minor; sexual performance by a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; engaging in organized criminal activity; sexual assault or aggravated sexual assault; incest, solicitation of a child or harboring a runaway child; molestation of a child; gambling; offenses involving necrophilia or bestiality; or distribution of a controlled substance; or any similar offenses to those described above as well as criminal attempt, conspiracy or solicitation to commit any of the foregoing offenses, under the criminal or penal statutes of the states, country, county or city for which:

a.

Less than two years have elapsed since the date of conviction or the date of release from the terms of community supervision, probation, parole or deferred disposition 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 conviction or the date of release from the terms of community supervision, probation, parole or deferred disposition or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a felony offense; or

c.

Less than five years have elapsed since the date of conviction or the date of release from the terms of community supervision, probation, parole or deferred disposition or the date of release from confinement imposed for the 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)

The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or a person residing with the applicant.

Specified sexual activities means 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, but not limited to, intercourse, oral copulation, masturbation, or sodomy; or

(3)

Excretory functions as part of or in connection with any of the activities set forth in subsections (1) and (2) of this definition.

Substantial enlargement means the increase in floor areas occupied by the business by more than 25 percent, as the floor areas exist on:

(1)

The date the ordinance from which this article is derived takes effect; or

(2)

For any premises not used as a sexually oriented business on the date the ordinance from which this article is derived takes effect, the date an application for a license to use the premises as a sexually oriented business is received by the city designating the floor area of the structure or proposed structure in which the sexually oriented business will be conducted, regardless of any subsequent changes in applicants, licenses, owners, or operators of the premises or the sexually oriented business.

Transfer of ownership or control includes any of the following:

(1)

The sale, lease, or sublease of the business;

(2)

The transfer of securities or ownership interests which constitutes a direct, indirect, legal, equitable or beneficial 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 to which a transfer of any 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 of control.

(Code 1982, § 27-1; Ord. No. 88-25, § 2, 7-5-1988)