§ 18-52. 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:

Adult bookstore, adult video store or adult paraphernalia store means a commercial establishment which as one of its principal business purposes offers for sale or rental for money or any other form of compensation or consideration any one or more of the following:

(1)

Books, magazines, periodicals or other printed matter, photographs, films, motion pictures, videocassettes or video reproductions, computer programs, slides or other visual representations which depict or describe specified sexual activities or specified anatomical areas, as defined in this section; or

(2)

Instruments, devices, or paraphernalia that are designed for use in connection with specified sexual activities, as defined in this section.

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

(1)

Persons who appear totally nude, semi-nude or in a state of nudity, as defined in this section;

(2)

Live performances which are characterized by the exposure of specified anatomical areas or specified sexual activities, as defined in this section; or

(3)

Films, motion pictures, computer simulations, videocassettes, video reproductions, slides or other reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas, as defined in this section.

Adult motel means a hotel, motel or similar commercial establishment that:

(1)

Offers a sleeping room to the public for money or any other form of compensation or consideration; and provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides, or other reproductions which are characterized by specified sexual activities or specified anatomical areas, as defined in this section; 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

(3)

Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than ten hours.

Adult movie arcade or 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 displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas, as defined in this section.

Adult movie picture theater means a commercial establishment where for money or any other form of compensation or consideration, films, motion pictures, videocassettes or video reproductions, slides or similar photographic reproductions are regularly shown and are characterized by the depiction or description of specified sexual activities or specified anatomical areas, as defined in this section.

Adult theater means a theater, concert hall, auditorium or similar commercial establishment which regularly features live performances characterized by the exposure of specified sexual activities or specified anatomical areas, as defined in this section.

Allow means to knowingly let happen, to cause, to knowingly suffer or permit, and includes the knowing failure to prevent.

Applicant means the individual or entity submitting the application for a SOBP. Where appropriate, the term "applicant" includes a written designated agent of the applicant.

Cashier means any employee who handles money or any other form of compensation or consideration from clients of an enterprise for services or products provided.

Child care facility means a building used as a day nursery, children's boarding home, child placement agency or other place for the care or custody of children under 15 years of age, licensed by the state pursuant to Texas Human Resources Code ch. 42.

Church or place of religious worship means a facility, including all structures and grounds, at which persons regularly assemble for worship, or that is intended primarily for purposes connected with faith or for propagating a particular form of belief.

Conviction means a judgment finding a person guilty of the offense charged. The term "conviction" does not include an order of a court deferring further proceedings without entering an adjudication of guilt for an offense to which a person has entered a plea of guilty or nolo contendere, unless there is a violation of a condition of the community supervision imposed upon the defendant and a subsequent entry of an adjudication of guilt. Where an adjudication of guilt is entered, it shall be considered a conviction, regardless of whether a sentence for the offense was imposed, probated or suspended.

Dwelling means a house, duplex, apartment, townhouse, condominium, mobile home or any other building used for residential purposes, whether single-family or multifamily, attached or detached, and regardless of whether tenant or owner occupied.

Employee means any person who works in or about a sexually oriented business enterprise (SOBE) and renders any service whatsoever to the patrons of a SOBE and receives money, gratuities or any other form of compensation or consideration for such service or work from the enterprise operator, owner of the SOBE or from the patrons thereof, excepting those persons who have an independent contractor relationship with the SOBE.

Enterprise operator means an owner, manager or other natural person principally in charge of a SOBE.

Entertainment service means any service provided by a cashier, enterprise operator, server, employee or independent contractor or other person at a SOBE. The term "entertainment service" does not include a person who provides no other services at the SOBE other than repairs or maintenance to the premises or equipment.

Escort means an individual who, in exchange for consideration, agrees or offers to:

(1)

Provide a service intended or calculated to sexually stimulate or sexually gratify the person receiving the service; and

(2)

Where such services are characterized by the individual providing the services as constituting, or including, acting as a private escort, date, guide, or companion.

Escort agency means a business that, for consideration, furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes and offers a service intended to provide sexual stimulation or sexual gratification to the customer.

Hospital means a building used to provide in-patient medical care for the sick or injured and is licensed pursuant to the Texas Hospital Licensing Law, Texas Health and Safety Code ch. 241, or is operated by an agency of the federal government, or is a convalescent facility licensed pursuant to the Texas Health and Safety Code ch. 242.

Interested party means any person who owns or leases real property within 1,500 feet of a SOBE, any city official who is elected by residents of the city, and the chief of police, but does not include the applicant.

Live exhibition means a live performance by one or more individuals. Live exhibitions include dancing, modeling, stripping, juggling, acrobatic acts, wrestling, pantomime, and similar performance activities.

Nude modeling studio means any place where a person appears in a state of nudity or displays specified anatomical areas, to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by another person who pays money or any form of consideration.

Nudity or state of nudity means:

(1)

Displaying, or exposing to view, all, or any portion of, the following areas of the human body:

a.

A buttock;

b.

An anus;

c.

The genitalia or pubic region;

d.

The areola of a female breast; or

(2)

A state of dress that fails to cover, opaquely, all or any portion of, the following areas of the human body:

a.

A buttock;

b.

An anus;

c.

The genitalia or pubic region;

d.

The areola of a female breast; or

(3)

A state of dress, or the application of liquid latex, paint, makeup, or the employment of other materials or devices, that has the purpose or effect, of simulating the appearance of all, or any portion of, the following areas of the human body:

a.

A buttock;

b.

An anus;

c.

The genitalia or pubic region, or

d.

The areola of a female breast.

(4)

The term "nudity" or "state of nudity" do not include the incidental and unintentional display or exposure of the areola of a female breast, by a person who is in the act of breastfeeding a child.

Operate or cause to be operated means cause to function or to put or keep in operation. A person may be found to be operating or causing to be operated a SOBE whether or not that person is an owner, part owner, or licensee of the business.

Patron means any paying or nonpaying customer or client of a SOBE, including members of the public or club members invited or admitted to a SOBE.

Penal institution means a place designated by law for confinement of persons arrested for, charged with, or convicted of an offense.

Principal business or primary business means:

(1)

A business where 50 percent or more of gross floor area is devoted to the sale, display or storage of items that depict or describe specified sexual activities or specified anatomical areas, as defined herein, or that are designed for use in connection with specified sexual activities; or

(2)

A business where 50 percent or more of gross receipts are derived from the sale or rental of items that depict or describe specified sexual activities or specified anatomical areas, as defined herein, or that are designed for use in connection with specified sexual activities.

Public building means a building used by a federal, state or local government that is open to the general public.

Public park means a tract of land maintained by a federal, state, or local government dedicated for public use and accessible to the general public for recreational purposes, not including public roads, walkways, easements, and rights-of-way. This term "public park" does include locations owned by nonprofit organizations that provide educational and recreational facilities.

Regulations means regulations adopted by the city council governing the operation of sexually oriented business enterprises (SOBEs).

School means a facility, including all attached playgrounds, dormitories, stadiums and other appurtenances that are part of the facility used for the primary purpose of instruction or education, including primary or secondary schools, colleges and universities, both public and private.

Semi-nude means a state of dress in which clothing, or other materials or devices, including supporting straps, opaquely covers no more than the buttocks, anus, genitalia, and areola of a female breast.

Serve means an individual who serves food or beverages to patrons in a SOBE, and includes waiters, waitresses, hosts, hostesses, and bartenders.

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 totally nude, semi-nude or in a state of nudity.

Sexually oriented business enterprise (SOBE) means a sex parlor, nude modeling studio, sexually oriented modeling studio, love parlor, adult bookstore, adult movie picture theater, adult theatre, adult video arcade, adult movie arcade, adult video store, adult motel, adult cabaret, escort agency, and sexual encounter center, and includes any 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 designed or intended to provide sexual stimulation or sexual gratification to the customer. The term "sexually oriented business enterprise (SOBE)" shall not be construed to include a:

(1)

Business operated by or employing licensed psychologists, licensed physical therapists, licensed athletic trainers, licensed cosmetologists, or licensed barbers that, as the primary business purpose, performs functions authorized under the occupational license held;

(2)

Business operated by, or employing, a licensed physician or licensed chiropractor that, as a major business purpose, is engaged in practicing the healing arts;

(3)

Massage establishment which is properly registered under ch. 752, Acts of the 69th Legislature, Regular Session, 1985 (Vernon's Ann. Civ. St., Texas Civil Statutes, art. 4512K), as amended;

(4)

Bookstore, movie theater, or video store, unless that business is an adult bookstore, adult movie theater, or adult video store as defined in these regulations;

(5)

Theater, concert hall, auditorium or similar commercial establishment unless that business is an adult theater as defined in these regulations; or

(6)

Tanning facility that is properly licensed pursuant to the Texas Health and Safety Code ch. 145, the Tanning Facility Act.

Sexually oriented business permit (SOBP) means a sexually oriented business permit issued and regulated pursuant to these regulations.

Sexually oriented modeling studio means any place where a person appears in a state of nudity or displays specified anatomical areas as defined herein, to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by another person who pays money or any other form of compensation or consideration. The term "sexually oriented modeling studio" does not include a place where modeling classes are operated:

(1)

By a proprietary school licensed by the state, or by a 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.

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

b.

Where, in order to participate in a class, a student must enroll at least three days in advance of the class; and

c.

Where no more than one nude or semi-nude model is on the premises at the same time.

Specified anatomical areas means human genitals in a state of sexual arousal, whether clothed or nude.

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, whether clothed or nude;

(2)

Sex acts, 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) of this definition.

Totally nude means a state of dress in which any portion of a person's pubic region, genitals or anus is displayed or exposed to view and includes a state of dress in which material is painted or applied to the body, such as paint, liquid latex or any device or covering is employed, with the intention or effect of giving the appearance of, or simulating, a state of dress in which any portion of a person's pubic region, genitals or anus is displayed or exposed to view.

Transfer of ownership or control means:

(1)

The sale, lease, or sublease of the business;

(2)

The transfer of a controlling interest in the business, whether by sale, exchange, gift or other means; or

(3)

The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business.

(Ord. No. 348, § 5, 9-11-2006)