§ 18.241. Definitions.

In this article:

Adult oriented business means a group of businesses involved in providing entertainment or amusement to a person or persons, such a type of business being an adult arcade, adult bookstore, adult cabaret, adult escort agency, adult massage establishment, adult motel, adult theater, adult novelty store, adult service establishment, adult video store, sex parlor, sexual encounter center, nude modeling studio, or other adult oriented business. "Other adult oriented business" also includes any other commercial enterprise, that has as a primary business purpose of offering of a service or the selling, renting or exhibiting of material, devices or any other items, intended to provide sexual stimulation or sexual gratification to its customers, and which material, devices or any other items 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. The following definitions for various types of adult entertainment uses shall be applicable:

(1)

"Primary business purpose", is defined to mean that a main purpose or major "drawing card" of the business, among any other primary or secondary business purposes, is providing sexual stimulation or gratification through the offering of a service or the selling, renting or exhibiting of material, devices or any other items intended to provide sexual stimulation or sexual gratification to its customers and which material, devices or any other items 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, but is not intended to include businesses whose entire activities might only be an incidental cause of sexual stimulation or gratification, and whose activities do not involve nudity nor material, devices or any other items distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, with "incidental cause" defined as happening as a chance or undesigned feature of something else; random; not of prime concern; subordinate to; or, as in accidentally cause. "A primary business purpose" of providing sexual stimulation or gratification may be demonstrated by the presence of one or more of the following factors and terms:

a.

The exclusion of minors, persons under the age of 18 years, from the establishment or premises of the building by law or by option of the establishment, due to in part or in whole, to the offering of a service or the selling, renting or exhibiting of devices, material, merchandise 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; or,

b.

The exclusion of minors, persons under the age of 18 years, from any portion of the overall floor space of premises containing merchandise displayed for sale and open to customers, excluding restroom or dressing rooms, by law or by option of the establishment, due to in part or in whole, to the offering of a service or the selling, renting or exhibiting of devices, material, merchandise 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; or,

c.

The visibility, prominence or accessibility to customers of material distinguished by or characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas; or,

d.

A significant or substantial portion of the retail sales or revenue, the retail value of inventory, amount of retail floor space, amount of display areas or the amount of inventory attributable to or composed of material, services or products distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. ("Inventory" shall be measured with all titles or objects available on the premises for sale or rental including each of those items that are identical, or considered a separate title or object. "Significant or substantial portion" means more than an insignificant or incidental portion, does not depend upon a specific percentage or ratio, and does not necessarily mean a majority or predominant amount); or,

e.

Any other fact, circumstance, or evidence which is relevant to demonstrate the type and quantity of merchandise or service that the establishment sells, rents, offers for sale or rent, displays or exhibits as constituting or composing a primary business purpose of the business.

Adult arcade means a type of adult oriented business involving or consisting of any place or premises to which the public is permitted or invited wherein coin-operated, token-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 an emphasis on matter depicting or describing specified sexual activities or specified anatomical area, as one of its primary business purposes.

Adult bookstore means a type of adult oriented business involving or consisting of any place or premises of a commercial establishment which as one of its primary business purposes, engages in the offering for sale or rental, for any form of consideration, any one or more of the following:

(1)

Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, digital video discs, video cassettes or video reproductions, slides, or other visual representations which depict or describe specified sexual activities or specified anatomical areas, 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

(2)

Instruments, devices including genital stimulation devices, or paraphernalia which are designed for use in connection with specified sexual activities. "Instruments, devices including genital stimulation devices, or paraphernalia which are designed for use in connection with specified sexual activities" does not include items used for birth control, for prevention of sexually transmitted diseases or any other such items available only by prescription from licensed pharmacies.

Adult cabaret means a type of adult oriented business use involving or consisting of any place or premises of a nightclub, bar, restaurant, or similar commercial establishment that has a primary business purpose of the offering to customers of live entertainment, that includes entertainment which is intended to provide sexual stimulation or sexual gratification to such 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," 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"; or

(4)

That regularly features live performances such as dancing that is characterized by the exposure of any portion of the human form other than the pubic region.

Adult massage establishment means a type of adult oriented business involving or consisting of any place or premises of any establishment or agency which that has as one of its primary business purposes of giving massages for a fee or other consideration, at the establishment or on a home-call basis, that is not licensed or not operated within strict compliance with applicable statutory law and the regulatory rules promulgated by Texas Department of State Health Services, or other regulatory agency, with respect to all licensing requirements and rules of the State of Texas, and where employees engage in any form of specified sexual activities with customers.

Adult motel means a type of adult oriented business involving or consisting of any place or premises of a hotel, motel or similar commercial establishment which:

(1)

Offers accommodations to the public for any form of consideration and provides patrons with television transmission to rooms of films, motion pictures, video cassettes, slides, or other pornographic reproductions which are distinguished or characterized by an emphasis on matters depicting or describing specified sexual activities or specified anatomical areas as one of its primary business purposes; 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 novelty store means a type of adult oriented business involving or consisting of any place or premises of a commercial establishment which offers for sale or rental for any form of consideration, any one or more of the following: Instruments, devices, including genital stimulation devices, or other paraphernalia which are designed or manufactured for use in connection with specified sexual activities regardless of the nature of any other products or services sold or provided, but not including items used for bona fide birth control or for prevention of sexually transmitted diseases, and not including any items available for purchase only by prescription from licensed pharmacies.

Adult service establishment means a type of adult oriented business involving or consisting of any place or premises of a commercial establishment which 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 or simulated nudity.

Adult theater means a type of adult oriented business involving or consisting of any place or premises of a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, video reproductions, slides or other visual representations, or any combination thereof, are regularly shown which are distinguished or characterized by an emphasis on matters depicting or describing specified sexual activities or specified anatomical areas, as one of its primary business purposes.

Adult video store means a type of adult oriented business involving or consisting of any place or premises of a commercial establishment which as one of its primary business purposes, engages in the offering for sale or rental, for any form of consideration, any one or more of the following:

(1)

Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe specified sexual activities or specified anatomical areas, or 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

(2)

Instruments, devices including genital stimulation devices, or paraphernalia which are designed for use in connection with specified sexual activities. "Instruments, devices including genital stimulation devices, or paraphernalia which are designed for use in connection with specified sexual activities" does not include items used for birth control, for prevention of sexually transmitted diseases or any other such items available only by prescription from licensed pharmacies.

Bar means a business which offers its customers alcoholic beverages for on-premise consumption, and derives 25 percent or more of its income from the sale of alcoholic beverages for on-premise consumption.

Customer means any person who:

(1)

Is allowed to enter an adult oriented business in return for the payment of an admission fee or any other form of consideration or gratuity; or

(2)

Enters an adult oriented business and purchases, rents, or otherwise partakes of any merchandise, goods, entertainment, or other services offered therein; or

(3)

Is a member of and on the premises of an adult oriented business operating as a private club.

Distinguished by or characterized by an emphasis upon means the dominant or principal theme of the object referenced. For instance, when the phrase refers to films "which are distinguished or characterized by an emphasis upon the exhibition or display of specified sexual activities or specified anatomical areas" the films so described are those whose dominant or principal character and theme are the exhibition or display of "specified sexual activities" or "specified anatomical areas."

Employee means any person who renders any service whatsoever to the customers of an adult oriented business or who works in or about an adult oriented business and who receives compensation for such service or work from the operator or owner of the adult oriented business or from its customers.

Escort means a person who, for consideration, accompanies or offers to accompany another person and to model lingerie, perform a striptease, or to view sexual nudity by, or display sexual nudity to, the other person.

Escort agency means an adult oriented business involving or consisting of any place or premises where a person or business association who, which as one of its primary business purposes, furnishes, offers to furnish, or advertises to furnish escorts, or any combination thereof, for a fee, tip, or other consideration.

Instruments, devices including genital stimulation devices, or paraphernalia which are designed for use in connection with specified sexual activities does not include items used for birth control, for prevention of sexually transmitted diseases or any other such items available only by prescription from licensed pharmacies.

Manager means any person (1) who supervises, directs or manages any employee of an adult oriented business or (2) who is charged by the licensee, owner, or operator with directly supervising the operation of the adult oriented business and with monitoring and observing all areas of the enterprise to which customers are admitted at all times during which the enterprise is open for business or customers are on the premises.

Nude model studio means an adult oriented business involving or consisting of any place or premises where a person who appears in a state of 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, except as provided under exclusions to adult oriented businesses.

Nudity or state of nudity means less than completely and opaquely covered:

(1)

Human genitals, pubic region, or pubic hair;

(2)

All portions of a female breast below a point immediately above the top of the areola continuing downward to the lowest portion of the breast;

(3)

Human buttock; or

(4)

Any combination of the above.

Operated 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, an adult entertainment use whether or not that person is an owner, part owner, licensee, or manager of the establishment.

Person means an individual, firm, association, organization, partnership, trust, foundation, company or corporation.

Premises means the building of the adult entertainment establishment.

Regularly means featuring, promoting, performing, permitting, doing or advertising an event or other happening or occurrence on a recurring or routine basis involving any length of time.

Residential district means a single-family, patio home, duplex, townhouse, multifamily or mobile home zoning district as defined in the general zoning ordinance.

Residential use means use of a structure as a residence as defined in the general zoning ordinance.

Sexual encounter center means business or commercial enterprise that offers for a fee or other consideration, any physical contact in the form of wrestling or tumbling between sexual activities between male and female persons and activities when one or more of the persons is in a state of nudity or simulated nudity.

Sex parlor means a type of adult oriented business involving or consisting of any place or premises of an establishment that is operated for the purpose of giving massages for a fee or other consideration at the establishment or on a home-call sexual stimulation, sexual gratification or engage in, in combination with a massage or other physical contact, including specified sexual activities, as one of its primary business purposes.

Simulated nudity means a state of dress in which any device or covering is worn and exposed to view that simulates any part of the genitals, buttocks, anus, pubic region, or areola of the female breast.

Simulated anatomical areas means:

(1)

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

(2)

Less than completely and opaquely covered human genitals, pubic hair, buttocks, or a female breast below a point immediately above the top of the areola, or any combination thereof.

Specified sexual activities means any of the following:

(1)

The fondling or other erotic touching of another person's human genitals, pubic region, buttocks, anus, or female breasts; or

(2)

Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation, bestiality or sodomy; or

(3)

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

Sexual oriented business means those businesses or uses as defined under the definition of "adult oriented business".

Exclusions: The term "adult oriented business" shall not be construed to mean or include:

(1)

Any business activity or service that by federal or state law is required to [be] operated by or employing licensed psychologists, licensed physical therapists, registered massage therapists, registered nurses, licensed pharmacists or licensed athletic trainers engaged in practicing such licensed profession as generally recognized within their profession, including:

a.

A state-registered massage establishment that employs only state-registered massage therapists to perform massage therapy; conforming to all requirements of state law and other applicable law;

b.

A state-registered massage school with at least two registered massage therapists that teaches the course of instruction required for registration as a massage therapist or a school approved by the Central Education Agency or that is otherwise approved by the state;

c.

A state-registered massage therapy instructor who instructs one or more students in any section of the course of instruction required for registration as a massage therapist;

d.

A business operated by or that employs a licensed physical therapist whose activities fall under the control of the Texas Board of Physical Therapy Examiners or a license of another state agency performing health care service within the scope of the applicable licensing act who performs the activities for or on behalf of the business or commercial enterprise;

e.

Any business operated by or employing licensed physicians or licensed chiropractors engaged in practicing the healing arts as its sole business;

f.

Any retail establishment whose principal business is the offering of wearing apparel for sale to customers, which does not exhibit merchandise on live models, and which does not offer for sale or rental any:

1.

Materials of any kind contain depictions of specified anatomical areas;

2.

Instruments, devices, or paraphernalia which are designed or manufactured for use in connection with specified sexual actives;

g.

Any activity conducted or sponsored by any Texas independent school district, licensed or accredited private school, or public or private college or university; or

h.

Any legalization or authorization to violate any applicable law, civil or penal, duly enacted by any governmental body regarding any of the activities described in these definitions under the term "adult entertainment". Under no circumstance, is this section to be construed as repealing any laws of any governmental body regarding any of the activities that are illegal, currently or in the future, or may constitute or be deemed to be a nuisance.

(Ord. No. 2010-27, § 2, 5-18-10)