§ 4-26. Definitions.

As used in this article, the following words and terms shall have the meanings ascribed to them in this section, unless the context of their usage clearly indicates another meaning:

Achromaticmeans colorless, lacking in saturation or hue. Without limitation, gray shall be included, but white and black shall be excluded from the definition of achromatic.

Adult arcade shall mean any premises that is subject to regulation under V.T.C.A., Local Government Code, ch. 243, as amended, to which members of the public or members of any club, group or association are admitted and permitted to use one or more arcade devices on the premises.

Adult bookstoreshall mean an establishment that as its primary business purpose offers to customers any one or more of the following:

(1)

Books, magazines, periodicals or other printed matter, photographs, films, motion pictures, video cassettes or video reproductions, computer programs, slides or other visual representations or any other pictorial materials (whether for use or viewing off-premises or on-premises), which are intended to provide sexual stimulation or sexual gratification to such customers, and that depict or describe specified sexual activities or specified anatomical areas; and

(2)

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

Adult cabaretshall mean a nightclub, bar, restaurant or other similar commercial establishment whose primary business features the following, which is intended to provide sexual stimulation or sexual gratification to customers:

(1)

Persons who appear totally nude, semi-nude or in a state of nudity;

(2)

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

(3)

Films, motion pictures, computer simulations, video cassettes, slides or other reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

Adult encounter parlor shall mean an establishment, business or commercial enterprise whose primary business is the provision of a premises where customers either congregate, associate, or consort with employees (i) who engage in specified sexual activities with or in the presence of such customers, (ii) who display specified anatomical areas in the presence of such customers with the intent of providing sexual stimulation or sexual gratification to such customers, or (iii) who allow the use of an anthropomorphic device or object.

Adult loungeshall mean an adult cabaret, which is a permitted or licensed premises, pursuant to V.T.C.A., Alcoholic Beverage Code, where alcoholic beverages may be served or sold.

Adult modeling studioshall mean an establishment that provides to customers figure models who are so provided with the intent of providing sexual stimulation or sexual gratification to such customers and who engage in specified sexual activities or display specified anatomical areas while being observed, painted, painted upon, sketched, drawn, sculptured, photographed, or otherwise depicted by such customers.

Adult motelshall mean a hotel, motel or similar commercial establishment that:

(1)

Offers accommodations to the public for any form of consideration and provides customers with closed-circuit television transmission, films, motion pictures, video cassettes, slides or other reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and

(2)

Offers a sleeping room for rent for a period of time that is less than ten hours or 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 theatershall mean a commercial establishment that regularly shows for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

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

Allowshall mean to let happen, cause, suffer or permit, including the failure to prevent.

Anthropomorphic device or object shall mean any object, whether operated mechanically or manually, having or resembling a human form, characteristic or attribute or having or resembling the form, characteristic or attribute of a human body part, organ, or function.

Applicantshall mean the person who submits an application for a permit and who is the intended operator of the enterprise. Where appropriate, this term includes a designated agent of the applicant.

Arcade device shall mean a coin- or slug-operated or electronically or mechanically controlled machine or device that dispenses or effectuates the dispensing of entertainment that is intended for viewing of five or fewer persons at any one time in exchange for any payment of consideration. Arcade device shall also mean an anthropomorphic device or object that is utilized for entertainment with one or more persons.

Child care facilityshall mean a facility, whether situated within the city or not, 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 or required to be licensed by the state pursuant to V.T.C.A., Human Resources Code § 42.001 et seq.

Church or place of religious worshipshall mean a facility, including all structures and grounds, whether situated within the city or not, at which persons regularly assemble for religious worship or which is intended primarily for purposes connected with faith or for propagating a particular form of religious belief.

Commercial multi-unit centershall mean a building or structure, including a shopping mall or strip shopping center, containing three or more separate premises, each of which is offered by lease or otherwise for separate occupancy or control and each of which occupies an enclosed area having its own door or entranceway opening onto public property, a public way, or a common area.

Conduct any business in an enterpriseshall mean when any person does any one or more of the following:

(1)

Operates a cash register, cash drawer or other depository on the enterprise premises where cash funds or records of credit card or other credit transactions generated in any manner by the operation of the establishment or the activities conducted therein are kept;

(2)

Displays or takes orders from any customer for any merchandise, goods, entertainment or other services offered on the enterprise premises;

(3)

Delivers or provides to any customer any merchandise, goods, entertainment or other services offered on the enterprise premises;

(4)

Acts as a door attendant to regulate entry of customers or other persons into the enterprise premises; or

(5)

Supervises or manages other persons in the performance of any of the foregoing activities on the enterprise premises.

Customershall mean any person, other than the employees or permitted class II performers at a class I enterprise, who:

(1)

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

(2)

Enters an enterprise 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 enterprise operating as a private club.

Directorshall mean the chief of police and his designees, which may include, but not be limited to, officers and agents of the city.

Display surfacemeans the entire surface of a sign, on one side, devoted to exhibiting advertising. The display surface shall not include the sign frame and incidental supports thereto.

Employeeshall mean any person who renders any service whatsoever to the customers of an enterprise or who works in or about an enterprise and who receives compensation for such service or work from the operator or owner of the enterprise or from the customers therein, except for individuals who have a valid class II SOBP working at an enterprise under a written contract.

Enterprise shall mean an adult arcade, adult bookstore, adult cabaret, adult encounter parlor, adult lounge, adult modeling studio, adult motion picture theater, adult theater, escort agency, or any establishment whose primary 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, to include arcade devices, and which distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

(1)

Enterprises are classified as follows:

a.

Class I enterprises. Class I enterprises conduct business regularly at a specific location; and

b.

Class II enterprises. Class II enterprises are individuals who offer, for compensation, a service intended to provide sexual stimulation or sexual gratification to customers at any location in the city, unless that individual is an employee of a class I enterprise working at the location permitted under a class I SOBP.

(2)

The term "enterprise" shall not be construed to include:

a.

Any business operated by or employing licensed psychologists, licensed physical therapists, licensed athletic trainers, licensed cosmetologists, or licensed barbers performing functions authorized under the licenses held;

b.

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

c.

Any retail establishment whose primary business is the offering of wearing apparel for sale to customers;

d.

A massage establishment which is properly registered under Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Vernon's Ann. Civ. St. art. 4512k), as amended;

e.

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

f.

A theater, concert hall, auditorium or similar commercial establishment unless that business is an adult theater; or

g.

A tanning facility that is properly licensed pursuant to V.T.C.A., Health and Safety Code ch. 145, the Tanning Facility Act, as amended by Acts of 1995.

Escortshall mean an individual who, for consideration, agrees or offers to privately model, dance or similarly perform for another person or to act as a private companion, guide or date of another person and offers a service intended to provide sexual stimulation or sexual gratification to the customer.

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

Entertainment shall mean:

(1)

Any act or performance, such as a play, skit, reading, revue, pantomime, scene, song, dance, musical rendition or striptease, whether performed by employees, agents, contractors, or customers; or

(2)

The use of anthropomorphic device or object for specified sexual activities.

The term "entertainment" shall also mean bartenders, waiters, waitresses, or other employees exposing specified anatomical areas, engaging in specified sexual activities in the presence of customers, or using anthropomorphic devices or objects.

Exterior portionmeans any part of the physical structure of an enterprise, including a wall, veneer, door, fence, roof, roof covering, or window, which is visible from any public way or public property.

Hospitalshall mean a building used to provide in-patient medical care for the sick or injured and licensed pursuant to the Texas Hospital Licensing Law, V.T.C.A., Health and Safety Code § 242.001 et seq., or operated by an agency of the federal government.

Interested partyshall mean any person who owns or leases property or otherwise resides within 1,000 feet of a class I enterprise or the premises subject to an application for a class I SOBP; any official who is elected by residents of the city or the designated agent of the foregoing.

Live exhibitionshall mean a live performance by one or more individuals conducted in front of at least one customer, including, but not limited to, dancing, modeling, sword swallowing, juggling, acrobatic acts, wrestling and pantomime.

Nudity or state of nudityshall mean any state of dress which fails to opaquely cover a human buttock, anus, male genitalia, female genitalia or areola of a female breast. The term shall also mean any state of dress which covers a human buttock, anus, male genitalia, female genitalia or areola of a female breast only by means of a liquid, emulsion or other similar substance or material that is applied directly to the surface of the skin, including, but not limited to, spray-on plastic derivatives, such as latex, and that simulates the exposure of a human buttock, anus, male genitalia, female genitalia or areola of a female breast.

Operatorshall mean the manager or other natural person principally in charge of an enterprise.

Owner or owners shall mean the proprietor if a sole proprietorship, all general partners if a partnership, or the corporation and all officers, directors, and persons holding 50 percent or more of the outstanding shares if a corporation. The term "owner" shall not include any such person who has given to the operator a statement under oath that he does not desire to be listed on the permit application and that he waives any right to any notice that is required or permitted to be given under this article.

Permitshall mean a current, valid sexually oriented business permit issued by the director pursuant to the terms of this article to an operator for an enterprise, and is sometimes referred to as an SOBP.

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

Public parkshall mean a publicly owned or leased tract of land, whether situated in the city or not, designated, dedicated, controlled, maintained and operated for use by the general public for active or passive recreational or leisure purposes by any non-profit organization providing educational and recreational facilities, or by the city, county, state, any political subdivision of the state, or federal government which land provides and contains improvements, pathways, access or facilities intended for public recreational use. The term "public park" shall not include parkways, public roads, rights-of-way, esplanades, traffic circles, easements or traffic triangles unless such tracts or areas contain and provide improvements or access to a recreational or leisure use by the public.

Residentialmeans pertaining to the use of land, whether situated within the city or not, for premises such as homes, townhomes, patio homes, manufactured homes, duplexes, condominiums and apartment complexes, which contain habitable rooms for nontransient occupancy and which are designed primarily for living, sleeping, cooking, and eating therein. A premises which is designed primarily for living, sleeping, cooking and eating therein shall be deemed to be residential in character unless it is actually occupied and used exclusively for other purposes. Hotels, motels, boarding houses, nursing homes, college or university dormitories, hospitals, and nursery schools shall not be considered to be residential. The term "residential" shall also include any unimproved tract designated for tax appraisal purposes as residential by the Harris County Appraisal District or the Chambers County Appraisal District if situated in the city or by the appraisal district of the county in which the tract is situated if not situated in the city. The term additionally shall include any tract, that, based upon the records of the planning official has been subdivided or platted for residential use, but that is not yet designated for tax appraisal purposes as residential.

Schoolshall mean facilities, structures and grounds, whether situated within the city or not, where persons regularly assemble for the purpose of instruction or education together with the playgrounds, dormitories, stadia and other structures or grounds used in conjunction therewith. The term includes:

(1)

Public and private schools used for primary or secondary education, in which any regular kindergarten or grades one through 12 classes are taught;

(2)

Special educational facilities, whether public or private, in which students who have physical or learning disabilities receive specialized education in lieu of attending regular classes in kindergarten or any of grades one through 12; and

(3)

All colleges and universities, including junior colleges, both public and private.

Semi-nudemeans any state of dress which opaquely covers no more than human buttocks, anus, male genitalia, female genitalia and areolas of female breasts. The use of a liquid, emulsion or other similar material applied directly to the surface of the skin, including, but not limited to, spray-on plastic derivatives, such as latex, simulating a state of total nudity, to cover the human buttocks, anus, male genitalia, female genitalia and areolas of female breasts shall render such state of dress to be "totally nude" rather than "semi-nude."

Signmeans any display, design, pictorial, or other representation, which shall be so constructed, placed, attached, painted, erected, fastened or manufactured in any manner whatsoever so that the same is visible from the outside of an enterprise and that is used to seek the attraction of the public to any goods, services or merchandise available at such enterprise. The term "sign" shall also include such representations painted on or otherwise affixed to any exterior portion of an enterprise as well as such representations painted on or otherwise affixed to any part of the tract upon which such an enterprise is situated.

SOBPmeans a sexually oriented business permit issued and regulated pursuant to this article, and is sometimes referred to as a "permit."

Specified anatomical areasshall mean:

(1)

Less than completely and opaquely covered:

a.

Human genitals, pubic region or pubic hair;

b.

Buttock;

c.

Female breast or breasts or any portion thereof that is situated below a point immediately above the top of the areola; or

d.

Any combination of the foregoing; or

(2)

Human male genitals in a discernibly erect state, even if completely and opaquely covered.

Specified sexual activities shall mean:

(1)

Human genitals in a discernible state of sexual stimulation or arousal;

(2)

Sex acts, whether actual or simulated, including masturbation, sexual intercourse, oral copulation or sodomy;

(3)

Fondling or other erotic touching of human genitals, pubic region or pubic hair, buttock or female breast or breasts, whether clothed or nude;

(4)

Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (3) above; or

(5)

Any of the foregoing with an arcade device.

Totally nudeshall mean a state in which a person's entire pubic region, genitals or anus either is not opaquely covered or is covered only by means of a liquid, emulsion or other similar substance or material that is applied directly to the surface of the skin, including, but not limited to, spray-on plastic derivatives, such as latex, which simulates a state of total nudity.

Tractmeans a contiguous parcel of land under common ownership, whether situated within the city or not.

Zoning regulationsmeans the zoning regulations of the city.

(Ord. No. 8301, § 3, 6-11-98; Ord. No. 13,905 , § 1, 10-25-18)