Ord. 0735 08-26-96ORDINANCE NO. 735
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, TO REGULATE SEXUALLY ORIENTED BUSINESSES 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
SEXUALLY ORIENTED BUSINESSES WITHIN THE CITY; PROVIDING A
SAVINGS CLAUSE, A SEVERABILITY CLAUSE, AND A REPEALER
CLAUSE; PROVIDING A PENALTY FOR VIOLATION; PROVIDING FOR
PUBLICATION, CODIFICATION AND AN EFFECTIVE DATE.
WHEREAS, sexually oriented businesses require special supervision in order to
protect and preserve the health, safety, and welfare of the patrons of such businesses
as well as the citizens of the communities where they locate; and
WHEREAS, the City Council finds that sexually oriented businesses are
frequently used for unlawful sexual activities, including prostitution and sexual liaisons
of a casual nature; and
WHEREAS, sexually transmitted diseases are a legitimate health concern of the
City that demands reasonable regulation of sexually oriented businesses in order to
protect the health and well-being of the citizens; and
WHEREAS, permitting and/or licensing is a legitimate means of accountability
to ensure that operators of sexually oriented businesses comply with reasonable
regulations and to ensure that operators do not knowingly allow their establishments
to be used as places of illegal sexual activity or solicitation; and
WHEREAS, there is convincing documented evidence that sexually oriented
businesses, because of their very nature, have a deleterious effect on both the existing
businesses around them and the surrounding residential areas adjacent to them,
causing increased crime and the downgrading of property values; and
WHEREAS, it is recognized that sexually oriented businesses, due to their
nature, have serious objectionable operational characteristics, particularly when they
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are located in proximity to each other, thereby contributing to urban blight and
downgrading the quality of life in the adjacent area; and
WHEREAS, the City Council wants to prevent these adverse effects and thereby
protect the health, safety and welfare of the citizenry; protect the citizens from
increased crime, preserve the quality of life; preserve property values and character
of surrounding neighborhoods and deter the spread of urban blight; and
WHEREAS, it is not the intent of this ordinance tosuppress any speech
activities protected by the First Amendment, but to enact a content neutral ordinance
that addresses the secondary effects of sexually oriented businesses as well as the
health problems associated with such businesses; and
WHEREAS, it is not the intent of the City Council to condone or legitimizethe
distribution of obscene materials, and the Council recognizes that state and federal law
prohibits the distribution of obscene materials and expects and encourages state
enforcement officials to enforce state and federal obscenity statutes against any such
illegal activities in the City of Pearland; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. Purpose and Intent. It is the purpose of this ordinance to regulate
sexually oriented businesses 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 sexually oriented businesses within the City. The
provisions of this ordinance 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 ordinance
to restrict or deny access by adults to sexually oriented materials protected by the
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First Amendment, or to deny access by the distributors and exhibitors of sexually
oriented entertainment to their intended market.
Section 2. Definitions. In this ordinance:
(1) 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".
(2) ADULT BOOKSTORE or ADULT VIDEO STORE means a commercial
establishment which as one of its principal business purposes offers for sale or rental
for any form of consideration any one or more of the following:
(a) 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
(b) instruments, devices, or paraphernalia which are designed for use
in connection with "specified sexual activities
(3) ADULT CABARET means a nightclub, bar, restaurant, or similar
commercial establishment which regularly features:
(a) persons who appear in a state of semi -nudity; or
(b) live performances which are characterized by the exposure of
"specified anatomical areas" or by "specified sexual activities"; or
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(c), 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) ADULT MOTEL means a hotel, motel, or similar commercial establishment
which:
(a) offers accommodations to the public for any form of considera-
tion; provides patrons with closed-circuit television transmissions,
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"; and has a sign visible from the
public right-of-way that advertises the availability of this adult type
of photographic reproductions; or
(b) offers a sleeping room for rent for a period of time that is less than
ten (10) hours; or
(c) allows a tenant or occupant of a sleeping room to subrent the
room for a period of time that is less than ten (10) hours.
(5) ADULT MOTION PICTURE THEATER means a commercial establishment
where, for any form of consideration, films, motion pictures, video cassettes, slides,
or similar photographic reproductions are regularly shown that are characterized by the
depiction or description of "specified sexual activities" or "specified anatomical areas".
(6) ADULT THEATER means a theater, concert hall, auditorium, or similar
commercial establishment which regularly features persons who appear in a state of
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nudity or live performances which are characterized by the exposure of "specified
anatomical areas" or by "specified sexual activities".
(7) CHIEF OF POLICE means the chief of police of the City of Pearland or his
designated agent.
(8) CHURCH means a building used for religious public worship.
(9) DAY NURSERY means an establishment where children, separated from
their parents or guardian, are housed for care or training during the day or a portion
thereof on a regular schedule more often than once a week.
(10) 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 for another person.
(11) ESCORT AGENCY means a person or business association who furnishes,
offers to furnish, or advertises to furnish escorts as one of its primary business
purposes for a fee, tip, or other consideration.
(12) ESTABLISHMENT means and includes ariy of the following:
(a) the opening or commencement of any sexually oriented business
as a new business;
(b) the conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business;
(c) the additions of any sexually oriented business to any other
existing sexually oriented business; or
(d) the relocation of any sexually oriented business.
(13) HOSPITAL, SANITARIUM; NURSING OR CONVALESCENT HOME means
a building or portion thereof, used or designed for the housing or treatment of sick,
aged, mentally ill, injured, convalescent or infirm persons.
ORDINANCE NO. 735
(14) 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.
(15) 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.
(16) 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.
(17) NUDITY or a STATE OF NUDITY means:
(a) the appearance of a human bare buttock, anus, male genitals,
female genitals, or female breast; or
(b) a state of dress that fails to opaquely cover a human buttock,
anus, male genitals, female genitals, or any part of the female
breast below the top of the areola.
(18) PERSON means an individual, proprietorship, partnership, corporation,.
association, or other legal entity.
(19) RESIDENTIAL DISTRICT means a single family, duplex, townhouse,
multiple family or mobile home zoning district as used in the City of Pearland Land Use
and Urban Development Ordinance.
(20) RESIDENTIAL USE means a single family, duplex, multiple family, or
mobile home park, mobile home subdivision, and campground use as used in the City
of Pearland Land Use and Urban Development Ordinance.
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(21) SEMI-NUDE means a state of dress in which clothing covers no more
than the genitals, pubic region, buttocks, and any part of the female breast below the
top of the areolae, as well as portions of the body covered by supporting straps or
devices.
(22) SEXUAL ENCOUNTER CENTER means a business or commercial.
enterprise that, as one of its primary business purposes, offers for any form of
consideration:
(a) physical contact in the form of wrestling or tumbling between
persons of the opposite sex; or
(b) activities between male and female persons and/or persons in a
state of nudity or semi-nude.
(23) SEXUALLY ORIENTED BUSINESS means a business or commercial
enterprise, the primary purpose 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. This definition includes but is not
limited to: adult arcades, adult bookstores or adult video stores, adult cabarets, adult
motels, adult motion picture theaters, adult theaters, escort agencies, nude model
studios, or sexual encounter centers.
(24) SPECIFIED ANATOMICAL AREAS means human genitals in a state of
sexual arousal.
(25) SPECIFIED SEXUAL ACTIVITIES means and includes any of the following:
(a) the fondling or other erotic touching of human genitals, pubic
region, buttocks, anus,. or female breasts;
(b) sex acts, normal or perverted, actual or simulated, including
intercourse, oral copulation, or!sodomy;
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(c) masturbation, actual or simulated; or
(d) excretory functions as part of or in connection with any of the
activities set forth in (a) through (c) above.
(26) SUBSTANTIAL ENLARGEMENT of a sexually oriented business means the
increase in floor areas occupied by the business by more than twenty-five percent
(25%), as the floor areas exist on September 1, 1996.
(27) TRANSFER OF OWNERSHIP OR CONTROL of a sexually oriented business
means and includes any of the following:
(a) the sale, lease, or sublease of the business;
(b) the transfer of securities which constitute a controlling interest in
the business, whether by sale, exchange, or similar means; or
(c) the establishment of a trust, gift, or other similar legal device
which transfers the 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 or control.
Section 3. Classification. Sexually oriented businesses are classified as
follows:
(1) adult arcades;
(2) adult bookstores or adult video stores;
(3) adult cabarets:
(4) ' adult motels;
(5) adult motion picture theaters;
(6) adult theaters;
(7) escort agencies;
(8) nude model studios; and
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(9) sexual encounter centers.
Section 4. License Required.
(a) A person commits an offense if he operates a sexually oriented business
without a valid license, issued by the City for the particular type of business.
(b) 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 a 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. Applicants who
must comply with Section 19 of this ordinance shall submit a diagram meeting the
requirements of Section 19.
(c) The applicant must be qualified according to the provisions of this
ordinance.
(d) If a person who wishes to operate a sexually oriented business is an
individual, he must sign the application for a license as applicant. If a person who
wishes to operate a sexually oriented business is other than an individual, each
individual who has a twenty percent (20%) or greater interest in the business must
sign the application for a license as applicant. Each applicant must be qualified under
Section 5 and each applicant shall be considered a licensee if a license is granted.
(e) The fact that a person possesses a valid dance hall license does not
exempt the person from the requirement of obtaining a sexually oriented business
license. A person who operates a sexually oriented business and possesses a dance
hall license shall comply with the requirements and provisions of this section as well
as the requirements and provisions of Section 14 of this code when applicable.
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Section 5. Issuance of License.
(a) The Chief of Police shall approve the issuance of a license by the City
Secretary to an applicant within thirty (30) days after receipt of an application unless
the Chief of Police finds one or more of the following to be true:
(1) An applicant is under eighteen (18) years of age.
(2) An applicant or an applicant'sspouse is overdue in payment to the
City of taxes, fees, fines, or penalties assessed against him or
imposed upon the applicant or the applicant's spouse in relation
to a sexually oriented business.
(3) An applicant has failed to provide information reasonably
necessary for issuance of the license or has falsely answered a
question or request for information on the application form.
(4) An applicant or an applicant's spouse has been convicted of a
violation of a provision of this ordinance, other than the offense
of operating a sexually oriented business without a license, within
two years immediately preceding this application.
(5) Any fee required by this ordinance has not been paid.
(6) An applicant has been employed in a sexually oriented business in
a managerial capacity within the preceding twelve (12) months
and has demonstrated an inability to operate or manage a sexually
oriented business premises in a peaceful and law-abiding manner,
thus necessitating action by law enforcement officers.
(7) An applicant or the proposed establishment is in violation of or is
not in compliance with Section 7, 12, 13, 15, 16, 17, 18, 19, or
20.
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(8) An applicant or an applicant's spouse has been convicted of a
crime:
(A) involving:
(i) any of the following offenses as described in the
Texas Penal Code:•
(aa) prostitution;
(bb) promotion of prostitution;
(cc) aggravated promotion of prostitution;
(dd) compelling prostitution;
(ee) obscenity;
(ff) sale, distribution, or display of harmful
material to minor;
(gg) sexual performance by a child;
(hh) possession of child pornography;
(ii) any of the following offenses as described in the
Texas Penal Code;
(aa) public lewdness;
(bb) indecent exposure;
(cc) indecency with a child;
(iii) sexual assault or aggravated sexual assault as
described in Texas Penal Code;
(iv) incest, solicitation of a child, or harboring a runaway
child as described in the Texas Penal Code; or
(v) criminal attempt, conspiracy, or solicitation to
commit any of the foregoing offenses;
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(B) for which:
(i) less than two years have elapsed since the date of
conviction or the date of release from confinement
imposed for the conviction, whichever is the later
date, if the conviction is of a misdemeanor offense;
(ii) less than five years have elapsed since the date of
conviction or the date of release from confinement
for the conviction, whichever is the later date, if the
conviction is of a felony offense; or
(iii) 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.
(b) The fact that a conviction is being appealed has no effect on the
disqualification of the applicant or applicant's spouse under Subsection (a).
(c) An applicant who has been convicted or whose spouse has been
convicted of an offense listed in Subsection (a)(8)(A) may qualify for a sexually
oriented business license only when the time period required by Subsection (a)(8)(B)
has elapsed.
(d) The Chief of Police, upon approving issuance of a sexually oriented
business license, shall send to the applicant, by certified mail, return receipt requested,
written notice of that action and state where the applicant must pay the license fee
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and obtain the license. The Chief of Police's approval of the issuance of a license
does not authorize the applicant to operate a sexually oriented business until the
applicant has paid all fees required by this ordinance and obtained possession of the
license.
(e) The license, if granted, must state on itsface the name of the person or
persons to whom it is granted, the expiration date, and the address of the sexually
oriented business. The license must be posted in a conspicuous place at or near the
entrance to the sexually oriented business so that it may be easily read at any time.
Section 6. Fees.
(a) The annual fee for a sexually oriented business permit and/or license is
Seven Hundred Fifty Dollars ($750.00).
(b) In addition to the fees required by Subsection (a), an applicant for an
initial sexually oriented business license shall, at the time of making application, pay
a nonrefundable fee of $720.00 for the City to conduct a survey to ensure that the
proposed sexually oriented business is in compliance with the locational restrictions
set forth in Section 13.
(c) If an applicant is required by this code to also obtain a dance hall license
for the business at a single location, payment of the fee for the sexually oriented
business license exempts the applicant from payment of the fees for the dance hall
license.
Section 7. Inspection.
(a) An applicant or licensee shall permit representatives of the
Police Department, the Fire Department, the Department of Public Works, the
Sanitarian/Health Inspector, Code Enforcement Officers, and the building official to
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inspect the premises of a sexually oriented business, for the purpose of ensuring
compliance with the law, at any time it is occupied or open for business.
(b) A person who operates a sexually oriented business 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 at any time it is occupied or
open for business.
(c) 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.
Section 8. Expiration of License.
Each license expires one year from the date of issuance, except that a license
issued _pursuant to a Iocational restriction expires on the date the exemption expires.
A license may be renewed only by making an application as provided in Section 4.
Application for renewal should be made at least thirty (30) days before the expiration
date, and when made less than thirty (30) days before the expiration date, the
expiration of the license will not be affected by the pendency of the application.
Section 9. Suspension. The Chief of Police shall suspend a license for a period
not to exceed thirty (30) days if he determines that a licensee or an employee of a
licensee has:
(1) violated or is not in compliance with Section 7, 12, 13, 15, 16, 17, 18,
19, or 20 of this ordinance;
(2) engaged in excessive use of alcoholic beverages while on the sexually
oriented business premises;
(3) refused to allow an inspection of the sexually oriented business premises
as authorized by this ordinance;
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(4) knowingly permitted gambling by any person on the sexually oriented
business premises;
(5) demonstrated inability to operate or manage a sexually oriented business
in a peaceful and law-abiding manner thus necessitating action by law
enforcement officers.
Section 10. Revocation.
(a) The Chief of Police shall revoke a license if a cause of suspension in
Section 9 occurs and the license has been suspended within the preceding twelve (12)
months.
(b) The Chief of Police shall revoke a license if the Chief of Police determines
that:
(1) a licensee gave false or misleading information in the material
submitted during the application process;
(2) a licensee or an employee has knowingly allowed possession, use,
or sale of controlled substances on the premises;
(3) a licensee or an employee has knowingly allowed prostitution on
the premises;
(4) a licensee or an employee knowingly operated the sexually
oriented business during a period of time when the licensee's
license was suspended;
(5) a licensee has been convicted of an offense listed in Section
5(a)(8)(A) for which the time period required in Section 5(a)(8)(B)
has not elapsed;
(6) on two or more occasions within a twelve (12) month period, a
person or persons committed an offense occurring in or on the
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licensed premises of a crime listed in Section 5(a)(8)(A) for which
a conviction has been obtained, and the person or persons were
employees of the sexually oriented business at the time the
offenses were committed;
(7) a licensee or an employee has knowingly allowed any act of
sexual intercourse, sodomy, oral copulation, masturbation, or
other sexual conduct to occur in or on the licensed premises. The
term "sexual contact" shall have the same meaning as it is defined
in the Texas Penal Code; or
(8) a licensee is delinquent in payment to the City for hotel occupancy
taxes, ad valorem taxes, or sales taxes related to the sexually
oriented business.
(c) The fact that a conviction is being appealed shall have no effect on the
revocation of the license.
(d) Subsection (b)(7) does not apply to adult motels as a ground for revoking
a 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.
(e) When the Chief of Police revokes a license, the revocation shall continue
for one (1) year, and the licensee shall not be issued a sexually oriented business
license for one (1) 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 ninety (90) days
have elapsed since the date the revocation became effective. If the license was
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revoked under Subsection (b)(5), an applicant may not be granted another license until
the appropriate number of years required under Section 5(a)(8)(B) has elapsed.
Section 11. Appeal. If the Chief of Police denies the issuance or renewal of
a license, or suspends or revokes a license, the Chief of Police shall send to the
applicant or licensee, by certified mail, return receipt requested, written notice of the
action and the right to an appeal. Upon receipt of written notice of the denial,
suspension, or revocation, the applicant or licensee whose application for a license or
license renewal has been denied or whose license has been suspended or revoked has
the right to appeal to the state district court. An appeal to the state district court
must be filed within thirty (30) days after the receipt of notice of the decision of the
Chief of Police. The applicant or licensee shall bear the burden of proof in court.
Section 12. Transfer of License. A licensee shall not transfer his license to
another, nor shall a licensee operate a sexually oriented business under the authority
of a license at any place other than the address designated in the application.
Section 13. Location of Sexually Oriented Businesses.
(a) A person commits an offense if he operates or causes to be operated a
sexually oriented business within one thousand (1,000) feet of:
(1) a church;
(2) a public or private elementary or secondary school or day nursery;
(3) a boundary of a residential district as defined in this ordinance;
(4) a public park;
(5) the property line of a lot devoted to a residential use as defined in
this ordinance; or
(6) a hospital, sanitarium, nursing or convalescent home.
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(b) A person commits an offense if he causes or 'permits the operation,
establishment, substantial enlargement, or transfer of ownership or control of a
sexually oriented business within 1,000 feet of another sexually oriented business.
(c) A person commits an offense if he causes or permits the operation,
establishment, or maintenance of more than one sexually oriented business in the
same building, structure, or portion thereof, or the increase of floor area of any
sexually oriented business in any building, structure, or portion thereof containing
another sexually oriented business.
(d) For the purpose of Subsection (a), measurement shall be made in a
straight line, without regard to intravening structures or objects, from the nearest
portion of the building or structure used as a part of the premises where a sexually
oriented business is conducted, to the nearest property line of the premises of a
church, public or private elementary orsecondary school or day nursery, or hospital,
sanitarium, nursing or convalescent home, or to the nearest boundary of an affected
public park,, residential district, or residential lot.
(e) For purposes of Subsection (b) of this section, the distance between any
two sexually oriented businesses 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.
(f) Any sexually oriented business lawfully operating on September 1, 1996,
that is in violation of Subsections (a), (b), or (c) of this section shall be deemed a
nonconforming use. The nonconforming use will be permitted to continue for a period
not to exceed three years, unless sooner terminated for any reason or voluntarily
discontinued for a period of thirty (30) days or more. Such conforming uses shall not
be increased, enlarged, extended or altered except that the use may be changed to a
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conforming use. If two or more sexually oriented businesses are within 1,000 feet of
one another and otherwise in a permissible location, the sexually oriented business
which was first established and continually operating at a particular location' is the
conforming use and the later -established business(es) is nonconforming.
(g) A sexually oriented business fully operating as a conforming use is not
rendered a nonconforming use by the location, subsequent to the grant or renewal of
the sexually oriented business license, of a church, public or private elementary or
secondary school or day nursery, public park, residential district, residential lot, or
hospital, sanitarium, nursing or convalescent home within 1,000 feet of the sexually
oriented business. 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.
Section 14. Variance from Location Restrictions.
(a) If the Chief of Police denies the issuance of a license to an applicant
because the location of the sexually oriented business establishment is in violation of
Section 13 of this ordinance, then the applicant may, not later than fifteen (15)
calendar days after receiving notice of the denial, file with the Zoning Board of
Adjustments and Appeals ("Zoning Board"), a written request for a variance from the
location restrictions of Section 13.
(b) If the written request is filed within the 15-day limit, the Zoning Board
shall consider the request in accordance with the procedures set forth in the City of
Pearland Land Use and Urban Development Ordinance.
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(c) The Zoning Board may, in its discretion, grant a variance from the
location restrictions of Section 13 if it makes the following findings:
(1) that the location of the proposed sexually oriented business will
not have a detrimental effect on nearby properties or be contrary
to the public safety or welfare;
(2) that the granting of the variance will not violate the spirit and
intent of this ordinance;
(3) that the location of the proposed sexually oriented business will
not downgrade the property values or quality of life in the adjacent
areas or encourage the development of urban blight;
(4) that the location of an additional sexually oriented business 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
(5) that all other applicable provisions of this ordinance will be
observed.
(d) If the Zoning Board grants the variance, the variance is valid for one year
from the date of the Zoning Board's action. Upon the expiration of a variance, the
sexually oriented business is in violation of the location restrictions of Section 13 until
the applicant applies for and receives another variance.
(e) If the Zoning Board denies the variance, the applicant may not re -apply
for a variance until at least 12 months have elapsed since the date of the Zoning
Board's action.
(f) The grant of a variance does not exempt the applicant from any other
provisions of this ordinance other than the location restrictions of Section 13.
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Section 15. Additional Regulations for Escort Agencies.
•(a) An escort agency shall not employ any person under the age of 18 years.
(b) A person commits an offense if he acts as an escort or agrees to act as
an escort for any person under the age of 18 years.
Section 16. Additional Regulations for Nude Model Studios.
(a) A nude model studio shall not employ any person under the age of 18
years.
(b) A person under the age of 18 years commits an offense if he appears in
a state of nudity in or on the premises of a nude model studio. 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.
(c) A person commits an offense if he appears in a state of nudity or
knowingly allows another to appear in a state of nudity in an area of a nude model
studio premises which can be viewed from the public right-of-way.
(d) A nude model studio shall not place or permit a bed, sofa, or mattress in
any room on the premises, except that a sofa may be placed in a reception room open
to the public.
Section 17. Additional Regulations for Adult Theaters and Adult Motion Picture
Theaters.
(a) A person commits an offense if he knowingly allows a person under the
age of 18 years to appear in a state of nudity in or on the premises of an adult theater
or adult motion picture theater.
(b) A person under the age of 18 years commits an offense if he knowingly
appears in a state of nudity in or on the premises of an adult theater or adult motion
picture theater.
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ORDINANCE NO. 735
(c) It is a defense to prosecution under Subsections (a) and (b) of this section
if the person under 18 years was in a restroom not open to public view or persons of
the opposite sex.
Section 18. Additional Regulations for Adult Motels.
(a) Evidence that a sleeping room in a hotel, motel, or a similar commercial
establishment has been rented and vacated two or more times in a period of time that
is less than ten (10) hours creates a rebuttable presumption that the establishment is
an adult motel as that term is defined in this ordinance.
(b) 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 a
sexually oriented license, he rents or sub -rents a sleeping room to a person and, within
ten (10) hours from the time the room is rented, he rents or sub -rents the same
sleeping room again. -,
(c) For purposes of Subsection (b) of this section, the terms "rent" or
"sub -rent" mean the act of permitting a room to be occupied for any form of
consideration.
Section 19. Regulations Pertaining to Exhibition of Sexually Explicit Films or
Videos.
(a) A person who operates or causes to be operated a sexually oriented
business, other than an adult motel, which exhibits on the premises in a viewing room
of Tess than one hundred fifty (150) square feet of floor space, a film, video cassette,
or other video reproduction that depicts specified sexual activities or specified
anatomical areas, shall comply with the following requirements:
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ORDINANCE NO. 735
(1) Upon application for a sexually oriented business 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 ofall overhead lighting
fixtures and designating any portion of the premises in which
patrons will not be permitted. A manager's station may not
exceed thirty-two (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 (6) 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.
(2) The application shall be sworn to be true and correct by the
applicant.
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ORDINANCE NO. 735
(3) 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.
(4) It is the duty of the owners and operator of the premises to ensure
that at least one employee is on duty and situated in each
manager's station at all times that any patron is present inside the
premises.
(5) 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 patron 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
patron is permitted access for any purpose 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.
(6) It shall be the duty of the owners and operator, and it shall also be
the duty of any agents and employees present in the premises, to
ensure that the view area specified in Subsection (5) remains
unobstructed by any doors, walls, merchandise, display racks or
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ORDINANCE NO. 735
other materials at all times that any patron is present in the
premises and to ensure that no patron is permitted access to any
area of the premises that has been designated as an area in which
patrons will not be permitted in the application filed pursuant to
Subsection (1) of this section.
(7) The premises shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place to which patrons are
permitted access at an illumination of not less than one (1.0)
footcandle as measured at the floor level.
(8) It shall be the duty of the owners and operator and it shall also be
the duty of any agents and employees present in the premises to
ensure that the illumination described above is maintained at all
times that any patron is present in the premises.
(b) A person having a duty under Subsections (1) through (8) of Subsection
(a) above commits an offense if he knowingly fails to fulfill that duty.
Section 20. Display of Sexually Explicit Material to Minors.
(a) A person commits an offense if, in a business establishment open to
_persons under the age of 17 years, he displays a book, pamphlet, newspaper,
magazine, film, or video cassette, the cover of which depicts, in a manner calculated
to arouse sexual lust or passion for commercial gain or to exploit sexual lust or
perversion for commercial gain, any of the following:
(1) human sexual intercourse, masturbation, or sodomy;
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ORDINANCE NO. 735
(2) fondling or other erotic touching of human genitals, pubic region,
buttocks, or female breasts;
(3) less than completely and opaquely covered human genitals,
buttocks, or that portion of the female breast below the top of the
areola; or
(4) human male genitals in a discernibly turgid state, whether covered
or uncovered.
(b) In this section "display" means to locate an item in such a manner that,
without obtaining assistance from an employee of the business establishment:
(1) - it is available to the general public for handling and inspection; or
(2) the cover or outside -packaging on the item is visible to members
of the general public.
Section 21. Enforcement/Penalty.
(a) Except as provided by Subsection (b), any person violating Section 13
of this ordinance, upon conviction, is punishable by a fine not to exceed $2,000.00.
(b) If the sexually oriented business involved is a nude model studio or sexual
encounter center, then violation of Section 13 of this ordinance is punishable as a
Class A misdemeanor.
(c) Except as provided by Subsection (b), any person violating a provision
of this ordinance other than Section 13, upon conviction, is punishable by a fine not
to exceed $ 500.00.
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ORDINANCE NO. 735
(d) It is a defense to prosecution under Section 4(A), 13, or 16(d) that a
person appearing in a state of nudity did so in a modeling class operated:
(1) by a proprietary school licensed by the State of Texas; a college,
junior 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 transferrable to a
college, junior college, or university supported entirely or partly by
taxation; or
(3) in a structure:
(A) which has no sign visible from the exterior of the structure
and no other advertising that indicates a nude person is
available for viewing; and
(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 model is on the premises at
any one time.
(e) It is a defense to prosecution under Section 4(a) or Section 13 that each
item of descriptive, printed, film, or video material offered for sale or rental, taken as
a whole, contains serious literary, artistic, political, or scientific value.
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ORDINANCE NO. 735
Section 22. Exterior Portions of Sexually Oriented Businesses.
(a) It shall be unlawful for an owner or operator of a sexually oriented
business to allow the merchandise or activities of the establishment to be visible from
a point outside the establishment.
(b) It shall be unlawful for the owner or operator of a sexually oriented
business to allow the exterior portion of the sexually oriented business to have
flashing lights, or any words, lettering, photographs, silhouettes, drawings, or pictorial
representations of any manner except to the extent permitted by the provisions of the
City of Pearland Land Use and Urban Development Ordinance.
(c) Signage for sexually oriented businesses shall comply with the provisions
set forth in the City of Pearland Land Use and Urban Development Ordinance.
(d) It shall be unlawful for the owner or operator of a sexually oriented
business to allow exterior portions of the establishment to be painted any color other
than a single achromatic color. This provision shall not apply to a sexually oriented
business if the following conditions are met:
(1) The establishment is a part of a commercial multi -unit center; and
(2) The exterior portions of each individual unit in the commercial
multi -unit center, including the exterior portions of the business,
are painted the same color as one another or are painted in such
a way so as to be a component of the overall architectural style
or pattern of the commercial multi -unit center.
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ORDINANCE NO. 735
(e) Nothing in this article shall be construed to require the painting of an
otherwise unpainted exterior portion of a sexually oriented business.
(f) To the extent that this section conflicts with the City of Pearland Land
Use and Urban Development Ordinance, the Land Use and Urban Development
Ordinance shall govern.
Section 23. Massages. It shall be unlawful for any sexually oriented business
to offer or perform massages. This section does not apply to massages administered
by physicians, massage therapists, physical therapists, chiropractors, nurses, athletic
trainers, cosmetologists, or barbers duly licensed, registered, or regulated by the State
of Texas, so long as their services are administered in accordance with state law and
said massages are not performed on the premises of sexually oriented businesses.
Section 24. Injunction. A person who operates or causes to be operated a
sexually oriented business without a valid license or in violation of Section 13 of this
ordinance is subject to a suit for injunction as well as prosecution for criminal
violations.
Section 25. Amendments. Sections 13 and 14 of this ordinance may be
amended only after compliance with the procedure required to amend a zoning
ordinance. Other sections of this ordinance may be amended by vote of the city
council.
Section 26. Savings. All rights and remedies which have accrued in favor of
the City under this ordinance and amendments thereto shall be and are preserved for
the benefit of the City.
ORDINANCE NO. 735
Section 27. Severability. If any section, subsection, sentence, clause, phrase
or portion of this Ordinance is for any reason held invalid, unconstitutional or
otherwise unenforceable by any court of competent jurisdiction, such portion shall be
deemed a separate, distinct, and independent provision and such holding shall not
affect the validity of the remaining portions thereof.
Section 28. Repealer. All ordinances and parts of ordinances in conflict
herewith are hereby repealed but only to the extent of such conflict.
Section 29. Codification. It is the intent of the City Council of the City of
Pearland, Texas, that the provisions of this Ordinance shall be codified in the City's
official Code of Ordinances as provided hereinabove.
Section 30. Publication and Effective Date. The City Secretary shall cause this
Ordinance, or its caption and penalty, to be published in the official newspaper of the
City of Pearland, upon passage of such Ordinance. The Ordinance shall become
effective ten (10) days from and after its publication, or the publication of its caption
and penalty, in the official City newspaper,
PASSED and APPROVED on First Reading this the /O- day of
, A.D., 1996.
TOM REID
MAYOR
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ORDINANCE NO. 735
ATTEST:
I
YO/A DA C. BENITE
CI Y SECRETARY
PASSED and APPROVED on Second and Final Reading this the 4-et day of
, A.D., 1996.
ATTEST:
YO DA C. BENITE
CITY ECRETARY
APPROVED AS TO FORM:
MOLJiaL L
AMY MOTES McCULLOUGH
CITY ATTORNEY
TOM REID
MAYOR
VOTING RECORD (FIRST READING)/\AUGUST"12,
1996
Voting "Aye"
Voting "No"
- Councilmembers Cole, Wil-
kins, Richardson, Beckman
& Tetens
- None
Motion Passed 5 to 0.
•
VOTING RECORD (SECOND READING) AUGUST 26,
1996
Voting "Aye" - Councilmembers Cole, Wil-
kins, Richardson, Tetens &
Beckman
Voting "No" - None
Motion Passed 5 to 0.
PUBLICATION DATE: SEPTEMBER 4, 1996
EFFECTIVE DATE: SEPTEMBER 13, 1996
PUBLISHED AS REQUIRED BY SECTION 3.10 OF
THE CHARTER OF THE CITY OF PEARLAND, TEXAS.
31