§ 12-70. Definitions.

As used in these regulations:

Adult bookstore, adult video store, or adult paraphernalia store: 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, video cassettes 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 move arcade or adult arcade: 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, computer screen, video player, television projectors or other image-producing devices are maintained to show images to twenty (20) 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, as defined in this section.

Adult cabaret: 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, video cassettes, 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: A hotel, motel or similar commercial establishment that:

(1)

Offers accommodations to the public for money or any other form of compensation or consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other reproductions which are characterized by specified sexual activities or specified anatomical areas, as defined in this section; or has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions; or

(2)

Offers a sleeping room for rent for a period of time that is fewer than ten (10) hours; or

(3)

Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is fewer than ten (10) hours.

Adult movie picture theater: A commercial establishment where, for money or any other form of compensation or consideration, films, motion pictures, video cassettes 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: a theater, concert hall, auditorium or similar commercial establishment which regularly features live performances characterized by the exposure, through any kind of media, of specified sexual activities or specified anatomical areas, as defined in this section.

Allow: To let happen, cause, suffer, or permit, including the failure to prevent.

Applicant: The individual or entity submitting the application for an SOBP. Where appropriate, this includes a written designated agent of the applicant.

Cashier: 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: 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 fifteen (15) years of age, licensed by the State of Texas pursuant to Chapter 42 of the Texas Human Resources Code.

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

City: The City of South Houston, Texas.

Conviction: This term encompasses a defendant adjudged guilty of the offense charged. This term also encompasses a defendant who has entered a plea of guilty or nolo contendere to the offense in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated.

Council: The duly elected members of the City Council of South Houston, Texas.

County: Harris County, Texas, and its incorporated area.

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

Employee: Any person who works in or about an enterprise and renders any service whatsoever to the patrons of an enterprise and receives money or any other form of compensation or consideration for such service or work from the enterprise operator or owner of the enterprise or from the patrons thereof, excepting those persons who have an independent contractor relationship with the enterprise.

Enterprise operator: An owner, manager, or other natural person principally in charge of a sexually oriented business enterprise (SOBE).

Entertainment service: Any service provided by a cashier, enterprise owner, server, employee, or independent contractor or other similarly employed person at the sexually oriented business enterprise. This definition does not include persons providing repairs or maintenance to the premises or equipment.

Escort: 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 for another person and offers a service intended to provide sexual stimulation or sexual gratification to the customer.

Escort agency: 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.

Executive director: The Chief of Police of the City of South Houston, Texas, or his/her designated representative.

Hospital: A building used to provide in-patient medical care for the sick or injured. It is licensed pursuant to the Texas Hospital Licensing Law, Chapter 241 of the Texas Health and Safety Code, or is operated by an agency of the Federal Government, or is a convalescent facility licensed pursuant to Chapter 242 of the Texas Health and Safety Code.

Interested party: Any person who owns or leases real property within fifteen hundred (1,500) feet of a sexually oriented business enterprise; any City of South Houston official who is elected by residents of South Houston, Texas, including the South Houston Chief of Police.

Live exhibition: A live performance by one or more individuals conducted in front of at least one patron. Live exhibitions include, but are not limited to, dancing, modeling, sword swallowing, juggling, acrobatic acts, wrestling, and pantomime.

Nude modeling studio: Any place where a person appears in a state of nudity or displays specified anatomical areas, as such term is defined in this section, 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:

(1)

The appearance of a human bare buttock, anus, male genitals, female genitalia, pubic region or female breasts; or

(2)

A state of dress which fails to opaquely cover a human buttock, anus, male genitals, female genitalia, pubic region or areola of a female breast.

(3)

This includes material that is painted or applied to the body, such as paint, liquid latex or employment of any device or covering intended to give the appearance of or simulate the parts of the body listed in (1) or (2).

(4)

This definition shall not include a mother in the act of nursing her child.

Operate or cause to be operated: 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 enterprise whether or not that person is an owner, part owner, or licensee of the business.

Patron: Any paying or non-paying customer or client of a sexually oriented business enterprise including members of the public or club members invited or admitted to a sexually oriented business enterprise.

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

Person: An individual, proprietorship, partnership, corporation, association, or other legal entity.

Principal business or primary business:

(1)

A business where fifty (50) percent or more of gross floor area is devoted to the sale, display, or inventory 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, as defined herein, or

(2)

a business where fifty (50) percent or more of gross receipts is 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: A building used by a federal, state, or local government that is open to the general public.

Public park: 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 shall also include locations owned by non-profit organizations that provide educational and recreational facilities.

Regulations: Regulations or Ordinances of the City of South Houston, Texas, for the operation of Sexually Oriented Business Enterprises (SOBEs).

School: 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: Any state of dress in which clothing or other matter opaquely covers no more than a human buttock, anus, male and female genitalia, or areola of a female breast, as well as portions of the body covered by supporting straps or devices.

Server: An individual who serves patrons food or beverages in a sexually oriented business enterprise, including waiters, waitresses, hosts, hostesses, and bartenders.

Sexual encounter center: 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): A 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 intended to provide sexual stimulation or sexual gratification to the customer. This definition includes, but is not limited to, sex parlors, nude studios, modeling studios, love parlors, adult bookstores, adult movie theaters, adult video arcades, adult movie arcades, adult video stores, adult motels, adult cabarets, escort agencies, and sexual encounter centers. The commercial enterprises or activities described above shall be subject to regulation under this order at any location at which they may occur, whether conducted within a building, a temporary enclosure, or out of doors.

The term "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, perform functions authorized under the license held; or

(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 Chapter 752, Acts of the 69 ^th Legislature, Regular Session, 1985 (Article 4512K, Vernon's Texas Civil Statutes), 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;

(6)

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

SOBP: Sexually oriented business permit issued and regulated pursuant to these regulations.

Sexually oriented modeling studio: 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.

This does not include modeling classes operated by a:

(1)

Proprietary school licensed by the State of Texas, a college, or university supported entirely or partly by taxation;

(2)

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)

Structure:

a.

Which 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; 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 or semi-nude model is on the premises at any one time.

Specified anatomical areas: Human genitals in a state of sexual arousal, whether opaquely covered, clothed, or nude.

Specified sexual activities: includes 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; masturbation, actual or simulated; or

(3)

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

Totally nude: A person shall be considered to be totally nude as this term is used in this definition if the person's entire pubic region, genitals, or anus is not opaquely covered or if it is covered with a material that is painted or applied to the body, such as paint, liquid latex, or the employment of any device or covering used with the intention of giving the appearance of, or simulating, a human bare buttock, anus, male genitals, female genitalia, the pubic region or a female breast.

Transfer of ownership or control: Includes:

(1)

The sale, lease, or sublease of the business; or

(2)

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

(3)

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

(Ord. No. 2002-02, § IV, 3-26-02)