§ 17. SEXUALLY ORIENTED BUSINESSES

A.

DEFINITIONS

(1)

Church or place of religious worship means a building in which persons regularly assemble for worship, intended primarily for purposes connected with faith, or for propagating a particular form of belief.

(2)

Child Care Facility means a building used as a day nursery, children's boarding home, child placing 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 Subsection 42.002 of the Human Resources Code.

(3)

Dwelling means a house, duplex, apartment, townhouse, condominium, mobile home or any other building used for residential purposes.

(4)

Hospital means a building used to provide health services for human in-patient medical care for the sick or injured, licensed pursuant to the Texas Hospital Licensing Act, (Article 4437f, Vernon's Texas Civil Statutes) or operated by an agency of the federal government, or a convalescent facility licensed pursuant to Chapter 242 of the Health and Safety Code.

(5)

Person means an individual, partnership, corporation or other entity however organized.

(6)

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

(7)

Public Park means a tract of land maintained by the federal, state or local government for the recreation and enjoyment by the general public.

(8)

School means a building where persons regularly assemble for the purpose of instruction or education, together with the playgrounds, dormitories, stadiums and other structures or grounds used in conjunction therewith.

(9)

Sexually Oriented Commercial Enterprise means a massage parlor, nude studio, modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel or other 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.

(10)

Massage Parlor means an establishment which has as its primary business purpose the treating of the superficial parts of a patron for medical, hygienic, exercise or relaxation purposes by rubbing, stroking, kneading, tapping, pounding, vibrating, or stimulating with hands, feet or any instrument. Provided, however, that this definition shall not include any business or establishment operated by or employing licensed psychologists, licensed physical therapists, licensed athletic trainers, licensed cosmetologists, or licensed barbers engaged in performing functions authorized under the license held; and provided further, however, that this definition shall not include any business or establishment operated by or employing licensed physicians or licensed chiropractors engaged in practicing the healing arts.

(11)

Nude Studio or Modeling 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.

(12)

Love Parlor means any place whose major business is the provision of premises where customers either congregate, associate, or consort with employees who engage in "specified sexual activities" with or in the presence of such customers, with the intent of providing sexual stimulation or sexual gratification to the customers.

(13)

Adult Movie Theater means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."

(14)

Adult Video Arcade or Adult Movie 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 (5) 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."

(15)

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 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 instruments, devices, or paraphernalia which are designed for use in connection with "specified sexual activities" or "specified anatomical areas".

(16)

Adult Motel means a hotel, motel or similar commercial establishment which offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmission, 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 which advertises the availability of this adult type of photographic reproductions; or offers a sleeping room for rent for a period of time that is less than ten (10) 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 (10) hours.

(Ordinance No. 12-91 of November 14, 1991)

(17)

Specified Sexual Activities means human genitals in a discernible state of sexual stimulation or arousal, or acts of human masturbation, sexual intercourse or sodomy, or fondling or other erotic touching of human genitals, pubic region or pubic hair, buttock or female breast or breasts, or any combination of the foregoing.

(18)

Specified Anatomical Areas means less than completely and opaquely covered human genitals, pubic region or pubic hair, or buttock, or female breast or breasts below a point immediately above the top of the areola, or any combination of the foregoing; or, human male genitals in a discernible erect state, even if completely and opaquely covered.

(Ordinance No. 15-91 of January 9, 1992)

B.

APPLICABILITY

A business is not exempt from this section because it holds a license or permit under the Texas Alcoholic Beverage Code authorizing the sale or service of alcoholic beverages. This section applies to all businesses that happen to hold such a license or permit whose major business is the offering of a service which is intended to provide sexual stimulation or sexual gratification to the customer.

C.

EXCEPTIONS

This section does not apply to the following:

(1)

A bookstore, movie theatre or video store, unless that business is an adult bookstore, adult theater, or adult video store under Subsection A(9).

(2)

A business operated by or employing a licensed psychologist, licensed physical therapist, licensed athletic trainer, licensed cosmetologist, or licensed barber engaged in performing functions authorized under the license held.

(3)

A business operated by or employing a licensed physician or licensed chiropractor engaged in practicing the healing arts.

D.

CORPORATE LIMITS

This section applies only within the corporate limits of the City of Santa Fe, Texas.

E.

PERMITS

(1)

It shall be unlawful for any person to own or operate a sexually oriented commercial enterprise located within the corporate limits of the City of Santa Fe, Texas, without a valid permit.

(2)

Before the issuance of a permit, the applicant must certify that the proposed sexually oriented commercial enterprise will be located a minimum of fifteen hundred (1,500) feet from the following:

(a)

A child care facility

(b)

A church or place of religious worship

(c)

A dwelling

(d)

A hospital

(e)

A public building

(f)

A public park

(g)

A school

(3)

The applicant must also certify that the proposed sexually oriented commercial enterprise will be located a minimum of one thousand (1,000) feet from any other sexually oriented commercial enterprise.

(4)

For the purposes of this section, measurements shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the property line of the proposed sexually oriented commercial enterprise to the nearest portion of the property line of the facility described in Subsections E(2) and E(3).

F.

PERMIT DISPLAYED

A sexually oriented commercial enterprise permit issued under this section shall be displayed at all times in an open and conspicuous place within the establishment for which it was issued.

G.

PERMIT APPLICATION

Any person desiring a sexually oriented commercial enterprise permit shall file a written application with the City Manager on a form to be prescribed by him.

(1)

The application shall set forth the following:

(a)

The name of the applicant and whether the applicant is an individual, general partnership, limited partnership, corporation or other entity.

(b)

The name under which the establishment is to be operated and a general description of the service to be provided.

(c)

The address and full legal description of the parcel of land on which the establishment is to be located.

(d)

The name, residence address and telephone number, if any, of the manager or other individual to be principally in charge of the operation of the establishment.

(e)

Written declaration that the information contained in the application is true and correct, said declaration being duly dated and signed. If the applicant is an individual, the application shall be signed and sworn to be the applicant. If the applicant is a partnership, the application shall be signed and sworn to by a partner thereof. If the applicant is a corporation or other entity, the application shall be signed and sworn to by an authorized officer of such corporation or entity.

(2)

The application shall be accompanied by the following:

(a)

A tender of the correct permit fee as hereinafter provided.

(b)

A certified copy of the assumed name certificate filed in compliance with the Assumed Business or Professional Name Act. (Vernon's Texas Codes Annotated, Business and Commerce Code, Chapter 36), if the applicant is to operate the establishment under an assumed name.

(c)

A certified copy of the Articles of Incorporation, together with all amendments thereto, if the applicant is a Texas Corporation.

(d)

A certified copy of the certificates of authority to transact business in this State, together with all amendments thereto, if the applicant is a foreign corporation.

(e)

A certified copy of the certificate of limited partnership, together with all amendments thereto, filed in the Office of the Secretary of State under the Texas Limited Partnership Act (Article 6132a Vernon's Texas Civil Statutes), if the applicant is a limited partnership formed under the Laws of Texas.

(f)

A certified copy of the certificate of limited partnership and the qualification documents, together with all amendments thereto, filed in the Office of the Secretary of State under the Texas Limited Partnership Act, if the applicant is a foreign limited partnership.

(g)

A complete list of the names and the residence addresses of all employees in the business and the name and residence address of the manager or other person principally in charge of the operation of the business. A current list of such names and addresses of employees shall be maintained with the City Manager at all times as a condition to the issuance and maintenance of the permit.

H.

INVESTIGATION

Upon receipt of an application for a sexually oriented commercial enterprise permit, the City Manager shall cause to be conducted an investigation for the purpose of determining whether or not such proposed enterprise complies with the location requirements as set forth in Subsection E herein.

I.

ISSUANCE OR DENIAL OF PERMIT; APPEAL

(1)

The permit required by this section shall be issued and signed by the City Manager or his duly authorized deputy.

(2)

The City Manager shall issue a sexually oriented commercial enterprise permit within thirty (30) days of receipt of the application unless he finds that:

(a)

The correct permit fee has not been tendered.

(b)

The operation as proposed by the application is prohibited by law.

(c)

The applicant has made any false, misleading or fraudulent statement of fact in the permit application or in any document required by this section to accompany the application.

(d)

The application or the proposed location does not meet all requirements of this section.

(3)

If a permit application is denied, the City Manager shall notify the applicant in writing by certified mail, return receipt requested, at the address provided in the application. Each denial shall explain the reasons therefore. If an applicant desires to challenge such denial he shall be entitled to a hearing before the City Manager by filing a written request within ten (10) days of applicant's receipt of the denial. The City Manager shall hold a hearing and render a written decision within thirty (30) days after receipt of the applicant's request for hearing.

(4)

An applicant may appeal the City Manager's final decision to the City Council of the City of Santa Fe by filing a written notice of appeal with the City Secretary within ten (10) days of receipt of the City Manager's final decision. The notice of appeal shall state the specific grounds therefore. The City Council shall hold a hearing and render its decision within forty-five (45) days of the filing of the notice of appeal. If the City Council determines that a permit should have been granted, it shall forward the application to the City Manager with instructions to issue the permit.

J.

FEES

To defray the actual costs of processing the permit application, a permit fee of one thousand dollars ($1,000.00) shall be required.

K.

RETURN OF FEES

No portion of any fee collected under this section shall be returned after a permit has been issued or refused.

L.

TRANSFER PROHIBITED

A sexually oriented commercial enterprise permit is not transferrable, assignable or divisible.

M.

PERMIT VALID FOR SPECIFIED LOCATION

Each permit issued under this section shall be valid only for the location specified.

N.

OBTAINING PERMIT BY FRAUD

It shall be unlawful for any person to knowingly make any false, fraudulent, or untruthful statement, either written or oral, or to in anyway knowingly conceal any material fact, or to give or use any other assumed name or fictitious name other than one duly filed for record in compliance with the Assumed Business or Professional Name Act.

O.

THE USE OF PERMIT OF ANOTHER

It shall be unlawful for any person to use a sexually oriented commercial enterprise permit which has been issued to another person.

P.

COUNTERFEITING, CHANGING, DEFACING PERMIT

It shall be unlawful for any person to counterfeit, forge, change, deface, or alter a sexually oriented commercial enterprise permit.

Q.

VIOLATION

Any person who shall violate any provision of this section shall, upon conviction, be guilty of a Class B Misdemeanor.

R.

NUISANCE

The operation of a sexually oriented commercial enterprise without a sexually oriented commercial enterprise permit is hereby declared to be a public nuisance.

S.

INJUNCTION

The City of Santa Fe may file suit in District Court to enjoin a violation of this section.

(Ordinance No. 12-91 of November 14, 1991)