In this chapter, the following words and terms shall have the meanings set forth herein.
ADULT BOOKSTORE or ADULT VIDEO STORE. A commercial establishment which as one of its primary business purposes offers for sale or rental for any form of consideration any one or more of the following:
(1) Books, magazines, periodicals, or other printed matter, or discs, cassettes, photographs, films, motion pictures, video cassettes or video representations, slides or other visual representations which depict or describe “specified sexual activities” or “specified anatomical areas.”
(2) Instruments, devices, or paraphernalia which are designed for use in connection with “specified sexual activities.” Not included in this definition are pharmaceutical supplies.
ADULT CABARET. A commercial establishment which regularly features:
(1) Persons who appear in a state of nudity or partial nudity; or
(2) Live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities;” or
(3) Films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”
ADULT LINGERIE. Undergarments, nightwear, or intimate apparel provoking or intended to provoke sexual interest, sexual stimulation, or sexual gratification.
ADULT LINGERIE STORE/MODELING STUDIO. A commercial establishment where live models exhibit lingerie intended for an adult audience.
ADULT LOUNGE. An adult cabaret which is permitted or licensed pursuant to the Alcoholic Beverage Code where alcoholic beverages may be served, sold or consumed.
ADULT MOTEL. 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, discs or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas,” and/or has a sign visible from the public right-of-way which advertises the availability of this adult type of entertainment.
ADULT MOVIE THEATER OR ADULT VIDEO THEATER. A commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, discs or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical activities” are regularly shown to groups of six or more people.
ADULT NOVELTY STORE. An establishment offering goods for sale or rent and that meets any of the following tests:
(1) It offers for sale items from any two of the following categories: adult bookstore items, adult video store items, adult lingerie, leather goods marketed or presented in a context to suggest their use for sadomasochistic practices, and the combination of such items constitute more than 35% of its stock in trade or occupies more than 15% of its floor area;
(2) Thirty-five percent (35%) or more of its stock in trade consists of sexually oriented toys or novelties; or
(3) Thirty-five percent (35%) or more of its gross floor area is devoted to the display of sexually oriented toys or novelties.
ADULT THEATER. A theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity, or live performances which are characterized by the exposure of “specified anatomical areas” or “specified sexual activities.”
ADULT VIDEO ARCADE. Any commercial establishment to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion pictures, projectors, or other image-producing devices, to include computer and electronic games, 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.”
CHURCH, OR REGULAR PLACE OF WORSHIP. Any structure used principally as a place wherein persons regularly assemble for religious worship including, but not limited to, sanctuaries, chapels, cathedrals, churches, synagogues, and on-site buildings adjacent thereto, such as parsonages, convents, fellowship halls, Sunday Schools and rectories.
CITY MANAGER. The individual lawfully acting as the City Manager of the city pursuant to the City Charter, or his or her designated representative.
CONTROLLED SUBSTANCE. Any substance defined as a controlled substance by the Texas Controlled Substance Act, as then amended.
DAY CARE. A facility which provides care and/or supervision for adults or children on a day to day basis.
DRESSING ROOM. An enclosed area designed to allow a single person to try on items of apparel for the purpose of determining suitability.
ENTERTAINER. Any employee of a sexually-oriented business enterprise who performs or engages in entertainment.
ENTERTAINMENT. Any act or performance, such as a play, skit, reading, revue, fashion show, modeling performance, pantomime, role playing, encounter session, scene, song, dance, musical rendition or striptease that involves the display or exposure of specified sexual activities or specified anatomical areas. The term ENTERTAINMENT shall include any employee or entertainer exposing any specified sexual activities whatever in the presence of one or more customers.
ESCORT. A person who accompanies an individual for social purposes for any consideration.
ESCORT AGENCY. A person or commercial enterprise which for a fee, tip, or other consideration offers to furnish, or advertises to furnish, escorts as one of its primary business purposes.
ESTABLISHMENT. Any of the following:
(1) The opening or commencement of any sexually oriented business as a new business;
(2) The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
(3) The addition of any sexually oriented business to any other existing sexually oriented business; or
(4) The relocation of any sexually oriented business.
GAMBLING. Shall have the meaning set forth at Tex. Penal Code § 47.02, as then amended.
INTENDED OPERATOR. The person principally in charge of the day to day operation of the establishment.
KNOWINGLY. Shall have the meaning set forth at Tex. Penal Code § 6.03, as then amended.
LICENSEE. A person in whose name a license to operate a sexually oriented business has been issued pursuant to the terms of this chapter.
MODELING/NUDE MODELING STUDIO. A commercial establishment 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.
MONITOR. A television or other video screen, used as part of an electronic surveillance system, which displays images transmitted by electronic video cameras to such television or video screen.
NUDITY/PARTIAL NUDITY. Appearing in a state of dress which displays one or more “specified anatomical areas.”
OPERATE OR CAUSES TO BE OPERATED. 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 license holder of the establishment. A person who, while on the premises of sexually oriented business, does any one or more of the following shall be deemed to be operating or conducting such a business:
(1) Operates a cash register, cash drawer, or other depository where checks, cash funds or records of credit card or other credit transactions generated in connection with the activities of the business are kept; or
(2) Displays or takes orders from any customer for any merchandise, goods, entertainment or other service offered in connection with the activities of the business or
(3) Delivers or provides to any customer any merchandise, goods, entertainment or other services offered in connection with the activities of the business; or
(4) Acts as a door attendant to regulate entry of customers or other persons into the business premises; or
(5) Supervises or manages other persons in the performance of any of the foregoing activities.
PERSON. An individual, proprietorship, partnership, corporation, association, or other legal entity.
PRIMARY BUSINESS PURPOSE. The commercial establishment meets any one of the following criteria:
(1) At least 35% of the establishment’s displayed merchandise consists of said items;
(2) At least 35% of the retail value (defined as the price charged to the customers) of the establishment’s displayed merchandise consists of said items;
(3) At least 35% of the establishment’s revenue is derived from the sale or rental, for any form of consideration of said items;
(4) The establishment maintains at least 35% of its floor space for the display, sale, and/or rental of said items (aisles and walkways used to access said items, as well as cashier stations where said items are rented or sold, shall be included in “floor space” maintained for the display, sale or rental of said items);
(5) The establishment maintains at least 500 square feet of its floor space for the display, sale and/or rental of said items (aisles and walkways used to access said items, as well as cashier stations where said items are rented or sold, shall be included in “floor space” maintained for the display, sale or rental of said items); or
(6) The establishment regularly offers for sale or rental at least 2,000 of said items.
PUBLIC. References to the public and members of the public shall mean and include all persons other than the owners, operators, agents and employees of a given sexually oriented business.
RENT. The act of permitting space to be occupied for any form of consideration.
RESIDENTIAL DISTRICT. One-Family Dwelling District (R-1); Rural One-Family Dwelling District (R1-R); Single Family Garden Home Residential District (R1-A); Single Family Infill Dwelling District (R1-I); Two- Family Dwelling District (R-2); Two-Family Infill Dwelling District (R2-I); Multi-Family Dwelling District (R-3); One- Family Dwelling District - Mobile Home (R1-M); Mobile Home Park District (R-MH); or Townhouse - Single Family Dwelling District (RT-1) as defined in the Harker Heights Zoning Ordinance, Ordinance 2001-36, as amended.
RESIDENTIAL USE/RESIDENTIAL NEIGHBORHOOD. An area that is zoned as a Residential District or is designated as Low Density Residential, Medium Density Residential, High Density Residential, or Residential Estates as defined in the Harker Heights Land Use Plan, Ordinance 2021-51, as amended.
RESTROOMS. Shall be synonymous with toilet facilities as defined in Tex. Health & Safety Code Chapter 341. No sexually oriented business activities shall be permitted in any such facilities.
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 in a state of nudity or partial nudity.
SEXUALLY ORIENTED BUSINESS.
(1) An adult bookstore, adult video arcade, adult bookstore or video store, adult cabaret, adult lingerie store/modeling studio, adult lounge, adult motel, adult movie theater, adult video theater, adult theater, escort agency, modeling studio, nude modeling studio, sexual encounter center, adult novelty store, or other commercial enterprise a primary business 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.
(2) The following are exempted from regulation under this chapter:
(a) A business operated by or employing a licensed psychologist, licensed physical therapist, licensed athletic trainer, licensed cosmetologist, licensed barber or any other state licensed/regulated professional engaged in performing functions authorized under the license held; or
(b) A business operated by or employing a licensed physician or licensed chiropractor engaged in practicing the healing arts.
SEXUALLY ORIENTED TOYS AND SEXUALLY ORIENTED NOVELTIES. Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others. Shall include but is not limited to sexually oriented vibrators, dildos, masturbators, auto sucks, inflatable orifices, anatomical orifices, simulated and battery- operated vaginas, anal plugs, and Ben Wa balls. Not included in this definition are pharmaceutical supplies.
SIGN. Any writing, name, number, figure, character, outline, emblem, graphic, window etching, stained or painted glass, mark, logo, mural, symbol, spectacle, display, delineation, announcement, advertising, billboard, signboard, flag, banner, pennant, bunting, device, appliance, structure erected
for the purposes of supporting a sign, or any other thing of similar nature designed to attract attention outdoors, in or on any face or wall, window, awning, store front of any building, or on any pole or other form of support or structure and shall include all parts, portions, units, and materials composing the same, together with the frame, background, and support of anchorage thereof.
SPECIFIED ANATOMICAL AREAS. Specified anatomical areas are:
(1) Less than completely and opaquely covered: (a) human genitals, (b) human buttock or anus, or (c) female breasts below a point immediately above the top of the areola;
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered; or
(3) Any combination of the above.
Nothing in this definition should be construed to authorize or permit any person or entity to commit an offense listed in § 115.37, the commission of such offenses being expressly prohibited, nor shall this definition be construed to establish or define standards for acceptable conduct. Without limiting the generality of the foregoing, obscenity as defined by the Texas Penal Code is specifically prohibited.
SPECIFIED SEXUAL ACTIVITIES. Specified sexual activities are those activities which display:
(1) Human genitals in a state of sexual stimulation or arousal;
(2) Acts of human masturbation, sexual intercourse or sodomy;
(3) Fondling or other erotic touching of human genitals, pubic region, buttock, anus, or female breasts;
(4) Intrusion, however slight, of any object, any part of an animal's body, or any part of a person's body into the genital or anal openings of any person's body, or into the body of an animal;
(5) Cunnilingus, fellatio, anilingus, bestiality, or exhibition of excretory function;
(6) Flagellation, mutilation or torture for the purposes of sexual arousal or gratification; or
(7) Sex acts, actual or simulated, including intercourse, oral copulation or sodomy; or
(8) Any combination of the above.
Nothing in this definition should be construed to authorize or permit any person or entity to commit an offense listed in § 115.37, the commission of such offenses being expressly prohibited, nor shall this definition be construed to establish or define standards for acceptable conduct. Without limiting the generality of the foregoing, obscenity as defined by the Texas Penal Code is specifically prohibited.
SUB-RENT. The act by one who has rented a room of permitting the room to be occupied for any form of consideration.
SUBSTANTIAL ENLARGEMENT. The increase in floor area occupied by the business by more than 25%, in addition to the floor area that existed on June 21, 1994 or the date first licensed if the business was not operating on June 21, 1994.
TRANSFER OF OWNERSHIP OR CONTROL. Includes any of the following:
(1) The sale, lease, or sublease of the business;
(2) The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
(3) The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for the transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
VIEWING ROOM. An area designed to permit one or more persons the opportunity to view or observe a dancer, model, or other entertainer in a “private” or semi-private environment.
(Ord. 95-31, passed 9-12-95; Am. Ord. 96-12, passed 2-27-96; Am. Ord. 97-6, passed 4-22-97; Am. 2001-33, passed 10-23-01; Am. Ord. 2022-76, passed 12-13-22)