A.
A person
commits an offense if the person operates or causes to operate a Sexually
Oriented Business without a valid license, issued by the City for
the particular classification of Sexually Oriented Business.
B.
Any person,
association, firm, partnership or corporation desiring to obtain a
Sexually Oriented Business license shall make application on a form
provided by the Chief of Police. The application must be accompanied
by a sketch or 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
(6").
C.
The applicant
must be qualified according to the provisions of this article.
D.
An individual person who wishes to operate a Sexually Oriented Business 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 18-81, and each applicant shall be considered a licensee if a license is granted.
E.
The fact
that a person possesses other types of State or City permits does
not exempt that person from the requirement of obtaining a license
for a Sexually Oriented Business.
F.
All applications for a license under this article shall be accompanied by a nonrefundable application fee. The fees shall follow the schedule set forth in Chapter 30 of the Euless Municipal Ordinance. An application shall not be considered to have been received as administratively complete until the fee is paid and all information required by the application form has been submitted. The application fee shall not be prorated in the event an application is tendered before or during the licensing period.
G.
Upon approval
of a Sexually Oriented Business license, an applicant for a Sexually
Oriented Business license must obtain a Certificate of Occupancy for
a Sexually Oriented Business from the Building Official. The Building
Official shall issue or deny a Certificate of Occupancy to a Sexually
Oriented Business not more than forty-five (45) business days subsequent
to the date of the applicant’s submission of such application
for a Certificate of Occupancy to the City’s Office of Building
Inspections. Such application for a Certificate of Occupancy shall
be deemed approved if not approved or denied within such time period.
H.
Upon approval
of a Sexually Oriented Business license, if an applicant for a Sexually
Oriented Business requires a building permit under applicable city
ordinances, the Building Official shall cause all building, fire,
health and other necessary permits to be issued within thirty (30)
business days subsequent to the date of the applicant’s submission
of an application for said permit to the City’s Office of Building
Inspections. Upon receipt of administratively complete application(s),
the Building Official shall cause all necessary inspections to occur
within thee (3) business days of the applicant’s request for
an inspection made to the Building Official. Such application(s) shall
be deemed approved if not approved or denied within such time period.
The applicant must specify on the face of its application that the
proposed use is for a Sexually Oriented Business and give the name
and address of the applicant’s contact person for all communications
and notices.
I.
Notwithstanding
any other ordinance, an applicant for a Sexually Oriented Business
may appeal any decision of the Building Official by appealing to the
Zoning Board of Adjustment within thirty (30) calendar days after
receipt of notice of decision or the expiration of the deadlines set
forth in (G) or (H) above. The applicant may appeal any decision of
the Zoning Board of Adjustment to the appropriate county court at
law within thirty (30) calendar days of that decision. The filing
of such suit will have the effect of staying denial of such building
permit or Certificate of Occupancy pending a judicial determination.
A provisional permit or certificate shall be granted upon the filing
of a court action to appeal the denial of such permit or certificate.
The provisional permit or certificate will expire upon entry of judgment
on such appeal.
J.
A licensee or operator commits an offense if the licensee or operator fails to display a legible copy of the complete provisional permit or certificate described in Subsection 18-81 (I), if applicable, on the exterior of the Sexually Oriented Business premises. Such copy of the provisional permit or certificate must be prominently and continuously displayed where customers enter the premises and immediately adjacent to such entrances.
K.
This section
shall not apply to ADULT BOOKSTORES, ADULT NOVELTY STORES and ADULT
VIDEO STORES, as those terms are defined herein.
(Ordinance 1844, 3-24-09)
A.
The Chief
of Police shall approve the issuance of a license to an applicant
within thirty (30) days after receipt of an application, unless the
Chief of Police finds one (1) or more of the following to be true:
1.
The location
of the Sexually Oriented Business is or would be in violation of Article
III of this Chapter.
2.
The applicant
failed to supply all of the information requested on the application.
3.
The applicant
gave false, fraudulent or untruthful information on the application.
4.
An applicant
is under eighteen (18) years of age.
5.
An applicant
or an applicant’s spouse is overdue in payment to the Texas
Secretary of State or the City of taxes, fees, fines or penalties
assessed against or imposed upon the applicant or the applicant’s
spouse in relation to a Sexually Oriented Business.
6.
An applicant
or an applicant’s spouse has been convicted or placed on deferred
disposition, probation or community supervision for a violation of
a provision of this Chapter, within two (2) years immediately preceding
the application. The fact that a conviction is being appealed shall
have no effect.
7.
The license
fee required by this Article has not been paid.
8.
The applicant
has not demonstrated that the owner of the Sexually Oriented Business
owns or holds a lease for the property or the applicable portion thereof
upon which the Sexually Oriented Business will be situated or has
a legally enforceable right to acquire the same.
10.
An
applicant or an applicant’s spouse has been convicted or placed
on deferred disposition, probation, or community supervision for:
a.
Any offense under the laws of the United States of America, another state or the Uniform Code of Military Justice for an offense described in this Section 18-82 (A)(10); or
b.
Any
of the below offenses of the State of Texas or criminal attempt, conspiracy,
or solicitation to commit same:
(1)
Any of the following offenses as described in Chapter 43 of the Texas
Penal Code:
(4)
Incest, solicitation of a child or harboring a runaway child as described
in Chapter 25 of the Texas Penal Code; or
(5)
Those crimes defined as “drug-defined offenses” or “drug-related
offenses” by the Bureau of Justice Statistics Drug & Crime
Data Fact Sheet, 1994, for which punishment would be classified as
a felony as set forth in Section 12.04 of the Texas Penal Code;
c.
For
which:
(1)
Less than two (2) years have elapsed since the date of conviction,
or the date of release from the terms of community supervision, probation,
parole or deferred disposition or the date of release from confinement
imposed for the conviction, whichever is the later date, if the conviction
is a misdemeanor offense; or
(2)
Less than five (5) years have elapsed since the date of conviction,
or the date of release from the terms of community supervision, probation,
parole or deferred disposition or the date of release from confinement
for the conviction, whichever is the later date, if the conviction
is a felony offense; or
(3)
Less than five (5) 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 (2) or
more misdemeanor offenses or combination of misdemeanor offenses occurring
within any twenty-four (24) month period.
11.
The applicant or the applicant’s spouse is required to register as a sex offender under the provisions of Chapter 62 of the Texas Code of Criminal Procedure.
12.
The
applicant failed to comply with any of the requirements of Section
243.0075 of the Texas Local Government Code regarding the posting
of an outdoor sign.
B.
An applicant, or applicant’s spouse, who has been convicted of or placed on deferred disposition, probation or community supervision for an offense listed in Section 18-82(A)(10) may qualify for a Sexually Oriented Business license only when the time period required by Section 18-82(A)(10)(c) has elapsed.
C.
The license,
if granted, shall state on its face the name of the person or persons
to whom it is granted, the expiration date and the address of the
Sexually Oriented Business.
D.
The license
shall be posted in a conspicuous place at or near the entrance to
the Sexually Oriented Business, so that it is visible to the public
at all times and may be easily read.
(Ordinance 1844, 3-24-09)
A.
A licensee,
operator or employee of a Sexually Oriented Business shall be subject
to regulation under this Chapter and shall permit representatives
of the Police Department, Health Department, Fire Department, Building
Inspections Division and Code Enforcement Division to inspect all
portions of the premises where customers are allowed and the records
required to be maintained under this Chapter by the Sexually Oriented
Business for the purpose of ensuring compliance with this Chapter
at any time it is occupied or open for business.
B.
A licensee
or operator of a Sexually Oriented Business commits an offense if
the person operates the establishment without maintaining a current
list of all employees of the business, along with a complete updated
employment application for each employee. A legible copy of a valid
driver’s license, state identification card, or passport, with
a photograph, together with an original photograph accurately depicting
the employee as the person appears at the time the person is hired,
shall be required and maintained on the premises with the employee’s
application.
C.
A licensee
or operator of a Sexually Oriented Business commits an offense if
the person refuses to permit a lawful inspection of the records and
premises by a representative of the Police Department at any time
the Sexually Oriented Business is occupied or open for business.
D.
The licensee
or operator of a Sexually Oriented Business shall maintain all records
required to be maintained under the provisions of this Chapter on
the licensed premises.
E.
The licensee
or operator of a Sexually Oriented Business commits an offense if
the person does not maintain the required records on the premises
of the licensed establishment.
F.
A licensee,
operator or employee of a Sexually Oriented Business shall permit
representatives of the Police Department to take photographs of the
licensee, operator or employees of the Sexually Oriented Business
for the purpose of ensuring compliance with this Chapter at any time
it is occupied or open for business.
G.
A licensee,
operator or employee of a Sexually Oriented Business commits an offense
if that person does not permit representatives of the Police Department
to take photographs of the licensee, operator or employee of the Sexually
Oriented Business at any time it is occupied or open for business.
H.
The provisions
of this section do not apply to areas of a Sexually Oriented Motel
which are currently being rented by a customer for use as a permanent
or temporary habitation.
(Ordinance 1844, 3-24-09)
A.
Each license
shall expire one year after the date of issuance.
B.
Renewal
of a license may be applied for by submission to the Chief of Police
of an application on the form prescribed by such official and payment
of a nonrefundable renewal processing fee of Five Hundred Dollars
($500).
C.
Application
for renewal shall be made at least thirty (30) days before the expiration
date of the current license.
(Ordinance 1844, 3-24-09)
A.
Subject to Section 18-85(B), the Chief of Police shall suspend a Sexually Oriented Business license if the Chief of Police determines that a licensee(s), operator(s) or employee(s) of a licensee (or any combination thereof) has/have:
1.
(a) On five (5) or more occasions within any twelve (12) month period of time been cited for a violation of Sections 18-120, 18-122, 18-123 or any of the provisions of Division 3 or 4 of this Chapter; (b) been convicted or placed on deferred disposition or probation for the violations; and (c) the Chief of Police determines that notice of the citations has been sent to the licensee in accordance with Section 18-131 of this Chapter; or
2.
(a) On five (5) or more occasions within any twelve (12) month period of time been cited for a violation of Section 18-83 of this Chapter; (b) been convicted or placed on deferred disposition or probation for the violations; and (c) the Chief of Police determines that notice of the citations has been sent to the licensee in accordance with Section 18-131 of this Chapter; or
3.
(a) Cited for any combination of offenses under subsections (1) or (2) above that total five (5) within any twelve (12) month period of time; (b) convicted or placed on deferred disposition or probation for the violations; and (c) the Chief of Police determines that notice of the citations has been sent to the licensee in accordance with Section 18-131 of this Chapter.
B.
A period of suspension will begin the first day after the decision of the Chief of Police becomes final as provided in Section 18-86, unless the licensee appeals to district court under Section 18-89. If appeal is taken under Section 18-89, the period of suspension begins the day after all appeals are final.
C.
Each day
in which a violation is permitted to continue shall constitute a separate
violation for purposes of suspension.
(Ordinance 1844, 3-24-09)
A.
The Chief
of Police may revoke a Sexually Oriented Business license:
2.
If the
Chief of Police determines that on two or more occasions within a
five (5) year period of time a licensee(s) or operator(s) (or any
combination thereof) has/have been convicted of or placed on deferred
disposition, probation or community supervision for conduct occurring
in a licensing period on the premises of a Sexually Oriented Business
that constitutes any of the offenses of the State of Texas or criminal
attempt, conspiracy, or solicitation to commit same for:
a.
Any
of the following offenses as described in Chapter 43 of the Texas
Penal Code:
d.
Incest,
solicitation of a child or harboring a runaway child as described
in Chapter 25 of the Texas Penal Code; or
e.
Those
crimes defined as “drug-defined offenses” or “drug-related
offenses” by the Bureau of Justice Statistics Drug & Crime
Data Fact Sheet, 1994, for which punishment would be classified as
a felony as set forth in Section 12.04 of the Texas Penal Code.
3.
If a
licensee or operator gave false or misleading information in the material
submitted to the Chief of Police during the application process;
4.
If a
licensee or operator has knowingly allowed possession, use or sale
of a controlled substance on the premises;
5.
If a
licensee or operator has on two (2) or more occasions knowingly allowed
prostitution on the premises;
6.
If a
licensee or operator knowingly operated the Sexually Oriented Business
during a period of time when the licensee’s license was suspended;
7.
If a
licensee or operator has, on two (2) or more occasions, knowingly
allowed any act of sexual intercourse, sodomy, oral copulation, masturbation
or sexual contact to occur in or on the licensed premises. The term “sexual
contact” shall have the same meaning as it is defined in Section
21.01, Texas Penal Code;
8.
If 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;
B.
The fact
that a conviction is being appealed shall have no effect on the revocation
of the license.
(Ordinance 1844, 3-24-09)
A.
A denial,
suspension, or revocation is an administrative procedure. In any hearing
relating to such actions under this Section, the burden of proof shall
be on the City (except for affirmative defenses), and shall be by
a preponderance of the evidence.
B.
If the
Chief of Police is authorized to deny the issuance of a license, or
suspend or revoke a license, the Chief of Police shall give written
Notice to the applicant or licensee of his intent to implement denial,
suspension, or revocation procedures.
C.
The notice
shall provide that the denial of issuance, suspension or revocation
shall take effect at the expiration of the tenth calendar day after
notification, unless the licensee or permit holder provides a written
request for hearing to the Chief of Police before the expiration of
the tenth calendar day.
D.
If a written
request for hearing from the applicant, permit holder, or licensee
is received by the Chief of Police before the expiration of the tenth
calendar day, the suspension, denial of issuance, or revocation will
be stayed pending a hearing and a decision by the Hearing Officer.
E.
In making a determination as to the denial of a license, the Chief of Police shall consider whether the applicant has established the applicant’s entitlement to a license under the requirements imposed by Section 18-82 of this Chapter and/or whether the City has established a disqualifying factor under the requirements imposed by Section 18-82 of this Chapter.
F.
In making a determination of the suspension of a license under Section 18-85 of this Chapter, the Chief of Police shall consider: (1) whether the required number of citations under Section 18-85(A)(1), (2), or (3) were issued to the licensee, operator, or employee of the licensee within a twelve (12) month period of time; (2) whether notice of such citations was sent to the proper Sexually Oriented Business in compliance with Section 18-131 of this Chapter; (3) whether the licensee, operator, or employee of the licensee was convicted or placed on deferred disposition or probation for the citations.
G.
In making a determination of the revocation of a license under Section 18-86(A)(1) of this Chapter, the Chief of Police shall consider: (1) whether the required number of citations under Section 18-85(A)(1), (2), or (3) were issued to the licensee, operator, or employee of the licensee within a twelve (12) month period of time; (2) whether notice of such citations was sent to the proper Sexually Oriented Business in compliance with Section 18-131 of this Chapter; (3) whether the licensee, operator, or employee of the licensee was convicted or placed on deferred disposition or probation for the citations; and (4) whether the license at issue has been ordered suspended for a thirty (30) day period of time pursuant to Section 18-88(B)(4) of this Chapter within the preceding twelve (12) month period of time.
(Ordinance 1844, 3-24-09)
A.
The revocation of a license as provided for in Section 18-86 of this Chapter shall be for a period of twelve (12) months.
B.
The suspension of a license as provided for in Section 18-85 of this Chapter shall be as follows:
1.
The first
suspension of a license shall be for a period of three (3) calendar
days. When the Chief of Police is authorized to suspend a license
for three (3) days, he shall notify the licensee in the notice of
decision of the licensee’s opportunity to pay a reinstatement
fee in the amount of $500.00 in lieu of the suspension. Payment of
this administrative fee shall be considered, for the purposes of this
Subsection, the first suspension and an administrative admission of
the violations. However, this shall not be used as an admission of
guilt in a criminal prosecution under this Chapter. If the licensee
does not pay the reinstatement fee before the expiration of the thirtieth
(30th) calendar day after notification, the licensee loses the opportunity
to pay it.
2.
The second
suspension of a license shall be for a period of seven (7) calendar
days.
3.
The third
suspension of a license shall be for a period of fifteen (15) calendar
days.
(Ordinance 1844, 3-24-09)
A.
The applicant
or licensee shall have ten (10) calendar days from the date notice
is received, to request a hearing on the denial, suspension or revocation.
The request shall be in writing and delivered via personal delivery,
or via U.S. Postal Service, Certified Mail, Return Receipt Requested.
If filed by mail, the request shall be considered timely filed if
the green return receipt card shows the item was properly addressed
and received by the addressee on or before the tenth calendar day
from the date the permit holder, licensee, or applicant received Notice
of Intention to Revoke/ Suspend. Upon receipt of the request for hearing,
a hearing before the Hearing Officer shall be scheduled to take place
within thirty (30) calendar days unless both parties agree to a certain
date beyond the thirty days. The Hearing Officer shall consider only
the testimony and evidence admitted for consideration at the hearing.
The Hearing Officer shall have five (5) business days from the date
of the hearing to notify the applicant or licensee of the decision.
1.
Standing.
a.
Only
the Chief of Police and the licensee, permit holder, or applicant
shall have standing in an administrative revocation, suspension, or
denial proceeding.
3.
Status
of Permit During Hearing.
a.
While
a case is pending, and prior to the final decision of the Hearing
Officer regarding revocation or suspension, a permit remains valid
unless:
(1)
It expires without timely application for renewal;
(2)
It is voluntarily withdrawn or surrendered by the permit holder;
or
(3)
The permit holder commits an act or omission contrary to the provisions
of this Article which otherwise invalidates the permit.
(4)
This shall not apply during any judicial appeal following the decision
of the hearing officer.
4.
Applicable
Rules.
a.
Except
as otherwise indicated herein, the Texas Rules of Evidence and the
Texas Rules of Civil Procedure shall apply to a hearing.
5.
The following
additional rules shall apply to any hearing pursuant to this Article:
a.
The
City Attorney, or his designated representative shall represent the
Chief of Police.
b.
Except
upon express written agreement of all parties to the hearing, or upon
showing of good cause for a period not to exceed twenty days, a hearing
will not be continued.
c.
Ex
parte communications in connection with any issue of fact or law between
any party and the Hearing Officer are strictly prohibited, except
on notice and opportunity for each party to participate.
d.
A party
may request a court reporter to transcribe the hearing. The party
requesting a transcript of the hearing shall bear the cost for production
of the transcript.
e.
If
there be any conflict between the Texas Rules of Evidence and the
Texas Rules of Civil Procedure and the rules set forth in this Article,
this Article shall prevail.
6.
Record.
The hearing record shall include the following:
a.
a File
Stamped Copy of Notice of Intention to Revoke/ Suspend Permit;
b.
the
request for a hearing and any written response to the Notice of Intention
to Revoke/ Suspend Permit or License;
c.
a statement
of matters officially noticed;
d.
questions
and offers of proof, objections, and ruling on them;
e.
each
decision, opinion, or report prepared by the Hearing Officer at the
hearing;
f.
all
documents, data, and other evidence submitted to or considered by
the Hearing Officer used in making his or her decision; and,
g.
the
record shall be filed with the Municipal Court for the City of Euless.
7.
Decision
of the Hearing Officer.
a.
If
a request for a hearing has been timely filed, the Hearing Officer
shall conduct a de novo hearing and shall make one of the following
findings:
(1)
If the hearing is one for which the permit or license is subject to suspension, the Hearing Officer’s determination that the alleged offense occurred and the severity of the offense, either order a suspension pursuant to the time periods in Section 18-88; or deny the suspension.
(2)
If the Hearing Officer finds that any of the condition set forth in this Article exists that would make the permit or license subject to revocation, the Hearing Officer shall, on the basis of the severity of the offense, either: revoke the permit or license, or order a suspension pursuant to Section 18-88.
b.
If
the Hearing Officer does not make the requisite findings, then the
permit or revocation or suspension is deemed as being denied.
8.
Notice
of Revocation/ Suspension.
a.
A final
decision or order by the Hearing Officer shall be issued in writing,
and shall:
(1)
include findings of fact and conclusions of law, separately stated;
(2)
contain a concise and explicit statement of the underlying facts
supporting the findings;
(3)
if a party submits proposed finding of fact, the decision or order
shall include a ruling on each proposed finding;
(4)
be rendered not later than five business days after the date on which
the hearing is finally closed;
(5)
be provided to all parties via personal delivery or via United States
Postal Service, Certified Mail, Return Receipt Requested; and
(6)
be considered timely if:
b.
The decision by the Hearing Officer is effective thirty (30) calendar days after the applicant or licensee is notified of the decision, unless a reinstatement fee under Section 18-88(B)(1) of this Chapter is paid (if available), or an appeal is made to District Court.
c.
Following
a final decision, any revocation or suspension of the permit in question
shall take effect upon the date of delivery of the notice of the Hearing
Officer’s decision or such other date as may be set by the Hearing
Officer and stated in the notice.
d.
Any
act authorized by permit shall be unauthorized and in violation of
this Article upon and after the effective date of any suspension of
the permit until the suspension expires.
e.
Any
act authorized by a permit shall be unauthorized and in violation
of this Article upon and after the effective date of any revocation
of the permit unless and until a new permit, if any, is applied for
and granted pursuant to the terms of this Article. If a permit has
been revoked because of crimes or activities occurring on the premises
of a Sexually Oriented Business, the owner/ operator of the Sexually
Oriented Business is disqualified from receiving or holding any permit
under this Article for a period of one calendar year from the effective
date of the revocation.
f.
If
a permit is suspended or revoked because of crimes or activities occurring
on the premises of a Sexually Oriented Business, each and every individual,
person, or association which is an owner/ operator of a Sexually Oriented
Business at the time of any suspension or revocation of the sexually
oriented business for that establishment shall be considered to have
had a permit suspended or revoked as if they held the permit or license
in their own name for purposes of determining whether they are qualified
to participate in another permit application under this Article. If
a permit is suspended or revoked because of crimes or activities of
one or more of the permit holders which did not occur on the licenses
premise, then only the individual(s) shall be considered to have had
a permit suspended or revoked for purposes of determining whether
they are eligible to participate in another permit application under
this Article.
B.
Upon receipt of written notice of the denial, suspension or revocation of a license, the applicant whose application for a license has been denied or whose license has been suspended or revoked shall have the right to appeal by filing suit in the appropriate district court within thirty (30) calendar days after the receipt of notice of the decision of the Hearing Officer, as applicable. The filing of such suit shall have the effect of staying denial, suspension or revocation for the Sexually Oriented Business licensed under this Chapter at such location, pending a judicial determination of the appeal. The City shall grant a provisional license upon the filing of a court action to appeal the denial of a Sexually Oriented Business license if the applicant is not currently licensed for such business at the subject location; provided, however, a provisional license shall not be issued under the following circumstances: (a) the location of the proposed Sexually Oriented Business is or would be in violation of Division 8 of this Chapter; (b) the duration of the provisional license would coincide with any period of license suspension or revocation set forth in Section 18-88; or (c) there has been a judicial determination upholding the denial of a license for such Sexually Oriented Business at such location within the previous twelve (12) calendar months. Written notice of the denial of a provisional license and the basis for the denial will be provided by the Chief of Police within ten (10) calendar days of service of the court action upon the City.
If the Hearing Officer renders a decision adverse to the Chief
of Police, then the Chief of Police shall have thirty days from which
the Notice of Revocation/ Suspension is issued in which to file suit
in the appropriate district court.
Failure to file suit shall waive and shall bar any appeal or
cause of action if suit is not filed within thirty days.
C.
Any provisional
license and certificate of occupancy issued under this section will
expire upon the court’s entry of judgment on such appeal. The
applicant shall bear the burden of proof in court. The substantial
evidence standard of review shall apply to such appeal.
(Ordinance 1844, 3-24-09)
A.
A person
commits an offense if the person transfers a license or permit to
another person or operates a Sexually Oriented Business under the
authority of a license at any place other than the address designated
on the license. A transfer of a license is deemed to have occurred
if there is a transfer of more than fifty percent (50%) of the ownership
or control of a Sexually Oriented Business.
B.
A person
commits an offense if the person counterfeits, forges, changes, defaces
or alters a license.
(Ordinance 1844, 3-24-09)
A.
If the
Chief of Police denies the issuance of a license to an applicant because
the location of the Sexually Oriented Business is in violation of
Division 8, then the applicant may, not later than ten (10) calendar
days after receiving notice of the denial, file with the City Secretary
a written request for an exemption from the locational restrictions.
B.
If the
written request is filed with the City Secretary within the ten (10)
day limit, the Zoning Board of Adjustment shall consider the request.
The City Secretary shall set a date for the hearing within sixty (60)
days from the date the written request is filed, unless both parties
agree to a certain date beyond the sixty (60) days. If a timely request
is so filed, the existing license is deemed not to have expired until
the decision of the Board on such request. The Zoning Board of Adjustment
shall enter a written ruling on the request within five (5) days of
the hearing.
C.
[Reserved.]
D.
[Reserved.]
E.
The Zoning
Board of Adjustment may grant an exemption from the location restrictions
of Division 8, if it makes the following findings:
1.
That
the location of the Sexually Oriented Business will not have a detrimental
effect on nearby properties or be contrary to the public safety or
welfare;
2.
That
the location of the Sexually Oriented Business will not downgrade
the property values or quality of life in the adjacent areas or encourage
the development of urban blight;
3.
That
the location of the Sexually Oriented Business in the area will neither
be contrary to any program of neighborhood conservation, nor will
it interfere with any efforts of urban renewal or restoration; and
4.
That
all other applicable provisions of this Chapter will be observed.
F.
In making the findings specified in Section 18-91(E), the Board may take into account among other things:
1.
Crime
statistics of the location and its 1,000 foot radius maintained by
the appropriate law enforcement agency for the previous twelve (12)
month period;
2.
Assessed
values for the location and properties within the surrounding 1,000
foot radius, taking into account any decline or increase in property
values or rates of decrease or increase in property values in relation
to otherwise comparable properties;
3.
Sales,
leases, and vacancy rates of all property types within the surrounding
1,000 foot radius in relation to otherwise comparable properties;
and
4.
Any evidence
regarding the award or denial of any public or private grants for
neighborhood conservation, urban renewal or restoration for any property
located within a 1,000 foot radius.
G.
The Board
shall grant or deny the appeal by a majority vote. Failure to reach
a majority vote approving the appeal shall result in denial. Disputes
of fact shall be decided on the basis of a preponderance of the evidence.
A decision by the Zoning Board of Adjustment shall be considered a
final action.
H.
If the Board grants an exemption to the location restrictions, the exemption is valid for one (1) year from the date of the Board’s action. Except as provided in Section 18-91(B), the Sexually Oriented Business is in violation of the location restrictions of Division 8 until the applicant applies for and receives another exemption.
I.
The grant
of an exemption does not exempt the applicant from any provisions
of this Chapter other than the location restrictions.
(Ordinance 1844, 3-24-09)
A.
It is an exception to the application of Section 18-107 of this Article that at the time of the state of nudity or semi-nudity the actor was:
1.
an individual,
person, or, in the case of 18-107 C. -18-107 F., an association, who
owns manages, operates, or appears nude in a public place that is
a business operated by or employing a licensed psychologist, licensed
physical therapist, licensed athletic trainer, licensed cosmetologist,
licensed massage therapist, or licensed barber engaged in performing
function authorized under the lawful license held;
2.
an individual,
person, or, in the case of 18-107 C. -18-107 F., an association, who
owns, manages, operates, or appears in nude in a public place that
is a business operated by or employing a licensed physician or chiropractor
engaged in practicing the healing arts; or
3.
an individual,
person, or, in the case of 18-107 C. -18-107 F., an association, who
owns, manages, operates, or appears in nude in a public place that
is a business licensed as a tattoo studio or a body piercing studio
and was engaged in practices authorized under the license.
(Ordinance 1844, 3-24-09)
