(a)
These
regulations are promulgated pursuant to, and in conformity with, V.T.C.A.,
Local Government Code chapter 243, as amended.
(b)
It
is the intent of the city council to exercise its regulatory powers
permitted under V.T.C.A., Local Government Code chapter 243 and 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. The city council desires to establish reasonable
and uniform regulations of sexually oriented businesses to promote
and protect the health, safety and general welfare of the citizens
of the city. The city council also desires to prohibit business activities
that merely serve as a front for activities prohibited by the Texas
Penal Code, including, but not limited to, prostitution and the promotion
of prostitution.
(c)
These
regulations are not intended to impose any limitation or restriction
on the content of any communicative material, including sexually oriented
material. Similarly, it is not the intent nor effect of these regulations
to restrict or deny access by adults to sexually oriented material
protected by the First Amendment of the United States Constitution,
to deny access by the distributors and exhibitors of sexually oriented
entertainment to their intended market or to suppress any speech activities
protected by the First Amendment. The city recognizes that prohibitions
on the promotion of obscene material (not protected by the First Amendment)
are enforceable through separate criminal sanctions under the Penal
Code.
(d)
These
regulations are not intended to legalize anything prohibited under
the Texas Penal Code or any other law or regulation.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-124)
(a)
The
city council hereby designates and directs the city manager to accept
applications for issuance or renewal of sexually oriented business
permits, to certify compliance with the location restrictions and
to investigate the factual representations made in such applications.
(b)
The
city manager is authorized and directed to enforce these regulations.
The chief of police is authorized to investigate sexually oriented
businesses’ service provider records and to investigate and
enforce the operating requirements imposed on sexually oriented businesses.
(c)
Pursuant
to V.T.C.A., Local Government Code section 243.007(c), the district
court has jurisdiction over a suit that arises from the denial, suspension
or revocation of a SOBP by the city.
(d)
V.T.C.A.,
Local Government Code section 243.010(a) and (b), as amended, authorize
the prosecution of a violation of these regulations as a class A misdemeanor.
(e)
The
revocation or suspension of a SOBP, or the imposition of an administrative
fine, shall not prevent the imposition of a criminal penalty for the
same conduct and the imposition of a criminal penalty shall not prevent
the revocation or suspension of a SOBP, or the imposition of an administrative
fine, for the same conduct, pursuant to these regulations.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-125)
These regulations shall apply to sexually oriented business
enterprises located within the incorporated area of the city.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-126)
The following words, terms and phrases, when used in this article,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
means 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:
Books, magazines, periodicals or other printed matter, photographs,
films, motion pictures, videocassettes 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
Instruments, devices, or paraphernalia that are designed for
use in connection with specified sexual activities, as defined in
this section.
means a nightclub, bar, restaurant or similar commercial
establishment that features:
Persons who appear totally nude, semi-nude or in a state of
nudity, as defined in this section;
Live performances which are characterized by the exposure of
specified anatomical areas or specified sexual activities, as defined
in this section; or
Films, motion pictures, computer simulations, videocassettes,
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.
means a hotel, motel or similar commercial establishment
that:
Offers a sleeping room to the public for money or any other
form of compensation or consideration; and provides patrons with closed-circuit
television transmissions, films, motion pictures, videocassettes,
slides or other reproductions which are characterized by specified
sexual activities or specified anatomical areas, as defined in this
section; and has a sign visible from the public right-of-way which
advertises the availability of this adult type of photographic reproductions;
Offers a sleeping room for rent for a period of time that is
less than ten hours; or
Allows a tenant or occupant of a sleeping room to sub-rent the
room for a period of time that is less than ten hours.
means any place to which the public is permitted or invited
wherein coin- 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, as defined in this section.
means a commercial establishment where, for money or any
other form of compensation or consideration, films, motion pictures,
videocassettes 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.
means a theater, concert hall, auditorium or similar commercial
establishment which regularly features live performances characterized
by the exposure of specified sexual activities or specified anatomical
areas, as defined in this section.
means to knowingly let happen, to cause, or to knowingly
suffer or permit, and includes the knowing failure to prevent.
means the individual or entity submitting the application
for a SOBP. Where appropriate, this includes a written designated
agent of the applicant.
means any employee who handles money or any other form of
compensation or consideration from clients of an enterprise for services
or products provided.
means 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 15 years of age, licensed by the state
pursuant to V.T.C.A., Human Resources Code chapter 42.
means a facility, including all structures and grounds, at
which persons regularly assemble for worship, or that is intended
primarily for purposes connected with faith or for propagating a particular
form of belief.
means the governing body of the city.
means the city manager or his designated agent.
means a judgment finding a person guilty of the offense charged.
The term does not include an order of a court deferring further proceedings
without entering an adjudication of guilt for an offense to which
a person has entered a plea of guilty or nolo contendere, unless there
is a violation of a condition of the community supervision imposed
upon the defendant and a subsequent entry of an adjudication of guilt.
Where an adjudication of guilt is entered, it shall be considered
a conviction, regardless of whether a sentence for the offense was
imposed, probated or suspended.
means a house, duplex, apartment, townhouse, condominium,
mobile home or any other building used for residential purposes, whether
single-family or multifamily, attached or detached, and regardless
of whether tenant or owner occupied.
means any person who works in or about a sexually oriented
business enterprise (SOBE) and renders any service whatsoever to the
patrons of a SOBE and receives money, gratuities or any other form
of compensation or consideration for such service or work from the
enterprise operator or owner of the SOBE or from the patrons thereof,
excepting those persons who have an independent contractor relationship
with the SOBE.
means an owner, manager or other natural person principally
in charge of a SOBE.
means any service provided by a cashier, enterprise operator,
server, employee or independent contractor or other person at a SOBE.
The term does not include a person who provides no other services
at the SOBE other than repairs or maintenance to the premises or equipment.
means an individual who, in exchange for consideration, agrees
or offers to provide a service intended or calculated to sexually
stimulate or sexually gratify the person receiving the service, and
where such services are characterized by the individual providing
the services as constituting, or including, acting as a private escort,
date, guide or companion.
means 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.
means a building used to provide inpatient medical care for
the sick or injured and is licensed pursuant to the Texas Hospital
Licensing Law, V.T.C.A., Health and Safety Code chapter 241, or is
operated by an agency of the federal government, or is a convalescent
facility licensed pursuant to V.T.C.A., Health and Safety Code chapter
242.
means any person who owns or leases real property within
1,500 feet of a SOBE, any city official who is elected by residents
of the city, and the chief of police, but does not include the applicant.
means a live performance by one or more individuals. Live
exhibitions include dancing, modeling, stripping, juggling, acrobatic
acts, wrestling, pantomime and similar performance activities.
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, sculpted, photographed or similarly
depicted by another person who pays money or any form of consideration.
means:
means cause to function or to put or keep in operation. A
person may be found to be operating or causing to be operated a SOBE
whether or not that person is an owner, part owner, or licensee of
the business.
means any paying or nonpaying customer or client of a SOBE,
including members of the public or club members invited or admitted
to a SOBE.
means a place designated by law for confinement of persons
arrested for, charged with or convicted of an offense.
means an individual, proprietorship, partnership, corporation,
association or other legal entity.
means:
A business where 50 percent or more of gross floor area is devoted
to the sale, display or storage 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;
or
A business where 50 percent or more of gross receipts are 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.
means a building used by a federal, state or local government
that is open to the general public.
means 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 nonprofit organizations that provide educational and recreational
facilities.
means regulations adopted by the city council governing the
operation of sexually oriented business enterprises.
means 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.
means a state of dress in which clothing, or other materials
or devices, including supporting straps, opaquely covers no more than
the buttocks, anus, genitalia, and areola of a female breast.
means an individual who serves food or beverages to patrons
in a SOBE, and includes waiters, waitresses, hosts, hostesses and
bartenders.
means a business or commercial enterprise that, as one of
its primary business purposes, offers for any form of consideration:
means a sex parlor, nude modeling studio, sexually oriented
modeling studio, love parlor, adult bookstore, adult movie picture
theater, adult theater, adult video arcade, adult movie arcade, adult
video store, adult motel, adult cabaret, escort agency and sexual
encounter center and includes any 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 designed or intended to
provide sexual stimulation or sexual gratification to the customer.
The term “SOBE” shall not be construed to include:
A business operated by or employing licensed psychologists,
licensed physical therapists, licensed athletic trainers, licensed
cosmetologists or licensed barbers that, as the primary business purpose,
performs functions authorized under the occupational license held;
A business operated by or employing a licensed physician or
licensed chiropractor that, as a major business purpose, is engaged
in practicing the healing arts;
A massage establishment which is properly registered under the
Texas Occupations Code, as amended;
A 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;
A theater, concert hall, auditorium or similar commercial establishment
unless that business is an adult theater as defined in these regulations;
or
A tanning facility that is properly licensed pursuant to V.T.C.A.,
Health and Safety Code chapter 145, the Tanning Facility Act.
means a sexually oriented business permit issued and regulated
pursuant to these regulations.
means 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. The term “sexually oriented modeling studio”
does not include a place where modeling classes are operated:
By a proprietary school licensed by the state, or by a college
or university supported entirely or partly by taxation;
By a 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
In a structure:
That 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;
Where, in order to participate in a class, a student must enroll
at least three days in advance of the class; and
Where no more than one nude or semi-nude model is on the premises
at the same time.
means human genitals in a state of sexual arousal, whether
clothed or nude.
means any of the following:
means a state of dress in which any portion of a person’s
pubic region, genitals or anus is displayed or exposed to view and
includes a state of dress in which material is painted or applied
to the body, such as paint, liquid latex or any device or covering
is employed, with the intention or effect of giving the appearance
of, or simulating, a state of dress in which any portion of a person’s
pubic region, genitals or anus is displayed or exposed to view.
means:
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-127)
(a)
Sexually
oriented business enterprises are classified as follows:
(1)
Adult movie arcades or adult arcades;
(2)
Adult bookstores, adult video stores or adult paraphernalia stores;
(3)
Adult cabarets;
(4)
Adult motels;
(5)
Adult movie picture theaters;
(6)
Adult theaters;
(7)
Escort agencies and escorts;
(8)
Nude modeling studios or sexually oriented modeling studios; and
(9)
Sexual encounter centers.
(b)
The
determination of whether an enterprise is a SOBE and its proper classification
shall be made in the first instance by the city manager. This determination
may be appealed to the city council.
(c)
The
commercial enterprises or activities enumerated in this section shall
be subject to regulation under this article at any location at which
they may occur, whether conducted within a building, or temporary
enclosure or out-of-doors.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-128)
(a)
No
person shall conduct business as a SOBE at any location within the
city without a valid sexually oriented business permit (SOBP) issued
in accordance with these regulations. It shall be an offense to operate
a SOBE without a valid SOBP.
(b)
A
separate application and SOBP shall be required for each SOBE.
(c)
Where
a business has multiple locations, or operates in separate structures
at the same location, each separate location and each separate structure
is considered a separate SOBE for which a separate SOBP must be obtained.
(d)
A
SOBE open or operating without a SOBP is deemed a public nuisance
enjoinable under these regulations.
(e)
Where
a SOBE’s operations meet the definition of more than one category
of SOBE, it shall be treated as a single SOBE and only one SOBP shall
be required; provided, however, no permit shall be granted unless
the SOBE meets all of the requirements applicable to each category
of SOBE applicable to its operations.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-129)
The original or a clear and accurate copy of the SOBP for a
SOBE shall be displayed at all times in an open and conspicuous place
in the SOBE for which it was issued. If a copy is displayed, the original
SOBP shall be maintained on the premises at all times and shall be
made available to the city manager or the chief of police for inspection
upon request.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-130)
(a)
As
stated in V.T.C.A., Local Government Code chapter 243, the city may
file suit in district court for an injunction to prohibit a violation
of these regulations. In addition, a person who violates these regulations
is also subject to prosecution for criminal violations.
(b)
The
city attorney is hereby authorized to file suit to enjoin violations
of these regulations. A suit may be initiated upon information received
from private citizens or any law enforcement agency.
(c)
A
person commits an offense if the person intentionally, knowingly,
recklessly, or with criminal negligence violates any one or more of
these regulations. The criminal penalty for a violation of any one
or more of these regulations is a class A misdemeanor. A class A misdemeanor
is defined by and carries the penalties described by the Texas Penal
Code.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-131)
(a)
To
obtain an initial SOBP or to renew an existing SOBP the applicant
must file a complete application with the city manager.
(1)
The application shall be filed on the form provided by the city manager
or on an accurate and legible copy of that form.
(2)
The applicant shall apply in person at city hall.
(3)
The hours applications may be submitted will be established by the
city manager.
(4)
A notice of deficiencies shall be mailed by the city manager to the
applicant within five business days of receipt of the application,
if all the information required by these regulations has not been
provided in the application.
(5)
A receipt shall be mailed by the city manager to the applicant within
five business days of submission of a complete application to the
city manager. The SOBP application receipt, or a clear and accurate
copy, is required to be displayed in clear view at the premises of
a SOBE. Failure to do so will constitute an offense.
(b)
All applications shall provide the following information. The information in subsections (b)(1) and (2) of this section will be made available to the public when an application is received.
(1)
The full legal name and any other name used by the applicant.
(2)
A general description of the SOBE, which shall include the address
of the SOBE and the services and products that will be offered.
(3)
The applicant’s complete business license or permit history,
including any permit or license which has been issued to the applicant
by any agency, board, city, county or state, and any professional
or vocational license or permit. This shall include those that have
expired or are currently in effect and shall include any license or
permit that has been denied, or was issued to the applicant and subsequently
revoked or suspended. If there have been licenses or permits which
were denied, revoked or suspended, the permit history shall include
the reason for that action.
(4)
If the applicant intends to operate the SOBE under an assumed name,
a copy of the assumed name certificate filed in compliance with V.T.C.A.,
Business and Commerce Code chapter 71.
(5)
If the SOBE is licensed under the Texas Alcoholic Beverage Code,
the application shall be filed and the enterprise shall conduct business
under the name shown on the liquor license.
(6)
A nonrefundable fee in the amount set forth in the fee schedule in appendix A of this code shall be paid in the form of a money order or cashier’s check. Cash will not be accepted. If the applicant had previously obtained a permit under the former regulations adopted by the city, the amount of the previous permit fee paid shall be applied to the cost of the new permit.
(7)
A statement under oath that:
(A)
The applicant has personal knowledge of the information contained
in the application and that the information contained therein is true
and correct;
(B)
The applicant has read and understands these regulations; and
(C)
The applicant authorizes the city manager to seek such information
from any third party or entity he requires to confirm any statements
set forth in the application.
(c)
If
the applicant is an individual, the applicant shall also provide:
(1)
Each of the applicant’s residential addresses for the three
years immediately preceding the date of the application, indicating
the dates of each residence and including the present address and
telephone number of the applicant;
(2)
The applicant’s business, occupation and employment history
for the three years immediately preceding the date of application,
indicating the applicable dates and addresses;
(3)
Documentation that the applicant is at least 18 years of age;
(4)
The applicant’s height, eye color and natural hair color;
(5)
Two recent photographs of the applicant. One photograph will be affixed
to the SOBP. The other photograph will be retained by the city manager.
New photographs may be required by the city manager upon application
for renewal of the SOBP;
(6)
The applicant’s criminal history, which shall consist of a
statement of any and all criminal convictions other than class C misdemeanor
traffic violations;
(7)
Fingerprints of the applicant taken and maintained by the city’s
police department for the purpose of establishing identification;
(8)
A copy of the applicant’s valid driver’s license or state
department of transportation identification card;
(9)
Other identification and information as determined by the city manager
to be reasonably necessary in order to confirm the validity of information
provided in the application; and
(10)
A mailing address where the applicant can be reliably contacted.
(d)
If
the applicant is a corporation, partnership, joint venture or other
similar business entity, the applicant shall also provide:
(1)
A state corporation shall provide a copy of its articles of incorporation
with amendments, names and residential addresses of all current officers
and directors and the name and address of each stockholder holding
more than five percent of the stock of the corporation;
(2)
A foreign corporation shall provide a certified copy of the any documents
evidencing its authority to transact business in the state, with all
amendments, names and residential addresses of current officers and
directors and names and addresses of each stockholder holding more
than five percent of the stock of the corporation;
(3)
A general partnership shall provide the name and residential address
of each of the partners;
(4)
A limited partnership shall provide the name and residential address
of its general and limited partners and a copy of the certificate
of limited partnership filed with the office of the secretary of state,
and amendments included.
(e)
If
one or more of the general or limited partners is a corporation the
information required of corporate applicants shall be included in
the application in addition to the requirements for general or limited
partnerships. As to each person required to be identified in this
section, the application shall also contain:
(1)
A statement as to any ownership interest that person has in any other
SOBE;
(2)
A description as to any management, supervisory, or oversight responsibility
that person will have in the SOBE;
(3)
A valid driver’s license number or state department of transportation
identification card number; and
(4)
Certification as to each officer, director, partner or participant that he has not been convicted of any of the crimes listed in section 5.10.017(f).
(f)
Applicants
shall also provide:
(1)
The name and residential address of each enterprise operator;
(2)
The street address, the mailing address and full legal description
of the parcel of land on which the SOBE is to be located;
(3)
The name and mailing address of each owner of the real property on
which the business is to be located and a complete and fully executed
copy of any lease or rental agreement;
(4)
A reliable estimate of the number of employees, including a description
of the capacities in which they will be employed; a general description
of the management structure for the enterprise;
(5)
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. Enterprises subject to section 5.10.027 of these regulations are also required to conform to the provisions of that section; and
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-132; Ordinance adopting 2022 Code)
(a)
The
SOBE must be located a minimum of 1,500 feet from all of the following
property uses:
(b)
This
section shall apply only to property uses in existence at that location
at least 30 days prior to the date of the application.
(c)
For
the purposes of this section, measurements shall be made in a straight
line from the nearest portion of the proposed SOBE property line to
the nearest portion of the property line of the property uses listed
above. These distance restrictions apply to an identified property
use whether or not the building or appurtenance used for an identified
property use is located within the corporate limits of the city.
(d)
A SOBE that was eligible for, and received, a SOBP prior to the establishment, within 1,500 feet of the SOBE, of one of the uses listed in subsection (a) of this section may continue to operate, and remains eligible for renewal of its SOBP, notwithstanding the existence of the subsequently established use.
(e)
Once
permitted, a SOBE shall not cause the building or other appurtenant
structures to be enlarged or relocated on the property in such a manner
to bring it in noncompliance with the location regulations.
(f)
The
requirements of this section do not apply to a SOBE that was legally
in operation on the effective date of the ordinance from which this
section is derived, except that the property and facilities of any
such SOBE shall not be remodeled, added to or altered, so as to increase
the size of the buildings or other structures in which the business
of the SOBE is conducted or so as to increase the amount of property
used as a site for the SOBE.
(g)
A
currently permitted SOBE that is in violation of the location requirements
listed in this section shall not cause the building or other appurtenant
structures of the SOBE to be increased, enlarged or extended or acquire
adjoining or adjacent lands, unless such change or acquisition of
such adjoining or adjacent lands shall make it a conforming use to
the location requirements.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-133)
(a)
Posting of signs.
An applicant for a new SOBP shall,
not later than the 30th day before the date the application is filed
with the city manager, post outdoor signs at the property where the
proposed SOBE will be located. The following is required:
(1)
The sign shall be at least 24 inches in width by 36 inches in height
in size and legibly state that a SOBP application will be filed with
the city manager.
(2)
The sign shall state that a sexually oriented business is intended
to be located on the premises, the name and business address of the
applicant, the date the application will be filed with the city manager,
and the phone number for the city manager. Sign shall inform the public
that persons can contact the city manager for more information about
the application.
(3)
Each letter on the sign must be at least 1.5 inches by two inches
in size.
(4)
It shall be the duty of the applicant to erect and maintain each
sign so that it is in a location clearly visible from the public sidewalk,
road, or highway adjacent to the property. If a side of the property
is longer than 300 feet, one sign shall be erected in each 300-foot
increment of the property.
(5)
The sign shall remain in place until the application has been approved
or denied by the city manager.
(6)
If the city manager determines that the sign has not been erected
or maintained pursuant to the requirements of this subsection, a written
notice shall be issued to the applicant identifying the deficiencies.
In addition, no action shall be taken on the application until the
sign has been erected and maintained as required.
(b)
Notice to interested parties.
Every applicant for a
new SOBP license shall give notice of the application to all owners
and lessees of real property within 200 feet of the property on which
the SOBP is to be located. It is the applicant’s responsibility
to determine the names and addresses of the property owners and lessees.
The most recently approved city tax roll may be used for making this
determination. A copy of the list of those persons notified with their
addresses must be provided to the city manager. These owners and lessees
are interested parties (as the term is defined in these regulations)
in any public hearing process connected with the SOBP, including revocation
hearings. The owners and lessees of these properties shall be notified
as required in this subsection even if the property is not located
in the incorporated area of the city. Owners and lessees of property
within 200 feet of the proposed location that are not within the incorporated
areas of the city shall have the same rights under this subsection
as the residents of the incorporated areas of the city. The following
is also required:
(1)
Notices to the owners and lessees shall be sent within two business days after the date the city manager issues the receipt for the application. The notice sent shall contain a legible copy of the “Notice to Interested Parties” included in the application form provided by the city manager and shall contain the information described in section 5.10.009(b)(1) and (2). The “Notice to Interested Parties” shall also contain the procedures for requesting and appearing at the hearing.
(2)
Notice shall be given by posting the notice in the U.S. mail, properly
addressed and postage prepaid.
(c)
Previously existing SOBP.
The requirements of subsections (a) and (b) of this section do not apply to an application for renewal of an existing SOBP, or an application for issuance of a SOBP under this article to a SOBE that was legally existing prior to the effective date of the ordinance from which this chapter is derived.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-134)
(a)
All
SOBEs legally existing prior to the effective date of these regulations
shall submit an application for a SOBP pursuant to these regulations
within 60 days of the effective date of these regulations. Applicants
for such renewal permits must furnish the information requested of
new applicants.
(b)
A
city SOBE permit issued prior to the effective date of these regulations
shall be valid for a SOBE until a final determination is made on the
application under the new regulations.
(c)
An
existing SOBE that was not required to obtain a permit under the previous
regulatory structure, if there are any, may continue to operate until
the city manager’s determination on the SOBP application is
final.
(d)
The
enterprise operator shall display the SOBP application receipt, or
a clear and accurate copy, in clear view on the premises of the SOBE.
Failure to do so will constitute an offense.
(e)
Any
SOBE operating within the areas of the city at the time these regulations
become effective shall have 90 days from the effective date to come
into compliance with these regulations.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-135)
(a)
Applicants
and holders of SOBPs shall be under a continuing affirmative duty
while the application is pending and during the effective dates of
the SOBP to notify the city manager of any of the following events.
Notice is to be provided in writing and delivered no later than five
business days after the occurrence of:
(1)
Address and/or name change of the applicant or holder;
(2)
Revocation or suspension of any permits or licenses listed in the
applicant or holder’s permit history; or
(3)
Any employee or independent contractor providing entertainment or services at the SOBE being formally charged with a crime listed under section 5.10.015(f) and the crime is alleged to have occurred on the premises of the SOBE.
(b)
A
SOBE shall notify the city manager immediately if a SOBP is lost or
stolen. If notice of loss has not been provided to the city manager
and a SOBP is found in the possession of any person other than the
enterprise operator, it shall be presumed that the enterprise operator
had knowledge of the illegal use of the SOBP, and participated in
the attempt to transfer the permit.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-136)
(a)
When
the city manager receives a written request for a public hearing concerning
an application for an initial SOBP, the city manager shall confirm
that:
(b)
If
the request meets the criteria above, the city manager shall then
initiate the public hearing procedure, as follows:
(1)
A hearing official, appointed by the city council, shall be contacted
by the city manager and a date set for the public hearing.
(2)
The hearing shall be scheduled at a public building within the city.
(3)
The hearing shall be scheduled either on a weekday at __:00 p.m.
or on a Saturday morning at __:00 a.m.
(4)
The city manager shall send the applicant a written notice of hearing
at least 15 days in advance, stating the date, time and place of the
hearing. The city manager shall make a copy of the notice of hearing
available to the public by posting at the city hall.
(5)
The city manager shall notify all interested parties requesting a
hearing of the hearing by sending them a copy of the written notice
of hearing at least ten days in advance.
(6)
Publicizing the hearing in a newspaper shall be the responsibility
of the applicant who requested the permit. The publication must be
in a newspaper of general circulation within the city, must be at
least three columns by five inches and located in retail display,
and must be published no less than five days prior to the date of
the hearing. The city manager shall make available to the public a
copy of any request for hearing and the notice of hearing.
(7)
The city manager shall place a notice of hearing sign at the location
identified in the application containing the time and place of the
hearing.
(8)
The hearing may be rescheduled by the hearing official for good cause, including, for example, a large number of requests for a hearing that indicate strong public interest in the matter. The hearing may be rescheduled a second time if rescheduling was due to emergency circumstances, such as extreme weather conditions. If rescheduled, the new notice of hearing shall be available to the public at city hall and the applicant must republish the notice using the procedure set forth in subsection (b)(6) of this section.
(10)
The hearing official shall arrange for the court reporter to take
the record of the hearing, including exhibits and testimony. One copy
of the transcript shall be provided to the hearing official to become
the property of the city.
(c)
If the request for public hearing is deficient, the city manager shall return it to the person who submitted the request with a notation stating the deficiency. A request that does not comply with the requirements stated in subsection (a) or (d) of this section shall not extend the period of time in which a request for hearing may be filed.
(d)
If
the city manager receives a request for a public hearing after the
SOBP has been issued, the late request shall be attached to the SOBP
records. Thereafter a hearing shall be scheduled when the next renewal
application is filed if:
(e)
The
hearing shall be conducted by the hearing official under the following
guidelines. The hearing official shall liberally construe these guidelines
to allow the public input to protect the health and safety of the
community affected by the location of a SOBE and to allow the applicant
to address these concerns:
(1)
Applicants and interested parties are entitled to the assistance
of counsel obtained at their own expense.
(2)
Applicants and interested parties may expressly waive the right to
counsel.
(3)
The hearing official shall, upon prior request, provide for appropriate
facilities for any disabled person to be able to participate in the
hearing. This shall include, but not be limited to, interpreters for
deaf or hearing impaired participants, wheelchair access and special
seating arrangements.
(4)
Participants in the proceeding may be allowed to supply interpreters
for language translation and the hearing official shall accommodate
the translation of the proceeding.
(5)
The hearing official may exclude evidence that is irrelevant, immaterial
or unduly repetitious. Relevance and materiality shall be evaluated
by the relationship of the evidence to health and safety concerns
directly related to the SOBP at issue. The hearing is not limited
to the health and safety concerns specifically identified in the hearing
request.
(6)
If no request is made by the applicant for an official record, any
person may record, videotape or transcribe the hearing provided there
is no interference with the proceedings. The hearing official shall
have the power to limit any interference with the proceedings.
(f)
The
hearing official may continue the hearing to a date no later than
ten days after the initial hearing if:
(1)
The hearing has lasted at least 2-1/2 hours and it appears to the
hearing official that a significant amount of time is still required
to fully present the public concerns and potential solutions to those
concerns;
(2)
Issues have been raised at the hearing requiring additional research
or that the parties need additional time to develop a solution to
issues identified at the hearing.
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A continuance shall not be for the purpose of delay or for developing
new evidence.
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(g)
After
the conclusion of the public hearing, the hearing official shall produce
a written statement containing the official’s findings of public
health and safety concerns, if any, and a recommendation to grant
of deny the SOBP. The findings and recommendation shall be forwarded
to the city manager, the applicant, and all interested parties who
requested the hearing. If no official record of the hearing has been
requested, the hearing official’s statement shall be the official
record of the public hearing.
(h)
If
evidence is produced at the hearing that would support denial of the
SOBP, the hearing official shall provide that information to the city
manager, who shall investigate whether the evidence warrants denial
or revocation of the SOBP under these regulations.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-137)
(a)
The
city manager shall grant or deny an application for a SOBP and shall
grant, or recommend the denial of, an application for renewal of a
SOBP, within 45 days after a complete application is filed with the
city.
(b)
The
SOBP, if granted, shall state on its face the name of the person or
entity to whom it is granted, the expiration date and the address
of the SOBE. The SOBP, or a clear and accurate copy, shall be and
remain posted in a conspicuous place at or near the entrance to the
SOBE so that it may be easily read at any time.
(c)
In appropriate circumstances, the city manager may defer determination of whether to issue a SOBP until final disposition of any charge of any of the crimes listed in subsection (f) of this section that is pending or arises during the investigation period.
(d)
If the city manager finds that the determination of whether a SOBP can be issued cannot be made within the time period stated in subsection (a) of this section, a written notice stating the reasons for the delay shall be sent to the applicant within that time period.
(e)
The
application for issuance or renewal of a SOBP shall be denied upon
the finding by the city manager of any of the following facts:
(1)
The applicant, or if the applicant is a corporation, general or limited partnership, or other business entity, any officer, director, partner or participant required to be identified in the application, was convicted of any of the crimes listed subsection (f) of this section and:
(A)
Less than two years have elapsed since the date of conviction or
the date of release from confinement and supervision (if applicable)
imposed for the conviction, whichever is the later date, if the conviction
is a misdemeanor offense;
(B)
Less than five years have elapsed since the date of conviction or
the date of release from confinement for the conviction and supervision
(if applicable), whichever is the later date, if the conviction is
a felony offense; or
(C)
Less than five years have elapsed since the date of the last conviction
or the date of release from confinement and supervision (if applicable)
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 a 24-month period;
(2)
The SOBE does not meet all the requirements of these regulations
or the SOBE is otherwise prohibited by local, state or federal law;
(3)
The applicant has knowingly made a misleading statement of a material
fact by omitting or falsifying information in the application for
the SOBP;
(4)
The applicant (if an individual) is under 18 years of age;
(5)
The applicant or enterprise operator has had a SOBP revoked for the
same SOBE or for another SOBE located at the same business location
within the 12-month period immediately preceding the date the application
was filed;
(6)
An applicant is delinquent in the payment to the city of fees, fines
or penalties assessed or imposed regarding the operation of a SOBE;
(7)
The application or renewal fee required by these regulations has
not been paid; or
(8)
An applicant or enterprise operator has owned or been employed in
a managerial capacity of a business or location within the preceding
12 months and during that period the business or location constituted
a common or public nuisance as defined in V.T.C.A., Civil Practice
and Remedies Code chapter 125.
(f)
The crimes considered in applying subsection (e)(1) of this section are:
(1)
Prostitution, promotion of prostitution, aggravated promotion of
prostitution, compelling prostitution, obscenity, sale, distribution
or display of material harmful to a minor, sexual performance by a
child or possession of child pornography as described in V.T.C.A.,
Penal Code chapter 43;
(2)
Public lewdness, indecent exposure or indecency with a child as described
in V.T.C.A., Penal Code chapter 21;
(3)
Sexual assault or aggravated sexual assault as described in the V.T.C.A.,
Penal Code chapter 22;
(4)
Incest, solicitation of a child or harboring a runaway child as described
in V.T.C.A., Penal Code chapter 25;
(5)
Forgery;
(6)
Credit card abuse or commercial bribery as described in V.T.C.A.,
Penal Code chapter 32;
(7)
A criminal offense as described in V.T.C.A., Health and Safety Code
chapter 481, subchapter D;
(8)
A criminal offense as described in V.T.C.A., Penal Code chapter 34;
(9)
Criminal attempt, conspiracy or solicitation to commit any of the
foregoing offenses; or any other offense in another state that, if
committed in this state, would have been punishable as one or more
of the aforementioned offenses; or
(g)
The
city manager shall grant an application for issuance or renewal of
an SOBP if it meets all of the requirements of these regulations.
(h)
A
SOBP shall be valid for one year from the date it is issued, unless
the SOBP is revoked or suspended pursuant to these regulations, the
SOBE is sold or transferred or the SOBP is canceled by written request
of the applicant. If a permit was issued under prior sexually oriented
business regulations, the renewal fee for the initial SOBP under these
regulations will be reduced by the amount the existing SOBP owner
previously paid under the prior regulations.
(i)
In
the event the city manager determines that an applicant is not entitled
to issuance of a SOBP under the terms of this article, he shall prepare,
and provide to the applicant within a reasonable time, a written statement
of the basis of his determination, specifying the provisions of these
regulations with which the applicant has failed to comply. The omission
from such notice of a particular basis for denial shall not prevent
the city from raising such omitted basis in any subsequent litigation
with the applicant.
(j)
If
the city manager concludes that an application for renewal of a SOBP
should be denied, the city manager, or his designee, shall forward
to the SOBP holder, or its designated agent, a written notice of the
city manager’s intention to recommend to city council that the
application for renewal be denied. The notice shall set out the factual
basis for the city manager’s conclusion and the date on which
the recommendation is to be submitted to city counsel for consideration
and action. A copy of the notice may be delivered to the SOBP holder
by:
(1)
Mailing it to the address shown in the most recent SOBP application
on file with the city; or
(2)
By leaving it with a manager on the premises of the SOBE.
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In considering and acting upon the city manager’s recommendation, the city council shall follow the procedure set out in section 5.10.016(c). The provisions set out in section 5.10.016(d) and (e) shall govern the enforcement of, and any appeal from, a decision by the city council to deny an application for renewal of a SOBP. An SOBP for which a timely renewal application has been filed shall remain in force and effect as a temporary SOBP until it is renewed or a denial of the application becomes effective.
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(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-138)
(a)
Grounds.
The city council shall have the authority and
power to impose an administrative fine or revoke or suspend a SOBP
if the city council determines that one or more of the following events
or conditions has occurred:
(1)
Three or more violations of any of the offenses or regulations contained
in section 5.10.015(e)(1)d [5.10.015(f)] have occurred on the premises
of a SOBE within a period of eight months and the enterprise operator
knew, or reasonably should have known, of the violations and failed
to make a reasonable effort to prevent the occurrence of such violations;
(2)
The applicant knowingly provided materially false, fraudulent or
untruthful information on the original or renewal SOBP application
form;
(3)
The SOBE has been closed for business for a period of 90 consecutive
days unless the closure is due to circumstances beyond the control
of the enterprise operator and the enterprise operator is proceeding
with due diligence to reopen the establishment;
(4)
The SOBP was not issued in accordance with these regulations;
(5)
The enterprise operator is finally convicted of a criminal offense
listed in section 5.10.015(e)(1)d.1 through 10 [5.10.015(f)] of these
regulations;
(6)
The enterprise operator has knowingly and intentionally failed to obtain and maintain on each employee, independent contractor or other person providing services at the SOBE the information required under section 5.10.017 of these regulations;
(7)
An employee, independent contractor or other person providing services at the SOBE has provided false information in the records required under section 5.10.017 and the enterprise owner has acted on the information knowing it was false; or
(8)
The enterprise operator is knowingly and intentionally allowing employees, independent contractors or other persons who have been convicted of a crime listed in section 5.10.017(f), and whose time after conviction has not passed, to work or provide services at the SOBE.
(b)
Notice of intent.
If the city manager concludes that
any of the stated events or conditions have occurred and that an administrative
fine should be imposed or that a SOBP should be suspended or revoked,
the city manager, or his designee, shall forward to the SOBP holder
or its designated agent a written notice of the city manager’s
intention to recommend to city council that it impose an administrative
fine or suspend or revoke the SOBP. The notice shall set out the factual
basis for the city manager’s conclusion and the date on which
the recommendation is to be presented to the city council for consideration
and action. A copy of the notice may be delivered to the SOBP holder
by:
(c)
Hearing.
The city council shall conduct a hearing on the city manager’s recommendation at a regular meeting or at a special meeting called for that purpose. At the hearing, the city council shall permit the city manager to present evidence and argument in favor of the recommendation and shall permit the SOBP holder to present evidence and arguments against the recommendation. Both the city manager and the SOBP shall have the right to be represented by a lawyer and the right to cross-examine witnesses. The city council will conduct the hearing in the manner provided under the Texas Rules of Civil Procedure for non-jury trials, to the extent practicable, and shall render its decision in writing. The hearing shall be convened as soon as reasonably practical but no earlier than the 30th calendar day after the date the notice is delivered to the SOBP holder. If the city council finds that one or more violations have occurred, it may, depending on the circumstances and severity of the violations, impose an administrative fine of up to $5,000.00 per violation, or suspend the SOBP for a period of up to 120 calendar days in duration or revoke the SOBP. The temporary closure of an SOBE because of a suspension imposed by the city council shall not be treated as a closure for purpose of applying subsection (a)(3) of this section and section 5.10.020(c).
(d)
Effective date of decision.
A decision of the city council
shall not be enforced or given effect until 5:00 p.m. on the 28th
calendar day following the date on which a true and correct copy of
the written decision is delivered to the SOBP holder. A copy may be
delivered to the SOBP holder by:
(e)
Appeals.
An SOBP holder may appeal from the city council’s
decision by filing a suit in the state district court in the county.
If suit is filed before the date on which the city council’s
decision is to be given effect, the city shall not enforce or give
effect to the decision unless and until its decision is affirmed by
the district court. Notwithstanding this provision, the city retains
the right to petition the district court to issue a temporary injunction
or take other action as may be warranted under the circumstances.
In addition, the city shall have the right to pursue, in the same
proceedings, any other statutory remedies to which it might be entitled.
The district court’s review of the city council’s decision
shall be de novo.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-139)
(a)
An
enterprise operator has the duty to keep employee information on file
on-site and readily available for inspection by the city manager or
the chief of police for each employee and independent contractor or
other person providing entertainment services at the SOBE. The enterprise
operator shall provide the information for inspection immediately
if a request for inspection is made between the hours of 8:30 a.m.
and 5:00 p.m. on a weekday when the business is open. If a request
for inspection is made at any other time by a law enforcement officer
engaged in a criminal investigation, or where an emergency exists,
the enterprise operator shall provide the information for inspection
within a reasonable time after the request is made. The city manager
will provide a standard format for these records. The enterprise operator
shall provide its managers with a telephone number or numbers that
may be used to summon to the premises of the SOBE a person who can
provide access to the following information on file:
(1)
The full legal name, and the professional or performing names used
by the employee, independent contractor or other person (collectively
sometimes called “person” within this section) providing
services;
(2)
A photocopy of the person’s driver’s license or state
department of transportation identification card;
(3)
A photocopy of the person’s social security card or another
document containing the person’s social security number;
(4)
A card containing the person’s full legal name and a clear
and legible imprint of one of the person’s thumbprints;
(5)
A description of the capacity in which the person is employed, contracted
for, or loaned to the SOBE;
(6)
If the person is employed, contracted for or loaned to the SOBE in
a capacity that involves serving liquor to patrons, evidence of certification
through completion of a state alcoholic beverage commission approved
seller training program, under V.T.C.A., Alcoholic Beverage Code section
106.14; and
(7)
The person may not begin providing services at the SOBE unless the
results of an internet search of the convictions records database
of the DPS crime records service on the person, dated as of the date
the person intends to begin performing services, based on name, alias
names, date of birth, sex and race of the person, is on file at the
SOBE. A record of the results of the internet search, and the date
the person began performing services, shall be kept on-site by the
enterprise operator.
(b)
An
enterprise operator shall keep and maintain all required information
and records on all employees and independent contractors at the SOBE
and shall make such information and records available for inspection
as required in this article.
(c)
All
records must be updated every six months for employees and every time
an independent contractor or other person providing services contracts
to perform if the periods between performance are greater than six
months apart. In addition, all records shall include a time record
reflecting the times and dates each employee, independent contractor
or such person worked. These records shall be available for random
inspection by the city manager or the chief of police as required
by this article. All records shall be retained for at least a period
of two years from creation. Upon written request, the enterprise operator
has a duty to provide the original thumbprint record to the city manager
or the chief of police within one business day of the request.
(d)
Any
person providing services who provides materially false information
to an enterprise operator pursuant to this section violates these
regulations and is subject to prosecution.
(e)
An enterprise operator shall not hire, engage or otherwise retain the services of an individual as an employee, an independent contractor or in any other capacity if the enterprise operator knows that the individual was convicted of any of the crimes listed in subsection (f) of this section and:
(1)
Less than two years have elapsed since the date of conviction or
the date of release from confinement and supervision (if applicable)
imposed for the conviction, whichever is the later date, if the conviction
is a misdemeanor offense;
(2)
Less than five years have elapsed since the date of conviction or
the date of release from confinement and supervision (if applicable),
for the conviction, whichever is the later date, if the conviction
is a felony offense; or
(3)
Less than five years have elapsed since the date of the last conviction
or the date of release from confinement and supervision (if applicable)
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 a 24-month period.
(f)
The crimes considered in applying subsection (e) of this section are:
(1)
Prostitution, promotion of prostitution, aggravated promotion of
prostitution, compelling prostitution, obscenity, sale, distribution
or display of material harmful to a minor, sexual performance by a
child or possession of child pornography as described in V.T.C.A.,
Penal Code chapter 43;
(2)
Public lewdness, indecent exposure or indecency with a child as described
in V.T.C.A., Penal Code chapter 21;
(3)
Sexual assault or aggravated sexual assault as described in V.T.C.A.,
Penal Code chapter 22;
(4)
Incest, solicitation of a child or harboring a runaway child as described
in V.T.C.A., Penal Code chapter 25;
(5)
Forgery;
(6)
Credit card abuse or commercial bribery as described in V.T.C.A.,
Penal Code chapter 32;
(7)
A criminal offense as described in V.T.C.A., Health and Safety Code
chapter 481, subchapter D;
(8)
A criminal offense as described in V.T.C.A., Penal Code chapter 34;
(9)
Criminal attempt, conspiracy or solicitation to commit any of the
foregoing offenses; or
(10)
Any other offense in another state that, if committed in this state,
would have been punishable as one or more of the aforementioned offenses.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-140)
(a)
Any
notice required to be given by the city manager under these regulations
to any applicant or enterprise operator may be given by personal delivery
or by United States mail, postage prepaid, addressed to the most recent
address as specified in the application for the SOBP or the most recent
notice of address change.
(b)
Mailed
notice shall be deemed served three days after deposit in the United
States mail. Personal notice shall be deemed served when delivered
to an enterprise operator or, if the enterprise operator is not available,
posted at the entrance to the SOBE. If the notice is served or posted,
the individual serving or posting the notice will note the time and
date of his action on a copy of the notice posted and return the copy
to the city manager.
(c)
If
a notice given by mail is returned by the postal service as undeliverable,
it will be presumed the enterprise operator did not comply with the
affirmative duty to notify the city manager of any change of address.
This presumption may be rebutted by the enterprise owner showing that
the address on file with the city manager was correct.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-141)
If the city manager fails to take action on an application within
the times specified, or if the hearing officer fails to timely conduct
or give notice of the decision after the hearing, the applicant shall
be entitled to an immediate issuance of a temporary SOBP upon written
demand. The applicant must file the demand with the city manager.
A temporary SOBP shall be valid only until notice of the city manager’s
action on the application or the hearing examiner’s order. This
section shall not apply if the delay is wholly or partially caused
by the action or inaction of the applicant.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-142)
(a)
SOBP
renewal applications shall be filed not more than 30 days and not
less than 15 days prior to the expiration date of the SOBP.
(b)
An annual nonrefundable renewal fee in the amount set forth in the fee schedule in appendix A of this code will accompany the application for renewal to defray costs of inspections and investigation.
(c)
The
renewal application must contain the same information as is required
for an initial application and, in addition, satisfactory proof that
the SOBE has not closed for business for more than 90 consecutive
days at any time since the issuance of the original SOBP. If such
closure is or was due to circumstances beyond the control of the enterprise
owner, satisfactory proof of such circumstances shall be provided
together with proof that the enterprise operator is or has proceeded
with due diligence to reopen the establishment.
(d)
The city manager shall determine if the permit may be renewed based on the information contained in the renewal application. The renewal permit will be denied upon a finding of any of the conditions identified in section 5.10.015(f). Notice of renewal or denial will be issued within 14 days of receipt of the completed renewal application or by the expiration date of the previous SOBP, whichever period is longer.
(e)
If
a renewal application is submitted less than 15 days before the previous
SOBP expires, there shall be no temporary SOBP issued to extend the
SOBP. The original SOBP will expire and until the city manager’s
determination on renewal there will be no valid SOBP for operation
during that period.
(f)
If
a SOBE fails to file its renewal application prior to the expiration
of the existing SOBP, the SOBE must file an application for a new
SOBP and the application shall be considered as any new application.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-143; Ordinance adopting 2022 Code)
Upon receiving the application for a SOBP or an application
for renewal, the city manager is authorized to perform such investigations
as he deems necessary to determine compliance with these regulations.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-144)
The city manager and the chief of police shall make such reasonable,
periodic inspections of the premises of any SOBEs that are permitted
under these regulations as they deem necessary.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-145)
A SOBP issued under these regulations is not transferable, assignable
or divisible. It is a violation of these regulations for any person
or other legal entity to attempt to do so. Upon transfer by bequest
or operation of law upon the death of the SOBP holder, the SOBP will
continue in effect for 45 days after the death of the original SOBP
holder. Upon the filing of a new application and fee and posting the
application with the prior SOBP, the SOBE may continue to operate
until the final determination on the new SOBP. If no application is
filed within 45 days after the death of the original SOBP holder the
SOBE shall be in violation of these regulations each and every day
it continues to operate without a new SOBP. Notwithstanding the foregoing,
if the transfer of an interest by bequest or operation of law is to
the surviving spouse of an owner of an interest and:
(1)
The
spouse was named in the original permit application and provided all
information on himself in the original permit application as would
be required under a new application;
(2)
No
other interest is transferred to any other person or entity; and
(3)
No
other change in ownership of the SOBE or SOBP occurs as a result of
the death;
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the surviving spouse shall not be required to submit an application.
However, the surviving spouse shall be required to provide written
notice to the city manager of the transfer of the interest within
45 days of the death.
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(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-146)
(a)
If a SOBP is lost or destroyed, a replacement may be obtained by filing a lost SOBP application and paying a lost permit fee in the amount set forth in the fee schedule in appendix A of this code.
(b)
A
replacement SOBP will be issued immediately upon confirmation of the
identity of the applicant through the city manager’s records.
A replacement permit will expire on the same date as the original
permit.
(c)
It
shall be a defense to prosecution for conducting business without
a SOBP that a SOBP was lost or stolen.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-147; Ordinance adopting 2022 Code)
It shall be a violation of these regulations, punishable as
authorized in V.T.C.A., Local Government Code section 243.010(b),
for:
(1)
Any
employee, enterprise operator or other SOBP holder to negligently
allow any person below the age of 18 years to remain upon the premises
or within the confines of the SOBE during the hours of operation;
(2)
Any
person to be at a SOBE totally nude, except in a private room at an
adult motel or in an employee or independent contractor designated
dressing room that is not visible or accessible to patrons of the
opposite sex;
(3)
Any
employee, independent contractor or other person providing entertainment
services or for the enterprise operator to request or suggest that
any patron, employee, independent contractor or other such person
providing entertainment services become totally nude on the premises
of the SOBE;
(4)
Any person or any employee, independent contractor or person providing entertainment services to engage in, or for an enterprise operator to allow another person to engage in, specified sexual activities as defined herein or in sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any other public sexual acts prohibited by law, or acts which simulate the aforesaid, at or in a permitted SOBE. This provision shall not apply to a live exhibition involving only one person which includes acts defined in section 5.10.004 or simulated acts described in this subsection (4) and section 5.10.004;
(5)
Any
SOBE to exhibit signs, billboards, advertisements, displays or other
promotional materials on the premises that are characterized by specified
sexual activities or depict specified prohibited anatomical areas
and are visible from a public road, sidewalk or other public place;
(6)
Any
SOBE to own or lease or to construct or have installed any exterior
sign, billboard, advertisement, display or other exterior promotional
material (collectively, “sign”) located or situated upon
the premises other than a flat wall sign attached to the front of
the main building with the total allowable area of the sign limited
to one square foot per foot of front lot frontage; provided, however,
that any sign located or situated upon the premises of a SOBE which
was lawful upon the effective date of the adoption of these regulations,
although not conforming to the provisions hereof, may be allowed to
remain; provided that such sign shall not be extended, expanded, enlarged,
nor structurally altered, unless such alteration converts such sign
into conformity with the provisions hereof; and provided further that
a nonconforming sign shall not be rebuilt in the case of total destruction
nor in the case of partial destruction if the damage or destruction
exceeds 50 percent of the sign’s fair market value;
(7)
Any
SOBE to remain open for business or otherwise offer goods or services
between the hours of 2:30 a.m. and 6:59 a.m. Monday through Saturday
and 2:30 a.m. and 9:59 a.m. on Sunday;
(8)
Any
person to conduct business as a SOBE in the incorporated areas of
the city without a valid SOBP issued in accordance with these regulations;
(9)
Any
person to counterfeit, forge, change, deface or alter a SOBP;
(10)
Any person to knowingly make any false, fraudulent or untruthful
material representation, written or oral, or in any other way knowingly
conceal any material fact required in the SOBP application;
(11)
The enterprise operator to fail to promptly notify the city manager
after learning that any statement or representation in an SOBP application
was false when made;
(12)
Any employee, independent contractor or other person providing entertainment services at a SOBE to knowingly provide materially false identification information which is required to be provided under section 5.10.017 to an enterprise operator;
(13)
Any person to attempt to transfer, assign or devise a SOBP, except as provided under section 5.10.023;
(14)
Any employee, independent contractor or other person participating
in a live exhibition at a SOBE to do so less than two feet from the
nearest patron;
(15)
Any employee, independent contractor or person who provides entertainment
services to make physical contact or to touch in any manner through
any method any patron in a SOBE while such employee, independent contractor
or person is in a state of nudity or semi-nude; provided, however,
that it is not a violation of this provision for the hand of a patron
to come into contact with the hand of a person who provides entertainment
services while the patron is conveying a tip;
(16)
Any patron in a SOBE to make physical contact or to touch, in any
manner or through any method, any employee, independent contractor
or person who provides entertainment services while such employee,
independent contractor or person is in a state of nudity or semi-nude;
provided, however, that it is not a violation of this provision for
the hand of a patron to come into contact with the hand of a person
who provides entertainment services while the patron is conveying
a tip;
(17)
Any patron to knowingly and intentionally make physical contact with
or to touch an anus, genitals, pubic region or breast of any employee,
independent contractor or person who provides entertainment services
in any manner or through any method;
(18)
Any employee, independent contractor or person who provides entertainment
services to make physical contact with or to touch a patron in any
manner or through any method for the purpose of, or having the effect
of, providing sexual stimulation or sexual gratification to the patron;
(19)
An enterprise operator to fail to prominently display in locations
readily observed by patrons a minimum of two signs at least 18 inches
square bearing red letters a minimum of two inches high on a white
background providing the following notice: “TOUCHING AN EMPLOYEE,
INDEPENDENT CONTRACTOR OR PERSON WHO PROVIDES ENTERTAINMENT SERVICES
ON THE BREAST, BUTTOCK, ANUS, PUBIC REGION OR GENITALS, OR WHILE SUCH
EMPLOYEE, INDEPENDENT CONTRACTOR OR PERSON IS IN A STATE OF NUDITY
OR SEMI-NUDE IS PROHIBITED. (Sec. 5.10.025(16), (17) Humble City Code)”;
(20)
Any patron of a SOBE to place any form of consideration or gratuity
upon the body of or into the clothing or accessories of any employee,
independent contractor or person who provides entertainment services
at a SOBE or for any employee, independent contractor or person who
provides entertainment services to accept any form of consideration
or gratuity placed upon the body or into the clothing or accessories
by a patron of a SOBE; provided, however, that such consideration
or gratuity may be exchanged between a patron of the SOBE and any
employee, independent contractor or person who provides entertainment
service at an SOBE from hand-to-hand;
(21)
An enterprise operator to fail to prominently display in locations
readily observed by patrons a minimum of two signs at least 18 inches
square bearing red letters a minimum of two inches high on a white
background providing the following notice: “NO TIPS, PAYMENTS
OR OTHER FORMS OF CONSIDERATION MAY BE PLACED ON THE BODY OF OR INTO
THE CLOTHING OR ACCESSORIES OF ANY EMPLOYEE, INDEPENDENT CONTRACTOR
OR PERSON PROVIDING ENTERTAINMENT SERVICES OTHER THAN FROM HAND-TO-HAND.
(Sec. 5.10.025(20) Humble City Code)”;
(22)
Any SOBE to be configured in such a manner that any area that is
open to patrons cannot be viewed from other areas in its immediate
vicinity, excluding restrooms and dressing rooms, or for the SOBE
to be configured to include private rooms or cubicle-type areas into
which patrons are allowed access;
(23)
A SOBE to provide or maintain unisex or co-ed restrooms or to allow
simultaneous access to a restroom by members of the opposite sex.
It shall be the duty of the enterprise operator to post legible signs
clearly designating separate restrooms for men and women;
(24)
Any patron of one sex to enter a restroom or dressing room designated
for use by the opposite sex; and
(25)
Any employee or independent contractor who provides entertainment
services while in a state of nudity or semi-nudity to enter a restroom
or dressing room designated for use by the opposite sex, regardless
of whether the employee or independent contractor is in a state of
nudity or semi-nudity at the time he enters the restroom or dressing
room.
|
Each day a violation continues constitutes and is punishable
as a separate offense.
|
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-148)
(a)
Evidence
that a sleeping room in a hotel, motel or similar commercial establishment
has been rented and vacated two or more times in a period of time
that is less than ten hours creates a rebuttable presumption that
the establishment is a SOBE adult motel under these regulations if
the motel also provides patrons with closed-circuit television transmissions,
films, motion pictures, videocassettes, slides or other reproductions
which are characterized by the depiction or description of specified
sexual activities or specified anatomical areas as defined in this
article.
(b)
For
purposes of this section, the term “rent” or “subrent”
means the act of allowing a room to be occupied for any form of consideration.
(c)
An adult motel permitted pursuant to these regulations may have a resident manager living on-site. This shall not be considered a dwelling under the location requirements of section 5.10.010.
(d)
No
individuals under the age of 18 may live on the site of an adult motel.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-149)
(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 less than 150 square feet of floor space, a film, videocassette
or other video reproduction which depicts specified sexual activities
or specified anatomical areas, shall comply with the following requirements:
(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 of all overhead lighting fixtures and designating any
portion of the premises in which persons will not be permitted. A
manager’s station may not exceed 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 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.
(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 a designee of the chief of police.
(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 have 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 (a)(5) must be by direct line of sight from the manager’s station. Viewing booths must be separated at least 12 inches from the exterior walls of any other view booths by open space.
(6)
It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present on the premises, to ensure that the area specified in subsection (a)(5) of this section remains unobstructed by any doors, walls, merchandise, display racks or 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 which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection (a)(1) of this section.
(7)
For safety purposes, 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 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 on the premises to
ensure that the illumination described above is maintained at all
times that any patron is present in the premises.
(c)
All
locational requirements of this section shall be approved by the chief
of police within 30 days from the time the application is filed if
in compliance herewith.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-150)
It shall be a violation of these regulations to knowingly and
intentionally allow a person who is younger than 18 years of age to
remain on the premises of a SOBE at any time the SOBE is open for
business.
(Ordinance 06-613, sec. 1, adopted 11/10/05; 2007 Code, sec. 8-151)
