It is the purpose of this article to regulate sexually oriented
businesses, to promote the health, safety, and general welfare of
the citizens of the City of Brenham, and to establish reasonable and
uniform regulations to prevent the concentration of sexually oriented
businesses in close proximity to each other within the city. The regulations
contained herein have also been established for the purpose of limiting,
the well-documented, adverse secondary effects suffered by properties
located within one thousand three hundred twenty (1,320) feet of a
sexually oriented business.
The provisions of this article have neither the purpose nor
effect of imposing a limitation or restriction on the content of any
communicative speech, expression or communicative materials, including
sexually oriented speech, expression or communicative materials. Similarly,
it is not the intent or effect of this article to restrict or deny
access by adults to sexually oriented speech, expression or communicative
materials protected by the First Amendment or to deny access by the
distributors and exhibitors of sexually oriented entertainment to
their intended market.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
The regulations contained herein, including those pertaining
to the licensing, operation, and location of sexually oriented businesses,
are based on studies, reports, findings, court case decisions, and
evidence made available to and considered by the city council. These
regulations have also been established under the authority granted
to municipalities by chapter 243 of the Texas Local Government Code.
A copy of the city secretary’s report on sexually oriented
businesses (dated June 2, 2011), together with the studies, reports,
findings, and court case decisions (as referenced herein) are on file
in the office of the city secretary.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
Any place to which the public is permitted or invited wherein
coin-operated or slug-operated or electronically, electrically, or
mechanically controlled still or motion picture machines, projectors,
or other image-producing devices are maintained to show images to
five (5) or fewer persons per machine at any one (1) time, and where
the images so displayed are distinguished or characterized by regularly
depicting or describing specified sexual activities or specified anatomical
areas.
A commercial establishment which regularly offers a service
or regularly sells, rents or exhibits devices or any other items intended
to provide sexual stimulation or sexual gratification to the customer
including:
Books, magazines, periodicals or other printed matter, or photographs,
films, motion pictures, DVDs, videocassettes or video reproductions,
slides, or other visual representations, that depict or describe specified
sexual activities or specified anatomical areas; or
Instruments, devices, or paraphernalia that are designed for
use in connection with specified sexual activities, but not including
items used for birth control or for the prevention of sexually transmitted
diseases.
A commercial establishment that regularly features the offering
to customers of live entertainment that:
A hotel, motel, or similar commercial establishment that:
Offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films,
motion pictures, videocassettes, slides, or other photographic reproductions
that are characterized by the regular depiction or description of
specified sexual activities or specified anatomical areas; and has
a sign visible from any public right-of-way that 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 (10) 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 (10) hours.
A commercial establishment where, for any form of consideration,
films, motion pictures, videocassettes, slides, or similar photographic
reproductions are regularly shown that are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas.
A theater, concert hall, auditorium, or similar commercial
establishment which regularly features persons who appear nude or
semi-nude, or live performances which are characterized by the exposure
of specified anatomical areas or by the depiction or description of
specified sexual activities.
A person or entity in whose name a license to operate a sexually
oriented business is requested to be issued;
Each individual who signs an application for a sexually oriented business license as required by section 16-26;
Each individual who is an officer of a sexually oriented business for which a license application is made under section 16-26, regardless of whether the individual’s name or signature appears on the application;
Each individual who has an ownership interest in a sexually oriented business for which a license application is made under section 16-26, regardless of whether the individual’s name or signature appears on the application; and
Each individual who exercises substantial de facto control over a sexually oriented business for which a license application is made under section 16-26, regardless of whether the individual’s name or signature appears on the application.
The Chief of Police of the City of Brenham or the chief’s
designee.
A facility licensed by the State of Texas, or other governmental
entity having jurisdiction, or an agency thereof, whether situated
within the city or not, that provides care, training, education, custody,
treatment or supervision for more than six (6) children under fourteen
(14) years of age, where such children are not related by blood, marriage
or adoption to the owner or operator of the facility, for less than
twenty-four (24) hours a day, regardless of whether or not the facility
is operated for a profit or charges for the services it offers.
A conviction in a federal court or a court of any state or
foreign nation or political subdivision of a state or foreign nation
that has not been reversed, vacated, or pardoned. Conviction includes
disposition or charges against a person by probation, deferred disposition
or deferred adjudication.
The dominant or principal theme of the object referenced.
For instance, when the phrase refers to films “which are distinguished
or characterized by an emphasis upon the exhibition or display of
specified sexual activities or specified anatomical areas,”
the films so described are those whose dominant or principal character
and theme are the exhibition or display of specified anatomical areas
or specified sexual activities.
Any individual who:
Is listed as a part-time, full-time, temporary, or permanent
employee on the payroll of an applicant, licensee, or sexually oriented
business; or
Performs or provides entertainment or any other services on
the sexually oriented business premises for any form of compensation
or consideration.
A person who, for consideration, entertains for others.
A person who, for consideration, agrees or offers to act
as a companion, guide, or date for another person, or who agrees or
offers to privately model lingerie or to privately perform a striptease
or other live performance that is distinguished by or characterized
by an emphasis on matter depicting, simulating, describing, or relating
to specified anatomical areas or specified sexual activities, for
another person.
A person or business association that furnishes, offers to
furnish, or advertises to furnish escorts as one (1) of its primary
business purposes, for a fee, tip, or other consideration.
Any of the following:
The opening or commencement of any sexually oriented business
as a new business;
The conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business;
The addition of any sexually oriented business to any other
existing sexually oriented business;
The relocation of any sexually oriented business; or
Any building, structure or premises operated as a sexually oriented
business.
The city manager or his designee. The hearing officer shall
exercise those powers authorized under applicable state law, the Charter
of the city, and the Code of Ordinances of the city, as appropriate
in the furtherance of his duties.
A facility or area for providing health services primarily
for human in-patient medical or surgical care for the sick or injured
and including related facilities such as laboratories, out-patient
departments, training facilities, central services facilities, and
staff offices that are an integral part of the facilities.
A person in whose name a license to operate a sexually oriented
business has been issued;
Each individual listed as an applicant on the application for
a license;
Each individual who is an officer of a sexually oriented business
for which a license has been issued under this article, regardless
of whether the individual’s name or signature appears on the
license application;
Each individual who has an ownership interest in a sexually
oriented business for which a license has been issued under this article,
regardless of whether the individual’s name or signature appears
on the license application;
Each individual who exercises substantial de facto control over
a sexually oriented business for which a license has been issued under
this article, regardless of whether the individual’s name or
signature appears on the license application.
A person responsible for planning and/or directing the work
of others and monitoring them when necessary.
Any place where a person who appears in a state of nudity
or displays specified anatomical areas is provided to be observed,
viewed, sketched, drawn, painted, sculptured, photographed, or similarly
depicted by other persons who pay money or any form of consideration;
however, nude modeling at or on behalf of any properly accredited
institution of higher learning shall not fall within this definition.
A state of dress which fails to fully and opaquely cover
the anus, genitals, pubic region, or perineum anal region, or the
exposure of any device, costume or covering that gives the realistic
appearance of or simulates the anus, genitals, pubic region, or perineum
anal region, regardless of whether the nipple and areola of the human
female breast are exposed, or shows the covered male genitals in a
discernibly turgid state.
To cause to function or to put or keep in a state of doing
business. Operator means any person on the premises of a sexually
oriented business who is authorized to exercise operation control
of the business. A person may be found to be operating or causing
to be operated a sexually oriented business regardless of whether
that person is an owner, part owner, or licensee of the business.
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
Any city park as defined by chapter 19 of the Code of Ordinances, or any park or recreational area operated by a city/county/state government, or any park to which the general public has access.
A consistent or substantial course of conduct, such that
the films or performances exhibited constitute a substantial portion
of the films or performances offered as a part of the ongoing business
of the sexually oriented business.
A building or group of buildings in which persons regularly
assemble for religious worship and activities intended primarily for
purposes connected with such worship or for propagating a particular
form of religious belief. For the purposes of this definition, the
term religious institution shall include, but not be limited to, a
church, synagogue, mosque or temple.
A single-family, duplex, townhouse, multiple-family, manufactured
home, mobile home, or other residential zoning district as defined
in the city’s zoning ordinance.
A single-family, duplex, multiple-family, manufactured home
park, manufactured home subdivision, mobile home park, mobile home
subdivision, campground, or other residential use as defined in the
city’s zoning ordinance.
The exposure of the female nipple or areola, or the exposure
of any device, costume or covering that gives the realistic appearance
of or simulates the female nipple or areola, so long as the following
anatomical areas of an individual are fully and opaquely covered:
the anus, genitals, pubic region and the perineum anal region of the
human body. The term semi-nude shall not apply to an individual exposing
a female nipple or areola in the process of breastfeeding a child
under that person’s care.
A business or commercial establishment that as one (1) of
its primary business purposes, offers for any form of consideration,
a place where two (2) or more persons may congregate, associate, or
consort for the purpose of specified sexual activities. The definition
of sexual encounter center or any sexually oriented business shall
not include an establishment where a medical practitioner, psychologist,
psychiatrist, or similar professional person licensed by the state
engages in medically approved and recognized sexual therapy.
An adult arcade, adult bookstore, adult novelty store, adult
video store, adult cabaret, adult motel, adult motion picture theater,
adult theater, escort agency, nude model studio, or other commercial
enterprise which regularly offers a service or regularly sells, rents,
or exhibits devices or any other items intended to provide sexual
stimulation or sexual gratification to the customer. The term “sexually
oriented business” shall also mean any commercial enterprise
that self-identifies as an adult arcade, adult bookstore, adult novelty
store, adult video store, adult cabaret, adult motel, adult motion
picture theater, adult theater, escort agency or nude model studio.
Any display, design, message, pictorial, image or other representation
that is:
Constructed, placed, attached, painted, erected, fastened, or
manufactured in any manner whatsoever so that it is visible from the
outside of a sexually oriented business; and
Used to seek the attraction of the public to any goods, services,
or merchandise available at the sexually oriented business.
|
The term “sign” also includes any representation
painted on or otherwise affixed to any exterior portion of a sexually
oriented business establishment or to any part of the tract upon which
the establishment is situated.
|
Any of the following:
Any of the following:
The sale, lease, or sublease of the business;
The transfer of securities that constitute a controlling interest
in the business, whether by sale, exchange, or similar means; or
The establishment of a trust, gift, or other similar legal device
that transfers the ownership or control of the business, except for
transfer by bequest or other operation of law upon the death of the
person possessing the ownership or control.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
Sexually oriented businesses are classified as follows:
(1)
Adult
arcades;
(2)
Adult
bookstores, adult novelty stores or adult video stores;
(3)
Adult
cabarets;
(4)
Adult
motels;
(5)
Adult
theaters;
(6)
Adult
motion picture theaters;
(7)
Escort
agencies;
(8)
Nude
model studios; and
(9)
Sexual
encounter centers.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
(a)
Any sexually oriented business that is in violation of section 16-25, or any other location requirement of any other city ordinance that was legally operating at the time it was licensed, or the effective date of any amendment of such ordinance or regulation, shall be deemed a nonconforming use.
(b)
Any
legally established, sexually oriented business that is in violation
of this article because of annexation into the city shall be deemed
to be a nonconforming use.
(c)
A sexually oriented business that is lawfully operating within the city on or after the effective date of this article shall not be rendered a nonconforming use by the subsequent location of a protected use listed in section 16-25 within one thousand three hundred twenty (1,320) feet of the sexually oriented business.
(d)
Notwithstanding anything contained in this article or in the city’s zoning ordinance as amended to the contrary, a legal nonconforming sexually oriented business shall be required to meet all applicable requirements of this article except locational requirements established by section 16-25 within sixty (60) days of the date the sexually oriented business becomes nonconforming. The board of adjustment may grant a nonconforming sexually oriented business an extension of time to comply with these requirements if the business shows, upon timely written application, that meeting these requirements within sixty (60) days imposes an unnecessary hardship on the business.
(e)
Legal
nonconforming sexually oriented businesses shall not be increased,
enlarged, extended or altered except that the use may be changed to
a use other than a sexually oriented business to the extent allowed
by the city’s zoning ordinance. A person commits an offense
if he increases, enlarges, extends or alters, or causes to be increased,
enlarged, extended or altered, a nonconforming sexually oriented business.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
A person commits a violation if the person operates or causes
to be operated a sexually oriented business in any zoning district
other than an industrial zoning district as defined in the city’s
zoning ordinance.
A person commits a violation if the person operates or causes
to be operated a sexually oriented business within one thousand three
hundred twenty (1,320) feet of:
(1)
A religious
institution including a church, synagogue, mosque, temple, or building
which is used primarily for religious worship and related religious
activities;
(2)
A public
or private educational facility or child care facility, including
but not limited to, child day care facilities, nursery schools, preschools,
kindergartens, elementary schools, private schools, intermediate schools,
junior high schools, middle schools, high schools, vocational schools,
secondary schools, continuation schools, special education schools,
junior colleges and universities. The term school includes the school
grounds, but does not include facilities used primarily for another
purpose and only incidentally as a school;
(3)
A boundary
of a residential zoning district as defined in the city’s zoning
ordinance;
(4)
A public
park or recreational area which has been designated for park or recreational
activities, including but not limited to, a park, playground, nature
trail, swimming pool, athletic field, basketball, or tennis court,
pedestrian/bicycle path, or other similar public land within the city,
or its ETJ;
(5)
The
property line of a lot or parcel devoted to a residential use as defined
in the city’s zoning ordinance;
(6)
A family
oriented recreation facility including, but not limited to, a roller
skating rink, amusement park, ice skating rink, go-kart track, miniature
golf course, or a facility used primarily for youth or children’s
recreational, entertainment or athletic activities;
(7)
Any
premise licensed pursuant to the alcoholic beverage control regulations
of the State of Texas, or an agency thereof;
(8)
A public
library; or
(9)
A hotel,
motel or similar establishment in which members of the public obtain
sleeping accommodations for consideration. The term includes without
limitation a hotel, motel, inn, or bed and breakfast or similar establishment.
The term does not include:
a.
A hospital,
sanitarium, or nursing home; or
b.
A dormitory
or other housing facility owned or leased and operated by an institution
of higher education or a private or independent institution of higher
education as those terms are defined by Section 61.003, Education
Code, used by the institution for the purpose of providing sleeping
accommodations for persons engaged in an educational program or activity
at the institution.
|
A person commits a violation if that person causes or permits
the operation, establishment, substantial enlargement, or transfer
of ownership or control of a sexually oriented business within one
thousand three hundred twenty (1,320) feet of another sexually oriented
business.
|
|
A person commits a violation if that person causes or permits
the operation, establishment or maintenance of more than one sexually
oriented business in the same building structure, or portion thereof,
or the increase of floor area of any sexually oriented business in
any building, structure, or portion thereof containing another sexually
oriented business.
|
|
Measurement shall be made in a straight line, without regard
to the intervening structures or objects, from the nearest portion
of the building or structure used as the premises where a sexually
oriented business is conducted, to the nearest property line of the
premises of a use listed in subsections (1) through (9) above. The
presence of a city, county or other political subdivision boundary
shall be irrelevant for the purposes of calculating and applying the
distance requirements of this section.
|
|
The distance between any two (2) sexually oriented businesses
shall be measured in a straight line, without regard to the intervening
structures or objects or political boundaries, from the closest exterior
wall of the structure in which each business is located.
|
(Ordinance O-11-009, sec. 3, adopted 7/25/11; Ordinance O-11-022, sec. 1, adopted 11/3/11)
A person commits an offense if the person operates or causes
to be operated a sexually oriented business without a valid license,
issued by the city for the particular classification of a sexually
oriented business. The person, association, firm, partnership or corporation
desiring to obtain a sexually oriented business license shall make
an application on a form provided by the city secretary.
The fact that a person, association, firm, partnership, corporation
or other legal entity possesses other types of state or city permits
or licenses does not exempt the person from the requirement of obtaining
a license for a sexually oriented business.
An application for a sexually oriented business license shall
only be considered to be complete if it contains all information specified
in subsections (1) through (14) below:
(1)
The
applicant’s full and true name along with any other names used
in the preceding five (5) years. Any person with interest in the business
shall:
(2)
The
applicant’s current address;
(3)
A set
of fingerprints suitable for conducting necessary background checks
pursuant to this article, and the applicant’s Social Security
number, to be used for the same purpose;
(4)
The
business name as it is to be displayed on the premises, the company
name, if different than the preceding, the property address and legal
description, the business mailing address, business telephone number,
and any e-mail or website addresses that are to be used in conjunction
with the business;
(5)
Written
proof of age, in the form of a birth certificate accompanied by a
current photograph, a current driver’s license, or other picture
identification issued by a domestic governmental agency;
(6)
The
issuing jurisdiction and the effective dates of any license or permit
held by the applicant relating to a sexually oriented business, and
whether any such license or permit has been denied, revoked, or suspended,
and if so, the reason or reasons therefor;
(7)
The
name and address of the statutory agent or other agent authorized
to receive service of process;
(8)
A diagram
showing a plan of the premises. The diagram shall:
a.
Be oriented
to the north, or to a designated street;
b.
Be drawn
to a designated scale 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 (6) inches;
c.
Designate
any portion of the premises in which customers will not be permitted;
d.
Specify
the location of all manager’s stations, if applicable; and
e.
Designate
the place at which the license, if granted, will be conspicuously
displayed.
(9)
An approved
city sign permit accompanied by a photograph verifying posting of
notification signage required by Section 243.075 of the Texas Local
Government Code;
(10)
A
list of all employees, or prospective employees, along with copies
of complete updated employment application, valid driver’s license,
state identification card, or passport containing a photograph of
the employee;
(11)
A
notarized affidavit signed by each applicant and certifying all information
and documentation provided with the application to be true and correct;
(12)
A
nonrefundable application fee in the amount of seven hundred and fifty
dollars ($750.00);
(13)
A
certificate of occupancy, if required, issued by the city’s
building inspector; and
(14)
All
information, supported by any necessary documentation, required by
this article.
|
An application submitted without all of the required information,
or without the application fee, shall be deemed incomplete. Incomplete
applications shall be denied and within forty-five (45) business days
of its receipt by the city secretary, be returned to the applicant,
accompanied by a notice specifying the reasons for application denial.
|
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
The annual fee for a sexually oriented business license shall
be seven hundred and fifty dollars ($750.00). A sexually oriented
business license shall be valid from the date of issuance through
January 31 of the following year. The annual fee shall not be prorated.
The chief of police, or his designee, shall approve the issuance
of a license by the city secretary to an applicant within forty-five
(45) days after receipt of an application, unless the Chief, or his
designee, 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 section 16-25 of this article.
(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 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 article, 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.
(9)
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 subsection; or
b.
Any
of the below offenses of the state or criminal attempt, conspiracy,
or solicitation to commit same;
c.
Any
of the following offenses as described in chapter 43 of the Texas
Penal Code:
d.
Any
of the following offenses as described in of the Texas Penal Code:
1.
Public
lewdness;
2.
Indecent
exposure;
3.
Indecency
with a child;
5.
Incest, solicitation of a child or harboring a runaway child as described in chapter 25 of the Texas Penal Code; or
6.
Those
crimes defined as “drug-defined offenses” or “drug-related
offenses” by the Bureau of Justice Statistics Drug and 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;
e.
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-month period.
(10)
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.
(11)
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.
(12)
The applicant of the proposed establishment is in violation of or is not in compliance with any of the requirements outlined in section 16-27 or section 16-25, or any other applicable law, ordinance or regulation.
|
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 subsection (9)c. or (9)d. above, may qualify for a sexually oriented business license only when the time period required by subsection (9)e.1–3. above, has elapsed.
|
|
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. The license shall be posted in accordance with the provisions of section 16-26.
|
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
A person commits an offense if the person manages and/or or
entertains in a licensed sexually oriented business without a valid
manager and/or entertainer license, issued by the city.
The person desiring to obtain a manager and/or entertainer license
shall make an application on a form provided by the city secretary
and provide all of the following information:
(1)
A valid
copy of the current sexually oriented business license for each of
the sexually oriented businesses in which the manager and/or entertainer
proposes to work or perform;
(2)
Applicant’s
name, any aliases, mailing address for receipt of notices, home address
and telephone number, date and place of birth, social security number,
and, in the case of entertainers, any stage names or nicknames used
in entertaining;
(3)
Name
and address of each sexually oriented business where the applicant
intends to work;
(4)
A statement
that the applicant is eighteen (18) years or older, confirmed by provision
of documentation issued by a state or federal agency bearing the applicant’s
date of birth and photograph;
(5)
A statement
that the applicant has not been convicted of, or released from confinement
or conviction of, or received an order for, deferred adjudication
or disposition, of any felony or any misdemeanor (other than traffic
offenses) where such felony or misdemeanor violation constitutes a
specified criminal act; the fact that the applicant has appealed such
action shall have no effect on the disqualification of the applicant;
(6)
A statement
that the applicant has not been convicted of or released from confinement
for conviction of, or received an order for, deferred adjudication
or disposition, whichever event is later, of any other felony within
the five (5) years or any other misdemeanor (other than traffic offenses)
within the two (2) years immediately preceding the date of application;
the fact that the applicant has appealed such action shall have no
effect on the disqualification of the applicant;
(7)
A statement
that the applicant has not had a sexually oriented business manager
or entertainer license, or comparable license, of any type revoked
within the past five (5) years nor one (1) suspended within the past
two (2) years, immediately preceding the date application, the fact
that the applicant has appealed such action shall have no effect on
the disqualification of the applicant;
(8)
A statement
that the applicant has not had, within the two (2) years immediately
preceding the date of application, an ownership, operational or managerial
position, of a sexually oriented business that has demonstrated an
inability to operate in a peaceful and law-abiding manner, thus necessitating
action by law enforcement officers;
(9)
A statement
that the applicant does not owe delinquent taxes, assessments or other
financial obligations to the city, or if such debts and/or obligations
are owed, that arrangements satisfactory to the city manager have
been made for the payment of such debts or obligations; and
(10)
A
statement signed under oath by the applicant that the information
contained in the application is true and correct; that the applicant
grants permission to the city to perform any necessary background
checks on the applicant; and that the applicant has read all the provisions
of the chapter regulating sexually oriented businesses.
|
If the applicant fails to provide all of the information required
by this section, or if the information provided is false or misleading,
the application shall be denied. Further, a license issued under this
section may be revoked and/or suspended after issuance if the information
provided by the applicant is later found to be false or misleading.
|
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
The annual fee for a manager and/or entertainer license shall
be one hundred fifty dollars ($150.00). A manager and/or entertainer’s
license shall be valid from the date of issuance through January 31
of the following year. The annual fee for a manager/entertainer license
shall not be prorated.
If the applicant meets all the applicable requirements, the
chief of police, or his designee, shall approve the issuance of a
license by the city secretary to an applicant within forty-five (45)
days after receipt of a complete application.
In the event the application is determined incomplete, the notification
to the applicant shall include a written explanation of the reason(s)
why the application is incomplete. The applicant may resubmit the
application within ten (10) days of the city’s written notice
to the applicant. Once a completed application has been re-submitted,
the police chief shall have forty-five (45) days to approve or disapprove
the application.
The chief of police shall base his decision on the information
provided by the applicant, the police department’s investigation,
license requirements and denial criteria, and any other information
provided by other city departments or governmental agencies. The applicant
shall be notified in writing within ten (10) days after the chief’s
decision.
The license, if granted, shall state on its face: the license
number, the name of the license holder (including any stage names),
a photograph of the licensee, the date of issuance and expiration,
the address of the sexually oriented business where such license is
applicable.
A valid copy of the manager’s license shall be posted in accordance with the provisions of section 16-26. A valid copy of the entertainer’s license shall not be posted but shall be available for inspection on the premises of the sexually oriented business at any time.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
Prior to submitting an application for a sexually oriented business
license, the applicant must obtain a certificate of occupancy from
the city’s building official.
If a building and/or other construction related permit is required
under applicable city ordinances, the applicant shall submit to the
building inspection department, all necessary plans and permit applications.
The building official shall cause all plans and permit applications
to be processed and reviewed under the terms of applicable codes and
ordinances. Upon approval of a final inspection, by applicable city
departments, the building official shall issue a certificate of occupancy.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
A licensee, owner, operator and/or employee of a sexually oriented
business shall be subject to regulation under this article and shall
permit representatives of the city, including but not limited to,
the police department, health department, fire department, building
inspections division and code enforcement division to inspect all
portions of the premises and to inspect the records required to be
maintained under this article, for the purpose of ensuring compliance
with all applicable regulations, at any time it is occupied or open
for business.
A licensee, owner or operator of a sexually oriented business
commits an offense if:
(1)
The
person operates the establishment without maintaining a current list
of all employees of the business, along with a completed, 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.
(2)
The
person refuses to permit a lawful inspection of the records and premises
by a representative of the police department or other department of
the city at any time the sexually oriented business is occupied or
open for business.
(3)
The
person does not maintain the required records on the premises of the
licensed establishment.
(4)
The
person does not permit representatives of the police department to
take photographs of the licensee, owner, operator or employee of the
sexually oriented business, for official police department purposes,
at any time it is occupied or open for business.
|
The provisions of this section do not apply to areas of an adult
motel which are currently being rented by a customer for use as a
permanent or temporary habitation.
|
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
An application for renewal of a sexually oriented business license
shall be submitted to the city secretary at least thirty (30) days
before the expiration date of the then current and valid license.
A licensee that fails to renew a license shall forfeit the right to
conduct business within the city until such time as the renewal is
approved. A sexually oriented business license may be renewed by submission
to the city secretary of an application on the form prescribed by
the city secretary and payment of a nonrefundable renewal fee of one
thousand dollars ($1,000.00). Annual renewal fees shall not be prorated.
An application for renewal of a manager and/or entertainer license
shall be submitted to the city secretary at least thirty (30) days
before the expiration date of the then current and valid license.
A person that fails to renew their license shall forfeit the right
to manage and/or entertain within the city until such time as the
renewal is approved. A manager and/or entertainer license may be renewed
by submission to the city secretary of an application on the form
prescribed by the city secretary and payment of a nonrefundable renewal
fee of seventy-five dollars ($75.00). Annual renewal fees shall not
be prorated.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
The chief of police shall issue a written notice of intent to
suspend a sexually oriented business license for a period not to exceed
thirty (30) days if the chief determines that a licensee or an employee
of a licensee has:
(1)
Violated
or is not in compliance with any section of this article; or
(2)
Refused
to allow an inspection of the sexually oriented business premises
as authorized by this article; or
(3)
Knowingly
permitted gambling by any person on the sexually oriented business
premises; or
(4)
Demonstrated
inability to operate or manage a sexually oriented business in a peaceful
and law-abiding manner thus necessitating action by law enforcement
officers.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
The chief of police shall issue a written notice of intent to
revoke a sexually oriented business license if:
(1)
A cause of suspension in section 16-33 occurs and the license has been suspended one (1) other time within the preceding twelve (12) months;
(2)
On two
(2) or more occasions within a five-year period of time a licensee(s)
or operator(s) (or any combination thereof) has/have been convicted
of or placed on deferred adjudication or 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 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 and 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)
A licensee
or operator gave false or misleading information in the material submitted
to the chief of police during the application process;
(4)
A licensee
or operator has knowingly allowed possession, use or sale of a controlled
substance on the premises;
(5)
A licensee
or operator has on two (2) or more occasions knowingly allowed prostitution
on the premises;
(6)
A licensee
or operator knowingly operated the sexually oriented business during
a period of time when the licensee’s license was suspended;
(7)
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)
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;
(9)
The
licensee is required to register as a sex offender under the provisions
of Chapter 62 of the Texas Code of Criminal Procedure; or
(10)
A license is transferred in violation of section 16-36;
|
The fact that a conviction is being appealed shall have no effect
on the revocation of the license.
|
|
Subsection (7) above does not apply to adult motels as a ground for revoking the license, unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation or sexual contact to occur in a public place or within public view.
|
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
If the chief of police determines that facts exist for denial,
suspension or revocation of a license under this article, the city
secretary shall notify the applicant or licensee (respondent) in writing
of the intent to deny, suspend or revoke the license, including the
grounds therefor, by personal delivery, or by certified mail.
The notification shall be directed to the most current business
address on file with the city. Within five (5) business days of receipt
of such notice, the respondent may provide to the city secretary,
in writing, a response that shall include a statement of reasons why
the license or permit should not be denied, suspended or revoked.
Within ten (10) business days of the receipt of respondent’s
written response, the city secretary shall notify respondent in writing
of the hearing date on respondent’s denial, suspension or revocation
proceeding.
Within fifteen (15) business days of the city secretary’s
receipt of respondent’s written response, the city manager shall
conduct a hearing at which respondent shall have the opportunity to
be represented by counsel and present evidence and witnesses on his
or her behalf. If a response is not received by the city secretary
in the time stated above or, if after the hearing, the city manager
finds that grounds as specified in this article exist for denial,
suspension or revocation, then such denial, suspension, or revocation
shall become final five (5) business days after the hearing unless
within that time the city manager sends, by certified mail, written
notice that the license has been denied, suspended, or revoked or
if the license will be issued or allowed to remain in effect. If the
license is denied, suspended or revoked such notice shall include
a statement advising the applicant or licensee of the right to appeal
such decision to a court of competent jurisdiction.
If after a hearing, the city manager finds that insufficient
grounds exist for the denial, suspension or revocation of a license,
then within five (5) business days after the hearing, the city manager
shall withdraw the intent to deny, suspend or revoke the license,
and shall so notify the respondent in writing of such action by certified
mail and shall contemporaneously issue the license or allow the license
to remain in effect, as applicable.
When a decision to deny, suspend, or revoke a license becomes
final, the applicant or licensee (aggrieved party) whose application
of a license has been denied, or whose license has been suspended
or revoked, shall have the immediate right to appeal such action to
a court of competent jurisdiction. Until the court of competent jurisdiction
issues its final judgment, the decision to deny, suspends or revoke
a license shall remain in effect and be enforced.
A sexually oriented business license or the ownership or control
of a sexually oriented business which is directly or indirectly a
part of civil litigation, an administrative hearing, or procedures
regarding the denial, suspension or revocation of the license, such
license shall not be transferred, sold or given to another person
during the pendency of the judicial or administrative processes.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
A person commits a violation if the person transfers a license
or permits 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 ownership or control of a sexually
oriented business.
A person commits a violation if the person counterfeits, forges,
changes, defaces or alters a license.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
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 one hundred fifty (150) square feet
of floor space, a film, video, or live entertainment 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 providing all information specified in subsection 16-26(8) of this article. Manager stations shown on this diagram shall be dimensioned and shall not contain in excess of thirty-two (32) square feet of floor area per station.
(2)
No alteration
in the configuration or location of a manager’s station may
be made without the prior approval of the city.
(3)
It is
the duty of the licensee of the premises to ensure that at least one
(1) employee is on duty and situated in each manager’s station
at all times that any patron is present inside the premises.
(4)
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 has two (2) or more managers’ 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 (1) of the manager’s stations. The view required
in this subsection must be by direct line of sight from the manager’s
station.
(5)
It shall be the duty of the licensee to ensure that the view area specified in subsection (4) remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks, or other materials and, at all times, 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 (1) of this section.
(6)
No viewing
room may be occupied by more than one (1) person at any time.
(7)
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 five (5) footcandles as
measured at the floor level.
(8)
It shall
be the duty of the licensee to ensure that the illumination described
above is maintained at all times that any patron is present in the
premises.
(9)
No licensee
shall allow openings of any kind to exist between viewing rooms or
booths.
(10)
No
person shall make or attempt to make an opening of any kind between
viewing rooms or booths.
(11)
The
licensee shall, during each business day, regularly inspect the walls
between the viewing booths or rooms to determine if any openings or
holes exist.
(12)
The
license shall cause all floor coverings in viewing booths or rooms
to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
(13)
The
licensee shall cause all wall surfaces and ceiling surfaces in viewing
booths to be constructed of, or permanently covered by, nonporous,
easily cleanable material. No wood, plywood, composition board, or
other porous material shall be used within forty-eight (48) inches
of the floor.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
An escort agency shall not employ any person under the age of
eighteen (18) years.
A person commits a violation if the person acts as an escort,
or agrees to act as an escort, for any person under the age of eighteen
(18) years.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
A person commits a violation if the person knowingly and intentionally,
in a sexually oriented business, appears nude or in a state of nudity
or engages in specified sexual activities.
A person commits a violation if the person knowingly and intentionally,
in a sexually oriented business, appears in a semi-nude state, unless
the person is an employee who, while semi-nude, is at least six (6)
feet from any patron or customer and on a stage at least two (2) feet
from the floor.
A person commits a violation if the person receives directly
any pay or gratuity from any patron or customer, or if any patron
or customer pays or gives any gratuity directly to the person, while
the person is an employee and semi-nude in a sexually oriented business.
A person commits a violation if the person, while semi-nude,
knowingly and intentionally touches a part on or the clothing of a
patron or customer.
It is a defense to prosecution that a person appearing in a
state of nudity did so in a modeling class operated:
(1)
By a
proprietary school, licensed by the state; a college, junior college,
or university supported entirely or partly by taxation;
(2)
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:
a.
Which
has no sign visible from the exterior of the structure and no other
advertising that indicates a nude person is available for viewing;
and
b.
Where
in order to participate in a class, a student must enroll at least
three (3) days in advance of the class; and
c.
Where
no more than one (1) nude model is on the premises at any one (1)
time.
(Ordinance O-11-009, sec. 3, adopted 7/25/11; Ordinance O-11-022, sec. 2, adopted 11/3/11)
A person commits a violation if the person knowingly allows
a person under the age of eighteen (18) years on the premises of a
sexually oriented business.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
No sexually oriented business, except for an adult motel, may
remain open at any time between the hours of 12:00 a.m. and 8:00 a.m.
on weekdays and Saturdays, and 12:00 a.m. and 12:00 p.m. on Sundays.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
Any business activity or service that by federal or state law
is required to be operated by or employing licensed psychologists,
licensed physical therapists, registered massage therapists, registered
nurses, licensed pharmacists or licensed athletic trainers engaged
in practicing such licensed profession as generally recognized within
their profession, including:
(1)
A state-registered
massage establishment that employs only state-registered massage therapists
to perform massage therapy; conforming to all requirements of state
law and other applicable law;
(2)
A state-registered
massage school with at least two (2) registered massage therapists
that teaches the course of instruction required for registration as
a massage therapist or a school approved by the Texas Department of
State Health Services, or successor agency, or that is otherwise approved
by the state;
(3)
A state-registered
massage therapy instructor who instructs one (1) or more students
in any section of the course of instruction required for registration
as a massage therapist;
(4)
A business
operated by or that employs a licensed physical therapist whose activities
fall under the control of The Executive Council of Physical Therapy
and Occupational Therapy Examiners or a license of another state agency
performing health care service within the scope of the applicable
licensing act who performs the activities for or on behalf of the
business or commercial enterprise;
(5)
Any
business operated by or employing licensed physicians or licensed
chiropractors engaged in practicing the healing arts as its sole business;
or
(6)
Any
activity conducted or sponsored by any Texas independent school district,
licensed or accredited private school, or public or private college
or university.
(Ordinance O-11-009, sec. 3, adopted 7/25/11; Ordinance O-11-022, sec. 3, adopted 11/3/11)
Except as otherwise stated herein, any person, firm, corporation,
agent or employee thereof who violates any provision of this article
(a violation) shall be guilty of a class A misdemeanor punishable
by a fine not to exceed four thousand dollars ($4,000.00) and/or confinement
in jail for a term not to exceed one (1) year.
Each day that a violation exists or is permitted to exist shall
constitute a separate offense.
The refusal to issue a license based on ineligibility shall
not prohibit the imposition of a criminal penalty and the imposition
of a criminal penalty shall not prevent the refusal to issue a license
based on ineligibility.
The revocation or suspension of a license shall not prohibit
the imposition of a criminal penalty and the imposition of a criminal
penalty shall not prevent the revocation or suspension of a license.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
The city reserves the right to seek all available civil remedies
in a court of law to include, but not be limited to, injunction and
civil fines for any violations of this article.
Any person, firm, corporation, agent or employee thereof who
violates any provision of this article, in addition to any criminal
remedies, shall be subject to a civil fine up to and including one
thousand dollars ($1,000.00) per day for each day the violation occurs.
(Ordinance O-11-009, sec. 3, adopted 7/25/11)
If, due to annexation, rezoning, or other reason, an existing sexually oriented business is in violation of the location requirements in section 16-25, the sexually oriented business may submit verified proof that the business has not recouped the owner’s investment prior to the date of annexation, rezoning, or other reason for the location violation.
The required documentation shall include at a minimum, but is
not limited to, the following:
(1)
The
amount of the owner’s investment in the existing enterprise
to the date the proof is submitted;
(2)
The
life expectancy of the enterprise;
(3)
The
existence or nonexistence of lease obligations, as well as any contingency
clauses therein permitting termination of the lease;
(4)
Proof
of the income of the enterprise since it commenced operations and
a projection of yearly income. Proof of income may be in the form
of tax returns or reliable financial statements; and
(5)
A proposed
schedule for amortization of the investment, to be considered in light
of the intent of this section.
|
Upon evaluation of the proof and a finding that the proposed
amortization is reasonable under the circumstances, the city council
shall approve a contingent sexually oriented business permit. The
contingent sexually oriented business permit shall specifically state
the reasons that the sexually oriented business permit would have
been denied but for the fact that the enterprise was in existence
prior to being annexed into the city limits, rezoned, or for other
appropriate reasons.
|
|
The contingent sexually oriented business permit shall be renewed
annually only through the end of the amortization period. No sexually
oriented business permit shall be issued for that location beyond
that the amortization period unless circumstances change so as to
bring the enterprise into compliance with this article. The contingent
sexually oriented business permit shall be subject to revocation and
suspension pursuant to this article.
|
|
Upon a finding that the proposal is not reasonable under the
circumstances, the city manager, or his designee, shall make a counter-proposal
or recommendation and the applicant may resubmit a revised proposal
within fifteen (15) days of the city manager’s determination
and counter-proposal. The city council shall make a final determination
using the counter-proposal.
|
(Ordinance O-11-022, sec. 4, adopted 11/3/11)
The city shall provide to a sexually oriented business written
notice of each citation issued to an operator or employee of the business
for an alleged violation of this article. The notice may be sent by
certified mail, return receipt requested, to the business address
of the sexually oriented business as it appears on its license application,
to the attention of the licensee, as it appears on the license application,
or may be personally delivered to the licensee. A failure of the city
to provide such notice is not a violation of this article, and shall
not affect or invalidate the citation.
Editor’s note(s)–Former sec. 16-45.
(Ordinance O-11-009, sec. 3, adopted 7/25/11; Ordinance O-11-022, sec. 5, adopted 11/3/11)
