ARTICLE III SPECIALIZED CERTIFICATE OF OCCUPANCY

Any Person desiring to obtain a Specialized Certificate of Occupancy for a Sexually Oriented Business must apply on form(s) provided by the city’s Building Official. The Applicant must also furnish any and all necessary supporting documents as required by the application.

The following information must be provided on the application form:

The name, street address (and mailing address if different) of the Applicant(s);

The name of the Applicant’s spouse and of all individuals with whom the Applicant resides;

Two copies each of recent photographs of the Applicant showing full face and each side face profile;

A complete set of fingerprints on forms from the police department;

A complete and current NCIC and TCIC criminal history of Applicant obtained by Applicant from the Texas Department of Public Safety. The criminal history must be completed within 15 days of the date the application is submitted to the Building Official;

The Applicant’s driver’s license number, Social Security number, and, if applicable, his/her state or federally issued tax identification number;

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

(8)

If the Applicant intends to operate the Sexually Oriented Business under a name other than that of the Applicant, he or she must state (a) the Sexually Oriented Business’s assumed name and (b) submit the required registration documents;

(9)

Whether the Applicant, or an individual residing with the Applicant, has ever been convicted, or is awaiting trial on pending charges, of a crime specified in sections 112.24(A)(11) and (12) and, if so, the nature of the offense(s) and the date, place, and jurisdiction of each offense;

(10)

Whether the Applicant, or an individual residing with the Applicant, has had a previous license or specialized certificate under this chapter or other similar Sexually Oriented Business Ordinance from another city or county denied, suspended or revoked, including the name and location of the Sexually Oriented Business for which the license or specialized certificate was denied, suspended or revoked, as well as the date of the denial, suspension or revocation, and whether the Applicant, or an individual residing with the Applicant, is or has been a partner in a partnership or an officer, director or principal stockholder of a corporation that is or was licensed under a Sexually Oriented Business Ordinance whose license or specialized certificate has previously been denied, suspended or revoked, including the name and location of the Sexually Oriented Business for which the license or specialized certificate was denied, suspended or revoked, as well as the date of denial, suspension or revocation;

(11)

Whether the Applicant, or an individual residing with the Applicant, holds any other license or specialized certificate under this chapter or other similar Sexually Oriented Business Ordinance from another city or county and, if so, the names and locations of such other licensed businesses;

(12)

The address and legal description of the tract of land on which the establishment is to be located;

(13)

If the establishment is in operation, the date on which the owner(s) acquired the establishment for which the license or specialized certificate is sought, and the date on which the establishment began operations as a Sexually Oriented Business at the location for which the specialized certificate is sought; and

(14)

If the establishment is not in operation, the expected startup date (which must be expressed in number of days from the date of issuance of the specialized certificate). If the expected startup date is to be more than ten days following the date of issuance of the specialized certificate, then a detailed explanation of the construction, repair or remodeling work or other cause of the expected delay and a statement of the owner’s time schedule and plan for accomplishing the construction, repair or remodeling work.

All applications for a specialized certificate must include the following:

If the establishment is a State of Texas corporation, a certified copy of the articles of incorporation, together with all amendments thereto.

If the establishment is a foreign corporation, a certified copy of the certificate of authority to transact business in this state, together with all amendments thereto.

If the establishment is a limited partnership formed under the laws of the State of Texas, a certified copy of the certificate of limited partnership, together with all amendments thereto.

If the establishment is a foreign limited partnership, a certified copy of the certificate of limited partnership and the qualification documents, together with all amendments thereto.

Proof of the current fee ownership of the tract of land on which the establishment is to be situated in the form of a copy of the recorded deed along with the current address(es) and telephone number(s) of the owner(s).

If the Person(s) identified as the fee owner(s) of the tract of land is not also the owner(s) of the establishment, then the lease, purchase contract, purchase option contract, lease option contract or other document(s) evidencing the legally enforceable right of the owner(s) or proposed owner(s) of the establishment to have or obtain the use and possession of the tract or portion thereof that is to be used for the purpose of the operation of the establishment together with the correct address and telephone number of each person with an ownership interest in the property.

If the property is owned by other than a natural Person the complete name, address and telephone of each Person with an interest in the entity must be included in the application.

(8)

A current certificate and straight-line drawing prepared within 30 days prior to application by a registered land surveyor depicting the property lines of any established use listed in section 112.10 within 1,500 feet of the property to be certified. For purposes of this section, a use is considered existing or established if it is in existence at the time an application is submitted.

(9)

The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but must be drawn to a designated scale no smaller than 1/4 inch equals one foot and with marked dimensions of the placement of the building on the tract of land, and the interior of the premises to an accuracy of plus or minus six inches. All locational requirements must be approved by the Building Official within 60 days from the time the application is filed.

(10)

Any of items (1) through (9) above will not be required for a renewal application under section 112.29 of this chapter if they were previously presented and the Applicant states that the documents previously furnished to the Building Official with the original application or previous renewals thereof remain correct and current.

Every application for a Specialized Certificate of Occupancy must contain a statement made under oath that:

The Applicant has personal knowledge of the information contained in the application, and that the information contained therein and furnished therewith is true and correct; and,

The Applicant has read the provisions of this chapter.

§ 112.22 PUBLIC NOTICE OF PENDING APPLICATION.

The Applicant for a Sexually Oriented Business Specialized Certificate of Occupancy must be qualified according to the provisions of this chapter.

(F)

If the Applicant who wishes to operate a Sexually Oriented Business is an individual, that individual must sign the application for a Specialized Certificate of Occupancy as Applicant. If the Applicant who wishes to operate a Sexually Oriented Business is other than an individual, each individual who has an interest in the business must sign and provide all the information required by the application for a Specialized Certificate of Occupancy as an Applicant and will be considered an Operator if a Specialized Certificate of Occupancy is granted.

(G)

The fact that a Person possesses any other valid license, certificate or permit required by law does not exempt him from the requirement of obtaining a Sexually Oriented Business Specialized Certificate of Occupancy. A Person who operates a Sexually Oriented Business and possesses another business license, certificate or permit must comply with the requirements and provisions of this chapter as well as the requirements and provisions of the laws concerning the other license, certificate or permit.

(H)

All applications must include a non-refundable application fee of $2,500.00 to cover the city’s costs to process an application. An application will not be considered to have been filed until all applicable fees are paid and all information required by the application form has been submitted.

(I)

The Applicant must supplement an application with new information received after the date the application was deemed completed.

(J)

All Sexually Oriented Businesses located within the city and in operation as a lawful use conforming to the Zoning Code before the effective date of this chapter are granted a one-time waiver of the application fee. Upon satisfactory completion of the application and surrender of the existing business’ current Specialized Certificate of Occupancy, a new Specialized Certificate of Occupancy will be issued.

(K)

A copy of all applications and supporting documentation for Specialized Certificates of Occupancy will be maintained by the Building Official.

(L)

Upon receipt of an application or supplemental information, the Building Official will review the application to determine if all required and necessary information has been submitted. The Building Official will issue a letter within 10 days of receipt of the application or supplemental information and advise the Applicant whether supplemental information must be submitted. The Applicant must provide any supplemental information within 30 days or the application will be returned and the filing fee forfeited.

(Ordinance 540-99-04-27, passed 4-27-99; Am. Ordinance 834-06-06-27, passed 6-27-06; Ordinance 1148-13-06-25, passed 6-25-13)

After the Building Official has issued a letter advising the Applicant that the application is complete, the Building Official will cause signs (at least 24 inches by 36 inches in size) to be placed on the property subject to the proposed Specialized Certificate of Occupancy that provide notification by specifically stating, with letters at least three inches wide and six inches tall, “SEXUALLY ORIENTED BUSINESS LICENSE APPLICATION PENDING”. The sign shall conform to the requirements of this section and section 243.0075 of the Local Government Code. All lettering on the signs other than above described, will be at least 1 and ½ inches x 2 inches in size for each letter on the sign. The sign will also include the name, city and state of residence of each Applicant, the date on which the application was filed, and the time and place of the hearings. The signs will be placed on the property in sufficient quantities and locations to identify the property as being subject to a proposed Sexually Oriented Business Specialized Certificate of Occupancy. One sign will be erected on each lot corner to identify the boundaries of the property in addition to one sign for each 300 foot increment of each public road or highway frontage on the property existing or any part thereof. The signs will be erected within seven days after the Building Official has issued a letter advising the Applicant that the application is complete and will remain erected until the application has been approved or denied by the City Council

The city will give notice of the application and scheduled public hearings by publication in two consecutive issues of the city’s official newspaper. The notices will be printed in 10-point boldface type and will:

Include the fact that a Sexually Oriented Business Specialized Certificate of Occupancy has been applied for;

Include the exact location, including the street address, of the place of business for which the certificate is sought;

Include the name of each owner of the business and, if the business is operated under an assumed name, the trade name together with the names of all owners;

Include, if the Applicant is a corporation, the names and titles of all officers, directors and shareholders of 10% or more of the corporation;

Include the dates and times of the public hearings; and

Be published at least 15 days before each public hearing.

Pursuant to Section 243.0075 of the Local Government Code, there shall be at least 60 days between the time that an application for a Specialized Certificate of Occupancy is deemed complete by the Building Official and the public hearing to determine whether to grant or deny the application.

Once the application is determined by the Building Official to be complete, the city will send written notice of the application for a Sexually Oriented Business Specialized Certificate of Occupancy to all owners of real property lying within 1,500 feet of each property line of the tract of land on which the certificate is requested. The notice will be sent at least 15 days before the public hearings begin. The notice will be deemed to have been properly served if sent by certified or registered mail, return receipt requested, and first class mail postage prepaid to each property owner as the ownership appears on the last approved county tax roll. The notice will include:

The fact that a Sexually Oriented Business Specialized Certificate of Occupancy has been applied for;

The exact location including the street address of the place of business for which the certificate is sought;

The names of each owner of the business and, if the business is operated under an assumed name, the trade name, together with the names of all owners;

If the Applicant is a corporation, the names and titles of all officers, directors and shareholders of 10% or more of the corporation; and

§ 112.23 PUBLIC HEARING ON HEALTH AND SAFETY.

The dates and times of the scheduled public hearings.

(Ordinance 540-99-04-27, passed 4-27-99; Am. Ordinance 834-06-06-27, passed 6-27-06; Ordinance 1148-13-06-25, passed 6-25-13)

After the Building Official has determined that an application is complete pursuant to section 112.21 of this chapter and has provided public notice as required by section 122.22 of this chapter, the Building Official will then initiate the public hearing procedure as follows:

The Commission will be contacted by the Building Official and a date set for the public hearing;

The hearing will be held within 90 days of the date the Building Official advises the Applicant that the application is complete at the city’s offices;

The hearing will be scheduled on a weekday no earlier than 6:30 p.m.; and

The Building Official will send the Applicant a written notice of the hearing at least 15 days in advance of the hearing, stating the date, time and place of the hearing and will make a copy of the notice available to the public. The Building Official will post the notice at all places where City Council meeting notices are posted.

The hearing will be conducted by the Commission under the guidelines below. The Commission may liberally construe these guidelines to allow public input to protect the health and safety of the community affected by the location of a Sexually Oriented Business and to allow the Applicant to address the public’s concerns.

Interested Parties are entitled to the assistance of counsel;

Interested Parties may expressly waive the right to counsel;

The Commission may limit testimony to exclude evidence that is irrelevant, immaterial, or unduly repetitious. Relevance and materiality should be evaluated according to the relation of the evidence to the requirements of this chapter and health and safety concerns directly related to the certificate at issue; and

Any person may record, videotape or transcribe the hearing provided there is no interference with the proceedings as determined by the Commission. The Commission will have the power to limit any interference with the proceeding. One copy of the tape and transcript, if made, must be promptly delivered to the Building Official.

The Commission may continue the hearing to a date not later than ten days after the initial hearing if:

The hearing has lasted at least two and one half hours and it appears to the Commission that a significant amount of time is still required to fully present the public concerns and potential solutions to those concerns; or

Issues have been raised at the hearing requiring additional research in order to develop appropriate conditions to be attached to the certificate or that the parties need additional time to develop a solution to issues identified a the hearing;

A continuance may not be granted for the purpose of delay or for developing new evidence, except as provided above.

Within 10 days after the public hearing, the Commission will produce a written statement containing the findings of public health and safety concerns and recommendations for conditions, if any, to be attached to the certificate. The recommendations will be forwarded to the Building Official, the Applicant, and any Interested Party who requests a copy. The Building Official will forward the application and report to the City Council. If no official record of the hearing has been requested, the Commission’s statement will be the official record of the public hearing. The Commission may consult with the City Attorney for the purpose of developing appropriate conditions to address the health and safety concerns shown at the hearing. These recommendations will then be forwarded to the City Council for final disposition.

§ 112.24 ISSUANCE OF ORIGINAL SPECIALIZED CERTIFICATE OF OCCUPANCY.

If information is produced at the hearing that would support denial of the certificate, the Commission will provide that information to the City Attorney, who will investigate whether the information warrants a recommendation to the City Council for denial or revocation of the certificate under these regulations. The Commission shall also separately provide its recommendation for denial or approval of the Specialized Certificate of Occupancy to the City Council.

(F)

After receipt of the written statement and recommendation from the Commission, the City Council may approve the application, deny the application, or authorize a specialized certificate, which includes appropriate conditions and safeguards that address pertinent health and safety issues. The City Council shall approve, deny or issue a Specialized Certificate of Occupancy with safeguards or conditions within 35 days of receiving the report from the Commission or a decision made under chapter 157, the Zoning Code of the City of Pflugerville, Texas, regarding a Sexually Oriented Business.

(G)

The Applicant may appeal the City Council’s decision to a court of competent jurisdiction by filing a complaint within 30 days of the decision. An appeal does not stay or alter the City Council’s decision while the appeal is pending.

(Ordinance 540-99-04-27, passed 4-27-99; Am. Ordinance 834-06-06-27, passed 6-27-06; Ordinance 1148-13-06-25, passed 6-25-13)

The City Council may deny issuance of the certificate if one or more of the following are found to be true:

The location of the establishment would be in violation of the Zoning Code;

The location would be in violation of a 750-foot distance regulation as set forth in this chapter;

The application fees have not been paid;

An Applicant has failed to make full disclosure or supply all of the information requested on the application;

An Applicant has provided false, fraudulent or untruthful information on the application, or is attempting to acquire the certificate under false pretenses;

The configuration and layout of the proposed premises would be in violation of the applicable provisions regarding accessibility, visibility and inspection as set forth in this chapter;

The structure, configuration and layout of the premises would be in violation of, or are not in compliance with, all other applicable city ordinances, fire code or building codes;

(8)

An Applicant has not demonstrated lawful ownership of the premises, does not hold a binding lease for the premises upon which the business would be Operated, or has not demonstrated a legally enforceable right to acquire the same;

(9)

An Applicant is under 18 years of age;

(10)

An Applicant is under 21 years of age and the sale or serving of alcoholic beverages would be an aspect of the business; or

(11)

An Applicant or an Applicant’s spouse has been convicted of a criminal offense within the last 10 years involving any of the following offenses set forth in the Texas Penal Code:

(a)

Chapter 21, Texas Penal Code: Public Lewdness, indecent exposure, or indecency with a child;

(b)

Chapter 22, Texas Penal Code: Sexual assault or aggravated sexual assault;

(c)

Chapter 25, Texas Penal Code: Incest, solicitation of a child or harboring a runaway child;

(d)

Chapter 43, Texas Penal Code: Prostitution, promotion of prostitution, aggravated promotion of prostitution, compelling prostitution, obscenity, display or distribution, sale, distribution or display of harmful material to a minor, sexual performance by a child, employment harmful to minors, possession or promotion of child pornography; or

(e)

Criminal attempt, conspiracy or solicitation to commit any of the foregoing offenses.

(12)

An Applicant or an Applicant’s spouse has been convicted of a criminal offense which is equivalent to the offenses described in section 112.24(A) (11) above within the last 10 years in any jurisdiction.

An Applicant who has been convicted or whose spouse has been convicted of a criminal offense listed in section 112.24(A)(11) and (12) may obtain a Specialized Certificate of Occupancy only after the time period required for satisfactory completion has elapsed and full release has been received from all conditions imposed regarding confinement, parole, or probation, whichever is the later date and no special particular circumstances exists that indicate a pattern or propensity to repeat the criminal offense.

Before issuance of a license, the premises must be inspected by the health department providing services for the city, the fire department and the building department.

When issued, the certificate will state on its face:

The full name, address and telephone number of the Person(s) (the Operator) to whom it is granted;

The name, address and telephone number of the establishment;

A description of specifically what type of Sexually Oriented Business operation has been approved to be conducted on the premises; and

The expiration date.

§ 112.25 ISSUANCE OF AMENDED OR MODIFIED CERTIFICATES OF OCCUPANCY.

When issued, the certificate will remain the sole property of the city and is valid only as to the Operator and location for which it was originally issued and may not be sold, loaned or otherwise transferred to any other Person, subsequent Operator of the business or to another location.

(F)

The Specialized Certificate of Occupancy must be continually displayed in a conspicuous place within the establishment.

(G)

A Specialized Certificate of Occupancy automatically expires one year from the date of original issuance unless timely renewed under section 112.29 of this chapter.

(Ordinance 540-99-04-27, passed 4-27-99; Am. Ordinance 834-06-06-27, passed 6-27-06; Ordinance 1148-13-06-25, passed 6-25-13)

If a lawfully operating Sexually Oriented Business subsequently desires to modify its operations by varying the type of entertainment or activity provided to another type that is not authorized in the Operator’s current Specialized Certificate of Occupancy, the Operator must notify the Building Official in writing 30 days in advance, apply for and acquire prior written approval for the modification, up to and including an amended or modified Specialized Certificate of Occupancy, if necessary. The Building Official’s approval or denial will be made within 30 days of receipt of the written request from the Operator.

A non-refundable processing fee of $250.00 is required for obtaining an amended or modified certificate. The amended or modified certificate expires on the same date as the original certificate.

§ 112.26 SPECIALIZED CERTIFICATE OF OCCUPANCY NONTRANSFERABLE.

If the Operator asserts that request has been wrongfully or erroneously denied, the Operator may appeal the denial to Board of Adjustment according to Section 14 of the city’s Zoning Code.

(Ordinance 540-99-04-27, passed 4-27-99; Am. Ordinance 834-06-06-27, passed 6-27-06; Ordinance 1148-13-06-25, passed 6-25-13)

A Person commits a violation if that Person operates a Sexually Oriented Business under a Specialized Certificate of Occupancy in any name or at any location other than the original name and address originally designated on the face of the Specialized Certificate of Occupancy.

A Person commits a violation if that Person wrongfully counterfeits, forges, changes, defaces or alters a Specialized Certificate of Occupancy. Any certificate wrongfully altered will automatically and immediately be deemed void and invalid.

If corporations that have “substantially similar ownership” merge or consolidate, a fee of $100.00 must be paid for each Sexually Oriented Business holding a Specialized Certificate of Occupancy that is merged or consolidated into the surviving corporation. The surviving corporation succeeds to all privileges of the prior corporation that held the Specialized Certificate of Occupancy if the owners of the surviving corporation meet the qualifications for an Applicant to acquire the Specialized Certificate of Occupancy under this chapter. For the purposes of this section, corporations have “substantially similar ownership” if 90 percent or more of the corporations involved are owned by the same Person or Persons, or by the same corporation or corporations, or if the surviving corporation has maintained an ownership interest in the merged or consolidated corporations since the date the original Specialized Certificate of Occupancy was issued.

The city’s Specialized Certificate of Occupancy is not property to be inherited or otherwise transferred in cases of incapacity or death. If an Operator becomes legally incapacitated or dies, the executor or guardian of the estate must, as soon as reasonably possible but no event later than 30 days of the death or incapacity, notify the Building Official in writing of the status of business operations, the Persons controlling the estate, and those heirs or other Persons involved in settling the estate. Any Person desiring to continue the Sexually Oriented Business must meet all requirements of new Applicants and receive a new Specialized Certificate of Occupancy in their own name before continuing the business operations. Otherwise, the Specialized Certificate of Occupancy will automatically be deemed revoked as of the date of the death or incapacity of the Operator in whose name the certificate was issued.

§ 112.27 SUSPENSION OF SPECIALIZED CERTIFICATE OF OCCUPANCY.

The city’s Specialized Certificate of Occupancy is not property to be listed as an “asset” or otherwise transferred for purposes of resolution in bankruptcy. If an Operator files a petition in bankruptcy seeking protection as a failing business, the Operator must also immediately deliver true and correct copies of documentation of same to the Building Official.

(Ordinance 540-99-04-27, passed 4-27-99; Am. Ordinance 834-06-06-27, passed 6-27-06; Ordinance 1148-13-06-25, passed 6-25-13)

The Building Official, upon receipt of a written report from the police department, may also temporarily suspend a Specialized Certificate of Occupancy if it is determined that the Operator committed, condoned or knowingly or recklessly allowed an act(s) or omission(s) to occur on the premises of the establishment that:

Is a material violation of the regulations set forth in this chapter; or

Is a material violation of other applicable laws and ordinances so as to cause or allow the premises to constitute a “nuisance” to the immediate neighborhood, including but not limited to a common or a public nuisance as defined by Section 125.001, et seq., Texas Civil Practice and Remedies Code, or chapter 54 of the Code of Ordinances of the City of Pflugerville; or

Constitutes grounds for revocation as set forth in section 112.28;

Forms the basis for the Operator’s conviction of one or more offense(s) under sections 112.24(A) (11) and (12);

Knowingly permits gambling by any person on the premises of the Sexually Oriented Business; or

Allows the Operator or any Employee that works at the Sexually Oriented Business owned by the Operator to operate or work in a Sexually Oriented Business while intoxicated due to alcoholic beverages or controlled substances.

The period of suspension may be continued day-to-day until the matter forming the basis of the suspension is corrected or abated to the satisfaction of the police department, but in no event for more than 60 days. If not satisfactorily corrected or abated within 60 days, the Building Official will initiate appropriate action to revoke the Specialized Certificate of Occupancy per section 112.28 below.

§ 112.28 REVOCATION OF SPECIALIZED CERTIFICATE OF OCCUPANCY.

After paying a $1,000.00 non-refundable fee, a suspension may be appealed to the Board of Adjustment as provided in section 14 of the city’s Zoning Code.

(Ordinance 540-99-04-27, passed 4-27-99; Am. Ordinance 834-06-06-27, passed 6-27-06; Ordinance 1148-13-06-25, passed 6-25-13)

The Building Official, upon receipt of a written report from the police department, may indefinitely revoke a Specialized Certificate of Occupancy if it is determined that:

Cause for suspension as provided in section 112.27 has occurred, and the Specialized Certificate of Occupancy has been previously suspended for any reason at least twice in the preceding 24-month period;

A Specialized Certificate of Occupancy has been suspended under section 112.27 and the basis for the suspension has not been satisfactorily corrected or abated within 60 days;

The Operator gave false or fraudulent information in the application or otherwise acquired the Specialized Certificate of Occupancy under false pretenses;

The Operator knowingly Operated, provided or permitted Sexually Oriented Business activity or entertainment to occur on the premises during a period of time when the Specialized Certificate of Occupancy was suspended;

The Operator has been convicted of a criminal offense under Chapter 21, Chapter 22, Chapter 25, or Chapter 43 of the Texas Penal Code and for which the time period or other action required for satisfactory completion and full release has not been received from all conditions imposed regarding confinement, parole, or probation; or

The Operator knowingly allowed or participated in the unlawful possession, use or sale of controlled substances on the premises; or

The Operator knowingly allowed or participated in prostitution, or its solicitation, or unlawful offenses of a similar nature to take place on the premises.

Before imposing any particular form of suspension or revocation, the police department may attempt lesser forms of corrective action to correct or abate violations. However, nothing herein prohibits the police department from proceeding to the appropriate level of suspension or revocation if the Operator’s misconduct or violation(s) warrants the degree of suspension or revocation imposed.

§ 112.29 EXPIRATION OF SPECIALIZED CERTIFICATE OF OCCUPANCY.

After paying a $1,000 non-refundable fee, a revocation may be appealed to the Board of Adjustment as provided in chapter 157, the Zoning Code of the Code of Ordinances of the City of Pflugerville.

(Ordinance 540-99-04-27, passed 4-27-99; Am. Ordinance 834-06-06-27, passed 6-27-06; Ordinance 1148-13-06-25, passed 6-25-13)