(a)
Purpose.
It is the purpose of this article to regulate sexually oriented
businesses to promote the health, safety, morals, and general welfare
of the citizens of the city, and to establish reasonable and uniform
licensing regulations to ensure sexually oriented businesses are operated
by persons and in a manner that prevents casual high-risk sexual activity,
prostitution, drug use, other criminal activity, or logistical difficulties
and risk of physical endangerment to police officers responsible for
policing such businesses.
(b)
Intent.
The provisions of this article have neither the purpose nor
effect of imposing a limitation or restriction on the content of any
materials. Similarly, it is neither the intent nor effect of this
article to restrict or deny access by adults to sexually oriented
materials protected by the First Amendment, or to deny access to sexually
oriented entertainment.
(Ordinance 2012-06 adopted 2/7/12)
For the purposes of this article the following words and phrases
shall have the meanings ascribed to them as follows:
Any person, including any spouse of an individual owner,
or any other entity required to submit any documentation and/or receive
any approvals for operating sexually oriented business or working
within a sexually oriented business within the city.
An enterprise where a portion of its business is offering
baths and/or showers with other persons present who are nude or displaying
specified anatomical areas.
An establishment where a portion of its business is the application
of paint or other substance to or on the human body by any means of
application, technique or process when the subject’s body displays
for the patron’s view specified anatomical areas.
Any license applied for under the sexually oriented business
licensing article establishing licensing requirements for sexually
oriented business.
Any of the following businesses: sexually oriented cabaret
or nightclub; sexually oriented entertainment; sexually oriented motion-picture
theater; sexually oriented video viewing kiosk, booth or arcade; sexually
oriented encounter center; sexually oriented media store; sexually
oriented bathhouse; sexually oriented massage business; sexually oriented
retail establishment; sexually oriented body painting studio; sexually
oriented lingerie or swimwear modeling studio; sexually oriented modeling/photography
studio; sexually oriented escort business; or any other such business
establishment whose purpose is offering sexually oriented entertainment,
media or merchandise. Signs, advertisements or an establishment name
including verbal or pictorial allusions to sexual stimulation or gratification
or by references to “adult,” “XXX” or similar
terms, shall be considered evidence that the establishment holds itself
out to the public as a sexually oriented business. Each such business
is considered a separate land use for purposes of these regulations.
For the purpose of the article, a business is not a sexually oriented
business if its inventory, square footage, and product value devoted
to sexually oriented merchandise (including media) is 10% or less
and it offers no on-site sexually oriented entertainment.
A building or portion of a building which provides or allows
the provision of live sexually oriented entertainment to its customers
or which holds itself out to the public as an establishment where
sexually oriented entertainment is available, but such definition
shall not include any sexually oriented use prohibited by this section.
Signs, advertisements or an establishment name including verbal or
pictorial allusions to sexual stimulation or gratification or by references
to “adult entertainment,” “strippers,” “showgirls,”
“exotic dancers,” “gentlemen’s club,”
“XXX” or similar terms, shall be considered evidence that
the establishment holds itself out to the public as a sexually oriented
cabaret or nightclub.
The chief of police for the City of Gonzales, Texas, or a
designated agent.
A facility licensed by the state providing supervision for
children 13 years of age or younger or for any individual who is deemed
mentally challenged.
A building or complex of buildings that house municipal offices
and service, and which may include cultural, recreational, athletic,
convention or entertainment facilities owned and/or operated by a
municipality.
A person who:
Enters a business in return for the payment of an admission
fee or any other form of consideration or gratuity;
Enters a business and purchases, rents, or otherwise partakes
of any material, merchandise, goods, entertainment, or other services
offered therein; or
Enters a business other than as an employee, vendor, service
person, or delivery person.
The act of exposing, placing, posting, exhibiting, or in
any fashion displaying in any location, whether public or private,
an item or activity in such a manner that it may be readily seen and
its content or character distinguished by normal unaided vision from
a street, highway, or public sidewalk, or from the property of others
or from any portion of the premises where items and materials other
than sexually oriented media or merchandise are offered for sale or
rent to the public.
A public or private kindergarten, primary, secondary and
postsecondary educational facilities offering instruction in the branches
of learning and study required to be taught by the Texas Education
Agency; and such federally-funded educational programs for preschool
children as the Head Start Program.
Any person who renders any service whatsoever for or to the
customers of an establishment subject to this article or who works
in or about an establishment subject to this article.
A business or enterprise that offers physical contact between
two or more persons when one or more of the persons is in a state
of nudity or semi-nudity, for the purpose of engaging in specified
sexually activity or touching specified anatomical areas, but not
including sexually oriented cabaret or nightclub.
Any person paid by some form to provide entertainment to
customers at a sexually oriented business; entertainment may consist
of dancing, signing, modeling, acting, other forms of performing,
or individual conversations with customer whereby the entertainer
is paid any form of remuneration directly or indirectly for such conversations.
Any of the following activities, when performed by a sexually
oriented entertainer at a sexually oriented business; dancing, singing,
talking, touching, modeling (including lingerie or photographic),
gymnastics, acting, other forms of performing, or individual conversations
with customer.
A business or person that advertises or solicits in any way
to prospective clients for the provision of sexually oriented escorts
that will provide sexually oriented entertainment, companionship or
conduct or employs, or contracts with a sexually oriented escort,
or refers or provides to a client a sexually oriented escort.
A person who offers to provide, for some form of remuneration,
acts of sexually oriented entertainment or conduct to a client.
The total area of the building accessible or visible to a
person, including showrooms, theaters including stage area, service
areas (but not including restrooms), behind-counter areas, areas used
for storage of sexually oriented media or merchandise, and aisles,
hallways, and entryways serving such areas.
Two or more times per month.
A publicly owned facility in which literary and artistic
materials, such as books, periodicals, newspapers, pamphlets, prints,
records, tapes, are kept for reading, reference, or lending.
Anyone issued a license under this article sexually oriented
business licensing.
An establishment or business that provides the service of
live models modeling lingerie, bathing suits, or similar wear to individuals,
couples, or small groups.
Any person designated by the owner or operator of a sexually
oriented business to be responsible for the operation of such business
at a particular location at a particular time; when the owner, proprietor,
or other principal in the business is present, such person may be
considered the manager.
The act of touching, stroking, kneading, stretching, friction,
percussion, and vibration, and includes holding, positioning, causing
movement of the soft tissues and applying manual touch and pressure
to the body.
Any business in which massages are offered as one of the
business’s services by a person who is not licensed as a massage
therapist under the Texas State Statutes, title 3, chapter 455: Massage
Therapy; or any business which provides massage for the purpose of
sexual stimulation.
A person licensed as a massage therapist in accordance with
the provision of the state department of state health services in
accordance with the Texas State Statutes, title 3, chapter 455: Massage
Therapist.
The profession in which a massage therapist licensed under
the Texas State Statutes, title 3, chapter 455: Massage Therapy, applies
massage techniques with the intent of positively affecting the health
and well-being of the client.
Anything printed or written, or any picture, drawing, photograph,
motion-picture, film, videotape or videotape production, or pictorial
representation, or any electrical or electronic reproduction of anything
that is or may be used as a means of communication. Media includes
but shall not necessarily be limited to books, newspapers, magazines,
movies, videos, sound recordings, CD-ROMS, DVD’s, other magnetic
media, and undeveloped pictures.
Media which are distinguished or characterized by their emphasis
on matter depicting, describing, or relating to “specified sexual
activities” or “specified anatomical areas.”
A store with sexually oriented media for sale and/or rent,
and to which any of the following applies:
The sale and/or rental of sexually oriented media, whether alone
or in conjunction with the sale and/or rental of sexually oriented
merchandise, constitutes a principal business of the establishment,
taking into consideration any of the following:
The business advertised or holds itself out in any forum as
a “XXX” “adult” or “sexually oriented”
media and/or merchandise business.
This term includes any of the following categories of merchandise:
lingerie presented in combination with other merchandise contained
within this definition; leather goods marketed or presented in a context
to suggest their use for sadomasochistic practices; condoms or sexual
lubricants presented in combination with other merchandise contained
within this definition; sexually oriented novelties; and sexually
oriented media which is separately defined in this section.
Any place where a person who appears nude or semi-nude or
in a state of nudity or semi-nudity and is to be observed, sketched,
drawn, painted, sculptured, photographed, or similarly depicted by
other persons. A sexually oriented modeling/photography studio does
not include educational classes in conjunction with a private or public
college, junior college, or university or that of an individual artist
studio established solely for conduct of the artist.
A hotel, motel, or similar commercial lodging establishment
that:
Provides as its business accommodations to the public for any
form of consideration for the purpose of viewing sexually oriented
media or sexually oriented entertainment. This definition does not
include lodging facilities that offer sexually oriented media via
cable or satellite services on room televisions as ancillary television
programming;
Is marketed as or offered as “adult,” “XXX,”
“couples,” or “sexually oriented” lodging
facility; or
Offers a sleeping room for a period of less than 10 hours or
allows a tenant or occupant to rent the room for a period of time
of less than 10 hours or allows the tenant to have a weekly or monthly
rental of the room for the purposes of providing sexually oriented
entertainment.
An establishment where, for any form of consideration, sexually
oriented media are frequently shown that are characterized by the
depiction or description of “specified sexual activities”
or “specified anatomical areas” or that is marketed as
or offered as “adult,” “XXX,” or sexually
oriented. Frequently shown media as characterized herein do not include
sexually oriented speech and expressions that take place inside the
context of some larger form of expression. This definition does not
include any type of facility that would meet the definition of a sexually
oriented video viewing kiosk, booth or arcade.
Instruments, devices, toys, or paraphernalia either designed
as representation of human genital organs or female breasts or designed
or marketed primarily for use in sexually oriented stimulation of
specified anatomical areas.
The showing of the human male or female genitals, pubic area,
vulva, anus, anal cleft or cleavage with less than a fully opaque
covering, or the showing of the covered male genitals in a discernibly
turgid state. See, also, semi-nude.
To cause to function, maintain or create or to put or keep
in operation a sexually oriented business whether or not that person
is an owner, part owner, or licensee of the business.
See “manager.”
The individual owner of an establishment, or if the legal
owner is a corporation, partnership, or limited liability company,
the term shall include all general partners, any limited partner with
a financial interest of ten percent (10%) or more, all corporate officers
and directors, and any shareholder or member with a financial interest
of ten percent (10%) or more. “Owner” includes the spouse(s)
of any of the above persons.
An individual, licensee, operating owner, manager, sexually
oriented entertainer, firm, partnership, joint-venture, association,
independent contractor, corporation (domestic or foreign), limited
liability company, trust, estate, assignee, receiver or any other
group or combination acting as a unit.
The physical location at which a business is located; as
used in this section, the term shall include all parts of that physical
location, both interior and exterior, which are under the control
of the subject business, through ownership, lease or other arrangement.
A licensed child care facility, civic center building, educational
facility, public library, recreational facility, or religious facility.
A portion of a sexually oriented business that is accessible
to the customer, excluding restrooms, while the business is open for
business.
A permanent facility devoted to recreational purposes such
as parks, play fields, or community recreation buildings.
A permanent facility exclusively used on a regular basis
for religious assembly such as customarily occurs in a synagogue,
temple, mosque, or church or convent or monastery.
A store with sexually oriented merchandise for sale and/or
rent, and to which any of the following applies:
The sale and/or rental of sexually oriented merchandise, whether
alone or in conjunction with the sale and/or rental of sexually oriented
media, constitutes a principal business of the establishment, taking
into consideration any of the following:
The business advertises or holds itself out in any forum as
a “XXX,” “adult” or “sexually oriented”
merchandise business and/or media business.
Flagellation or torture by or upon a person clothed or naked,
or the condition of being fettered, bound, or otherwise physically
restrained on the part of one so clothed or naked.
The showing of the female areola or nipple with less than
fully opaque covering. Showing of any other part of the anatomy defined
under nude or state of nudity shall constitute being nude or in a
state of nudity.
A state of dress in which any device or covering, exposed
to view, is worn that simulates any part of the genitals, pubic region,
or areola of the female breast.
Areas that include:
Any of the following offenses as defined by the Texas Penal
Code enumerated below or any other state or federal laws addressing
similar or related offenses below:
Sex acts normal or perverted, actual or simulated, of human
masturbation, sexual intercourse, or sodomy. These activities include,
but are not limited to the following: bestiality, erotic or sexual
stimulation with objects or mechanical devises, acts of human analingus,
cunnilingus, fellatio, flagellation, masturbation, sadism, sadomasochism,
sexual intercourse, sodomy, or any excretory functions as part of
or in connection with any of the activities set forth above with any
person of the premises. This definition shall include apparent sexual
stimulation of another person’s genitals whether clothed or
unclothed.
This means and includes any of the following:
The sale, lease, or sublease of the business;
The transfer of securities which 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 devices
which transfers the ownership or control of the business, except for
transfer by bequest or other operation of the law upon the death of
the person possessing the ownership or control.
This definition is used to refer to any motion pictures,
movies, films, videotapes, CD-ROMS, DVD’s, computer images,
slides, sound recordings, other magnetic media or electrical or electronic
reproductions of anything that is or may be used as a means of communication
that is distinguished or characterized by it emphasis on matters depicting,
describing, or relating to “specified sexual activities”
or “specified anatomical areas.”
A building or any portion of a building wherein coin-operated,
slug-operated, or for any other form of consideration, electronically,
electrically, or mechanically controlled still or motion-picture machines,
projectors, video or laser disc players, or other image-producing
devices are maintained to show images of “specified sexual activities”
or “specified anatomical areas.”
Any kiosk, booth, cubicle, stall or compartment that is designed,
constructed, or used to hold or seat customers and is used for presenting
videos or viewing publications by any photographic, electronic, magnetic,
digital, or other means or medium (including, but not limited to,
film, video or magnetic tape, laser disc, CD-ROMs, books, DVD’s,
magazines or periodicals) to show images of “specified sexual
activities” or “specified anatomical areas” for
observation by customers therein. The term “booth,” “arcade
booth,” “preview booth,” and “video arcade
booth” shall be synonymous with the term sexually oriented video
viewing kiosk or booth.
(Ordinance 2012-06 adopted 2/7/12)
(a)
It shall
be unlawful for any person to operate or cause to be operated a sexually
oriented business within one thousand (1,000) feet of:
(b)
For the
purposes of this section, measurement shall be made in a straight
line, without regard to intervening structures or objects, from the
nearest property line of the premises where a sexually oriented business
is conducted, to the nearest property line of the premises of a church,
elementary or secondary school, residential lot, other sexually oriented
business, or public park.
(Ordinance 2012-06 adopted 2/7/12)
(a)
A license
for a sexually oriented business shall be required for the following
sexually oriented business uses, or conversion of an existing business
to one which is a sexually oriented business:
(b)
No other
type of sexually oriented business shall be granted a license to operate
within the city.
(c)
It shall
be unlawful for a person to establish or operate a sexually oriented
business:
(d)
It shall
be unlawful for any person to manage or provide entertainment within
a sexually oriented business:
(1)
Without
having obtained a sexually oriented business manager or entertainer
license as provided under this article;
(2)
During
such time as a sexually oriented business manager or entertainer license
has expired or has been suspended or revoked; or
(3)
In
violation of any provision of this article.
(e)
It shall
be unlawful for any person to perform any work, service or entertainment
directly related to the operation of an unlicensed sexually oriented
business.
(f)
It shall
be prima facie evidence that a sexually oriented business has not
obtained a sexually oriented business license if such business fails
to post the license in the manner required herein.
(g)
It shall
be prima facie evidence that any person who performs any business,
service or entertainment in a sexually oriented business had knowledge
that such business license is not posted in the manner required herein.
(h)
A license
issued under this article shall be issued for only one sexually oriented
use or position and to only the person listed on the application.
Any change in the type of sexually oriented business use or position
shall invalidate the license and require the licensee to obtain a
new license for the change in use or position.
(Ordinance 2012-06 adopted 2/7/12)
(a)
The following
are the approved license applications for licenses required under
this article:
(1)
The
application fee for a new sexually oriented business license shall
be stated in the master rate and fee schedule;
(2)
The
application fee for renewal of a sexually oriented business license
shall be as stated in the master rate and fee schedule;
(3)
The
application fee for a new manager or entertainer license shall be
as stated in the master rate and fee schedule; and
(4)
The
application fee for a renewal of a manager or entertainer license
shall be as stated in the master rate and fee schedule.
(b)
No application
shall be processed without the required application fee paid in full
at the time of application submission.
(Ordinance 2021-24 adopted 9/9/21)
(a)
All applications
for a sexually oriented business license shall be made with the city
secretary.
(b)
All completed
applications for a sexually oriented business license shall provide
the following information:
(1)
A diagram
of the business’s interior premises configuration, noting specific
use of each space, square footages, walls or partitions, and total
floor area of the building, drawn to a measurable scale of one (1)
inch equals four (4) feet with all dimensions notated;
(2)
The
name of the sexually oriented business and identification of the type
of sexually oriented business proposed (sexually oriented media store,
sexually oriented retail store, sexually oriented motion-picture theatre,
or sexually oriented cabaret or nightclub);
(3)
If
the property owner is other than the applicant, the name of the property
owner and statement signed by the property owner stating that applicant
has entered into a contract to acquire, lease or otherwise control
the site or structure for use as a sexually oriented business;
(4)
The
applicant’s name, any aliases, mailing address for receipt of
notices, home address, home and office telephone numbers, occupation,
date and place of birth, driver’s license and social security
number, and tax identification number; all information required of
the applicant shall also be required by the applicant’s spouse;
(5)
If
the applicant is an entity other than an individual, each individual
who has a ten (10) percent or greater interest in the entity proposing
to own and/or operate the business must provide the same information
as the individual applicant and sign the license application as an
applicant;
(6)
Any
conviction for any felony or for any misdemeanors involving prostitution,
obscenity or controlled substance, indicating the type of crime and
the date and place of conviction; and
(7)
A statement
signed under oath by the applicant and the applicant’s spouse
that the applicant and applicant’s spouse have personal knowledge
of the information contained in the application and that the information
contained therein is true and correct; that the applicant and spouse
grant permission to the city to perform any necessary background checks
on persons or businesses listed on the application; and that the applicant
and spouse have read all provisions of this code regulating sexually
oriented businesses.
(c)
Each application
shall be accompanied by payment of the appropriate application fee.
License fees shall not be refundable.
(d)
Application
Processing - Sexually Oriented Business License.
(1)
Within
ten (10) working days of receipt, the city secretary shall notify
the applicant whether or not the application for the sexually oriented
business license is determined complete. 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.
(2)
Failure
to provide information and documentation required on the application
for a sexually oriented business license shall constitute an incomplete
application and shall not be processed.
(3)
Upon
receipt of a complete application, the city secretary shall immediately
transmit a copy of the application to the fire chief, chief of police
and building official. Not later than thirty (30) calendar days from
the date the application is determined to be complete, the police
department, fire department, and building inspections department shall
report the results of their investigation to the city secretary. The
reports shall include the following:
(A)
It shall be the duty of the police department to perform background
checks on the applicant(s) for the sexually oriented business license
to determine whether the information contained in the application
is true and correct and whether or not the applicant(s) complies with
the criteria for holding a sexually oriented business license;
(B)
It shall be the duty of the fire department to determine whether
the structure identified in the application for the sexually oriented
business meets the standards of the applicable fire code; and
(C)
It shall be the duty of the building inspection department to determine
whether the structure identified in the application for the sexually
oriented business meets the building code, and exterior and interior
building standards required by sexual oriented businesses.
(e)
Approval
or Denial - Sexually Oriented Business License.
The city
secretary shall approve and issue the sexually oriented business license
required hereunder to an applicant within forty-five (45) calendar
days after receipt of a complete application and the applicant shall
be notified in writing of the city secretary’s decision within
five (5) working days thereof, unless the city secretary finds one
(1) or more of the following to be true, in which case the application
shall be denied:
(1)
The
applicant has failed to provide information for issuance of the license
or gave false, fraudulent or untruthful information on the application
form;
(2)
The
applicant is under eighteen (18) years of age; all applicants shall
provide documentation issued by a state or federal agency bearing
the applicant’s date of birth and photographs as proof that
the applicant is not under the age of eighteen (18);
(3)
The
applicant or spouse has been convicted of, or released from confinement
for conviction of, or received an order for deferred adjudication
of, any felony within the past five (5) years or any misdemeanor within
the past three (3) years where such felony or misdemeanor violation
constitutes a specified criminal act as defined by this article; the
fact that the applicant or spouse has appealed such action shall have
no effect on the disqualification of the application;
(4)
The
applicant or spouse has been convicted of an offense under this article
or its predecessor within the past three (3) years;
(5)
The
applicant or spouse has had a sexually oriented business license,
or comparable license, of any type revoked within the past five (5)
years or one suspended within the past three (3) years, immediately
preceding the date of the application; the fact that the applicant
or spouse has appealed such action shall have no effect on the disqualification
of the application;
(6)
The
applicant or spouse has held, within the three (3) years immediately
preceding the date of the application, an ownership, operational or
a managerial position, at 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;
(7)
The
applicant or spouse owes delinquent city taxes or assessments or other
financial obligations to the city and no arrangements satisfactory
to the city manager have been made for the payment of such debts or
obligations;
(8)
The
applicant’s business premises does not comply with or meet the
requirements of the applicable governmental licensing, zoning, building,
fire, health and property maintenance ordinances or codes, provided,
that upon a showing that the premises meets said requirements and
that the applicant is otherwise qualified, the application shall be
eligible for reconsideration; or
(9)
The
license fee required by this article has not been paid.
(f)
Provisional
License.
If the city secretary is unable to act on the
license application within the required time period following a determination
of completeness, he/she shall notify the applicant in writing and
issue a provisional license, which shall expire following approval
of the application or denial of the application and final disposition
of the appeal proceedings as provided in Section 4.611, Appeal of
License Denial, Suspension or Revocation. The provisions of this article
shall fully apply to a provisional license.
(g)
Information
on License.
The approved sexually oriented business license
shall include the license number, name or the license holder, the
date of issuance and expiration, the address of the sexually oriented
business, and a statement that the license is not transferable.
(h)
Posting.
The approved sexually oriented business license shall be posted
in a conspicuous place at or near the sexually oriented business’s
entrance so that it may be easily read at any time.
(Ordinance 2012-06 adopted 2/7/12)
(a)
All applications
for a manager or entertainer license related to a sexually oriented
business shall be made with the city secretary.
(b)
No application
for a manager or an entertainer license shall be accepted by the city
secretary prior to licensing of the sexually oriented business for
which the manager or entertainer license is applicable.
(c)
All completed
applications for a manager or entertainer license related to a sexually
oriented business shall provide the following information:
(1)
The
applicant’s name, any aliases, mailing address for receipt of
notices, home address, home and office telephone numbers, occupation,
date and place of birth and social security number, and tax identification
number;
(2)
The
name and address of each sexually oriented business where the applicant
intends to work and a valid copy of the current sexually oriented
business license for each of the sexually oriented business in which
the manager or entertainer proposes to work or perform;
(3)
A statement
signed under oath by the applicant that the applicant has personal
knowledge of the information contained in the application and that
the information contained therein 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 provisions
of this code regulating sexually oriented businesses; and
(4)
The
application must be accompanied by payment of the appropriate license
fee.
(d)
The city
secretary shall approve and issue the manager or entertainer license
required hereunder to an applicant within forty-five (45) calendar
days after receipt of a complete application unless the city secretary
finds one (1) or more of the following to be true, in which case the
application shall be denied:
(1)
The
applicant has failed to provide information required for issuance
of the license or gave false, fraudulent or untruthful information
on the application form;
(2)
The
applicant is under eighteen (18) years of age; all applicants shall
provide documentation issued by a state or federal agency bearing
the applicants’ date of birth and photographs as proof that
the applicant is not under the age of eighteen (18);
(3)
The
applicant has been convicted of, or released from confinement for
conviction of, or received an order for deferred adjudication of,
any felony within the past five (5) years or any misdemeanor within
the past three (3) years where such felony or misdemeanor violation
constitutes a specified criminal act as defined by this article; the
fact that the applicant has appealed such action shall have no effect
on the disqualification of the applicant;
(4)
The
applicant has been convicted of an offense under this article or is
predecessor within the past three (3) years;
(5)
The
applicant has had a sexually oriented manager or entertainer license,
or comparable license, of any type revoked within the past five (5)
years or one suspended within the past three (3) 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;
(6)
The
applicant has held, within the three (3) years immediately preceding
the date of application, an ownership, operational or managerial position,
at 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;
(7)
The
applicant owes delinquent city taxes or assessments for other financial
obligations to the city and no arrangements satisfactory to the city
manager have been made for the payment of such debts or obligations;
or
(8)
The
license fee required by this article has not been paid.
(e)
Application
Processing-Manager or Entertainer License.
(1)
Within
ten (10) working days of receipt, the city secretary shall notify
the applicant whether or not the application for the manager or entertainer
license related to a sexually oriented business is determined complete.
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.
(2)
Failure
to provide information and documentation required on the application
for manager or entertainer license shall constitute an incomplete
application and shall not be processed.
(3)
Within
forty-five (45) calendar days from the date the application is determined
to be complete, the city secretary shall approve or disapprove the
application for a manager or entertainer license. The applicant shall
be notified in writing of the city secretary’s decision within
a time period of five (5) working days thereof.
(4)
If
the city secretary is unable to act on the license application within
the required time period following a determination of completeness,
he/she shall notify the applicant in writing and issue a provisional
license, which shall expire following approval of the application
or denial of the application and final disposition of the appeal proceedings
as provided in Section 4.611. The provisions of this article shall
fully apply to a provisional license.
(f)
Information
on License.
The approved manager or entertainer license
shall include the license number, name of the license holder, including
any stage name, licensee’s photograph, the date of issuance
and expiration, the address(s) of the sexually oriented business(es)
where such license is applicable, and a statement that the license
is not transferable.
(g)
Posting.
A valid copy of the manager’s license shall be posted
in a conspicuous place at or near the entrance to the sexually oriented
business when that manager is on duty. A valid copy of the entertainer’s
license shall not be posted but shall be available on site within
the office of the sexually oriented business for inspection at any
time.
(Ordinance 2012-06 adopted 2/7/12)
(a)
License
Terms and Expiration.
(1)
All
licenses issued under this article shall be issued for a period of
one (1) year and are required to be renewed annually.
(2)
No
license issued under this article shall be transferable to another
person or entity.
(3)
All
licenses issued under this article shall expire on the last day of
the calendar month during which the licenses were issued or renewed
during the previous year.
(b)
License
Renewal.
(1)
All
applications for license renewal shall be submitted to the city secretary
no earlier than thirty (30) calendar days prior to the date of expiration.
(2)
A license
that is expired by more than thirty (30) calendar days shall be subject
to the same license review procedures and criteria required of any
applicant applying for a new license.
(3)
If
an application for renewal of a license has been submitted and accepted
as complete by the city secretary, the licensee may operate under
the existing license until issuance or a renewed license.
(4)
The
city secretary shall approve the license renewal within thirty (30)
calendar days after receipt of a complete renewal application unless
the city secretary finds one (1) or more of the following to be true
(also applicable to the applicant’s spouse if a renewal for
a sexually oriented business license), in which case the application
shall be denied:
(A)
The applicant has failed to provide information required for renewal
of the license or gave false, fraudulent or untruthful information
on the application form;
(B)
During the term of the existing license or its renewal period, the
applicant has been convicted of, or released from confinement for
conviction of, or received an order for deferred adjudication of,
any felony or misdemeanor violation that constitutes a specified criminal
act as defined by this article; the fact that the applicant has appealed
such action shall have no effect on the disqualification of the application;
(C)
During the term of the existing license or its renewal period, the
applicant has been convicted of an offense under this article;
(D)
During the term of the existing license or its renewal period, the
applicant had a sexually oriented business license, or comparable
license, of any type revoked; the fact that the applicant has appealed
such action shall have no effect on the disqualification of the application;
(E)
During the term of the existing license or its renewal period, the
applicant has held an ownership, operational or a managerial position,
at 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;
(F)
The applicant owes delinquent city taxes or assessments or other
financial obligations to the city and no arrangements satisfactory
to the city manager have been made for the payment of such debts or
obligations;
(G)
The applicant’s business premises does not comply with or meet
the requirements of the applicable governmental licensing, zoning,
building, fire, health and property maintenance ordinance or codes,
provided, that upon a showing that the premises meets said requirements
and that the applicant is otherwise qualified, the application shall
be eligible for reconsideration; or
(H)
The licensee fee required by this article has not been paid.
(5)
Application
Processing of License Renewal.
(A)
Within five (5) working days of receipt, the city secretary shall
notify the applicant whether or not the license renewal application
is determined complete. 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.
(B)
Failure to provide information and documentation required on the
application shall constitute an incomplete application and shall not
be processed.
(C)
Within thirty (30) calendar days from the date the application is
determined to be complete, the city secretary shall approve or disapprove
the application for renewal of the license. The applicant shall be
notified in writing of the city secretary’s decision within
a time period of five (5) working days thereof.
(6)
If
the city secretary is unable to act on the license application within
the required time period following a determination of completeness,
he/she shall notify the applicant in writing and issue a provisional
license, which shall expire following approval of the application
or denial of the application and final disposition of the appeal proceedings
as provided in Section 4.611, Appeal of License Denial, Suspension
or Revocation. The provisions of this article shall fully apply to
a provisional license.
(7)
Information
on License.
The renewed license shall contain the same
information required to be shown on the original license.
(Ordinance 2012-06 adopted 2/7/12)
(a)
The chief
of police shall suspend a license issued under this article for the
following reasons:
(1)
Licensee
operated the sexually oriented business or performed sexually oriented
entertainment in a location not approved for such activity;
(2)
Licensee
violated any requirement of the zoning ordinance related to the regulation
of sexually oriented business;
(3)
Licensee
failed to maintain on site a current list of all employees (contract
or otherwise) along with their completed employment application and
photo readily accessible for inspection within the premises;
(4)
Licensee
refused city or other governmental agency access to the premises and
records;
(5)
Licensee
transferred a license issued under this article to another person
or entity;
(6)
Licensee
allowed a person under the age of eighteen (18) years in or on the
premises;
(7)
Licensee
allowed a person to appear in a state of semi-nudity or nudity or
in a state of simulated nudity on the premises;
(8)
Licensee
reconfigured the interior of the premises without approval from the
city;
(9)
Licensee
operated the business without a licensed manager on duty during the
time the business was opened to the public;
(10)
Licensee
was delinquent in payment to the city for ad valorem taxes, or sales
taxes related to the sexually oriented business;
(11)
Licensee
demonstrated an inability to operate or manage the business in a peaceful
and law-abiding manner thus necessitating action by law enforcement
officers;
(12)
Licensee
violated any of the “standards of conduct and operation”
under Section 4.613;
(13)
The
licensee or manager of the business has been charged with any disqualifying
offense, or any employee of the business being charged with any disqualifying
offense in connection with the business. This suspension period shall
coincide with the time during which the charges remain pending;
(14)
The
business has knowingly employed a person who has been convicted of
any disqualifying offense in connection with a sexually oriented business
unless the conviction occurred at least three (3) years prior to the
date of this employment; provided that if the person was incarcerated
in a penal facility in connection with the conviction, then the three
(3) year period shall run from the date of release from incarceration;
(15)
The
licensee, manager or employee has engaged in excessive use of alcoholic
beverages while on the sexually oriented business premises or allowed
intoxicated persons on the business premises;
(16)
The
licensee, manager or employee refused to allow an inspection of the
sexually oriented business premises;
(17)
The
licensee, manager or employee permitted gambling by any person on
the sexually oriented business premises; or
(18)
The
licensee, manager or employee demonstrated inability to operate or
manage a sexually oriented business in a peaceful and law-abiding
manner, thus necessitating action by law enforcement officers.
(b)
The chief
of police may suspend a license issued under this article for a period
not to exceed sixty (60) days.
(c)
A licensee
subject to suspension shall have the right to appeal the suspension
under the procedures provided in Section 4.611, Appeal of License
Denial, Suspension or Revocation.
(Ordinance 2012-06 adopted 2/7/12)
(a)
The chief
of police shall revoke a license issued under this article for the
following reasons:
(1)
The
licensee’s license has been suspended more than twice during
a twelve-month period;
(2)
The
licensed business was operated during a period of time when the license
was suspended;
(3)
A licensee
omitted or gave false or misleading information on the license application,
including, previous license revocation or suspensions, or convictions
or deferred adjudication for misdemeanors and felonies constituting
a specified criminal act; the fact that a conviction is being appealed
shall have no effect on the revocation of the license;
(4)
A licensee
has been convicted of, or received an order for deferred adjudication,
for a felony or misdemeanor constituting a specified criminal act;
(5)
A licensee
or an employee has allowed possession, use, or sale of a controlled
substance on the premises;
(6)
A licensee
or an employee has allowed prostitution on the premises;
(7)
A licensee
or an employee has 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; or
(8)
On
two (2) or more occasions within a twelve-month period, a person or
persons committed specified criminal act in or on the licensee’s
premises.
(b)
The chief
of police shall revoke a license issued under this article for a period
of one (1) year.
(c)
A licensee
subject to revocation shall have the right to appeal the revocation
under the procedures provided in Section 4.611, Appeal of License
Denial, Suspension or Revocation.
(d)
A licensee
that has had a license revoked shall be subject to the same license
criteria required of any applicant applying for a new license.
(e)
All premises
used in connection with sexually oriented businesses shall be periodically
inspected by the chief of police for compliance with the requirements
of this section:
(1)
Separate
toilet facilities for men and women shall be provided on the premises.
(2)
Persons
under the age of eighteen (18) shall not be permitted on the premises
of the business.
(3)
Alcoholic
beverages shall not be sold or provided on the premises of the business
except in compliance with a current valid license or permit issued
by the Texas Alcoholic Beverage Commission.
(4)
For
businesses where no alcoholic beverages are sold or provided, the
business shall not operate between the hours of 1:00 a.m. and 1:00
p.m. on a Sunday or between 12:00 a.m. and 7:00 a.m. on any other
day. For businesses where alcoholic beverages are sold or provided,
the business shall not operate at any time when the sale of alcoholic
beverages is not prohibited. No customer shall be permitted to enter
upon or remain on the business premises at any time other than during
the permitted hours of operation.
(5)
The
business shall not have any bedroom, sleeping quarters, residence
or living quarters on the premises of the business.
(6)
The
business hours of the premises shall be plainly posted at each entrance
to the business.
(7)
Doors
to individual customer service areas, rooms, viewing booths, or cubicles
shall not be capable of being locked.
(8)
Massage
therapists shall wear clothing that covers the anus, female breast,
and the entire genitals during the performing of massage therapy.
(Ordinance 2012-06 adopted 2/7/12)
(a)
Appeal.
The applicant may appeal an unfavorable decision of the city
secretary or chief of police by filing a written petition with the
city secretary requesting a hearing on the denial, suspension, or
revocation of the license within ten (10) calendar days of the date
the applicant receives notification of the city secretary or chief
of police’s decision. The city council shall serve as the appeals
board. The appeal shall be scheduled within twenty (20) calendar days
of the date the petition is received in the office of the city secretary.
The city secretary shall give written notice to the applicant of the
time and place for the hearing on the applicant’s appeal at
least ten (10) calendar days prior to the scheduled date of hearing.
(b)
Provisional
License.
During the appeal of a license denial, suspension,
or revocation, the applicant shall be permitted to operate with a
provisional license until the final disposition of the appeal proceedings
before the city council. The provisions of this article shall fully
apply to a provisional license.
(c)
Deferring
Action on Proceedings.
If the applicant has filed an
appeal with the zoning board of adjustments, to contest the decision
of the building official regarding any standard governing a sexually
oriented business, or a variance request by the applicant is pending
before the board, the city council may defer action on the license
application pending resolution of the appeal or variance request by
the board, but shall take up the matter at the first regular meeting
of the city council following the board’s decision.
(d)
Decision.
The city council shall issue a decision with findings within
ten (10) calendar days after any hearing held in accordance with this
section. The decision on appeal shall be governed by the same standards
as that for the original decision-maker. The minutes of the city council
meeting shall show the action taken on the license, and if the city
council acts favorably on the appeal of the license, the city council
shall direct the city secretary to issue the license.
(e)
Notification
of Decision.
If the appeal of the license denial, suspension
or revocation is denied, the applicant shall be immediately notified
by registered or certified mail to the address provided on the application,
and the letter of notification shall state the basis for such denial.
(f)
Judicial
Review.
Upon denial of the appeal of the license denial,
suspension, or revocation by the city council, an applicant may seek
judicial review.
(Ordinance 2012-06 adopted 2/7/12)
Any sexually oriented business shall be deemed to have consented
to periodic entry into and inspection of the business premises by
appropriate city officials and inspection of only those business records
necessary for the purpose of determining whether such business and
persons are in compliance with this code. This entry and inspection
shall take place at any time the business is occupied or open for
business.
(Ordinance 2012-06 adopted 2/7/12)
(a)
It shall
be unlawful for any sexually oriented business, or any owner, manager,
server, entertainer or employee thereof, or any customer or any sexually
oriented business, while on or about the premises of the business,
to fail to adhere to the standards of conduct and operation.
(b)
Standards
Applicable to All Sexually Oriented Business.
The following
standards apply to all sexually oriented businesses:
(1)
Establishment
License.
All sexually oriented businesses shall post
the license issued under this article in a conspicuous, easily viewable
location, at eye level, at the main cash register for the business
and lighted in a manner for ease of inspection;
(2)
Manager
on Duty.
All sexually oriented businesses shall have
a licensed manager on duty at all times the business is open to the
public for any purpose and said manager’s name shall be posted
in a conspicuous, easily viewable location, at eye level, at the main
cash register for the business and lighted in a manner for ease of
inspection;
(3)
Employee
Records.
All sexually oriented businesses shall maintain
a current list of all employees (contract or otherwise) along with
their completed employment application and photo readily accessible
for inspection within the premises;
(4)
Licenses
Available for Managers and Entertainers.
Each manager
issued a license under this article shall, at all times when on the
premises of the licensed business, have said license in his or her
possession. The license for each entertainer shall be retained for
ready inspection on the premises of the sexually oriented business;
(5)
Age
Restriction.
No person under the age of eighteen (18)
years shall be permitted on the premises of any sexually oriented
business;
(6)
Interior
Observation.
The interior of all sexually oriented businesses
shall be configured in such a manner that offers an unobstructed view
from manager’s station of every area of the premises excluding
restrooms;
(7)
Restrooms.
No restroom may contain any video equipment;
(8)
Security
Cameras.
Parking areas surrounding the sexually oriented
businesses shall be continually monitored and said recordings from
security cameras shall be continually monitored and said recordings
from security cameras shall be maintained for a period of at least
thirty (30) days;
(9)
Exterior
Observation.
The premises of all sexually oriented businesses
shall be designed as to ensure that the interior of the premises is
not observable from the exterior of the building;
(10)
Exterior Display.
No sexually oriented business shall
be conducted in any manner that permits the observation of sexually
oriented entertainers engaged in sexually oriented entertainment or
any depiction relating to specified sexual activities or specified
anatomical areas from any exterior source by display, decoration,
sign, show window or other openings;
(11)
Specified Criminal Acts and Specified Sexual Activities Prohibited.
No owner, manager, employee, independent contractor, server,
entertainer or customer shall engage in any specified criminal act
or any specified sexual activity on the premises of the business;
(12)
Semi-Nude or Nude or Simulated Nudity.
No person, including
sexually oriented entertainers, shall be semi-nude or in a state of
semi-nudity, or nude or in a state of nudity, or in a state of simulated
nudity, while on the premises of a sexually oriented business licensed
under this article;
(13)
Posting of Age Restriction.
A sign shall be posted at
each entrance to a sexually oriented business stating, “It is
unlawful for a person under eighteen (18) years old to enter this
location.”
(c)
Standards
for Sexually Oriented Media Store or Retail Store.
Shall
be subject to the following additional standards:
(1)
Separate
Room.
If a business offers for sale or rent other media
and/or merchandise, sexually oriented media and/or merchandise shall
be kept in a separate room physically and visually separate from the
remainder of the store by an opaque wall reaching at least eight (8)
feet high or to the ceiling, whichever is less;
(2)
Age
Limit.
No person under the age of eighteen (18) shall
be permitted into a room containing sexually oriented media and/or
sexually oriented merchandise;
(3)
Access.
If a business offers for sale or rent other media and/or merchandise,
access to the room containing sexually oriented media and/or sexually
oriented merchandise shall be through a solid door, accessed by an
electronic control device controlled and monitored by a clerk through
direct visual control and posted with a sign clearly stating that
no one under the age of eighteen (18) shall enter the room;
(4)
Location.
If a business offers for sale or rent other media and/or merchandise,
the entrance to the room containing the sexually oriented media and/or
sexually oriented merchandise shall be located so that it is as far
as reasonably practicable from media and/or merchandise likely to
be of interest to children;
(5)
Room
Size.
Any room wherein sexually oriented media and/or
merchandise is offered for sale or rent shall be in an area containing
at least six hundred (600) square feet and having no walls, dividers,
curtains, screens, shades or other similar devices to obscure any
part of the room from being monitored by the manager, unless it is
to separate the sexually oriented merchandise and/or media from nonsexually
oriented merchandise or media;
(6)
On-site
Entertainment Prohibited.
At no time shall the store
provide any type of sexually oriented on-site entertainment or show
any type of sexually oriented electronic imagery on the premises;
(7)
Displays.
No displays of sexually oriented media, merchandise or imager
shall be visible from outside the room containing sexually oriented
media and/or merchandise or from the exterior of the business;
(8)
Lighting.
Any business that offers for sale or rent sexually oriented
media and/or sexually oriented merchandise shall be well lit at a
lighting level of at least thirty (30) footcandles measured three
(3) feet from the floor; and
(9)
Monitoring.
Activities in any room having sexually oriented media and/or
sexually oriented merchandise shall be monitored at all times by a
store clerk through a video system located at the clerk’s counter.
(d)
Standards
for Sexually Oriented Motion-Picture Theater.
Shall be
subject to the following additional standards:
(1)
Presentation
Area.
All screenings of motion pictures, videos or other
media shall occur in a room open to all customers of the establishment
and containing at least 1,000 square feet of floor area. No walls,
dividers, curtains, screens, shades or other similar devices shall
be used to obscure any part of the screening room;
(2)
Lighting.
The lighting level in the area occupied by customers shall be
at least five (5) footcandles as measured at the floor;
(3)
Seating.
Seating shall consist of individual, theater-style chairs (maximum
seat width 20 inches), with solid arms separating the chairs. No couches,
benches, portable chairs, beds, loose cushions or mattresses, or other
forms of seating shall be provided. Separate spaces for wheelchairs
shall be provided in accordance with the applicable provisions of
the building code and the Americans with Disabilities Act; and
(4)
Sexually
Oriented Merchandise or Media.
No sexually oriented motion-picture
theatre shall sale or rent sexually oriented merchandise or media.
(e)
Standards
for a Sexually Oriented Cabaret or Nightclub.
Shall be
subject to the following additional standards:
(1)
Room.
All customer-related activities and entertainment shall take
place in a room of at least six hundred (600) square feet and in a
room that has an unobstructed view by all persons from any part of
such room;
(2)
Stage.
All sexually oriented entertainment shall take place on stage
elevated at least eighteen (18) inches above the surrounding floor
area, with a minimum area of one hundred (100) square feet, and with
a horizontal separation of at least sixty (60) inches between the
edge of the stage and the nearest space to which customers have access.
The horizontal separation shall be physically enforced by a partial
wall, rail, or other physical barrier measuring a minimum of four
(4) feet in height;
(3)
Access.
The manager and/or sexually oriented entertainer shall prohibit
any person other than a licensed entertainer to occupy the stage area;
(4)
Tip.
All tips for sexually oriented entertainment shall be collected
in containers that are accessible to customers;
(5)
Lighting.
The lighting level in the area occupied by customers shall be
at least fifteen (15) footcandles as measured three (3) feet from
the floor;
(6)
Seating.
Seating shall consist of chairs or open booths; no couches,
beds, loose cushions or mattresses, or other forms of seating shall
be provided;
(7)
Sexually
Oriented Merchandise or Media.
No sexually oriented cabaret
or nightclub or motion-picture theatre shall sale or rent sexually
oriented merchandise or media; and
(8)
Security.
At all times the business is open and for an hour after closing,
there shall be on site a licensed peace officer employed by the business
owner who holds a valid and current license (in good standing) issued
by the Texas Commission on Law Enforcement Officer Standards and Education.
The peace officer’s duty shall be to assist in maintaining order
and to report criminal activity or behavior.
(Ordinance 2012-06 adopted 2/7/12)
(a)
The city
may enforce this article by any methods not inconsistent with state
law and city charter.
(b)
Any person
violating the provisions of this article commits a class C misdemeanor.
(c)
Any person
operating a sexually oriented business without a license or with an
expired license, upon conviction, is punishable by a fine not to exceed
five hundred dollars ($500.00).
(d)
Any person
working as a sexually oriented entertainer or manager of a sexually
oriented business without a license or with an expired license, upon
conviction, is punishable by a fine not to exceed five hundred dollars
($500.00).
(e)
Any person
violating any other provision of this article, upon conviction is
punishable by a fine not to exceed five hundred dollars ($500.00).
(Ordinance 2012-06 adopted 2/7/12)
