ARTICLE 4-5 SEXUALLY ORIENTED BUSINESSES

Any touching of any part of the genitalia or anus;

Any touching of the breasts or areolas of a female without the written consent of the female;

Any offer or agreement to engage in any sexual activity with an entertainer;

Kissing without the consent of both persons;

Deviate sexual intercourse, sexual contact, sexual intercourse, indecent exposure, sexual assault, prostitution, and promotions of prostitution as described in chapters 21, 22, and 43, Penal Code, or any offer or agreement to engage in such activities;

Any behavior, gesture, or expression that may reasonably be interpreted as inappropriately seductive or sexual; or

Sexually oriented business.

Inappropriate sexual comments about or to a client, including sexual comments about a person’s body.

A sex parlor, nude studio, modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel, or other commercial enterprise the primary business of which is the offering of a service or the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer.

The term includes but is not limited to the following:

Adult bookstore or adult video store.

A commercial establishment which as one of its principal business purpose, offers for sale or rent, any one (1) or more of the following:

Books, magazines, periodicals or other printed material, or photographs, films, motion pictures, video cassettes or reproductions, slides, or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or

Instruments, devices, or paraphernalia which are designed for use in connection with specified sexual activities.

Adult cabaret.

A nightclub, bar, restaurant, or similar commercial establishment which regularly features:

Persons who appear in a state of nudity;

Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or

Films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depictions of descriptions of specified sexual activities or specified anatomical areas.

Adult movie arcade or adult video arcade.

Any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled image-producing devices are maintained to show images displayed are distinguished or characterized by the depicting or describing of specific sexual activities or specified anatomical areas.

(D)

Adult movie theater.

A commercial establishment where films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown and are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

(E)

Adult theater.

A theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.

(F)

Love parlor or sex parlor.

A business establishment that allows a person to engage in sexual contact or perform specified sexual activities for compensation.

(G)

Nude studio or modeling studio.

Any place where a person who appears in a state of nudity or displays specified anatomical areas to be observed, sketched, drawn, painted, sculpted, photographed, or similarly depicted by other persons who pay money or any form of consideration.

The term excludes:

Any business operated by or employing licensed psychologist, licensed physical therapists, licensed athletic trainers, licensed cosmetologist, or licensed barbers performing functions under the licensed held;

Any business operated by or employing licensed physicians or licensed chiropractors engaged in practicing the healing arts; and

Specified anatomical areas.

Any retail establishment whose primary business is the offering of wearing apparel for sale to customers.

Includes the human genitals, anus, pubic region, areolas, and any part of the female/male breast.

Specified sexual activities.

Includes any of the following:

The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or breast;

Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;

Masturbation, actual or simulated; or

Substantial enlargement of a sexually oriented business.

Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (3) above.

State of nudity.

Appearing nude or semi-nude.

A twenty-five percent (25%) increase in floor area occupied by the business as measured from the date the effective license was issued.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-3 License required.

A person commits an offense, if he/she operates a sexually oriented business without a valid license issued pursuant to the terms of this article.

An application for a sexually oriented business license must be made on a form provided by the chief of police. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but must be drawn to designated scale or marked with dimensions of the interior of the premises to an accuracy of six inches.

The applicant must be qualified according to the provisions of this article, and the premises must be inspected and found to be in compliance with the law by the county health department, chief of police or his designee, and fire marshal within twenty-one (21) days after receipt of any application.

If the applicant is an individual, he/she must sign the application in his/her individual capacity. If the applicant is an entity, each individual holding at least a twenty percent (20%) interest in the business entity must sign the application. Each applicant must be qualified under section 4-5-4 and each applicant shall be considered a licensee if a license is granted.

The fact that a person possesses a valid theater license, dance hall license, or public house of amusement license does not exempt him for the requirement of obtaining a sexually oriented business license. A person who operates a sexually oriented business and possesses a theater license, public house of amusement license or dance hall license shall comply with the requirements and provisions of this section.

All employees shall be issued a license if they work in a sexually oriented business regardless of the job they perform, such as bartender, bouncer, janitor, etc.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-4 Issuance of license.

The chief of police of the city police department shall approve or deny the issuance of a license within thirty (30) days after receipt of an application. The chief of police, or his designee, shall approve the issuance of a license unless he finds one or more of the following to be true:

An applicant is under 21 years of age;

An applicant is overdue in his/her payment to the city for taxes; fees, including the license fee required by this chapter; fines; or penalties assessed against him/her or imposed upon him/her in relation to a sexually oriented business. The designee for the chief of police shall make this determination and report the findings to the chief of police within thirty (30) days from the date the application is filed;

An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form;

An applicant has been convicted of violating a provision of this article, other than the offense of operating a sexually oriented business without a license, within two (2) years immediately preceding the application. The chief of police, or his designee, shall make this determination and report his findings within thirty (30) days from the time the application is filed.

The premises to be used for the sexually oriented business have not been approved by the county health department, chief of police or his designee, or fire marshal as being in compliance with the applicable laws and regulations. Reports of compliance or non-compliance with this article must be completed by the chief of police or his designee within thirty (30) days from the time the application filed.

An application of the proposed establishment is in violation of or is not in compliance with any section of this article.

An applicant has been convicted of a crime:

Involving:

Any of the following offenses as set forth in chapter 43 of the Texas Penal Code:

Prostitution;

Promotion of prostitution;

Aggravated promotion of prostitution;

Compelling prostitution;

Obscenity;

Sale, distribution, or display of harmful material to a minor;

Sexual performance by a child;

An employment harmful to children;

Possession or promotion of child pornography;

Any of the following offenses as described in chapter 21 of the Texas Penal Code:

Public lewdness;

Indecent exposure;

Indecency with child;

Sexual assault or aggravated sexual assault as described in chapter 22 of the Texas Penal Code; or

(iv)

Prohibited sexual conduct, solicitation of a child, or harboring a runaway child as set forth in chapter 25 of the Texas Penal Code;

(v)

Trafficking of persons as set forth in chapter 20A of the Texas Penal Code.

For which:

Less than two (2) years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is later, if the conviction is of a misdemeanor offense;

Less than five (5) years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is later, if the conviction is of a felony offense; or

Less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement imposed for the last conviction, whichever is later, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within a 24 month period.

The fact that a conviction is being appealed shall have no effect on the disqualifications of the applicant.

An applicant who has been convicted of an offense listed in subsection (a)(7)(A) of this section, for which the required time period has elapsed since the date of conviction or the date of release from confinement imposed for the conviction, may qualify for a sexually oriented business license only if the chief of police, or his designee, determines that the applicant is presently fit to operate a sexually oriented business. In determining an applicant’s present fitness under this section, the chief of police, or his designee, shall consider the following factors:

The extent and nature of the applicant’s past criminal activity;

The applicant’s age at the time of the commission of the crime;

The amount of time that has elapsed since the applicant’s last criminal activity;

The applicant’s conduct and work activity prior to and following the related criminal activity;

Evidence of the applicant’s rehabilitation or rehabilitative efforts while incarcerated or following release; and

Other evidence of the applicant’s present fitness, including letters of recommendation from attorneys, law enforcement officials, and correctional officers who prosecuted, arrested, or had custodial responsibility for him, as well as other persons in the community.

It is the responsibility of the applicant, to the extent possible, to secure and provide to the chief of police, or his designee, with the evidence required to determine his present fitness under subsection (c) of this section.

The license, if granted, shall, on its face, state the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. The license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time.

In the event the chief of police, or his designee, has not approved or denied the issuance of the license within thirty (30) days from the filing of the application, the chief of police shall issue the license.

§ 4-5-5 Posting of sign reference human trafficking.

The sexually oriented business shall obtain its license to serve food and drink from the county health department.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

Texas Business and Commerce Code title 5, subtitle C, chapter 102, subchapter C, notice requirements on premises of sexually oriented businesses.

In addition to the state law, the city requires an additional sign referencing human trafficking be placed in conspicuous places throughout the premises and must state as follows:

Signs must be eleven (11) inches by seven (7) inches, plastic or metal;

Signs shall be posted at the following places:

In all main areas of the bathrooms and in each stall;

In three (3) places of each dressing room; and

At all entrances and exits of the premises.

The signs must be in English and Spanish with the following definitions with a minimum font size of 28 bold on plastic or metal:

WHAT IS HUMAN TRAFFICKING?

Human trafficking is a form of modern day slavery. This crime occurs when a trafficker uses force, fraud, and/or coercion to control another person for the purpose of engaging in commercial sex acts or soliciting labor or services against his/her will. Force, fraud, or coercion need not be present if the individual engaging in commercial sex under eighteen (18) years of age.

Call the National Human Trafficking Resource Center 1-888-373-7888 or the Odessa Police Department at 432-333-3641.

¿QUÉ ES LA TRATA DE PERSONAS?

La trata de personas es una forma de esclavitud moderna. Este delito ocurre cuando un traficante utiliza la fuerza, el fraude y/o la exigencia para controlar a otra persona con el propósito de participar en actos sexuales comerciales o solicitar trabajo o servicios contra su voluntad. La fuerza, el fraude o la exigencia no tienen que estar presente si la persona que participa en relaciones sexuales comerciales es menor de dieciocho (18) años de edad.

Llame al Centro Nacional de Recursos Para la Trata de Personas 1-888-373-7888 o al Departamento de Policía de Odessa 432-333-3641.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-6 Application.

Any person, partnership, firm, association, or corporation desiring to obtain a sexually oriented business license shall apply to the department of billing and collections for the city, who shall refer each application to the chief of police, or his designee, for appropriate investigation.

Each application shall be accompanied by the bond five thousand dollars ($5,000.00) required by this article and a nonrefundable application fee of fifteen hundred dollars ($1,500.00), which is required to defray the actual costs of processing said license application, and which fee reflects the actual cost of processing the permit application in accordance with section 243.009 of the Local Government Code. The granting of a license under this article shall not be deemed evidence or proof that the license holder has complied with requirements and provisions of any other ordinances.

No portion of any fee collected under this section shall be returned after a license has been issued or refused. Each license shall be effective when issued and shall expire one year from the date of issue as shown on the face of the license.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-7 Application contents.

An applicant shall file with the department of billing and collections a typed and fully completed application, including all attachments or submissions as may be required. The application should contain the following information and material:

The date of birth and full legal name, including any and all names by which the person has been known during the last five (5) years, of the applicant.

If the applicant is a corporation, the exact corporate name, state of incorporation and principal place of business for the corporation.

If the applicant is an individual, his or her current address.

The applicant’s prior two (2) addresses or principal place of business immediately preceding the present address, and the dates of residency at each address.

The street address at which the applicant will conduct the sexually oriented business activity, and the name under which the business will be conducted.

A description of the sexually oriented business to be operated by the applicant, including a description of any service to be provided or a generic description of product to be sold, rented, or utilized which qualifies the business as a sexually oriented business.

The telephone number(s) of the sexually oriented business.

(8)

The legal description of the parcel of land on which the sexually oriented business is to be located. The application shall include legible and complete copies of the recorded record establishing current ownership of the parcel.

If the applicant is not the owner of record of the parcel, the application shall include a complete and legible copy of the lease, if any, and such other documentation as may be necessary to show that the applicant has the legal right to occupy and use the premises for the purposes described in the application.

(9)

The date on which the applicant became owner of the business for which a license is sought, and the date on which the business began operations at the location for which a license is sought.

(10)

Written proof that the applicant is at least twenty-one (21) years of age.

(11)

The height, weight, and color of hair and eyes of the applicant.

(12)

Two (2) portrait photographs, at least two inches by two inches (2" x 2") in size, taken by the city’s police department within thirty (30) days of the application.

(13)

The employment history of the applicant, going back five (5) years from the date of application, setting forth the name, telephone number and address for each employer, nature of employment, and the dates of employment. A complete and accurate description of previous self-employment shall be included.

(14)

All felony and misdemeanor convictions of the applicant involving any of the offenses described in section 4-5-4(a)(7).

(15)

A complete set of fingerprints of the applicant as recorded by the city’s police department.

(16)

The name, including any aliases and stage names by which the person has been known during the last five (5) years; date of birth; current residence address; and a clear, legible copy of a current photo identification of each person employed or intended to be employed by the applicant in the sexually oriented business.

(17)

Such other information and identification as the chief of police, or his designee, may require in order to establish the truth of the matters required to be set forth in the application.

(18)

A written statement signed by the applicant stating that: He/she has read all of the provisions of this article relating to the operation of a sexually oriented business; that he/she has had the opportunity to review the same with such counsel as he/she has deemed desirable and that he/she understands the same; that he/she has a continuing duty to report any change in the status of information submitted in the application; and that he/she intends to operate a sexually oriented business as defined in and regulated by this code.

(19)

The name and local address of each individual who will manage, direct, or control the premises and operations of the permitted establishment or venture.

(20)

The application shall be signed and verified by each applicant that the information contained therein, including each attachment or enclosure, is true and correct.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-8 Application attachments.

The application fee required by section 4-5-6(b).

A surety bond, letter of credit, or other approved surety in the amount of five thousand dollars ($5,000.00). The bond shall be executed and acknowledged by the license holder as principal and by a corporation licensed to transact fidelity and surety business in the state as surety. The bond shall be continuous in form and run concurrently with the license period, and shall be in favor of the city for the benefit of any person injured by any act of the principal or the principals’ agent or employee, and shall be subject to claim by any person injured thereby.

A certified copy of the assumed name certificate filed in compliance with the Assumed Business or Professional Name Act (Texas Revised Civil Statutes Annotated, Business and Commerce Code, chapter 36) if the applicant is to operate the business under an assumed name.

If the applicant is a state corporation, a certified copy of the articles of incorporation, together with all amendments thereto.

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

If applicant is a limited partnership formed under the laws of the state, a certified copy of the certificate of limited partnership, together with all amendments thereto, filed in the office of the secretary of state under the Texas Limited Partnership Act (article 6132a-l, Vernon’s Texas Civil Statutes).

If the applicant is a foreign limited partnership, a certified copy of the certificate of a limited partnership and the qualification documents, together with all amendments thereto, filed in the office of the secretary of state under the Texas Limited Partnership Act (article 6132a-1, Vernon’s Texas Civil Statutes).

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-9 Fees.

The fee, original and renewal, for a sexually oriented business license is fifteen hundred dollars ($1,500.00) and must be renewed annually.

The annual fee for non-entertainers of a sexually oriented business is fifty dollars ($50.00) and must be renewed annually.

§ 4-5-10 Criteria for approving entertainers and non-entertainers.

The annual fee for entertainers of a sexually oriented business is fifty dollars ($50.00) and must be renewed annually.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

A person seeking an entertainer permit must apply by submitting an application to the chief of police, or his designee. An application may be obtained at the city’s police department - records.

Once the chief of police has received the application, it will be reviewed and approved or denied within fifteen (15) days from the date the chief of police receives the application. After the application has been approved or denied, a written notice shall be sent to the applicant by the chief of police, or his designee, and the referring business.

The application should contain the following information and material:

The date of birth and full legal name, including any and all names (any aliases and stage names) by which the person has been known during the last five (5) years, of the applicant;

The applicant’s prior two (2) addresses and current address;

The telephone number(s) of the applicant;

Written proof that the applicant is at least twenty-one (21) years of age;

The height, weight, and color of hair and eyes of the applicant;

Two (2) portrait photographs, at least two inches by two inches (2" x 2") in size, taken within thirty (30) days of the date of the application, of the applicant;

(8)

All felony and misdemeanor convictions of the applicant, involving any of the offenses described in subsection (d)(4);

(9)

A complete set of fingerprints of the applicant as recorded by the city’s police department;

(10)

Such other information and identification as the chief of police, or his designee, may require in order to establish the truth of the matters required to be set forth in the application;

(11)

A written statement signed by the applicant stating that: He/she has read all of the provisions of this article relating to the entertainer permit; that he/she has had the opportunity to review the same with such counsel as he/she has deemed desirable and that he/she understands the same; that he/she has a continuing duty to report any change in the status of information submitted in the application; and that he/she intends to work in the sexually oriented business as defined in and regulated by this code.

The chief of police, or his designee, shall approve the issuance of a permit unless it is found that one or more of the following to be true:

An applicant is under 21 years of age;

Reserved;

An applicant has failed to provide information reasonably necessary for issuance of the permit or has falsely answered a question or request for information on the application form;

An applicant has been convicted of a crime:

Involving:

Any of the following offenses as set forth in chapter 43 of the Texas Penal Code:

Prostitution;

Promotion of prostitution;

Aggravated promotion of prostitution;

Compelling prostitution;

Obscenity;

Sale, distribution, or display of harmful material to a minor;

Sexual performance by a child;

An employment harmful to children;

Possession or promotion of child pornography;

Any of the following offenses as described in chapter 21 of the Texas Penal Code:

Public lewdness;

Indecent exposure;

Indecency with child;

Sexual assault or aggravated sexual assault as described in chapter 22 of the Texas Penal Code;

(iv)

Prohibited sexual conduct, solicitation of a child, or harboring a runaway child as set forth in chapter 25 of the Texas Penal Code; and/or

(v)

Trafficking of a person as set forth in chapter 20A of the Texas Penal Code.

For which:

Less than five (5) years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is later, if the conviction is of a felony offense; or

The applicant shall not be allowed to work at the business while waiting on the chief of police to issue the license. In the event the applicant is denied a license and was allowed to work by the business, the business shall be fined $500.00.

All employees, entertainers and non-entertainers, will have in plain view their sexually oriented business license, displayed on their person.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-11 Inspections.

An applicant or licensee shall permit representatives of the chief of police, or his designee, county health department, city’s fire rescue and fire marshal to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law and this article, at any time it is occupied or open for business.

A person who operates a sexually oriented business, or his/her agent or employee, commits an offense under this article if he/she refuses to permit a lawful inspection of the premises by a representative of the chief of police, or his designee, county health department, or fire marshal at any time it is occupied or open for business.

The sexually oriented business shall conduct sanitary inspections that are necessary to mitigate outbreaks from communicable diseases and food-borne disease to protect the patron’s health.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-12 Expiration of license.

Each sexually oriented business license shall expire one year from the date of issuance and may be renewed only by making application as provided in section 4-5-3. If application for renewal of a valid license is made thirty (30) days prior to the expiration date, the enterprise may continue to operate pending the inspection period.

When the chief of police, or his designee, denies renewal of a license, the applicant may reapply after ninety (90) days. If the chief of police later discovers that the basis for denial has been corrected or otherwise abated, the applicant may be granted a license if at least 90 days have elapsed since the date denial became final.

The applicant shall have a continuing duty, during the term of renewal, to notify the chief of police’s office of any change in the status of any information required to be submitted on the application for the license.

The notices required by this section shall be given in writing, signed by the applicant, and delivered or postmarked to the chief of police, or his designee, within thirty (30) days of the change in status, unless otherwise specifically provided for.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-13 Suspensions.

The chief of police, or his designee, shall suspend a license for a period not to exceed thirty (30) days if he determines that a licensee or an agent or employee of a licensee has:

Violated or is not in compliance with any section of this article;

Refused to allow an inspection of the sexually oriented business premises as authorized by this article.

Demonstrated an inability to operate or manage a sexually oriented business in a peaceful and law-abiding manner thus necessitating action by law enforcement officers.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-14 Revocation.

The chief of police, or his designee, shall revoke a license if a cause for suspension as set forth in section 4-5-13 occurs and the license had been suspended within the preceding twelve (12) months.

The chief of police, or his designee, shall revoke a license if he determines that:

A licensee gave false or misleading information in the material submitted to the chief of police during the application process;

A licensee or any employee has knowingly allowed the possession, use, or sale of a controlled substances on the premises;

A licensee or an employee knowingly allowed prostitution on the premises;

A licensee or any employee knowingly operated the sexually oriented business during a period of time when the sexually oriented business license was suspended;

A licensee has been convicted of an offense listed in section 4-5-4(7)(A) and the requisite time period has not elapsed;

On two or more occasions within a 12 month period, a person or persons committed an offense occurring in or on the licensed premise of a crime listed in section 4-5-4(a)(7)(A), for which a conviction has been obtained, and the persons or persons were employees of the sexually oriented business at the time the offenses were committed.

A licensee or an employee knowingly allowed any specified sexual activity to occur in or on the licensed premises.

(8)

A licensee is delinquent in payment to the city for ad valorem taxes, or any other taxes related to the sexually oriented business.

The fact that a conviction is being appealed shall have no effect on the revocation of the license.

When the chief of police, or his designee, revokes a license, the revocation shall continue for one year, and the licensee shall not be issued a sexually oriented business license for one year from the date of revocation. If the license was revoked under subsection (b)(5), an applicant may not be granted another license until the appropriate number of years required under section 4-5-4(a)(7)(B) has elapsed.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-15 License appeals board.

The city council shall appoint a license appeal board. This board shall consist of seven (7) members. The mayor shall appoint one member at large, the at-large councilmember shall appoint one member at large, and the remaining city councilmembers shall appoint one member to serve on the board from their respective districts. The initial board shall consist of seven members with a three (3) year term appointed by the city councilmembers representing a district while the two members appointed by the mayor and at-large councilmember shall be appointed for two (2) years. Thereafter, each member appointed shall serve a two-year term. The members shall be citizens of the city who have no conflict of interest with any of the matters to be considered by the license appeal board. The board shall convene within thirty (30) days of its initial selection for the purpose of electing a chairperson. The board shall meet every six (6) months on a convenient date to hear appeals.

If the chief of police, or his designee, denies the issuance of a license, or suspends or revokes a license, he/she shall send to the applicant or licensee, by certified mail, return receipt request, written notice of his action and the right to an appeal. An appeal may be filed by giving written notice of the aggrieved party’s intent to appeal to the license appeals board for the city, within thirty (30) days of the receipt of the notice that a license should be denied, suspended, or revoked. The license appeal board shall convene within twenty (20) days of its receipt of written notice of appeal with a quorum of at least four (4) members. The board may hear evidence from any interested party. The appeal board shall make a determination either affirming the chief of police’s decision or reversing the chief of police’s decision at the close of the hearing.

The filing of a notice of appeal as directed above shall stay the denial, suspension, or revocation of a license pending the determination of the license appeal board. If the appeal board affirms the chief of police’s decision, any time that accrues on the suspension or revocation before appeal is filed pursuant to this section shall be credited against the original period of suspension or revocation. The remaining period of suspension of revocation shall commence on the appeal board’s determination to affirm the chief of police’s decision.

The aggrieved party may appeal the decision of the license appeal board to the city municipal court on a trial de novo basis. Filing an appeal in city municipal court stays the decision of the appeal board in suspending or revoking a license until the city municipal court makes a final decision. All decisions of the license appeal board become final within thirty (30) days, if no appeal has been filed with the city municipal court.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-16 Transfer of license.

A sexually oriented business license becomes null and void upon transfer by the licensee unless the new, proposed licensee’s application has been approved by the chief of police.

§ 4-5-17 Location of sexually oriented businesses.

A person commits an offense, if he/she operates a sexually oriented business with a license issued to a different licensee or designating a different location.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

A person commits an offense if he/she or his/her agents or employees operate a sexually oriented business within 1,500 feet of:

A church;

A public or private elementary or secondary school;

A public park;

The property line of a residential lot.

A person commits an offense if he/she operates a sexually oriented business or causes or allows the substantial enlargement of a sexually oriented business within 600 feet of another sexually oriented business.

A person commits an offense if he/she causes or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, containing another sexually oriented business.

For the purpose of subsection (a), measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises if a church or a public or private elementary or secondary school, or to the nearest boundary of an affected public park, or lot containing residences.

For purpose of subsection (b), the distance between any two sexually oriented business shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.

Any sexual oriented business lawfully operating on the effective date of this article that is in violation of subsections (a), (b), or (c) of this section, shall be deemed a nonconforming use. The nonconforming use will be permitted to continue unless the business transfers ownership or control of the licensed premises to another person or entity, unless the new proposed licensee’s application has been approved by the chief of police, or otherwise discontinues business operations for a period of thirty (30) days or more, except as a result of force majeure. Such nonconforming use shall not be increased, enlarged, extended or altered, except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within 600 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later- established business is the nonconforming use.

§ 4-5-18 Exemption from location restrictions.

A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business licenses, of a church, public or private elementary or secondary school, public park, or lot containing a residence within 1,500 feet of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when the application for a license is submitted after a license has expired or has been revoked.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

lf the chief of police, or his designee, denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of section 4-5-16 of this article, the applicant may, no later than ten (10) calendar days from receiving notice of the denial, file a written request for an exemption from the location restrictions of section 4-5-16 with the city municipal court.

If the written request is filed with the city manager within the ten (10) day limit, the permit and license appeal board, selected in accordance with section 4-5-15 of this article, shall consider the request. The city manager shall set a date for the hearing within sixty (60) days from the date the written request is received.

A hearing by the board may proceed if at least four (4) of the board members are present. The board shall hear and consider evidence offered by any interested person. The formal rules of evidence do not apply.

The permit and license appeal board may, in its discretion, grant an exemption from the locational restriction of section 4-5-17(a) if it finds that:

The sexually oriented business will not have a detrimental effect on nearby properties or otherwise negatively affect the public health, safety, and welfare;

That the location of the proposed sexually oriented business will not decrease the surrounding property values, downgrade the quality of life in the adjacent areas, or contribute to urban blight;

The location of an additional sexually oriented business in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any efforts of urban renewal or restoration; and

All other applicable provisions of this article will be observed.

The board shall grant or deny the exemption by a majority vote. Failure to reach a majority vote shall result in denial of the exemption. Disputes of fact shall be decided on the basis of a preponderance of the evidence. The decision of the permit and license appeal board is final.

If the board grants the exemption, the exemption is valid for one year from the date of the board’s decision. Upon the expiration of such exemption, the sexually oriented business is in violation of the location restriction of section 4-5-17(a) until the applicant applies for and receives another exemption.

§ 4-5-19 Additional regulations for adult cabaret.

If the board denies the exemption, the applicant may not re-apply for an exemption until at least 12 months have elapsed from the date of the board’s decision.

(h)

The grant of an exemption does not exempt the applicant from any other provisions of this article other than the locational restrictions of section 4-5-17(a).

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

No person performing nude, as defined in this article, at an adult cabaret shall do so less than six (6) feet from the nearest patron and on a stage less than eighteen (18) inches above floor level.

No owner or operator shall allow any location within the adult cabaret to be used for the purpose of live nude exhibitions unless it is marked with clear indications of the six (6) foot zone. The absence of this demarcation will create a presumption that there have been violations of these regulations during performances in the unmarked area.

No person shall offer or accept a gratuity at the adult cabaret unless it is done pursuant to this section.

Gratuities being offered to any person performing on a stage must be placed in a receptacle provided for receipt of gratuities.

Gratuities being offered to any employee in or about the non-stage area of the adult cabaret shall be placed into the hand of the employee or into a receptacle provided by the employee.

An operator or his agents or employees commits an offense by allowing a patron to place a gratuity on the person or into the clothing of an employee.

If the premises contains two or more separate areas, the operator shall maintain each room with at least one wall or door equipped with clear windows or openings of at least three feet in width and two feet in height located no less than three feet above the floor but no less than two feet below the ceiling for viewing into the entire area and all activity therein. An operator commits an offense under this section if he knowingly fails to fulfill this duty.

§ 4-5-20 Additional regulations for nude studios or model studios.

All areas of the sexually operated business must lighted for the health and safety of the entertainers and patrons. The private dance rooms shall be lighted in such a way that patrons may see where they are walking at all times.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

A nude model studio shall not employ any person under the age of eighteen (18) years.

A person under the age of eighteen (18) years commits an offense if he/she appears in a state of nudity in or on the premises of a nude studio or model studio. It is a defense to prosecution under this subsection if the person under eighteen (18) years was in a restroom not open to public view or persons of the opposite sex.

A person commits an offense if he/she appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude studio or model studio, which can be viewed from the public right-of-way.

§ 4-5-21 Additional regulations for adult theaters and adult movie theaters.

A nude studio or model studio shall not place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception room open to the public.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

A person commits an offense if he/she knowingly allows a person under the age of eighteen (18) years to appear in a state of nudity in or on the premises of an adult theater or adult motion picture theater.

A person under the age of eighteen (18) years commits an offense if he/she knowingly appears in a state of nudity in or on the premises of an adult theater or adult motion picture theater.

§ 4-5-22 Regulations pertaining to exhibition of sexually explicit films or video.

It is a defense to prosecution under subsection (a) and (b) of this section if the person under eighteen (18) years was in a restroom, not open to public view or persons of the opposite sex.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

A person who operates or causes to be operated a sexually oriented business which exhibits on the premises in a viewing room of less than 150 square feet of floor space, a film, video cassette, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:

Upon applications for a sexually oriented business license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager’s stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager’s station may not exceed thirty-two (32) square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall not be required; however each diagram should be oriented to the north or to some designated street or object and should be drawn to designated scale or with marked dimensions sufficient to show the various internal measurements within six (6) inches. The chief of police, or his designee, may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certified that the configuration of the premises had not been altered since it was prepared.

The application shall be sworn to and be corrected by the applicant.

No alteration in the configuration or location of a manager’s station may be made without the prior approval of the chief of police, or his designee.

It is the duty of the owners and operator of the premises to ensure that at least one licensed employee is on duty and situated in each manager’s station at all times that any patron is present inside the premises.

The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager’s station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms. Restrooms may not contain reproduction equipment. If the premises has two or more manager’s stations designated, then the interior of the premises shall be deemed open to any patron who is permitted access for any purpose from at least one line of sight from the manager’s station.

It shall be the duty of the owners, and operator, and any agents and employees present in the premises, to ensure that the viewing area specified in Subsection (5) remains unobstructed by any doors, walls, merchandise, display racks, or other materials and that patrons are never present in the area which has been designated as an area in which patrons will not be permitted access in the application filed pursuant to subsection (a)(1) of this section.

The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access. An illumination described above, is maintained at all times that any patron is present in the premises.

§ 4-5-23 Display of sexually explicit material to minors.

A person having a duty under subsection (a)(1) through (a)(7) above commits an offense if he knowingly fails to fulfill that duty.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

A person commits an offense if, in a business establishment licensed or required to be licensed under this article, he displays a book, pamphlet, newspaper, magazine, film, or video cassette, the cover of which depicts specified sexual activities or specified anatomical areas, that can be viewed by minor.

For the purposes of this section, “display” means to locate an item is such a manner that, without obtaining assistance from an employee of the business establishment:

It is available to the general public for handling and inspection; or

The outside cover of the item is visible to members of the general public.

(Ordinance 2019-59 adopted 11/26/19; Ordinance 2020-13 adopted 3/24/20)

§ 4-5-24 Enforcement.

The violation of any provision of this article, whether it be an act or omission, is a misdemeanor and shall be punished as provided by section 243.010(b) of the Texas Local Government Code, as amended. Each day a violation continues shall constitute and be punishable as a separate offense.

The revocation or suspensions of any license shall not prohibit the imposition of a criminal penalty, and the imposition of a criminal penalty shall not prevent the revocation or suspension of a license.

The violation of any provision of this article is a class A misdemeanor.

It is a defense to prosecution under sections 4-5-3, 4-5-16, or 4-5-19 that a person appearing in state of nudity did so in modeling class operated:

By a proprietary school licensed by the state; or a college, junior college, or university supported entirely or partly by taxation;

By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or

In a structure:

Which has no sign visible from the exterior of the structure and no other advertising that indicated a nude person is available for viewing; and

Where in order to participate in a class a student must enroll at least three days in advance of the class; and

Where no more than one nude model is on the premises at any one time.