This division establishes regulations for certain land uses which are permitted in a given district yet require additional regulations to ensure complete compatibility with surrounding land uses.
(1999 Code, sec. 153.060)
(a)
Location.
Group homes shall be permitted as a conditional use in R-2 multifamily residential and R-3 multifamily residential districts.
(b)
Distance requirement.
A group home shall be located not less than 1,000 lineal feet from any other group home or child care facility as measured from the nearest boundary of the sites on which they are located.
(d)
Visual compatibility.
No structural alterations shall be permitted that will cause the group home to be substantially distinguishable from other surrounding residential properties.
(e)
Statutory licensing requirements.
All group homes shall meet every state statutory licensing requirement.
(1999 Code, sec. 153.061)
(a)
Location.
Home occupations shall be limited to AR agricultural/residential, R-1 single-family residential and MR [MH] manufactured home districts.
(b)
No external activities permitted.
All activities and storage associated with a home occupation shall be located within the associated residence.
(c)
Employment of persons outside of the immediate family.
Employment shall be limited to one person who is not a member of the immediate family residing on the premises.
(e)
Signs.
Only one sign per home occupation shall be allowed. Said sign shall not exceed two feet in height or width.
(f)
Visual compatibility.
No structural alterations shall be permitted that will cause the home occupation to be substantially distinguishable from other surrounding residential properties.
(g)
Annual licensing required.
All home occupations shall obtain annual operational licenses from the city. Complaints from surrounding property owners during the course of any year shall be recorded and shall be reviewed by the planning and zoning commission prior to the reissuance of any operational license. Decisions of the planning and zoning commission to renew or not to renew a home occupation operational license shall be appealable to the city council.
(i)
No commercial vehicles permitted.
No commercial vehicles shall be permitted for delivery and pickup services associated with a home occupation.
(1999 Code, sec. 153.062)
(a)
Location.
Child care facilities shall be permitted as a conditional use in AR agricultural/residential, R-1 single-family residential, R-2 multiple-family residential, R-3 multiple-family residential, and MR [MH] manufactured home districts. Child care facilities shall be permitted as uses permitted by right in NC neighborhood commercial, CBD central business district, and GC general commercial zoning districts.
(b)
Distance requirement.
In any residential district, a child care facility shall be located not less than 1,000 lineal feet from any other child care facility or group home as measured from the nearest boundary of the sites on which they are located.
(d)
Signs.
Only one sign per child care facility shall be allowed. Said sign shall not exceed three feet in height or width.
(e)
Visual compatibility.
Within any residential district, no structural alterations shall be permitted that will cause the child care facility to be substantially distinguishable from other surrounding residential properties.
(f)
Statutory licensing requirements.
All child care facilities shall meet every state statutory licensing requirement.
(g)
Annual licensing required.
All child care facilities located in residential districts shall obtain annual operational licenses from the city. Complaints from surrounding property owners during the course of any year shall be recorded and shall be reviewed by the planning and zoning commission prior to the reissuance of any operational license. Decisions of the planning and zoning commission to renew or not to renew a child care facility operational license shall be appealable to the city council.
(i)
Screening required in residential districts.
All outdoor play areas bordering residential property shall be screened by a solid, opaque fence, constructed and maintained in accordance with specifications provided by the code enforcement officer.
(j)
Time of operation limits in residential districts.
All child care facilities located in residential districts shall be limited to operating between the hours of 6 a.m. and 10 p.m. daily.
(1999 Code, sec. 153.063)
(a)
Location.
Special events shall be located as a conditional use in AR agricultural/residential or GC general commercial zoning districts.
(b)
Duration and time of operation limits.
No special event may operate for more than seven consecutive days. Special events may not operate before 7 a.m. nor after 10 p.m. daily.
(c)
Code enforcement officer to specify performance criteria.
The code enforcement officer is authorized to ensure adequate parking, sanitary facilities, safety requirements, and other appropriate performance criteria for special events to protect the public health, safety, and general welfare.
(1999 Code, sec. 153.064)
(a)
Purpose and intent.
(1)
Adoption of preamble.
The findings contained in the preamble of this section are determined to be true and correct and are adopted as a part of this section.
(2)
Purpose and intent.
It is the purpose of this section 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 regulations to prevent the concentration of sexually oriented businesses within the city. The provisions of this section have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this section to restrict or deny access by adults to sexually oriented materials protected by the First Amendment or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market.
(3)
Findings.
Based on evidence concerning the adverse secondary effects of sexually oriented businesses on the community presented to the council, and on findings incorporated in the cases of: Fantasy Ranch Inc. Xtc v. City of Arlington, Texas 459 F3rd (5th Cir. August 2006); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000); City of Los Angeles v. Alameda Books, Inc., 122 S. Ct. 1728 (2002); Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002); LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358 (5th Cir. 2002); Mitchell v. Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993); Schultz v. City of Cumberland, 228 F.3d 831 (7th Cir. 2000); Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); 2300, Inc. v. City of Arlington, 888 S.W.2d 123 (Tex. App. Fort Worth, 1994); Colacurcio v, City of Kent, 163 F.3d 545 (9th Cir. 1998), cert denied, 529 U.S. 1053 (2000); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); DLS, Inc. v. Chattanooga, 107 F.3d 403 (6th Cir. 1997); Jake’s, Ltd., Inc. v. Coates, 384 F.3d 884 (8th Cir.2002); and on testimony, studies and reports from other communities including, but not limited to Arlington, Texas; on the City of Arlington, Texas Community Health Profile (dated July 2003); a summary of land use studies compiled by the National Law Center for Children and Families; and also on findings from the Report of the Attorney General’s Working Group On The Regulation Of Sexually Oriented Businesses (June 6, 1989, State of Minnesota), the council finds:
(A)
Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that may not be controlled by the operators of the establishments. Further, absent municipal regulation aimed at reducing adverse secondary effects there is no mechanism to make the owners of these establishments responsible for the activities that occur on their premises.
(B)
Certain employees of sexually oriented businesses, defined in this section as sexually oriented theater, nude model business, escort agency, and sexually oriented cabaret, engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments.
(C)
Sexual acts, including masturbation, prostitution, sexual contact, and oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semi-private booths or cubicles, or rooms for viewing films, videos, or live sex shows.
(D)
Offering and providing private or semi-private areas in sexually oriented businesses encourages such sexual activities, which creates unhealthy conditions.
(E)
Persons frequent certain sexually oriented theaters, sexually oriented arcades, and other sexually oriented businesses for the purpose of engaging in sex within the premises of such sexually oriented businesses.
(F)
At least 50 communicable diseases may be spread by activities occurring in sexually oriented businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections.
(G)
Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS (acquired immunodeficiency syndrome) caused by the human immunodeficiency virus (HIV) in the United States: 600 in 1982; 2,200 in 1983; 4,600 in 1984; 8,555 in 1985; and 253,448 through December 31, 1992.
(H)
As of December 31, 2001, there have been 57,199 reported cases of AIDS in the State of Texas.
(I)
Since the early 1980s and to the present, there has been an increasing cumulative number of persons testing positive for the HIV antibody in some Texas counties.
(J)
The number of cases of early (less than one year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982, and 45,200 through November, 1990. According to Texas Department of Health records there were 1,175 cases of early syphilis reported in the State of Texas during 2000 and an additional 972 cases reported in 2001.
(K)
The number of cases of gonorrhea in the United States reported annually remains at a high level, with over one-half million cases being reported in 1990. Again, according to Texas Department of Health records there were 32,895 cases of gonorrhea reported in the State of Texas during 2000 and an additional 30,116 cases reported in 2001. During the same time period there were also 138,692 cases of chlamydia reported in the State of Texas. (Arlington Community Health Profile (dated July 2003))[.]
(L)
In his report of October 22, 1986, the surgeon general of the United States advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, and from an infected mother to her newborn.
(M)
According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.
(N)
Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities and the failure of the owners and the operators of the facilities to self-regulate those activities and maintain those facilities.
(O)
Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view “sexually oriented” films.
(P)
Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect substantial governmental concerns.
(Q)
A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the sexually oriented businesses. Further, such a licensing procedure will place an incentive on the operators to ensure that the sexually oriented business is run in a manner consistent with the health, safety, and welfare of its patrons and employees, as well as the citizens of the city. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein.
(R)
Removal of doors on booths and requiring sufficient lighting on premises with booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in sexually oriented theaters.
(S)
Requiring licensees of sexually oriented businesses to maintain information regarding current employees and certain past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments.
(T)
The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually oriented business, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases.
(U)
In the prevention of the spread of communicable diseases, it is desirable to obtain a limited amount of information regarding certain employees who may engage in the conduct that this section is designed to prevent, or who are likely to be witnesses to such conduct.
(V)
The fact that an applicant for a sexually oriented business license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this section. There is a correlation between sexually oriented businesses and higher crime rates, specifically related to their hours of operation and the type of people that such businesses attract. (Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002)).
(W)
The barring of such individuals from the management of sexually oriented businesses for a period of years serves as a deterrent to, and prevents, conduct that leads to, the transmission of sexually transmitted diseases.
(X)
It is reasonably believed that to prevent the exploitation of any loopholes in the section (which would permit such businesses to avoid the location restrictions), partially nude performances in such businesses are also included within the purview of the regulations, since they have the same harmful secondary effects on the surrounding community as totally nude sexually oriented businesses. (Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002)).
(Y)
There is no constitutional right for sexually oriented business employees in a state of nudity to touch customers. (Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995))
(Z)
One court has characterized the acts of sexually oriented business employees in a state of nudity and being paid to touch or be touched by customers as prostitution. (People v. Hill, 2002 Ill. App. LEXIS 792 (Ill. App. 2 Dist. Sep. 4, 2002); see also, Tex. Penal Code sections 43.01 (“sexual conduct” and “sexual contact”) and 43.02 (“prostitution”)).
(AA)
Provocative touching between customers and employees in a sexually oriented business where at least one is in a state of nudity frequently leads to the commission of sex crimes, illegal drug use, and increased health risks due to sexually transmitted diseases.
(BB)
The city council reasonably believes that requiring employees in a state of nudity to be physically separated from customers by the use of elevated stages and buffer zones is necessary to better ensure ordinance compliance while still not inhibiting constitutionally protected expressive conduct or speech. (LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358 (5th C. 2002)).
(DD)
It is reasonably believed by the city council that the general welfare, health, and safety of the citizens of the city will be promoted by the enactment of this section.
(b) Applicant. Business days. Chief of police. Church. Conviction or convicted. Customer.(1) (2) (3) Day. Employee. Escort. Escort agency. Licensed day care center. Licensee. Nude model business. Nudity or a state of nudity.(1) (2) Operates or causes to be operated. Operator. Person. Premises. Principal. Regularly. Residential district. Residential use. Sexual encounter center. Sexually oriented arcade. Sexually oriented bookstore, sexually oriented novelty store, or sexually oriented video store.(1) (2) Sexually oriented business.(1) (2) (3) (A) (B) (C) (D) (i) (ii) (iii) a. b. c. Sexually oriented cabaret.(1) (2) (3) Sexually oriented motel.(1) (2) (3) Sexually oriented motion-picture theater. Sexually oriented theater. Specified anatomical areas. Specified sexual activities.(1) (2) (3) (4) Transfer of ownership or control of a sexually oriented business.(1) (2) (3) (4)
Definitions.
Unless otherwise expressly stated, the following terms shall, for the purposes of this section, have the meanings indicated in this section.
A person or persons listed as such on an application for a license as a sexually oriented business.
The days of the week from Monday through Friday, excluding legal holidays.
A building, or portion of a building, whether situated within the city or not, in which persons regularly assemble for religious worship and said building or portion of a building is intended primarily for purposes connected with such worship or for propagating a particular form of religious belief.
A finding of guilty by a court, regardless of whether an appeal is pending.
Any person who:
Is allowed to enter a sexually oriented business whether or not a payment of an admission fee or any other form of consideration or gratuity is charged;
Enters a sexually oriented business and purchases, rents or otherwise partakes of any merchandise, goods, entertainment or other services offered therein; or
Is a member of and on the premises of a sexually oriented business operating as a private club.
Unless otherwise indicated, calendar days.
Any person who renders any service whatsoever to the customers of a sexually oriented business, or who works in or about a sexually oriented business, whether that person receives, or does not receive compensation from the operator or owner of the sexually oriented business or from the customers therein, for such service or work.
A person who, for consideration, agrees or offers to act as a companion or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
A person or business association that furnishes, offers to furnish or advertises to furnish escorts as its principal business purpose, for a fee, tip or other consideration.
A facility licensed by the state, whether situated within the city or not, that provides care, training, education, custody treatment or supervision for more than six (6) children under fourteen (14) years of age, where such children are not related by blood, marriage or adoption to the owner or operator of the facility, for less than twenty-four (24) hours a day, regardless of whether or not the facility is operated for a profit or charges for the services it offers.
A person in whose name a license to operate a sexually oriented business has been issued, as well as any and all individuals listed as applicants, owners or licensees on the application for a license.
Any place where a person who appears in a state of nudity or displays “specified anatomical areas” is provided or allowed to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons who pay money or give any other form of consideration. Nude model business shall not include those activities excepted from the below definition of sexually oriented business.
The appearance of a human bare buttock, vulva, anus, anal cleft with less than a full opaque covering, male genitals, female genitals or female breast; or
A state of dress which fails to completely and opaquely cover a human buttock, vulva, anus, male genitals, female genitals or any part of the female breast or breasts that is situated below a point immediately above the top of the areola of the female breast.
To cause to function or to put or keep in operation. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner, part owner, licensee or manager of the establishment.
An individual who is in control of the operations of a sexually oriented business, including, but not limited to, a person designated on the license required and issued under this section. This control can be either on an hourly basis, daily basis, weekly basis, or shift basis, or any combination thereof. An operator includes, but is not limited to manager, assistant manager, house mother, floor manager, or shift manager.
An individual, proprietorship, partnership, corporation, association or other legal entity.
The grounds, parking areas and all building, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person.
Over fifty percent (50%) of customers, volume of sales, revenue, stock in trade, display areas, floor space, advertising, or presentation time in any three (3) month increment period beginning from the date of issuance of a certificate of occupancy. Stock in trade shall be measured with all titles or objects available on the premises for sale or rental including those that are identical, considered a separate title or object.
Featuring, promoting, permitting to occur or advertising a happening or occurrence on a recurring basis.
A residentially zoned district. For purposes of this section, a “residential use” may exist even in the absence of a corresponding “residential district.”
A single-family, townhouse, duplex, mobile home or multifamily use.
A commercial establishment to which the public is permitted or invited, which offers for any form of consideration:
Any commercial establishment to which the public is permitted or invited wherein coin-operated or slug-operated or electronically or mechanically controlled still or motion-picture machines, projectors, DVDs or any other image-producing devices are maintained to show images to five (5) or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of “specified sexual activities” or “specified anatomical areas.”
A commercial establishment to which the public is permitted or invited which, as its principal business purpose, offers for sale or rental for any form of consideration any one or more of the following:
Books, magazines, periodicals or other printed matter, or photographs, films, DVDs, motion pictures, videocassettes, video reproductions, slides or any 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.” This does not include items used for birth control or for prevention of sexually transmitted diseases.
A sexually oriented arcade, sexually oriented bookstore or sexually oriented video store, sexually oriented novelty store, sexually oriented cabaret, sexually oriented motel, sexually oriented theater, sexually oriented motion-picture theater, escort agency, nude model business or sexual encounter center, sexually oriented tanning salon, sexually oriented massage parlor; and/or
Any establishment whose principal business 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 its customers, and which is distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas; or whose employees or customers appear in a state of nudity.
The term “sexually oriented business” shall not be construed to include:
Any business operated by or employing a licensed psychologist, licensed physical therapist, registered or licensed massage therapist, licensed vocational nurse, registered nurse, licensed athletic trainer, licensed cosmetologist, or licensed barber engaged in performing the normal and customary functions authorized under the license/registration held;
Any business operated by or employing a licensed physician or licensed chiropractor engaged in practicing the healing arts;
Any retail establishment whose principal business is the offering of wearing apparel for sale to customers and that does not exhibit merchandise on live models; or
An activity conducted or sponsored:
By a proprietary school licensed by the state or a college, junior college or a university supported entirely or partly by taxation; or
By a private college or university which maintains or operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; and
Any activity conducted or sponsored by an entity identified in subsections (i) or (ii) above must be situated inside a structure so that they are not visible to the general public.
Which has no sign or other advertising visible from the exterior of the structure indicating a nude person is available for viewing;
Where in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and
Where no more than one (1) nude model is on the premises at any one time.
A nightclub, bar, restaurant or similar commercial establishment which regularly has:
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, videocassettes, DVDs, slides, or other photographic reproductions, closed-circuit television transmissions, cable television transmissions, subscriber programming, any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission or other method, which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, cable television transmissions, subscriber programming, any disk, diskette, DVDs or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission or other method, films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”; and has a sign visible from the public right-of-way which advertises the availability of this type of material;
Offers a sleeping room for rent for a period of time that is less than ten (10) hours; or
Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten (10) hours. Evidence that a sleeping room in a hotel, motel or similar commercial establishment has been rented and vacated two (2) or more times in a period of time that is less than ten (10) hours creates a rebuttable presumption that the business is a sexually oriented motel.
A commercial establishment to which the public is permitted or invited where, for any form of consideration, films, motion pictures, videocassettes, DVDs, slides or similar photographic reproductions, any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission or other method, are regularly shown which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”
A theater, concert hall, auditorium or similar commercial establishment to which the public is permitted or invited 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.”
Includes any of the following:
The fondling or other erotic touching of another’s or one’s own human genitals, pubic region, pubic hair, perineum, buttocks, anus or female breasts;
Sex acts, actual or simulated, including intercourse, oral copulation, sodomy or bestiality;
Masturbation, actual or simulated, of oneself or another; or
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 device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
The change of the name of the business.
(c)
Location of sexually oriented businesses.
(1)
Location.
(A)
A person commits an offense if he establishes, operates or causes to be operated or expanded a sexually oriented business within 1,000 feet of:
(B)
A person commits an offense if he establishes, operates or causes to be operated or expanded a sexually oriented business within 1,000 feet of any other sexually oriented business.
(C)
A person commits an offense if he establishes, operates or causes to be operated or expanded a sexually oriented business in any building, structure or portion thereof containing another sexually oriented business.
(D)
For the purposes of subsection (B), 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 tenant space occupied for a sexually oriented business to the nearest property line of the premises of a church, public or private elementary or secondary school, licensed day care center, or to the nearest boundary of an affected public park, residential district, or residential lot.
(E)
For purposes of subsection (C) of this section, the distance between any two (2) sexually oriented businesses 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. If the establishment is located within a structure with multiple spaces available for occupancy, the measurement will be from the closest wall of the tenant space occupied by the sexually oriented business.
(2)
Nonconforming sexually oriented business.
(A)
Any sexually oriented business lawfully operating prior to the effective date of this section that is in violation of subsection (c)(1) above shall be deemed a nonconforming sexually oriented business after the effective date of this section. The nonconforming sexually oriented business will be permitted to continue for a period not to exceed (60) days from the effective date of this section.
(B)
A person commits an offense if the person increases, enlarges, extends, alters or causes to be increased, enlarged or extended or altered the premises of a nonconforming sexually oriented business.
(d)
License for sexually oriented business.
(1)
License required.
(A)
A person commits an offense if the person operates or causes to operate a sexually oriented business without a valid license, issued by the city for the particular type of business.
(B)
Any person, association, firm, partnership or corporation desiring to obtain a sexually oriented business license shall make application 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 a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches (6").
(C)
The applicant must be qualified according to the provisions of this section.
(D)
An individual person who wishes to operate a sexually oriented business must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a twenty percent (20%) or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under subsection (d)(2), and each applicant shall be considered a licensee if a license is granted.
(E)
The fact that a person possesses other types of state or city permits does not exempt that person from the requirement of obtaining a license for a sexually oriented business.
(F)
The provisions of this section shall apply to any existing sexually oriented businesses described as nonconforming in subsection (c)(2) above.
(G)
All applications for a license under this section shall be accompanied by a nonrefundable application fee. The annual fee is five hundred dollars ($500.00). An application shall not be considered to have been received until the fee is paid and all information required by the application form has been submitted. The application fee shall not be prorated in the event an application is tendered before or during the licensing period.
(H)
An applicant for a sexually oriented business must first obtain a certificate of occupancy for a sexually oriented business from the building official, also known as the code enforcement official or code enforcement officer. The building official shall issue or deny a certificate of occupancy to a sexually oriented business not more than sixty (60) business days subsequent to the date of the applicant’s submission of such application to the city’s office of code enforcement.
(I)
If an applicant for a sexually oriented business requires a building permit under applicable city ordinances, the building official shall cause all building, fire, health and other necessary permits to be issued within thirty (30) business days subsequent to the date of the applicant’s submission of an application to the city’s office of code enforcement. The building official shall cause all necessary inspections to occur within ten (10) business days of the applicant’s request for an inspection made to the building official. Such application shall be deemed approved if not approved or denied within such time period. The applicant must specify on the face of its application that the proposed use is for a sexually oriented business and give the name and address of the applicant’s contact person for all communications and notices.
(J)
A licensee or operator commits an offense if the licensee or operator fails to prominently display a legible copy of the certificate of occupancy and sexual oriented business license issued by the city. The license and certificate must be prominently and continuously displayed at all entrances so that they are clearly visible to all customers who enter the premises.
(2)
License issuance and grounds for denial.
(A)
The chief of police shall approve the issuance of a license to an applicant within thirty (30) days after receipt of an application, unless the chief of police finds one (1) or more of the following to be true:
(i)
The location of the sexually oriented business is or would be in violation of subsection (c) of this section.
(ii)
The applicant failed to supply all of the information requested on the application.
(iii)
The applicant gave false, fraudulent or untruthful information on the application.
(iv)
An applicant is under eighteen (18) years of age.
(v)
An applicant or an applicant’s spouse is overdue in payment to the city of taxes, fees, fines or penalties assessed against or imposed upon the applicant or the applicant’s spouse.
(vi)
An applicant or an applicant’s spouse has been convicted or placed on deferred disposition, probation or community supervision for a violation of a provision of this section, within two (2) years immediately preceding the application. The fact that a conviction is being appealed shall have no effect.
(vii)
The license fee required by this section has not been paid.
(viii)
The applicant has not demonstrated that the owner of the sexually oriented business owns or holds a lease for the property or the applicable portion thereof upon which the sexually oriented business will be situated or has a legally enforceable right to acquire the same.
(ix)
An applicant or the proposed establishment is in violation of or is not in compliance with subsections (d)(3) or (d)(9), or subsections (e)(3)(H), (e)(5)(A)(i), (e)(5)(A)(v), (e)(6)(A)(i), or (e)(6)(A)(v), as applicable.
(x)
An applicant or an applicant’s spouse has been convicted or placed on deferred disposition, probation, or community supervision for:
a.
Any offense under the laws of the United States of America, another state or the Uniform Code of Military Justice for an offense described in this subsection; or
b.
c.
For which:
1.
Less than two (2) years have elapsed since the date of conviction, or the date of release from the terms of community supervision, probation, parole or deferred disposition or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
2.
Less than five (5) years have elapsed since the date of conviction, or the date of release from the terms of community supervision, probation, parole or deferred disposition or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or
3.
Less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two (2) or more misdemeanor offenses or combination of misdemeanor offenses occurring within any twenty-four (24) month period.
(xi)
The applicant or the applicant’s spouse is required to register as a sex offender under the provisions of chapter 62 of the Texas Code of Criminal Procedure.
(xii)
The applicant failed to comply with any of the requirements of section 243.0075 of the Texas Local Government Code regarding the posting of an outdoor sign.
(xiii)
The applicant failed to obtain all other permits, certificates and licenses required from the city, county, state or federal government to open and operate the business.
(B)
An applicant, or applicant’s spouse, who has been convicted of or placed on deferred disposition, probation or community supervision for an offense listed in subsection (d)(2)(A)(x) may qualify for a sexually oriented business license only when the time period required by subsection (d)(2)(A)(x)c. has elapsed.
(C)
The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date and the address of the sexually oriented business.
(D)
The license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business, so that it is visible to the public at all times and may be easily read.
(3)
Inspection and maintenance of records.
(A)
A licensee, operator or employee of a sexually oriented business shall be subject to regulation under this section and shall permit representatives of the police department, fire department, and code enforcement division to inspect all portions of the premises where customers are allowed and the records required to be maintained under this section by the sexually oriented business for the purpose of ensuring compliance with this section at any time it is occupied or open for business.
(B)
A licensee or operator of a sexually oriented business commits an offense if the person operates the establishment without maintaining a current list of all employees of the business, along with a complete updated employment application for each employee. An operator of a sexually oriented business must maintain a legible copy of valid photo identification, such as a driver’s license, state identification card, or passport on all employees. The operator must also, at all times, maintain a current, original photograph of all employees. The photograph must bear a reasonable resemblance of the employee and both the photo and the photo identification must be maintained at the business and must be attached to the employee’s application for employment. The photograph, photo identification and employee application must be immediately provided to any police officer conducting an inspection at the business.
(C)
A licensee or operator of a sexually oriented business commits an offense if the person refuses to permit a lawful inspection of the photographs, records or premises by a representative of the police department at any time the sexually oriented business is occupied or open for business.
(D)
The licensee or operator of a sexually oriented business shall maintain all records required to be maintained under the provisions of this section on the licensed premises.
(E)
The licensee or operator of a sexually oriented business commits an offense if the person does not maintain the required records on the premises of the licensed establishment.
(F)
A licensee, operator or employee of a sexually oriented business commits an offense if that person allows any portion of, or area in, a sexually oriented business to contain sofas, beds, cots, mattresses, mats, chairs, couches or material or device that are utilized by anyone for reclining, lying down or sleeping. No portion of a sexually oriented business will be used by any person as a temporary or permanent habitation.
(4)
Expiration and renewal of license.
(A)
Each license shall expire one year after the date of issuance.
(B)
Renewal of a license may be applied for by submission to the chief of police of an application on the form prescribed by such official and payment of a nonrefundable renewal processing fee of five hundred dollars ($500.00).
(C)
Application for renewal shall be made at least thirty (30) days before the expiration date of the current license. Applications not received at least thirty days before expiration date of the current license will be denied.
(5)
Suspension.
(A)
Subject to subsection (B) below, the chief of police shall suspend a sexually oriented business license if the chief of police determines that a licensee(s), operator(s) or employee(s) of a licensee (or any combination thereof) has/have:
(ii)
(iii)
b.
Been convicted or placed on deferred disposition or probation for the violations; and
c.
The chief of police determines that notice of the citations has been sent to the licensee in accordance with subsection (g)(2) of this section. A period of suspension will begin the first day after the decision of the chief of police becomes final as provided in subsection (d)(7), unless the licensee appeals to district court under subsection (d)(7). If appeal is taken under subsection (d)(7), the period of suspension begins the day after all appeals are final.
(B)
It shall be an affirmative defense to the suspension authorized under subsection (d)(5)(A) if such licensee shows by a preponderance of the evidence that it was powerless to prevent such violations.
(C)
Each day in which a violation is permitted to continue shall constitute a separate violation for purposes of suspension.
(6)
Grounds for revocation.
(A)
The chief of police may revoke a sexually oriented business license:
(i)
If a cause of suspension in subsection (d)(5) occurs and the license has been ordered suspended by the chief of police for a thirty-day period within the preceding year; or
(ii)
If the chief of police determines that on one or more occasions a licensee(s) or operator(s) (or any combination thereof) has/have been convicted of or placed on deferred disposition, probation or community supervision for conduct occurring in a licensing period on the premises of a sexually oriented business that constitutes any of the offenses of the state or criminal attempt, conspiracy, or solicitation to commit same for;[:]
a.
Any of the following offenses described in cha. 43, Texas Penal Code:
b.
Any of the following offenses as described in cha. 21, Texas Penal Code:
c.
Sexual assault or aggravated sexual assault. cha. 22 Texas Penal Code;
d.
Incest, solicitation of a child or harboring a runaway child as described in chapter 25 of the Texas Penal Code;
(iii)
If a licensee or operator gave false or misleading information in the material submitted to the chief of police during the application process;
(iv)
If a licensee or operator has knowingly allowed possession, use or sale of a controlled substance on the premises;
(v)
If a licensee or operator has on one (1) or more occasions knowingly allowed prostitution on the premises;
(vi)
If a licensee or operator knowingly operated the sexually oriented business during a period of time when the licensee’s license was suspended;
(vii)
If a licensee or operator has, on one (1) or more occasions, knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or sexual contact to occur in or on the licensed premises. The term “sexual contact” shall have the same meaning as it is defined in section 21.01, Texas Penal Code;
(viii)
If a licensee is delinquent in payment to the city for hotel occupancy taxes, ad valorem taxes or sales taxes related to the sexually oriented business;
(ix)
If the licensee is required to register as a sex offender under the provisions of chapter 62 of the Texas Code of Criminal Procedure.[;]
(B)
The fact that a conviction is being appealed shall have no effect on the revocation of the license.
(C)
Subsection (d)(6)(A)(vii) does not apply to sexually oriented motels as a ground for revoking the license, unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation or sexual contact to occur in a public place or within public view.
(7)
Denial, suspension and revocation procedures.
(A)
A denial, suspension, or revocation is an administrative procedure. In any hearing relating to such actions under this subsection, the burden of proof shall be on the city (except for affirmative defenses), and shall be by a preponderance of the evidence.
(B)
If the chief of police is authorized to deny the issuance of a license, or suspend or revoke a license, the chief of police shall give written notice to the applicant or licensee of his intent to implement denial, suspension, or revocation procedures.
(i)
The notice shall state the reason for such denial, suspension, or revocation.
(ii)
The notice shall provide that the denial of issuance, suspension or revocation shall take effect at the expiration of the tenth calendar day after notification, unless the licensee provides a written request for hearing to the city secretary before the expiration of the tenth calendar day.
(iii)
If a written request for hearing from the applicant or licensee is received by the city secretary before the expiration of the tenth calendar day, the suspension, denial of issuance or revocation will be stayed pending a hearing and a decision by the board of adjustments.
(iv)
The applicant or licensee shall have ten (10) calendar days from the date notice is received, to request a hearing on the denial, suspension or revocation. The request shall be in writing and delivered to the city secretary. Upon receipt of the request for hearing, a hearing before the board of adjustments shall be scheduled to take place within thirty (30) calendar days unless both parties agree to a certain date beyond the thirty days. The board of adjustments shall consider the testimony and evidence admitted for consideration and shall have five (5) business days from the date of the hearing to notify the applicant or licensee of the decision.
a.
In making a determination as to the denial of a license, the board of adjustments shall consider whether the applicant has established the applicant’s entitlement to a license under the requirements imposed by subsection (d)(2) of this section and/or whether the city has established a disqualifying factor under the requirements imposed by subsection (d)(2) of this section.
b.
In making a determination of the suspension of a license under subsection (d)(5) of this section, the board of adjustments shall consider:
1.
Whether the required number of citations under subsection (d)(5)(A)(i), (ii), or (iii) were issued to the licensee, operator, or employee of the licensee within a twelve-month period of time;
2.
Whether notice of such citations was sent to the proper sexually oriented business in compliance with subsection (g)(2) of this section;
3.
Whether the licensee, operator, or employee of the licensee was convicted or placed on deferred disposition or probation for the citations; and
4.
Whether licensee was powerless to prevent violations.
c.
In making a determination of the revocation of a license under subsection (d)(6)(A)(i) of this section, the board of adjustments shall consider:
1.
Whether the required number of citations under subsection (d)(5)(A)(i), (ii), or (iii) were issued to the licensee, operator, or employee of the licensee within a twelve-month period of time;
2.
Whether notice of such citations was sent to the proper sexually oriented business in compliance with subsection (g)(2) of this section;
3.
Whether the licensee, operator, or employee of the licensee was convicted or placed on deferred disposition or probation for the citations; and
4.
Whether the license at issue has been ordered suspended for a thirty-day period of time pursuant to subsection (d)(8)(B)(i) of this section within the preceding twelve-month period of time.
d.
In making a determination of the revocation of a license under subsections (d)(6)(A)(ii)–(x) of this section, the board of adjustments shall consider whether the evidence shows that the specified convictions, events, or actions occurred as set forth in those subsections of this section.
(v)
All hearings under this section will be open to the public. The board of adjustments chairperson will be responsible for the procedural oversight of the hearing, including the manner and order of presentation and ruling on the admissibility of testimony and evidence and any objections thereto.
(vi)
The decision by the board of adjustments is effective immediately, after the applicant or licensee is notified of the decision, unless a reinstatement fee under subsection (d)(8)(B)(i) of this section is paid (if available).
(C)
The failure to submit an application for renewal at least thirty (30) days prior to the expiration of a current license is automatic grounds for denial and is considered a failure to renew.
(8)
Period of suspension or revocation.
(A)
The revocation of a license as provided for in subsection (d)(6) of this section shall be for a period of twelve (12) months.
(B)
The suspension of a license as provided for in subsection (d)(5) of this section shall be as follows:
(i)
The first suspension of a license shall be for a period of three (30) calendar days. When the chief of police is authorized to suspend a license for three (30) days, he shall notify the licensee of his decision and of the licensee’s opportunity to pay a reinstatement fee in the amount of $1,500.00 in lieu of the suspension. Payment of the administrative fee shall be considered, for the purposes of this subsection, the first suspension and an admission of the violation. However, this shall not be used as an admission of guilt in a criminal prosecution under this section. If the licensee does not pay the reinstatement fee before the expiration of thirty (30) calendar days after the notification, the licensee loses the opportunity to pay it and the license is suspended
(ii)
The second suspension of a license shall be for a period of sixty (60) calendar days.
(iii)
The penalty for a third incident justifying suspension shall be revocation of the license.
(9)
Transfer of license.
(A)
A person commits an offense if the person transfers a license to another person or operates a sexually oriented business under the authority of a license at any place other than the address designated on the license. A transfer of a license is deemed to have occurred if there is a transfer of more than fifty percent (50%) of the ownership or control of a sexually oriented business.
(B)
A person commits an offense if the person counterfeits, forges, changes, defaces or alters a license.
(e)
Additional regulations.
(1)
Additional regulations for sexually oriented cabaret.
(A)
An employee of a sexually oriented cabaret, while appearing in a state of nudity, commits an offense if the employee touches a customer or the clothing of a customer.
(B)
A customer at a sexually oriented cabaret commits an offense if the customer touches an employee appearing in a state of nudity or the clothing of an employee appearing in a state of nudity.
(C)
A licensee or employee commits an offense if the licensee or employee permits any customer access to an area of the premises not visible from the manager’s station or not visible by a walk through of the premises without entering a private, exclusive, closed, curtained, or otherwise screened area, excluding restrooms. The view required in this subsection shall be by direct line of sight. The view shall be deemed insufficient if clear visibility of such line of sight must be attained by utilizing flashlights or spotlights in addition to overhead house lighting.
(D)
A licensee, operator or employee commits an offense if the licensee, operator or employee appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of the sexually oriented cabaret business premises which can be viewed from the public right-of-way.
(F)
A person commits an offense if the person employs at a sexually oriented cabaret any person under the age of eighteen (18) years.
(G)
An employee of a sexually oriented cabaret must attend training given by the licensee concerning the requirements of this section as they pertain to sexually oriented cabarets, including but not limited to subsections (d)(3), (d)(5), (d)(6), (e)(1), (f)(1)–(4), and (g)(1), before the employee receives any compensation for the person’s services. The licensee shall provide this training to all employees at the beginning of employment before the employee receives any compensation for services; and, at least once a year thereafter. The licensee shall maintain written records of the training provided to each employee pursuant to this subsection. These records shall include a signed and dated statement from each employee verifying the employee’s attendance at and participation in training provided by the licensee identifying the date on which the training was provided and the specific topics discussed.
(H)
A licensee shall designate and appoint one or more individuals to manage, direct, and control the premises and operations of the sexually oriented cabaret. At least one person so appointed shall be on the premises at any time the sexually oriented cabaret is open.
(I)
An operator or a person appointed under subsection (H) above shall at all times have the duty to ensure that each employee in the sexually oriented cabaret has received the training required by subsection (G) above and each employee is instructed to commit no act which would constitute a violation of this section or which would provide grounds, or part of the grounds, for suspension or revocation of a license issued under this section.
(J)
A licensee, operator or employee of a sexually oriented business commits an offense if that person allows any portion, or area in a sexually oriented business to contain sofas, beds, cots, mattresses, mats, chairs, couches or material or device that are utilized by anyone for reclining, lying down or sleeping.
(K)
A licensee, operator or employee of a sexually oriented business commits an offense if that person allows any portion, or area in a sexually oriented business to be utilized by any person as a temporary or permanent habitation.
(L)
A licensee, operator or employee of a sexually oriented business commits an offense if that person allows any room, portion, space, closet, basement, attic or any space whatsoever in the sexually oriented business to be hidden or secreted from any police officer or city official.
(M)
The licensee, operator or employee of a sexually oriented business commits an offense if that person allows or permits any area of a sexually oriented business to have locks or mechanisms that prohibit, upon demand, the immediate entry or access by a police officer.
(2)
Additional regulations for escort agencies.
(A)
A person commits an offense if the person employs at an escort agency any person under the age of eighteen (18) years.
(B)
A person commits an offense if the person acts as an escort or agrees to act as an escort for any person under the age of eighteen (18) years.
(C)
An employee of an escort agency must attend training given by the licensee concerning the requirements of this section as they pertain to escort agencies, including but not limited to subsections (d)(3), (d)(5), (d)(6), (e)(2), (f)(1)–(4), and (g)(1), before the employee receives any compensation for the person’s services. The licensee shall provide this training to all employees at the beginning of employment before the employee receives any compensation for services; and, at least once a year thereafter. The licensee shall maintain written records of the training provided to each employee pursuant to this subsection. These records shall include a signed and dated statement from each employee verifying the employee’s attendance at and participation in training provided by the licensee identifying the date on which the training was provided and the specific topics discussed.
(D)
A licensee shall designate and appoint one or more individuals to manage, direct, and control the premises and operations of the escort agency. At least one person so appointed shall be on the premises at any time the escort agency is open.
(E)
An operator or a person appointed under subsection (D) above shall at all times have the duty to ensure that each employee in the escort agency has received the training required by subsection (C) above and each employee is instructed to commit no act which would constitute a violation of this section or which would provide grounds, or part of the grounds, for suspension or revocation of a license issued under this section.
(3)
Additional regulations for nude model businesses.
(A)
A person commits an offense if the person employs at a nude model business any person under the age of eighteen (18) years.
(B)
A person under the age of eighteen (18) years commits an offense if the person appears in a state of nudity in or on the premises of a nude model business.
(C)
A person commits an offense if the person appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude model business premises which can be viewed from the public right-of-way.
(D)
A person commits an offense if the person places or permits a bed, sofa or mattress in any room on the premises of a nude model business, except that a sofa may be placed in a reception room open to the public and not utilized by any person for reclining.
(E)
A licensee or employee commits an offense if the person permits any customer access to an area of the premises not visible from the manager’s station by direct line of sight or not visible by a walk-through of the premises without entering a private, exclusive, closed, curtained, or otherwise screened area, excluding restrooms. The view required in this subsection shall be by direct line of sight. The view shall be deemed insufficient if clear visibility of such line of sight must be attained by utilizing flashlights or spotlights in addition to overhead house lighting.
(F)
An employee of a nude model business, while appearing in a state of nudity, commits an offense if the employee touches a customer or the clothing of a customer.
(G)
A customer at a nude model business commits an offense if the customer touches an employee or the clothing of an employee while the employee is appearing in a state of nudity.
(I)
An employee of a nude model business commits an offense if that employee allows, asks, directs, or suggests that a customer disrobe to a state of nudity.
(J)
An employee of a nude model business must attend training given by the licensee concerning the requirements of this section as they pertain to nude model businesses, including but not limited to subsections (d)(3), (d)(5), (d)(6), (e)(3), (f)(1)–(4), and (g)(1), before the employee receives any compensation for the person’s services. The licensee shall provide this training to all employees at the beginning of employment before the employee receives any compensation for services; and, at least once a year thereafter. The licensee shall maintain written records of the training provided to each employee pursuant to this subsection, These records shall include a signed and dated statement from each employee verifying the employee’s attendance at and participation in training provided by the licensee identifying the date on which the training was provided and the specific topics discussed.
(K)
A licensee shall designate and appoint one or more individuals to manage, direct, and control the premises and operations of the nude model business. At least one person so appointed shall be on the premises at any time the nude model business is open.
(L)
An operator or a person appointed under subsection (K) above shall at all times have the duty to ensure that each employee in the nude model business has received the training required by subsection (J) above and each employee is instructed to commit no act which would constitute a violation of this section or which would provide grounds, or part of the grounds, for suspension or revocation of a license issued under this section.
(4)
Additional regulations for sexually oriented theaters and sexually oriented motion-picture theaters.
(A)
A person commits an offense if the person employs at a sexually oriented theater or sexually oriented motion-picture theater, any person under the age of (18) or knowingly allows a person under the age of eighteen (18) years to appear in a state of nudity in or on the premises of a sexually oriented theater or sexually oriented motion-picture theater.
(B)
A person under the age of eighteen (18) years commits an offense if the person knowingly appears in a state of nudity in or on the premises of a sexually oriented theater or sexually oriented motion-picture theater.
(C)
Sexually oriented theaters and sexually oriented motion-picture theaters shall also comply with the requirements of subsection (e)(5) of this section.
(D)
An employee of a sexually oriented theater or sexually oriented motion-picture theater must attend training given by the licensee concerning the requirements of this section as they pertain to sexually oriented theaters or sexually oriented motion-picture theaters, including but not limited to subsections (d)(3), (d)(5), (d)(6), (e)(4), (f)(1)–(4), and (g)(1), before the employee receives any compensation for the person’s services. The licensee shall provide this training to all employees at the beginning of employment before the employee receives any compensation for services; and, at least once a year thereafter. The licensee shall maintain written records of the training provided to each employee pursuant to this subsection. These records shall include a signed and dated statement from each employee verifying the employee’s attendance at, and participation in, training provided by the licensee identifying the date on which the training was provided and the specific topics discussed.
(E)
A licensee shall designate and appoint one or more individuals to manage, direct, and control the premises and operations of the sexually oriented theater or sexually oriented motion-picture theater. At least one person so appointed shall be on the premises at any time the sexually oriented theater or sexually oriented motion-picture theater is open.
(F)
An operator or a person appointed under subsection (E) above shall at all times have the duty to ensure that each employee in the sexually oriented theater or sexually oriented motion-picture theater has received the training required by subsection (D) above and each employee is instructed to commit no act which would constitute a violation of this section or which would provide grounds, or part of the grounds, for suspension or revocation of a license issued under this section.
(5)
Regulations pertaining to exhibition of sexually explicit films, photographs, pictures or videos.
(A)
A person who operates or causes to be operated a sexually oriented business, other than a sexually oriented motel, which exhibits on the premises in a viewing room, a film, photograph, picture, videocassette or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
(i)
An application for a sexually oriented business license shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one (1) 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 shall be oriented to the north, or to some designated street or object, and shall be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches (6"). The chief of police may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since the previously submitted diagram was prepared.
(ii)
The application shall be sworn to be true and correct by the applicant.
(iii)
No alteration in the configuration or location of a manager’s station may be made without the prior approval of the chief of police.
(iv)
The licensee commits an offense if the licensee permits a manager’s station to be unattended by an employee at any time a customer is present on, in or about the premises.
(v)
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 customer is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment or any other equipment allowing for the viewing of film, videos, photographs or other video reproduction. If the premises has two (2) or more manager’s stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any customer is permitted access for any purpose from at least one (1) of the manager’s stations. The view required in this subsection must be by direct line of sight from the manager’s station.
(vi)
The licensee commits an offense if the licensee permits a customer access to any area of the premises that is not visible from the manager’s station for any purpose, excluding restrooms.
(vii)
The licensee, operator and any agents and employees present on the premises shall ensure: that the view area specified in subsection (v) of this section remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials at all times that any customer is present on, in or about the premises; and, that no customer is permitted access to any area of the premises which has been designated as an area in which customers will not be permitted in the application filed pursuant to subsection (i) of this section.
(viii)
The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which customers are permitted access at an illumination of not less than five (5.0) footcandles as measured at the floor level.
(ix)
The licensee commits an offense if the licensee permits illumination of any area of the premises to which customers have access to be less than five (5.0) footcandles as measured at the floor level.
(x)
No viewing room or booth of less than 150 square feet of floor space shall be occupied by more than one (1) person at any time.
(xi)
No licensee shall allow openings or holes of any kind to exist between adjacent or adjoining viewing rooms or booths.
(xii)
No person shall make or attempt to make an opening or hole of any kind between adjacent or adjoining viewing rooms or booths.
(xiii)
The licensee shall, during each business day, regularly inspect the walls of all viewing rooms or booths to determine if any openings or holes exist.
(xiv)
In a viewing room or booth of less than 150 square feet of floor space, the walls shall be no more than forty-eight (48) inches tall. At least one wall of any such viewing room or booth shall be visible in a direct unobstructed line of sight from the manager’s station. Each wall or door of any such viewing room or booth shall be constructed of clear transparent glass, plastic or substantially equivalent materials that allow an unobstructed view of the entire interior of the viewing room or booth.
(xv)
Live entertainment is prohibited in any viewing room or booth of less than 500 square feet of floor space, as well as any other room adjacent to or visible from any viewing room or booth.
(xvi)
The licensee or operator commits an offense if the licensee knowingly allows a person to appear in a state of nudity in, on or about the premises of a sexually oriented business, other than a sexually oriented motel, which exhibits on the premises in a viewing room of less than 500 square feet of floor space, a film, photograph, picture, videocassette or other video reproduction which depicts specified sexual activities or specified anatomical areas.
(xvii)
A person commits an offense if the person knowingly appears in a state of nudity in or on the premises of a sexually oriented business, other than a sexually oriented motel, which exhibits on the premises in a viewing room of less than 500 square feet of floor space, a film, photograph, picture, videocassette or other video reproduction which depicts specified sexual activities or specified anatomical areas.
(B)
A person having a duty under subsection (i) through (xviii) of subsection (A) herein commits a misdemeanor if he or she knowingly fails to fulfill that duty.
(C)
An employee of a sexually oriented business that exhibits sexually explicit films, photographs, pictures or videos must attend training given by the licensee concerning the requirements of this section as they pertain to such a business, including but not limited to subsections (d)(3), (d)(5), (d)(6), (e)(4), (e)(5), (f)(1)–(4), and (g)(1), before the employee receives any compensation for the person’s services. The licensee shall provide this training to all employees at the beginning of employment before the employee receives any compensation for services; and, at least once a year thereafter. The licensee shall maintain written records of the training provided to each employee pursuant to this subsection. These records shall include a signed and dated statement from each employee verifying the employee’s attendance at and participation in training provided by the licensee identifying the date on which the training was provided and the specific topics discussed.
(D)
A licensee shall designate and appoint one or more individuals to manage, direct, and control the premises and operations of the sexually oriented business as described in this section. At least one person so appointed shall be on the premises at any time the sexually oriented business as described in this section is open.
(E)
An operator or a person appointed under subsection (D) above shall at all times have the duty to ensure that each employee in the sexually oriented business as described in this section has received the training required by subsection (C) above and each employee is instructed to commit no act which would constitute a violation of this section or which would provide grounds, or part of the grounds, for suspension or revocation of a license issued under this section.
(6)
Additional regulations pertaining to sexually oriented bookstores, sexually oriented novelty stores and sexually oriented video stores.
(A)
A person who operates or causes to be operated a sexually oriented bookstore, sexually oriented novelty store or sexually oriented video store shall comply with the following requirements:
(i)
An application for a sexually oriented business license shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one (1) 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 shall be oriented to the north, or to some designated street or object, and shall be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches (6"). The chief of police may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since the previously submitted diagram was prepared.
(ii)
The application shall be sworn to be true and correct by the applicant.
(iii)
No alteration in the configuration or location of a manager’s station may be made without the prior approval of the chief of police.
(iv)
The licensee commits an offense if the licensee permits a manager’s station to be unattended by an employee at any time a customer is present on, in, or about the premises.
(v)
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 customer is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment or any other equipment allowing for the viewing of film, videos, photographs or other video reproduction. If the premises has two (2) or more manager’s stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any customer is permitted access for any purpose from at least one (1) of the manager’s stations. The view required in this subsection must be by direct line of sight from the manager’s station.
(vi)
The licensee commits an offense if the licensee permits a customer access to any area of the premises that is not visible from the manager’s station for any purpose, excluding restrooms.
(vii)
The owners, operator and any agents and employees present on the premises shall ensure: that the view area specified in subsection (v) of this section remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials at all times that any customer is present on, in or about the premises; and, that no customer is permitted access to any area of the premises which has been designated as an area in which customers will not be permitted in the application filed pursuant to subsection (i) of this section.
(viii)
The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which customers are permitted access at an illumination of not less than twenty (20.0) footcandles as measured at the floor level.
(ix)
The licensee commits an offense if the licensee permits illumination of any area of the premises to which customers have access to be less than twenty (20.0) footcandles as measured at the floor level.
(x)
No viewing room or reading room may be occupied by more than one (1) person at any time.
(xi)
No licensee shall allow openings or holes of any kind to exist between adjacent or adjoining viewing rooms or booths or reading rooms or booths.
(xii)
No person shall make or attempt to make an opening or hole of any kind between adjacent or adjoining viewing rooms or booths or reading rooms or booths.
(xiii)
The licensee shall, during each business day, regularly inspect the walls of all viewing rooms or booths and reading rooms or booths to determine if any openings or holes exist.
(xiv)
The walls of any viewing room or booth and any reading room or booth shall be no more than forty-eight (48) inches tall. At least one wall of any viewing room or booth shall be visible in a direct unobstructed line of sight from the manager’s station. Each wall or door of any viewing room or booth shall be constructed of clear transparent glass, plastic or substantially equivalent materials that allow an unobstructed view of the entire interior of the viewing room or booth.
(xv)
Live entertainment is prohibited in any viewing room or booth and any reading room or booth as well as any other room adjacent to or visible from any reading or viewing room or booth.
(xvi)
The licensee or operator commits an offense if the licensee knowingly allows a person to appear in a state of nudity in, on or about the premises of a sexually oriented bookstore, sexually oriented novelty store or sexually oriented video store that contains a viewing room or reading room of less than 500 square feet of floor space.
(xvii)
A person commits an offense if the person knowingly appears in a state of nudity in, on or about the premises of a sexually oriented bookstore, sexually oriented novelty store or sexually oriented video store that contains a viewing room or reading room of less than 500 square feet of floor space.
(B)
A person having a duty under subsections (i) through (xviii) of subsection (A) herein commits a misdemeanor if he or she knowingly fails to fulfill that duty.
(C)
An employee of a sexually oriented bookstore, sexually oriented novelty store or sexually oriented video store must attend training given by the licensee concerning the requirements of this section as they pertain to such a business, including but not limited to subsections (d)(3), (d)(5), (d)(6), (e)(4), (e)(5), (e)(6), (f)(1)–(4), and (g)(1), before the employee receives any compensation for the person’s services. The licensee shall provide this training to all employees at the beginning of employment before the employee receives any compensation for services; and, at least once a year thereafter. The licensee shall maintain written records of the training provided to each employee pursuant to this subsection. These records shall include a signed and dated statement from each employee verifying the employee’s attendance at and participation in training provided by the licensee identifying the date on which the training was provided and the specific topics discussed.
(D)
A licensee shall designate and appoint one or more individuals to manage, direct, and control the premises and operations of the sexually oriented bookstore, sexually oriented novelty store or sexually oriented video store. At least one person so appointed shall be on the premises at any time the sexually oriented bookstore, sexually oriented novelty store or sexually oriented video store is open.
(E)
An operator or a person appointed under subsection (D) above shall at all times have the duty to ensure that each employee in the sexually oriented bookstore, sexually oriented novelty store or sexually oriented video store has received the training required by subsection (C) above and each employee is instructed to commit no act which would constitute a violation of this section or which would provide grounds, or part of the grounds, for suspension or revocation of a license issued under this section.
(f)
Miscellaneous.
(1)
Hours of operation.
No sexually oriented business, except for a sexually oriented motel, may remain open at any time between the hours of two o’clock (2:00) a.m. and eight o’clock (8:00) a.m. on weekdays and Saturdays, and two o’clock (2:00) a.m. and noon (12:00) p.m. on Sundays.
(2)
Prohibition against children in a sexually oriented business.
A licensee, operator or employee commits an offense if the licensee, operator or employee knowingly allows a person under the age of eighteen (18) years of age on the premises of a sexually oriented business or employs of any person under the age of eighteen (18) to work at the sexually oriented business.
(3)
Additional regulations concerning public nudity.
(A)
A licensee, operator or employee commits an offense if the licensee, operator or employee knowingly allows, in a sexually oriented business, another to appear in a state of nudity, unless the person is an employee who, while in a state of nudity, is on a stage (on which no customer is present) at least eighteen (18) inches above the floor, and is: (1) at least six (6) feet from any customer (hereinafter called “enclosed performance stage”); or (2) physically separated from customers by a wall or partition composed of solid glass or light-transmitting plastic, or substantially equivalent material extending from the floor of the performance stage to at least five (5) feet above the level of the performance stage, but such that there are no openings in the wall or partition that would permit physical contact between customers and such employee (hereinafter called “enclosed performance stage”).
(B)
It is an offense for an employee, while in a state of nudity in a sexually oriented business, to receive directly any pay or gratuity from any patron or customer, or for any patron or customer to pay or give any gratuity directly to any employee, while that employee is in a state of nudity. Such gratuity or pay may be provided to such employee through a tip receptacle, located more than six (6) feet from the nearest point of the performance stage where such employee is in a state of nudity, or may be paid to an employee that is not in a state of nudity, as part of the customer’s bill.
(C)
It is an offense if an employee, while in a state of nudity, touches a customer or the clothing of a customer.
(D)
It is an offense if a customer touches an employee appearing in a state of nudity or clothing of the employee.
(4)
Conspicuous signage and markings required.
(A)
A licensee or operator commits an offense if the licensee or operator fails to display a sign on the interior of the sexually oriented business notifying customers and employees of the prohibition prescribed by subsections (f)(3)(A), (B), (C) and (D), above. The sign must be prominently and continuously displayed where customers enter the premises, and must also be immediately adjacent to each stage required by subsection (f)(3)(A). The signs will bear the following words written in letters at least two inches high:
TOUCHING OR TIPPING AN EMPLOYEE WHO IS IN A STATE OF NUDITY IS A CRIME (MISDEMEANOR), PUNISHABLE BY FINE UP TO $2,000.00. PATRONS SHALL REMAIN AT LEAST SIX FEET FROM ALL UNENCLOSED PERFORMANCE STAGES.
The chief of police may require, at the time of issuance or renewal of the license, the licensee to also display the sign in a language other than English if he determines that a substantial portion of the expected customers speak the other language as their familiar language. Upon notification, a licensee commits an offense if the sign does not contain the English words required in the above section as well as the same words written in the other language required by the chief of police.
(B)
A licensee or operator commits an offense if the licensee, operator or employee fails to prominently and continuously display a two inches [inch] wide glow-in-the-dark line on the floor of the sexually oriented business marking a distance of six feet from each unenclosed stage on which an employee, in a state of nudity, may appear in accordance with subsection (f)(3)(A)[.]
(g)
Enforcement.
(1)
Violation a misdemeanor.
Any person, firm, corporation, agent or employee thereof who violates any of the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof shall be fined an amount not to exceed $2,000.00 for each offense. Each day that a violation is permitted to exist shall constitute a separate offense.
(2)
Notice of violation.
The city shall send to a sexually oriented business written notice of each citation issued to an operator or employee of the business for an alleged violation of subsections (f)(2), (f)(3), (f)(4) or any provision of subsection (e) of this section. The notice will be sent within three (3) business days of the issuance of the citation to the operator or employee. The notice will be sent by certified mail, return receipt requested, to the business address of the sexually oriented business as it appears on its license application, to the attention of the licensee, as it appears on the license application. A failure of the city to provide such notice is not a violation of this section. It is not a defense to a citation issued to an employee or operator for an alleged violation of subsections (f)(2), (f)(3), (f)(4), or any provision of subsection (e) of this section, that notice of the issuance of that citation was not given to the sexually oriented business in accordance with this section.
(Ordinance 677 adopted 11/5/12)
(a)
License required.
No business, bar, dance hall, or similar establishment may hold musical performances without first obtaining a license from the city. Governmental subdivisions, churches, permanent houses of worship, private residences, and educational facilities shall not be considered establishments and are exempt from the licensing requirements hereunder.
(c)
Licensing procedure.
(1)
The license fee shall be as provided in section A14.02.177 of the fee schedule in appendix A to this code.
(2)
The license and any license renewal shall be obtained at city hall or at the police department and shall be issued by the city manager, the chief of police, or their designate. Establishment licenses shall not become effective until also approved by the city’s code compliance official.
(3)
The license application shall include:
(A)
The name of the establishment.
(B)
The name, address, driver’s license number, and date of birth of the establishment’s owner and any other employee responsible for complying with city ordinances, state law, and any establishment’s noise performance standards.
(C)
The address or addresses where the licensee’s activity will take place.
(D)
The license shall be issued prior to any performance in the establishment.
(4)
Annual license shall be valid for one year, unless revoked earlier as set forth herein.
(5)
Licensees shall keep all information in the license application current and shall notify the city of any change of venue or performance type in said information.
(6)
Licenses are nonassignable.
(d)
Establishment requirements.
(1)
Establishments subject to these special use regulations and in which musicians, bands, disc jockeys, or musical groups will perform music shall, with the aid of the city’s code compliance official, establish sound and decibel guidelines and procedures applicable to musical performances at that location.
(2)
Establishments shall inform musicians, bands, disc jockeys, or musical groups in writing of the establishment’s noise performance standards prior to any performance in the establishment. The musician, band, disc jockey, or musical group shall acknowledge receipt of the establishment’s noise standards prior to any performance. Both the establishment and the musician, band, disc jockey, or musical group shall be responsible for maintaining the sound it creates within the establishment’s approved guidelines. Establishments shall post the performance standards in both English and Spanish in a conspicuous location and in a manner designated by the code compliance official.
(3)
The city’s code compliance official, fire marshal, or police chief, as a condition to any establishment’s license, shall have the authority to require noise abatement measures at the establishment where musical performances are held.
(4)
Noise abatement measures shall be reasonable, shall be directly related to minimizing noise complaints, and not unduly burdensome on the establishment. Noise abatement measures shall include, but not be limited to, insulation, sound barriers, vegetation, performance hours, and location of entrances and exits to an establishment.
(5)
The code compliance official shall have the authority to require noise abatement measures at an establishment if an establishment has been cited for noise violations and/or the city has received noise complaints for noise coming from such establishment.
(7)
“Musical performance” as used herein includes public or private dances, concerts, and practice sessions, any of which includes vocals and/or musical instruments, whether such are electronically or physically created.
(8)
A license issued hereunder may be revoked by the city council in the event an establishment and/or the musicians performing in the establishment have been finally convicted for violations of this section for noise coming from the establishment three or more times in any 24-month period. An establishment may not reapply for a license required by this section from the city for one year following any license revocation.
(e)
Penalties.
A violation of any of the provisions of this section shall be unlawful and shall constitute a misdemeanor. Any violation of this section shall be punishable by a fine not to exceed $500.00 per occurrence per day. A day shall be defined as the period of time from 12:00 midnight to 11:59 p.m. In addition to the fine, the city’s code enforcement official or a member of the police department may order the immediate cessation of any performance at an establishment if the establishment is not licensed as required herein.
(Ordinance 716 adopted 3/23/15)
Where any business boundary directly abuts property on which a permanent residence is located, the business shall provide a barrier with a minimum of six feet along the boundary with the permanent residence. “Barrier” shall mean a solid fence or wall.
(1999 Code, sec. 153.067)
(a)
A person commits an offense, if, in a business establishment open to persons under this age of 18 years, he/she displays any graphic or visual representation of material, including but not limited to a book, pamphlet, newspaper, magazine, film, videocassette, or DVD depicting, in a manner calculated to arouse or exploit sexual lust or passion for commercial gain, any of the following:
(1)
Human sexual intercourse, masturbation, or sodomy;
(2)
Fondling or other erotic touching of human genitals, buttocks, or female breasts;
(3)
Less than completely and opaquely covered human genitals, buttocks, or that portion of the female breast below the top of the areola; or
(4)
Human male genitals in a discernibly turgid state, whether covered or uncovered.
(b)
In this section, “display” means to locate an item in such a manner that, without obtaining assistance from an employee of the business establishment:
(c)
In addition to the enforcement remedies set forth herein, the city’s code compliance official shall have the authority to make reasonable rules and conditions for businesses to ensure that sexually explicit materials are not displayed to minors.
(d)
In this section, “person” means an individual, corporation, or association.
(e)
The owner and any person in actual possession of the business establishment at which a violation of this section occurs has a legal duty to prevent a violation of this section and shall be criminally responsible for any such unlawful display. It shall be an affirmative defense to a violation under this section that the person made a reasonable effort to prevent the offense.
(f)
A violation of this section shall be unlawful and shall constitute a misdemeanor. Any violation of this section shall be punishable by a fine not to exceed $1,000.00 per occurrence per day. A day shall be defined as the period of time from 12:00 midnight to 11:59 p.m.
(1999 Code, sec. 153.068)
(a)
Purpose.
The city council finds that properly planned and operated recreational vehicle communities (RV parks):
(1)
Promote the safety and health of the residents of such communities and of other nearby communities, and
(2)
Encourage economic and orderly development of such communities and of other nearby communities. Therefore, it is declared to be the policy of the city to eliminate and prevent health and safety hazards and to promote the economic and orderly development and utilization of land by providing for planned and supervised RV parks, by providing for the standards and regulations necessary to accomplish these purposes and to promote the health, safety, and general welfare of the public.
(b)
Applicability.
This section shall apply to any recreation vehicle park (RV park) to be located within the city limits.
(c) Accessory structure. City. Code compliance inspector. Code compliance official. Controlling interest. Full-time employee. Licensee or agent. Recreational vehicle or RV. Recreational vehicle park or RV park. Recreational vehicle space or RV space.
Definitions.
Any structural addition to the RV, including awnings, cabanas, carports, garages, porches, storage cabinets, storage sheds, and similar appurtenant structures.
The City of Giddings, Texas.
The official of the city or his/her designee charged with the enforcement of the provisions of this section.
The official of the city responsible for the inspection of electrical, mechanical, and plumbing associated with a property.
A person or developer who controls at least fifty-one percent (51%) of ownership.
A person who is responsible for maintenance of the RV park seven (7) days per week.
A person who may or may not own the RV park but is [the] person responsible for the day-to-day operations including records and license of the park.
Any licensed camp trailer, travel trailer, motor home or fifth wheel designed to provide temporary living quarters only, for recreational camping or travel use, constructed with integral wheels to make it mobile and/or towable by motor vehicle.
Any lot, tract, or parcel of land upon which accommodation is provided for two or more recreational vehicles used as living or sleeping quarters by the day, week, or month, whether a charge is or is not made. A recreational vehicle park is a unified development of recreational vehicle spaces provided for recreational vehicle use with or without community facilities and permitted permanent buildings.
That part of a lot or area in an RV park that has been reserved for the placement of one RV.
(d)
License.
(1)
Required.
It shall be unlawful for any person to operate any RV park within the city limits unless he/she holds a valid license issued annually by the city in the name of such person for the specific park. The applicant shall make all applications for the licenses on forms furnished by the city, which shall issue a license upon compliance with the provisions of this article.
(2)
License fee.
The license fee shall be as provided in section B14.02.180 of the fee schedule in appendix B to this code.
(3)
Hearing on denial.
Any person whose application for a license under this section has been denied may request a hearing before the city planning and zoning commission with recommendation forwarded to city council for approval or disapproval.
(4)
Application for renewal.
Application for renewal of an RV park license shall be made in writing by the licensee on forms furnished by the city on or before December 31st of each year. Such application shall contain any changes in the information occurring after the original license was issued or the latest renewal granted. The renewal license fee shall be as provided in section B14.02.180 of the fee schedule in appendix B to this code.
(5)
Approval of transfer.
Every person holding a license shall give notice in writing to the city within ten (10) days after having sold, transferred, given away, or otherwise disposed of interest in or control of any RV park. Application for transfer of a license shall be made within ten (10) calendar days after notification of change covered in this subsection. Within thirty (30) calendar days thereafter, the city shall act on the application for license transfer and it shall be approved if the RV park is in compliance with the provisions of this section.
(6)
Transfer fee.
The license transfer fee shall be as provided in section B14.02.180 of the fee schedule in appendix B to this code.
(7)
Suspension.
(A)
Whenever, upon inspection of any RV park, the city finds that conditions or practices exist which are in violation of any provisions of this article applicable to such park, the city shall give notice in writing to the owner and/or manager of the park, and if such conditions or practices have not been corrected in the time frame set forth in the notice, the city will suspend the license and give notice of such suspension. Upon suspension of the license, the licensee shall cease operation of such park.
(B)
The suspension of the license may be appealed to the city council as set forth in subsection (f)(1)(F)(ii) (notices, hearings, and orders).
(e)
Inspections.
(1)
Authorized.
The code compliance office[r] is hereby authorized to make such inspections as are necessary to determine compliance with this section.
(2)
Entry on premises.
The code compliance office[r] shall have the power to enter at reasonable times upon any private or public property within the purpose of inspecting and investigating conditions relating to the enforcement of this section.
(f)
Notices, hearings, and orders.
(1)
Notice of violation.
Whenever it is determined that there are grounds to believe that there has been a violation of any provision of this article, the city shall give notice of such alleged violation to the licensee or agent, as hereinafter provided. Such notice shall:
(A)
Be in writing.
(B)
Include a statement of the reasons for its issuance.
(C)
Allow ten (10) days for compliance.
(D)
Be served upon the license or his agent; provided that such notice or order shall be deemed to have been properly served upon such licensee or agent when a copy thereof has been served in person or sent by certified mail to his/her last known address.
(E)
Contain an outline of remedial action that, if taken, will effect compliance with the provisions of this section.
(F)
After all procedures outlined above are exhausted citations may be issued. If the city mails a notice to a property owner in accordance with subsection (f); and
(i)
The United States postal service returns the notice as “refused” or “unclaimed,” the validity of the notice is not affected, and the notice is considered as delivered.
(ii)
Appeal from notice.
Any person affected by any notice that has been issued in connection with the enforcement of any provision of this section applicable to such park may request a hearing before the city council provided that such person shall file within ten (10) days after the day the notice was served, in the city secretary’s office, with a copy to the office of the code compliance official, a written petition requesting such hearing and setting forth a brief statement of the grounds thereof. The filing request for a hearing shall operate as a stay of the notice and of the suspension, except in the case of an order issued under subsection (iv) of this section.
(iii)
Issuance of order.
After such hearing the city council shall issue an order in writing sustaining, modifying, or withdrawing the notice of violation, which order shall be served by certified mail upon the petitioner. Any failure to comply with an order sustaining or modifying the finding of a violation shall constitute grounds for immediate revocation of the license of the park affected by the order.
(iv)
Order without notice.
Whenever the city finds that an emergency exists which requires immediate action to protect the public health or safety, the designated official may, without notice or hearing, issue an order reciting the existence of such an emergency and requiring the action to be taken as deemed necessary to meet the emergency. Notwithstanding any other provisions of this section, such order shall be effective immediately, but upon written petition to the city shall be afforded a hearing as soon as possible. The provisions of subsection (iii) of this section shall be applicable to such hearing and the order issued thereafter.
(g)
Violations declared nuisance; abatement; penalty.
Any noncompliance with this article is hereby deemed a nuisance. The city may abate and remove the nuisance and punish the person(s) responsible for causing or allowing the nuisance condition to exist. Any person(s) violating this section shall be subject to a fine as set forth in the Code of Ordinance chapter one, general provisions, section 1.01.009, general penalty for violations of code and continuing violations. The code compliance official shall be the authority of the jurisdiction responsible for the issuance of citations and any action deemed necessary for the enforcement of this section.
(h)
Site development plan.
Each site development plan must be prepared and submitted to city staff, planning and zoning commission, and city council for approval. The site development plan must include the requirements for site plans contained herein. The planning and zoning commission shall have the power and it shall be its duty to recommend for adoption the RV park site development plan to the city council as a whole or in parts, for the future development and redevelopment of the municipality in accordance with chapter 211 of the Texas Local Government Code, as amended. The commission shall perform such other duties as may be prescribed by ordinance or state law. A nonrefundable fee will be required with submittal of the site development plan. The fee shall be as provided in section B14.02.180 of the fee schedule in appendix B to this code. The fee covers the administrative cost for design review, notification of residents within 200 feet of the proposed RV park, and for providing advertising/legal notice to the public. The fee will also cover any zone change requests required as part of site development. Note: The planning and zoning commission serves in an advisory capacity to the city council. Approval or denial of the RV park site development plan rests solely with the city council.
(i)
Location and fencing.
(1)
From the date of adoption of this section, new RV parks shall be located only in those zoning districts in which RV parks are a permitted use pursuant to the city zoning ordinance (agriculture (AR), general commercial (GC)) and follow the city conditional use process.
(2)
In addition, RV spaces shall not be located any closer than thirty-five (35) feet from any single-family residential (R-1) zoning district, and twenty-five (25) from and [any] multifamily (R-2, R-3) zoning district. RV spaces shall not be placed any closer than twenty-five (25) feet from any general commercial (GC) zoning district and agriculture residential (AR) zoning district.
(3)
A privacy fence at least six (6) feet in height must be placed on the property line adjoining any residence (R-1, R-2, and R-3) residences to buffer the RV park from view.
(j)
Size and density.
Each RV park must have a minimum size of three (3) acres. The maximum site density for RV parks shall be no more than twenty (20) spaces per acre. Only one RV is permitted per each RV space.
(k)
Size of individual RV spaces; pad requirements; landscaping.
(1)
Each RV space within the RV park shall have a minimum area of two thousand one hundred seventy-six (2,176) square feet and shall be at least thirty-four (34) feet wide and sixty-four (64) feet in depth. The interior pad spaces shall be designed as pull-through for ease of entering and leaving the site. The exterior pad spaces can be designed as back-in spaces. A roadway is therefore required to the front and rear for the pull-through spaces. In addition, the space shall be clearly marked identifying the space number.
(2)
(A)
The left side (10' x 64') of the RV space or driver’s side must be planted with grass and other landscaping.
(B)
The middle (12' x 64') must utilize a material that is hard-surface[,] dust-free. The middle portion is to be used for the parking of the RV.
(C)
The right side (12' x 64') or passenger side must utilize a material that is hard-surface[,] dust-free or crushed rock or planted with grass. This area on the right may be used as vehicular parking or patio area.
(l)
Street access; street lighting.
(1)
Each RV space within the RV park shall have access to an internal private roadway, which shall have access to a public street. The entrance of the internal roadway shall have a pavement width of at least twenty-eight (28') feet with an adequate curb radius. The major thoroughfare shall have a pavement width (concrete or asphalt) of twenty-eight (28) feet in accordance with city standards. The roadway may be fifteen (15) feet if the RV park is designed for one-way roads. Each emergency access lane shall have a clear unobstructed width of twenty-eight (28') feet; fifteen (15') feet if one-way and shall have a turning area and radii with a minimum of fifty (50') feet to permit free movement of emergency vehicles. Dead-end streets are not allowed.
(2)
Metal signs shall be placed along the emergency access lane, by the owner or agent of the RV park stating that parking is prohibited. The sign type, size, height and location shall be approved by the city.
(3)
Adequate street lighting for the RV park shall be approved by the city.
(m)
Required facilities.
All facilities that are constructed within the RV park used by residents must be well lit inside and out during the night hours. All facilities must meet applicable codes adopted by the city to include compliance with the Texas Accessibility Standards (TAS).
(n)
Soil and ground cover.
Exposed ground surfaces used for any roadway in all parts of the RV parks shall be covered with a hard-surface[,] dust-free material to eliminate dust. All roadways shall be kept in good repair.
(o)
Area designated for RV parks.
The area designated for the placement of recreational vehicle parks within the city limits shall be established per zoning requirements.
(p)
Drainage.
The ground surface in all parts of the RV park shall be graded and designed to drain all stormwater, surface water in a safe, efficient manner. Drainage analysis shall be performed by a licensed professional engineer and easements for the conveyance of surface water off-site shall be obtained, if necessary.
(q)
Water supply.
Each site within an RV park shall be provided with a connection to the city water supply if available. If city water supply is not available. The water distribution system shall be installed as follows:
(1)
The water supply system, fixtures and other equipment must be installed in accordance with applicable codes adopted by the city.
(2)
A master water meter shall be installed to serve the RV park. Sub-metering or re-metering of RV sites is not permitted.
(3)
A reduced pressure principal backflow preventer (RPZ) will be required to be placed at the property line on the discharge side of the master meter. In addition, there will be an atmospheric vacuum breaker installed on all hose bibs.
(4)
Water riser service branch lines shall extend at least four (4) to six (6) inches above ground elevation. The branch line shall be at least 3/4 inch.
(5)
Adequate provisions shall be made to prevent freezing of service lines, valves and riser pipes. Surface drainage shall be diverted from the location of utility connections at each site.
(6)
A ball valve shut-off valve below the frost line shall be provided near each water riser pipe.
(7)
The owner/operator shall have complete maintenance responsibility for the water system within the RV park.
(8)
The city has no maintenance responsibility for service lines within the RV park. The responsibility of the city stops at the property line.
(r)
Wastewater facilities.
(1)
Each site within the RV park shall be provided with a connection for wastewater if available. If city wastewater is not available then a permit from the Texas Commission on Environmental Quality (TCEQ) shall be obtained prior to placement of an on-site sewage facility. All proposed wastewater service lines shall be connected to the city wastewater system if available.
(2)
On-site sewage facilities are permitted if city utilities are not available. The city must approve all proposed wastewater facility plans prior to construction. The wastewater distribution system shall be installed as follows:
(A)
The wastewater system and materials must be installed in accordance with applicable codes adopted by the city.
(i)
Each site shall be provided with a four-inch diameter wastewater riser and shall extend above grade four (4) to six (6) inches. The wastewater riser pipe shall be so located on each stand so that the wastewater connection to the RV drain outlet will approximate a vertical position. Each inlet shall be provided with a gastight seal when connected to a recreational vehicle or have a gastight seal plug when not in service. The plug shall be that of a spring loaded device.
(ii)
The wastewater connection to each site shall consist of a single four-inch service line without any branch lines, fittings, or connections. All joints shall be watertight.
(iii)
Surface drainage shall be diverted away from the riser. The rim of the riser pipe shall extend at least four (4) to six (6) inches above the ground elevation.
(iv)
Each collection wastewater line shall provide a vent extending a minimum of ten (10) feet in height.
(v)
The owner/operator shall have complete maintenance responsibility for the wastewater system within the RV park. The responsibility of the city stops at the property line.
(vi)
All chemicals entering the city sewer shall be biodegradable.
(s)
Electrical service.
Each site within the RV park shall be provided with electrical service. All electrical service shall be underground and installed in accordance with the current National Electrical Code adopted by the city. The electrical service shall be installed as follows:
(1)
All electrical conductors shall be install[ed] as per the current electrical code adopted be [by] the city, and with any adopted amendments.
(2)
A master electric meter shall be installed to serve the RV park. Sub-metering or re-metering of RV sites is not permitted.
(3)
The city has no maintenance responsibility for service lines within the RV park. The responsibility of the city stops at the property line.
(4)
The location of all underground lines shall be clearly marked by surface signs at approved intervals.
(5)
Power supply to each site shall be a minimum of one 20-amp receptacle, one 30-amp receptacle, and one 50-amp power supply.
(6)
Outlets (receptacles or pressure connectors) shall be housed in an Underwriters’ Laboratories, Inc., approved weatherproof outlet box.
(7)
A watertight seal shall be provided for underground conduit in floodplain installations and a riser extending a minimum of two (2) feet above the floodplain elevation shall be provided.
(t)
Sanitary facilities.
(1)
If the RV park provides sanitary facilities, the following requirements apply:
(A)
One (1) toilet or stool for the female sex for every twenty (20) spaces or fraction thereof (minimum of one (1) is required) for the first one hundred and twenty (120) sites, and one (1) per forty (40) sites thereafter.
(B)
One (1) toilet or stool and one (1) urinal stall for the male sex for every twenty (20) spaces or fraction thereof (minimum of one (1) is required) for the first one hundred and twenty (120) spaces, and one (1) per forty (40) spaces thereafter.
(C)
One (1) wash basin shall be provided within the toilet room for every two (2) toilets or fraction thereof (a minimum of one (1) is required).
(D)
One (1) shower shall be provided for each sex for each twenty (20) spaces or fraction thereof (minimum of one is required for each sex) for the first one hundred and twenty (120) spaces, and one (1) per forty (40) spaces thereafter.
(E)
All toilets and shower facilities shall be placed in properly constructed buildings and located not more than two hundred (200) feet from any RV space.
(F)
Buildings shall be welt [well] lit at all times, day or night, well ventilated with screened openings, and constructed of moisture-proof material to permit rapid and satisfactory cleaning, scouring and washing.
(G)
The floors shall be of concrete or other impervious material, elevated not less than four (4) inches above grade, and each room shall be provided with floor drains.
(H)
A slop sink or basin with water supply shall be in each restroom (male and female) and at least one (1) in the laundry facility, and shall be constructed in accordance with design, size and materials approved by the code official.
(I)
Toilet and bathing facilities shall be in separate rooms or partitioned apart in any manner as to provide privacy and promote cleanliness. Each toilet provided in a community toilet house shall be partitioned apart from any other toilet in the same room. The floor surface around the commode shall not drain into the shower floor.
(J)
Toilet floors and walls shall be of impervious material, painted white or a light color, and kept clean at all times. Shower stalls shall be of tile, plaster, cement or some other impervious material and shall be kept clean at all times. If a shower stall is of some impervious material other than tile, cement or plaster, it shall be white or some light color and kept clean at all times. The floor of any bathroom, other than the shower stall, shall be of some impervious material, and the walls of the bathroom, other than the shower stall, shall be papered with canvas and wallpaper, or an equivalent washable surface kept clean at all times.
(u)
Storage, collection, and disposal of refuse and garbage.
Each RV park shall be provided with safe and adequate facilities for the collection and removal of waste and garbage. Storage, collection, and handling shall be conducted so as to create no health hazards, rodent harborage, insect breeding areas, or fire hazards. Every space shall be located within two hundred (200) feet of a refuse facility measured along the RV park internal roadway. Trash dumpsters shall be screened on three (3) sides.
(v)
Accessory structures.
The individual spaces within the RV park are not allowed to have accessory structures as defined herein.
(w)
Registration of guests.
Each person renting a space within a RV park shall provide the following information to the owner, manager, operator or person in charge of the RV park:
(x)
Control of insects, rodents and other pests.
(1)
Grounds, buildings and structures in the RV park shall be maintained free of the accumulation of high grass and weeds and debris so as to prevent rodent and snake harborage or the breeding of flies, mosquitoes or other pests.
(2)
The RV park owner or manager shall be responsible for maintaining the entire area of the park free of dry brush, leaves, limbs and weeds.
(z)
Permanent occupancy prohibited.
No RV park or recreational vehicle therein shall be used as a permanent residence for any period of time, notwithstanding subsection (o) (area designated for RV parks), except for permanent full-time employees of the RV park. No more than one (1) space shall be allowed for use as a permanent residence for full time employees. Occupancy or parking of an RV within the RV park extending beyond six (6) consecutive months in any twelve (12) month period shall be presumed permanent occupancy and is hereby prohibited. An RV may not return for a period of sixty (60) days following six (6) months consecutively.
Note. The city reserves the right to modify or change subsection (z) of this section for the purpose of a natural disaster or related incidents including the requirement of removal of all RV’s that may be subject to dangerous or inclement weather. However, the final decision for the removal of all RV’s, as defined herein, shall be at the sole discretion of the owner/operator of the RV park. The city assumes no liability.
(aa)
Existing recreational vehicle parks (RV) parks.
Upon the date of the adoption of this section, existing RV parks located inside the incorporated area of that choose to increase the size (land) or capacity (spaces) of an existing RV park, shall be required to follow the specifications of this section.
(bb)
Existing manufactured mobile home parks.
(1)
Existing manufactured home parks that have spaces for RV’s existing prior to the adoption of this section shall be permitted to occupy any space with an RV. However, in no instance shall a new manufactured home park that is to be located within the city limits be allowed any RV’s or RV spaces.
(2)
Same shall apply to an RV to be located within the city limits. Only RV’s shall be allowed in an RV park. No manufactured mobile home shall be permitted in a RV park.
(cc)
Effective date.
This section shall be in full force and effect from and after the date of its passage.
(dd)
Minor deviations.
With the approval of the conditional use permit, the planning and zoning commission, in its recommendation to the city council, and the city council in its approval of said permit, may approve certain minor deviations from this section. Deviations from setbacks, fence heights, and size and density of RV spaces may not be changed by more than 10% without obtaining an approved variance pursuant to the requirements set out in the city code.
(Ordinance 833 adopted 10/30/17)