Division 2 Licenses

Any person 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 diagram of the premises showing a plan of the premises, specifying the location of all overhead lighting fixtures, designating any portion of the premises in which customers will not be permitted, and specifying the location of all manager’s stations, if applicable. The diagram shall designate the place at which the license will be conspicuously displayed, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to 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 (6) inches;

Contain all information required pursuant to section 4.07.033 and be supported by any necessary documentation;

Include a current list of all employees or prospective employees, along with copies of complete updated employment application, valid driver’s license, state identification card, or passport containing a photograph of the employee;

Contain any other information requested by the chief of police in order to assist the chief in deciding whether to grant the license; and

Be sworn to be true and correct by the applicant.

If a person who wishes to operate a sexually oriented business is an individual, he 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 (20) percent or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under section 4.07.033 and each applicant shall be considered a licensee if a license is granted.

All applications for a license under this article shall be accompanied by a nonrefundable application fee of five hundred dollars ($500.00). An application shall not be considered to have been filed until the fee is paid and all information required by the application form has been submitted.

(Ordinance 472-2009, sec. 8, adopted 2/26/09)

§ 4.07.033 Issuance.

The chief of police shall approve the issuance of a license to an applicant within thirty (30) days after filing of an application unless the chief of police finds one (1) or more of the following to be true:

The location of the sexually oriented business is or will be in violation of section 4.07.061 and no exemption has been granted under section 4.07.062.

The applicant failed to supply all of the information requested on the application.

The applicant gave false, fraudulent, or untruthful information on the application.

An applicant is under eighteen (18) years of age.

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 in relation to a sexually oriented business.

(6)

An applicant or an applicant’s spouse has been convicted of a violation of a provision of this article, other than the offense of operating a sexually oriented business without a license, within two (2) years immediately preceding the application. The fact that a conviction is being appealed shall have no effect on the denial of a license.

(7)

The application or renewal fee required by this article has not been paid.

(8)

The applicant has not demonstrated that the owner of the sexually oriented business owns or holds a lease for the property or the applicable portion thereof within which the sexually oriented business will be situated or has a legally enforceable right to acquire the same.

(9)

An applicant or the proposed establishment is in violation of or is not in compliance with section 4.07.003 or 4.07.039.

(10)

An applicant or an applicant’s spouse has been convicted of a crime:

(A)

Involving:

(i)

Any of the following offenses as described in V.T.C.A., Penal Code ch. 43:

Prostitution;

Promotion of prostitution;

Aggravated promotion of prostitution;

Compelling prostitution;

Obscenity;

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

Sexual performance by a child;

Possession of child pornography;

(ii)

Any of the following offenses as described in V.T.C.A., Penal Code ch. 21:

Public lewdness;

Indecent exposure;

Indecency with a child;

(iii)

Sexual assault or aggravated sexual assault as described in V.T.C.A., Penal Code ch. 22;

(iv)

Incest (prohibited sexual conduct), enticing a child, or harboring a runaway child as described in V.T.C.A., Penal Code, ch. 25;

(v)

Possession or distribution of a controlled substance; or

(vi)

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

(B)

For which:

(i)

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

(ii)

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

(iii)

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 two-year period.

(11)

For an existing business, the business is in violation of any other applicable requirement of this article.

The fact that a conviction of the applicant or applicant’s spouse is being appealed shall have no effect on the disqualification.

§ 4.07.034 Nonconforming sexually oriented business.

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 may be easily read at any time.

(Ordinance 472-2009, sec. 9, adopted 2/26/09)

Notwithstanding anything contained in this article to the contrary, the chief of police shall issue a nonconforming sexually oriented business license to a nonconforming sexually oriented business under section 4.07.064 if the chief of police finds:

A proper application for a license has been made in accordance with this article;

The applicant would qualify for a license under the provisions of section 4.07.033(a)(2) through (11);

The sexually oriented business is a nonconforming use under the provisions of section 4.07.064;

The building in which the applicant proposes to locate the sexually oriented business is not a dangerous or substandard building pursuant to applicable ordinances of the city; and

The sexually oriented business complies with all other requirements of this article.

A nonconforming sexually oriented business license issued under this section shall be subject to expiration, suspension, revocation, appeal, transfer and all other requirements of this article that are applicable to sexually oriented business licenses.

The issuance of a nonconforming sexually oriented business license shall not be deemed to make the sexually oriented business a legal use or to grant any other rights or waivers other than to allow the nonconforming sexually oriented business to operate in compliance with section 4.07.031(a).

(Ordinance 472-2009, sec. 10, adopted 2/26/09)

§ 4.07.035 Expiration of license.

Each license shall expire one (1) year from the date of issuance.

A license may be renewed by submission to the chief of police of an application on the form prescribed by the chief of police and payment of a nonrefundable renewal processing fee of five hundred dollars ($500.00).

Application for renewal shall be made at least thirty (30) days before the expiration date of the license. If application is made less than thirty (30) days before the expiration date and the new license is granted after the expiration of the previous license, the new license shall still expire in one (1) year from the previous expiration date.

(Ordinance 472-2009, sec. 12, adopted 2/26/09)

§ 4.07.036 Suspension.

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

Has violated or is not in compliance with section 4.07.003;

Is in a state of public intoxication while on the sexually oriented business premises;

Knowingly permits gambling by any person on the sexually oriented business premises; or

Is delinquent in payment to the city for taxes, fees, fines, or penalties assessed against or imposed on the licensee or the licensee’s employee or spouse in relation to a sexually oriented business.

When the chief of police is authorized to suspend a license under this section, he shall give the licensee the opportunity to pay a reinstatement fee of two hundred dollars ($200.00) rather than have the license suspended. In addition to and included as a part of the reinstatement fee, a licensee whose license is suspended for a violation of subsection (a)(4) must pay all delinquent taxes, fees, fines, or penalties before the license will be reinstated.

Payment of this reinstatement fee shall be considered an administrative admission of the violation. However, this shall not be used as an admission of guilt in a criminal prosecution under this article.

If the licensee does not pay the reinstatement fee before the expiration of the third working day after notification, he loses the opportunity to pay it and the chief of police shall impose the suspension.

Each day in which a violation is permitted to continue shall constitute a separate cause for suspension.

(Ordinance 472-2009, sec. 13, adopted 2/26/09)

§ 4.07.037 Revocation.

The chief of police shall revoke a license if a cause of suspension in section 4.07.036 occurs and the license has been suspended or a reinstatement fee paid within the preceding twelve (12) months.

The chief of police shall revoke a license if he determines that:

One (1) or more statements contained in section 4.07.033(a) is true;

The licensee violated or is not in compliance with section 4.07.039 or 4.07.061;

The licensee or an employee of the licensee knowingly allowed possession, use, or sale of a controlled substance on the sexually oriented business premises;

The licensee or an employee of the licensee knowingly allowed prostitution on the sexually oriented business premises;

The licensee or an employee of the licensee knowingly operated the sexually oriented business during a period of time when the licensee’s license was suspended;

(6)

On two (2) or more occasions within a twelve-month period, an employee of the licensee committed in or on the sexually oriented business premises an offense listed in section 4.07.033(a)(10) for which a conviction or a deferred adjudication or other form of probation has been obtained; or

(7)

The licensee or an employee of the licensee knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in or on the sexually oriented business premises. The term “sexual contact” shall have the same meaning as it is defined in V.T.C.A., Penal Code section 21.01.

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

(d)

Subsection (b)(7) above, does not apply to adult motels as a ground for revoking the license unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in a public place or within public view.

(e)

When the chief of police revokes a license, the revocation shall continue for one (1) year and the licensee shall not be issued a sexually oriented business license for one (1) year from the date revocation became effective. If, subsequent to revocation, the chief of police finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license was revoked under subsection (b)(1) above, for an offense listed in section 4.07.033(a)(10) for which the time period required has not elapsed, an applicant may not be granted another license until the appropriate number of years required under section 4.07.033(a)(10) has elapsed.

(Ordinance 472-2009, sec. 14, adopted 2/26/09)

§ 4.07.038 Appeal.

If the chief of police is authorized to deny the issuance of a license, or suspend or revoke a license as provided in this article, the chief of police shall give written notice to the applicant or licensee of such intention and the basis for the denial, suspension, or revocation.

The notice of intent shall provide that the denial of issuance, or the suspension or revocation shall be effective at the expiration of the third working day after the chief of police gave the notification, unless the applicant or licensee provides a written response to the chief of police before the expiration of the third working day.

If the chief of police receives a timely written response from the applicant or licensee, the denial of issuance, or the suspension or revocation will be stayed pending a final decision by the chief of police.

The chief of police may request from the applicant or licensee any additional information necessary to finally decide whether to deny, suspend, or revoke a license.

After reviewing the written response from and any additional information submitted by the applicant or licensee, the chief of police shall render a final written decision. The chief of police shall deliver this final decision to the applicant or licensee by hand delivery or by certified mail, return receipt requested, to the address provided on the application.

(d)

The final decision by the chief of police shall be final and effective immediately.

(e)

Upon receipt of written notice of denial, suspension, or revocation, the applicant or licensee shall have the right to appeal to district court. If the chief of police denies, suspends, or revokes the license because the location of the sexually oriented business is or would be in violation of the locational requirements of section 4.07.061, the applicant may request an exemption from the location appeal board pursuant to section 4.07.062.

(f)

The appeal to district court must be filed within thirty (30) days after:

The applicant or licensee receives notice of the chief of police’s decision; or

The location appeal board denies the exemption.

(g)

The licensee or applicant shall bear the burden of proof in court.

(Ordinance 472-2009, sec. 15, adopted 2/26/09)

§ 4.07.039 Transfer.

A person commits an offense if he transfers his license to another person or operates a sexually oriented business under the authority of a license at any place other than the address designated in the application.