(a)
It
is the purpose of this article, in conformity with chapter 243 of
the Local Government Code of Texas, 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 article 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 article 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. The promotion
of obscene material (not protected by the First Amendment) is enforceable
through separate criminal sanctions under the Penal Code.
(b)
It
is the intent of the city council that the location regulations of
this article are promulgated pursuant to 243.001 et seq. Local Government
Code, as they apply to sexually oriented businesses.
(Ordinance 2004-009, ex. A, sec.
I, adopted 3/31/04)
In this article:
Any place 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, or other image-producing
devices are maintained to show images to five 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 which as one of its principal
business purposes 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, motion pictures, video cassettes, compact discs, or video reproductions,
slides, or other visual representations which depict or describe specified
sexual activities or specified anatomical areas;
Instruments, devices, or paraphernalia which are designed for
use in connection with specified sexual activities; or
Software programs which depict or describe specified sexual
activities or specified anatomical areas.
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A commercial establishment may have other principal business
purposes that do not involve the offering for sale or rental of material
depicting or describing specified sexual activities or specified anatomical
areas and still be categorized as an adult bookstore or adult video
store. Such other business purposes will not serve to exempt such
commercial establishments from being categorized as an adult bookstore
or adult video store so long as one of its principal business purposes
is the offering for sale or rental for consideration the specified
materials that depict or describe specified sexual activities or specified
anatomical areas. A principal business purpose need not be a primary
use of an establishment so long as it is a significant use based upon
the visible inventory or commercial activity of the establishment.
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A nightclub, bar, restaurant, or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity or semi-nudity;
Live performances which are characterized by the exposure of
specified anatomical areas or by specified sexual activities;
Films, motion pictures, video cassettes, slides, or other photographic
reproductions which are characterized by the depiction or description
of specified sexual activities or specified anatomical areas; or
Persons who engage in erotic dancing or performances that are
intended for the sexual interests or titillation of an audience or
customers.
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, film,
motion pictures, video cassettes, compact discs, slides, or other
photographic reproductions which are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas;
Offers a sleeping room for rent for a period of time that is
less than 15 hours; or
Allows a tenant or occupant of a sleeping room to subrent the
room for a period of time that is less than 15 hours.
A commercial establishment where for any form of consideration,
films, motion pictures, video cassettes, compact discs, slides, or
similar photographic reproductions are regularly shown and are characterized
by the depiction or description of specified sexual activities or
specified anatomical areas.
A theater, concert hall, auditorium, or similar commercial
establishment which regularly features persons who appear in a state
of nudity or live performances which are characterized by the exposure
of a specified anatomical area or by specified sexual activities.
A person who must apply for a license by this article.
A building used as a day nursery, children’s boarding
home, child placing agency, or other place for the care or custody
of children under fifteen years of age.
A building in which persons regularly assemble for worship,
intended primarily for purposes connected with faith, or for propagating
a particular form of belief.
The county health director or his designated agent.
A house, duplex, apartment, townhouse, condominium, mobile
home, or any other building used for residential purposes, whether
single-family, or multifamily, attached or detached, and regardless
of whether tenant or owner occupied.
A building providing for needs of elderly, whether residential
or any other building used for residential purposes, whether single-family
or multifamily, attached or detached, and regardless of whether tenant
or owner occupied.
A person who performs any service on the premises of a sexually
oriented business on a full-time, part-time, contract basis, or independent
basis, whether or not the person is denominated an employee, independent
contractor, agent, or otherwise, and whether or not said person is
paid a salary, wage, or other compensations by the operator of said
business. Employee does not include a person exclusively on the premises
for repair or maintenance of the premises or equipment on the premises,
or for delivery of goods to the premises, nor does employee include
a person exclusively on the premises as a patron or customer.
A person who, for consideration, agrees or offers to act
as a companion, guide, or date for another person or who agrees or
offers to privately model lingerie or to privately perform a striptease
for another person.
A business association which furnishes, offers to furnish,
or advertises to furnish escorts as one of its primary business purposes,
for a fee, tip, or other consideration.
Includes any of the following:
The opening or commencement of any sexually oriented business
as a new business;
The conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business;
The addition of any sexually oriented business to any other
existing sexually oriented business;
The relocation of any sexually oriented business; or
A location and place of business.
A place of public entertainment directed to families, including,
but not limited to, younger children.
Any person who owns or leases real property within one thousand
five hundred (1,500) feet of a sexually oriented business, any official
who is elected by residents of the city, but specifically excepting
the applicant and the following officials elected in the county: all
magistrates, the sheriff, the district attorney, and the county attorney.
A building used to provide health services for human inpatient
or outpatient medical care for the sick or injured, licensed pursuant
to the Texas Hospital Licensing Law, Vernon’s Texas Codes Annotated
Health and Safety Code chapter 241, or operated by an agency of the
federal government, or a convalescent facility licensed pursuant to
Vernon’s Texas Codes Annotated Health and Safety Code chapter
242.
A person in whose name a license to operate a sexually oriented
business has been issued, as well as the individual listed as an applicant
on the application for a license or a person licensed under this article.
Any place where a portion of the body of a person is massaged
by any portion of the body of another, when either person is in a
state of nudity or semi-nudity, and where such service is performed
for any form of consideration. This shall not include a facility licensed
under V.T.C.A., Occupations Code, chapter 455, so long as the facility
is operating within the prescribed rules of that statute.
Any place where a person who appears in a state of nudity
or displays specified anatomical areas is provided to be observed,
sketched, drawn, painted, sculpted, photographed, or similarly depicted
by other persons who pay money or any form of consideration.
The appearance of human bare buttocks, anus, male genitals,
female genitals, pubic region, or female breasts below a horizontal
line across the top of the areola at its highest point; or
A state of dress which fails to opaquely cover a human buttock,
anus, male genitals, female genitals, pubic region, or the female
breast below a horizontal line across the top of the areola at its
highest point.
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
The real property upon which the sexually oriented business
is located, and all appurtenances thereto and buildings thereon, including,
but not limited to, the sexually oriented business, the grounds, private
walkways, and parking lots and/or parking garages adjacent thereto,
under the ownership, control, or supervision of the licensee, as described
in the application for an owner/operator permit as provided herein.
25% or more of the gross floor area is devoted to sale, display,
or inventory of items which depict or describe specified sexual activities
or specified anatomical areas or which are designed for use in connection
with specified sexual activities; or
25% or more of the gross receipts is derived from the sale or
rental of items which depict or describe specified sexual activities
or specified anatomical areas or which are designed for use in connection
with specified sexual activities.
A building used by a federal, state, county, or local governmental
agency and open to the general public.
A tract of land maintained by the federal, state, county,
or local government for the recreation and enjoyment of the general
public.
A single-family, duplex, townhouse, multiple-family, or mobile
home district.
A single-family, duplex, multiple-family, or mobile home
park, mobile home subdivision, and campground used as a residence.
A building where persons regularly assemble for the purpose
of instruction or education together with the playgrounds, dormitories,
stadium, and other structures or grounds used in conjunction therewith.
A state of dress in which clothing covers no more than the
genitals, pubic region, and areola and/or the lower portion of the
female breast, as well as portions of the body covered by supporting
straps or devices.
A business or commercial enterprise that, as one of its primary
business purposes, offers for any form of consideration:
A sex parlor, nude studio, nude modeling studio, love parlor,
adult bookstore, adult movie theater, adult video arcade, adult movie
arcade, adult video store, adult cabaret, escort agency, sexual encounter
center, massage parlor, sexually oriented dance hall, topless bar,
or other topless establishments, adult motel, or other commercial
enterprise, the primary business of which is the offering of a service
or the selling, renting, or exhibiting of devices or any other items
intended to provide sexual stimulation or sexual gratification to
the customer whether conducted within a building, a temporary enclosure,
or out of doors.
Any place:
Where dancing is permitted one (1) day a week or more by a person
in a state of nudity, seminudity, or simulated nudity; or
That is advertised either on or off the premises as topless,
a gentleman’s club, a bar, a saloon, adult entertainment, X-rated,
or by any other term calculated to attract patrons with nudity, seminudity,
or simulated nudity.
The sheriff of the county or his designated agent.
A state of dress in which any device or covering exposes
to view or is worn that simulates any part of the genitals, buttocks,
pubic region, or areola of the female breast.
Any of the following offenses:
Any of the following offenses as described in chapter 43 of
the Texas Penal Code:
Prostitution;
Promotion of prostitution;
Aggravated promotion of prostitution;
Compelling prostitution;
Obscene display or distribution;
Obscenity;
Sale; distribution; or display of harmful material to minor;
Sexual performance by a child;
Employment harmful to a child;
Possession of child pornography;
Promotion of child pornography;
Sexual assault or aggravated sexual assault as described in
chapter 22 of the Texas Penal Code;
Gambling, gambling promotion, keeping a gambling place, communicating
gambling information, possession of gambling devices or equipment,
or possession of gambling paraphernalia as described in chapter 47
of the Texas Penal Code;
Forgery, credit card abuse or commercial bribery as described
in chapter 32 of the Texas Penal Code;
A criminal offense as describe in chapter 481, subchapter D
of the Health and Safety Code, Texas Controlled Substance Act;
A criminal offense as described in chapter 34 of the Texas Penal
Code as money laundering;
A criminal attempt, conspiracy, or solicitation to commit any
of the foregoing offenses;
Any similar sex-related offenses to those described above under
the criminal or penal code of this state, other states, or other countries.
The fact that a conviction is being appealed shall have no
effect on the disqualification of the applicant or a person residing
with the applicant.
Includes any of the following:
The increase in floor area occupied by the business by 50
square feet or 10 percent of the floor space, whichever is less, as
the floor area exists on April 7, 1998.
Includes any of the following:
The sale, lease, or sublease of the business;
The transfer of securities which constitute an 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 the law upon the death
of the person possessing the ownership or control.
(Ordinance 2004-009, ex. A, sec.
II, adopted 3/31/04)
Sexually oriented businesses are classified as follows:
(1)
Adult
arcades;
(2)
Adult
bookstores or adult video stores;
(3)
Adult
cabarets;
(4)
Adult
motels;
(5)
Adult
motion picture theaters;
(6)
Adult
theaters;
(7)
Escort
agencies;
(8)
Nude
model studios;
(9)
Sexual
encounter centers;
(10)
Sexually oriented dance halls;
(11)
Massage parlors.
(Ordinance 2004-009, ex. A, sec.
III, adopted 3/31/04)
(a)
An
applicant or licensee shall permit representatives of the state department
of public safety, state alcohol and beverage commission, county sheriffs
department, county health department, or their designees to inspect
the premises of a sexually oriented business for the purpose of ensuring
compliance with the law at any time it is occupied or open for business.
(b)
A
person who operates a sexually oriented business or his or her agent
or employee commits an offense if he or she refuses to permit a lawful
inspection of the premises by a representative of the county sheriffs
department or any law enforcement agency operating within the state,
the county, health department, or the city fire department operating
in the area where the business is located at any time it is occupied
or open for business.
(c)
The
provisions of this section do not apply to areas of an adult motel
which are currently being rented by a customer for use as a permanent
or temporary habitation.
(Ordinance 2004-009, ex. A, sec.
XI, adopted 3/31/04)
(a)
A
person commits an offense if he or she operates or causes to be operated
a sexually oriented business within 1,500 feet of:
(1)
A church or place of religious worship.
(2)
A public or private elementary or secondary school.
(3)
A child care facility.
(4)
A boundary or residential district as defined in this article.
(5)
A public park.
(6)
A cemetery.
(7)
The property line of a lot devoted to a residential use as defined
in this article.
(8)
A hospital.
(9)
A public building.
(10)
An elder care facility.
(11)
A mental health facility.
(12)
A counseling or treatment facility for alcohol or drug use.
(13)
A building where alcoholic beverages are sold.
(14)
A shopping mall.
(15)
A general retail shopping center.
(16)
A public roadway.
(b)
A
person commits an offense if he or she operates or causes to be operated
a sexually oriented business within one (1) mile of:
(c)
A
person commits an offense if he or she causes or permits the operation,
establishment, substantial enlargement, or transfer of ownership or
control of a sexually oriented business within one (1) mile of another
sexually oriented business.
(d)
A
person commits an offense if he or she causes or permits the operation,
establishment, or maintenance of more than one sexually oriented business
in the same building, structure, or portion thereof, or the increase
of floor area of any sexually oriented business in any building, structure,
or portion thereof, containing another sexually oriented business.
(e)
For the purposes of subsection (a) of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted to the nearest property line of the premises of a use described in subsection (a) above.
(f)
For the purposes of subsection (b) of this section, the distance between any two 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.
(g)
Any sexually oriented business lawfully operating that is in violation of subsections (a), (b), or (c) of this section shall be deemed a nonconforming use. Such use will be permitted to continue for a period not to exceed one year unless sooner terminated for any such reason or voluntarily discontinued for a period of 30 days or more. Such nonconforming uses shall not be increased, enlarged, extended, or altered except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within one (1) mile of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later-established business is nonconforming.
(h)
A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business license, of a use listed in subsections (a) or (b) within the distances listed of the sexually oriented business. This provision applies only to the renewal of a valid license and does not apply when an application for a license is submitted after a license has expired or has been revoked.
(i)
All
distance restrictions apply to an identified purpose whether or not
the building or appurtenance used for an identified purpose is located
within the unincorporated area of the city.
(j)
All
locational requirements of this section must be approved by the director
within sixty (60) days from the time the application is filed.
(Ordinance 2004-009, ex. A, sec.
XVII, adopted 3/31/04)
(a)
It
shall be unlawful for an owner or operator of a sexually oriented
business to allow:
(1)
The merchandise or activities of the establishment to be visible
from any point outside the establishment.
(2)
The exterior portion of the sexually oriented business to have flashing
lights or any words, lettering, photographs, silhouettes, drawings,
or pictorial representations of any manner except to the extent permitted
by the provisions of this article.
(3)
Exterior portions of the establishment to be painted any other than
a single achromatic color. This provision shall not apply to a sexually
oriented business if the following conditions are met:
(A)
The establishment is a part of a commercial multi-unit center; and
(B)
The exterior portions of each individual unit in the commercial multi-unit
center, including the exterior portions of the sexually oriented business,
are painted the same color as one another or are painted in such a
way as to be a component of the overall architectural style or pattern
of the commercial multi-unit center.
(b)
Daily,
between sundown and thirty (30) minutes after sunrise, the entire
parking area and all exterior portions of the building shall have
exterior security lighting fixtures which shall be cut-off type fixtures
providing not less than two candlefoot power, nor more than three
candlefoot power average over the entire area.
(c)
Nothing
in this section shall be construed to require the painting of an otherwise
unpainted exterior portion of a sexually oriented business.
(d)
A
violation of any provision of this section shall constitute a class
A misdemeanor.
(Ordinance 2004-009, ex. A, sec.
XVIII, adopted 3/31/04)
(a)
Notwithstanding
any provision of any other order, ordinance, or regulation to the
contrary, the owner or operator of any sexually oriented business,
or any other person, commits an offense if he or she erects, constructs,
leases, or maintains any sign for the establishment other than one
primary sign and one secondary sign as provided herein.
(b)
A
person commits an offense if that person allows on-premises advertisements,
displays, or other promotional materials for a sexually oriented business
which are distinguished or characterized by an emphasis on matter
depicting, describing, or relating to specified sexual activities
or specified anatomical areas to be shown or exhibited so as to be
visible to the public from public places located outside the business
premises.
(c)
In this section, premises or on premises means all of a tract of commercial property in which a sexually oriented business is located in addition to the area encompassed in the definition of premises contained in section 5.03.002 of this article.
(e)
A
secondary sign may have only one display surface. The display surface
must:
(g)
A primary sign for an adult motion picture theater may contain the phrase, movie titles posted on premises, in addition to the phrases listed in subsection (f)(2) of this section.
(h)
Each
letter forming a word on a primary or secondary sign must be of a
solid color, and each letter must be the same print-type, size, and
color. The background behind the lettering on the display surface
of a primary or secondary sign must be of a uniform and solid color.
(i)
Notwithstanding
the sign requirements of this section, any sign lawfully existing
on the premises of a lawfully operating sexually oriented business
on the date this article is enacted may continue to be maintained
on the premises until:
(1)
The sign is intentionally removed or destroyed by the owner or operator
of the sexually oriented business or abandoned by the owner or operator
of the sexually oriented business; or
(2)
The city, county, state, or any other jurisdiction with the authority
to do so, requires removal, relocation, or reconstruction of the sign
in accordance with applicable state law.
(Ordinance 2004-009, ex. A, sec.
XIX, adopted 3/31/04)
(a)
An
escort agency shall not employ any person under the age of eighteen
(18) years.
(b)
A
person commits an offense if he or she acts as an escort or agrees
to act as an escort for any person under the age of eighteen (18)
years.
(Ordinance 2004-009, ex. A, sec.
XX, adopted 3/31/04)
(a)
It
shall be a misdemeanor for a person who, with knowledge and intent,
appears in person in a state of nudity in a sexually oriented business
or depicts specified sexual activities in a sexually oriented business.
(b)
It
shall be a misdemeanor for a person who, with knowledge and intent,
appears in person in a seminude condition in a sexually oriented business
unless the person is an employee who, while seminude, is at least
ten (10) feet from any patron or customer and on a stage at least
two (2) feet higher than the floor.
(c)
It
shall be a misdemeanor for an employee, while seminude in a sexually
oriented business, to solicit any pay or gratuity from any patron
or customer or for any patron or customer to pay or give any gratuity
to any employee while said employee is seminude in the sexually oriented
business.
(d)
It
shall be a misdemeanor for an employee, while seminude, to touch a
patron or the clothing of a patron or for a patron to touch a seminude
employee or the clothing of a seminude employee.
(Ordinance 2004-009, ex. A, sec.
XXI, adopted 3/31/04)
(a)
Evidence
that a sleeping room in a hotel, motel, or similar commercial establishment
has been rented and vacated two or more times in a period of time
that is less than fifteen (15) hours is a rebuttable presumption that
the establishment is an adult motel and as such, is subject to all
restrictions and regulations provided in this article.
(b)
A
person commits an offense if, as the person in control of a sleeping
room in a hotel, motel, or similar commercial establishment that does
not have a sexually oriented business license, he rents or subrents
a sleeping room to a person and, within fifteen (15) hours from the
time the room is rented, he rents or subrents the same sleeping room
again.
(Ordinance 2004-009, ex. A, sec.
XXII, adopted 3/31/04)
(a)
A
person commits an offense if he or she knowingly allows a person under
the age of eighteen (18) years to appear in a state of nudity in or
on the premises of an adult theater or adult motion picture theater.
(b)
A
person under the age of eighteen (18) years commits an offense if
he or she knowingly appears in a state of nudity in or on the premises
of an adult theater or an adult motion picture theater.
(Ordinance 2004-009, ex. A, sec.
XXIII, adopted 3/31/04)
(a)
A
person who operates or causes to be operated a sexually oriented business,
other than an adult motel, which exhibits on the premises in a viewing
room of less than one hundred fifty (150) square feet of floor space,
a film, video cassette, or other video reproduction which depicts
specified sexual activities or specified anatomical areas shall comply
with the following requirements:
(1)
Each 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 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 must be drawn to scale
no smaller than one-fourth (1/4) inch equals one foot, be oriented
to the north or to some designated street or object, and be drawn
to a designated scale or with marked dimensions of all areas of the
interior of the premises to an accuracy of plus or minus six (6) inches.
The director may waive the foregoing diagram requirements for renewal
applications if the applicant adopts a diagram that was previously
submitted and certified that the configuration of the premises has
not been altered since it was prepared.
(2)
The application shall be sworn to be true and correct by the applicant.
(3)
No alteration in the configuration or location of a manager’s
station may be made without the prior approval of the sheriff or his
designee.
(4)
It is the duty of the owner and operator of the premises to ensure
that at least one employee is on duty and situated in each manager’s
station at all times that any patron is present inside the premises.
(5)
The interior of the premises shall be configured in such a manner
that there is an unobstructed view from a manager’s station
of every area of the premises to which any patron is permitted access
for any purpose excluding restrooms. Restrooms may not contain video
reproduction equipment. If the premises has two 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 patron is permitted access for any purpose
from at least one of the manager’s stations. The view required
in this subsection must be by direct line of sight from the manager’s
station. Viewing booths must be separated at least twelve (12) inches
from the exterior walls of any other viewing booths by open space.
(6)
It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present on the premises, to ensure that the area specified in subsection (5) remains unobstructed by any room, wall(s), curtains, merchandise, display racks, or other materials at all times that any patron is present on the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection (1) of this subsection.
(7)
No viewing room may be occupied by more than one person at any time.
(8)
The premises shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place to which patrons are
permitted access at any illumination of not less than five (5) footcandles
as measured at the floor level.
(9)
It shall be the duty of the owners and operator and it shall also
be the duty of any agents and employees present on the premises to
ensure that the illumination described above is maintained at all
times that any patron is present on the premises.
(10)
No licensee shall allow an opening of any kind to exist between viewing
rooms or booths.
(11)
No person shall make any attempt to make an opening of any kind between
viewing booths or rooms.
(12)
The operator of the sexually oriented business shall, no fewer than two (2) times during each business day, inspect the walls between the viewing booths to determine if any opening or holes exist. The operator shall cause a record to be made of each such inspection and shall maintain such record for a period of one (1) year for each inspection. Such record shall be subject to presentation to an individual performing their duty pursuant to section 5.03.004 above.
(13)
The operator of the sexually oriented business shall cause all floor
coverings in viewing booths to be nonporous, easily cleanable surfaces,
with no rugs or carpeting.
(14)
The operator of the sexually oriented business shall cause all wall
surfaces and ceiling surfaces in viewing booths to be constructed
of or permanently covered by nonporous, easily cleanable materials.
No wood, plywood, composition board, or other porous materials shall
be used within forty-eight (48) inches of the floor.
(b)
A person having a duty under subsection (a) above commits an offense if he or she knowingly fails to fulfill that duty.
(c)
All
locational requirements of this section must be approved by the director
within sixty (60) days from the time the application is filed.
(Ordinance 2004-009, ex. A, sec.
XXIV, adopted 3/31/04)
(a)
A
nude model studio shall not allow on the premises nor employ any person
under the age of eighteen (18) years.
(b)
A
person under the age of eighteen (18) years commits an offense if
that person enters the premises of a sexually oriented business, and
a separate offense if that person appears in a state of nudity in
or on the premises of a nude model studio.
(c)
A
person commits an offense if he appears in a state of nudity or knowingly
allows another to appear in a state of nudity in an area of a nude
model studio premises which can be viewed from the public right-of-way.
(d)
A
nude model studio shall not place or permit a bed, sofa, or mattress
in any room on the premises, except that a sofa may be placed in a
reception room open to the public.
(Ordinance 2004-009, ex. A, sec.
XXV, adopted 3/31/04)
(a)
No
person under the age of eighteen (18) years may enter a sexually oriented
dance hall.
(b)
A
person commits an offense if he or she falsely represents himself
or herself to be a person eighteen (18) years of age or older for
the purpose of gaining admittance into a sexually oriented dance hall.
(c)
A
licensee or employee of a sexually oriented dance hall commits an
offense if he or she knowingly allows a person under the age of eighteen
(18) years to enter or remain on the premises of the sexually oriented
dance hall.
(d)
A
licensee of a sexually oriented dance hall commits an offense if he
or she maintains the premises without posting a sign at each entrance
to the sexually oriented dance hall that reads: It is unlawful for
any person under 18 years of age to enter this location.
(Ordinance 2004-009, ex. A, sec.
XXVI, adopted 3/31/04)
(a)
It
is a defense to prosecution under this article that a person appearing
in a state of nudity did so in a modeling class operated:
(1)
By a proprietary school licensed by the state, a college, or a university
supported entirely or partly by taxation;
(2)
By a private college or university which maintains and operates educational
programs in which credits are transferable to a college, junior college,
or university supported entirely or partly by taxation; or
(3)
In a structure:
(A)
Which has no sign visible from the exterior of the structure and
no other advertising that indicates a nude person is available for
viewing; and
(B)
Where, in order to participate in a class, a student must enroll
at least ten days in advance of the start of that class; and
(C)
Where no more than one nude model is on the premises at any one time.
(Ordinance 2004-009, ex. A, sec.
XXVII, adopted 3/31/04)
(a)
A
person commits an offense if, in a sexually oriented business establishment
open to persons under the age of eighteen (18) years, he displays
a book, pamphlet, newspaper, magazine, film, or video cassette, the
cover of which depicts, in a manner calculated to arouse sexual lust
or passion for commercial gain or to exploit sexual lust or perversion
for commercial gain, any of the following:
(1)
Human sexual intercourse, masturbation, or sodomy;
(2)
Fondling or other erotic touching of human genitals, pubic region,
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:
(Ordinance 2004-009, ex. A, sec.
XXVIII, adopted 3/31/04)
(a)
The
sale, use, or consumption of alcoholic beverages on the premises of
a sexually oriented business is prohibited.
(b)
Any
violation of this section shall constitute a class A misdemeanor and
shall subject the business to immediate closure.
(Ordinance 2004-009, ex. A, sec.
XXIX, adopted 3/31/04)
(a)
It
shall be unlawful to allow a person who is younger than eighteen (18)
years of age to be on the premises of a sexually oriented business
at any time the sexually oriented business is open for business.
(b)
It
shall be the duty of the operator of each sexually oriented business
to ensure that an attendant is stationed at each public entrance to
the sexually oriented business at all times during such sexually oriented
business’s regular business hours. It shall be the duty of the
attendant to check the identification of each person seeking entry
into the premises who is under the age of twenty-seven (27) years
old and to prohibit any person under the age of eighteen (18) years
from entering the sexually oriented business. It shall be presumed
that an attendant knew a person was under the age of eighteen (18)
years unless such attendant asked for and was furnished:
(1)
A valid operator’s, commercial operator’s, or chauffeur’s
driver’s license reflecting that such person is eighteen (18)
years of age or older; or
(2)
A valid personal identification certificate issued by the state,
or the United States federal government, reflecting that such person
is eighteen (18) years of age or older.
(c)
Violation
of this section shall constitute a class A misdemeanor. Two violations
of this section within a twelve-month period will cause an immediate
suspension of license and closure of the establishment.
(Ordinance 2004-009, ex. A, sec.
XXX, adopted 3/31/04)
No sexually oriented business except for an adult motel may
remain open at any time between the hours of one o’clock (1:00)
a.m. and twelve o’clock (12:00) p.m. on Sundays.
(Ordinance 2004-009, ex. A, sec.
XXXI, adopted 3/31/04)
(a)
Any
notice required or permitted to be given by the director or any other
city office, division, department, or other agency under this article
to any applicant, operator, or owner of a sexually oriented business
may be given either by personal delivery or by certified United States
mail, postage prepaid, return receipt requested, addressed to the
most recent address as specified in the application for the license,
or any notice of address change that has been received by the director.
Notices mailed as above shall be deemed given upon their deposit in
the United States mail. In the event that any notice given by mail
is returned by the postal service, the director or his designee shall
cause it to be posted at the principal entrance to the establishment.
(b)
Any
notice required or permitted to be given to the director by any person
under this article shall not be deemed given until and unless it is
received in the office of the director.
(c)
It
shall be the duty of each owner who is designated on the license application
and each operator to furnish notice to the director in writing of
any change of residence or mailing address.
(Ordinance 2004-009, ex. A, sec.
XXXII, adopted 3/31/04)
A person who knowingly operates or causes to be operated a sexually
oriented business without a valid business license or in violation
of this article is subject to a suit for injunction as well as criminal
prosecution. Each day and/or each person shall constitute a separate
offense or violation.
(Ordinance 2004-009, ex. A, sec.
XXXIII, adopted 3/31/04)
(a)
As
stated in chapter 243 of the Local Government Code of Texas, the city
may sue in district court for an injunction to prohibit the violation
of a regulation of this article.
(b)
As
stated in chapter 243 of the Local Government Code of Texas, a violation
of any of the provisions of this article is a class A misdemeanor.
(Ordinance 2004-009, ex. A, sec.
XXXIV, adopted 3/31/04)
(a)
The
following are required to be licensed:
(1)
All owners and/or operators, clerks, and employees of a sexually
oriented business are required to be licensed to own, operate, or
work in said business.
(2)
All corporations, stockholders, directors, and officers of any sexually
oriented business and their employees are required to be licensed.
(3)
All partners in any sexually oriented business and their employees
are required to be licensed.
(b)
It
shall be unlawful:
(1)
For any person to operate a sexually oriented business without a
valid sexually oriented business license issued by the director pursuant
to this article.
(2)
For any person who operates a sexually oriented business to employ
a person to work and/or perform services on the premises of the sexually
oriented business if such employee is not in possession of a valid
sexually oriented business employee license issued to such employee
by the director pursuant to this article.
(3)
For any person to obtain employment with a sexually oriented business
if such person is not in possession of a valid sexually oriented business
employee license issued to such person by the director pursuant to
this article.
(4)
For any person to counterfeit, forge, change, deface, or alter a
sexually oriented business license, employee permit, or identification
used in conjunction with this article.
(c)
Applications
for a business license, whether original or renewal, must be made
to the director by the intended operator of the enterprise. Applications
must be completed on the form provided by the director and submitted
to the office of the director or the director’s designee during
regular working hours.
(d)
The
applicant has an affirmative duty to supplement an application with
new information received subsequent to the date the application was
deemed completed.
(Ordinance 2004-009, ex. A, sec.
IV, adopted 3/31/04)
(a)
Permit required.
(1)
It shall be unlawful for any person to open or operate a sexually
oriented business location in the corporate limits of the city, if
such person is not in possession of a valid sexually oriented business
owners/operators permit issued to such person by the director pursuant
to this article.
(2)
No sexually oriented business may be open or in operation in the
corporate limits of the city, without an appropriate owner’s/operator’s
permit issued by the director to said sexually oriented business showing
that the business is currently licensed. Such identification shall
be available at all times for inspection and shall be conspicuously
displayed near the main entrance at all times while the business is
open and/or operating.
(3)
A violation of any provision within this subsection shall constitute
a class A misdemeanor.
(b)
The
following information shall be provided on the application form:
(1)
The name, street address and mailing address, if different, of the
applicants.
(2)
The name of each applicant’s spouse and the names of all persons
with whom each applicant lives.
(3)
Two copies each of recent photographs of each applicant showing full
face and each side face profile.
(4)
A complete set of fingerprints on forms from a local law enforcement
agency.
(5)
A complete and current NCIC and TCIC criminal history of each applicant,
obtained by applicant from the state department of public safety.
Criminal histories must be completed within fifteen days of the date
the application is submitted to the director.
(6)
The applicant’s driver’s license number, Social Security
number, and/or his or her state or federally issued tax identification
number.
(7)
The name under which the establishment is to be operated and a general
description of the services to be provided at the establishment.
(9)
Whether the applicant or any person residing with the applicant,
has ever been convicted or is awaiting trial on pending charges of
a specified criminal activity as defined in this article, and, if
so, the specified criminal activity involved, the date, place, and
jurisdiction of each conviction or pending charge.
(10)
Whether the applicant, or a person residing with the applicant has
had a previous license under this article or other similar sexually
oriented business ordinance from another city, county, or jurisdiction,
denied, suspended, or revoked, including the name and location of
the sexually oriented business for which the business license was
denied, suspended, or revoked, as well as the date of the denial,
suspension, or revocation, and whether the applicant or a person residing
with the applicant is or has been a partner in a partnership or an
officer, director, or principal stockholder of a corporation that
is or was licensed under a sexually oriented business ordinance whose
business license has previously been denied, suspended, or revoked,
as well as the date of denial, suspension, or revocation.
(11)
Whether the applicant or a person residing with the applicant holds
any other licenses under this article or other similar sexually oriented
business regulation or ordinance from another city, county, or jurisdiction,
and, if so, the names and locations of such other licensed businesses.
(12)
The single classification of license, as found in section 5.03.003, for which the applicant is filing.
(13)
The telephone number of the establishment.
(14)
The address and legal description of the tract of land on which the
establishment is to be located.
(15)
If the establishment is in operation, the date on which the owner(s)
acquired the establishment for which the business license is sought
and the date on which the establishment began operations as a sexually
oriented business at the location for which the business license is
sought.
(16)
If the establishment is not in operation, the expected startup date
(which shall be expressed in number of days from the date of issuance
of the business license). If the expected startup date is to be more
than ten (10) days following the date of issuance of the business
license, then a detailed explanation of the construction, repair,
or remodeling work or other cause of the expected delay and a statement
of the owner’s time schedule and plan for accomplishing said
work.
(17)
If an applicant wishes to operate a sexually oriented business (other than an adult motel) which shall exhibit on the premises in a viewing room or booth of less than one hundred fifty (150) square feet of floor space, films, video cassettes, other video reproductions, or live entertainment which depict specified sexual activities or specified anatomical areas, then the applicant shall comply with the application requirements set forth in section 5.03.012 hereunder.
(c)
Each
application for a business license shall be accompanied by the following:
(1)
Payment of the application fee in full.
(2)
If the establishment is a state corporation, a certified copy of
the articles of incorporation, together with all amendments thereto.
(3)
If the establishment is a foreign corporation, a certified copy of
the certificate of authority to transact business in this state, together
with all amendments thereto.
(4)
If the establishment is a limited partnership formed under the laws
of the state, a certified copy of the certificate of limited partnership,
together with all amendments thereto.
(5)
If the establishment is a foreign limited partnership, a certified
copy of the certificate of limited partnership and the qualification
documents, together with all amendments thereto.
(6)
Proof of the current fee ownership of the tract of land on which
the establishment is to be situated in the form of a copy of the recorded
deed, along with the current address and telephone number of the owner
of the land.
(7)
If the persons identified as the fee owner(s) of the tract of land
are not also the owners of the establishment, then the lease, purchase
contract, purchase option contract, lease option contract, or other
document(s) evidencing the legally enforceable right of the owners
or proposed owners of the establishment to have or obtain the use
and possession of the tract or portion thereof that is to be used
for the establishment for the purpose of the operation of the establishment
together with the correct address and telephone number of each person
with an ownership interest in the property. If the property is owned
by other than a natural person, the complete name, address, and telephone
number of each person with an interest in the owner entity shall be
included in the application.
(8)
A current certificate and straight-line drawing prepared within thirty (30) days prior to application by a registered land surveyor depicting the property lines and the structures containing any existing penal institutions or sexually oriented businesses within one (1) mile of the property to be certified, the property lines of any established use listed in section 5.03.005, within 1,500 feet of the property to be certified. For purposes of this section, a use shall be considered existing or established if it is in existence at the time an application is submitted.
(9)
The application must be accompanied by a sketch or diagram showing
the configuration of the premises, including a statement of total
floor space occupied by the business. The sketch or diagram need not
be professionally prepared but must be drawn to a designated scale
no smaller than 1/4 inch equals one foot and with marked dimensions
of the placement of the building on the tract of land and interior
or the premises to an accuracy of plus or minus six inches. All location
requirements must be approved by the director within sixty (60) days
from the time the application is filed.
(10)
Any of subsections (2) through (8) above shall not be required for a renewal application if they were previously presented and the applicant states that the documents previously furnished the director with the original application or previous renewals thereof remain correct and current. A separate application and business license shall be required for each sexually oriented business classification as set forth in section 5.03.003.
(d)
A separate application and business license shall be required for each sexually oriented business classification as set forth in section 5.03.003.
(e)
Every
application for a license shall contain a statement under oath that:
(f)
The
applicant for a sexually oriented business license must be qualified
according to the provisions of this article.
(g)
If
the applicant who wishes to operate a sexually oriented business is
an individual, that individual must sign the application for a license
as applicant. If the applicant who wishes to operate a sexually oriented
business is other than an individual, each individual who has an interest
in the business must sign and provide all the information required
by the application for a license as an applicant and shall be considered
a licensee if a license is granted.
(h)
The
fact that a person possesses any other valid license required by law
does not exempt him from the requirement of obtaining a sexually oriented
business license. A person who operates a sexually oriented business
and possesses another business license shall comply with the requirements
and provisions of this article as well as the requirements and provisions
of the laws concerning the other license.
(i)
Public notice of pending application.
(1)
Each applicant for a business license shall, upon the filing of the
application and payment of the filing fee, place signs (at least 24
inches by 36 inches in size) which provide notification and information
specifically stating with letters at least three inches wide and six
inches tall “SEXUALLY ORIENTED BUSINESS LICENSE APPLICATION
PENDING.” All lettering on the signs other than the above-described
must be at least one and one-half inches by two inches in size for
each letter on the sign. The signs shall also include the name, city,
and state of residence of each applicant and the date on which the
application was filed. The signs must be of sufficient quantities
to be placed upon the property so as to identify it as being subject
to a proposed sexually oriented license. It shall be the duty of each
applicant as to each particular application to erect said signs along
all the property’s public road or highway frontage so as to
be clearly visible from the public road or highway. If a property
does not have a public road or highway frontage, then signs shall
be placed upon the property visible to the public. One sign shall
be erected on each lot corner so as to identify the boundaries of
the property in addition to one sign for each three hundred-foot increment
of each public road or highway frontage on said property existing
or any part thereof. Said signs shall be erected not less than seven
(7) days after the filing of the application for the sexually oriented
business license and remain erected until the application has been
approved by the director. The signs shall be installed and in place
for a minimum of thirty (30) days before the director may approve
the application.
(2)
Every applicant for a sexually oriented business license shall give
notice of the application by publication at his own expense in two
consecutive issues of a newspaper of general circulation published
no less frequently than weekly in the county. The notice shall be
printed in 10-point boldface type and shall include: (A) the fact
that a sexually oriented business license has been applied for; (B)
the exact location of the place of business for which the permit is
sought; (C) the names of each owner of the business, and, if the business
is operated under an assumed name, the trade name together with the
names of all owners; and (D) if the applicant is a corporation, the
names and titles of all officers, directors, and shareholders of 10%
or more of the corporation. Such notice shall be printed not less
than seven (7) days after the application is filed with the director.
A tear sheet showing the name of the paper, date of issue, and the
page and placement of the ad shall be given to the director prior
to approval of the application.
(3)
Once application is filed, written notice of the application for
a sexually oriented business license shall be sent to all owners of
real property lying within one thousand five hundred (1,500) feet
of each property line of the tract of land on which the license is
requested. Such notice shall be sent not less than fourteen (14) days
after the application is filed with the director and not more than
thirty (30) days prior to approval of said application. The notice
of the application for a sexually oriented business license described
herein shall be given by posting such notice properly addressed and
postage pre-paid to each taxpayer as the ownership appears on the
last approved county tax roll. The notice shall include: (A) the fact
that a sexually oriented business license has been applied for; (B)
the exact location including the street address of the place of business
for which the permit is sought; (C) the names of each owner of the
business and, if the business is operated under an assumed name, the
trade name together with the names of all owners; and (D) if the applicant
is a corporation, the names and titles of all officers, directors,
and shareholders of 10% or more of the corporation. The front page
of each notice letter in 12 point bold print or larger must contain
the following statement:
Each property owner shall have fourteen (14) days from the mailing of the notice to advise the director in writing of a locational restriction under section 5.03.005 of this article.
It is the responsibility of the applicant for a license to send
this notice.
(j)
Prior
to issuance of a license, the premises must be inspected by the health
department, fire department, building department, and zoning department.
(k)
The
applicant has an affirmative duty to supplement an application with
new information received subsequent to the date the application was
deemed completed.
(Ordinance 2004-009, ex. A, sec.
V, adopted 3/31/04)
(a)
When
the director receives a written request for a public hearing concerning
an owner/operator permit application, the director shall forward the
same to a duly appointed city secretary. The city secretary shall
confirm the following: that it is from an interested party, that the
request specifically identifies the owner/operator permit application
at issue, that the request is timely filed, and that the request specifically
identifies health and safety concerns affected by the enterprise.
Upon notification by the city secretary, the director shall then initiate
the public hearing procedure as follows:
(1)
A hearing official, who is appointed by the city council, shall be
contacted by the director and a date shall be set for the public hearing.
(2)
The hearing shall be scheduled at a public building within the corporate
limits of the city.
(3)
The hearing shall be scheduled either on a weekday at 7:00 p.m. or
on a Saturday morning at 9:30 a.m.
(4)
The director shall send the applicant a written notice of hearing
at least ten days in advance, stating the date, time, and place of
hearing, and shall make a copy of the notice of hearing available
to the public. Notices shall also be posted at any and all locations
where agendas for city council meetings are posted.
(5)
Publicizing the hearing shall be the responsibility of the interested
party who requested the hearing. The director shall make available
to the public a copy of any request for hearing and the notice of
hearing.
(6)
The mayor shall request the sheriff or constable to cause a sign
to be posted at the location identified in the application containing
the time and place of the hearing.
(7)
The hearing may be rescheduled by the hearing official for good cause,
including, for example, a large number of requests for a hearing that
indicate strong public interest in the matter. The hearing may be
rescheduled a second time if rescheduling was due to emergency circumstances
such as extreme weather conditions. If a hearing is rescheduled, the
new notice of hearing shall be available to the public at all places
where notices of city council meetings are posted.
(8)
The applicant may request that a court reporter make a record of
the hearing. The applicant must make this request at least two (2)
days prior to the hearing and must bear the cost of making an official
record and one (1) transcript for the city. The hearing official shall
arrange for the court reporter to take the record of the hearing,
including exhibits and testimony. One copy of the transcript shall
be provided to the hearing official to become the property of the
city.
(b)
If a request for a public hearing is received after the owner/operator permit has been issued or renewed, the hearing shall be scheduled when the next renewal application is filed. The director shall confirm that the request identifies health and safety concerns affected by the enterprise that are not addressed in the current owner/operator permit and that the request is filed by an interested party. The request shall then be attached to the owner/operator permit records. When a renewal application is submitted, the director shall initiate the hearing as set out in subsection (a).
(c)
If the request for public hearing has been determined by the director to be deficient, the director shall return it to the person who submitted the request with a notation stating the deficiency. A request that does not comply with the requirements stated in subsection (a) or (b) above shall extend the period of time in which a request for hearing may be filed by seven (7) days from the date notice was sent to the person requesting a public hearing.
(d)
The
hearing shall be conducted by the hearing official under the following
guidelines. The hearing official shall liberally construe these guidelines
to allow the public input to protect the health and safety of a neighborhood
affected by the location of an enterprise and to allow the applicant
to address these concerns:
(1)
Interested parties are entitled to the assistance of counsel, should
they chose to obtain counsel at their own expense.
(2)
Interested parties may expressly waive the right to counsel.
(3)
The hearing official shall, upon prior request, provide for appropriate
facilities for any disabled person to be able to participate in the
hearing, including, but not limited to, interpreters for deaf or hearing
impaired participants, wheelchair access, and special seating arrangements.
(4)
Participants in the proceeding may supply interpreters for language
translation and the hearing official shall accommodate the translation
proceeding.
(5)
The hearing official may exclude evidence that is irrelevant, immaterial,
or unduly repetitious. Relevance and materiality shall be evaluated
by the relation of the evidence to health and safety concerns directly
related to the owner/operator permit at issue, and conditions which
may be attached to the owner/operator permit to address those concerns.
The hearing is not limited to the health and safety concerns specifically
identified in the hearing request.
(6)
If no request is made by the applicant for an official record, any
person may record, videotape, or transcribe the hearing provided there
is not interference with the proceedings. The hearing official shall
have the power to limit any interference with the proceeding. One
copy of the tape and transcript of the proceeding, if made, shall
be promptly delivered to the director.
(e)
The
hearing official may continue the hearing to a date not later than
ten (10) days after the initial hearing if:
(1)
The hearing has lasted at least two and one-half (2-1/2) hours and
it appears to the hearing official that a significant amount of time
is still required to fully present the public concerns and potential
solutions to those concerns.
(2)
Issues have been raised at the hearing requiring additional research
in order to develop appropriate conditions to be attached to the owner/operator
permit or that the parties need additional time to develop a solution
to issues identified at the hearing.
(3)
A continuance shall not be for the purpose of delay or for developing
new evidence, except as provided above.
(f)
After
the conclusion of the public hearing, the hearing official shall produce
a written statement containing the official’s findings of public
health and safety concerns and recommendations shall be forwarded
to the director, the applicant, and the interested party who requested
the hearing. The director will forward the application and hearing
official’s report to the mayor. When the hearing official determines
that public health and safety concerns exist, the mayor shall attach
conditions as part of the owner/operator permit. If no official record
of the hearing has been requested, the hearing official’s statement
shall be the official record of the public hearing. The hearing official
may consult with the city attorney for the purpose of developing appropriate
conditions to address the health and safety concerns shown at the
hearing. These recommendations will then be forwarded to the mayor
for final disposition.
(g)
If
evidence is produced at the hearing that would support denial of the
owner/operator permit, the hearing official shall provide that information
to the city attorney, who shall investigate whether any new evidence
warrants a recommendation to the mayor for denial or revocation of
the owner/operator permit under these regulations.
(Ordinance 2004-009, ex. A, sec.
VI, adopted 3/31/04)
(a)
Required; display; defenses; penalties.
(1)
It shall be unlawful for any person to obtain employment with a sexually
oriented business location in the corporate limits of the city, if
such person is not in possession of a valid sexually oriented business
employee license issued to such person by the director pursuant to
this article. [It shall be unlawful] for any person to work for any
sexually oriented business without having on his or her person at
all times while at work at a sexually oriented business location in
the corporate limits of the city, an appropriate identification card
issued by the city showing that he or she is currently licensed and
shall contain the name of the person to whom license is granted, the
expiration date, the address of the sexually oriented business, and
a current photo of the licensee. Such identification shall be available
at all times for inspection and shall be worn on the left breast of
said employee during working periods.
(2)
It shall be a defense to subsection (1) of this subsection if the employment is of a limited duration and for the sole purpose of repair and/or maintenance of machinery, equipment, or the premises.
(3)
Violation of any provision within this section shall constitute a
class A misdemeanor.
(b)
All potential employees and/or clerks of sexually oriented businesses must comply with this section and not be in violation of sections 5.03.052 and 5.03.055 before being issued an identification card to work at the business. Application forms will be provided by the director and the determination of compliance must be made by him within sixty (60) days from the time each application is filed.
(c)
The
applicant for a sexually oriented business license must be qualified
according to the provisions of this article each year. Each subsequent
license application must be issued prior to expiration of the current
license.
(d)
Applications
for an employee license to work and/or perform services in a sexually
oriented business, whether original or renewal, must be on forms provided
by the director and presented to the director by the person to whom
the employee license shall issue.
(e)
Each
application for an employee license shall be accompanied by payment
of the application fee in full.
(f)
Application
forms shall be supplied by the director.
(g)
Applications
must be submitted to the office of the director or the director’s
designee during regular working hours.
(h)
Each
applicant shall be required to give the following information on the
application form:
(1)
The applicant’s given name, and any other names by which the
applicant is or has ever been known, including stage names and/or
aliases.
(2)
The applicant’s age, date, and place of birth.
(3)
The applicant’s height, weight, hair color, and eye color.
(4)
The applicant’s present residence address and telephone number.
(5)
The name of the applicant’s spouse and/or each person with
whom the applicant resides.
(6)
The applicant’s present business address and telephone number.
(7)
The date, issuing state, and number of the applicant’s photo
driver’s license or other state-issued identification card information.
(8)
The applicant’s Social Security number.
(9)
Proof that the applicant is at least eighteen (18) years old.
(i)
Attached
to the application form for a license shall be the following:
(1)
Color photographs of the applicant clearly showing the applicant’s
face and profile view of both sides of the face.
(2)
The applicant’s full set of fingerprints on a form provided
by a local law enforcement agency.
(3)
Current and complete NCIC and TCIC criminal history of the applicant
obtained from the state department of public safety completed within
15 days of the date the application is filed with the director.
(4)
Current and complete NCIC and TCIC criminal history of spouse and/or
each person with whom applicant resides obtained from the state department
of public safety completed within 15 days of the date the application
is filed with the director.
(5)
A statement detailing the license history of the applicant for the
five (5) years immediately preceding the date of the filing of the
application, including whether such applicant, in this or any other
city, county, state, or country, has ever had any license, permit,
or authorization to do business denied, revoked, or suspended or had
any professional or vocational license or permit denied, revoked,
or suspended. In the event of any such denial, revocation, or suspension,
applicant must furnish a detailed statement including the name(s)
under which the license was sought and/or issued, the name(s) of the
issuing or denying jurisdiction, and the full reason for the denial,
revocation, or suspension. A copy of any order of denial, revocation,
or suspension shall be attached to the application.
(j)
Every
application for a license shall contain a statement under oath that:
(k)
Whether the applicant, applicant’s spouse, or a person residing with the applicant has ever been convicted or is awaiting trial on pending charges of a specified criminal activity as defined in section 5.03.002, and if so, the specified criminal activity involved, the date, place, and jurisdiction of each.
(l)
Whether
the applicant or a person residing with the applicant has had a previous
license under this article or other similar sexually oriented business
ordinance from another city, county, or jurisdiction denied, suspended,
or revoked, including the name and location of the sexually oriented
business for which the business license was denied, suspended, or
revoked, as well as the date of the denial, suspension, or revocation,
and whether the applicant or a person residing with the applicant
is or has been a partner in a partnership or an officer, director,
or principal stockholder of a corporation that is or was licensed
under a sexually oriented business ordinance whose business license
has previously been denied, suspended, or revoked, including the name
and location of the sexually oriented business for which the business
license was denied, suspended, or revoked as well as the date of denial,
suspension, or revocation.
(m)
Whether the applicant or a person residing with the applicant holds any other licenses under this article or other similar sexually oriented business ordinance from another city, county, or jurisdiction, and, if so, the names and locations of such other licensed businesses. The single classification of license, as found in section 5.03.003, for which the applicant is filing.
(n)
The
telephone number of the establishment.
(o)
The
address where the establishment is located.
(p)
A separate application and business license shall be required for each sexually oriented business where the person seeks employment, and for each classification as set forth in section 5.03.003.
(q)
The
fact that a person possesses any other valid license required by law
does not exempt him or her from the requirement of obtaining a sexually
oriented business license. A person who operates a sexually oriented
business and possesses another business license shall comply with
the requirements and provisions of this article as well as the requirements
and provisions of the laws concerning the other license.
(r)
The
applicant has an affirmative duty to supplement an application with
new information received subsequent to the date the application was
deemed completed.
(s)
All
fees and costs for the photographs, fingerprints, and other items
required by the application shall be paid by the applicant.
(Ordinance 2004-009, ex. A, sec.
VII, adopted 3/31/04)
The application approval process shall not be commenced until
the completed application and all required exhibits and fees are received
by the director.
(1)
A sexually oriented business license shall issue for only one classification as set out in section 5.03.003.
(2)
The
director shall approve the issuance of the annual license to an applicant
within sixty (60) days after receipt of a complete application and
all required exhibits unless he finds one or more of the following
to be true:
(A)
An employee applicant is under eighteen (18) years of age.
(B)
An owner and/or operator applicant is under twenty-one (21) years
of age.
(C)
An applicant or an applicant’s spouse is overdue in his or
her payment to the city or any other jurisdiction of taxes, fees,
fines, or penalties assessed against him or imposed upon him in relation
to a sexually oriented business. The county tax assessor collector
shall make this determination and report his/her findings to the director
within sixty (60) days from the time the application is filed.
(D)
An applicant has failed to provide all information required by this
article for issuance of the license or has falsely answered a question
or request for information on the application form.
(E)
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 years immediately preceding the application. The fact that a conviction
is being appealed shall have no effect. The sheriff of the county
shall make this determination and shall report his findings to the
director within sixty (60) days from the time the application is filed.
(F)
The premises to be used for the sexually oriented business have not
been approved by the director as being in compliance with this article.
Reports of compliance or noncompliance with this article must be completed
by the director within sixty (60) days from the time the application
is filed.
(G)
The license fee required by this article has not been paid.
(I)
An applicant has been employed in a sexually oriented business in
a managerial capacity within the preceding twelve (12) months and
has demonstrated that he is unable to operate or manage a sexually
oriented business premises in a peaceful and law-abiding manner, thus
necessitating action by law enforcement officers.
(K)
An applicant or an applicant’s spouse or person with whom the applicant is residing has been convicted of a crime described in the definition of “specified criminal activity” in section 5.03.002, for which:
(i)
Less than two years have elapsed since the date of conviction 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 years have elapsed since the date of conviction
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 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 or more
misdemeanor offenses or combination of misdemeanor offenses occurring
within any 24-month period.
(L)
An applicant or an applicant’s spouse or a person with whom
an applicant is residing has been convicted of a felony.
(M)
The fact that a conviction is being appealed shall have no effect
on the disqualification of the applicant or the applicant’s
spouse or a person with whom the applicant resides.
(N)
An applicant, applicant’s spouse, or a person with whom an
applicant is residing, had a license to operate a sexually oriented
business revoked or an application denied within the last twelve months.
(O)
For purposes of the definition of “specified criminal activity” in section 5.03.002 of this article, a sentence of deferred adjudication for any period of time or amount of fine is considered the same as a conviction.
(P)
An applicant who has been convicted or whose spouse or person with whom the applicant resides has been convicted of an offense listed in the definition of “specified criminal activity” in section 5.03.002 may qualify for a sexually oriented business license only when the time period required by subsection (2)(K) has elapsed.
(3)
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. The owner’s/operator’s
permit shall be posted in a conspicuous place at or near the entrance
of the sexually oriented business so that it may be easily read at
any time.
(Ordinance 2004-009, ex. A, sec.
VIII, adopted 3/31/04)
(a)
The
annual nonrefundable fee for a sexually oriented business license
or employee license is:
|
Owner’s/Operator’s Permit
(Sexually Oriented Business License)
| |
|---|---|
|
Original
|
$3,000.00
|
|
First renewal
|
$2,250.00
|
|
Second renewal
|
$1,500.00
|
|
Third and subsequent renewals
|
$750.00
|
|
Employee License
| |
|---|---|
|
Original
|
$300.00
|
|
First renewal
|
$250.00
|
|
Second and subsequent renewals
|
$100.00
|
(b)
No
portion of any fees collected shall be returned after a permit has
been issued or refused. Should an applicant withdraw his/her application
prior to completion of the permit application investigation, the director,
after deducting all costs incurred, may refund such portion of the
fees as the director, in his sole discretion, determines is attributable
to that portion of the application investigation which has not been
completed.
(c)
The
replacement permit or badge fee shall be one-half (1/2) that of the
fee required for the permit or badge as issued by the director.
(Ordinance 2004-009, ex. A, sec.
IX, adopted 3/31/04)
(a)
If
an owner’s/operator’s permit or badge is lost or destroyed
a replacement may be obtained by filing a lost owner’s/operator’s
permit/badge application with the director and paying a lost owner’s/operator’s
permit fee.
(b)
A
replacement owner’s/operator’s permit or badge shall be
issued immediately upon confirmation of the identity of the applicant
through the records of the director. A replacement permit will expire
on the same date as the original permit.
(c)
It
shall not be a defense to prosecution for conducting business without
an owner’s/operator’s permit or failure to display a badge
that an owner’s/operator’s permit or badge was lost or
stolen. The enterprise may not conduct business as an enterprise in
the city, until the owner’s/operator’s permit or badge
has been replaced.
(d)
An
owner’s/operator’s permit or badge found in the possession
of any person other than the enterprise for which it was issued may
be immediately seized by any law enforcement officer who shall then
forward it to the sheriff of the county. The authorized owner’s/operator’s
permit holder may reclaim the permit or badge from the sheriff if
he or she was not involved in the misuse of said permit or badge for
another enterprise.
(Ordinance 2004-009, ex. A, sec.
X, adopted 3/31/04; Ordinance
adopting Code)
(a)
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in section 5.03.052 for owner’s/operator’s permit, or section 5.03.054 for employee license. Application for renewal should be made at least sixty (60) days before the expiration date, and when made less than sixty days before the expiration date, the expiration of the license will not be affected or extended.
(b)
When
the director denies renewal of a license, the applicant shall not
be issued a license for one year from the date of denial. If subsequent
to denial but before the expiration date of the current license the
director determines that the basis for denial of the renewal license
has been corrected or abated, the applicant may be granted a license.
(Ordinance 2004-009, ex. A, sec.
XII, adopted 3/31/04)
The director shall suspend a license for a period not to exceed
thirty (30) days if he or she determines that a licensee has:
(1)
Violated
or is not in compliance with any portion of this article.
(2)
Engaged
in the use of or was under the influence of alcoholic beverages or
was in possession of or under the influence of a controlled substance
while on the premises of the licensed sexually oriented business.
(3)
Refused
to allow an inspection of the sexually oriented business premises
as authorized by this article.
(4)
Knowingly
permitted gambling by any person on the sexually oriented business
premises.
(5)
Negligently permitted a violation under the definition of “specified criminal activity” in section 5.03.002 of this article by any person on the sexually oriented business premises.
(6)
Negligently
permitted the sale, use, or consumption of alcoholic beverages on
the premises.
(7)
Negligently
allowed a person under eighteen (18) years of age to enter the premises
during the hours of operation.
(8)
Demonstrated
the inability to operate or manage a sexually oriented business in
a peaceful and law-abiding manner, thus necessitating action by law
enforcement officers.
(Ordinance 2004-009, ex. A, sec.
XIII, adopted 3/31/04)
(a)
The director shall revoke a license if a cause of suspension in section 5.03.059 occurs and the license has been suspended within the preceding twelve (12) months.
(b)
The
director shall revoke a license if he or she determines that:
(1)
A licensee gave false or misleading information in the material submitted
to the director during the application process.
(2)
The licensee or a person with whom the licensee is residing is convicted of a specified criminal activity under the definition of “specified criminal activity” in section 5.03.002 of this article.
(3)
A licensee or an employee has knowingly allowed possession, use,
or sale of controlled substances on the premises.
(4)
A licensee has, with knowledge, permitted the sale, use, or consumption
of alcoholic beverages on the premises.
(5)
A licensee or an employee has knowingly allowed prostitution on the
premises.
(6)
A licensee or an employee has knowingly operated the sexually oriented
business during a period of time when the licensee’s license
was suspended.
(7)
A licensee or an employee has been convicted of an offense listed in the definition of “specified criminal activity” in section 5.03.002 of this article for which the time period required in section 5.03.055(2)(K) has not elapsed or for which conviction the licensee or employee still remains on probation, community supervision, or deferred adjudication.
(8)
On two or more occasions within a twelve-month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in the definition of “specified criminal activity” in section 5.03.002 of this article, for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed.
(9)
A licensee or an employee has 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 of the Texas
Penal Code.
(10)
A licensee is delinquent in payment to the county for hotel occupancy
taxes, ad valorem taxes, or sales taxes related to the sexually oriented
business.
(11)
A licensee or a person with whom the licensee is residing was convicted
of a specified criminal activity on a charge that was pending prior
to the issuance of the license.
(12)
A licensee has attempted to sell his or her business license or has
sold, assigned, or transferred ownership or control of the sexually
oriented business to a person or entity not licensed to own or operate
a sexually oriented business in that location.
(13)
The business has been closed for a period of thirty (30) consecutive
days, unless the closure is due to physical damage to the business
premises beyond the control of the owner or operator and the owner
or operator is proceeding with due diligence to reopen the establishment.
(c)
The
fact that a conviction is being appealed shall have no effect on the
revocation of the license.
(d)
Subsection (b)(9) 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 director revokes a license, the revocation shall continue for one year and the licensee shall not reapply for a sexually oriented business license for one year from the date revocation became effective. If the license was revoked under subsection (b)(7) of this section, an applicant may not be granted another license until the appropriate number of years required under section 5.03.055(2)(K) has elapsed.
(Ordinance 2004-009, ex. A, sec.
XIV, adopted 3/31/04)
If the director denies the issuance of a license or suspends
or revokes a license, he or she shall notify the applicant or licensee
by certified mail, return receipt requested, in writing of the action
taken and the applicant or licensee’s right to an appeal. The
applicant or licensee has ten (10) days from receipt of the notice
or thirteen (13) days from the date said notice was deposited with
the U.S. Postal Service, postage prepaid, whichever date expires earlier,
to file written notice of appeal. The aggrieved party may appeal the
decision of the director to a district court in the county on a trial
de novo basis. Filing an appeal in district court stays the director
in suspending or revoking a license until the district court makes
a final decision. Unless timely appealed, all decisions of the director
become final within ten (10) days.
(Ordinance 2004-009, ex. A, sec.
XV, adopted 3/31/04)
A licensee shall not transfer his or her license to another,
nor shall a licensee operate a sexually oriented business under the
authority of a license at any place other than the address designated
in the application.
(Ordinance 2004-009, ex. A, sec.
XVI, adopted 3/31/04)
