(a)
A
person commits an offense if he owns any part of or manages, supervises,
is employed by or operates a sexually oriented business that does
not hold a valid license issued by the city for the particular type
of business.
(b)
An
application for a license must be made on a form obtained from and
contain the information required by the director of public safety
or his designee. The application must be accompanied by a sketch or
diagram showing the configuration of the premises, including a statement
of total floor space occupied by the business. The sketch or diagram
need not be professionally prepared, but must be drawn to a designated
scale or drawn with marked dimensions of the interior of the premises
to an accuracy of plus or minus six inches. The applicant must provide
the address of the location of the premises to be used as a sexually
oriented business, and both a common and a legal description of the
premises.
(c)
Each
applicant must be qualified according to the provisions of this article
and the premises must be inspected and found to be in compliance with
the law and this article by the director of public safety and city
inspector within 21 days after receipt of an application.
(d)
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 20 percent or greater interest (direct or indirect and whether through subsidiaries, affiliates or otherwise) in the business must sign the application for license as an applicant. Each applicant must be qualified under section 4.05.032, and each applicant shall be considered a licensee if a license is granted.
(e)
The
fact that a person possesses a valid theater license, dance hall license,
or public house of amusement license does not exempt him from the
requirement of obtaining a sexually oriented business license.
(Ordinance adopted 5/18/1994,
sec. 3.1)
(a)
The
director of public safety shall approve or deny the issuance of a
license by the city to an applicant within 30 days after receipt of
an application. The director of public safety shall approve the issuance
of a license unless he finds one or more of the following to be true:
(1)
An applicant, licensee, or person identified as an owner or as managing
or operating the business, or the spouse of any of them, is under
18 years of age.
(2)
An applicant, licensee, or person identified as an owner or as managing
or operating the business has failed to provide information reasonably
necessary for issuance of the license or has falsely answered a question
or request for information on the application form.
(3)
An applicant, licensee, or person identified as an owner or as managing
or operating the business, or the spouse of any of them, 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.
(4)
The premises to be used for the sexually oriented business have not
been approved by the director of public safety or city inspector as
being in compliance with applicable laws and this article.
(5)
The premises to be used for the enterprise have been found in violation
of applicable law by the health department and the applicant has failed
to cure such deficiencies within the time established by the health
department or by applicable law. Nothing herein shall be deemed to
require health department inspection and approval of the premises
prior to issuance of a license. However, if the health department
has undertaken such an inspection and found violations that are not
cured, this is a ground for denying the application. Under no circumstance
shall the consideration of the application be delayed based on an
ongoing or planned health department inspection. The director of public
safety shall consider the application within 30 days of its receipt
as set forth herein.
(6)
The applicant, licensee, or person identified as an owner or as managing or operating the business, or the spouse of any of them, is in violation of the provisions of section 4.05.071 [4.05.034] of this article.
(7)
An applicant, licensee, or person identified as an owner or as managing
or operating the business, or the spouse of any of them, is in violation
of or is not in compliance with any section of this article.
(8)
An applicant, licensee, or person identified as owner or as managing
or operating the business, or the spouse of any of them, has been
convicted of a crime:
(A)
Involving:
(i)
Any of the following offenses as described in chapter 43 of
the Texas Penal Code (or its successor statutes):
(iii)
Sexual assault or aggravated sexual assault as described in
chapter 22 of the Texas Penal Code (or its successor statutes);
(iv)
Incest, solicitation of a child, or harboring a runaway child
as described in chapter 25 of the Texas Penal Code (or its successor
statutes);
(B)
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 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 a
24-month period.
(b)
The
fact that a conviction is being appealed shall have no effect on the
disqualification of the applicant.
(c)
The
license, if granted, shall state on its face the name of the person
or persons to whom it is granted, the expiration date, and the address
of the sexually oriented business. The license 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 adopted 5/18/1994,
sec. 3.2)
The annual fee for a sexually oriented business license is one
thousand dollars ($1,000.00). A certified check made payable to city
for this amount shall be submitted to the director of public safety
along with the application. If the application is denied, the fee
will be returned, less a 25% processing fee.
(Ordinance adopted 5/18/1994,
sec. 3.3; Ordinance adopting Code)
(a)
An
applicant or licensee shall permit representatives of the director
of public safety, the health department, and/or the city inspector
to inspect the premises of a sexually oriented business for the purpose
of insuring compliance with the law and this article, at any time
it is occupied or open for business.
(b)
A
person who operates a sexually oriented business or his agent or employee
commits an offense if he refuses to permit a lawful inspection of
the premises or any part thereof by a representative of the director
of public safety, health department or city inspector 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 adopted 5/18/1994,
sec. 3.4)
Each license shall expire one year from the date of issuance and may be renewed only by making an application as provided in section 4.05.031. Applications for renewal must be filed at least 30 days prior to the expiration date of the current license. The application will be considered and acted upon by the director of public safety in accordance with the same procedures set forth in this division.
(Ordinance adopted 5/18/1994,
sec. 3.5)
The director of public safety shall suspend a license for a
period not to exceed 30 days if he determines that an applicant, licensee,
manager, operator, owner, spouse, or an employee of a licensee has:
(1)
Violated
or is not in compliance with the provisions of this article.
(2)
Refused
to allow an inspection of the premises of the sexually oriented business
as authorized by this article.
(3)
Knowingly
or recklessly, or with criminal negligence, allowed a person under
17 years of age to enter a sexually oriented business. Allowing a
person to enter a portion of a business not devoted primarily to the
sale, rental or exhibition of sexually oriented materials or entertainment
shall not be grounds for suspension. However, allowing entry by one
under 17 years of age into a portion of a sexually oriented business
which is primarily devoted to the sale, rental or exhibition of sexually
oriented materials or entertainment shall be a ground for suspension.
(Ordinance adopted 5/18/1994,
sec. 3.6)
(a)
The director of public safety shall revoke a license if a cause of suspension in section 4.05.036 occurs and the license has been suspended within the preceding 12 months.
(b)
The
director of public safety shall revoke a license if he determines
that any one or more of the following exist or occurred:
(1)
A licensee or applicant gave false or misleading information in the
material submitted to the director of public safety during the application
process;
(2)
A licensee, applicant, owner, manager, operator or an employee of
any of them has knowingly or recklessly, or with criminal negligence,
allowed possession, use, or sale of a controlled substance or marijuana
on the premises;
(3)
A licensee, applicant, owner, manager, operator or an employee of
any of them has knowingly or recklessly, or with criminal negligence,
allowed prostitution on the premises;
(4)
A licensee, applicant, owner, manager, operator or an employee of
any of them has knowingly or recklessly, or with criminal negligence,
operated the sexually oriented business during a period of time when
the licensee’s license was suspended;
(5)
A licensee, applicant, owner, manager, operator or an employee of any of them has been convicted of an offense listed in section 4.05.032(a)(8)(A) for which the time period required in section 4.05.032(a)(8)(B) has not elapsed;
(6)
On two or more occasions within a 12-month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in section 4.05.032(a)(8)(A) for which a conviction has been obtained, and the persons or persons were applicants, licensees or employees of the sexually oriented business at the time the offenses were committed;
(7)
A licensee, applicant, manager, owner, operator or an employee of
any of them has knowingly or recklessly, or with criminal negligence,
allowed any act of sexual intercourse, sodomy, oral copulation, masturbation,
or sexual contact to occur in or on the licensed premises. The term
“sexual contact” shall have the same meaning as it is
defined in section 21.01, Texas Penal Code. This subsection does not
apply to adult motels as a ground for revoking the license unless
the licensee or employee knowingly or recklessly, or with criminal
negligence, allowed the act to occur in a public place or within public
view.
(c)
The
fact that a conviction is being appealed shall have no effect on the
revocation of the license.
(d)
When the director of public safety revokes a license, the revocation shall continue for one year and the licensee shall not be issued a sexually oriented business license for one year from the date revocation became effective. If the license was revoked under subsection (b)(5) of this section, an applicant may not be granted another license until the appropriate number of years required under section 4.05.032(a)(8)(B) has elapsed.
(Ordinance adopted 5/18/1994,
sec. 3.7)
If the director of public safety denies the issuance of a license,
or suspends or revokes a license, the director of public safety shall
send the applicant or licensee by certified mail, return receipt requested,
notice of the action and of the right to an appeal. The aggrieved
person may appeal the decision to the city council by filing a request
for such a review of the decision in writing with the city secretary
within 10 days of receipt of the notice from the director of public
safety. The written request for review must clearly set out all reasons
the aggrieved person believes the action appealed from was in error.
The filing of an appeal stays the action of the director of public
safety in suspending or revoking a license until the city council
makes a final decision. The city council shall consider the appeal
no later than thirty (30) days after receiving the request from the
aggrieved person. At the meeting at which the appeal is considered,
the applicant or licensee shall have the right to present evidence,
call witnesses, and present arguments and authorities to the city
council, but no evidence shall be presented or considered that is
not within the reasons set forth in the written request for review.
The applicant or licensee shall also have the right to cross-examine
any witnesses called to testify before the city council in support
of the director of public safety’s decision. An applicant or
licensee may appear through or with the assistance of a representative
or attorney at these proceedings. The formal rules of evidence do
not apply. The city council will render a decision on the appeal no
later than 15 days after the appeal is heard.
(Ordinance adopted 5/18/1994,
sec. 3.8)
(a)
An
applicant or licensee whose application for a license has been denied
or whose license has been suspended or revoked shall have a right
to appeal to the state district court. A state district court has
jurisdiction over actions arising from the denial, suspension or revocation
of a license issued under this article pursuant to section 243.007
of the Texas Local Government Code.
(b)
Commencement or completion of the appellate procedure provided by section 4.05.038 shall not be a condition precedent to seeking judicial action on the decision of the director of public safety. Likewise, an applicant does not waive or adversely affect his right to file an action seeking judicial action or review by the commencement and/or completion of the appellate procedure provided by section 4.05.038 of this article.
(Ordinance adopted 5/18/1994,
sec. 3.9)
A licensee shall not transfer his license to another, and any
such transfer shall be of no effect. 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 and on
the license.
(Ordinance adopted 5/18/1994,
sec. 3.10)
