Horizon City City Zoning Code
CHAPTER 9
SPECIAL REGULATIONS
§ 901 Home Occupation.
901.1
Home Occupations Uses
A.
Where permitted as an accessory use in a district, a home occupation shall meet the following requirements:
1.
Home occupations shall be secondary and incidental to the use of the premises as a dwelling, and may only be conducted by the owner or tenant of the residence, or a family member of the owner or tenant who resides in the home and with the consent of the owner or tenant;
2.
A home occupation shall not cause a nuisance or produce noise, dust, vibration, odor[,] smoke, fumes, glare, electrical interference or waste runoff, detectable at the lot line, or create a fire hazard;
3.
Shall not operate between the hours of 10:00 p.m. and 6:00 a.m. except for the provision of adult residential care facilities or when providing care to or attending to the needs of any person or animal cared for as part of the home occupation;
4.
Outdoor activities shall not be conducted unless the activities are screened from the neighboring property by a solid fence of at least six feet in height;
5.
Home occupation uses shall minimize negative impacts on adjoining properties and the residential character of the lot and dwelling shall be maintained;
6.
A home occupation that requires a structural alteration of the dwelling to comply with a nonresidential technical code is prohibited, except for modifications to comply with accessibility requirements;
7.
No more than normal household vehicular traffic shall be generated by the home occupation;
8.
No home occupation shall generate delivery or pickup by commercial vehicles more frequently than normal household traffic;
9.
No more than one person who is not a member of the resident household may be employed on the site at any one time per home occupation; provided, however, the number of employees permitted for child and adult care facilities may exceed one when allowed or required by license or state law;
10.
No more than twenty-five percent of the gross floor area of the dwelling shall be used in accommodation of the home occupation, except for adult residential care facilities, licensed boarding homes and child care facilities;
11.
No equipment, materials, or merchandise associated with the home occupation shall be displayed or stored where visible from any street or public right-of-way;
12.
There shall be no display of a sign indicating from the exterior that the building or part thereof is being used for any purpose other than as a dwelling; and
13.
Only products made on a custom basis on the premises or items incidental to the permitted home occupation may be sold on the premises.
B.
Home occupations, when operating pursuant to a valid license pursuant to this Chapter and in compliance with the requirements in Subsection A, may include:
1.
Consultation office of a physician, dentist, licensed massage therapist, licensed acupuncturist, or other similar licensed medical practitioner or professional;
2.
Workshop of dressmaker, seamstress, tailor;
3.
Studio of music or dance instructor, martial arts instructor, personal trainer, tutor;
4.
Adult residential care facilities, providing that the home is in accordance with all conditions of operation that are required by the City, County, and State, and comply with all inspections and licenses as required;
5.
Home child care, child private care home, providing that the facility is in accordance with all conditions of operation that are required by the City, County, and State, and comply with all inspections and licenses as required;
6.
Occasional provision of physical treatment such as physical therapy by a licensed physical therapist or treatment by a licensed massage therapist or licensed acupuncturist;
7.
Keeping of animals for the breeding of more than two litters from one or more animals on the same property in one calendar year;
8.
Occupations similar to those listed above;
9.
Catering and food preparation for off-site consumption;
10.
E-Commerce operations; and
11.
Any home occupation listed below under Subsection C whereby employees or customers occasionally come to the site in compliance with the requirements of Subsection A.
C.
The following uses, when used as a place of work, home office or business mailing address where no employee or customer is permitted to come to the site, are permitted as home occupations without a license:
1.
Home office, to preclude physical treatment, of a physician, dentist, chiropractor, licensed massage therapist, or other similar licensed medical practitioner;
2.
Home office for a lawyer, legal assistant, psychologist, psychiatrist, accountant, business management, professional member associations, bookkeeper, auditor, broker, tax consultant, financial consultant, travel agent, appraiser, architect, landscape architect, interior designer, draftsman, engineer, urban planner, builder, contractor, designer, desktop publisher, advertising professional, biologist, botanist, geologist, archeologist, paleontologist, secretarial and clerical services, professional and managerial consultant;
3.
Home office for a private investigator, body guard, personal trainer, nutritionist, clown to include magician entertainment, disc jockey;
4.
Home office for a computer software and hardware consultant to include hardware repair, Web master, data processor, Internet entrepreneur;
5.
Home office for a plumber, electrician, landscape services, locksmith, carpet cleaner, HVAC contractor, painter, janitorial services;
6.
Home office for a salesperson, sales representative, real estate agent, insurance agent, caterer, event planner;
7.
Studio of author, composer, artist, painter (fine art), sculptor, photographer;
8.
Studio for making arts and crafts such as making of stained glass, ceramics, jewelry, lapidary work, rug weaving, floral work;
9.
Workshop for making and repair of portable musical instruments, bicycle repair;
10.
Home office for a provider of telemarketing service, shuttle service, limousine service; and
11.
Occupations similar to those listed above.
D.
A home occupation shall not include the following uses:
1.
Physical or medical treatment of persons or animals, animal hospitals, pet grooming, or a stable or kennel, except as may be allowed in Subsection B 6 [B 7];
2.
Carpenter shops or furniture repairing;
3.
Massage establishments, except as may be permitted under Subsection B 6;
4.
Plumber shops;
5.
Heating and air conditioning shops;
6.
Vehicle rental, repairing or painting; installation of automotive accessories;
7.
Sign painting;
8.
Contractor’s yards;
9.
Scrap and salvage services;
10.
Restaurants;
11.
Cocktail lounges;
12.
Rental outlets;
13.
Equipment sales;
14.
Sexually oriented businesses;
15.
Recycling centers or drop-off recycling collection facilities;
16.
Businesses involving the repair of any type of internal combustion engine or an electric motor over one horsepower rating, including equipment repair services.
17.
Retail shops of any kind;
18.
Reserved;
19.
Funeral homes;
20.
Tourist homes;
21.
Beauty shops or barbershops, parlors, hair stylists, nail salon, spas, tattoo or body piercing services;
22.
Medium and heavy appliance repair, to include but not be limited to electric and gas mowers, outboard and inboard motors, stoves and refrigerators;
23.
Reserved;
24.
Real estate office; and
25.
Occupations similar to those listed above.
901.2
Home Occupation License Provisions
A.
Applications for Home Occupation Licenses shall meet the following requirements:
1.
No person shall operate or maintain, or permit the operation or maintenance of a home occupation without first having obtained a valid license from the Building Official.
2.
Proof of a State of Texas license must be provided, where applicable, for child and adult residential care facilities prior to a home occupation license being issued.
3.
Application for a home occupation license shall be made on a form provided by the Building Official and shall be accompanied by a nonrefundable fee in the amount set forth in the fee schedule adopted by the City Council.
4.
Those Home Occupations that require a license under this Chapter shall also comply with the City’s Business Registration requirement in Ordinance 0069 [article 4.02 of the Municipal Code].
5.
The application shall be sworn to by the applicant, and shall contain the following information:
a.
The full name and address of the individual(s) or organization applying for the license;
b.
A statement as to the type of home occupation that will be conducted;
c.
All information required by the applicable provisions in this chapter and any other applicable City Ordinances;
d.
A weekly estimate of the number of persons who will come to the site and deliveries that will be made to the site due to the home occupation;
e.
Proof that the property has successfully passed an inspection by the Emergency Services District #1, if such inspection has been required by the Building Official;
f.
Such other information, attachments, and submissions that are requested on the application form as reasonably necessary for a fair determination as to whether the license should be issued. The application form shall allow an applicant seeking to operate to an adult residential care facility to make submissions to request an exception to the limitation on the number of persons residing in a dwelling and submit evidence of the legal basis and need for such an exception.
6.
As part of the application, the applicant shall provide written permission for the Town of Horizon City and the Emergency Services District #1 to conduct inspections of the property in its entirety that is subject of the application prior to a home occupation license being issued and at reasonable times as necessary. The Building Official shall have the authority to order such inspections when necessary to determine compliance with the health, safety, zoning and construction standards established by the City in its Ordinances or compliance with the International Fire Code as adopted by the Emergency Services District #1 (collectively, “Standards”). Deficiencies in any Standards will be noted in writing and must be corrected before the license is issued.
B.
Upon receipt of a complete application as provided in this chapter, the Building Official shall review and process the application.
C.
The Building Official shall issue the license stating the type of home occupation authorized and permitted, in accordance with and as provided by the applicable provisions in this chapter within ten days of the completion of the processing of the application, unless the Building Official finds:
1.
One or more of the statements made in the application are not true;
2.
That applicant has made or caused to be made false statements or misrepresentations on the application;
3.
The applicant has failed to submit a complete application;
4.
The required fee has not been paid;
5.
The proposed home occupation is not permitted under this Chapter;
6.
The licensee is required to obtain a license for the business pursuant to Ordinance No. 0069 of the Town of Horizon City [article 4.02 of the Municipal Code] and has failed to obtain such license or file a simultaneous application for such license; or
7.
The requirements of this Chapter relating to the licensing requirements or issuance are not met.
The Building Official, when issuing a license for an adult residential care facility, is additionally authorized to make an exception to the number of persons allowed to reside in the dwelling unit when such exception is required by law or is shown by the applicant to be reasonably necessary and permitted under federal or state law. If the Building Official finds that the information submitted with the application is insufficient or inadequate to grant a requested exception, the Building Official will notify the applicant and allow the applicant to submit any additional information and evidence as desired by the applicant within the next ten days. |
D.
The license for a home occupation is for one year, which begins January 1st and ends December 31st and may be renewed annually. No fees related to Home Occupation Licenses shall be prorated. The home occupation may only be operated for the purpose and type of home occupation stated on the license.
E.
A request for renewal and renewal fee must be paid prior to expiration of the license:
1.
The annual renewal fee for a renewal application filed on or before the 15th day after the expiration of the permit shall be as set forth in the fee schedule adopted by the City Council. The Building Official may provide for an expedited renewal application process for such applications.
2.
Any application seeking renewal filed after the 15th day after the expiration of a prior permit shall be filed in the same manner as an original application under subsection A and be subject to that application fee.
F.
License denial, suspension and revocation.
1.
The Building Official may suspend or revoke any license granted hereunder by serving the licensee with written notice by hand-delivery or certified mail, if the licensee is found to be in violation of this chapter, if the licensee is operating a different type of home occupation than stated on the license, or when found, in the opinion of the Building Official, that the home occupation poses a significant health risk to the public.
2.
The Building Official shall issue the written notice of denial, suspension or revocation of a license to the licensee and shall contain, as a minimum, the following:
a.
The name and address of the location of the home occupation and name of the licensee;
b.
A statement that the license is denied, suspended or revoked;
c.
The reason(s) for the denial, suspension or revocation;
d.
An order that the portion of the dwelling used for a home occupation to be closed and not be accessible to the public, as appropriate;
e.
A statement prohibiting the further use of the structure for a home occupation, as appropriate;
f.
Recommended corrective measures to bring the structure into compliance with the requirements of this chapter and any other applicable Ordinance of the Town of Horizon City;
g.
The reasonable time limit established for the completion of the corrective measures;
h.
A statement that the license, if suspended, is subject to revocation for failure to complete the corrective measures within the allotted time;
i.
If applicable, a statement regarding the denial of a requested exception to the number of persons residing in a dwelling unit licensed as an adult residential care facility, and
j.
A statement that the denial, suspension or revocation may be appealed to the City Council:
(i)
Within ten business days of denial, suspension or revocation, the Building Official, shall prepare a report indicating the reasons for the denial, suspension or revocation, and shall provide a copy to applicant or licensee. The Building Official’s decision is final unless within ten calendar days from the date of receiving such official’s report, the applicant or licensee files with the city clerk a written appeal to the City Council specifying reasons for the appeal. Said appeal shall also include a written rebuttal to the Building Official’s report.
(ii)
The City Council shall review the report of the Building Official and the appellant’s rebuttal and may allow the appellant to make an oral presentation or submit additional rebuttal. The City Council shall make its review and make a ruling on the appeal within a reasonable period of time after the appeal has been filed.
(iii)
The City Council shall sustain, reverse or modify the action of the Building Official and shall direct city staff to notify the appellant of the decision in writing. The decision of the City Council is final.
3.
The Building Official or designee may post a sign at any location where a license has been suspended or revoked pursuant to this chapter alerting the public that the location no longer has a valid license.
G.
Enforcement.
1.
The Building Official and designees shall have the power to administer and enforce the provisions of this ordinance as may be required by governing law. Any person violating any provision of this ordinance is subject to suit for injunctive relief as well as prosecution for criminal violations as provided for in this Ordinance. Any violation of this chapter is hereby declared to be a nuisance.
2.
Nothing in this chapter shall be construed as a waiver of the city’s right to bring a civil action to enforce the provisions of this chapter and to seek remedies as allowed by law, including, but not limited to the following:
(Ordinance 0102 adopted 1/14/03; Ordinance 0102-003 adopted 12/9/03; Ordinance 0102-032 adopted 2/24/15)
§ 902 Sexually Oriented Businesses.
902.1
Purpose and Intent
A.
It is the purpose of this Section to regulate sexually oriented businesses in order 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 with the City. The provisions of this Section have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this Section to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market.
902.2
Definitions
In this Section:
A.
Adult Arcade
means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five (5) or fewer persons per machines at any one (1) time, and where the images so displayed are distinguished or characterized by the depicting or describing of “specified sexual activities” or “specified anatomical areas.”
B.
Adult Bookstore or Adult Video Store
means a commercial establishment that, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:
1.
books, magazines, periodicals or other printed matter, or photograph, films, motion pictures, videocassettes or video reproductions, slides, or other visual representations that depict or describe “specified sexual activities” or “specified anatomical areas”; or
2.
instruments, devices, or paraphernalia that are designed for use in connection with “specified sexual activities.”
C.
Adult Cabaret
means a nightclub, bar, restaurant, or similar commercial establishment that regularly features:
1.
persons who appear in a state of nudity or semi-nudity, including topless dancer[s], nude dancers or strippers, male or female; or
2.
live performances live performances [sic] that are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities”; or
3.
films, motion pictures, videocassettes, slides, or other photographic reproductions that are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”
D.
Adult Motel
means a hotel, motel or similar commercial establishment that:
1.
offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides, or other photographic reproductions that are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”; and has a sign visible from the public right-of-way which advertises the availability of this type of photographic reproductions; or
2.
offers a sleeping room for rent for a period of time that is less than ten (10) hours; or
3.
allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than ten (10) hours.
E.
Adult Motion Picture Theater
means a commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides, or similar photographic reproductions are shown that are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”
F.
Adult Theater
means a theater, concert hall, auditorium, or similar commercial establishment that regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities.”
G.
Child Care Facility
means a building used a day nursery, children’s boarding home, child placement agency, religious or charitable encampment for children or any other place for the care or custody of children under sixteen (16) years of age.
H.
Church
means a building in which persons regularly assemble for worship, intended primarily for purposes connected with faith, or for propagating a particular form of belief.
I.
Code Compliance Officer
means the Town of Horizon [City] Code Compliance Officer or his designated agent.
J.
Escort
means 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.
K.
Escort Agency
means a person who, or business association that, furnishes, offers to furnish, or advertises to furnish escorts as one of its business purposes, for a fee, tip, or other consideration.
L.
Establishment
means and includes any of the following:
1.
the opening or commencement of any sexually oriented business as a new business;
2.
the conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
3.
the addition of any sexually oriented business to any other existing sexually oriented business; or
4.
the relocation of any sexually oriented business.
M.
Licensee
means 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.
N.
Nude Model Studio
means any place where a person who appears in a state of nudity or semi-nudity or displays “specified anatomical areas” is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration.
P.
Operates or Causes to be Operated
means to cause to function or to put or keep in operation. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner, part owner, or licensee of the business.
Q.
Person
means an individual, proprietorship, partnership, corporation, association, or other legal entity.
R.
Residential District
means a single-family, duplex, townhouse, multiple-family or mobile home district or area so designated by such uses.
S.
Residential Use
means property used for single-family, duplex, multiple-family, mobile home park, mobile home subdivision, or campground purposes.
T.
School
means any public or private learning center, elementary school, secondary school, junior college, community college, college, university or other center for post-secondary education.
U.
Semi-Nude
means a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breasts, as well as portions of the body covered by supporting straps or devices.
V.
Sexual Encounter Center
means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
W.
Sexually oriented Business
means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.
X.
Specified Anatomical Areas
means human genitals in a state of sexual arousal.
Y.
Specified Sexual Activities
means and includes any of the following:
1.
the fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
2.
sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;
3.
masturbation, actual or simulated; or
4.
excretory functions as part of or in connection with any of the activities set forth in (1) through (3), above.
Z.
Substantial Enlargement
of a sexually oriented business means the increase in floor area occupied by the business by more than twenty (20) percent, as the floor area existed on the date of the enactment of this Section.
AA.
Transfer of Ownership or Control
of a sexually oriented business means and includes any of the following:
1.
the sale, lease, or sublease of the business;
2.
the transfer of securities that constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
3.
the establishment of a trust, gift, or other similar legal device that transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
902.3
Classifications of Sexually Oriented Businesses
Sexually oriented businesses are classified as follows:
902.4
Licenses
A.
Licenses Required
1.
A person commits an offense if he operates a sexually oriented business without a valid license issued by the City for the particular type of business.
2.
An application for a license must be made on a form provided by the Town of Horizon City. The application form shall be sworn to and shall: (1) include the name and address of the applicant; (2) state whether the applicant meets each of the requirements set forth in Section 902.4.B of this Section; (3) include the name and address of each person required to sign the application pursuant to Section 902.4.A.4 of this Section, and the name, address and type of entity (if applicable) of each person or entity owned or controlled by such person that owns or controls an interest in the business to be licensed; and (4) such other matters, consistent with this Section, as may be specified in the application form. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches (6"). Applicants who must comply with Section 902.6.E of this Section shall submit a diagram meeting the requirements of Section 902.6.E of this Section.
3.
The applicant must be qualified according to the provisions of this Section and the premises must be inspected and found to be in compliance with the law by the Code Compliance Officer.
4.
If a person who wishes to operate a sexually oriented business is an individual, he or she must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a twenty percent (20%) or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under Section 902.4.B of this Section and each applicant shall be considered a licensee if a license is granted.
B.
Issuance of License
1.
The Code Compliance Officer shall approve the issuance of a license to an applicant within thirty (30) days after receipt of an application unless the Code Compliance Officer finds one or more of the following to be true:
a.
An applicant is under eighteen (18) years of age.
b.
An applicant or an applicant’s spouse is overdue in payment to the City or County of taxes, fees, fines, or penalties assessed against or imposed upon the applicant or the applicant’s spouse in relation to a sexually oriented business.
c.
An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form.
d.
An applicant or an applicant’s spouse has been convicted of a violation of a provision of this Section other than the offense of operating a sexually oriented business without a license, within two (2) years immediately preceding the application. The fact that a conviction is being appealed shall have no effect.
e.
The license fee required by this Section has not been paid.
f.
An applicant has been employed in a sexually oriented business in a managerial capacity within the preceding twelve (12) months and has demonstrated an inability to operate or manage a sexually oriented business premises in a peaceful and law-abiding manner, thus necessitating action by law enforcement officers.
g.
An applicant or the proposed establishment is in violation of or is not in compliance with Section 902.4.D, 902.4.I, or 902.6 of this Section.
h.
The premises to be used for the sexually oriented business are not in compliance with all applicable City laws, regulations and City Ordinances.
i.
An applicant or an applicant’s spouse has been convicted of a crime:
(1)
involving any of the following offenses as described in Chapter 43 of the Texas Penal Code:
(3)
sexual assault or aggravated sexual assault as described in Chapter 22 of the Texas Penal Code;
(4)
incest, solicitation of a child, or harboring a runaway child as described in Chapter 25 of the Texas Penal Code; or
(5)
criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses;
for which: |
(6)
less than two (2) years have elapsed since the date of conviction of [or] the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
(7)
less than five (5) 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
(8)
less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction whichever is the later date, if the convictions are two (2) or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24-month period.
j.
The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant’s spouse.
k.
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 to the sexually oriented business so that it may be easily read at any time.
C.
Licenses Fees for Sexually Oriented Businesses.
The annual fee for a sexually oriented business license shall be as set forth in the fee schedule adopted by the City Council.
1.
The license for a sexually oriented business shall be valid for a calendar year, which begins January 1 and ends December 31 and must be renewed annually.
2.
Sexually oriented business licenses will not be prorated when acquired during the calendar year.
3.
Penalty for late renewal shall be 20% of the renewal fee. A late renewal shall be considered any renewal obtained after January 15 of the calendar year. This provision shall not apply to new licenses acquired for the first time for a sexually oriented business.
D.
Inspection
1.
An applicant or licensee shall permit representative[s] of the City Police Department and the Code Compliance Officer 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.
2.
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 by a representative of the City Police Department or the Code Compliance Officer at any time it is occupied or open for business.
3.
The provisions of this section do not apply to areas of an adult motel that are currently being rented by a customer for use as a permanent or temporary habitation.
E.
Expiration of License.
Each license shall expire one (1) year from the date of issuance and may be renewed only by making application as provided in Section 902.4.A. Application for renewal should be made at least thirty (30) days before the expiration date, and when made less than thirty (30) days before the expiration date, the expiration of the license will not be affected.
F.
Suspension.
The Code Compliance Officer shall suspend a license for a period not to exceed thirty (30) days if he determines that a licensee or an agent or employee of a licensee has:
1.
violated or is not in compliance with Section 902.4.D, 902.4.I, 902.5, or 902.6 of this Section;
2.
engaged in excessive use of alcoholic beverages while on the sexually oriented business premises;
3.
refused to allow an inspection of the sexually oriented business premises as authorized by this Section;
4.
knowingly permitted gambling by any person on the sexually oriented business premises; or
5.
demonstrated inability to operate or manage a sexually oriented business in a peaceful and law-abiding manner thus necessitating action by law enforcement officers.
G.
Revocation
1.
The Code Compliance Officer shall revoke a license if a cause of suspension in 74-108 [section 902.4.F] of this Section occurs and the license has been suspended within the preceding twelve (12) months.
2.
The Code Compliance Officer shall revoke a license if he determines that:
a.
a licensee gave false or misleading information in the material submitted to the Code Compliance Officer during the application process;
b.
a licensee, an agent or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises;
c.
a licensee, an agent or an employee has knowingly allowed prostitution on the premises;
d.
a licensee, an agent or an employee knowingly operated the sexually oriented business during a period of time when the licensee’s license was suspended;
e.
a licensee has been convicted of an offense listed in Section 902.4.B.i [902.4.B.1.i] for which the time period required in said subsection has not elapsed;
f.
on two (2) 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 902.4.B.i [902.4.B.1.i], for which a conviction has been obtained, and the person or persons were agents or employees of the sexually oriented business at the time the offenses were committed;
g.
a licensee or an agent 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, Texas Penal Code; or
h.
a licensee is delinquent in payment to the City for any ad valorem taxes, sales or other taxes related to the sexually oriented business.
3.
The fact that a conviction is being appealed shall have no effect on the revocation of the license.
4.
Section 902.4.G.2.g does not apply to adult motels as a ground for revoking the license unless the licensee, agent 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.
5.
When the Code Compliance Officer revokes a license, the revocation shall continue for one (1) year and the licensee shall not be issued a sexually oriented business license for one (1) year from the date revocation became effective. If, subsequent to revocation, the Code Compliance Officer finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least ninety (90) days have elapsed since the date the revocation became effective. If the license was revoked under Section 902.4.G.2.e, an applicant may not be granted another license until the appropriate number of years required under Section 902.4.B.1.i has elapsed.
H.
Appeal.
If the Code Compliance Officer denies the issuance of a license, or suspends or revokes a license, the Code Compliance Officer shall send to the applicant, or licensee, by certified mail, return receipt requested, written notice of the action and the right to an appeal. Upon receipt of written notice of the denial, suspension, or revocation, the licensee whose application for a license has been denied or whose license has been suspended or revoked shall have the right to appeal to the state district court. An appeal to the state district court must be filed within thirty (30) days after the receipt of notice of the decision of the Code Compliance Officer. The licensee shall bear the burden of proof in court.
I.
Transfer of License.
A licensee shall not transfer his 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.
902.5
Location Criteria
A.
Location of Sexually Oriented Businesses
1.
A person commits an offense if the person operates or causes to be operated a sexually oriented business within one thousand five hundred feet (1500') of:
2.
A person commits an offense if he or she causes or permits the operation, establishment, substantial enlargement, or transfer or ownership or control of a sexually oriented business located within one thousand five hundred feet (1500') of another sexually oriented business.
3.
A person commits an offense if he or she causes or permits the operation, establishment, or maintenance of more than one (1) sexually oriented businesses 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.
4.
For the purpose of Section 902.5.A.1, 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 church, school, child care facility or building or structure in which alcoholic beverages are offered for sale, or to the nearest boundary of an affected public park, residential district, or residential lot.
5.
For the purposes of Section 902.5.A.2, the distance between any two (2) sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
6.
Any sexually oriented business lawfully operating on the effective date of this Section that is in violation of Sections 902.5.A.1, 2 or 3 shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed twelve (12) months, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more.
Such nonconforming use shall not be increased, enlarged, extended, or altered except that the use may be changed to a conforming use. If two (2) or more sexually oriented businesses are within one thousand five hundred (1500') 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(es) is nonconforming.
7.
A sexually oriented business lawfully operated 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 church, school, child care facility, public park, residential district, or residential lot, or any building or structure in which alcoholic beverages are offered for sale, within one thousand five hundred feet (1500') 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.
B.
Exemptions from Locational Restrictions
1.
If the Code Compliance Officer denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of any section of this Section, then the applicant may, not later than ten (10) calendar days after receiving notice of the denial, file with the City Council (Board of Adjustment) a written request for an exemption from the locational restrictions of this Section.
2.
If the written request is filed with the City Council (Board of Adjustment) within the ten-day limit, the City Council shall consider the request. The City Council (Board of Adjustment) shall set a date for a public hearing within sixty (60) days from the date the written request is received.
3.
A hearing by the City Council may proceed if a quorum of City Council is present. The City Council shall hear and consider evidence offered by any interested person. The formal rules of evidence do not apply.
4.
The City Council may, in its discretion, grant an exemption from the locational restrictions of this Section if it makes the following findings:
a.
That the location of the proposed sexually oriented business will not have a detrimental effect on nearby properties or be contrary to the public safety or welfare;
b.
That the granting of the exemption will not violate the spirit and intent of this Section;
c.
That the location of the proposed sexually oriented business will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban or rural blight;
d.
That the location of an additional sexually oriented business in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any efforts of urban renewal or restoration; and
e.
That all other applicable provisions of this Section will be observed.
5.
The City Council shall grant or deny the exemption by a majority vote. Failure to reach a majority vote shall result in denial of the exemption. Disputes of fact shall be decided on the basis of a preponderance of the evidence. The decision of the City Council is final.
6.
If the City Council grants the exemption, the exemption is valid for one (1) year from the date of the City Council’s action. Upon the expiration of an exemption, the sexually oriented business is in violation of the locational restrictions of this Section until the applicant applies for and receives another exemption.
7.
If the City Council denies the exemption, the applicant may not reapply for an exemption until at least twelve (12) months have elapsed since the date of the City Council’s action.
8.
The grant of an exemption does not exempt the applicant from any other provisions of this Section other than the locational restrictions.
902.6
Additional Regulations
B.
Additional Regulations for Nude Model Studios
1.
An nude model studio shall not employ any person under the age of eighteen (18) years.
2.
A person under the age of eighteen (18) years commits an offense if he appears in a state of nudity or semi-nudity in or on the premises of a nude model studio. It is a defense to prosecution under this subsection if the person under eighteen (18) years was in a restroom not open to public view or persons of the opposite sex.
3.
A person commits an offense if he appears in a state of nudity or semi-nudity or knowingly allows another to appear in a state of nudity or semi-nudity in an area of a nude model studio premises which can be viewed from the public right-of-way.
4.
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.
C.
Additional Regulations for Adult Theaters and Adult Motion Picture Theaters
1.
A person commits an offense if he knowingly allows a person under the age of eighteen (18) years to appear in a state of nudity or semi-nudity in or on the premises of an adult theater or adult motion picture theater.
2.
A person under the age of eighteen (18) years commits an offense if he knowingly appears in a state of nudity or semi-nudity in or on the premises of an adult theater or adult motion picture theater.
3.
It is a defense to prosecution under Sections 902.6.C.1 and 2 if the person under eighteen (18) years was in a restroom not open to public view or persons of the opposite sex.
D.
Additional Regulations for Adult Motels
1.
Evidence that a sleeping room in a hotel, motel, or similar commercial establishment has been rented and vacated two (2) or more times in a period of time that is less than ten (10) hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this Section.
2.
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 sub-rents a sleeping room to a person and, within ten (10) hours from the time the room is rented, he rents or sub-rents the same sleeping room again.
3.
For purposes of Section 902.D.2 [902.6.D.2], the terms “rent” or “sub-rent” mean the act of permitting a room to be occupied for any form of consideration.
E.
Regulations Pertaining to Exhibition of Sexually Explicit Films or Videos
1.
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, videocassette, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
a.
Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one (1) or more manager’s stations, the location of all overhead lighting fixtures, and switches, which lights are controlled by which switches and designating any portion of the premises in which patrons will not be permitted. Only agents or employees shall have access to light switches. A manager’s station may not exceed thirty-two (32) square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches (6"). The Code Compliance Officer may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration for the premises has not been altered since it was prepared.
b.
The application shall be sworn to be true and correct by the applicant.
c.
No alteration in the configuration or location of a manager’s station may be made without the prior approval of the Code Compliance Officer.
d.
It is the duty of the owners and operator of the premises to ensure that at least one (1) employee is on duty and situated in each manager’s station at all times that any patron is present inside the premises.
e.
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 have two (2) or more manager’s stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one (1) of the manager’s stations. The view required in this subsection must be by direct line of sight from the manager’s station.
f.
It shall be the duty of the owners and operator, and it also shall be the duty of any agents and employees present in the premises to ensure that the view area specified in Section 902.6.E.1.e of this section remains unobstructed by any doors, walls, 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 field [filed] pursuant to Section 902.6.E.1.a.
g.
The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than one (1.0) footcandle as measured at the floor level.
h.
It shall be the duty of the owners and operator and it also shall 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.
2.
A person having a duty under Section 902.6.E.1, commits an offensive [offense] if he or she knowingly fails to fulfill that duty.
F.
Display of Sexually Explicit Material to Minors
1.
A person commits an offense if, in a business establishment open to persons under the age of seventeen (17) years, he displays a book, pamphlet, newspaper, magazine, film, or videocassette, 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:
a.
human sexual intercourse, masturbation, or sodomy;
b.
fondling or other erotic touching of human genitals, pubic region, buttocks, or female breasts;
c.
less than completely and opaquely covered human genitals, buttocks, or that portion of the female breast below the top of the areola; or
d.
human male genitals in a discernibly turgid state, whether covered or uncovered.
2.
In this section “display” means to locate an item in such a manner that, without obtaining assistance from an agent or employee of the business establishment:
902.7
Enforcement
A.
Except as provided by Section 902.7.B, any person violating Section 902.5, upon conviction, is punishable by a fine not to exceed $3,000 for each offense and a separate offense shall be deemed committed upon each day during or on which a violation occurs.
B.
If the sexually oriented business involved is a nude motel studio or sexual encounter center, then violation of Sections 902.4.A.1 or 902.5 is punishable as a Class A misdemeanor.
C.
Except as provided by Section 902.7.B, above, any person violating a provision of this Section other than Section 902.5, upon conviction, is punishable by a fine not to exceed $3,000 for each offense and a separate offense shall be deemed committed upon each day during or on which a violation occurs.
D.
It is a defense to prosecution under Sections 902.4.A.1, 902.5, or 902.6.B.4 of this Section that a person appearing in a state of nudity or semi-nudity did so in a modeling class operated:
1.
by a proprietary school licensed by the State of Texas; a college, junior college, or 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 or semi-nude person is available for viewing; and
b.
where in order to participate in a class a student must enroll at least three (3) days in advance of the class; and
c.
where no more than one (1) nude or semi-nude model is on the premises at any one time.
E.
It is a defense to prosecution under Sections 902.4.A.1 or 902.5 of this Section that each item of descriptive, printed film, or video material offered for sale or rental, taken as a whole, contains serious literary, artistic, political, or scientific value.
902.8
Injunctive Relief
A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of Section 902.5 of this Section is subject to a suit for injunction as well as prosecution for criminal violations.
902.9
Severability
If any subsection, clause, phrase or provision of this Section, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unconstitutional, the remaining sections, subsections, clauses phrases and provisions of this Section, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
(Ordinance 0074, secs. 74-100–74-122, adopted 2/10/98; Ordinance 0074-1 adopted 12/9/03)
[1]
Editor’s note–At the direction of the city, Ordinance 0074, adopted 2/10/98, as amended, which was adopted as a separate ordinance, is incorporated in the zoning regulations as section 902. The section numbering has been modified so as to match the format used in Ordinance 0102. The preamble section of the original ordinance is not included. References to “this Ordinance” have been changed to “this Section.”