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HomeMy WebLinkAboutORD 00-10 ORDINANCE NO. 4e-::10 ENTITLED AN ORDINANCE REPEALING ARTICLE VI OF CHAPTER 7 OF THE CODE OF ORDINANCES OF THE CITY OF BEAUMONT AND ENACTING A NEW ARTICLE VI REGULATING SEXUALLY ORIENTED BUSINESS; PROVIDING FOR FEES; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL; AND PROVIDING A PENALTY. BE IT ORDAINED BY THE CITY OF BEAUMONT: Section 1. That Chapter 7, Article VI, of the Code of Ordinances of the City of Beaumont be and the same is hereby amended to read as follows: ARTICLE VI. SEXUALLY ORIENTED BUSINESSES Sec. 7-81. Purpose and findings. (a) Purpose. It is the purpose of this article to regulate sexually oriented businesses in order to promote public health, safety, and welfare of the citizens of the city, and to establish reasonable and uniform regulations. 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 not the intent nor effect of this article to restrict or deny access by adults to sexually oriented materials protected by the First Amendment. Neither is it the intent nor effect of this article to condone or legitimize the distribution of obscene material. (b) Findings. Based on evidence concerning the adverse secondary effects of adult sexually orientated businesses on the community presented in hearings, workshops and in reports made available to the Council and on studies in other communities including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; and Cleveland, Ohio, the Council finds: (1) Sexually oriented businesses may lend themselves to ancillary unlawful and unhealthy activities that presently are sometimes uncontrolled by the managers of the establishments. Further, there is presently no mechanism SOB.ORD 1/24/00 to make the owners of these establishments responsible for certain activities that occur on their premises. (2) Certain employees of sexually oriented businesses defined in this article as adult theaters and cabarets engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments. (3) Sexual acts, including masturbation, oral and anal sex, may easily occur at sexually oriented businesses which provide private or semi-private booths or cubicles for viewing films, videos, or live sex shows. (4) Offering and providing such space encourages such activities, which may create unhealthy conditions. (5) Many communicable diseases may be spread by activities which may occur in sexually oriented businesses. (6) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts. (7) The findings noted in paragraphs number (1) through (6) raise substantial governmental concerns. (8) Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns. (9) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the managers of the sexually oriented businesses. Further, such a licensing procedure will place a heretofore nonexistent incentive on the managers to see that the sexually oriented business is run in a manner consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of the city. (10) Removal of doors on adult booths and requiring sufficient lighting on premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity which may occur in such booths. (11) Requiring licensees of sexually oriented businesses to keep information regarding current employees and certain past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification SOB.ORD 1/24/00 - 2 - of potential witnesses or suspects and by preventing minors from working in such establishments. (12) The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually oriented business, where such information is substantially related to the significant governmental interest in the operation of such uses, may aid in preventing the spread of sexually transmitted diseases. (13) It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain employees who may engage in the conduct which this article is designed to prevent or who are likely to be witnesses to such activity. (14) The fact that an applicant for a sexually orientated business or sexually orientated business employee license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this article. (15) The barring of such individuals from the management of or employment in sexually oriented businesses for a period of years serves as a deterrent to and prevents conduct which leads to the transmission of sexually transmitted diseases. (16) The general welfare, health, and safety of the citizens of the City will be promoted by the enactment of this article. (17) That sexually oriented businesses can exert negative influences on churches, schools and day care centers, and have negative effects on property values, can contribute to increased criminal activities in surrounding areas, and can exert the same types of negative community influences on other forms of land usage, such as public buildings and parks, that were not previously addressed in the prior ordinance. (18) That the offenses listed under specified criminal activity which may serve as grounds for denial, revocation or refusal of a license under this article are offenses which relate to or bear on the management or operation of a sexually oriented business or employment in a sexually oriented business. The specified criminal activity offenses would also be directly related to the fitness of an individual to receive a license as a sexually oriented business employee. Accordingly, the specified criminal activity offenses are directly related to the duties and the responsibilities which may be authorized by a SOB.ORD 1/24/00 - 3 - license issued under this article. Accordingly, there is a serious need to protect members of the public and fellow employees of sexually oriented business enterprises from persons who have committed the specified criminal activity offenses outlined in the article. (19) That persons who hold or apply for sexually oriented business or business employee licenses under this article should be subject to a verification that they have not either pled guilty or been convicted of any of the offenses noted under the definition for specified criminal activity. (20) That the provisions of the prior ordinance were insufficient regarding "booths" to properly address the issues associated with casual sexual activity that may facilitate the spread of sexually transmitted diseases, criminal activities including lewd conduct, indecent exposure, etc., or other activities detrimental to the health, safety and welfare of the public and therefore determines that there is a need to provide for the monitoring of activities in facilities which offer either live entertainment or films, movies, video cassettes, video reproductions, video laser discs, slides, or other visual representations which are characterized by the depiction or description of specified sexual activities or specified anatomical areas and therefore provides in this ordinance provisions requiring that areas where such activities occur be fully visible to and monitored by management employees of such sexually oriented businesses to ensure that the activities in the building are in compliance with the provisions of this article. (21) That instituting distance requirements as they address the location of sexually oriented businesses or the conduct of licensed employees are reasonable and necessary to provide protection to the community from the negative secondary effects of sexually oriented business and may be done without depriving such businesses of adequate opportunities to locate within the city or licensed employees from engaging in protected activities. (22) The City Council finds that the provisions of this ordinance as they relate to signage requirements are proper subjects for City control and that the failure to control signage related to sexually oriented businesses may have a negative secondary effect on the community, that the signage requirements would serve to reduce the negative secondary effects of sexually oriented businesses upon the community, that the signage requirements would not deprive such businesses of adequate opportunity to provide notice to the public of their location and business, and that the requirement would further act to protect the health, safety and welfare of the public. SOB.ORD 1/24/00 - 4 - Sec. 7-82. Definitions. Adult arcade means any place to which the public is permitted or invited wherein coin-operated, slug-operated, or for any form of consideration, electronically, electrically, or mechanically controlled still or motion picture machines, projectors, video or laser disc players, or other image-producing devices are maintained to show images to five (5) or fewer persons per machine at any one time on the premises, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas. Adult bookstore means a commercial establishment which, as one of its primary businesses, 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, which are characterized by the depiction or description of specified sexual activities or specified anatomical areas. Adult video store means a commercial establishment which, as one of its primary businesses, offers for sale or rental for any form of consideration any one or more of the following: Films, motion pictures, video cassettes or video reproductions, video or laser disks, slides, or other visual representations which are characterized by the depiction or description of specified sexual activities or specified anatomical areas. Adult novelty store means a commercial establishment which, as one of its primary businesses, offers for sale or rental for any form of consideration any one or more of the following: Instruments, devices, or paraphernalia which are designed for use in connection with specified sexual activities. Adult cabaret means a nightclub, bar, restaurant, or similar commercial establishment that features: (1) Persons who appear in a totally nude or semi-nude condition, or in a state of nudity; or (2) Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or SOB.ORD 1/24/00 - 5 - (3) 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. Adult mini-theatre means any place to which the public is permitted or invited wherein coin-operated, slug operated, or for any form of consideration, electronically, electrically, or mechanically controlled still or motion picture machines, projectors, video or laser disk players, or other image-producing devices are maintained to show images to more than five (5) but less than one hundred (100) persons per machine at any one time on the premises, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas. Adult mini-theatre shall not include any conventional motion picture screen or projection area designed to be viewed in a room containing tiers or rows of seats with a viewer seating capacity of 100 or more persons. Adult motel means a hotel, motel or similar commercial establishment which: (1) Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, 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 as defined in this Article; 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 far a period of time that is less than ten (10) hours. Adult motion picture theater means an establishment, containing a room with tiers or rows of seats facing a screen, or projection area, which offers, as one of its primary businesses, the exhibition to customers of motion pictures which are intended to provide sexual stimulation or sexual gratification to such customers and which are distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. Adult theater means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or semi- nude live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities. SOB.ORD 1/24/00 - 6 - Applicant means the person submitting the application for a sexually oriented business or sexually oriented business employee license. If applicable, this includes a designated agent of the applicant and all persons who hold a five percent (5%) or greater interest in the business. Child Care Facility means a facility licensed by the State of Texas, whether situated within the City or not, that provides care, training, education, custody, treatment or supervision for more than twelve (12) children under fourteen (14) years of age, where such children are not related by blood, marriage or adoption to the owner or operator of the facility, for less than twenty-four (24) hours a day, regardless of whether or not the facility is operated for a profit or charges for the services it offers. Church means a building, whether situated within the city or not, in which persons regularly assemble for religious worship intended primarily for purposes connected with such worship or for propagating a particular form of religious belief. City Council means the elected mayor and council members meeting with a quorum present after proper notice as required by State law. City means the City of Beaumont or a person designated to act on behalf of the City by the City Manager. Conspicuous place means a location within the sexually oriented business, near its entrance and lighted such that material posted there can be read from a distance of three (3) feet. Convicted means and includes a judicial conviction, deferred prosecution, deferred adjudication, or probation and shall include any of these which are on appeal. Customer means any person who: (1) is allowed to enter a sexually oriented business or any portion of a sexually oriented business in return for the payment of an admission fee, membership fee or any other form of consideration or gratuity; (2) enters a sexually oriented business or any portion of a sexually oriented business and purchases, rents or otherwise partakes of any merchandise, goods, entertainment or other services offered therein; or (3) is a member of and on the premises of a sexually oriented business operating as a private or membership club or a sexually oriented business SOB.ORD 1/24/00 - ] - that reserves any portion of the premises of the sexually oriented business as a private or membership club. Employee means a person who performs any service on the premises of a sexually oriented business on a full-time, part-time or contract basis, whether or not the person is denominated an employee, independent contractor, agent or otherwise and whether or not said person is paid or receives a salary, wage, tips, or other compensation by the manager or customers of said business. By way of example, rather than limitation, the terms includes the operator and other management personnel, clerks, dancers, models and other entertainers, food and beverage preparation and service personnel, door persons, bouncers, and cashiers. It is expressly intended that this definition cover not only conventional employer-employee relationships but also independent contractor relationships, agency relationships, and any other scheme or system whereby the "employee" has an expectation of receiving compensation, tips, or other benefits from the sexually oriented business or its customers in exchange for services performed. Employee does not include a person exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises, and specifically does not include part-time maid services and lawn services. Entertainer means any employee of a sexually oriented business who performs or engages in entertainment. Entertainment means any act or performance, such as a play, skit, reading, revue, fashion show, modeling performance, pantomime, role playing, encounter session, scene, song, dance, musical rendition or striptease that involves the display or exposure of specified sexual activities or specified anatomical areas. The term "entertainment" shall include any employee or entertainer exposing any specified anatomical areas or engaging in any specified sexual activities whenever in the presence of customers. Escort means an individual who, for consideration, agrees or offers to privately model, dance or similarly perform for another person, or to act as a private companion, guide or date for another person and offers a service intended to provide sexual stimulation or sexual gratification to the customer. Escort agency means a business that, for consideration, furnishes, offers to furnish or advertises to furnish escorts as one of its primary business purposes and offers a service intended to provide sexual stimulation or sexual gratification to the customer. Hearing Officer means an attorney licensed by the Supreme Court of the State of Texas who is not an employee of the City of Beaumont. SOB.ORD 1/24/00 - 8 - Licensee means a person in whose name a license to operate a sexually oriented business has been issued, as well as every individual listed as an applicant on the application for a license; and in the case of an employee, a person in whose name a license has been issued authorizing employment in a sexually oriented business. Managing/operating means control of the sexually oriented business, i.e., making operational or management decisions concerning the sexually oriented business. The person making these decisions may be referred to as an operator or manager. Nude model studio means any place where a person who appears semi-nude, in a state of nudity, or who displays specified anatomical areas and is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. "Nude model studio" shall not include a proprietary school licensed by the State of Texas or a college, junior college or university supported entirely or in part by public taxation; 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 in a structure: (1) That 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 (2) Where in order to participate in a class a student must enroll at least three (3) days in advance of the class; and (3) Where no more than one (1) nude or semi-nude model is on the premises at any one time. Nude, nudity or a state of nudity means the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, or the showing of the covered male genitals in a discernibly turgid state. Person means an individual, proprietorship, partnership, corporation, association, or other legal entity. Primary Business. A commercial establishment may have other primary 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, adult novelty store, or adult video store. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an adult bookstore, adult novelty store, or adult video store so long as one SOB.ORD 1/24/00 - 9 - (1) of its primary business purposes is the offering for sale or rental for consideration the specified materials which are characterized by the depiction or description of specified sexual activities or specified anatomical areas. For the purpose of this Article, a primary business purpose is one which would generate at least ten percent (10%) of the gross revenue of the commercial enterprise from sexually oriented business activities. Public building means a building used by Federal, State, or local government that is open to the general public. Public park means a publicly owned or leased tract of land, whether situated in the city or not, designated, dedicated, controlled, maintained and operated for use by the general public for active or passive recreational or leisure purposes by the city or any political subdivision of the state and containing improvements, pathways, access or facilities intended for public recreational use. The term 'public park' shall not include parkways, public roads, rights-of-way, esplanades, traffic circles, easements or traffic triangles unless such tracts or areas contain and provide improvements or access to a recreational or leisure use by the public. School means a building, whether situated within the city or not, where persons regularly assemble for the purpose of instruction or education together with the playgrounds, stadia and other structures or grounds used in conjunction therewith. The term is limited to: (1) Public and private schools used for primary or secondary education, in which any regular kindergarten or grades 1 through 12 classes are taught; and (2) Special educational facilities in which students who have physical or learning disabilities receive specialized education in lieu of attending regular classes in kindergarten or any of grades 1 through 12. Semi-nude or in a semi-nude condition means the showing of the female breast below a horizontal line across the top of the areola at its highest point or the showing of the male or female buttocks. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel provided the areola is not exposed in whole or in part. Sexual encounter center means a business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration: SOB.ORD 1/24/00 - 10 - (1) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or (2) Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nude: Sexually oriented business means an adult arcade, adult mini-theatre, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, sexual encounter center, or other commercial enterprise, including parking lots and other areas used in the operation of the sexually oriented business, where one of the primary businesses 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. Sign means any display, design, pictorial, or other representation, which shall be so constructed, placed, attached, painted, erected, fastened or manufactured in any manner whatsoever so that the same is visible from the outside of a sexually oriented business and that is sited to seek the attraction of the public to any goods, services, or merchandise available at such sexually oriented business, specifically including signs not located on the premises of the sexually oriented business. The term "sign" shall also include such representations painted on or otherwise affixed to any exterior portion of a sexually oriented business as well as such representations painted on or otherwise affixed to any part of the property upon which such a sexually oriented business is situated. Specific anatomical areas means: (1) The human male genitals in a discernibly turgid state, even if completely and opaquely covered; or (2) Less than completely and opaquely covered human genitals, pubic region, buttocks or a female breast below a point immediately above the top of the areola; or (3) Any combination of the foregoing. Specified criminal activity means any of the following offenses: (1) Prostitution, promotion of prostitution, aggravated promotion of prostitution, compelling prostitution, obscenity, sale, distribution, or display of harmful material to a minor, sexual performance by a child, or possession of child pornography as described in Chapter 43 or successor statutes of the Texas Penal Code; SOB.ORD 1/24/00 - � � - (2) Public lewdness, indecent exposure, or indecency with a child as described in Chapter 21 or successor statutes of the Texas Penal Code; (3) Sexual assault or aggravated sexual assault as described in Chapter 22 or successor statutes of the Texas Penal Code; (4) Incest, solicitation of a child or harboring a runaway child as described in Chapter 25 or successor statutes of the Texas Penal Code; (5) 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 or successor statutes of the Texas Penal Code; (6) Forgery, credit card abuse or commercial bribery as described in Chapter 32 or bribery as described in Chapter 36 or successor statutes of the Texas Penal Code; (7) A criminal offense described in Chapter 481, Subchapter D or Chapter 483, Subchapter C, or successor statutes of the Health and Safety Code; (8) A criminal offense as described in Chapter 34 or successor statutes of the Texas Penal Code; (9) A criminal offense defined in the Texas Alcoholic Beverage Code which occurred at any time in the scope of employment at a sexually oriented business or any offense involving the use of alcohol except minor in possession and public intoxication convictions which do not exceed one (1) within a three (3) year period; (10) Any misdemeanor or felony offense associated with or related to the operation of a sexually oriented business or conduct by the holder of a sexually oriented business employee license in the scope of employment at a sexually oriented business. (11) Criminal attempt, conspiracy or solicitation to commit any of the foregoing offenses; or any other offense in another state or under Federal statutes that, if committed in this state, would have been punishable as one or more of the aforementioned offenses; or (12) A violation of the provisions of this article. SOB.ORD 1/24/00 - 2 - Specified sexual activities means any of the following: (1) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts, whether clothed or nude; (2) Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation, or sodomy; or (3) Excretory functions as part of or in connection with any of the activities set forth in (1) through (2) above; or (4) Any combination of the foregoing. 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 a controlling interest in the business, whether by sale, exchange, receivership, bankruptcy, or similar means; or (3) The establishment of a trust, gift or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control. Sec. 7-83. License required. (a) It is unlawful: (1) For any person to knowingly or intentionally operate a sexually oriented business without a valid sexually oriented business license issued by the City pursuant to this article. (2) For any person who operates a sexually oriented business to knowingly, intentionally, or recklessly employ a person to work for the sexually oriented business who is not licensed as a sexually oriented business employee by the City pursuant to this article. (3) For any person to be employed by a sexually oriented business unless that employee secures a sexually oriented business employee license on the next business day after becoming employed. SOB.ORD 1/24/00 - 1 3 - (b) An applicant for a sexually oriented business license issued under this Article for a location not previously licensed shall, not later than the 60th day before the date the application is filed, prominently post an outdoor sign at the location stating that a sexually oriented business is intended to be located on the premises and providing the name and business address of the applicant. The sign must be at least 24 by 36 inches in size, must be written in lettering at least two inches (2") in size and located within three feet (3) of the right-of-way of the street which is the main access to the property. The sign shall be in both English and Spanish. (c) An application for a license must be made on a form provided by the City and submitted to the Chief of Police or his designee. Each application submitted to the Chief of Police must be accompanied by a copy of the receipt issued by the City establishing that the application and inspection fee have been paid. (d) All applicants must be qualified according to the provisions of this article. The application may request and the applicant(s) shall provide such information as the City may deem necessary to enable it to determine whether the applicant(s) meets the qualifications established in this article. (e) If a person who wishes to operate a sexually oriented business is an individual, the person must sign the application for a license as applicant. If an applicant who wishes to operate a sexually oriented business is other than an individual, each individual who has a five percent (5%) or greater interest in the business must sign the application for a license as applicant. Each applicant(s) must be qualified under the following section and each applicant(s) shall be considered a licensee if a license is granted. (f) The completed application for a sexually oriented business license shall contain, at a minimum, the following information and shall be accompanied by the following documents: (1) If the applicant is: a. An individual, the individual shall state his/her full legal name and any aliases or other names they have ever used and submit proof that he/she is eighteen (18) years of age; b. If the applicant is a corporation, partnership, joint venture, or other similar business entity, the applicant shall also include: SOB.ORD 1/24/00 - 14 - 1. A Texas corporation, specifically including a limited liability corporative or non-profit corporation, shall provide a copy of the Articles of Incorporation with amendments, names and residential addresses of all current officers and directors, and the name and address of each stockholder holding more than 5% of any class of stock of the corporation at the time of the application or thereafter; 2. A foreign corporation shall provide a copy of the certificate of authority to transact business in Texas with all amendments, names and residential addresses of current officers and directors; and names and addresses of each stockholder holding more than 5% of any class of stock of the corporation at the time of the application; 3. A general or limited partnership shall provide the full legal name and residential address of each of the partners, including limited partners; if the applicant is a limited partnership formed under the laws of Texas, a copy of the certificate of limited partnership filed with the office of the Secretary of State, and amendments included; if one or more of the partners is a corporation, the information required of corporate applicants shall be included in the application in addition to these requirements; 4. If the applicant is a joint venture or other similar entity, the full legal names and residential addresses of the participants and their valid drivers license numbers or Texas Department of Public Safety identification card numbers are required if the participants are individuals; if any participant is a corporation or partnership, the applicable information required in items (1), (2), or (3) above shall be provided; and 5. As to each person required to be identified in this section, the application shall also contain: a statement as to any ownership interest that person has in any other sexually oriented business in Beaumont and/or Jefferson County, Texas; a description as to any SOB.ORD 1/24/00 - 15 - management, supervisory, or oversight responsibility that person will have in the sexually oriented business; a valid driver's license number or Texas Department of Public Safety identification card number; and a certification as to each officer, director, partner or participant that she/he has not been convicted of any of the crimes listed as specified criminal activity. (2) If the applicant intends to operate the sexually oriented business under an assumed name, a copy of the assumed name certificate filed in compliance with Chapter 36 of the Texas Business and Commerce Code. If the sexually oriented business is licensed under the Texas Alcoholic Beverage Code, the application shall be filed and the sexually oriented business shall conduct business under the name shown on the liquor license. (3) If the applicant, or a person residing with the applicant, has been convicted of a specified criminal activity as defined in this article, the application shall include documentation stating the specific criminal activity involved, the date, place, and jurisdiction of each activity. (4) If the applicant, or a person residing with the applicant, has had a previous license under this article or other similar sexually oriented business ordinances from another city or county denied, suspended or revoked, the application shall include documentation stating the name and location of the sexually oriented business for which the permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation. If the applicant or a person residing with the applicant has been a partner in a partnership or an officer, director or 5% or larger stockholder of a corporation that is licensed under this article or other similar sexually oriented business ordinances whose license has previously been denied, suspended or revoked, the application shall include documentation stating the name and location of the sexually oriented business for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revocation. (5) If 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 or county, then the applicant shall provide the names and locations of such other licensed business and copies of those licenses. (6) A designation of which single classification of license the applicant is applying for. The classifications of licenses are: SOB.ORD 1/24/00 - 16 - a. Adult Arcade b. Adult Bookstore C. Adult Novelty Store d. Adult Video Store e. Adult Cabaret f. Adult Motel g. Adult Motion Picture Theatre h. Adult Theatre I. Adult Mini-Theatre j. Nude Model Studio k. Sexual Encounter Center A separate application, application fee, and license fee shall be submitted for each classification. (7) The location of the proposed sexually oriented business, including a legal description and ownership of the property, street address, and telephone number(s), if any, and a copy of any lease or rental agreement. (8) The mailing address and residential address of all applicants. (9) A recent photograph of the applicant(s). (10) The applicant's driver's license number, Social Security number, and state or federally issued tax identification number. (11) A reliable estimate of the number of employees, including a description of the capacities in which they will be employed; a general description of the management structure for the enterprise. 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"). (12) If an applicant wishes to operate a sexually oriented business, other than an adult motel, which shall exhibit on the premises films, video cassettes, laser disks, other video reproductions, or live entertainment which depicts specified sexual activities or specified anatomical areas, then the applicant shall comply with the application requirements set forth in section 7-92. (13) A certification that the proposed sexually oriented business will be located: SOB.ORD 1/24/00 - l 7 - a. A minimum of one thousand five hundred (1,500) feet from any church, child care facility, school, hospital, public building, public park or single family dwelling zoning district boundary. b. Where not more than two (2) other sexually oriented business are located within a distance of two thousand (2,000) feet of the proposed location. This restriction shall not apply to permitted sexually oriented businesses in existence on the effective date of these regulations. C. This subsection shall apply only to property uses in existence at that location at least thirty (30) days prior to the date of application. d. For the purposes of this subsection, measurements shall be made in a straight line from the nearest portion of the building or appurtenance used by the sexually oriented business to the nearest portion of the building or appurtenance that is used for the purposes identified in subsections (a) or (b) above. These distance restrictions apply to an identified purpose whether or not the building or appurtenance used for an identified purpose is located within the City of Beaumont or the unincorporated area of Jefferson County. e. The distance requirements set out in this subsection shall not apply to a business which holds a valid sexually oriented business license on the date this ordinance becomes effective or the sale or subsequent sales of such business or transfer of such license, but shall apply to all other new applications. (14) The applicant's complete business license or permit history including any permit or license which has been issued to the applicant(s) by any agency, board, city, county or state, and any professional or vocational license or permit. This shall include those which have expired or are currently in effect and shall include any license or permit that has been denied, or was issued to the applicant and subsequently revoked or suspended. If there have been licenses or permits which were denied, revoked or suspended, the permit history shall include the reason for that action. (g) Before any applicant may be issued a sexually oriented business employee license, the applicant shall submit on a form to be provided by the City the following information which shall be deemed confidential pursuant to Texas Local Government Code §552.101: SORORD 1/24/00 - 1 8 - (1) The applicant's full legal name or any other names (including "stage" names) or aliases used by the individual; (2) Age, date, and place of birth; (3) Height, weight, hair and eye color; (4) Present residence address and telephone number, unless the applicant wishes the information to remain confidential. In such a case, the information must be provided to the person managing the business for whom they work and it must be available at that location to any authorized employee of the City of Beaumont; (5) Present business address and telephone number; (6) Date, issuing state and number of driver's permit, United States military identification or other state identification card information; (7) Social Security number; and (8) Proof that the individual is at least eighteen (18) years of age. (h) Attached to the application form for a sexually oriented business employee license as provided above, shall be the following: (1) Three color photographs, including a color photograph of the applicant clearly showing the applicant's face, on a form provided by the police department. Any fees for the photographs shall be paid by the applicant. (2) A statement detailing the work history of the applicant for the five (5) years immediately preceding the date of the filing of the application. The statement must include whether such applicant previously operated or is seeking to operate, in this or any other county, city, state, or country a sexually oriented business and whether the applicant has ever had a license, permit, or authorization to do business denied, revoked, or suspended, or had any professional, vocational or sexually oriented business employee license or permit denied, revoked, or suspended. In the event of any such denial, revocation, or suspension, the applicant shall state the name of the issuing or denying jurisdiction, and describe in full the reason for the denial, revocation, or suspension. A copy of any order of denial, SOB.ORD 1/24/00 - 1 9 - revocation or suspension and, if applicable, any reinstatement shall be attached to the application. (3) A statement whether the applicant has been convicted 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. (4) A statement as to whether the applicant has had or now has a sexually oriented business employee license. If the applicant had or has such a license, list the agency which issued the license, date or issuance and license number. (1) The application shall contain a statement by each applicant under oath that: (1) The applicant has personal knowledge of the information contained in the application and that the information contained therein and furnished therewith is true and correct; and (2) The applicant has read the provisions of this article. (j) An applicant may be required to provide fingerprints to be used to verify the applicant's identity and criminal history information. Each applicant shall sign a waiver and authorization form authorizing the Chief of Police or his designee to request on behalf of the applicant criminal history reports from the Texas Department of Public Safety and any appropriate federal agency. (k) A separate application and permit shall be required for each single classification of license at each sexually oriented business. (1) The applicant/licensee shall be under a continuing affirmative duty while the application is pending and during the effective dates of any license to notify the Chief of Police or his designee of any of the following events. Notice shall be provided in writing and delivered no later than seven (7) days after the occurrence of: (1) Any address and/or name change of the individual applicant or licensee; (2) Revocation or suspension of any permit or license listed in the application; SOB.ORD 1/24/00 - 20 - (3) A licensee being charged in a court of law with any specified criminal activity; or (4) A sexually oriented business licensee becoming aware of any of their licensed employees being charged with any specified criminal activity Sec. 7-84. License - Issuance or Denial (a) Within thirty (30) business days of receipt of an application, either original or renewal, for a sexually oriented business, the City shall inspect the premises of a sexually oriented business and the City shall grant or deny the requested license and give written notice to the applicant as to the decision, unless such time period is extended at the request of the applicant. The applicant may request, in writing, that such period be extended for an additional period of not more than ten (10) business days. Written request must be delivered to the City Clerk and Chief of Police. (b) Upon receipt of any application, either original or renewal, for a sexually oriented business employee license, the City shall issue a ten (10) day temporary license and shall grant or deny the requested license and give written notice to the applicant as to the decision within such time period. The time period may be extended for a maximum of ten (10) additional business days based upon a need to conduct an additional investigation by the Police Department. The issuance of a temporary license shall not create any property right in securing a license and shall not be any indication that the applicant will receive or is entitled to a license. (c) Time periods noted in (a) and (b) shall start to run the day the application is submitted and payment in full for the application and investigation is received by the City of Beaumont as required in this Article. (d) The City shall defer the determination whether to approve a sexually oriented business or sexually oriented business employee application and license until final disposition of any pending specified criminal activity or action regarding a violation of this Article. No license shall be issued before there is a final disposition of any specified criminal activity. (e) The sexually oriented business or sexually oriented business employee license shall be denied upon a finding by the City of any of the following facts: (1) The applicant failed to supply all the information requested on the application or information reasonably necessary to make a determination as to whether the applicant meets the qualifications for a license; SOB.ORD 1/24/00 - 21 - (2) The applicant gave materially false, fraudulent or untrue information on the application; (3) The applicant has been convicted of a specified criminal activity as defined in this Article, to wit: a felony specified criminal activity at any time or a misdemeanor specified criminal activity within the five (5) year period prior to the date of the application; (4) The applicant is under the age of eighteen (18) years; (5) The applicant's proposed sexually oriented business is located within one-thousand five-hundred (1,500) feet from any church, child care facility, school, dwelling, hospital, public building or public park; (6) The proposed sexually oriented business would be located where more than two (2) other sexually oriented businesses would be located within the distance of two-thousand (2,000) feet of the proposed location; (7) The proposed sexually oriented business does not meet all the requirements of this Article: or the sexually oriented business is otherwise prohibited by City ordinance, state or federal law; (8) The applicant has had a sexually oriented business employee license or sexually oriented business license revoked by the City within two (2) years prior to the current application; (9) The sexually oriented business employee license is to be used for employment in a business prohibited by local or state law, statute, rule or regulation, or prohibited by a particular provision of this Article; (10) The applicant is overdue in payment to any governmental agency of taxes, fees, fines or other penalties assessed against or imposed upon him/her in relation to any business or property; (11) The applicant or a person with whom the applicant is residing has been denied a license by the City to operate a sexually oriented business within the preceding twelve (12) months or whose license to operate a sexually oriented business has been revoked within the preceding twelve (12) months; SOB.ORD 1/24/00 - 22 - (12) The applicant or a person with whom the applicant is residing has been convicted of a specified criminal activity defined in this Article; (13) The premises to be used for the sexually oriented business has not been approved by the City Health Department, Fire Department, Police Department and the Building Officials as being in compliance with applicable laws and ordinances; or (14) The applicant failed to post the notice sign as required in Section 7- 83()). The distance requirements set out in Subsections (e)(5) and (6) shall not apply to an application for renewal of a sexually oriented business license which was valid and the business was in operation on the date this ordinance became effective. (f) A license granted pursuant to this section shall be subject to annual renewal upon the written application of the applicant and a finding by the City that the applicant has not been convicted of any specified criminal activity as defined in this Article or has not committed any act during the existence of the previous license which would be grounds to deny the initial license application. The renewal of the license shall be subject to the payment of the fee as set forth in Section 7-85. (g) A license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, the address of the sexually oriented business, and the single classification for which the license is issued pursuant to Section 7-83. The license issued to the sexually oriented business 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. The license issued to the employee shall be available for inspection by the police at any time the employee is present on the premises of a sexually oriented business. (h) Any application for renewal of a license shall be filed not more than sixty (60) days nor less than thirty (30) days prior to the expiration of the date of the license. (i) The written notice provided by the City as to the denial of any application does not prohibit the City, in litigation on any appeal, from presenting evidence of additional or alternative facts that support the denial of the license. Sec. 7-85. Fees. (a) Every application for each classification of a sexually oriented business license (whether for a new license or for renewal of an existing license) shall be SOB.ORD 1124100 - 2 3 - accompanied by a five hundred dollar ($500.00) non-refundable application and investigation fee. (b) In addition to the application and investigation fee required above, for each classification of sexually oriented business license granted (new or renewal), the licensee shall pay to the city an annual nonrefundable license fee of three hundred dollars ($300.00) at the time of issuance of license or renewal. (c) Every original application for a sexually oriented business employee license (whether for a new license or for renewal of an existing license) shall be accompanied by a twenty-five dollar ($25.00) nonrefundable application, investigation, and license fee. Thereafter the renewal fee shall be fifteen dollars ($15.00) per year. (d) All license and application fees shall be submitted to the Central Collections Division of the City in the form of a certified check, cashier's check, money order, or cash. If payment thereon is not honored, the City may suspend the license by written notice to the applicant until full payment is received. Sec. 7-86. Inspection. (a) An applicant or licensee shall permit representatives of the police department, health department, fire department, zoning division, or other City department or agency to inspect the premises of a sexually oriented business for the purpose of insuring compliance with federal, state or City statutes, codes, ordinances, or regulations, at any time it is occupied by the person managing the premises or open for business, and shall provide the address and phone number of any employee of the business to such City representative. (b) A person who operates a sexually oriented business or his/her agent or employee commits a misdemeanor if he/she intentionally or knowingly refuses to permit such lawful inspection of the premises at any time the sexually oriented business is open. (c) By accepting a sexually oriented business license under this Article, the licensee gives consent to representative of the City as noted in (a) above to inspect the premises for compliance with federal, state or City statutes, codes, ordinances, or regulations. Sec. 7-87. Expiration of license. (a) Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in section 7-83. Application for renewal shall be made at least thirty (30) days before the expiration date, and when made less than SOB.ORD 1/24/00 - 2 4 - thirty (30) days before the expiration date, the expiration of the license will not be affected but the application will be considered an application for a new license and not as a renewal of an existing license and be subject to the fees and regulations concerning issuance of a new license. (b) When the City denies renewal of a license, the applicant shall not be issued a license for one (1)year from the date of denial. If subsequent to denial, the City finds that the basis for denial of the renewal license has been corrected or abated, the applicant may be granted a license if at least forty-five (45) days have elapsed since the date denial became final. Sec. 7-88. Suspension (a) The Police Chief and the City Attorney shall have the authority and power to initiate, by request to the City Manager, a proceeding to suspend a license issued pursuant to this Article if there is probable cause to believe that a violation of this Article has occurred. (b) If the City Manager finds that probable cause exists to believe that a violation of this Article has occurred, the City Manager shall forward to the license holder or the holder's designated agent a written notice setting forth the reasons for the action. Subject to a request for a hearing pursuant to this Article, the suspension shall become final on the tenth (10th) day following notice to the licensee as provided in this Article. (c) The licensee shall have the opportunity to appeal pursuant to Section 7-105 upon written request submitted to the City Manager within ten (10) business days of delivery of the notice of suspension. The hearing shall be held within fourteen (14) business days of receipt of the request for a hearing on the license, and the licensee and the City Attorney or his designee shall be provided an opportunity to present evidence and cross-examine witnesses. (d) Upon finding from a preponderance of the evidence presented at the hearing that cause exists for suspending the license, the hearing officer shall suspend the license for a period not to exceed sixty (60) days. The hearing officer shall issue a written order suspending the license effective upon notice to the licensee pursuant to this Article. Sec. 7-89. Revocation. (a) The Police Chief and the City Attorney shall have the authority and power to initiate, by request to the City Manager, a proceeding to revoke a license issued pursuant to this Article if there is probable cause to believe a violation of this Article as set out herein has occurred: SOB.ORD 1/24/00 - 2 5 - (1) A licensee gave false or misleading information in the material submitted during the application process; (2) A licensee or an employee managing a sexually oriented business has knowingly or recklessly allowed the possession, use or sale of controlled substances as defined in Texas Health and Safety Code, Chapter 481.002, or dangerous drugs as defined in Texas Health and Safety Code, Chapter 483.001 (or their successor statutes) to occur on the license premise; (3) A licensee or employee managing a sexually oriented business has knowingly or recklessly allowed any criminal activity to occur on the licensed premises; (4) A licensee or any employee managing the sexually oriented business has knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended; (5) Except in the case of an adult motel, a licensee or any employee managing the sexually oriented business has knowingly or recklessly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sex act to occur in or on the licensed premises; (6) A licensee or an employee managing the sexually oriented business has been convicted of any specified sexual activity during the time the license was issued; (7) The sexually oriented business license should not have been issued pursuant to this Article; (8) The sexually oriented business has been closed for business for a period of thirty (30) consecutive days, unless the closure is due to circumstances beyond the control of the licensee and the licensee is proceeding with due diligence to reopen the sexually oriented business; (9) The sexually oriented business license has been suspended within the preceding twelve (12) months; or (10) A licensee or the employee managing the sexually oriented business is delinquent in payment to any governmental agency of any taxes or fees owed. SOB.ORD 1/24/00 - 26 - (b) When a license has been revoked, the revocation shall continue for one (1) year, and the licensee and anyone residing with him shall not be issued a sexually oriented business license for one (1) year from the date the revocation becomes effective. If, subsequent to revocation, the City finds that the basis for the revocation has been corrected or abated, the licensee may be granted a license if at least forty-five (45) days have elapsed since the date the revocation became effective. (c) If the City Manager finds that probable cause exists to believe that a violation of any of the violations set out in this section has occurred, the City Manager shall forward to the license holder or the holder's designated agent a written notice setting forth the reasons for the action. Subject to a request for a hearing pursuant to Section 7-105, the revocation shall become final on the tenth (10th) day following notice to the licensee as provided in this Article. (d) The licensee shall have the opportunity to appear before a hearing officer appointed by the City Manager upon written request submitted to the City Manager within ten (10) business days of delivery of the notice of revocation. The hearing shall be held within fourteen (14) business days of receipt of the request for a hearing on the license and the licensee and the City Attorney or his designee shall be provided an opportunity to present evidence and cross-examine witnesses. (e) Upon a finding from a preponderance of the evidence presented at the hearing that cause exists for revocation of the license, the hearing officer shall order the license to be revoked for a period of one (1) year. The hearing officer shall issue a written order revoking the license effective upon notice to the licensee pursuant to this Article. Sec. 7-90. Transfer of license. A license issued under this Article is personal to the licensee or licensees and may not be transferred 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. Sec. 7-91. Additional regulations for adult motels. (a) Evidence that a sleeping room in a hotel, motel, or a 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 Article. (b) A person commits a misdemeanor if, as the person in control of a sleeping room in a hotel, motel, or similar commercial establishment that does not have a sexually SORORD 1/24/00 - 2 7 - oriented business license, he/she rents or subrents a sleeping room to a person and, within ten (10) hours from the time the room is rented, he/she rents or sub-rents the same sleeping room again. (c) For purposes of subsection (b) of this section, the terms "rent" or "sub-rent" mean the act of permitting a room to be occupied for any form of consideration. Sec. 7-92. Regulations pertaining to exhibition of sexually explicit films, videos or live entertainment in sexually oriented businesses. (a) A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises films, motion pictures, slides, video cassettes, live entertainment, or other video or visual reproductions which depict specified sexual activities or specified anatomical areas, shall comply with the following requirements: (1) Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises showing the location of the manager's station(s), the location of all overhead lighting fixtures and the designation of any portion of the premises in which patrons will not be permitted. A manager's station may not exceed sixty-four (64) square feet of floor space. The manager's station may not be less than four feet (4') wide in any one dimension. 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 (6) inches. The diagram shall also include all locations where live entertainment will occur noting the marked six-foot (6) zone required in Section 7-96. The city may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. (2) The application shall be sworn to be true and correct by the applicant(s). (3) If the sexually oriented business has one (1) manager's station designated pursuant to Section 7-92(A)(1) of this Article, then the interior of the sexually oriented business shall be configured in such a manner that there is an unobstructed view of every area of the sexually oriented business to which SOB.ORD 1/24/00 - 2 8 - any patron is permitted access for any purpose, except designated restrooms, from that manager's station. If the sexually oriented business has two (2) or more manager's stations designated pursuant to Section 7- 92(A)(1) of this Article, 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, except for designated restrooms, 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. (4) It shall be the duty of the licensee and operator, and it shall also be the duty of any agents and employees present in a sexually oriented business, to ensure that the view area specified in subsection (3) remains unobstructed by any doors, partitions, screens, merchandise, display racks, tinted glass or other materials at all times that any patron is present in the sexually oriented business, 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 plan filed pursuant to Section 7-92 of this Article. (5) 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 three (3.0) foot candles as measured three (3) feet above floor level. (6) It shall be the duty of the licensee and operator to ensure that the illumination described is maintained at all times that any patron is present in the premises. (7) In addition to any other requirements of this Article, no adult arcade or adult mini-theatre shall be configured in such a manner as not to have any opening in any partition, screen, wall or other barrier that separates viewing areas for arcade devices or adult mini-theatre devices from other viewing areas for arcade devices or adult mini-theatre devices. This provision shall not apply to conduits for plumbing, heating, air conditioning, ventilation or electrical service, provided that such conduits shall be so screened or otherwise configured as to prevent their use as openings that would permit any portion of a human body to penetrate the wall or barrier separating viewing areas. (8) It shall be the duty of the licensee and operator and it shall also be the duty of any agents and employees present in an adult arcade or adult mini-theatre to ensure that the premises is monitored to assure that no openings are SOB.ORD 1/24/00 - 29 - allowed to exist in violation of subsection (7), above, and to ensure that no patron is allowed access to any portion of the premises where any opening exists in violation of subsection (7), above, until the opening has been repaired. (9) It shall be unlawful for a person to make or attempt to make an opening of any kind in the walls in an adult arcade or adult mini-theatre. (10) The licensee and operator shall, during each business day, ensure that the walls in an adult arcade or adult mini-theatre are regularly inspected to determine if any openings or holes exist. (11) The licensee and operator shall cause all floor coverings in adult arcades or adult mini-theatres to be nonporous, easily cleanable surfaces, with no rugs or carpeting. (12) The licensee and operator shall cause all wall surfaces and ceiling surfaces in all adult arcades and adult mini-theatres to be constructed of, or permanently covered by, nonporous, easily cleanable material. No wood, plywood, composition board or other porous material shall be used within forty-eight (48) inches of the floor. (13) The licensee and operator shall cause all areas open to patron use to be maintained in a clean manner, free from human waste products, semen, needles and trash. (14) Employees of the City shall have access to any part of the premises at any time the business is open. (15) It shall be the duty of the licensee and operator of each sexually oriented business licensed and operated under Section 7-92 to ensure that at least one (1) person who is charged with the responsibility for the operation of the premises is on duty and situated in each manager's station designated pursuant to Section 7-92(A)(1) of this Article at all times that any patron is present in the sexually oriented business or, in the instance of an adult cabaret, at all times that an entertainer is present on the premises. (b) A person having a duty or responsibility under subsection (1) through (15) of subsection (a) above commits a misdemeanor if he or she intentionally, knowingly, or recklessly fails to fulfill that duty or responsibility. SOB.ORD 1124100 - 30 - Sec. 7-93. Additional regulations for escort agencies. (a) An escort agency shall not employ any person under the age of eighteen (18) years. (b) A person commits an offense if any person under the age of eighteen (18) years acts as an escort or agrees to act as an escort for any person. Sec. 7-94. Additional regulations for nude model studios. (a) A nude model studio shall not employ any person under the age of eighteen (18) years. (b) A person under the age of eighteen (18) years commits an offense if the person appears semi-nude or in a state of 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 visible to any other person. (c) A person commits an offense if the person appears in a state of nudity, or knowingly allows another to appear in a state of nudity in an area of a nude model 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, mattress or similar item used for sleep or rest in any room on the premises, except that a sofa may be placed in a reception room open to the public. Sec. 7-95. Prohibition against persons younger than twenty-one (21) in a sexually oriented business. (a) A person commits a misdemeanor if the person intentionally, knowingly, recklessly or negligently allows a customer under the age of twenty-one (21) years on the premises of a sexually oriented business during the hours of operation. (b) It shall be the duty of the licensee and 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' regular business hours. It shall be the duty of the attendant to not allow any customer under the age of twenty-one (21) years to enter the sexually oriented business. It shall be presumed that an attendant knew a customer was under the age of twenty-one (21) unless such attendant asked for and was furnished: (1) A valid operator's, commercial operator's, or chauffeur's drivers license; SOB.ORD 1/24/00 - 31 - (2) A valid personal identification certificate issued by the Texas Department of Public Safety reflecting that such person is twenty-one (21) years of age or older; or (3) identification card issued by the State of Texas, the military or the United States or a foreign country. Sec. 7-96. Operating requirements. (a) The following shall be unlawful at a sexually oriented business: (1) For any person to be nude in a premises licensed hereunder, unless performing in accordance with (5) below. Private rooms at adult motels, public restrooms, and employees' designated dressing rooms that are not visible or accessible to patrons are excepted from this prohibition; (2) For any employee, licensee, operator, or manager to allow any patron, to be in a state of nudity or a semi-nude condition at a premises licensed hereunder; (3) For any person to counterfeit, forge, change, deface, duplicate or alter a license issued hereunder; (4) For any person to offer or accept any gratuity at a sexually oriented business unless it is done pursuant to this subsection: specifically, gratuities being offered to any person performing nude or semi-nude must be placed in a receptacle provided for receipt of gratuities or delivered hand-to-hand. If the gratuity is delivered hand-to-hand, the entertainer and the customer may not touch and the hand of each shall be extended at least one foot (T) from their torsos. A receptacle may not be located on any person or their clothing; (5) For any person performing nude at an enterprise to do so less than six (6) feet from the nearest patron and on a stage less than eighteen (18) inches above floor level; (6) For the licensee or operator of a premise licensed hereunder to allow any location within the sexually oriented business to be used for the purpose of nude live exhibitions unless it is marked with clear indications of the six-foot zone. The absence of this demarcation will create a presumption that there have been violations of these regulations during performances in unmarked areas; SOB.ORD 1/24/00 - 32 - (7) For any person to possess or consume any alcoholic beverage on the premises licensed hereunder unless such possession and/or consumption is authorized by a permit or license issued pursuant to the Texas Alcoholic Beverage Code; (8) For the intensity of illumination at every place that patrons are permitted access to be less than three (3) foot candles as measured at three (3) feet above floor level; (9) For any touching or contact to occur between an entertainer and a customer while engaging in entertainment or while exposing any specified anatomical areas or engaging in any specified sexual activities. It shall be unlawful for any entertainer or customer to knowingly or recklessly cause any contact between such entertainer or customer; (10) For a sexually oriented business licensee to fail to post and maintain a sign at each entrance to said business, with a white background and block letters of at least one inch (1") in height stating the provisions of subsection (9) of this section; (11) For any entertainer or customer to be within one foot (1) of each other while the entertainer is engaging in entertainment or while exposing any specified anatomical areas or engaging in any specified sexual activities, except for providing gratuities in accordance with (a)(4) above; (12) For any employee to engage in entertainment or to expose any specified anatomical areas or engage in any specified sexual activities in the presence of a customer in any separate area within a sexually oriented business to which viewing entry or access is blocked or obscured by any door, curtain or other barrier separating entry to or viewing of such area from any other area of the sexually oriented business; (13) For the licensee, operator, or any agent or employee present in an adult arcade or adult mini-theatre to knowingly or recklessly allow or permit any act of sexual intercourse, sodomy, oral copulation, indecent exposure, lewd conduct or masturbation to occur in the adult arcade or adult mini-theatre or to knowingly or recklessly allow or permit the adult arcade or adult mini- theatre to be used as a place in which solicitation for sexual intercourse, sodomy, oral copulation, lewd conduct or masturbation occur; (14) For any licensee, operator, or manager in any sexually oriented business to permit any employee to provide any entertainment to any customer in any SOB.ORD 1/24/00 - 3 3 - separate area within a sexually oriented business to which viewing entry or access is blocked or obscured by any door, curtain or other barrier, regardless of whether entry to such separate area is by invitation, admission fee, club membership fee or any form of gratuity or consideration; (15) For any licensee, operator or manager of a sexually oriented business to fail or refuse to grant immediate access by any police officer, city fire department official or health officer to any portion of the premises of the sexually oriented business, upon request, for purpose of inspection of such premises for compliance with this article, or any other applicable law; (16) For any licensee, operator or manager of a sexually oriented business to fail to ensure that at least one on-site manager for each manager station is on duty on the premises at all times during which the sexually oriented business is open for business or during which customers are on the premises, except in the instance of adult cabarets as provided in 7-92(a)(15); (17) For any licensee, operator or manager of a sexually oriented business to fail to ensure that all persons acting as managers or employees on the premises hold licenses under Section 7-83 of this Article, that entertainers comply with Section 7-96 of this Article, and that managers have their employee license on their person at all times and conspicuously display identification as a manager; or (18) For any licensee, operator or manager to fail to maintain a complete list of all persons, including names and addresses, who both conduct any business on the premises and are required to obtain a license under Section 7-83 of this Article. (b) A person commits a misdemeanor if the person intentionally, knowingly or recklessly violates any of the provisions of Section 7-96. Sec. 7-97. Hours of operation. No sexually oriented business, except for an adult motel or escort services, may remain open at any time between the hours of two o'clock (2:00) a.m. and eight o'clock (8:00) a.m. on weekdays and Saturdays, and two o'clock (2:00) a.m. and three o'clock (3:00) p.m. on Sundays. SOB.ORD 1/24/00 - 34 - Sec. 7-98. Discrimination. No sexually oriented business shall prohibit entry to the licensed premises based on race, sex, religion or national origin. Sec. 7-99. Injunction. A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of this Article is subject to a suit for any injunction as well as prosecution for criminal violations. Sec. 7-100. Penalty for Article violations. (a) The intentional, knowing, or reckless violation of any provision of this Article, including the doing of anything which is herein prohibited or declared to be unlawful or the failure to do anything or perform any duty which is required herein, shall be punishable as provided by Section 243.010(b) of the Local Government Code or any successor statute. Each day that any violation shall continue shall constitute and be punishable as provided by Section 243.01(b) of the Local Government Code. Each day that any violation shall continue shall constitute and be punishable as a separate offense. (b) The revocation or suspension of any permit shall not prohibit the imposition of a criminal penalty, and the imposition of a criminal penalty shall not prevent the revocation or suspension of a permit. Sec. 7-101. Notice. (a) Any notice required to be given by the City or any agent/employee of the City under these regulations to any application or sexually oriented business applicant, licensee, operator or employee may be given by personal delivery or by United States mail, postage prepaid, addressed to the most recent address as specified in the application for the sexually oriented business or sexually oriented business employee application or the most recent notice of address change. (b) Mailed notice shall be deemed served three (3) days after deposit in the United States mail. (c) In the event that notice given by mail is returned by the postal service as undeliverable, it shall be presumed that the sexually oriented business or employee did not comply with the affirmative duty to notify the City Clerk and Police Chief of any change of address, unless the sexually oriented business or employee can show there was error on the part of the post office, and: SOB.ORD 1/24/00 - 35 - (1) In the case of notice in connection with a sexually oriented business, the Police Chief may have the notice posted at the entrance to the sexually oriented business; or (2) In the case of notice in connection with a sexually oriented business employee license, the Police Chief shall suspend the sexually oriented business employee license until the applicant/holder contacts the City Clerk and Police Chief with a current address. A licensee that conducts business or acts as an employee under a suspended license pursuant to this section shall be in violation each and every day that she/he conducts business in Beaumont. (d) When notice is required to the City, City Clerk, or Police Chief, such notice may be delivered and provided in person or by certified mail. Sec. 7-102. Sexually Oriented Business Employee Records. (a) A sexually oriented business has the duty to keep the following information on file on site for each person employed at the sexually oriented business: (1) The full legal name, professional or performing names and any other names used by the employee; (2) A photocopy of the employee's valid driver's license or Texas Department of Public Safety identification card and their sexually oriented business employee license; (3) The current address and telephone number of the employee; (4) Employee's height, weight, eye color and natural hair color; (5) A photograph of the employee taken within one (1) month immediately preceding the date of employment and updated every year; and (6) A description of the capacity in which the employee is employed. (b) The sexually oriented business has the duty to maintain and make available these records for inspection by the police, City Attorney, or their designees. The City Attorney shall prepare and the City Clerk shall provide a standard format for these records. These records shall include a time record reflecting the times and dates each employee worked. Time records shall be available for inspection by the police, City Attorney, or their designees on-site during the hours of operation of the sexually oriented business for thirty SOB.ORD 1/24/00 - 36 - (30) days. These records shall be retained for at least a period of two (2) years from creation. Upon written request, the sexually oriented business has a duty to provide a copy of the records to the police, the City Clerk, the City Attorney or the City Manager within seven (7) business days of the request. (c) Any employee who provides false information to any sexually oriented business pursuant to this Section violates these regulations. Sec. 7-103. Signage. (a) Notwithstanding Section 30-28 of the City of Beaumont Code of Ordinances or any other City ordinance, code or regulation to the contrary, it shall be unlawful for the licensee or operator of any sexually oriented business or any other person to erect, construct, or maintain any sign for the sexually oriented business other than one (1) primary sign and one (1) secondary sign, as provided herein. (b) Primary signs shall have no more than two (2) display surfaces. Each such display surface shall: (1) Not contain any flashing lights; (2) Be a flat plane, rectangular in shape; (3) Not exceed fifty (50) square feet in area; and (4) Not exceed ten (10) feet in height or ten (10) feet in length. (c) Primary signs shall contain no photographs, silhouettes, drawings or pictorial representations of any manner, and may contain only: (1) The name of the sexually oriented business; and/or (2) One (1) or more of the following phrases: a. "Adult bookstore;" b. "Adult motion picture theatre;" C. "Adult video store;" d. "Adult cabaret;" SOB.ORD 1/24/00 - 3 7 - e. "Adult motel;" f. "Adult novelty store;" g. "Adult theatre;" h. "Adult arcade;" I. "Adult mini-theater;" j. "Nude model studio;" k. "Sexual encounter center;" or I. "Gentlemen's club." (3) Primary signs for adult motion picture theatres may contain the additional phrase, "Movie Titles Posted on Premises." (d) Each letter forming a word on a primary sign shall be of a solid color, and each such letter shall be the same print-type, size and color. The background behind such lettering on the display surface of a primary sign shall be of a uniform and solid color. (e) Secondary signs shall have only one (1) display surface. Such display surface shall: (1) Be a flat plane, rectangular in shape; (2) Not exceed twenty (20) square feet in area; (3) Not exceed five (5) feet in height and four (4) feet in width; and (4) Be affixed or attached to any wall or door of the sexually oriented business. (f) The provisions of item (1) of subsection (b) and subsections (c) and (d) shall also apply to secondary signs. (g) Any sign located on the premises of a commercial multi-unit center containing a sexually oriented business that displays the name, or any portion of the name of the sexually oriented business, any name under which any sexually oriented business was formerly operated on the premises, or that contains any of the terms set forth in item (2) of subsection (c) or any other terminology that is commonly used to identify, or is SOB.ORD 1/24/00 - 3 8 - associated with the presence of a sexually oriented business, shall comply with all restrictions of this section. The intent of this subsection is to prevent the use of signage identifying the commercial multi-tenant center itself from being used as a subterfuge to evade the restrictions on sexually oriented business signs set forth in this section. (h) The signage requirements and restrictions set forth in this section shall not apply to fixed and permanent signs in place at licensed sexually oriented businesses on the date this ordinance is adopted. If a sign is destroyed, it may be replaced. Any new signs or modifications of signs in place on the date this ordinance is adopted shall meet the requirements of this section. Sec. 7-104. Judicial Review. (a) Any licensee, operator or applicant of a sexually oriented business who is aggrieved by a decision that denies, suspends, or revokes a license and who has complied fully and timely with all applicable provisions pertaining to appeals of decisions in this Article may seek appropriate judicial relief by writ of mandamus or other available remedy in a court of competent jurisdiction. (b) The person aggrieved by the decision of the City may seek judicial review of such decision immediately following the decision. (c) The decision of the hearing official suspending or revoking a license under this Article shall be final as of the date written notice of the hearing official's decision is given pursuant to Section 7-101 to the licensee or operator of the sexually oriented business, but, in order to afford the license holder an opportunity to seek judicial review, shall not be effective for purposes of enforcement of the decision by the hearing officer or City until the tenth (10th) day following such notice. If the license holder initiates litigation for the purpose of seeking judicial review within the ten (10) day period, then the decision shall not be effective for purposes of enforcement prior to the thirtieth (30th) day following such notice. This subsection shall apply only to a decision sustaining the suspension or revocation of a license for an existing sexually oriented business and shall not apply to a decision sustaining the denial of an initial application for a proposed sexually oriented business. Sec. 7-105. Hearing (a) When the City Manager receives a written request for a hearing concerning the denial of a license or the suspension or revocation of a license, the City Manager shall forward the written request to the City Attorney for review. The City Attorney shall review the request and determine whether the written request complies with the requirements of SOB.ORD 1/24/00 - 39 - this Article. Upon notification by the City Attorney that the request is in compliance with this Article, the City Manager shall initiate the public hearing procedure, as follows: (1) The City Manager shall appoint a hearing officer and a date and location shall be set for the public hearing. (2) The City Clerk or his/her designee shall send the person requesting the hearing and/or licensee a written notice at least ten (10) days in advance and shall make a copy of the notice of hearing available to the public. (3) The hearing officer may reschedule the hearing for good cause. If rescheduled, new notice of hearing shall be posted as provided herein. (4) The person requesting the hearing may request that a court reporter make a record of the hearing. This request must be made at least two (2) days prior to the hearing and all costs associated with the court reporter and the cost of making an official record and one (1) transcript for the City shall be borne by the person requesting the hearing. The hearing officer shall arrange for a court reporter to make a record of the hearing, including exhibits and testimony. (b) The hearing shall be conducted by the hearing officer under the following guidelines. The hearing officer shall liberally construe these guidelines. (1) Parties may be assisted by counsel; (2) Parties may expressly waive the right to counsel; (3) The hearing official shall, upon proper request, provide for appropriate facilities for any disabled person to be able to participate in the hearing. This shall include, but not be 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 officer shall accommodate the translation of proceedings; (5) The hearing officer may exclude evidence that is irrelevant, immaterial, or unduly repetitious. Relevancy and materiality shall be SOB.ORD 1/24100 - 40 - evaluated by the relation of the evidence to the nature of the hearing, i.e. initial application, renewal, or revocation, etc.; (6) If no request is made for an official record, any person may record, video tape or transcribe the hearing providing there is no interference with the proceeding. The hearing officer shall have the power to limit any interference with the proceeding. (c) The hearing officer may continue a 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'/2) hours and it appears to the hearing officer that a significant amount of time is required to fully present the public concerns and/or matters related to the issue before the hearing official; or (2) The parties need additional time to develop a solution to issues identified at the hearing. (3) A continuation shall not be for the purpose of delay or developing new evidence. (d) After the conclusion of the public hearing, the hearing officer shall, within five (5) business days after the conclusion of the hearing, produce a written statement containing the hearing officer's findings of fact, conclusions of law, and/or recommendations as they would relate to the issue(s) pending before the hearing officer. This written statement shall be forwarded to the City Attorney, the applicant or licensee, and the party who requested the hearing (if appropriate). if no official record of the hearing has been requested, the hearing officer's statement shall be the official record of the public hearing. The written decision of the hearing officer shall be final, subject to judicial review. Sec. 7-106. Lost or Stolen License. (a) If a sexually oriented business or business employee license is lost, stolen, or destroyed, a replacement may be obtained by filing a lost license application with the Police Chief or his designee and paying a replacement fee. (b) A replacement license shall be issued upon confirmation of the identity of the applicant and status of the license through the records of the City Clerk and Police Department. SOB.ORD 1/24/00 - 41 - (1) A replacement license will expire on the same date as the original license. (2) A replacement license for a sexually oriented business employee will be assigned a new license number. (c) The claim that a license was lost or stolen shall not be a defense to prosecution for conducting business or engaging in employment if the business operates or the employee works without a valid license being displayed as required in this Article. (d) A license issued pursuant to this Article which is found in the possession of any person other than the authorized license holder may be immediately seized by any law enforcement officer who shall then forward the license to the Chief of Police. (e) It shall be a misdemeanor for any person, other than the authorized licensee, to display or use any license issued pursuant to this Article. Section 2. That if any section, subsection, sentence, clause or phrase of this ordinance, or the application of same to a particular set of persons or circumstances should for any reason be held to be invalid, such invalidity shall not affect the remaining portions of this ordinance, and to such end the various portions and provisions of this ordinance are declared to be severable. Section 3. All ordinances or parts of ordinances in conflict herewith are repealed to the extent of the conflict only. Section 4. That any person who violates any provision of this ordinance shall, upon conviction, be punished as provided in Section 1-8 of the Code of Ordinances of the City of Beaumont, Texas. SOB.ORD 1/24/00 - 42 - r Section 5. The ordinance provisions which require physical changes to the interior of an existing sexually oriented business will become effective forty-five (45) days after passage of this ordinance. PASSED BY THE CITY COUNCIL of the City of Beaumont this the ' day of t , 2000. Mayor - SOB.ORD 1/24/00 - 43 -