Ordinance No. 8,301Published in the Baytown Sun: 980611 -1
Thursday, July.18, and
Friday, July 19 ORDINANCE NO. 8301
® AN ORDINANCE OF THE CITY OF BAYTOWN, TEXAS, REPEALING
CHAPTER 20 `BUSINESSES," ARTICLE II "SEXUALLY ORIENTED
COMMERCIAL ENTERPRISES" OF THE CODE OF ORDINANCES OF THE
CITY OF BAYTOWN, TEXAS, IN ITS ENTIRETY AND REPLACING THE
SAME WITH A NEW CHAPTER 20 `BUSINESSES," ARTICLE II
"SEXUALLY ORIENTED COMMERCIAL ENTERPRISES" OF THE CODE OF
ORDINANCES OF THE CITY OF BAYTOWN, TEXAS; PROVIDING FOR A
PENALTY NOT EXCEEDING FOUR THOUSAND AND NO /100 DOLLARS
($4,000.00), CONFINEMENT IN JAIL FOR A TERM NOT TO EXCEED ONE
YEAR OR BOTH SUCH FINE AND CONFINEMENT FOR THE VIOLATION
OF THE SEXUALLY ORIENTED COMMERCIAL ENTERPRISES
REGULATIONS; PROVIDING A REPEALING CLAUSE; CONTAINING A
SAVINGS CLAUSE; AND PROVIDING FOR THE PUBLICATION AND THE
EFFECTIVE DATE THEREOF.
WHEREAS, the City Council of the City of Baytown finds that the unrestricted operation
of sexually oriented businesses is detrimental to the public health, safety, and welfare of the City
of Baytown; and
WHEREAS, sexually oriented businesses require special supervision in order to protect
and preserve the health, safety and welfare of the customers of such businesses as well as the
citizens of the communities where they locate; and
WHEREAS, the City Council of the City of Baytown finds that sexually oriented
businesses provide enhanced opportunities for participation in various forms of criminal
activities, including, but not limited to, prostitution, lewd conduct, indecent exposure, obscenity
law violations and related crimes associated with sexual conduct or sexually oriented materials;
and
WHEREAS, the City has a substantial public concern that its residents be protected from
such criminal activity and be protected from casual sexual activity that facilitates the spread of
sexually transmitted diseases, which are legitimate health and safety concerns of the City; and
WHEREAS, there is convincing documented evidence that sexually oriented businesses
because of their very nature have a deleterious effect on both the existing businesses around
them and the surrounding residential areas adjacent to them, causing increased crime and the
reduction of property values; and
WHEREAS, sexually oriented businesses, due to their nature, have serious objectionable
operational characteristics, particularly when they are located in proximity to each other, thereby
contributing to urban blight and downgrading the quality of life in the adjacent area; and
• WHEREAS, the City Council of the City of Baytown wants to prevent these adverse
effects and thereby protect the health, safety and welfare of the citizens of Baytown; protect the
980611 -1a
® citizens of Baytown from increased crime; preserve the quality of life; preserve the property
values and character of surrounding neighborhoods and deter the spread of urban blight; and
WHEREAS, the City Council of the City_ of Baytown finds that regulation through
permitting and licensing is a legitimate means of accountability to ensure that operators of
sexually oriented businesses comply with reasonable regulations -and -to -ensure that operators do
not knowingly allow their establishments to be used as places of illegal sexual activity or
solicitation; and
WHEREAS, it is not the intent of this ordinance to suppress any speech activities
protected by the First Amendment, but to enact a content neutral ordinance that addresses the
secondary effects of sexually oriented businesses as well as the health problems associated with
such businesses; NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section l: All matters and facts set forth in the recitals above are found to be true,
and are approved as the findings of the City Council of the City of Baytown.
Section 2: That Chapter 20 `Businesses," Article II "Sexually Oriented Commercial
Enterprises" of the Code of Ordinances, City of Baytown, Texas, is hereby repealed in its entirety.
Section 3: That the Code of Ordinances of the City of Baytown, Texas, is hereby
amended by adding a chapter and article numbered Chapter 20 "Adult Commercial
Establishments," Article II "Sexually Oriented Commercial Enterprises," which reads as follows:
Chapter 20 BUSINESSES
Article II. Sexually Oriented Commercial Enterprises
Division 1. In General
See. 20 -101. Definitions.
As used in this article, the following words and terms shall have the meanings ascribed to
them in this section, unless the context of their usage clearly indicates another meaning:
Achromatic means colorless, lacking in saturation or hue. Without limitation, gray shall be
included, but white and black shall be excluded from the definition of achromatic.
Adult arcade shall mean any premises that is subject to regulation under Chapter 243 of the
V.T.C.A., Local Government Code, as amended, to which members of the public or members of
any club, group or association are admitted and permitted to use one or more arcade devices.
Adult bookstore shall mean an establishment that as its primary business purpose offers to
customers any one or more of the following:
OA
980611 -1b
(1) books, magazines, periodicals or other printed matter, photographs, films, motion
pictures, video cassettes or video reproductions, computer programs, slides or
other visual representations or any other pictorial materials (whether for use or
viewing off - premises or on- premises), which are intended to provide sexual
stimulation or sexual gratification to such customers, and that- depict or describe
specified sexual activities or specified anatomical areas; and
(2) instruments, devices or paraphernalia that are designed for use in connection with
specified sexual activities.
Adult cabaret shall mean a nightclub, bar, restaurant or other similar commercial establishment
whose primary business features the following, which is intended to provide sexual stimulation
or sexual gratification to customers:
(1) persons who appear totally nude, semi -nude or in a state of nudity;
(2) live performances which are characterized by the exposure of specified
anatomical areas or specified sexual activities; or
(3) films, motion pictures, computer simulations, video cassettes, slides or other
reproductions which are characterized by the depiction or description of specified
sexual activities or specified anatomical areas.
Adult encounter parlor shall mean an establishment, business or commercial enterprise whose
primary business is the provision of a premises where customers either congregate, associate, or
consort with employees who engage in specified sexual activities with or in the presence of such
customers, or who display specified anatomical areas in the presence of such customers with the
intent of providing sexual stimulation or sexual gratification to such customers.
Adult lounge shall mean an adult cabaret, which is a permitted or licensed premises, pursuant to
the V.T.C.A., Alcoholic Beverage Code, where alcoholic beverages may be served or sold.
Adult modeling studio shall mean an establishment that provides to customers figure models who
are so provided with the intent of providing sexual stimulation or sexual gratification to such
customers and who engage in specified sexual activities or display specified anatomical areas
while being observed, painted, painted upon, sketched, drawn, sculptured, photographed, or
otherwise depicted by such customers.
Adult motel shall mean a hotel, motel or similar commercial establishment that:
(1) offers accommodations to the public for any form of consideration and provides
customers with closed - circuit television transmission, films, motion pictures,
video cassettes, slides or other reproductions which are characterized by the
depiction or description of specified sexual activities or specified anatomical
areas; and
3
980611 -1c
• (2) offers a sleeping room for rent for a period of time that is less than ten (10) hours
or allows a tenant or occupant of a sleeping room to subrent the room for a period
of time that is less than ten (10) hours.
Adult motion picture theater shall mean a commercial establishment that regularly shows for any
form of consideration, films, motion pictures, video cassettes, slides or similar photographic
reproduction which are characterized by the depiction or description of specified sexual activities
or specified anatomical areas.
Adult theater shall mean a theater, concert hall, auditorium or similar commercial establishment
that regularly features live performances characterized by the exposure of specified anatomical
areas as defined in this section.
Allow shall mean to let happen, cause, suffer or permit, including the failure to prevent.
Applicant shall mean the person who submits an application for a permit and who is the intended
operator of the enterprise. Where appropriate, this term includes a designated agent of the
applicant.
Arcade device shall mean a coin- or slug- operated or electronically or mechanically controlled
machine or device that dispenses or effectuates the dispensing of entertainment that is intended
for viewing of five or fewer persons at any one time in exchange for any payment of
consideration.
Child care facility shall mean a facility, whether situated within the city or not, used as a day
nursery, children's boarding home, child placement agency or other place for the care or custody
of children under 15 years of age, licensed or required to be licensed by the state pursuant to
V.T.C.A., Human Resources Code §42.001 et seq.
Church or place of religious worship shall mean a facility, including all structures and grounds,
whether situated within the city or not, at which persons regularly assemble for religious worship
or which is intended primarily for purposes connected with faith or for propagating a particular
form of religious belief.
Commercial multi -unit center shall mean a building or structure, including a shopping mall or
strip shopping center, containing three or more separate premises, each of which is offered by
lease or otherwise for separate occupancy or control and each of which occupies an enclosed
area having its own door or entranceway opening onto public property, a public way, or a
common area.
Conduct any business in an enterprise. Any person who does any one or more of the following
shall be deemed to be conducting business in an enterprise:
(1) operates a cash register, cash drawer or other depository on the enterprise
• premises where cash funds or records of credit card or other credit transactions
4
98U611 -1d
generated in any manner by the operation of the establishment or the activities
conducted therein are kept;
(2) displays or takes orders from any customer for any merchandise, goods,
entertainment or other services offered on the enterprise premises;
(3). delivers or provides to any customer any merchandise, goods; entertainment or
other services offered on the enterprise premises;
(4) acts as a door attendant to regulate entry of customers or other persons into the
enterprise premises; or
(5) supervises or manages other persons in the performance of any of the foregoing.
activities on the enterprise premises.
Customer shall mean any person, other than the employees or permitted Class II performers at a
Class I enterprise, who:
(1) is allowed to enter an enterprise in return for the payment of an admission fee or
any other form of consideration or gratuity;
(2) enters an enterprise 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 an enterprise operating as a private club.
Director shall mean the chief of police and his designees, which may include, but not be limited
to, officers and agents of the city.
Display surface means the entire surface of a sign, on one side, devoted to exhibiting advertising.
The display surface shall not include the sign frame and incidental supports thereto.
Employee shall mean any person who renders any service whatsoever to the customers of an
enterprise or who works in or about an enterprise and who receives compensation for such
service or work from the operator or owner of the enterprise or from the customers therein,
except for individuals who have a valid Class II SOBP working at an enterprise under a written
contract.
Enterprise shall mean an adult arcade, adult bookstore, adult cabaret, adult encounter parlor,
adult lounge, adult modeling studio, adult motion picture theater, adult theater, escort agency, or
any establishment whose primary business 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 its customers, and which is distinguished by or characterized by an emphasis on
matter depicting, describing or relating to specified sexual activities or specified anatomical
areas.
5
980611 -1e
® (1) Enterprises are classified as follows:
(a) Class I Enterprises. Class I Enterprises conduct business regularly at a
specific location; and-
(b) Class II Enterprises. Class II Enterprises are individuals who offer, for
compensation a service intended to provide sexual stimulation or sexual
gratification to customers at any location in the City, unless that individual
is an employee of a Class I enterprise working at the location permitted
under a Class I SOBP.
(2) The term "enterprise" shall not be construed to include:
(a) any business operated by or employing licensed psychologists, licensed
physical therapists, licensed athletic trainers, licensed cosmetologists, or
licensed barbers performing functions authorized under the licenses held;
(b) any business operated by or employing licensed physicians or licensed
chiropractors engaged in practicing the healing arts;
(c) any retail establishment whose primary business is the offering of wearing
apparel for sale to customers;
(d) a massage establishment which is properly registered under Chapter 752,
Acts of the 69'h Legislature, Regular Session, 1985 (Article 4512k,
Vernon's Texas Civil Statutes), as amended;
(e) a bookstore, movie theater or video store, unless that business is an adult
bookstore, adult motion picture theater, or adult video store;
(f) a theater, concert hall, auditorium or similar commercial establishment
unless that business is an adult theater; or
(g) a tanning facility that is properly licensed pursuant to Chapter 145 of the
V.T.C.A., Health and Safety Code, the Tanning Facility Act, as amended
by Acts of 1995.
Escort shall mean 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 of
another person and offers a service intended to provide sexual stimulation or sexual gratification
to the customer.
Escort agency shall mean 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
is to provide sexual stimulation or sexual gratification to the customer.
3
980611 -1f
• Entertainment shall mean any act or performance, such as a play, skit, reading, revue,
pantomime, scene, song, dance, musical rendition or striptease, whether performed by
employees, agents, contractors, or customers. The term "entertainment" shall also mean
bartenders, waiters, waitresses, or other employees exposing specified anatomical areas or
engaging in specified sexual activities in the presence of customers.
Exterior portion means any part of the physical structure of an enterprise,- including a wall,
veneer, door, fence, roof, roof covering, or window, which is visible from any public way or
public property.
Hospital shall mean a building used to provide in- patient medical care for the sick or injured and
licensed pursuant to the Texas Hospital Licensing Law, V.T.C.A., Health and Safety code
§242.001 et seq., or operated by an agency of the federal government.
Interested parry shall mean any person who owns or leases property or otherwise resides within
1,000 feet of a Class 1 enterprise or the premises subject to an application for a Class 1 SOBP;
any official who is elected by residents of the City or the designated agent of the foregoing.
Live exhibition shall mean a live performance by one or more individuals conducted in front of at
least one customer, including, but not limited to, dancing, modeling, sword swallowing, juggling,
acrobatic acts, wrestling and pantomime.
Nudity or state of nudity shall mean any state of dress which fails to opaquely cover a human
buttock, anus, male genitalia, female genitalia or areola of a female breast. The term shall also
mean any state of dress which covers a human buttock, anus, male genitalia, female genitalia or
areola of a female breast only by means of a liquid, emulsion or other similar substance or
material that is applied directly to the surface of the skin, including, but not limited to, spray -on
plastic derivatives, such as latex, and that simulates the exposure of a human buttock, anus, male
genitalia, female genitalia or areola of a female breast
Operator shall mean the manager or other natural person principally in charge of an enterprise.
Owner or owners shall mean the proprietor if a sole proprietorship, all general partners if a
partnership, or the corporation and all officers, directors, and persons holding 50 percent or more
of the outstanding shares if a corporation. The term "owner" shall not include any such person
who has given to the operator a statement under oath that he does not desire to be listed on the
permit application and that he waives any right to any notice that is required or permitted to be
given under this article.
Permit shall mean a current, valid sexually oriented business permit issued by the director
pursuant to the terms of this article to an operator for an enterprise, and is sometimes referred to
as an SOBP.
Public building shall mean a building that is used by the Federal, State or Local Government that
is open to the general public.
7
980611 -1g
41 Public park shall mean 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 Ieisure purposes by any non - profit organization providing
educational and recreational facilities, or by the city, county, state, any political subdivision of
the state, or federal government which land provides and contains 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.
Residential means pertaining to the use of land, whether situated within the city or not, for
premises such as homes, townhomes, patio homes, manufactured homes, duplexes,
condominiums and apartment complexes, which contain habitable rooms for nontransient
occupancy and which are designed primarily for living, sleeping, cooking, and eating therein. A
premises which is designed primarily for living, sleeping, cooking and eating therein shall be
deemed to be residential in character unless it is actually occupied and used exclusively for other
purposes. Hotels, motels, boarding houses, nursing homes, college or university dormitories,
hospitals, and nursery schools shall not be considered to be residential. The term "residential"
shall also include any unimproved tract designated for tax appraisal purposes as residential by
the Harris County Appraisal District or the Chambers County Appraisal District if situated in the
city or by the appraisal district of the county in which the tract is situated if not situated in the
city. The term additionally shall include any tract, that, based upon the records of the planning
official has been subdivided or platted for residential use, but that is not yet designated for tax
appraisal purposes as residential.
School shall mean facilities, structures and grounds, whether situated within the city or not,
where persons regularly assemble for the purpose of instruction or education together with the
playgrounds, dormitories, stadia and other structures or grounds used in conjunction therewith.
The term includes:
(1) public and private schools used for primary or secondary education, in which any
regular kindergarten or grades one through 12 classes are taught;
(2) special educational facilities, whether public or private, in which students who
have physical or learning disabilities receive specialized education in lieu of
attending regular classes in kindergarten or any of grades one through 12; and
(3) all colleges and universities, including junior colleges, both public and private.
Semi -nude means any state of dress which opaquely covers no more than human buttocks, anus,
male genitalia, female genitalia and areolas of female breasts. The use of a liquid, emulsion or
other similar material applied directly to the surface of the skin, including, but not limited to,
spray -on plastic derivatives, such as latex, simulating a state of total nudity, to cover the human
buttocks, anus, male genitalia, female genitalia and areolas of female breasts shall render such
state of dress to be "totally nude" rather than "semi- nude."
8
980611 -1h
® 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 an enterprise and that is used to seek the attraction of the
public to any goods, services or merchandise available at such enterprise. The term 'sign' shall
also include such representations painted on or otherwise affixed to any exterior portion of an
enterprise as well as such representations painted on or otherwise affixed to any part of the tract
upon which such an enterprise is situated.
SOBP means a Sexually Oriented Business Permit issued and regulated pursuant to this article,
and is sometimes referred to as a "permit."
Specified anatomical areas shall mean:
(l) less than completely and opaquely covered:
(a) human genitals, pubic region or pubic hair; or
(b) buttock; or
(c) female breast or breasts or any portion thereof that is situated below a
point immediately above the top of the areola; or
(d) any combination of the foregoing; or,
(2) human male genitals in a discernibly erect state, even if completely and opaquely
covered.
Specified sexual activities:
(1) human genitals in a discernible state of sexual stimulation or arousal;
(2) sex acts, whether actual or simulated, including masturbation, sexual intercourse,
oral copulation or sodomy;
(3) fondling or other erotic touching of human genitals, pubic region or pubic hair,
buttock or female breast or breasts, whether clothed or nude; or
(4) excretory functions as part of or in connection with any of the activities set forth
in (1) through (3) above; or
(5) any combination of the foregoing.
Totally nude shall mean a state in which a person's entire pubic region, genitals or anus either is
not opaquely covered or is covered only by means of a liquid, emulsion or other similar
substance or material that is applied directly to the surface of the skin, including, but not limited
• to, spray -on plastic derivatives, such as latex, which simulates a state of total nudity.
980611 -1i
Tract means a contiguous parcel of land under common ownership, whether situated within the
city or not.
Zoning regulations means the zoning regulations of the city.
See. 20 -102. Notices.
(a) Any notice required or permitted to be given by the director or any other city office,
division, department or other agency under this article to any applicant, operator or owner
of an enterprise may be given either by personal delivery or by certified United States
mail, postage prepaid, return receipt requested, addressed to the most recent address as
specified in the application for the permit which has been received by the director, or any
notice of address change which has been received by the director.
(b) Notices mailed in compliance with subsection (a) of this section shall be deemed given
upon their deposit in the United States Mail. However, any notice required or permitted
to be given to the director by any person under this article shall not be deemed given until
and unless it is received in the office of the director at the time(s) and in the manner
provided for filing of applications in section 20 -110 of this article.
(c) It shall be the duty of each owner who is designated on the permit application and each
operator to furnish notice to the director in writing of any change of residence or mailing
address.
(d) In the event that any notice given by mail is returned by the postal service as
undeliverable, it shall be considered a violation of the affirmative duty to notify the
director of any change of address unless the permittee can show that there was error on
the part of the Post Office. If a notice is so returned,
(1) in the case of notice in connection with a Class I SOBP, the director shall cause
the notice to be posted at the principal entrance to the enterprise; and
(2) in the case of notice in connection with a Class II SOBP, the director shall
suspend the SOBP until the applicantiholder contacts the director with a current
address. An individual who conducts business as an enterprise under a suspended
SOBP pursuant to this section shall be in violation each and every day that he /she
conducts business in the city.
Sec. 20 -103. Penalty.
(a) The 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
10
980611 -1j
® the Local Government Code, as amended. Each day 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. 20 -104. Prohibited enterprises.
(a) The following categories of sexually oriented enterprises are prohibited in the city:
(1) adult modeling studios;
(2) escort agencies;
(3) adult encounter parlors;
(4) any enterprise whose employees appear in a state of total nudity; and
(5) any Class II enterprises that provide services in a state of total nudity.
(b) It shall be a violation to engage in these business activities in the city.
Sec. 20 -105. Investigation
Upon receiving the application for a SOBP or an application for renewal, the director shall
make an investigation to determine compliance with this article.
Sec. 20 -106. Authority to file suit.
The city attorney is hereby authorized to file suit to enjoin the violation of this article.
Sec. 20 -107. Judicial review.
(a) Any owner, operator, or applicant of an enterprise who is aggrieved by a decision that
denies, suspends, or revokes a permit, 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.
•
980611 -1k
® (b) The person aggrieved by the decision of the city may seek judicial review of such
decision immediately following the decision. The city attorney shall cooperate with the
aggrieved party in seeking an expedited disposition of the matter.
Division 2. Permits
Sec. 20 -108. Permit. Required.
(a) It shall be unlawful for any person to own, operate or conduct any business in an
enterprise at any location within the city without a valid permit for the enterprise,
whether Class I or Class Il, issued in accordance with this article.
(b) A separate permit shall be required for each enterprise.
(c) Each location of a Class I enterprise shall constitute a separate enterprise for which a
permit is required pursuant to this article.
(d) An individual who is a Class 1I enterprise shall be issued a single SOBP.
(e) In any prosecution under subsection (a) of this section, it shall be presumed that there was
no permit at the time of the alleged offense, unless a permit was then posted, displayed,
or readily available for immediate inspection as required in section 20 -109.
(f) An enterprise without a SOBP is a public nuisance enjoinable under the provisions of this
article.
Sec. 20 -109. Permit Displayed.
(a) The permit for a Class I enterprise shall be displayed at all times at or near the principal
public entrance to the enterprise in such a manner that it will be conspicuous to customers
who enter the premises.
(b) The permit for a Class II enterprise shall be readily available for immediate inspection at
any premise where the individual is conducting business in accordance with section 20-
128(f).
Sec. 20 -110. Permit Application.
(a) A separate application shall be required for each enterprise.
(b) Applications for a Class I or Class II permit, whether original or renewal, must be made
to the director by the intended operator of the enterprise. Applications must be verified
under oath and submitted by hand delivery by the intended operator to the office of the
• chief of police during regular working hours or by certified mail, return receipt requested
12
980611 -11
® from the intended operator to the office of the chief of police. Application forms shall be
supplied by the director.
(c) All applications shall include or be accompanied by the following at the time of
submission to the director:
(1) . the full legal -name and any other name used by the applicant;
(2) a general description of the enterprise, which shall include the address of the
enterprise and the services and products which will be offered;
(1) A Class I SOBP shall be valid only for the address provided in the
application.
(ii) A Class 11 application must contain the mailing address of the applicant.
(3) the applicant's complete business license or permit history including any permit
or license which has been issued to the applicant by any agency, board, City
County or State, and any professional or vocational license or permit, which
history shall include the following:
(i) all licenses or permits which have expired or are currently in effect;
(ii) any license or permit that has been denied or was issued to the applicant
and subsequently revoked or suspended; and
(iii) the reason for all permit or license denials, revocations, or suspensions, if
any;
(4) a copy of the following, whichever is applicable:
(1) if the applicant intends to operate the enterprise under an assumed name, a
certified, copy of the assumed name certificate filed in compliance with
the Assumed Business or Professional Name Act (Texas Revised Civil
Statutes Annotated, Business and Commerce Code, Chapter 36);
(ii) if the enterprise is licensed under the V.T.C.A., Alcoholic Beverage Code,
a copy of the application shall be filed and the enterprise shall conduct
business under the name shown on the liquor license; or
(iii) if the applicant is an individual, the applicant's valid driver's license
number or Texas Department of Public Safety identification card number;
(5) a non - refundable fee of
® (1) $300.00 for an original application for a Class I permit,
13
0 (ii) $300.00 for a renewal application for a Class I permit,
•
980611 -1m
(iii) $200.00 for an original application for a Class II permit; or
(iv) $200.00 for a renewal application for a Class -11-permit,
as applicable, shall be paid in the form of a money order, cashier or bank check —
no personal checks shall be accepted
(6) a notarized statement made under oath that:
(i) 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
(ii) the applicant has read and understands the provisions of this article; and
(7) an authorization for the director to seek information to confirm any statements set
forth in the application.
(d) If the applicant is an individual, the applicant shall also provide the following:
(1) the city, county and state of each of the applicant's residences for the three years
immediately preceding the date of the application, indicating the dates of each
residence and including the present mailing address of the applicant;
(2) the applicant's business occupation and employment history for the three years
immediately preceding the date of application, indicating the applicable dates and
addresses;
(3) documentation that the applicant is at least 18 years of age, verified by a
photographic identification card issued by a governmental entity;
(4) the applicant's height, weight, eye color and natural hair color;
(5) two prints of a color photograph taken within 30 days of the date on which the
application is filed;
(i) The size and characteristics of the photograph shall be specified by the
director in the application form.
(ii) One photograph shall be affixed to the SOBP and one photograph shall be
retained by the director.
14
980611 -in
(iii) New photograph may be required by the director upon application for
renewal of the SOBP.
(6) the applicant's criminal history which shall consist of the following:
(i) a statement of any and all criminal convictions and the date and place
thereof, which occurred within the five -year period immediately preceding
the date of the application; and
(ii) any charges to which applicant entered a plea of nolo contendere or for
which applicant received deferred adjudication, exclusive of Class C
misdemeanor traffic violations during the five -year period immediately
preceding the date of the application;
(7) the director may require the applicant to furnish finger prints for the purpose of
establishing identification;
(8) other identification and information as reasonably necessary in order to confirm
the validity of identification and other information provided in the application;
(9) a mailing address where the applicant can be reliably contacted.
(e) If the applicant is a corporation, partnership, joint venture, or other similar business
entity, the applicant shall also include the following:
(1) A Texas corporation shall provide:
(i) a certified copy of the articles of incorporation, together with all
amendments thereto;
(ii) the names and addresses of all current officers and directors; and
(iii) the name and address of each stockholder holding more than 5% of the
stock of the corporation.
(2) A foreign corporation shall provide:
(i) a certified copy of the certificate of authority to transact business in this
state, together with all amendments thereto;
(ii) names and addresses of all current officers and directors; and
(iii) the name and address of each stockholder holding more than 5% of the
stock of the corporation.
0 (3) A general or limited partnership shall provide:
15
980611 -10
® (i) the name and address of each of the partners, including limited partners;
and
•
(ii) the information required of corporate applicants hereinabove if one or
more of the partners is a corporation.
(4) A limited partnership formed under the laws of Texas shall provide:
(1) a certified copy of the certificate of limited partnership, together with all
amendments thereto, filed in the office of the Secretary of State under the
Texas Revised Limited Partnership Act (Article 6132a -1 Texas Revised
Civil Statutes).
(ii) the information required of corporate applicants hereinabove if one or
more of the partners is a corporation.
(5) A foreign limited partnership shall provide:
(i) a certified copy of the certificate of limited partnership and the
qualification documents, together with all amendments thereto, fled in the
office of the Secretary of State under the Texas Revised Limited
Partnership Act (Article 6132a -1 Texas Revised Civil Statutes); and
(ii) the information required of corporate applicants hereinabove if one or
more of the partners is a corporation.
(6) A joint venture or other similar entity shall provide the names and addresses of
the participants and their drivers license or Texas identification numbers if the
participants are individuals. If any participant is a corporation or partnership, the
applicable information required in subsections (1), (2), (3), (4) and (5) of this
subsection (e) shall be provided.
(7) As to each person required to be identified in this section, the application shall
also contain:
(i) a statement as to any ownership interest that person has in any other
enterprise in the city;
(ii) a description as to any management supervisory or oversight responsibility
that person will have in the enterprise;
(iii) a valid driver's license number of Texas Department of Public Safety
identification card number; and
U
980611 --1p
(iv) a certification as to each officer, director, partner or participation that
he /she has not been convicted of any crimes listed in section 20-
114(e)(1)(iv).
(f) Applicants for a Class I SOBP shall also provide the following:
(1) .. the name and address (and mailing address if different) and Texas driver's license
number of each operator;
(2) the name and street address (and mailing address if different) of the owner of the
real property at which the business is to be located and a copy of any lease or
rental agreement;
(3) 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 the 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. Enterprises subject to section 20 -123 of this article are required to
conform to that section; and
(4) a certification that the proposed enterprise will be located:
(1) a minimum of 1,000 feet from a child care facility, school, hospital, public
building, a public park, or church or place or religious worship, or
residential property;
(ii) a minimum of one mile from a penal institution as defined by the Penal
Code, including, but not limited to, halfway houses;
(iii) . in compliance with the city's zoning ordinance; and
(iv) more than 2,000 feet of another Class I enterprise. This restriction shall
not apply to enterprises in existence on the effective date of this article.
(g) For the purposes of subsection (f)(4) of this section, measurements shall be made in a
straight line, without regard to intervening structures or objects, from the nearest point on
the property line of the applicant's enterprise to the nearest point on the property line of
the building or appurtenance that is used for the purposes identified in this subsection
(f)(4). These distance restrictions apply to an identified purpose whether or not the
building or appurtenance used for an identified purpose and located within the
unincorporated area of the city.
17
980611 -1q
® Sec. 20 -111. Signs and notices of applicants.
(a) Each applicant for a Class .I. SOBP shall post signs at the property where the proposed
enterprise will be located. The signs shall be at least 24 inches x 36 inches in size and
legibly state that a Sexually Oriented Business Permit Application has been filed with the
City of Baytown. It shall also state the date the application - was -filed and the phone
number for the director. The sign shall inform the public that persons can contact that
office for more information about the application. Each letter on the sign must be at least
1.5 inches x 2 inches in size. It shall be the duty of each applicant as to each particular
application to erect at least one such sign along each of the property's public road or
highway frontages so as to be clearly visible from the public road or highway. If a
property does not have a public road or highway frontage, then signs shall be placed upon
the property at a point visible from the nearest public right -of -way. If a side of the
property is longer than 300 feet, one sign shall be erected in each 300 —foot increment of
the property. The signs shall be erected within seven days after the filing of the
application for the SOBP and remain until the application has been approved or denied by
the director. If the director determines that the signs have not been erected pursuant to
the requirements of this subsection, a written notice shall be issued to the applicant
identifying the deficiencies and no action shall be taken on the application until the signs
have been erected as required.
(b) Every applicant for a Class I SOBP shall give notice of the application by publication at
his own expense in two consecutive issues of a newspaper of general circulation in the
city. The notice shall be printed in 10 -point boldface type and shall include:
(1) the fact that an application for a sexually oriented business permit has
been made;
(2) the street address, including suite or unit number, if any, of the place of
business for which the permit is sought;
(3) the names of each owner of the business, and the name of the business
and, if the business is operated under an assumed name, the trade name
together with all of the names of the owners, and
(4) if the applicant is a corporation, the names and titles of all officers. The
notices shall be published within seven days after the application is filed
with the director.
Applicant shall, within three days of publication of the notice, submit to the director a
publisher's affidavit from the newspaper in which the notice appeared verifying the dates
of publication. An applicant for a renewal permit is not required to publish notice or
meet the posting requirements of subsections (a) and (b) of this section.
(c) Every applicant for a Class I SOBP shall also give written notice of the application to all
® interested parties. These interested parties may participate in any public hearing process
18
n
980611 -1r
connected with the SOBP, including revocation hearings. The interested parties of these
properties shall be notified as required in this subsection even if the property is not
located in the city. Interested parties who are not within the incorporated area of the city
shall have the same rights under this subsection as the residents of the city.
(1) Notice shall be sent within ten days after the application -is--filed with the director
and shall contain. a legible copy of the "Notice to Interested Parties" included in
the application form provided by the director and shall contain the information
described in section 20 -110 (c)(1) & (2).
(2) Notice shall be given by posting the notice in the U.S. Mail, properly addressed
and postage prepaid.
(3) Each property owner and lessee so notified shall have 14 days to file a request for
a public hearing as provided in section 20 -113. The "Notice to Interested Parties"
shall contain the procedures for requesting the hearing.
See. 20 -112. Duties of the applicants and enterprises.
(a) The applicant/enterprise shall be under a continuing affirmative duty while the
application is pending and during the effective dates of the SOBP to notify the director of
any of the following events. Notice is to be provided in writing and delivered no later
than seven days after the occurrence of.
(1) address and/or name change of applicant;
(2) revocation or suspension of any permits or licenses listed in the applicant's permit
history; or
(3) a Class I enterprise learns that a Class II enterprise has been formally charged
with a crime listed under section 20- 114(e)(1)(iv) and the crime is alleged to have
occurred on the premises of the Class I enterprise.
(b) The enterprise shall comply with the conditions attached to the SOBP pursuant to section
20 -113 or section 20 -114. Each and every day the enterprise fails to comply with a
SOBP condition is a separate violation of these regulations.
(c) An enterprise shall notify the director if an SOBP is lost or stolen. If notice of loss has
not been provided to the director and an SOBPis found in the possession of any person
other than the enterprise, it shall be a rebutable presumption that the enterprise had
knowledge of the illegal use of the SOBP, and participated in the attempt to transfer the
permit.
19
980611 -1s
® Sec. 20 -113. Public hearing on health and safety.
(a) When the director receives a written request for a public hearing concerning a Class I
SOBP application, the director shall confirm that it is from an interested party; that the
request specifically identifies the SOBP application at issue; that the request is timely
filed; and that the request specifically identifies health and- safety- concerns affected by
the enterprise. The director shall then initiate the public hearing procedure as follows:
(1) A hearing official appointed by the City Council shall be contacted by the director
and a date set for the public hearing;
(2) The director shall send the applicant a written Notice of Hearing at least ten days
in advance, stating the date, time and place of the hearing and shall make a copy
of the Notice of Hearing available to the public;
(3) Publicizing the hearing shall be the responsibility of the interested party who
requested the hearing. The director shall make available to the public a copy of
any request for hearing and the Notice of Hearing; and
(4) The director shall place a sign at the location identified in the application
containing the time and place of the hearing.
(b) If the request for public hearing has been determined by the director to be deficient, the
director shall return it to the person who submitted the request with a notation stating the
deficiency. A request that does not comply with the requirements stated in (a) above
shall not extend the period of time in which a request for hearing may be filed.
(c) The hearing shall be conducted by the hearing official under the following guidelines.
The hearing official shall liberally construe these guidelines to allow the public input to
protect the health and safety of a community affected by the location of an enterprise and
to allow the applicant to address these concerns:
(1) The hearing official may exclude evidence that is irrelevant, immaterial or unduly
repetitious. Relevance and materiality shall be evaluated by the relation of the
evidence to health and safety concerns directly related to the SOBP at issue, and
conditions which may be attached to the SOBP to address those concerns. The
hearing is not limited to the health and safety concerns specifically identified in
the hearing request.
(2) The hearing official shall have the power to limit any interference with the
proceeding.
(d) After the conclusion of the public hearing, the hearing official shall produce a written
statement containing the official's findings of the public health and safety concerns and
recommendations for conditions to be attached to the SOBP. The recommendations will
• be forwarded to the director, the applicant and the interested party who requested the
20
980611 -1t
hearing. When the hearing official determines that public health and safety concerns
exist, the director shall attach conditions as part of the SOBP. The hearing official may
consult with the director for the purposes of developing appropriate conditions to address
the health and safety concerns shown at the hearing.
(e) If evidence is produced at the hearing that would support- denial of the SOBP, the hearing
official shall provide that information to the director, who shall investigate whether the
evidence warrants denial or revocation of the SOBP under this article.
Sec. 20 -114. Issuance or denial.
(a) Except as provided in this section, a Class I SOBP shall be issued within 45 days of
submission of a complete application, unless the application is denied.
(b) Except as provided in this section, a Class II SOBP shall be issued within seven business
days, unless the application is denied.
(c) The determination on whether to approve an SOBP shall be deferred until final
disposition of any charge of any of the crimes listed in section 20- 114(e)(1)(iv) that is
pending or arises during the investigation period. No temporary SOBP shall be issued
before there is a final determination of the criminal charge.
(d) If the director determines that the determination on whether an SOBP can be issued
cannot be made within the time period stated in subsection (a) or (b) of this section, a
written notice stating the reasons for the delay shall be sent to the applicant within that
time period.
(e) The SOBP shall be denied upon the finding by the director of any of the following facts:
(1) The applicant, or if the applicant is a corporation, partnership or other business
entity, any officer, director, partner or participant required to be identified in the
application, was convicted of any of the crimes listed below and:
(i) less than two years have elapsed since the date of conviction or the date
of release from confinement imposed for the conviction, whichever is the
later date, if the conviction is a misdemeanor offense;
(ii) less then five years have elapsed since the date of conviction or date of
release from confinement for the conviction, whichever is the later date, if
the conviction is of a felony offense; or
(iii) less then five years have elapsed since the date of the last conviction or the
date of release from confinement for the last conviction, whichever is the
later date, if the convictions are of two or more misdemeanor offenses or
21
980611 -1ti
combination of misdemeanor offenses occurring within a 24 -month
period.
(iv) The crimes considered in applying this section are:
(a) 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 of the V.T.C.A., Penal Code;
(b) public lewdness, indecent exposure or indecency with a child as
described in Chapter 21 of the V.T.C.A., Penal Code;
(c) sexual assault or aggravated sexual assault as described in Chapter
22 of the V.T.C.A., Penal Code;
(d) incest, solicitation of a child or harboring a runaway child as
described in Chapter 25 of the V.T.C.A., Penal Code;
(e) gambling, gambling promotion, keeping a gambling place,
communicating gambling information, possession of gambling
devices or equipment or possession of gambling paraphernalia as
described in Chapter 47 of the V.T.C.A., Penal Code;
(f) forgery, credit card abuse or commercial bribery as described in
Chapter 32 of the V.T.C.A., Penal Code;
(g) a criminal offense as described in Chapter 481, Subchapter D of
the Health and Safety Code;
(h) a criminal offense as described in Chapter 34 of the V.T.C.A.,
Penal Code;
(i) criminal attempt, conspiracy or solicitation to commit any of the
foregoing offenses; or any other offense in another state that, if
committed in this state, would have been punishable as one or
more of the aforementioned offenses; or
0) a violation of these regulations described in section 20- 127(a).
(2) The actual or proposed location of the enterprise is within a prohibited use area as
established by the zoning regulations of the city;
(3) The requisite distance requirements stated in section 20- 110(f)(4) and determined
in accordance with subsection (f) of this section are not satisfied;
22
980621 -1v
® (4) The applicant failed to supply all of the information requested on the application;
(5) The applicant gave materially false, fraudulent or untruthful information on the
application;
(4) The applicant's enterprise is not in compliance with the requirements of this
article;
(5) The applicant, if an individual, is under eighteen (18) years of age;
(6) The applicant has not fully complied with all state, federal and local laws or
regulations affecting the conduct of its business;
(7) The application or renewal fee required by this article has not been paid;
(8) An applicant is delinquent in the payment to the city of taxes, fees, fines or
penalties assessed or imposed regarding the operation of a sexually oriented
business;
(9) An applicant or operator has owned or been employed in a managerial capacity
of a business or location within the preceding 12 months during that period that
business or location constituted a common or public nuisance as defined in
Chapter 125 of the V.T.C.A., Civil Practice and Remedies Code;
(10) The operator has had a permit revoked for the same enterprise within the 180 -day
period next preceding the date that the application was filed; or
(11) The applicant has not demonstrated that the owner of the enterprise owns or holds
a lease for the property or the applicable portion thereof upon which the enterprise
will be situated or has a legally enforceable right to acquire the same.
(f) Property uses and distances for original applications shall be determined as of the time
that the application is filed. If a renewal application is timely filed as provided in section
20 -118 of this article, the property uses and measurements for the renewal application
shall be determined as of the time that the original application for the enterprise was filed.
If not timely filed, renewal applications shall be subject to the same fees and shall be
treated in the same manner in all respects as original applications.
(g) The director may attach reasonable conditions on an SOBP pursuant to the
recommendations of the hearing officer if a public hearing was held under section 20 -113
of this article. These conditions shall address the public health and safety concerns
identified in the hearing.
(h) In the event that the director determines that an applicant is not eligible for a permit, the
applicant shall be given notice in writing of the reasons for the denial within the time
23
980611 -1w
period prescribed in subsections (a) and (b) of this section and as may be extended
pursuant to subsections (c) and (d) of this section.
Sec. 20 -115. Appeal of permit denial.
(a) An applicant may appeal the decision of the director regarding a denial of an SOBP by
filing a written request for a hearing with the director within 10 days after the director
issues notice of the denial. The director's decision on the application shall be final unless
an appeal is timely filed.
(b) An appeal shall not stay the director's decision on the issuance of a permit.
(c) The applicant's written request for a hearing shall set out the grounds on which the denial
is challenged. The hearing shall be conducted by the city council. At the hearing, the city
council shall receive oral and written testimony regarding the application. Hearings shall
be conducted under rules issued by the city council, which shall be consistent with the
nature of the proceedings and shall ensure that each party may present evidence, cross -
examine witnesses and be represented by legal counsel.
(d) The city council shall conduct the hearing within 20 days after receipt of the applicant's
written request for a hearing unless the applicant requests an extension in writing. The
city council shall render a written decision and issue notice thereof to the applicant within
ten days after the conclusion of the hearing. The written decision of the city council shall
be final and binding.
Sec. 20 -116. Temporary SOBP provisions.
(a) Failure of the director to give timely notice of his action on an application, or failure of
the hearing official to timely conduct or give notice of his decision on an appeal from the
director's decision shall entitle the applicant to the issuance of a temporary permit upon
written demand therefor filed by the applicant with the director. This section shall have
no application where delay is caused by the action or inaction of the applicant.
(b) Such a temporary permit shall only be valid until the third day after the director gives
notice of his action on the application or the hearing official gives notice of his decision
on the appeal, as applicable.
See. 20 -117. Transfer.
An SOBP issued under these regulations is not transferable, assignable or divisible and it
is a violation of these regulations for any person to attempt to do so. Upon transfer by bequest or
operation of law upon the death of the SOBP holder, the SOBP will continue in effect for 45
® days after the death. Upon the filing of a new application and posting the application with the
24
980611 -ix
prior SOBP, the enterprise may continue to operate until a final determination is made on the
new SOBP. If no application is filed within the 45 days, the enterprise shall be in violation of
the regulations each and every day it continues to operate without a new SOBP.
See. 20 -118. Term; renewal.
(a) A Class I SOBP shall be valid for one year from the date it is issued, a Class II SOBP
shall be valid until the individual's egt birthdate, unless the SOBP is sooner surrendered,
revoked or suspended pursuant to tl is article; the enterprise is sold or transferred or the
SOBP is cancelled by written requ st of applicant. The renewal fee for the initial Class
II SOBP will be reduced to reflect proration of the application fee based on the portion of
the year for which the initial SOBP was valid.
(b) Each permit shall be subject to renewal as of its expiration date by the filing of a renewal
application with the director. Renewal applications must be filed at least 30 days prior to
the expiration date of the permit that is to be renewed.
See. 20 -119. Revocation or suspension.
(a) The director shall have the authority to request the revocation of a permit for any one or
more of the following reasons:
(1) The owner or operator of the permitted enterprise negligently allowed a person
under 18 years of age to enter an enterprise during the hours of operation;
(2) The enterprise, owner or operator negligently failed to comply with a duty or
requirement imposed by this article;
(3) Three or more cumulative violations of any of the offenses contained in Chapter
21, Chapter 43, Section 22.011, or Section 22.021 of the V.T.C.A., Penal Code or
of the offenses contained in this article have occurred on the premises of a Class I
enterprise. These violations must have occurred in a consecutive period of 12
months, and the owner, operator or any manager licensed under article VIII of this
chapter: (i) knowingly allowed such violations to occur; (ii) did not make a
reasonable effort to prevent the occurrence of such violations; or (iii) should have
known that such violations were occurring or did occur;
(4) The operator of the permitted enterprise gave materially false, fraudulent or
untruthful information on the original or renewal application;
(5) The enterprise has not been open for business for a period of 30 consecutive days,
unless due to circumstances beyond the control of the owner, and the owner is
proceeding with due diligence, given all attendant circumstances, to open or
reopen the establishment;
25
980611 -1y
• (6) The permit was erroneously issued in contravention of the criteria of this article;
is
(7) The enterprise or enterprise owner is convicted of a criminal offense contained in
section 20- 114(e)(1)(iv); or
(8) Refusal, after notification to comply with valid orders of the building official, fire
marshal, health official, electrical inspector or zoning official pursuant to the rules
and regulations set forth in this code.
(b) Prior to revocation of a permit, the director shall investigate the grounds alleged to
determine whether probable cause for revocation may exist and, if so, shall notify the
owner(s) and operator in writing of reasons for the revocation. Subject to a request for
hearing pursuant to this section, the revocation shall become final on the I Ith day after
delivery of the notice.
(c) The enterprise or its designated agent shall have the opportunity to appear before the city
council upon written request submitted to the director within ten (10) days of delivery of
the notice of revocation. The hearing shall be held on the date of the next regularly
scheduled council meeting after the director's receipt of the written request for a hearing,
provided that proper notice is given. The hearing shall be conducted to ensure that the
each party may present evidence, cross - examine witnesses and be represented by legal
counsel.
(d) Upon finding that the facts presented at the hearing support a finding that grounds exist
for revoking or suspending the SOBP, the city council may request that the parties
present relevant evidence to show whether suspension or revocation of the SOBP is more
appropriate. The hearing examiner may also request that evidence be presented for the
purpose of identifying appropriate conditions to be attached to an SOBP if the SOBP is
suspended.
(e) If, after the hearing, the city council finds that the permit should be revoked, it shall issue
a written order revoking such permit which shall be effective as provided on the third day
after notice thereof is given to the operator.
(f) If the city council determines, based upon the nature of the violation, that the ends of
justice would be served by a suspension in lieu of a revocation, it may suspend the
operation of the permit for a period of time to be stated in the order of suspension, not to
exceed two months. The city council shall issue a written order suspending the SOBP
and attaching conditions, if applicable, effective upon notice to the enterprise as provided
on the third day after notice thereof is given to the operator.
(g) Upon the finding that item (a)(4), (5), (6) or (7) of this section has been violated,
revocation of the SOBP shall be mandatory.
26
is
980611 -1z
(h) Revocation shall be subject to the hearing provisions of this section except revocation
shall take immediate effect upon notice by the director, subject to reinstatement resulting
from an appeal, when:
(1) there is a necessity for immediate action to protect the public from injury or
imminent danger; or -
(2) an SOBP was issued based on a material misrepresentation in the application and
but for the material misrepresentation the SOBP would not have been issued.
This revocation shall be appealed as though the SOBP had been denied using the
procedures set out in section 20 -115 of this article.
Sec. 20 -120. Validity; forgery; cancellation.
(a) A Class I permit is valid only at the location for which it is issued.
(b) It shall be unlawful for any person to counterfeit, forge, change, deface or alter a permit.
(c) A permit may be canceled upon written request of the owner(s) or operator and surrender
of the permit itself to the director. Permits shall be surrendered at the same place and at
the same time as provided in section 20- 110(b) of this article. The surrender of a permit
shall be effective upon its filing in the office of the director.
(d) If an SOBP is lost or destroyed, a replacement may be obtained by filing a lost SOBP
application and paying a lost SOBP fee of $50.00.
(e) A replacement SOBP shall be issued immediately upon confirmation of the identity of
the applicant through the director's records.
(1) A replacement SOBP number will be assigned to a Class I1 enterprise
(2) A replacement permit will expire on the same date as the original permit.
(f) It shall not be a defense to prosecution for conducting business without an SOBP or
failure to display or make readily available for inspection a SOBP that an SOBP was lost
or stolen. The enterprise may not conduct business as an enterprise, in the city until
he /she obtains a replacement SOBP.
(g) An SOBP found in the possession of any person other than the enterprise may be
immediately seized by the director. The authorized SOBP holder may reclaim the permit
from the director's office.
27
0 Division 3. Operating Regulations
Sec. 20 -121. SOBP employee records.
is
980611 -1aa
(a) A Class I enterprise has the duty to keep the following information on file on site for each
person employed at the enterprise: - 4
(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 the employee's social security number;
(3) the current address and telephone number of the employee;
(4) the employee's height, weight, eye color and natural hair color;
(5) a photograph of the employee taken within one month immediately preceding the
date of employment and updated every year;
(6) a description of the capacity in which the employee is employed; and
(7) If the employee is employed in a capacity that involves serving liquor to
customers, evidence of certification through completion of a Texas Alcoholic
Beverage Commission approved seller training program under V.T.C.A.,
Alcoholic Beverage Code Section 106.14.
(b) The enterprise has the duty to maintain and make available these records for inspection
by the director. The director shall provide the standard format for these records. The
records shall include a time record reflecting the times and dates each employee worked.
These records shall be available for inspection by the director during the hours of
operation of the enterprise. These records shall be retained for at least a period of two
years from the creation. Upon written request the enterprise has a duty to provide a copy
of the records to the director within seven business days of the request.
(c) Any employee who provides false information to an enterprise pursuant to this section
violates this article.
(d) The Class I enterprises has the duty to have the employee information available regarding
any individual working at an enterprise unless that individual has a valid Class II SOBP
available at the premises.
28
980611 -1bb
® Sec. 20 -122. Additional regulations for adult motels.
(a) Evidence that a sleeping room in a hotel, motel or similar commercial establishment has
been rented and vacated two or more times in less than ten hours creates a rebuttable
presumption that the establishment is an adult motel that is an enterprise under these
regulations if the motel also provides customers with closed - circuit television
transmissions, films, motion pictures, video cassettes, slides or other reproductions which
are characterized by the depiction or description of specified sexual activities or specified
areas as defined anatomical areas.
I-]
(b) For purposes of this section, the terms "rent" or "subrent" mean the act of allowing a
room to be occupied for any form of consideration.
(c) An "Adult Motel" permitted pursuant to these regulations may have a resident manager
living on site. This shall not be considered a residential use under the distancing
requirements of section 20- 110(1), but no individuals under the age of 18 may live on
site.
Sec. 20 -123. Regulations pertaining to exhibition of sexually explicit films or videos.
A person who operates or causes to be operated an enterprise other than an adult motel
which exhibits on the premises in a viewing room of less than 150 feet of floor space a film,
video cassette, computer programs or other visual reproduction depicting specified sexual
activities or specified anatomical areas has the duty to comply with the following requirements:
(1) the interior of the premises shall be configured in such a manner that there is an
unobstructed view from a manager's station of every area of the premises,
excluding restrooms, to which any customer is allowed access for any purpose;
(2) if the premises has two or more manager's stations designated, the interior of the
premises shall be configured so that there is an unobstructed direct line of sigh
view from at least one station to all portions of the premises where customers are
allowed access, excluding restrooms;
(3) the enterprise has the duty to maintain at least one employee on duty and stationed
in each manager's station at all times that any customer is present inside the
premises.
See. 20 -124. Persons younger than 18 prohibited from entry.
(a) It shall be a violation of this article to allow a person who is younger than 18 years of age
to enter or be on the premise of an enterprise at any time that the enterprise is open for
business.
29
980611 -1cc
(b) The operator of a Class I enterprise has the duty to station an attendant at each public
entrance to the enterprise at all times during the enterprise's business hours. It shall be the
duty of the attendant to not allow any person under the age of 18 years of age to enter the
enterprise. It shall be presumed that an attendant knew a person was under the age of 18
unless the attendant asked for and was furnished:
(1) a facially-valid operator's, commercial operator's or chauffeur's driver's license;
or
(2) a facially valid personal identification certificate issued by the Texas Department
of Public Safety reflecting that such person is 18 years of age or older.
See. 20 -125. Exterior portions of enterprises.
(a) It shall be unlawful for an owner or operator of an enterprise to allow the merchandise or
activities of the enterprise, irrespective of whether such merchandise or activities are
intended to provide sexual stimulation or sexual gratification or whether they are
distinguished by or characterized by an emphasis on matters depicting, describing or
relating to specified sexual activities or specified anatomical areas, to be visible from any
point outside such enterprise.
(b) It shall be unlawful for the owner or operator of an enterprise to allow the exterior
portions of the enterprise to have flashing lights, or any words, lettering, photographs,
silhouettes, drawings, or pictorial representations of any manner except to the extent
permitted by the provisions of this article.
(c) It shall be unlawful for the owner or operator of an enterprise to allow exterior portions of
the enterprise to be painted any color other than a single achromatic color. This provision
shall not apply to an enterprise if the following conditions are met:
(1) The enterprise is a part of a commercial multi -unit center; and
(2) The exterior portions of each individual unit in the commercial multi -unit center,
including the exterior portions of the enterprise, are painted the same color as one
another or are painted in such a way so as to be a component of the overall
architectural style or pattern of the commercial multi -unit center.
(d) Nothing in this article shall be construed to require the painting of an otherwise unpainted
exterior portion of an enterprise.
See. 20 -126. Signage.
(a) Notwithstanding the sign regulations of the city or any other city ordinance, code, or
® regulation to the contrary, it shall be unlawful for the owner or operator of any enterprise
30
980611 -1dd
or any other person to erect, construct, or maintain any sign for the enterprise other than
one primary sign and one secondary sign, as provided herein.
(b) Primary signs shall have no more than two display surfaces. Each display surface shall:
(1) not contain any flashing lights;
(2) be on a flat plane or rectangular in shape;
(3) not exceed 75 square feet in area; and
(4) not exceed ten feet in height or ten 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 enterprise; and/or
(2) One or more of the following phrases:
(i) "Adult bookstore ";
(ii) "Adult motion picture theater ";
(iii) "Adult cabaret ";
(iv) "Adult lounge ";
(v) "Adult novelties ";
(vi) "Adult entertainment."
(3) Primary signs for adult motion picture theaters may contain the additional phrase,
"Movie Titles Posted on Premises."
(d) Each letter forming a word shall be of a solid color, and each such letter shall be the same
print -type, size and color. The background behind such letter on the display surface of a
sign shall be of a uniform and solid color
(e) Secondary signs shall have only one display surface. Such display surface shall:
(1) be a flat plan, rectangular in shape;
(2) not exceed 20 square feet in area;
® (3) not exceed five feet in height and four feet in width; and
31
•
980611 -lee
(4) be affixed or attached to any wall or door of the enterprise.
(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 an
enterprise that displays the name, or any portion of the name of the enterprise, any name
under which any enterprise was formerly operated on the premises, or that contains any
of the terms set forth in item (2) of subsection (c) of this section or any other terminology
that is commonly used to identify, or is 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.
Sec 20 -127. Enterprise operating restrictions.
(a) It is prohibited:
(1) for any employee, owner, operator, responsible managing employee, manager or
permittee of an enterprise to negligently allow any person below the age of 18 years
of age upon the premises or within the confines of the enterprise;
(2) for any person at an enterprise to be totally nude; however, private rooms at adult
motels and employee - designated dressing rooms that are not visible or accessible to
customers are excepted from this prohibition;
(3) for any employee, owner, or operator to request or suggest that any customer,
employee, owner or operator become totally nude at the premises of the
enterprise;
(4) for any person to engage in or allow another person to engage in sexual
intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any
other public sexual acts prohibited by law, or acts which simulate the aforesaid at
or in permitted premises;
(S) for any enterprise to exhibit advertisements, displays or other promotional
materials at the premise that are characterized by specified sexual activities or
specified anatomical areas and are visible from public road, sidewalk or other
public place;
(6) for any person to conduct business as an enterprise in the city without a valid
SOBP issued in accordance with this article;
Kea
980611 -1ff
® (7) for any person to counterfeit, forge, change, deface, duplicate or alter an SOBP;
(8) for any person to knowingly make any false, fraudulent or untruthful material
representation written or oral, or in any other way knowingly conceal any material
fact required in the SOBP application;
•
(9) for any operator or owner to fail to comply with the conditions attached to the
SOBP pursuant to section 20 -113 and section 20 -114. Each and every day the
enterprise fails to comply with a SOBP condition is a violation of this article;
(10) for any employee of an enterprise to provide materially false identification
information to an enterprise under section 20 -121.
(11) for any person to offer or accept any gratuity at an enterprise unless it is done
pursuant to this section: specifically, gratuities being offered to any person
performing on a stage must be placed in a receptacle provided for receipt of
gratuities and a gratuity offered to any employee in or about the non -stage area of
the enterprise shall be placed into the hand of the employee or into a receptacle
provided by the employee and not upon the person or into the clothing of the
employee;
(12) for any person to attempt to transfer, assign or devise an SOBP;
(13) for any person performing at an enterprise to be less than six feet from the nearest
customer and on a stage less than 18 inches above floor level;
(14) for the owner or operator of a Class I enterprise to allow any location within the
enterprise to be used for the purpose of 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;
(15) for any employee of a Class I enterprise to consume an alcoholic beverage on the
premise of any Class I enterprise where said employee is on duty, has been on
duty within the previous 12 hours or is scheduled to be on duty within the next 12
hours;
(16) for any Class II enterprise to consume any alcoholic beverage on the premises of
any location where said Class 11 enterprise is performing or providing any service,
has within the preceding 12 hours performed or provided any service, or is
scheduled to perform or provide any service within the next 12 hours; or
(17) for any person to possess or consume any alcoholic beverage on the premises of
any Class I enterprise unless such possession and/or consumption is authorized by
a permit or license issued pursuant to the V.T.C.A., Alcoholic Beverage Code.
33
980611 -1gg
(b) A Class I enterprise has the duty to maintain and make available a time record reflecting
the times and dates each Class 11 enterprise worked at that location. The director will
provide a standard format for these records which shall require a sign - in/out sheet and a
notion of the SOBP number of all Class II enterprises. These records shall be available
for inspection by the director during the hours of operation of the enterprise. These
records shall be retained for a period of two years from - creation. Upon written request
the enterprise has the duty to provide a copy of the records to the director within seven
days of the request. It shall be a violation of this article to falsify these records.
(c) Except as otherwise provided herein the interior of a Class I enterprise shall be
configured in such a manner that inspecting law enforcement personnel have an
unobstructed view of every area of the premises from any other area of the premises,
excluding restrooms, to which any customer is allowed access for any purpose.
Sec. 20 -128. Access, visibility, lighting, supervision.
(a) It shall be unlawful for any owner, operator or manager of any enterprise to permit any
employee to provide any entertainment to any customer in any separate area within an
enterprise to which 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.
(b) It shall be the duty of any owner, operator or manager of an enterprise to allow
immediate access by any police officer, city fire department or health officer to any
portion of the premises of the enterprise upon request for purpose of inspection of such
premises for compliance with this article, or any other applicable law.
(c) Each enterprise shall be equipped with lighting fixtures of sufficient intensity to
illuminate every place to which customers are permitted access at an illumination of not
less than one (1.0) footcandle as measured at four feet above floor level.
(d) It shall be the duty of any owner, operator or manager of an enterprise to ensure that at
least one on -site manager is on duty on the premises at all times during which the
enterprise is open for business or during which customers are on the premises.
(e) It shall be the duty of any owner, operator or manager of an enterprise to ensure that all
Class lI enterprises hold a SOBP for such enterprise.
(f) It shall be the duty of the on -site owner or operator to ensure that no Class II enterprise is
allowed or suffered to conduct any business on the premises of a Class I enterprise unless
the owner or operator thereof has in his possession or control a valid SOBP for the Class
II enterprise. Class II permits shall be made available for immediate inspection by any
police officer, fire department official or health officer. Class II enterprises working at
more than one enterprise may retrieve their Class II permits upon departing the premises
in order to present them to an on -site owner or operator at any other enterprise where
34
980611 -1hh
such persons are employed to hold while the Class II enterprise remains on those
premises.
(g) It shall be the duty of any owner, operator or manager to maintain a complete list of all
persons, including names and addresses, who conduct any business on the premises and
are required to obtain a permit under section 20 -108.
Section 4: All Ordinances or parts of Ordinances inconsistent with the terms of this
Ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of
such inconsistency and in all other respects this Ordinance shall be cumulative of other Ordinances
regulating and governing the subject matter covered by this Ordinance.
Section 5: If any provision, section, exception, subsection, paragraph, sentence, clause
or phrase of this Ordinance or the application of same to any person or the set of circumstances,
shall for any reason be held unconstitutional, void or invalid, such invalidity shall not affect the
validity of the remaining provisions of this Ordinance or their application to other persons or sets of
circumstances and to this end all provisions of this Ordinance are declared to be severable.
Section 6: This Ordinance shall take effect from and after ten (10) days from its passage
by the City Council. The City Clerk is hereby directed to give notice hereof by causing the caption
of this Ordinance to be published in the official newspaper of the City of Baytown at least twice
within ten (10) days after passage of this Ordinance.
INTRODUCED, READ, and PASSED by the affirmative vote of the City Council of the
City of Baytown, this the 11'' day of June, 1998.
PETE C. ALFARO, Mayor
ATTEST:
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
ACID RAMIREZ, SR., ttorney
ic:klh9l \Council\ Ordinances\ Sexually0rientedBusinesses .OrdinanceNoFootnotes052098
35