Applications for all licenses and permits required by this code shall be made in writing to the director of finance, unless otherwise specifically provided in this code. Each application shall state the name of the applicant, the permit or license desired, the location to be used if any, the time covered and the fee to be paid; and each application shall contain such additional information as may be required by the issuing official. (1990 Code, sec. 3.601)
Sec. 6.02.002 Applicability
Whenever in this code a license or permit is required for the maintenance, operation or conduct of any business or establishment, or for doing business or engaging in any activity or occupation, any person shall be subject to the requirement if, by himself or through an agent, employee or partner, he or she holds himself or herself forth as being engaged in the business or occupation; solicits patronage therefor, actively or passively; or performs or attempts to perform any part of such business or occupation in the city. (1990 Code, sec. 3.602)
Sec. 6.02.003 Forms on file
Forms for all licenses and permits, and applications therefor, shall be prepared and kept on file by the director of finance. (1990 Code, sec. 3.603)
Sec. 6.02.004 Authenticating signatures
Each license or permit issued, in the absence of any provision to the contrary, shall bear the signatures of the city manager and/or the director of finance. (1990 Code, sec. 3.604)
Sec. 6.02.005 Prior investigations and reports
Upon receipt of an application for a license or permit in cases in which the city requires an inspection or investigation before the issuance of such license or permit, the director of finance shall refer such application to the proper officer for making such investigation within forty-eight hours of the time of such receipt. The officer charged with the duty of making the investigation or inspection shall make a report thereon, favorable or otherwise, within ten (10) days after receiving the application or a copy thereof. The city sanitarian shall make or cause to be made an inspection in regard to such licenses or permits in the connection of the care and handling of food and the preventing of nuisances and the spread of disease. For the protection of health, the building official shall make or cause to be made any such inspection relative to the construction of buildings or other structures. All other investigations, except where otherwise provided, shall be made by the chief of police or by some other officer designated by the city manager. (1990 Code, sec. 3.605)
Sec. 6.02.006 Term of licenses; notice of expiration
(a) All annual licenses shall terminate on the last day of the calendar year of the city where no provision to the contrary is made.
(b) The director of finance shall mail to all licensees of the city a statement of the time of expiration of the license held by the licensee, if an annual license, three weeks prior to the date of such expiration; provided, failure to send out such notice or failure of the licensee to receive it shall not excuse the licensee for failure to obtain a new license, or a renewal thereof, nor shall it be a defense in an action for operation without a license.
(1990 Code, sec. 3.606)
Sec. 6.02.007 Issuance for legal use of premises only
No license shall be issued for the conduct of any business, and no permit shall be issued for any purpose, if the premises and buildings to be used for the purpose do not fully comply with the requirements of the city. No such license or permit shall be issued for the conduct of any business or performance of any act which would involve a violation of the zoning ordinances of the city. (1990 Code, sec. 3.607)
Sec. 6.02.008 Change of location
In the absence of any provision to the contrary, the location of any licensed business or occupation, or of any permitted act, may be changed provided ten (10) days’ notice thereof is given to the director of finance, provided the building, zoning and frontage consent requirements of the city are complied with. (1990 Code, sec. 3.608)
Sec. 6.02.009 Consent requirements
(a) Whenever the consent of the adjoining or neighboring owners is required as a prerequisite to the conduct of any business or occupation, or the location of any establishment, such consent must be obtained by securing the necessary signatures to a written consent petition. Such petition shall be filed with the director of finance when signed.
(b) Consents once given and filed shall not be withdrawn, and such petitions need not be renewed for the continuous conduct of the same business, whether by the same proprietor or not.
(c) It shall be unlawful to forge any name to such a petition or to represent falsely that the names thereon have been properly placed thereon if such is not the fact.
(d) Each consent when filed shall be accompanied by the affidavit of the person securing the signatures that each signature appearing therein was properly secured and written and that the petition contains the necessary number of signatures required by this code or other ordinance.
(e) Consent requirements contained in this code or other ordinance shall not be construed to amend or change any zoning ordinance provision, and no such provision shall be construed as permitting the erection of a structure or building or the conduct of a business or the commission of any act in any location where such structure, building, business or act is prohibited by any zoning ordinance of the city.
(1990 Code, sec. 3.609)
Sec. 6.02.010 Operation constituting nuisance
No business, licensed or not, shall be so conducted or operated as to constitute a nuisance in fact. (1990 Code, sec. 3.610)
Sec. 6.02.011 Cooperation with inspecting officers
(a) Whenever inspections of the premises used for or in connection with the operation of a licensed business or occupation, or operated under a permit, are provided for or required by this code or other ordinance, or are reasonably necessary to secure compliance with any such provision or to detect violations thereof, it shall be the duty of the licensee, permittee or the person in charge of the premises to be inspected to admit thereto for the purpose of making the inspection any officer or employee of the city who is authorized or directed to make such inspection at any reasonable time that admission is requested.
(b) Whenever an analysis of any commodity or material is reasonably necessary to secure conformance with any code or ordinance provision or to detect violations thereof, it shall be the duty of the licensee or permittee whose business is governed by such provision to give to any authorized officer or employee of the city requesting the same sufficient samples of such material or commodity for such analysis upon request.
(c) In addition to any other penalty which may be provided, the city manager may revoke the license or permit of the proprietor of any business in the city who refuses to permit any such officer or employee who is authorized to make such inspection or take such sample to make the inspection or take an adequate sample of the commodity, or who interferes with such officer or employee while in the performance of his or her duty in making such inspection; provided, no license or permit shall be revoked for such cause unless written demand is made upon the licensee, permittee or person in charge of the premises in the name of the city, stating that such inspection or sample is desired at the time it is sought to make the inspection or obtain the sample.
(1990 Code, sec. 3.611)
Sec. 6.02.012 Revocation for violation
Any license or permit issued for limited time may be revoked by the city manager at any time for any violation by the licensee or permittee of any code or ordinance provision relating to the license or permit, the subject matter of the license or permit, or to the premises occupied; such revocation may be in addition to any fine imposed. (1990 Code, sec. 3.612)
Sec. 6.02.013 Appeals
Unless otherwise provided, any applicant for a license or permit who is denied a license or any licensee who has his or her license revoked or suspended may appeal such action to the city council. Such appeal must be in writing and shall be filed within ten (10) days from the date such license is revoked or repealed. The city council shall provide an opportunity to the aggrievant to present testimony or evidence why such license should not be granted, revoked, or suspended. The hearing of such appeal by the city council shall be had within thirty (30) days from the date such written appeal is given. The aggrievant shall be notified of the time, date, and place such appeal will be considered. Such notice shall be either mailed, by certified mail return receipt requested, or personally delivered at least five (5) days prior to the date set for the hearing. (1990 Code, sec. 3.613)
Sec. 6.02.014 Posting license, exhibiting permit
It shall be the duty of any person conducting a licensed business in the city to keep his or her license posted at all times in a prominent place and any required permit exhibited on the premises used for such business. (1990 Code, sec. 3.614)
Sec. 6.02.015 Payment of fees
In the absence of specific provisions to the contrary, all fees and charges for licenses or permits shall be paid to the director of finance in advance at the time application therefor is made. When an applicant has not engaged in the business until after the expiration of more than six (6) months of the current license year, the license fee shall be in the sum of one-half of the fee specified for the entire year. All license and permit fees shall be deposited to the general fund. (1990 Code, sec. 3.615)
Licenses shall be required for the following activities and businesses. The license fee to conduct such activity or business shall be as provided for in section A6.03.001 of the fee schedule in appendix A to this code and shall be obtained from the planning department:
(1) Acrobatic shows.
(2) Menageries.
(3) Carnivals or circuses.
(4) Exhibitions of inanimate objects.
(5) Shooting galleries.
(6) Skating rinks.
(7) Other amusements.
(1990 Code, sec. 3.501; Ordinance adopting Code)
Cross reference–Licenses and permits generally, art. 6.02.
Sec. 6.03.002 Sanitary, fire protection and parking facilities; consent of landowner
(a) It shall be unlawful for any person to give, conduct, exhibit or maintain any show, exhibit or place of amusement of any character whatsoever, except in a legally constructed building having adequate toilet facilities as approved by the city sanitarian and with adequate exits and fire escapes as approved by the fire marshal. A lot, tract or parcel of land may be used in lieu of such building in the event that:
(1) Such premises shall have adequate toilet facilities approved by the city sanitarian capable of suitably providing for the attending crowds.
(2) Such premises shall have at least one (1) fireplug annexed to the city water system for protection against fire within three hundred feet (300) of the place of exhibition and other provisions related to fire prevention, protection and safety as required by the fire marshal.
(3) Such premises shall have adequate parking facilities within such premises for automobiles of the visiting public or in lieu thereof adjacent parking lots properly policed and protected.
(4) Provisions, approved by the chief of police, for traffic control are provided.
(5) Such premises shall not be used without first obtaining written consent of the landowner.
(b) A person who violates this section is guilty of a separate offense for each day or part of day the violation is committed, continues, or permitted. Each offense, upon conviction, is punishable by a fine as provided in section 1.01.009.
(1990 Code, sec. 3.502)
Sec. 6.03.003 Applicability of restrictions
Section 6.03.002 shall apply to all shows, performances, exhibitions, medicine shows, panoramic or view shows, menageries, carnivals, circuses, wild west shows or rodeo shows, acrobatic performances, moving picture shows, dramatic or theatrical productions or skating rinks held in or exhibited upon streets or under any tent or in any airdrome, hall or building within the city, except as mentioned in the above section 6.03.001. (1990 Code, sec. 3.502)
ARTICLE 6.04 MARKET SQUARE
Sec. 6.04.001 Powers and duties of Main Street advisory board
The Main Street advisory board, hereinafter referred to as “the board,” shall have the power and authority to promulgate rules, recommend lease rates, and to otherwise supervise the day-to-day operations and administration of the property described herein as the Greenville Market Square. The decisions and actions of the board shall be consistent with the specific powers and authority granted by this article, and with all other municipal, state, and federal rules and regulations. Any rules promulgated by the board relative to the use and operation of Market Square shall be filed with the office of the city secretary within ten (10) days after such rules have been approved by the board. All decisions of the board are subject to review, modification, or repeal by the city council. (Ordinance 05-077, sec. 3.302, 6/14/05)
Sec. 6.04.002 Health permits
Any vendor selling products or goods for which a health permit is required, or any person responsible for an activity conducted at the square for which a health permit is required, shall secure said permit prior to selling any products or goods or conducting the activity. The board shall verify that all necessary permits have been secured prior to authorizing the lease of a vendor stall or the commencement of the event or activity. Health permit fees for vendors, tenants, or events at Market Square shall be waived. (1990 Code, sec. 3.304)
Cross reference–Licenses and permits generally, art. 6.02.
Sec. 6.04.003 Stall rentals
(a) Rental of the structure on the east side of Market Square shall be in the amount set forth in section A6.04.003 of the fee schedule in appendix A to this code, and the lessee occupying said structure on the date of this section shall have first priority in the continued occupancy of the structure.
(b) The structure on the west side of Market Square shall be advertised for proposals to lease or rent. Anyone wishing to submit a proposal for the use of this structure shall submit such proposal to the city through the planning department outlining the proposed use of the structure and the remuneration to be received by the city.
(c) All utilities on both of said structures shall be paid by the said occupants of said structures. Outdoor lighting on light standards in the center of the square shall be the responsibility of the city.
(d) Normal maintenance and upkeep of the structures shall be the responsibility of the occupants. Major maintenance will be the responsibility of the city.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Home solicitation transaction. A consumer transaction for the purchase of goods, services, or realty, payable in installments or in cash, in which the merchant engages in a personal solicitation of the sale to the consumer at the consumer’s residence, in person or by telephone, and the consumer’s agreement or offer to purchase is given at the residence to the merchant, either in person or by telephone. A “home solicitation transaction” shall not include a sale made pursuant to a preexisting revolving charge account or retail charge agreement, or a sale made pursuant to prior negotiation between the parties at a business establishment at a fixed location where goods or services are offered or exhibited for sale, or a sale of realty in which transaction the purchaser is represented by a licensed attorney or in which the transaction is being negotiated by a licensed real estate broker.
Interstate commerce. The soliciting or taking orders for, or offering to sell or take orders for, any goods, wares, merchandise or other personal property or services which, at the time the order is taken, are in a state other than this state or will be produced in a state other than this state and shipped or introduced into this city in the fulfillment of such order.
Itinerant vendor. Any person offering or exposing for retail sale, or making retail sales of, any goods, products, wares or merchandise or other personal property of any type, at any outdoor business location; provided, however, that this definition shall not include merchants who ordinarily and regularly offer such items for retail sale within permanent structures located on the same premises; provided further that this definition shall not include those sales commonly known as a garage sale, porch sale, backyard sale, patio sale, lawn sale, yard sale, attic sale, estate sale, moving sale, or any similar sale of tangible personal property held out for sale to the public and conducted from or on any lot in a residential zoning district conducted by an individual who owns, leases or has the permission of the owner of the structure located on the same premises.
Retail sale or sales. Any sale or sales transactions of goods, products, wares, merchandise or other personal property, except as made by a person engaged in selling such personal property at wholesale to dealers in such property.
Soliciting services. Selling or attempting to sell goods or services, or taking or attempting to take orders for service or goods to be performed or furnished in the future.
Solicitor. Any person who goes from house to house or place to place soliciting, selling or taking orders for or offering to sell or take orders for any goods, merchandise or services. The term “solicitor” shall not include a person on property by invitation of the owner of the property.
(1990 Code, sec. 3.401)
Sec. 6.05.002 Restrictions
(a) Itinerant vendors shall not do business on Wesley Street.
(b) There shall be no outdoor sales of merchandise on Wesley Street, except for outside merchandise displays by permanent vendors whose businesses are located on Wesley Street; however, such displays must be set back from all street-front property lines and from all rights-of-way by a minimum of thirty (30) feet.
(c) No vendor may operate within five hundred (500) feet of any school, hospital or church.
(d) It is a violation for any solicitor to conduct or attempt to conduct business at a location where a sign clearly indicates that solicitation is unwelcome.
Sec. 6.05.003 Roadside sale of animals
(a) No person, owner, breeder or dealer shall offer, sell, barter, trade, lease, or give away any live animal, on or along any street, roadway or right-of-way; or from any parking lot along such street roadway or right-of-way.
(b) This section shall not apply to:
(1) Incidental sale of pets that are associated with sales commonly known as a garage sale, porch sale, backyard sale, patio sale, lawn sale, yard sale, attic sale, estate sale, moving sale, or any similar sale of tangible personal property held out for sale to the public and conducted from or on any lot in a residential zoning district conducted by an individual who owns, leases or has the permission of the owner of the structure located on the same premises.
(2) Transactions by a business at its permanent retail location who normally engage in the sale of pets and otherwise meet all other display and setback requirements of this article.
(3) A special adopt-a-pet event sponsored by a not-for-profit animal shelter, animal rescue or animal adoption organization, from a nonresidential location and upon review and approval by the community development department. Such events must be located at or near the building or building entrance.
Sec. 6.05.004 Penalty
Any person violating any provision of this article shall be, upon conviction, adjudged guilty of a misdemeanor and fined as provided for in section 1.01.009 of this code. Every sale of an itinerant vendor without a permit or otherwise in violation of this article shall constitute a separate offense.
(a) It shall be unlawful for any person to engage in business as a solicitor or itinerant vendor within the corporate limits of the city without first obtaining an itinerant vendor permit from the city.
(b) It shall be unlawful for any person to state, maintain, imply or represent that he has an itinerant vendor permit when he does not, in fact, possess a valid itinerant vendor permit from the city.
(1990 Code, sec. 3.402)
(c) Persons required by this code to possess an itinerant vendor permit from the city, upon request from any police officer, any enforcement official, or person, shall promptly produce such permit. (1990 Code, sec. 3.402; Ordinance adopting Code)
Sec. 6.05.032 Application
Applicants for a permit pursuant to this division shall file with the city director of community development a verified application on a form to be furnished by the city, which shall contain the following information:
(1) The full name, description, birth date, and social security number of the applicant; include driver’s license number or other form of government identification which includes a photograph. The director of community development or the police chief may request to see the originals of such documents;
(2) The applicant’s address and telephone number, both legal and local;
(3) A brief description of the business to be conducted, items to be sold, and the legal description and address of any fixed outdoor location desired for business;
(4) For interstate commerce exemption applicants, the state where the goods originate;
(5) The time period for which the applicant desires to do business;
(6) The license number and description of any vehicle to be used (if applicable);
(7) A verification that the applicant or the applicant’s employer possesses a valid state sales tax certificate, or other proof that sales tax has been or is being paid on the items sold or to be sold, or proof that the applicant or the applicant’s employer is exempt from the payment of sales tax;
(8) The content of any signs to be used;
(9) A site plan depicting the fixed outdoor location desired, if any, and the location of any structure, vehicle, sign or display to be used while conducting the business at such fixed location;
(10) A written, notarized statement by the legal owner of the land upon which any fixed outdoor business location shall be located authorizing the use of the land for the purposes desired by the applicant;
(11) If employed by another, the name and address of the applicant’s employer, together with a brief description of credentials showing the exact relationship; and
(12) A statement of whether the applicant has been convicted within the previous five years of a felony or misdemeanor involving dishonesty or fraud, burglary, theft, robbery, homicide, murder or any sex offense, and the punishment or penalty assessed.
(1990 Code, sec. 3.403)
Sec. 6.05.033 Application fee and bond
Any person making application for a permit required by the provisions of this division shall pay to the city a nonrefundable application fee. The amount of such fee shall be as set forth in section A6.05.033 of appendix A to this code. This application for an itinerant vendor’s permit shall be accompanied by a bond in the sum of two thousand dollars ($2,000.00), signed by the applicant and signed, as surety, by a surety company authorized to do business in the state, satisfactory to the director of community development, conditioned for the final delivery of goods, wares, merchandise, or services, and conditioned for the correction or remedy of any and all defects in material or workmanship that may exist in the article sold by the principal of such bond, at the time of delivery, and that may be discovered by such purchaser or customer within 30 days after delivery, and which bond shall be for the use and benefit of all persons who may make any purchase or give any order to the principal on such bond, or to an agent or employee of the principal. (1990 Code, sec. 3.404)
Sec. 6.05.034 Review and investigation; issuance or denial
(a) Upon receipt of an application for a permit pursuant to this division, the director of community development shall make or cause to be made any inquiry or investigation that may be necessary to determine whether the applicant is in compliance with the provisions of all laws and ordinances applicable to outdoor selling as well as other applicable provisions of this code.
(b) Upon completion of any investigation as provided for by this section, the director of community development shall review the application to ensure that:
(1) The applicant or applicant’s employer possesses a valid state sales tax certificate, or he or she has otherwise demonstrated that sales tax has been or is being paid on the items sold, or the applicant’s employer is exempt from payment of such tax;
(2) The applicant or the applicant’s employer is aware of the responsibility to collect and pay sales tax, unless tax exempt;
(3) The site chosen for any fixed outdoor business location is appropriately zoned for such a land use, is otherwise in full compliance with the city’s zoning code, and the said location does not extend onto any portion of the public right-of-way;
(4) The applicant’s character or business responsibility is not “unsatisfactory” (as defined in subsection (d) below);
(5) The applicant’s proposed signs and locations comply with all of the provisions of the city’s zoning code; and
(6) The application otherwise complies with all of the provisions of the Code of Ordinances.
(c) Within three (3) business days after receipt of the application, the director of community development shall either approve or disapprove of the application. Grounds for disapproval shall be the following:
(1) A finding that the application is incomplete or insufficient;
(2) Nonpayment of the application fee;
(3) Failure of the applicant to verify that he or she, or the applicant’s employer, possesses a valid state sales tax certificate; or that sales tax has been or is being paid on the items sold; or that he or she, or the applicant’s employer, is otherwise exempt from payment of sales tax;
(4) A finding that the site chosen for a fixed outdoor business location is not properly zoned for the proposed land use or that said site extends onto a portion of the public right-of-way;
(5) A finding that the applicant’s proposed signs and locations therefor are not in compliance with the city’s zoning code;
(6) A finding that a false statement or material representation is made on the application, which shall be grounds for immediate denial or revocation of a permit;
(7) A finding that the application is not in conformance with any other applicable provisions of the Code of Ordinances; or
(8) A finding that the applicant’s character or business responsibility for an itinerant vendor permit is “unsatisfactory” (as defined in subsection (d) below); or if the application is approved the director of community development shall issue the permit. If the application is disapproved, the director of community development shall state in writing and with specificity the reason(s) for disapproval. The director of community development shall immediately notify the applicant of such disapproval. Mailing a copy of a letter of disapproval to the address shown on the application shall be deemed to be adequate notification of the applicant.
(d) For the purpose of this section, “unsatisfactory character or business responsibility” of an applicant shall be defined as follows:
(1) A finding that the applicant has been convicted of two or more violations of the provisions of this article within the preceding 12 months;
(2) A finding that a previous permit held by the applicant pursuant to the provisions of this article was revoked within the previous 12 months; or
(3) A conviction, within the previous five years, of either a felony or misdemeanor offense involving fraud or dishonesty, including but not limited to larceny, theft, burglary, robbery, embezzlement, homicide, murder or any sex offense, or crimes involving fraud.
(1990 Code, sec. 3.405)
Sec. 6.05.035 Exemptions
(a) The following solicitors are exempt from the permit fee:
(1) Individuals soliciting or peddling goods or services which qualify as interstate commerce;
(2) Vendors of farm or dairy products, including those persons engaged in trade at Market Square in the city.
(b) The following are exempt from the permit fee, application and restrictions:
(1) Any individual soliciting for a locally sponsored philanthropic, charitable, political, religious, and nonprofit corporation. These individuals shall notify the director of community development, in writing, of the approximate dates they are soliciting in the area, persons who will solicit, a description of items to be sold, and the organization they represent.
(2) Newspaper carrier.
(3) Any person permitted for food service and engaged in the food service business.
(c) All other sections of this article shall apply.
(1990 Code, sec. 3.406)
Sec. 6.05.036 Contents; fixed outdoor location of business to be specified
The director of community development shall specify on the face of the permit the legal description and address of the fixed outdoor location desired for business by any itinerant vendor. The director of community developer shall specify on the face of the permit the expiration date. No permit may be issued for any length of time longer than thirty (30) days from the date of the application. The itinerant vendor shall engage in business only at the fixed outdoor location specified on the face of the permit. (1990 Code, sec. 3.409)
Sec. 6.05.037 General regulations and conditions
All vendors permitted under the provisions of this division shall comply with the following rules and regulations which shall be conditions of the permits:
(1) The itinerant vendor shall deposit a sum as provided in section A6.05.037 of the fee schedule in appendix A to this code with the city, conditioned that no paper, litter or other debris will be permitted to remain upon the site of the temporary sale. The deposit shall be returned to the permittee within ten (10) days after said permit expires, upon certification by the director of community development that all conditions of this article have been met. Should actual costs for necessary cleaning exceed this amount, the permittee shall pay such additional sum to the city within ten (10) days from the date of notification. If that amount is not paid, no future permits shall be issued to the same permittee for a period of two (2) years. Nothing herein shall preclude the city from enforcing any legal or equitable remedy against the permittee in addition to the deposit. The applicant shall have the right to present evidence to the director of community development of why the deposit should be lowered or waived, and the building official shall have the authority to grant such reduction or waiver.
(2) All vendor premises and surrounding area shall be kept clean and free of trash and litter. A trash receptacle shall be available upon or within seventy-five (75) feet of every vending unit. Every vendor issued a permit under the provisions of this division shall, within five (5) days of such issuance, verify in writing that he has obtained training or information on litter and waste handling from Keep America Beautiful Inc., or some other approved organization operating an educational program to reduce litter in the city.
(3) The itinerant vendor shall provide one (1) unisex portable sanitary facility. In lieu of the portable sanitary facility, the vendor may provide a permission letter from the owner or manager of a property located within a two-hundred-foot radius of the sale property granting permission to use their sanitary facilities; however, the property within a 200-foot radius of the sale property shall not be located across a thoroughfare of four lanes or larger.
(1990 Code, sec. 3.410)
(4) (A) Itinerant vendors shall conduct vending operations between the hours of 9:00 a.m. and 4:00 p.m. on weekdays, and between 7:00 a.m. and 2:00 p.m. on weekends, and no vending unit shall remain on the premises except during such period of operations.
(B) No person shall go upon any residential premises and ring the doorbell, or rap or knock upon the door, or create any sound in a manner calculated to attract the attention of the occupant, for the purpose of engaging or attempting to engage in a home solicitation transaction, prior to 9:00 a.m. or after 9:00 p.m. of any day, Monday through Saturday, or any time on Sunday, New Year’s Day, July Fourth Holiday, Labor Day, Thanksgiving Day, or Christmas Day.
(1990 Code, sec. 3.410; Ordinance adopting Code)
(5) All permits shall be prominently displayed and plainly visible within or upon the vending unit. Identification cards shall be displayed to any person so requesting. (1990 Code, sec. 3.410)
Sec. 6.05.038 Compliance with site plan required; amended site plans
(a) All itinerant vendors shall comply with the site plan submitted pursuant to the provisions of this division in regard to the fixed outdoor location specified therein, and in regard to the location of any structure, vehicle, sign, or display to be used while conducting business at such fixed outdoor location.
(b) An itinerant vendor who desires a different fixed outdoor location for conducting business, or who desires to otherwise amend the submitted site plan, shall file an amended site plan prior to deviating from the site plan then on file with the director of community development.
(c) Upon the filing of an amended site plan, the director of community development shall review it to ensure compliance with the provisions of this article and all other applicable provisions of this code. If the amended site plan is approved, the director of community development shall amend the permit to indicate any new fixed outdoor location for the conduct of the business.
(d) Failure of an itinerant vendor to comply with the original or amended site plan on file with the director of community development shall constitute a violation of this article subject to the penalty specified in this article.
(1990 Code, sec. 3.411)
Sec. 6.05.039 Display
Itinerant vendors are hereby required to exhibit and display their permits or authorized evidence thereof at all times whenever they are engaged in outdoor selling. (1990 Code, sec. 3.412)
Sec. 6.05.040 Revocation
Permits issued under the provisions of this division may be revoked. Grounds for revocation shall include but not be limited to the following:
(1) Fraud, misrepresentation, or any false statement contained in the application for the permit;
(2) Conviction of the permittee of a felony;
(3) Conviction of a misdemeanor involving fraud or dishonesty, including but not limited to fraud, larceny, burglary, robbery, or embezzlement;
(4) A conviction of the permittee for two or more violations of the provisions of this article within the preceding 12 months; or
(5) A finding that the permittee has conducted the business for which the permit was issued in an unlawful manner or in such manner as to constitute a breach of the peace.
(1990 Code, sec. 3.413)
Sec. 6.05.041 Surrender upon expiration or revocation
When a permit issued pursuant to the provisions of this division expires, or is revoked, its holder shall surrender it to the director of community development and the permit shall become the property of the city. (1990 Code, sec. 3.414)
Sec. 6.05.042 Appeal of denial or revocation
In the event an applicant is denied a permit or a permit is revoked, the applicant may appeal the decision by filing a written statement to the city manager no later than ten (10) days after denial or revocation. The city manager may affirm, reverse, or modify the decision of the director of community development and shall do so within three (3) business days of the receipt of the appeal. (1990 Code, sec. 3.407)
Sec. 6.05.043 Renewal
The holder of any expiring permit, issued under this division, who desires a new permit, shall file a written application for renewal with the director of community development. The application for renewal shall contain the information required in section 6.05.032 of this division. The director of community development, in determining whether to approve or disapprove an application for renewal of a permit, shall be guided by the provisions in section 6.05.034 of this division. (1990 Code, sec. 3.415)
In this article, the following words and phrases shall be defined as follows:
Alarm notification. A notification intended to summon public safety personnel, which is designed either to be initiated purposely by a person or by an alarm system that responds to a stimulus characteristic of unauthorized intrusion or fire alarm.
Alarm permit administrator. The person assigned by the police chief to administer the alarm services.
Alarm site. A premises or location with one (1) street address served by an alarm system or systems that is under the control of one (1) owner or lessee. Establishments doing business under different names with the same owner/lessee are considered separate alarm sites.
Alarm system. A device or system that emits, transmits, or relays a broadcast signal intended to summon, or that would reasonably be expected to summon, police or fire services of the city. Alarm system does not include:
(1) An alarm installed on a vehicle; or
(2) An alarm designed to alert only the inhabitants of a premises which does not have a broadcast alarm.
(3) A person needing and requiring medical alert signal device.
Broadcast signal. An alarm system that emits a signal at an alarm site that is audible or visible from the exterior of a structure.
Chief. The fire chief or the chief of police of the city or his or her authorized representative.
Commercial. A site used primarily for the purpose of conducting a business or trade. In the case of joint commercial and residential uses, the use of the unit wherein the alarm device is located classifies the site for the purposes of this article.
Establishment. Any enterprise, public, private or social, operating at an alarm site.
False alarm notification. An alarm notification to the communication center of the city when the responding emergency personnel finds no evidence of an attempted or actual unauthorized intrusion, burglary, robbery, or hostage taking, or indication of a fire.
Local audible alarm. An alarm system that emits a signal at an alarm site which is audible or visible from the extension of the alarm site.
Person. An individual, corporation, partnership, association, organization or similar entity.
Residential. A site used primarily as a dwelling. In the case of joint commercial and residential uses, the use of the unit wherein the alarm device is located classifies the site for the purposes of this article.
Standard of reliability. When a permitted alarm system has experienced eleven (11) false alarms within any twelve-month duration, it will be classified as unreliable and be subject to suspension or revocation, or when in the determination of the alarm permit administrator the alarm may not meet technical standards as adopted by the city.
Unit. A portion of an alarm site that contains a separately operated alarm system.
(1990 Code, sec. 3.901)
Sec. 6.06.002 Applicability
This article shall apply only to a person who operates or causes to be operated an alarm system at an alarm site in the city. (1990 Code, sec. 3.927)
Sec. 6.06.003 Statement of purpose; liability
All of the regulations provided in this article are hereby declared to be governmental and for the health, safety and welfare of the general public. Any member of the city council or any city official or employee charged with the enforcement of this article acting for the city in the discharge of his or her duties shall not thereby render himself or herself personally liable, and he or she is hereby relieved from all personal liability for any damage that might accrue to persons or property as a result of any act required or permitted in the discharge of his or her said duties. (1990 Code, sec. 3.929)
Sec. 6.06.004 Review
The police chief shall monitor the enforcement and effect of this article and make a report annually to the city manager. (1990 Code, sec. 3.928)
Sec. 6.06.005 Administrative rules
The chief of police, in the case of holdup or intrusion alarms, or the fire chief, in the case of supervisory or fire alarms, is authorized to establish and enforce reasonable administrative rules and procedures to regulate the installation and operation of alarm systems, including, but not limited to, alarm installation, registration, response and removal, and further authorizing the enforcement of technical standards as may be adopted by the city. (1990 Code, sec. 3.915)
Sec. 6.06.006 Violations; penalty
(a) General. A person commits an offense if he or she violates, by commission or omission, any provision of this article of the code of the city that imposes upon him or her a duty or responsibility.
(b) Permittee. A person who is required to have a permit under this article commits an offense if he or she knowingly operates, causes or permits to be operated an alarm system without a current alarm permit issued by the city.
(c) Failure to obtain permit. A person who is required to have a permit under this article commits an offense if he or she knowingly operates, causes or permits to be operated an alarm system after receipt of notice that the alarm system lacks a current city permit.
(d) Revoked permit. A person who is required to have a permit under this article commits an offense if he or she knowingly operates, causes or permits to be operated an alarm system during the period in which the alarm permit is revoked.
(e) Penalty. A person who violates a provision of this article is guilty of a separate offense for each violation committed, continued or permitted, and each offense is punishable by a fine.
(1990 Code, sec. 3.925)
Sec. 6.06.007 Responsibilities of corporations, partnerships and associations
In addition to prohibiting or requiring certain conduct of individuals, it is the intent of this article to hold a corporation, partnership or other association criminally responsible for acts or omissions performed by an agent, acting in behalf of the corporation, partnership or other association, and within the scope of his or her employment. (1990 Code, sec. 3.926)
Sec. 6.06.008 Requirements of operation
(a) A permit holder or person in control of an alarm system shall respond or cause a representative to respond within a reasonable period of time (not to exceed thirty (30) minutes) when notified by the city to repair or inactivate a malfunctioning alarm system, to provide access to the premises or to provide security for the premises.
(b) It shall be unlawful for any person to intentionally activate or cause to be activated any fire, holdup, intrusion, supervisory or fire alarm without the existence of an emergency situation and with the intent of causing the response of the city police or fire department.
(1990 Code, sec. 3.909)
Sec. 6.06.009 Maintenance
(a) A permit holder or person in control of an alarm system shall adjust the mechanism or cause the mechanism to be adjusted so that an alarm signal will sound for no longer than thirty (30) minutes after being activated.
(b) If an alarm system sounds a broadcast signal for longer than thirty (30) minutes after being activated, a police officer or fire personnel is authorized to disable the alarm. All costs to the city in disabling the alarm shall be assessed to the person required to have a permit and shall be paid to said city within thirty (30) days after the person has received notice that the costs have been assessed. Application for a permit constitutes a grant of approval to said city to disable the alarm as provided herein.
(1990 Code, sec. 3.910)
Sec. 6.06.010 Manual reset required
A permit holder or person in control of any alarm system, that causes an alarm notification to be sent to the city communications center, shall adjust the mechanism or cause the mechanism to be adjusted so that upon activation the system will not transmit another alarm signal without first being manually reset. (1990 Code, sec. 3.911)
Sec. 6.06.011 Reporting of alarm signals
(a) A permit holder or person in control of an alarm system shall not allow alarm signals to be directly reported or reported through a relaying intermediary by a signal or recorded message to the public safety communications center unless mandated by federal law.
(b) A permit holder commits an offense if he or she allows alarm signals to be reported through a relaying intermediary that is not licensed by the state private security bureau.
(1990 Code, sec. 3.912)
Sec. 6.06.012 Alarm reporting
A permit holder or person in control of an alarm system whose alarm system transmits alarm notifications to a central monitoring location shall:
(1) Transmit the alarm in the form and with the content specified by the alarm permit administrator; and
(2) Ensure that no recorded message is transmitted to the communications division.
(3) Not install a holdup, intrusion, fire or supervisory alarm device which causes the police/fire emergency telephone to ring.
(1990 Code, sec. 3.913)
Sec. 6.06.013 Operating instructions
A permit holder or person in control of an alarm system shall maintain a complete set of written operating instructions for each alarm system at each alarm site. Special codes, combinations or passwords must not be included in these instructions. (1990 Code, sec. 3.914)
Sec. 6.06.014 Alarm monitoring
Alarms must be monitored by a service provider and reported by a representative of the alarm company to the communications center. No alarms will be connected directly to the communications center except alarms installed on city-owned or -controlled property. (1990 Code, sec. 3.916)
Sec. 6.06.015 Information recorded
The city public safety personnel shall cause to be recorded such information as necessary to permit said city to maintain records of calls made in response to an alarm, including but not limited to the following information, if available:
(1) Identification of the permit holder;
(2) Identification of the alarm site;
(3) Arrival time and time call cleared;
(4) Time of day and date;
(5) Physical damage to the structure likely to have caused the alarm; and
(6) Name of the permit holder’s representative on premises, if any.
(1990 Code, sec. 3.917)
Sec. 6.06.016 Alarm classification
The responding public safety personnel shall report whether the notification was caused by a criminal offense, fire, weather condition or other physical damage to the structure likely to have caused the alarm, which classification will determine whether the alarm is a false alarm notification. (1990 Code, sec. 3.918)
Sec. 6.06.017 Service fee
(a) Except as provided in sections 6.06.018 and 6.06.019 hereof, a person who is required to obtain a permit shall pay a service fee within thirty (30) days of receipt of each false alarm notification emitted from an alarm site, in accordance with the service fees found in the appendix of this code. (1990 Code, sec. 3.919)
(b) The fire marshal shall, on a monthly basis, send to the permit holder, at the address stated on the application, a statement for fees due. Such fees shall be paid by the permit holder within thirty (30) days.
(c) The fire marshal shall submit to the chief of police and fire chief, on a monthly basis, a summary report of the alarm activity.
(1990 Code, app. A, sec. 12.00(c), (d))
Sec. 6.06.018 New installations
If a person applies for an alarm permit before the installation of a new alarm system, no service fee will be assessed during the first thirty (30) days after installation, and alarm notifications during that period will not be counted in determining when a service fee will be assessed. (1990 Code, sec. 3.920)
Sec. 6.06.019 Service fee waiver
If the responding public safety officer determines that an alarm notification was caused by a criminal offense, weather condition or other physical damage to the structure likely to have caused an alarm, no service fee will be assessed for that notification, and that notification will not be counted in determining when a service fee will be assessed. (1990 Code, sec. 3.921)
(a) A separate permit is required by the owner of each alarm site where an alarm system is provided by the owner, except at nonresidential sites, in which case a separate permit is required by the owner of the establishment located on the site.
(b) A separate permit is required by the lessee of each alarm site where an alarm system is provided by the lessee.
(c) A person required by this article to have an alarm permit commits an offense if he or she operates, or causes or allows to be operated, an alarm system prior to obtaining an alarm permit, or without having obtained an alarm permit not later than ten (10) days after a false alarm notification has been emitted from said alarm site while under his or her care, custody, or control.
(d) No exemptions shall apply except as required by federal law, state law, or fire prevention code. The burden of proof shall be with the person asserting the exemption.
(e) A nonrefundable fee shall be paid by the applicant prior to the issuance of a permit for a burglar alarm system, fire alarm system, or any combination thereof, as provided for in section A6.06.051 of the fee schedule in appendix A to this code.
(1990 Code, sec. 3.902)
Sec. 6.06.052 Form of application
(a) Application for a permit required by the provisions of this article shall be filed with the alarm permit administrator at the police department administration offices.
(b) The application shall include at least the following information:
(1) The individual’s full name, business address and residence address;
(2) The individual’s residence and business telephone number;
(3) The business and residence addresses and telephone number of the primary person designated to respond to an alarm as required by section 6.06.008 and at least one other contact person;
(4) Must notify the alarm permit administrator immediately upon any change of response designees.
(c) Any individual signing a permit application must be at least eighteen (18) years of age.
(d) The application shall state the address site for the location of the alarm system and whether it is a residential, commercial, banking, industrial or health care institution.
(e) Any other information required by the alarm permit administrator to insure compliance with all the provisions of this article.
(1990 Code, sec. 3.903)
Sec. 6.06.053 Issuance; denial
(a) Upon receipt of a completed application form, the alarm permit administrator shall issue an alarm permit to an applicant unless the applicant:
(1) Failed to pay a service fee assessed under section 6.06.017 hereof;
(2) Had an alarm permit for the alarm site revoked and the violation causing the revocation has not been corrected;
(3) Made a false statement of a material matter in the application; or
(4) Committed any act which, if committed by a permittee, would be grounds for the revocation of a license under section 6.06.058 hereof.
(b) No permit will be issued for alarm sites outside the corporate limits of the city, with the following exception: businesses with fire service contracts with the city.
(c) The permit holder shall notify the office of the alarm permit administrator of any change in the information contained in the application within five (5) days of such change.
(1990 Code, sec. 3.904)
Sec. 6.06.054 Transfer; change of information
An alarm permit cannot be transferred to another person. A permit holder shall inform the alarm permit administrator of any change that alters any information listed on the permit application within two (2) business days of such change. No fee will be assessed for such changes. (1990 Code, sec. 3.905)
Sec. 6.06.055 Payment of fees prior to issuance or renewal
All service fees and permit fees owed by an applicant must be paid before a permit may be issued or renewed. (1990 Code, sec. 3.906)
Sec. 6.06.056 Duration and renewal
A permit is issued for twelve (12) months. It is the responsibility of the permit holder to submit an updated application to renew the permit at least ten (10) days prior to the permit expiration date. (1990 Code, sec. 3.907)
Sec. 6.06.057 Duration of denial
A denial of a permit shall be for any period of time up to six (6) months at the discretion of the alarm permit administrator based on the severity of the violation under section 6.06.053 hereof. (1990 Code, sec. 3.908)
Sec. 6.06.058 Grounds for revocation
The alarm permit administrator shall revoke an alarm permit if he or she determines that:
(1) There is a false statement of a material matter in the application for a permit;
(3) The permit holder has failed to make timely payment of fees assessed under section 6.06.017 hereof.
(4) When the permit holder has experienced eleven (11) false alarms within a twelve-month duration and is classified as unreliable.
(1990 Code, sec. 3.922)
Sec. 6.06.059 Duration of revocation
A revocation shall be for any period of time up to six (6) months at the discretion of the alarm permit administrator, based on the severity of the violation. (1990 Code, sec. 3.923)
Sec. 6.06.060 Appeal from denial, suspension or revocation
(a) If the alarm permit administrator refuses to issue or renew a permit, or revokes a permit, he or she shall send to the applicant or permit holder, within five (5) working days by certified mail, return receipt requested, written notice of his or her action and a statement of the right to an appeal. The applicant or permit holder may appeal the decision to the chief of police for burglar and intrusion alarm systems and the fire chief for fire alarm systems by filing with the appropriate chief a written request for a hearing setting forth the reasons for the appeal, within ten (10) days after receipt of the notice. The filing of a request within ten (10) days with the appropriate chief stays an action revoking a permit until the chief makes a final decision. If a request for an appeal hearing is not made within the ten-day period, the refusal, suspension or revocation is final.
(b) The chief of police, in the case of burglar/intrusion alarm systems, and the fire chief, in the case of fire alarms, shall serve as hearing officer at an appeal and consider evidence by an interested person. The formal rules of evidence do not apply at an appeal hearing. The hearing officer shall make his or her decision on the basis of a preponderance of the evidence presented at the hearing. The hearing officer must render a decision within thirty (30) days after the request for an appeal hearing is filed. The hearing officer shall affirm, reverse or modify the action appealed. The decision of the hearing officer is final as to administrative remedies with the city.
The following terms and phrases as used in this article, unless the context clearly shows otherwise, shall have the following meanings:
Applicant. The person who applies for a certificate hereunder.
Certificate. A permit authorizing the operation of a wrecker service for the purpose of making police pulls within the city, pursuant to certain terms, regulations and conditions, and issued and held pursuant to sections 6.07.051 through 6.07.060.
Certificate holder. Any person holding a valid and current certificate under this article, and having control, direction, maintenance and the benefit of the collection of revenue derived from the operation of the wrecker service within the city, whether as owner or otherwise.
Disabled vehicle. A vehicle which has been rendered unsafe to be driven as the result of some occurrence other than a wreck, including, but not limited to, mechanical failures or breakdowns, fire, vandalism, or a vehicle which is in a safe driving condition, but the owner is not present or able or permitted to drive so as to reasonably necessitate that the vehicle be removed by a wrecker.
(1990 Code, sec. 3.1001)
Enforcement inspector. Such officers and employees of the city as may be designated by the city manager to enforce and administer the provisions of the code of the city. (1990 Code, sec. 3.1001; Ordinance adopting Code)
Illegally or unauthorized parked vehicle. A vehicle parked in violation of any state law or city ordinance or without the effective consent of the owner of the premises where the vehicle is parked. (1990 Code, sec. 3.1001)
Junked vehicle. A vehicle that is self-propelled and:
(1) Does not have lawfully attached to it:
(A) An unexpired license plate; or
(B) A valid motor vehicle inspection certificate; and
(2) Is:
(A) Wrecked, dismantled or partially dismantled, or discarded; or
(B) Inoperable and has remained inoperable for more than:
(i) 72 consecutive hours, if the vehicle is on public property; or
(ii) 30 consecutive days, if the vehicle is on private property.
(1990 Code, sec. 3.1001; Ordinance adopting Code)
“Junked vehicle” does not include the following: (a) a vehicle or part thereof which is completely enclosed within a building in a lawful manner where it is not visible from the street or other public or private property; (b) a vehicle or part thereof which is stored or parked in a lawful manner on private property in connection with the business of a licensed vehicle dealer or junkyard; or (c) unlicensed, operable or inoperable antique and special interest vehicles stored by a collector on his or her property, provided that the vehicles and the outdoor storage areas are maintained in such a manner that they do not constitute a health hazard and are screened from ordinary public view by means of a fence, rapidly growing trees, shrubbery, or other appropriate means.
Person. Includes an individual, firm, corporation, association, partnership, joint venture or society.
Police pull. The towing or other transportation of a vehicle by a certificate holder which is the result of a police officer taking constructive custody of said vehicle pursuant to state law and this article. Police pulls do not include tows resulting from courtesy calls made by the police department to a wrecker service at the request of the vehicle’s operator, regardless of whether said wrecker service is a certificate holder under this article.
Street. The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.
(1990 Code, sec. 3.1001)
Tow truck. A motor vehicle, including a wrecker, equipped with a mechanical device used to tow, winch, or otherwise move another motor vehicle. (Ordinance adopting Code)
Vehicle. Every device in, upon or by which any person or property is or may be transported or drawn upon a street, except devices moved by human power or used exclusively upon stationary rails or tracks.
Wrecked vehicle. A vehicle that has been damaged as the result of overturning or colliding with another vehicle or object so as to reasonably necessitate that the vehicle be removed by a wrecker.
(1990 Code, sec. 3.1001)
Wrecker. A tow truck. (Ordinance adopting Code)
Wrecker service. The business of towing, moving or removing vehicles through the use of another vehicle for compensation, regardless of whether the purpose of the removal is to transport wrecked or disabled vehicles; repair, store, trade, purchase, repossess vehicles; or to remove illegally or unauthorized parked vehicles.
(1990 Code, sec. 3.1001)
Sec. 6.07.002 Violations and penalties
(a) Any person who violates any provision herein shall be guilty of a misdemeanor and upon conviction may be punished by a fine as provided in section 1.01.009. Each act of violation and each day in which a violation is permitted to continue shall constitute a separate offense.
(b) The city shall be entitled to pursue all other criminal and civil remedies to which it is entitled under any other law, and the remedies provided herein are not exclusive.
(1990 Code, sec. 3.1038)
Sec. 6.07.003 Applicability of provisions
The prohibitions and requirements of this article shall apply to all accidents and disablements regardless of whether or not the final resting place of a vehicle is upon a street immediately after the accident or disablement. (1990 Code, sec. 3.1029)
Sec. 6.07.004 Compliance with state standards required
Any wrecker service operator, whether a certificate holder under this article or not, shall at all times comply with all rules pertaining to minimum insurance requirements and minimum safety standards for the operation of tow trucks adopted by the state department of transportation pursuant to V.T.C.A., Transportation Code, section 643.101. (1990 Code, sec. 3.1036; Ordinance adopting Code)
Sec. 6.07.005 Pushing or towing vehicles excepted from certain prohibitions
Vehicles may be pushed or towed by another vehicle (except by a wrecker for compensation) only when they do not reasonably require removal by a wrecker and only when such may be done in a safe manner. Such removal is exempted from the provisions of this article except section 6.07.013. (1990 Code, sec. 3.1030)
Sec. 6.07.006 Rotation of dispatches
In the event that more than one (1) certificate to perform police pulls within the city is to be awarded during the same period, the chief of police shall develop and implement a policy and administrative procedure for rotating dispatches between the certificate holders. Such policy and procedure shall be reduced to writing and a copy thereof given to each certificate holder and potential certificate holder prior to the awarding of the latest certificate. (1990 Code, sec. 3.1013)
Sec. 6.07.007 Records of certificate holder
(a) Each certificate holder shall create and maintain the following written records for at least two (2) years following each police pull and each pull resulting from courtesy calls made by the police department at the request of a vehicle’s operator:
(1) Books, records, logs or receipts relative to all towing, storage and miscellaneous fees charged by the certificate holder; and
(2) Any other records determined by the chief of police to be necessary to the supervision of the certificate holder’s police pull operations.
(b) Any failure by a certificate holder to maintain adequate records as required by this section or to comply with the reporting or inspection procedures of this article shall constitute grounds for the suspension or revocation of the certificate for said certificate holder.
(1990 Code, sec. 3.1014)
Sec. 6.07.008 Authority for police pulls
A police officer of the city is hereby authorized to move a vehicle, require the driver or other person in charge of a vehicle to move the same or have the vehicle removed by a certificate holder under this article to the nearest place of safety, or to the premises of said certificate holder, under the following circumstances:
(1) When any vehicle is left unattended upon any bridge, viaduct, or causeway, or in any tunnel where such vehicle constitutes an obstruction to traffic;
(2) When any vehicle is otherwise legally parked so as to block the entrance to any private driveway;
(3) When any vehicle is found upon a street and a report has been previously made that the vehicle has been stolen or a complaint has been filed and a warrant thereon issued charging that such vehicle has been embezzled or there are reasonable grounds to believe the vehicle is stolen;
(4) When any such officer has reasonable grounds to believe that any vehicle has been abandoned;
(5) (A) When a vehicle upon a street is so wrecked or disabled that its normal operation is impossible or impractical; or
(B) The person or persons in charge of the vehicle are incapacitated by reason of physical injury or other reason to such extent to be unable to provide for its removal or custody, or are not in the immediate vicinity of the wrecked or disabled vehicle;
(6) When any such officer arrests any person driving or in control of a vehicle for an alleged offense and such officer is by this article or other law required to take the person arrested immediately before a magistrate and it is unsafe to leave the vehicle unattended at the scene;
(7) Whenever any such officer finds a vehicle standing upon a street in violation of any state law or local ordinance;
(8) When the owner or operator consents;
(9) When, in the opinion of a police officer, the said vehicle constitutes a hazard or interferes with a normal function of a governmental agency;
(10) When, in the opinion of a police officer, the safety of said vehicle is imperiled by reason of any catastrophe, emergency or unusual circumstance;
(11) When any vehicle is found to be a junked vehicle in accordance with article 24.10, division 2, and Texas Transportation Code, chapter 683; or
(12) Where otherwise authorized by law.
(1990 Code, sec. 3.1015)
Sec. 6.07.009 Pull cards
The chief of police shall cause to be prepared a form to be used for each police pull in the city made by a certificate holder that was dispatched by the police department. Said form shall contain at least the following information:
(1) The names and addresses of the owner and operator of the vehicle to be towed;
(2) The name of the wrecker service (certificate holder) performing the tow;
(3) The description of the vehicle to be towed;
(4) The time, date and reason for the tow;
(5) The location and destination of the vehicle to be towed;
(6) An authorization by the towed vehicle’s operator for someone to claim the vehicle;
(7) Information relating to any police hold placed on the release of the vehicle to be towed, including notification of a release of said hold; and
(8) An indication of who authorized the release and who took possession of the vehicle after its release.
(1990 Code, sec. 3.1016)
Sec. 6.07.010 Dispatch procedures
When a police officer investigating an accident or disablement in the city determines that any vehicle involved should be removed by a wrecker, the officer shall first determine whether or not the owner or his or her authorized representative has already made arrangements for its removal. If no arrangements have been made, the officer shall cause the following steps to be taken in sequence to complete the wrecker pull form:
(1) The officer shall request that the owner, driver or other vehicle occupant designate the place to which he or she desires the vehicle to be removed.
(2) The officer shall request that the driver or other vehicle occupant indicate whether he or she has a particular wrecker operator he or she wishes to be called to the scene to remove said vehicle.
(3) The officer shall then immediately notify police headquarters of the information contained in (1) and (2) above and the officer in charge at headquarters shall immediately notify the wrecker operator selected and shall give him or her the information in (1) above and direct that he or she immediately proceed to the scene of the accident, disablement or arrest.
(4) If, for any reason, no wrecker operator is selected, the officer shall notify police headquarters and the officer in charge at headquarters shall direct a certificate holder to go to the scene and remove the vehicle.
(5) Upon the wrecker operator’s arrival at the scene, the officer shall complete the wrecker pull form and distribute the copies in accordance with police department policy.
(6) In the event that a wrecker does not arrive at the scene of an accident, disablement or arrest within a reasonable time after being notified, the police officer at the scene may notify police headquarters that a certificate holder be notified to respond.
(1990 Code, sec. 3.1017)
Sec. 6.07.011 Procedure for determination of owner’s rights
(a) When a vehicle is towed pursuant to a police pull, the owner of said vehicle shall be afforded the right to a hearing as provided in Texas Transportation Code, chapter 685. (1990 Code, sec. 3.1018)
(b) It shall be the duty of the clerk of the court to furnish to the chief of police an account of the final disposition of any case heard under the hearing procedures set forth in this section upon disposition thereof. (1990 Code, sec. 3.1018; Ordinance adopting Code)
(c) Unless a police hold is placed on a vehicle towed pursuant to a police pull, it shall be the responsibility of the certificate holder to determine whether the vehicle should be released, when it should be released, and to whom it should be released. (1990 Code, sec. 3.1018)
Sec. 6.07.012 Unauthorized arrival at accident scene
No wrecker shall arrive at the scene of an accident within the city unless such wrecker has been called to the scene by the owner or operator of a vehicle or his or her authorized representative or by the police department. Each wrecker operator, when called by the owner or operator of a vehicle involved in an accident or his or her authorized representative, shall notify the police dispatcher before proceeding to the location of the vehicle. (1990 Code, sec. 3.1026)
Sec. 6.07.013 Solicitation of business
(a) No person shall solicit any wrecker business in any manner, directly or indirectly, within the city at the scene of a wrecked or disabled vehicle, regardless of whether the solicitation is for the purpose of soliciting the business of towing, repairing, wrecking, storing, trading or purchasing the vehicle.
(b) The presence of any person engaged in the wrecker business who has not been notified by the police department at the scene of an accident or place of disablement shall be prima facie evidence of a solicitation and violation of this article.
(1990 Code, sec. 3.1027)
Sec. 6.07.014 Recommendation of service by city employees
No employee of the city shall recommend to any person, directly or indirectly, either by word, gesture, sign or otherwise, the name of any particular wrecker service. (1990 Code, sec. 3.1028)
Sec. 6.07.015 Authority to tow junked vehicles
Upon determination by the city council, in accordance with article 24.10, division 2, and Texas Transportation Code, chapter 683, that a motor vehicle constitutes a junked vehicle, an inspector for the code enforcement department of said city shall hereby be authorized to move said vehicle, require the person in charge of said vehicle to move the same, or have said vehicle removed by a wrecker in accordance with applicable law. (1990 Code, sec. 3.1031; Ordinance adopting Code)
Sec. 6.07.016 Fees for police pull service
Each certificate holder under this article must maintain a fee schedule for police pull services that is the same for its nonpolice pulls requiring the same services. (1990 Code, sec. 3.1032)
Sec. 6.07.017 Tow service logs
All operators of wreckers, whether certificate holders under this article or not, shall, while engaged in wrecker services within the city, carry a log reflecting the address of pickup and delivery of the vehicle being towed and the name and telephone number of the party ordering the tow. (1990 Code, sec. 3.1033)
Sec. 6.07.018 Disengaging of tows
Any wrecker service operator, whether a certificate holder under this article or not, shall cease the removal of a vehicle upon request of the vehicle’s operator and upon payment of the charges incurred to that point, except in the case of police pulls and cases in which the police officer in charge determines that public safety requires the removal of the vehicle. (1990 Code, sec. 3.1034)
Sec. 6.07.019 Notice of vehicle removal
Whenever any vehicle is removed pursuant to Texas Transportation Code, chapter 684, without the consent of the owner or operator, notice of same shall be left with the person directing the removal and with the dispatch desk of the police department. (1990 Code, sec. 3.1035)
Sec. 6.07.020 Frequency of auctions of abandoned vehicles
The police department will arrange for and conduct auctions for abandoned vehicles at least once every twelve (12) months, or more frequently if the chief of police deems it necessary for the orderly processing of such vehicles. (1990 Code, sec. 3.1037)
Secs. 6.07.021–6.07.050 Reserved
Division 2. Certificate
Sec. 6.07.051 Required for wrecker service on police pulls
No wrecker service shall be utilized for police pulls within the city without first having obtained a certificate pursuant to this division. (1990 Code, sec. 3.1002)
Sec. 6.07.052 Application
(a) Application for a certificate to perform police pulls within the city shall be in writing, signed and sworn to by the applicant, and shall be filed with the chief of police. The application shall be on a form provided by the chief of police and shall contain at least the following:
(1) The name, date of birth, and address of the applicant; if a partnership, the name, date of birth, and address of each partner; if a corporation, its name, date and place of incorporation, the address of its principal place of business, the names and addresses of all officers and directors, and a certified copy of its permit to do business in this state.
(2) The trade name under which the applicant does or proposes to do business.
(3) The address of each place of business from which the applicant proposes to operate.
(4) As to each wrecker vehicle operated by the applicant, the model, size, year, make, vehicle identification number, state license registration number, and state tow truck certificate of registration information.
(5) As to each wrecker vehicle operated by the applicant, a statement that the vehicle is currently and will remain licensed, inspected and registered as a tow truck with the state.
(6) A statement that the applicant has rendered all of the property used by his or her wrecker business for taxation.
(1990 Code, sec. 3.1004)
(7) A statement that all of the applicant’s wrecker vehicles are and will remain in compliance with state tow truck requirements, as specified in V.T.C.A., Transportation Code, chapter 643, and the rules adopted pursuant thereto by the state department of transportation. (1990 Code, sec. 3.1004; Ordinance adopting Code)
(8) A statement that the applicant has and will maintain in operation and available for police pulls at all times at least one (1) one-ton or larger truck that is equipped with at least a four-ton factory-rated wrecker equipped with a hydraulic wheel lift and hydraulic boom. (1990 Code, sec. 3.1004)
(9) A statement that the applicant shall tow to a vehicle storage facility operated by a person who holds a license under V.T.C.A., Occupations Code, chapter 2303.
(10) A statement that the applicant has and will tow to a vehicle storage facility that maintains sufficient personnel to operate the minimum equipment, dispatch the equipment, secure property stored in the storage lot, and release impounded vehicles on a twenty-four-hour basis every day of the year, and that he or she will operate on the basis to perform police pulls while holding a certificate to do so.
(11) A statement that the applicant has and will tow to a vehicle storage facility that maintains, for police department crime scene purposes, an enclosed area at least fifteen feet (15') by twenty-five feet (25') equipped with lights and electrical outlets and located in a secure area within the applicant’s locked facilities.
(1990 Code, sec. 3.1004; Ordinance adopting Code)
(12) Certification showing that the applicant has no delinquent taxes due to the city at the time of the application. (1990 Code, sec. 3.1004)
(b) The application for a certificate of public convenience and necessity shall be accompanied by a nonrefundable filing fee as set forth in section A6.07.052 of appendix A to this code to cover administrative costs and the costs of publication of notices as required. (1990 Code, app. A, sec. 14.00)
Sec. 6.07.053 Action on application
(a) In the event the applicant meets the required qualifications to give proper and adequate service to the best interest of the inhabitants of the city, the chief of police shall grant a certificate to such applicant, subject to certain terms and conditions. Such terms may cover any of the following considerations and such other provisions appropriate to the service to be rendered under the certificate:
(1) The number of vehicles authorized;
(2) A description of the vehicles to be operated, including a requirement for a uniform color scheme;
(3) The customers to be served;
(4) Operating procedures; and
(5) The term of the certificate.
(b) In the event the chief of police does not [grant a certificate] and that the applicant meets the requirements for the issuance of such a certificate, the applicant may appeal as provided in section 6.07.064.
(1990 Code, sec. 3.1005)
Sec. 6.07.054 Issuance
The chief of police shall issue a certificate upon obtaining the signature of the applicant on the original certificate. The original certificate shall be filed with the city secretary and a copy shall be retained by the chief of police and delivered to the certificate holder. (1990 Code, sec. 3.1006)
Sec. 6.07.055 Form and contents
Every certificate issued hereunder shall be signed by the chief of police and shall contain the name and address of the applicant, and the terms and limiting conditions of the certificate. There shall also be provided in the certificate a space for the applicant to sign, agreeing to the terms thereof. (1990 Code, sec. 3.1007)
Sec. 6.07.056 Compensation; certificate does not confer exclusive business
The holder of a certificate to perform police pulls within the city will be reimbursed at full fair market value for any towing and storage services rendered by said holder relating to (1) city vehicles and equipment, and (2) police pulls not chargeable to the owner of the vehicle, as determined by the chief of police or the appropriate court. However, the city shall not be obligated to use said certificate holder for services relating to city vehicles and equipment and may engage the services of another wrecker company in such cases. (1990 Code, sec. 3.1003)
Sec. 6.07.057 Transferability
No certificate shall be transferable without the consent of the chief of police. A purported transfer without such consent shall cause an immediate suspension of such certificate. The term “transfer” shall include a transfer of a majority interest in the company to which a person or persons occupying positions classified in the application for certificate as owner or applicant, or as a partner in a partnership applicant, or as a stockholder holding fifty-one percent (51%) of the shares of stock in a corporate applicant. (1990 Code, sec. 3.1008)
Sec. 6.07.058 Duration
(a) A certificate issued pursuant to this division shall be in effect for five (5) years from the date such certificate was issued by the chief of police, unless during the five-year period:
(1) The chief of police determines that the certificate has become subject to suspension or revocation by authority of this article; or
(2) The certificate holder decides to discontinue performing police pulls under this article.
(b) Any certificate holder who wishes to discontinue performing police pulls for the city shall give at least ninety (90) days’ written notice to the chief of police prior to ceasing such operations.
(1990 Code, sec. 3.1010)
Sec. 6.07.059 Renewal
(a) Renewal applications containing the information required in section 6.07.052 shall be submitted and may be obtained from the chief of police. Said renewal applications shall be completed and filed with the chief of police at least thirty (30) days in advance of the expiration date of the current certificate.
(b) The chief of police may renew a certificate, provided that the applicant is qualified for issuance of a certificate.
(c) If a certificate expires through no fault of the renewal applicant before approval or denial of the renewal, the renewal applicant may continue to operate the service pending action of the chief of police; however, upon notice of denial, the renewal applicant shall immediately cease operation of the service.
(d) Should the chief of police fail or refuse to renew a certificate, he or she shall immediately notify the certificate holder by certified mail or personal delivery of written notice. Said certificate holder shall have the right to appeal the decision of the chief of police as provided in section 6.07.064.
(1990 Code, sec. 3.1011)
Sec. 6.07.060 Amendment
Any provision or condition of a certificate can be amended by the chief of police except to increase the term of the certificate. When an amendment is approved, the chief of police is authorized to sign and file such amendment with the city secretary. If the chief of police receives a notice of appeal, the same hearing procedure as set forth in section 6.07.064 shall be followed. If approved, a copy of the amendment will be attached to the certificate on file with the city secretary. (1990 Code, sec. 3.1012)
Sec. 6.07.061 Suspension or revocation authority
Any certificate to perform police pulls within the city may either be suspended for up to six (6) months or permanently revoked by the chief of police. (1990 Code, sec. 3.1019)
Sec. 6.07.062 Grounds for suspension or revocation generally
The chief of police shall suspend or revoke a certificate to perform police pulls within the city if it is determined from a sworn statement filed with the chief of police based on information and belief that the holder has:
(1) Breached the terms of the certificate;
(2) Failed to comply with any provision of this article;
(1990 Code, sec. 3.1020)
(3) Failed to comply with the tow truck requirements of V.T.C.A., Transportation Code, chapter 643, and all rules adopted pursuant thereto by the state department of transportation; (1990 Code, sec. 3.1020; Ordinance adopting Code)
(4) Failed to respond in a timely fashion to a dispatch for a police pull;
(5) Failed to create and maintain records and reports, and to make them available for inspection, as required by sections 6.07.006 through 6.07.011;
(6) Failed to comply with the applicable requirements of Texas Transportation Code, chapter 683, relating to abandoned motor vehicles;
(7) Failed to comply, within the time specified, with written notice by the chief of police indicating a deficiency in the wrecker service provided on police pulls.
(1990 Code, sec. 3.1020)
Sec. 6.07.063 Suspension or revocation based on criminal background
(a) The chief of police may suspend or revoke an existing certificate to perform police pulls within the city if he or she becomes aware of the conviction of the certificate holder or a person employed by the certificate holder for a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a certificate holder.
(b) In determining whether the criminal act directly relates to the duties and responsibilities of a certificate holder, the chief of police shall consider:
(1) The nature and seriousness of the crime;
(2) The relationship of the crime to the purpose of requiring a certificate and necessity; for example, the following crimes are deemed to have such a relationship because they involve potential danger of harm to property and/or the drivers and passengers of towed vehicles and because the opportunity to commit such offenses is enhanced by the nature of the certificate holder’s occupation:
(A) Theft, robbery and similar crimes of dishonesty;
(B) Assaultive crimes;
(C) Violations of this article;
(D) Sexual abuse crimes;
(E) Crimes of alcohol or drug abuse; and
(F) Traffic offenses;
(3) The extent to which the certificate might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved;
(4) The relationship of the crime to the ability, capacity or fitness required to perform the duties and discharge the responsibility of a certificate holder;
(5) The extent and nature of the person’s past criminal activity;
(6) The age of the person at the time of the commission of the crime;
(7) The amount of time that has elapsed since the person’s last criminal activity;
(8) The conduct and work activity of the person prior to and following the criminal activity;
(9) Evidence of the person’s rehabilitation or rehabilitative effort; and
(10) Other evidence of the person’s present fitness submitted by the certificate holder, including letters of recommendation from prosecution, law enforcement and correctional officer, etc.
(c) It shall be the responsibility of the certificate holder to the extent possible to secure and provide to the chief of police the recommendations of the prosecution, law enforcement and correctional authorities as required under this section. Any proof of a record of steady employment and support of dependents or of good conduct and payment of all outstanding court costs, supervision fees, fines and restitution that may have been ordered in the criminal case shall be provided by the certificate holder in the form required by the chief of police.
(1990 Code, sec. 3.1021)
Sec. 6.07.064 Notice of suspension or revocation; hearing
(a) Every suspension or revocation order shall be in writing, dated, and shall state the reason for such suspension or revocation. In cases of suspension, the notice shall specify the term of the suspension. Such notice shall be sent to the certificate holder immediately by certified mail or shall be immediately delivered personally to the certificate holder.
(b) A certificate holder whose certificate has been suspended or revoked may, within ten (10) days after the date of notice, submit to the chief of police a written request for a hearing to show cause as to why the certificate should not be suspended or revoked. Such written request may also contain a request for reinstatement of the certificate pending the hearing. An order of suspension or revocation shall be effective as of the date of the written notice unless a reinstatement pending hearing is granted by the chief of police.
(c) A request for hearing and reinstatement shall stay the suspension or revocation unless the chief of police issues a written denial of reinstatement stating why, in his or her opinion, a reinstatement would cause imminent peril to life or property. In such case, proceedings shall not be stayed except by a restraining order issued in accordance with applicable law and upon due cause shown.
(d) Following the show cause hearing requested by a certificate holder, the chief of police may order the certificate to be suspended or revoked, or may cancel the suspension or revocation. The decision shall be in writing, dated and sent to the certificate holder by certified mail or in person within fourteen (14) days of the hearing.
(e) A decision by the chief of police to suspend or revoke a certificate may be appealed to the city manager or his or her designee (appeal officer) by written request to such appeal officer within five (5) days of the date of a decision of the chief of police rendered in accordance with this section.
(f) The appeal officer shall set a date for hearing not later than five (5) days following receipt of the notice of appeal, and the chief of police shall then immediately transmit to the appeal officer all papers, audio and video tapes, and any other items constituting the record of the action from which the appeal is taken. After such hearing, the appeal officer shall sustain or reverse the suspension or revocation.
(g) An appeal to the appeal officer shall stay the suspension or revocation unless the chief of police issues a written denial of reinstatement stating why, in his or her opinion, a reinstatement would cause imminent peril to life or property. In such case, proceedings shall not be stayed except by a restraining order issued in accordance with applicable law and upon due cause shown.
(h) If no appeal is taken within the times and by the methods hereby provided, then an order of suspension or revocation by the chief of police shall be final and shall exhaust administrative remedies. Further appeal may be made to a district court of the county for review of the evidence presented and the decision of the appeal officer. Judicial review must be initiated by the filing of a petition with the district court within thirty (30) days after the chief of police’s decision is final and appealable.
(1990 Code, sec. 3.1022)
Sec. 6.07.065 Expiration date not affected by suspension
A suspension shall not affect the expiration date of the certificate or permit which is suspended. (1990 Code, sec. 3.1023)
Sec. 6.07.066 Eligibility for new certificate after revocation
Upon revocation of a certificate to perform police pulls within the city, the certificate holder shall be ineligible for a new certificate for a period of one (1) year. (1990 Code, sec. 3.1024)
Sec. 6.07.067 Reinstatement after suspension
After suspension of a certificate, a certificate holder may file with the chief of police a written request for reinstatement prior to the term specified in the notice sent by the chief of police. The chief of police shall inspect the operation of the suspended certificate holder to determine if the deficiency causing the suspension has been corrected by said certificate holder. After inspection, the chief of police may reinstate the certificate or deny reinstatement based upon facts ascertained in the inspection. Written notice of the decision shall be sent to the certificate holder by certified mail or personal delivery within ten (10) days of the inspection. (1990 Code, sec. 3.1025)
For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
Alcoholic beverage. Alcohol or any beverage containing more than one half of one percent of alcohol by volume, which is capable of use for beverage purposes, either alone or when diluted.
Beer. A malt beverage containing one half of one percent or more of alcohol by volume and not more than four percent of alcohol by weight, and does not include a beverage designated by label or otherwise by a name other than beer.
Child care facility. As those terms are defined by section 42.002 of the Texas Human Resources Code, a certified facility licensed, certified, or registered by the Department of Family Protected Services to provide assessment, care, training, education, custody, treatment, or supervision for a child who is not related by blood, marriage, or adoption to the owner or operator of the facility, for all or part of the 24-hour day, whether or not the facility is operated for profit or charges for the services it offers.
Day care center. A child care facility that provides for more than 12 children less than 14 years of age for less than 24 hours a day.
Dealer. As that term is used in sec. 109.33, Texas Alcoholic Beverage Code V.T.C.S., and shall include person as that term is defined herein.
Hospital. An establishment that:
(1) Offers services, facilities, and beds for use for more than 24 hours for two or more unrelated individuals requiring diagnosis, treatment, or care for illness, injury, deformity, abnormality, or pregnancy; and
(2) Regularly maintains, at a minimum, clinical laboratory services, diagnostic x-ray services, treatment facilities including surgery or obstetrical care or both, and other definitive medical or surgical treatment of similar extent.
Open container. A container that is no longer sealed.
Person. A natural person or association of natural persons, trustee, receiver, partnership, corporation, organization, or the manager, agent, servant, or employee of any of them.
Private school. A private school, including a parochial school, that:
(1) Offers a course of instruction for students in one or more grades from kindergarten through grade 12; and
(2) Has more than 100 students enrolled and attending courses at a single location.
Sec. 6.08.002 Sale of alcoholic beverages prohibited near public schools, private schools, churches, or hospitals
(a) It shall be unlawful for any dealer to sell alcoholic beverages from or at a place of business within this city within 300 feet of a church, public or private school, or public hospital.
(b) Businesses with a certificate of occupancy for a convenience store, food and beverage sales store, or restaurant are excepted from the distance requirements of this section if an application is submitted to the city on or before November 25, 2008.
(c) The measurement of the distance between the place of business where alcoholic beverages are sold and the church or public hospital shall be along the property lines of the street fronts and from front door to front door, and in direct line across intersections.
(d) The measurement of the distance between the place of business where alcoholic beverages are sold and the public or private school shall be in a direct line from the property line of the place of business, and in a direct line across intersections.
Sec. 6.08.003 Sale of alcoholic beverages prohibited near day care centers and child care facilities; exception
(a) It shall be unlawful for any holder of a wine and beer retailer’s permit, mixed beverage permit, private club registration permit, retail dealer’s on-premises license or brewpub license who does not hold a food and beverage certificate to sell alcoholic beverages from or at a place of business within this city within 300 feet of a day care center or child care facility.
(b) This section does not apply to a foster group home, foster family home, family home, agency group home, or agency home as those terms are defined by section 42.002 of the Texas Human Resources Code.
(c) The measurement of the distance between the place of business where alcoholic beverages are sold and the day care center or child care facility shall be in a direct line from the property line of the day care center or child care facility to the property line of the place of business, and in a direct line across intersections.
Sec. 6.08.004 Sale of beer prohibited in residential areas
It shall be unlawful for any person or dealer to sell beer in residential areas within this city.
Sec. 6.08.005 Consumption of alcoholic beverage and possession of an open container near public or private schools; exception
(a) A person commits an offense if the person possesses an open container or consumes an alcoholic beverage on a public street, public alley, or public sidewalk within 1,000 feet of the property line of a facility that is a public or private school, including a parochial school that provides all or any part of prekindergarten through twelfth grade.
(b) This section does not apply to the possession of an open container or the consumption at an event duly authorized by appropriate authorities and held in compliance with all other applicable provisions of this code.
Sec. 6.08.006 Local fees for license and application
(a) There is hereby levied a fee not to exceed one-half (1/2) of the state fee for each license authorized by the Texas Alcoholic Beverage Code, except a temporary or agent’s beer license, issued for premises located within the corporate limits of the city.
(b) There is hereby a $150.00 administrative processing fee for acceptance, review, and verification of all new applications.
(c) All payments shall be made to the community development department along with the submission of the application. The department shall issue a receipt for display with the state license or permit on the licensed or permitted premises.
(Ordinance 08-123 adopted 11/10/08)
State law references–Local fee authorized on alcoholic beverage permits, V.T.C.A., Alcoholic Beverage Code, sec. 11.38; local fee authorized on alcoholic beverage licenses, V.T.C.A., Alcoholic Beverage Code, sec. 61.36.
The following terms and phrases as used in this article, unless the context clearly shows otherwise, shall have meanings as follows:
Administrator. Such officers and employees of the city as may be designated by the city manager to enforce and administer the provisions of this article. The designated administrator shall promulgate rules necessary to enforce the provisions of this article.
Applicant. The person, partnership, or corporation who applies for a certificate.
Bus service. A service rendered by a vehicle designed to transport passengers, on a scheduled fare basis, with fixed schedules or routes, by which passengers are picked up and transported to one or more destinations. Such service does not include door-to-door service as herein defined.
Certificate. A permit authorizing the operation of taxicabs or special service transportation vehicles over the streets of the city pursuant to certain terms, regulations, and conditions issued pursuant to this article.
Certificate holder. Any person, firm, corporation, association, partnership or society who holds a valid and current certificate and who has the control, direction, maintenance and the benefit of the collection of revenue derived from the operation of one or more taxicabs or special service transportation vehicles on or over the streets or public ways of the city, whether as owner or otherwise.
Charter service. Any type of service in which a vehicle designed to accommodate more than eight (8) persons, along with a driver, is furnished for a specific trip or excursion, and which is contracted for orally or in writing by an individual or group so as to obtain exclusive use of the vehicle for an interval of time generally less than twenty-four (24) hours.
Door-to-door service. A service rendered by a vehicle designed to transport passengers on a scheduled fare basis, by which passengers are picked up and transported from their places of residence to their destinations and returned on a personalized “door-to-door” basis.
Driver. The person actually driving a taxicab or special service transportation vehicle, or a person who has been hired or has contracted with another to drive, whether he or she is the owner or is an agent, servant or employee of the owner.
Holder. A person or organization to whom a certificate or permit has been issued.
Limousine service. A service which offers chauffeured vehicles (other than properly identified taxicabs) with a seating capacity of no more than eight (8) passengers in addition to a driver, to engage in the commercial transportation of people for compensation and to provide such service in response to advance arrangement and reservation by persons who specify a point of pickup, a time of pickup, and a length of time for which service is to be provided for the exclusive use of such persons; such service being rendered only in response to reservation and prearrangement generally and customarily made at least one (1) hour in advance of the time that such service is to begin.
Motor vehicle. Every motor-propelled vehicle used for the transportation of persons over the public streets of the city.
Passengers for hire. Passengers who pay a fee or fare for transportation. Such term does not include guests of hotels or motels that offer transportation without charge; students of private and public schools where transportation is not offered to the general public; nor individuals engaged in vehicle pooling or who share the expense arrangements, and the number of passengers is not in excess of eight (8).
Person. Includes an individual, firm, corporation, association, partnership, joint venture or society.
Special service transportation. A service which includes tour vehicle service, charter service, limousine service, bus service and door-to-door service, as defined herein, using vehicles carrying passengers for hire.
Taxicab. Every motor vehicle used for carrying passengers for hire other than those motor vehicles used as special service transportation.
Taxicab stand. A public place alongside the curb or curbline of a street which has been designated by the administrator as reserved exclusively for the use of taxicabs in accordance with the provisions of this article and the traffic ordinances of the city.
Taximeter. A meter, instrument or device attached to a taxicab which measures mechanically or electronically the distance driven and the waiting time upon which the fare is based.
Tour vehicle service. A service which will furnish vehicles for hire to carry passengers to any established place or places of interest within the city.
(1990 Code, sec. 3.1301)
Sec. 6.09.002 Penalty
A person who violates this article is guilty of a separate offense for each day or part of day the violation is committed, continues, or permitted. Each offense, upon conviction, is punishable by a fine as provided in section 1.01.009. (1990 Code, sec. 3.1328)
Sec. 6.09.003 Other remedies
The city shall be entitled to pursue all other criminal and civil remedies to which it is entitled under any other law, and the remedies provided herein are not exclusive. (1990 Code, sec. 3.1329)
Sec. 6.09.004 Applicability of other laws
All vehicles, certificate holders, and drivers shall be subject to all other laws, civil or criminal, governing the use of vehicles within the city and state. (1990 Code, sec. 3.1326)
Sec. 6.09.005 Exempt vehicles
The following vehicles shall be exempt from this article:
(1) Vehicles that are leased or rented without drivers;
(2) Ambulances and special vehicles used exclusively in connection with funerals;
(3) Vehicles operated by the city or its agents;
(4) Vehicles licensed by another governmental entity transporting a passenger from a point outside the city to a destination inside the city, if the taxicab leaves the city without receiving a passenger inside the city;
(5) Vehicles owned and operated by the federal or state government, by any political subdivision of the state, or by a person under contract with the city for operation of a vehicle;
(6) Vehicles owned by a nonprofit organization and carrying only passengers associated with that organization, if no compensation is received from any other person for carrying the passengers;
(7) Vehicles which are used to transport elderly, disabled, mobility impaired, or persons traveling to and/or from medical facilities;
(8) Vehicles in the performance of a service involving a point of origin or destination outside the city that was authorized by a certificate of public convenience and necessity issued by the state railroad commission, or successor regulatory body.
(1990 Code, sec. 3.1303)
Sec. 6.09.006 Location for keeping vehicles
Except when carrying passengers, or going to pick up passengers, or going to a garage or other place where automotive repairs are made, all vehicles shall be kept off the streets of the city and upon premises owned by or leased to, and under the supervision and control of, the holder of the certificate; provided, that taxicabs may await dispatch calls on any nonresidential property in the city with the consent of the owner thereof, and further provided that if a person is an owner and certificate holder of a taxicab such person may keep the taxicabs at their residence. (1990 Code, sec. 3.1312)
Sec. 6.09.007 Screening of drivers
It is the duty of every certificate holder to screen its drivers. While it is the intent of the city in its permitting process to provide protection to the public generally by exercise of police power, such exercise shall not relieve a certificate holder from its duty to determine the fitness of its drivers, and no certificate holder shall rely on the city taxicab driver’s permit to excuse it from said duty. (1990 Code, sec. 3.1314)
Sec. 6.09.008 Right to payment of regular fare in advance
Every driver of a taxicab or special service transportation vehicle shall have the right to demand the payment of the regular fare before picking up a passenger and may refuse employment unless so paid; otherwise, no driver of such vehicle shall refuse or neglect to convey any orderly person upon request to any place in the city unless previously engaged or unable to do so. It shall be unlawful for any driver to request payment in advance of a fare in excess of the fare prescribed by the driver’s operating authority. (1990 Code, sec. 3.1316)
Sec. 6.09.009 Condition of vehicles
It shall be unlawful to cause, suffer or allow to be operated a taxicab or special service transportation vehicle which is not in compliance with the following minimum standards:
(1) Each taxicab or special service transportation vehicle shall conform to all state minimum safety standards.
(2) No taxicab shall be operated with visible, unrepaired damage that could impair the safe operation of the vehicle.
(3) No rips, tears, stains or threadbare portions of floors, seats, back, and armrests.
(4) Each taxicab shall be equipped with two-way radio communication equipment in proper operating condition capable of transmitting and receiving vocal communication between such taxicab and the dispatching office of the certificate holder.
(5) Each taxicab and special service transportation vehicle shall conform to the description of the insignia and color scheme proposed in the certificate holder’s application for a certificate, or as such color scheme and insignia has been amended by written request of the certificate holder approved by the administrator.
(6) (A) No vehicle shall be used as a taxicab vehicle if it is more than sixty (60) months old, except upon written approval of the administrator after a thorough inspection, and determination by the administrator that the vehicle otherwise meets the requirements of this article. Proof of the administrator’s approval must be carried in such vehicles at all times. Age shall be calculated from the first day of October, preceding the model year of the vehicle.
(B) No vehicle shall be used as a special transportation service vehicle if it is more than one hundred twenty (120) months old, except upon written approval of the administrator after a thorough inspection, and determination by the administrator that the vehicle otherwise meets the requirements of this article. Proof of the administrator’s approval must be carried in the vehicles at all times. Age shall be calculated from the first day of October, preceding the model year of the vehicle.
(1990 Code, sec. 3.1317)
Sec. 6.09.010 Driver’s use of alcoholic beverages or controlled substances
It shall be unlawful for any taxicab or special service transportation vehicle driver to consume or be under the influence of any alcoholic beverages or use any form of controlled substances or dangerous drugs while on duty as a taxicab driver. (1990 Code, sec. 3.1318)
Sec. 6.09.011 Use of most direct route by taxicab drivers
Any driver of a taxicab employed to carry passengers to a definite point shall take the most direct route possible that will carry the passengers safely and expeditiously to their destination. (1990 Code, sec. 3.1319)
Sec. 6.09.012 Delivery of lost articles
All drivers of taxicabs and special service transportation vehicles shall promptly deliver to authorized agents of their companies all property left in such vehicle by passengers. (1990 Code, sec. 3.1320)
Sec. 6.09.013 Fares for unmetered taxicabs and special service transportation
(a) Schedule of fares for unmetered taxicabs.
(1) Maximum prices. The maximum prices to be charged by all unmetered taxicab operations in the city, which prices are hereby declared to be fair and reasonable for such services, shall be by zones as follows:
(A) Zone 1: two dollars and seventy-five cents ($2.75) for the first passenger on a single call within zone 1.
(B) Zone 2: twenty-five cents ($0.25) additional for the first passenger on a single call picked up or delivered in zone 2.
(C) Zone 3: twenty-five cents ($0.25) additional for the first passenger on a single call picked up or delivered in zone 3.
(D) Fifty cents ($0.50) for each additional passenger.
(E) A waiting fee of ten dollars ($10.00) may be charged for each one-hour period or portion thereof.
(F) One dollar ($1.00) surcharge for out-of-town trips added to base rate, plus twenty-five cents ($0.25) per one-fourth (1/4) mile or portion thereof.
(2) Zones defined.
(A) Zone 1. That area within the city bounded on the east by Seventh Street and the Sabine River; on the north by Sockwell Boulevard, north to the intersection of Walnut Street, then west on Salem Street to the intersection of Main Street in Peniel; on the west by a line extending south from Salem and Main Streets in Peniel, south along Harrison and Utilis Streets to Lee, then west on Lee to Carver Drive, then south on Carver to point that this line will intersect Loop 315; and on the south by Loop 315 and Interstate 30.
(B) Zone 2. All of the area outside of zone 1 and bound by an outer limit on the east by Lamar Boulevard; on the south by a line extending from the southernmost end of Lamar Street west to the intersection of Mink and Deer Drive, extending southerly along Deer Drive and Highway 1570 to a point intersecting with the line of Terrell Road to the west city limits; on the west by west city limits to Creek Crossing, north on Creek Crossing to Loop 315 and north along Loop 315 to the north city limits; bound on the north by the north city limit boundary.
(C) Zone 3. All areas within the corporate limits of the city, but outside the outer defined limits of zone 2.
(b) Ordinary luggage not to affect fare. The rates set out above shall be the maximum charge made or collected, and there shall be no additional charge made for ordinary luggage, bags or parcels being carried by such passengers. It shall be unlawful for any driver of a taxicab to demand or receive a fee or charge for taxicab services in excess of the rate specified in subsection (a) of this section. However, nothing herein contained shall be construed as requiring a taxicab to carry trunks, very large packages, parcels, articles or objects likely to injure or damage the taxicab.
(c) Posting of rates in taxicab. Every taxicab certificate holder shall post in each taxicab operated by him or her, in a conspicuous place in view of the passengers to be conveyed, a schedule of fares to be charged for such service. Such schedule shall be printed on a card in not less than twenty-four-point black-face type, letter spaced and giving the rates and distances for which such rates apply.
(d) Special service transportation prices. The prices to be charged by all special transportation service certificate holders in the city shall be fair and reasonable for such services and shall be negotiated by the client and certificate holder.
(1990 Code, sec. 3.1321)
Sec. 6.09.014 Markings for vehicles
(a) Each and every taxicab operated by a certificate holder upon the streets in the city shall be equipped with a top-mounted lighted sign, visible to the front and rear of the vehicle, identifying the vehicle as a taxicab and have an identification number displayed upon each side of the vehicle at least three inches (3") high and of a contrasting color from the color of the vehicle. At any time a second or subsequent application is received for an additional taxicab operation, the city may require that each and every taxicab certificate holder upon the streets in the city shall have painted upon its rear end and both sides in letters and numbers more than six inches (6") in height and three inches (3") in width the trade name of the organization under whose certificate such taxicab is being operated and the number assigned to such taxicab by direction of the administrator. Such letters and numbers shall be painted on each taxicab with permanent, nonwashable paint of a color contrasting to the color of the taxicab so that the same will be readily apparent. Such letters and numbers shall not, at any time, be covered with any substance, material or other object that would prevent the same being seen or in any way obscure their visibility. Each person operating taxicabs in the city shall cause same to be painted in such manner as to properly distinguish them from private vehicles, and such color combinations as are used shall be filed with the administrator, and no two (2) taxicab certificate holders shall be permitted to use the same or similar color combinations. It shall be a provision, however, where an illuminated sign displaying the trade name is affixed to the top of a taxicab and is visible from the rear of the taxicab, it shall be unnecessary to paint the trade name of the organization under whose certificate such taxicab is being operated on the rear end of such taxicab.
(b) No special markings, letters, numbers, or color scheme will be necessary for vehicles authorized under this article to be limousines.
(1990 Code, sec. 3.1322)
Sec. 6.09.015 Taximeter
The city may require all taxicabs operated under the authority of this article be equipped with a taximeter fastened in front of the passengers, visible to them at all times, day and night; and after sundown the face of the taximeter shall be illuminated. Said taximeter shall be operated mechanically or electronically by a mechanism of standard design and construction, driven either from the transmission or from one (1) of the front wheels by a flexible and permanently attached driving mechanism. They shall be sealed at all points and connections which, if manipulated, would affect their correct reading and recording. Each taximeter shall have thereon a flag to denote when the vehicle is employed and when it is not employed, and it shall be the duty of the driver to throw the flag of such taximeter into a nonrecording position at the termination of each trip. The said taximeter shall be subject to inspection from time to time by the city police department or administrator. Any officer of said department, or the administrator, is hereby authorized, either on complaint of any person or without such complaint, to inspect any meter and, upon discovery of any inaccuracy therein, to notify the person operating said taxicab to cease operation. Thereupon said taxicab shall be kept off the streets until the taximeter is repaired and in the required working condition. (1990 Code, sec. 3.1323)
Sec. 6.09.016 General regulations for special service transportation vehicles
(a) Solicitation of passengers. It shall be unlawful for any driver of such special service transportation vehicles to solicit patronage for such vehicles by word or signal. The placing of a sign or booth where persons can seek information is permitted if it does not violate any other ordinance of the city or any state law and does not interfere with other motor vehicle and pedestrian traffic.
(b) Markings. Each special service transportation vehicle, other than limousine service, shall have signs placed on both sides of the vehicle while in service, unless otherwise requested by the passengers, which show the trade name of the organization. The signs shall have letters of sufficient size and with a color contrasting to that of the vehicle so that the signs are readily apparent. The signs can be painted onto the vehicle or removable magnetic signs can be used to comply with this requirement.
(c) Applicability. All references to special service transportation vehicles in this article apply to the operation of a limousine service, unless otherwise noted.
(1990 Code, sec. 3.1324)
Sec. 6.09.017 Transportation for unlawful purposes
No certificate holder or driver shall knowingly, without duress, provide transportation for any person in furtherance of the commission of a criminal offense by such person. (1990 Code, sec. 3.1325)
Secs. 6.09.018–6.09.050 Reserved
Division 2. Certificate
Sec. 6.09.051 Required
No person shall operate any taxicab service or special service transportation vehicle service (which vehicles and services are not within the exclusive jurisdiction of the National Surface Transportation Board) within the city without first having obtained from the city a certificate pursuant to this article, except vehicles named in section 6.09.005 which pertains to exempt vehicles. Every certificate issued hereunder shall be signed by the city manager, attested by the city secretary and contain the name and address of the applicant and the terms and conditions of the certificate. Each certificate shall provide for the signing thereof by the applicant. (1990 Code, sec. 3.1302)
Sec. 6.09.052 Application
Application for an original or renewal of a certificate for the operation of taxicabs and special service transportation vehicles shall be in writing, signed and sworn to by the applicant, and shall be filed with the administrator. The application shall be on a form provided by the administrator and shall contain at least the following:
(1) The name, date of birth, and address of the applicant; if a partnership, the name, date of birth, and address of each partner; if a corporation, its name, date and place of incorporation, the address of its principal place of business, the names and addresses of all officers and directors, and a certified copy of its permit to do business in the state; the trade name under which the applicant does or proposes to do business;
(2) The address of each place of business from which the applicant proposes to operate;
(3) The information required by the motor vehicle registration provisions herein;
(4) Whether or not the applicant or any partner or any officer or director in the organization of the applicant has been finally convicted of any felony or a misdemeanor;
(5) Whether or not the applicant or any partner or any officer or director in the organization of the applicant has any suit filed against him or her or judgment based on an unpaid debt or negligent operation of a motor vehicle;
(6) The nature and character of the service that the applicant proposes to render, the facts showing the demand for such service, the experience that the applicant has had in rendering such service, and the period of time that he or she has rendered such service;
(7) The proposed places of loading or unloading passengers; routes and schedules to be followed; fares, rates and charges; operating procedures; and term of certificate;
(8) A list of all drivers who will operate by authority of applicant’s certificate, to be updated as new drivers are added, and a certification signed by applicant that, after making a careful investigation, he believes that the driver has a current state driver’s license, is physically fit to chauffeur passengers, is able to communicate in the English language as business necessity requires, is not addicted to drugs or intoxicating liquors so as to render him or her unfit to perform the duties of a driver, and is a person of good moral character;
(9) A description of the proposed insignia and color scheme for the taxicabs and description of any distinctive item of apparel to be worn by the service’s drivers;
(10) A letter from a duly authorized agent of applicant’s insurance carrier, stating that the insurance required hereunder is available to applicant and that such coverage is or will be provided prior to the issuance by the administrator of the certificate to operate hereunder;
(11) Certification from the county tax assessor/collector that the applicant has no delinquent taxes due to the city at the time of the application;
(12) Certification from the finance department that the applicant has no delinquent monies due to the city at the time of the application.
(1990 Code, sec. 3.1306)
Sec. 6.09.053 Filing fee
Such application for a certificate to operate a taxicab or special transportation service shall be verified under oath and shall be filed in triplicate and accompanied by a nonrefundable filing fee as provided in section A6.09.053 of the fee schedule in appendix A to this code to cover administrative costs. (1990 Code, sec. 3.1307)
Sec. 6.09.054 Permit fee
The certificate holder shall pay to the administrator an annual permit fee as provided in section A6.09.054 of the fee schedule in appendix A to this code (without proration or reduction for use of a vehicle for less than a full year). The permit fee shall be due on October 1 of each year that a certificate is in effect. (1990 Code, sec. 3.1311)
Sec. 6.09.055 Liability insurance required
Each certificate holder shall purchase and keep in full force and effect public liability insurance in the amounts of at least $500,000.00 combined single limits, to secure payment of all lawful and proper claims arising out of the operation of the taxicab or special service transportation vehicle authorized hereunder. A written statement from an authorized agent of the certificate holder’s insurance carrier verifying the issuance of such insurance shall be filed with the administrator before any certificate may be issued. All such verifications of insurance shall provide for a thirty-day cancellation notice to the administrator. (1990 Code, sec. 3.1313)
Sec. 6.09.056 Motor vehicle registration
(a) The certificate holder shall furnish the administrator, at the time of the original application or as new vehicles are purchased or rented, the following information on such motor vehicles: number of vehicles in operation at the time of the application or acquisition of any new motor vehicles, model, size, year, make, design, color scheme, motor identification number, the state license registration number of each vehicle and passenger capacity. The certificate holder shall further furnish the administrator with a statement that the motor vehicle is licensed and inspected in accordance with state law, that it is in a safe mechanical condition and that it has the color scheme and that it is identified and marked as represented in the certificate holder’s application for the certificate.
(b) Each taxicab or special service transportation vehicle registered in accordance with section 6.09.014(a) shall have affixed to it a city taxicab or special service transportation vehicle decal issued by the administrator and affixed upon the vehicle in a location designated by the administrator. The administrator shall devise a system for issuing a new city taxicab or special service transportation vehicle decal to each registered vehicle annually. It shall be unlawful to operate a taxicab or special service transportation vehicle upon the streets of the city without such decal. Such decals shall not be transferred from one (1) vehicle to another without the administrator’s approval.
(1990 Code, sec. 3.1315)
Sec. 6.09.057 Investigation of applicants
Upon receipt by the administrator of an application for a certificate to operate hereunder, the administrator shall make or cause to be made an investigation of the character and reputation of the applicant and his or her ability to perform the services of a certificate holder; the financial responsibility of the applicant to respond in damages and/or to pay claims for personal injury, death and property damage claims arising from his or her operation; and such investigation of other pertinent facts which the administrator shall deem relevant in determining the fitness of the applicant to become a certificate holder hereunder. (1990 Code, sec. 3.1308)
Sec. 6.09.058 Issuance; terms and conditions
In the event the administrator finds that the applicant meets the required qualifications to give proper and adequate service to the best interest of the inhabitants of the city, the administrator shall grant a certificate to such applicant, subject to certain terms and conditions. Such terms may include but are not limited to:
(1) Provisions appropriate to the service to be rendered under the certificate;
(2) Number of vehicles authorized;
(3) Description of vehicles to be operated, including their color scheme;
(4) Number of passengers that may be carried in each vehicle;
(5) Places of loading or unloading passengers;
(6) Route and schedules to be followed;
(7) Fares, rates and charges;
(8) Operating procedures; and
(9) Term of certificate.
(1990 Code, sec. 3.1310)
Sec. 6.09.059 Transferability
No certificate shall be transferred without the consent of the administrator. A purported transfer without such consent shall cause an immediate suspension of such certificate. The term “transfer” shall include a transfer of a majority interest in the company to which a certificate has been issued; or a change adding or deleting a person or persons occupying positions classified in the application for certificate as owner or applicant, or as a partner in a partnership applicant, or as a stockholder holding fifty-one percent (51%) of the shares of stock in a corporation application. (1990 Code, sec. 3.1304)
Sec. 6.09.060 Duration
A certificate shall be in effect for not more than five (5) years from the date such permit or certificate was issued by the administrator. (1990 Code, sec. 3.1305)
Motor vehicle escort guide. A person engaged in the business of furnishing a private motor vehicle escort for hire who personally escorts or guides a funeral cortege or overwidth, overlength, or overheight motor vehicle or an employee of a person engaged in the business of furnishing private motor vehicle escort service for hire.
Official police officer’s badge. A badge of the size, type and design approved for the use of regular police officers.
Private motor vehicle escort agency. A person, firm or corporation engaged in the business of furnishing private motor vehicle escorts for hire, which employs one or more persons as employees, assistants, clerks or motor vehicle escort guides.
(1990 Code, sec. 3.1401)
Sec. 6.10.002 Inapplicability
(a) This article shall not apply to regularly employed officers or deputies of the department of public safety, county sheriff, or police department while engaged in escort services when assigned as an official duty by their respective departments.
(b) This article shall not apply to escort activities for a funeral cortege provided by a licensed funeral home responsible for the funeral service.
(1990 Code, sec. 3.1426)
Sec. 6.10.003 Functions, powers and duties of police department
The police department shall have the following functions, powers and duties:
(1) To investigate qualifications of all applicants.
(2) To investigate and aid in the prosecution of all violations of this article.
(3) To inspect and approve or disapprove motor vehicle equipment used as escort vehicles.
(4) To inspect and approve or disapprove the equipment and uniform worn by escort officers.
(1990 Code, sec. 3.1412)
Sec. 6.10.004 Employment of qualified operators
The owner of a private motor vehicle escort agency shall employ as escort guides only those persons who are physically and mentally capable to operate a motorcycle for hire and who are 18 years of age or over. It shall be the responsibility of the private motor vehicle escort agency to select competent operators for escort vehicles. An owner of an escort agency shall not employ any person as a motor vehicle escort guide who does not hold a valid state driver’s license with motorcycle endorsement and an escort chauffeur’s license. (1990 Code, sec. 3.1419)
Sec. 6.10.005 Authority of law enforcement officers to escort
Nothing contained in this article shall be construed to prohibit regularly employed officers or deputies of the department of public safety, county sheriff’s or police department from escorting funeral corteges or oversized, overlength, or overwidth vehicles upon the streets and roadways of the city, when assigned as an official duty by their respective department. (1990 Code, sec. 3.1420)
Sec. 6.10.006 Escorts for funeral cortege not required
Nothing continued in this article shall be construed as requiring funeral directors or any other person conducting funerals to contract, hire, or employ a private motor vehicle escort service to guide or escort a funeral cortege in the city. (1990 Code, sec. 3.1421)
Sec. 6.10.007 Requirements for motor vehicles used in escort service
A funeral escort guide, engaged in furnishing an escort, must use either a two-wheel or three- wheel motorcycle or automobile which is in good mechanical condition and equipped with two lamps that display an amber or a blue light visible from directly in front of the center of the motorcycle. These lamps shall be in addition to those required by state law. An escort vehicle shall not be equipped with a siren. Decals, placards, signs, and insignias which resemble official police officer’s badges or which bear the words “police,” “official,” or “officer” shall not be used on the escort vehicles nor shall the vehicles be painted a color resembling the color of vehicle used by the city police department. No additional equipment may be added after inspection by the police department unless the vehicle is reinspected and approved before use. A motor vehicle used in performing escort services shall be subject to inspection at any time by the chief of police or authorized representative. (1990 Code, sec. 3.1422)
Sec. 6.10.008 Funeral escort guide’s uniform and equipment requirements
A funeral escort guide shall wear a uniform approved by the chief of police. The uniform shall not resemble in pattern, design, or color that worn by the regular police officers of the city. Funeral escort guides may wear a badge and cap wreath if they desire; provided, that the badge or wreath does not resemble the official police officer’s badge or bear the word “police” or “officer.” Noncommissioned officers’ stripes or commissioned officers’ bars or insignia denoting a rank shall not be worn on the uniform. Funeral escort guides shall not wear a holster, handcuff case or cartridge case. A whistle or flashlight baton may be used at the discretion of the escort guide. An escort guide shall not have on his or her person or on or about his or her escort vehicle any weapon declared to be unlawful by the statutes of the state; provided, however, that peace officers of the city, county, and the state who may be licensed as escort guides may carry authorized weapons concealed on or about their persons or escort vehicles while engaged as motor vehicle escort guides. A person licensed by the state to carry a concealed handgun may carry a concealed handgun pursuant to such authority. (1990 Code, sec. 3.1423)
Sec. 6.10.009 Operating procedures
(a) A motor vehicle escort guide shall not engage in a funeral escort service other than that of escorting a funeral procession, consisting of the hearse and cortege from the funeral home, the home of the deceased, or the home of the deceased’s family to the place of service and from the place of service to the place of interment. If a funeral procession enters a roadway, expressway, or freeway which has a minimum posted speed limit, the motor vehicle escort guide shall cease the escort before the procession enters the roadway, expressway or freeway and resume the escort after the procession exits the roadway, expressway, or freeway.
(b) A motor vehicle escort guide may escort overheight, overlength, or overwidth vehicles or loads as defined in the state Transportation Code, but only after the chief of police has been notified of each individual escort. The chief of police shall have the authority to designate the route and time of the escort.
(c) A licensed motor vehicle escort guide is authorized to lead funeral processions within the city when the procession has been properly identified by the display of a pennant upon the outside of the lead vehicle and the hearse, and all other vehicles have their headlights turned on.
(d) All motor vehicles in an escorted funeral procession which have been properly designated shall have the right-of-way over all other vehicles, except fire apparatus, ambulances, and police vehicles, at any roadway intersection within the city, and the procession may be escorted through stop signs or signalized intersections without stopping, but the drivers of the motor vehicles shall exercise due regard for the safety of all approaching vehicles, and funeral processions being escorted shall be subject at all times to the control of police officers of the city. This subsection shall not apply to overheight, overlength, or overwidth vehicles or loads as defined in the Texas Transportation Code, which shall obey all traffic laws and traffic-control devices.
(e) Funeral processions shall travel as closely to the right edge of the roadway as practical and at a safe and prudent speed.
(f) Funeral escort guides shall not stop traffic approaching from the opposite direction or force or direct traffic to move off the roadway; however, oncoming traffic may be stopped at intersections and other places to assist the cortege in making left turns.
(1990 Code, sec. 3.1424)
Sec. 6.10.010 Advertisement limitations
A person engaged in the business of furnishing private motor vehicle escorts for hire or an employee of a private motor vehicle escort agency shall not distribute, present, or give away a card, handbill, or printed matter of any kind which bears the word “police,” “official,” or “officer” in conjunction with advertising an escort service; nor shall any advertisement state, imply or misrepresent that a private motor vehicle escort service is required by the police department, the city or by any of its ordinances. (1990 Code, sec. 3.1425)
A person commits an offense if he engages in the business of furnishing a private motor vehicle escort for hire within the city, without first obtaining an escort license; provided, that persons engaged in the business who are employed by a duly licensed private motor vehicle escort agency shall not be required to be individually licensed. (1990 Code, sec. 3.1402)
Sec. 6.10.042 Minimum age of person obtaining license
A person must be 18 years of age to be eligible for an escort license to engage in the business of furnishing private motor vehicle escorts. A person licensed to engage in the business of furnishing motor vehicle escort service for hire shall not employ as an escort guide a person under 18 years of age. (1990 Code, sec. 3.1403)
Sec. 6.10.043 Application
A person desiring to conduct a private motor vehicle escort agency or business in the city shall file with the chief of police a written application on a form provided for the purpose, duly signed and verified, which shall state the full name, age, and residence of the licensee; shall specify the trade name and address and location from which the business or agency will operate and for which the escort license is desired; and other relevant facts as may be required by the chief of police. (1990 Code, sec. 3.1404)
Sec. 6.10.044 Insurance
(a) Before an escort license is issued to the owner or operator of a private motor vehicle escort agency, or before the renewal of an escort license is granted, the applicant shall file with the chief of police a standard policy of public liability and property damage insurance to be executed by an insurance company authorized to do business in the state and performable in the county, and having a Best rating of B or better, insuring the general public against loss or damage that may result to any person or property from the operation of the motor vehicle escort service.
(b) The insurance policy shall insure each vehicle operated by the motor vehicle escort agency and shall have limits of not less than $1,000,000.00 combined single limits. The insurance shall be for the protection of passengers riding in a funeral cortege being escorted and for protection of the public, but not for personal injuries sustained by the servants, agents or employees of the motor vehicle escort agency. The policy of insurance shall be for a period of one year, and the date of the policy shall coincide with the date of the license issued under this division and shall contain a provision for a continuing liability up to the full amount, notwithstanding any recovery thereon.
(c) If the chief of police determines, after a hearing, that a licensee’s policy of insurance provides less protection to the public than when originally filed, he shall require a new or an additional policy to bring the protection of the insurance to its original amount, and the licensee shall, within 10 days after receiving written notice of this requirement, provide the required new or additional policy. The license of a licensee shall be revoked by the chief of police upon the licensee’s failure to provide the required policy.
(d) If an insurer desires to be released from a policy required by this section, he may give written notice to the chief of police by filing the notice at least 30 days before liability is to be released, and the chief of police shall authorize, by personal delivery or by mail, written notice to the licensee with the demand that the licensee shall furnish new insurance by the expiration of a 10-day period.
(e) If a policy is canceled upon the request of the insurer and no new policy is filed by the licensee before the cancellation of the original insurance, then the license to operate a motor vehicle escort service issued to the licensee shall be revoked.
(1990 Code, sec. 3.1408)
Sec. 6.10.045 Investigation; issuance
The chief of police shall make or cause to be made an investigation to determine the qualifications of each applicant for an escort license, and based upon those findings the chief of police shall approve or disapprove issuance of an escort license to engage in the business of conducting private motor vehicle escorts. Upon the approval of issuance of an escort license and upon the payment of the proper license fee, the chief of police shall issue the proper license certificate. (1990 Code, sec. 3.1405)
Sec. 6.10.046 Term
An escort license is valid for a term of one year unless revoked. (1990 Code, sec. 3.1409)
Sec. 6.10.047 Fee; transferability
The initial fee for an escort license, as set forth in section A6.10.047 of the fee schedule in appendix A to this code, is to be paid before the license is issued. Each annual renewal license fee is as set forth in section A6.10.047 of the fee schedule in appendix A to this code. An escort license is not transferable or assignable. No proration or refund of fees will be made. (1990 Code, sec. 3.1410)
Sec. 6.10.048 Posting
Immediately upon the receipt of an escort license issued by the city, the licensee named shall post the license and at all times display the license in a conspicuous place in the office or location given as the business address in the application. A licensee shall not post the license or permit the license to be posted upon premises other than those described in the application. A person commits an offense if he alters, defaces or destroys a valid escort license. (1990 Code, sec. 3.1411)
Sec. 6.10.049 Refusal to issue or renew
The chief of police shall refuse to approve issuance or renewal of an escort license for any one or more of the following reasons:
(1) Conviction of the applicant or licensee of a violation of this article or of a felony within the preceding five years;
(2) The making of a false statement as to a material matter in an application for an escort license or renewal;
(3) Revocation of a license, pursuant to this article, of the applicant or any proprietor, partner or corporate officer thereof, within one year preceding application;
(4) Failure of the applicant to comply with the insurance requirements of this division.
(1990 Code, sec. 3.1406)
Sec. 6.10.050 Revocation
(a) An escort license shall be revoked by the chief of police for any one or more of the following reasons:
(1) The making of a false statement as to a material matter in an application for a license, renewal, or a hearing concerning the license;
(2) Conviction of the licensee of a violation of this article or of a felony;
(3) Failure of the licensee to comply with the insurance requirements of this division.
(b) Written notice of revocation shall be sent by the chief of police to the licensee at the address shown in the application, by certified mail, return receipt requested, setting forth the reasons for the revocation.
A person commits an offense if he operates a motor vehicle as an escort for hire upon the streets of the city without obtaining an escort chauffeur’s license issued by the chief of police. Application for an escort chauffeur’s license shall be made to the chief of police upon blanks to be furnished by the chief of police, giving the name, age, present address, place and address of employment during the past two years, with the reasons for leaving employment, if any. The applicant shall submit a recent photograph of the applicant with the application and shall possess and show a valid state driver’s license with motorcycle endorsement. (1990 Code, sec. 3.1413)
Sec. 6.10.082 Issuance; denial
(a) When an application for an escort chauffeur’s license or renewal has been filed with the chief of police in proper form, the chief of police shall, within a period of 30 days from the date of filing, approve or deny the application. If the application is denied, the chief of police shall send to the applicant by certified mail, return receipt requested, a written statement setting forth the reasons for denial.
(b) The chief of police shall refuse to approve issuance or renewal of an escort chauffeur’s license by any one or more of the following reasons:
(1) The making of a false statement as to a material matter in an application for a license, license renewal, or in a hearing concerning the license;
(2) Conviction of the applicant or licensee of a violation of a provision of this article or of a felony or an offense involving theft, fraud, or unlawfully carrying a weapon within the preceding five years;
(3) Revocation of an escort chauffeur’s license of the applicant within five years preceding application;
(4) Conviction of the licensee or applicant of four moving traffic violations within a 12-month period or of driving while intoxicated within the preceding five years;
(5) Failure of the applicant to present a valid state driver’s license with motorcycle endorsement.
(1990 Code, sec. 3.1414)
Sec. 6.10.083 Issuance; expiration; transferability
After the application for an escort chauffeur’s license has been approved, and the applicant has submitted to fingerprinting by the police department, the chief of police shall issue an escort chauffeur’s license to the applicant upon payment of a fee as provided in section A6.10.083 of the fee schedule in appendix A to this code. An escort chauffeur’s license shall expire one year from the date of issuance and shall not be transferable; however, the holder may use the same license if the holder changes employment from one motor vehicle escort agency to another. (1990 Code, sec. 3.1417)
Sec. 6.10.084 Carrying on person; display
A person engaged in furnishing private motor vehicle escort service for hire shall carry the escort chauffeur’s license on his or her person and shall show it to any city police officer upon demand. (1990 Code, sec. 3.1418)
Sec. 6.10.085 Revocation
(a) The chief of police shall revoke an escort chauffeur’s license for one or more of the following reasons:
(1) The making of a false statement as to a material matter in an application for a license, license renewal, or in a hearing concerning the license;
(2) Conviction of the licensee for a violation of a provision of this article or for a felony or an offense involving theft, fraud, deception, dishonesty, or unlawfully carrying a weapon;
(3) Conviction, during the term, of the licensee of four moving traffic violations, or of driving while intoxicated;
(4) Failure of the licensee to maintain a valid state driver’s license with motorcycle endorsement.
(b) Written notice of revocation shall be sent by the chief of police to the licensee by certified mail, return receipt requested, setting forth the reasons for the revocation.
(1990 Code, sec. 3.1415)
Sec. 6.10.086 Appeal from denial or revocation
If the chief of police refuses to issue a license to an applicant or revokes the license of a licensee, the action of the chief of police shall be final unless the licensee files an appeal with the city manager in accordance with section 20.12.037 of this code. (1990 Code, sec. 3.1416)
ARTICLE 6.11 PAINTING OF SIGNS, ADVERTISEMENTS AND HOUSE NUMBERS
Sec. 6.11.001 Restricted
It shall be unlawful for any person to post or paint signs, advertisements, or other matter on posts, sidewalks, curbs, walkways or other structures in the streets, alleys, or other public places in the city except as hereinafter provided. (1990 Code, sec. 11.1301)
Sec. 6.11.002 Painting of house numbers
The owner of any premises is hereby authorized to paint or authorize the painting, upon the top side or street side of the curb or on the sides of the driveway abutting the premises, of the proper number designated by the enforcement official for such premises. The numbering must be black in color on a white background or white in color on a green or black background. The number must not exceed four inches (4") in height; the background must not exceed six inches (6") in height and twenty inches (20") in length; and the paint used for such purpose must be of a durable quality paint designed for application to concrete surfaces. No more than three (3) street address numbers shall be placed or affixed on the curbs or walkways abutting any such premises. In the event there is an existing street address number placed or affixed upon such curb or the sides of the driveway abutting the premises, the same shall be completely covered and obliterated by the affixing or placing of any such new number. (1990 Code, sec. 11.1302; Ordinance adopting Code)
ARTICLE 6.12 WELL DRILLING
Sec. 6.12.001 Prohibited generally
It shall be unlawful for any person to drill a water well or any type of well for the purposes of extracting oil, gas or any other mineral from any land within the city. (1990 Code, sec. 11.1500(a))
Sec. 6.12.002 Permit to drill in extraordinary and emergency circumstances
(a) In a case of extraordinary circumstances representing an emergency or making it necessary for such a well to be drilled, and prior to the commencement of drilling, a person may make application to the city for a drilling permit. The city council shall hold a hearing on such application and may, after hearing and upon appropriate findings, authorize the issuance of such a permit. Upon application and hearing, the applicant shall be required to show that:
(1) There exists an urgent necessity for the drilling of such well;
(2) It is impracticable or impossible to obtain the necessary water and oil, gas or other minerals from other sources and the reasons that the same is impracticable or impossible;
(3) The applicant will establish and institute such safety standards as shall be desirable and necessary to prevent injury to the health, safety and well-being of the residents, citizens and inhabitants of the city, and the specific safety standards which the applicant proposes;
(4) The proposed well will not constitute a breach or violation of the terms and provisions of any subdivision restrictions or restrictive land covenants that may be in force and effect;
(5) The proposed well will not represent a potential hazard to residential subdivisions or properties in residential use, either adjoining or abutting the proposed drilling site, either through the emission of noxious odors, unusual sounds or the erection of large and unsightly derricks or drilling devices.
(b) At the time of hearing, the city council may inquire into such other circumstances and conditions which it may find to exist which either justify the issuance of a permit hereunder or which necessitate the denial of such a permit upon a determination of the likely impact of such drilling on the health, safety and well-being of the residents, citizens and inhabitants of the city.
(1990 Code, sec. 11.1500(b))
Cross reference–Licenses and permits generally, art. 6.02.
Sec. 6.12.003 Drilling for city services purposes
Nothing herein shall prevent the drilling of necessary wells by the city or by contractors authorized by the city to do such drilling for the purposes of providing necessary city services, or by any lawfully created and existing municipal utility district or other body politic which may be created from time to time and be charged with the function of providing city services or services customarily provided by a city. (1990 Code, sec. 11.1500(c))
Any and all pawn shops and pawnbrokers doing business within the city shall, beginning on the effective date of this division (Ordinance adopted March 14, 2006), register with l.e.a.d.s. online at www.leadsonline.com, and shall upload on at least a daily basis, all information relating to personal property purchased, received or otherwise acquired by such pawn shop or pawnbroker to the database maintained by l.e.a.d.s. online. (Ordinance 06-029, sec. 1, adopted 3/14/06)
Sec. 6.13.032 Expenses
(a) There shall be no direct cost to the pawn shop or pawn broker associated with registration with l.e.a.d.s. online or with the uploading of the information required by this division, other than the cost of computers and internet service. (Ordinance 06-029, sec. 2, adopted 3/14/06)
(b) All costs charged for the use of the 1.e.a.d.s. online service shall be borne by the police department of the city from its current budget. (Ordinance 06-029, sec. 3, adopted 3/14/06)
Sec. 6.13.033 Penalty
The failure of any pawn shop or pawnbroker to strictly comply with the provisions of this division shall be deemed a misdemeanor, and shall be punishable by a fine in accordance with section 1.01.009 of this code, per violation. A separate offense shall be deemed committed upon each day during or on which a violation occurs or continues. (Ordinance 06-029, sec. 4, adopted 3/14/06)
ARTICLE 6.14 METAL RECYCLING ENTITIES
Sec. 6.14.001 Definitions
As used in this article, the following terms shall have the respective meanings ascribed to them:
Metal recycling entity. Any person or business who shall engage in the business of purchase, sale, barter, trade, consignment or exchange for secondhand goods, wares or merchandise, whether in a fixed and established location of business or otherwise or performs the manufacturing process by which scrap, used, or obsolete ferrous or nonferrous metal is converted into raw material products consisting of prepared grades and having an existing or potential economic value.
Regulated material. Aluminum, brass, bronze, copper, iron, lead, tin, zinc or other semiprecious metal material, including, but not limited to: manhole covers; guardrails; metal cylinders designed to contain compressed air, oxygen, gases, or liquids; beer kegs; historical markers or cemetery vases, receptacles, or memorials; street signs; drain gates; safes; communication, transmission, and service wire or cable; dismantled or used heating or air-conditioning units, including condensing or evaporator coils; dismantled or used plumbing fixtures, appliances or parts; dismantled or used water heaters, fixtures, fittings, pipes or parts; utility structures, including fixtures and hardware; containers designed to hold propane for fueling forklifts; and metal railroad equipment, including tie plates, signal houses, control boxes, signs, signals, traffic devices, traffic-control devices, traffic-control signals, switch plates, e-clips, and rail tie functions. Regulated material does not include metal beverage containers.
Sec. 6.14.002 Notice to sellers
(a) A metal recycling entity shall at all times maintain in a prominent place in the entity’s place of business, in open view to a seller of regulated material, a notice in two-inch lettering that:
(1) Includes the following language:
A person attempting to sell any regulated material must present sufficient identification and written proof of ownership required by state law.
Warning: State law provides a criminal penalty for a person who intentionally provides a false document of identification or other false information to a metal recycling entity while attempting to sell any regulated material; and
(2) States the metal recycling entity’s usual business hours and hours for purchasing regulated material, if different.
(b) The notice required by this section may be contained on a sign that contains another notice if the metal recycling entity is required to display another notice under applicable law.
Sec. 6.14.003 Record of transactions
(a) Each metal recycling entity in this city shall keep an accurate electronic record or an accurate and legible written record of each purchase made in the course of the entity’s business from an individual of any regulated material.
(b) The record must be in English and include:
(1) The place, date, and time of the purchase;
(2) The name and address of each individual from whom the regulated material is purchased or obtained;
(3) The identifying number and a photo copy of the seller’s personal identification document;
(4) A photograph of the regulated material;
(5) The make, model, and license plate number of the motor vehicle used to transport the regulated material or a photograph of the vehicle of the seller in which the make, model, and license plate number of the motor vehicle are identifiable;
(6) A detailed receipt or affidavit of ownership evidencing that the person is the legal owner or is lawfully entitled to sell the regulated material;
(7) A photograph of the seller’s entire face; and
(8) A right thumb print of the seller.
(c) A metal recycling entity shall preserve this record until the third anniversary of the date the record was made.
(d) On request, a metal recycling entity shall permit any police officer, or any designee of the chief of police, including, but not limited to city code enforcement officers or citizens on patrol, to inspect, during the entity’s usual business hours:
(1) A record required by this section; or
(2) Regulated material in the entity’s possession.
(e) The inspecting officer shall provide the entity with proof of authority to inspect records or regulated material under this Section.
Sec. 6.14.004 Hours for purchasing material
A metal recycling entity may only purchase regulated material from the general public Monday–Saturday between 9:00 a.m. and 3:00 p.m.
Sec. 6.14.005 Transporting regulated material
(a) Any person transporting secondhand metal is required to possess a receipt from where the metal originated. The receipt must include the name, address and phone number of the person from whom the metal was acquired. Failure to possess a receipt by any person, who transports, possesses or accepts secondhand metal is a violation of this article.
(b) A peace officer who finds a person in violation of this article may seize secondhand metal which will be held for a period not to exceed 30 days during which time a person from whom the metal is seized may provide proof of ownership through an affidavit of ownership. A person providing an affidavit of ownership must provide sufficient evidence in said affidavit of ownership. A law enforcement officer who believes an affidavit of ownership fails to prove ownership may request a hearing before the city court where a magistrate shall rule on said affidavit. If a person from who secondhand metal is seized fails to provide an affidavit of ownership within 30 days said metal will be considered forfeited.
(c) Secondhand metal seized under this article and not claimed within 30 days shall be sold by the police department and said funds placed into the police department seizure fund for use by the police department. The police department shall notify any person or business that may have a right to claim ownership of seized secondhand metal and assist with a hearing before the city court to determine rightful ownership.
Sec. 6.14.006 Acceptance of air-conditioning unit parts
It shall be unlawful for any metal recycling entity, his agents or employees to purchase or receive any central air-conditioning unit parts from any person offering such property for sale unless the person presents a valid city-issued HVAC permit, state-issued professional license, or a permit issued by the city to a homeowner for the installation, alteration, or repair of an air-conditioning system at a particular address. This provision shall not apply to window air-conditioning units.
Sec. 6.14.007 Exceptions
This article does not apply to:
(1) A purchase or transport of regulated material from a public utility or a manufacturing, industrial, commercial, retail, or other seller that sells regulated material in the ordinary course of the seller’s business; or
(2) A purchase or transport of regulated material by a manufacturer whose primary business is the manufacture of iron and steel products made from melting scrap iron and scrap steel.
Sec. 6.14.008 Penalties
(a) Any individual, association or corporation violating any portion or provision of this article shall be deemed guilty of a misdemeanor and, upon conviction thereof, a fine not to exceed $2,000.00 shall be assessed.
(b) If the person has been previously convicted under this article, an offense under this article is a misdemeanor to be punished by a fine of not less than $500.00 and not to exceed $2,000.00.
(c) If there is proof of the person being previously convicted twice under this article, an offense under this article is a misdemeanor to be punished by a fine of not less than $1,000.00 and not to exceed $2,000.00.
(d) If there is proof of the person being previously convicted three times under this article, an offense under this article is a misdemeanor to be punished by a fine of not less than $2,000.00.
(e) Any regulated material purchased by a metal recycling entity in violation of this article shall be subject to seizure by the city police department.
(f) A separate offense shall be deemed committed for each transaction in which a violation occurs or continues.
(Ordinance 08-033 adopted 2/26/08)
ARTICLE 6.15 RECORD KEEPING REQUIREMENTS FOR CERTAIN DRUGS
Sec. 6.15.001 Definitions
As used in this article and unless otherwise specified, the following terms are defined as follows:
Listed precursor chemicals. Any compound, mixture, or preparation containing any detectable amount of “ephedrine,” “pseudoephedrine,” and/or “norpseudoephedrine,” including its salts, optical isomers, and salts of optical isomers. The term does not include any compound, mixture, or preparation that is in liquid, liquid capsule, or liquid gel capsule form.
Pharmacy. A retail establishment as licensed by the state board of pharmacy.
Retail establishment. A business establishment that does not operate a pharmacy licensed by the Texas State Board of Pharmacy but engages in over-the-counter sales of the listed precursor chemicals and holds a certificate of authority issued under Title 6, section 486.012.
Sale. A conveyance, exchange, barter, or trade.
Sec. 6.15.002 Electronic record keeping requirement by pharmacies and retail establishments
Every pharmacy or retail establishment in the city shall participate in a monitoring program as administered by the city, which requires an electronic record keeping system of transactions involving the sale and distribution of the listed precursor chemicals that must be recorded and maintained pursuant to Texas Health and Safety Code, Title 6, chapter 486. Participation in the program shall include payment of the pro rata portion of the administrative costs associated with the program.
Sec. 6.15.003 Violations
Any such pharmacy, business or retail establishment that fails to participate in the electronic record keeping program, as administered by the city, shall be in violation of this article and is guilty of a separate offense for each day or part of day the violation is committed, continued or permitted. Each offense upon conviction is punishable by a fine not to exceed $2,000.00, and may be considered grounds for the possible revocation and suspension of its business license.
(Ordinance 09-029 adopted 5/12/09)
ARTICLE 6.16 GAME ROOMS AND AMUSEMENT REDEMPTION MACHINES
Sec. 6.16.001 Definitions
Amusement redemption machine. Any electronic, electromechanical, or mechanical contrivance that for a consideration affords the player an opportunity to obtain anything of value, the award of which is determined solely or partially by chance, even though accompanied by some skill, whether or not the prize is automatically paid by the contrivance, including but not limited to, gambling device versions of bingo, keno, blackjack, lottery, roulette, video poker, tic-tac-toe eight-liner or similar electronic, electromechanical, or mechanical games, or facsimiles thereof, that operate by chance or partially so.
City official. A code enforcement officer or building official of the City of Greenville or any peace officer of the state.
Game room. A building, facility or other place that is open to the public and that contains one or more operational amusement redemption machines.
Game room owner. A person who has any ownership interest in a game room or an owner, director, or officer of a business entity that has any ownership interest in a game room.
Operational machine. A machine that is ready to be played and accessible to the public.
Sec. 6.16.002 Licensing
(a) Payment of fee and issuance of license. An owner, operator, or lessee of an amusement redemption machine game room shall be required to secure a license annually. An amusement redemption machine game room shall be required to secure a license by paying to the city an annual inspection and amusement redemption machine game room license fee of $250.00. Application shall not be approved until a completed application has been submitted and found to meet all application requirements.
(b) Application. An applicant for a license or permit shall file with the department of community development a written application on a form provided for that purpose, which shall be signed by the applicant, who shall be the owner, operator, or lessee of the amusement redemption machine game room. Should an applicant maintain an amusement redemption machine game room at more than one location, a separate application must be filed for each location. The following information is required in the application:
(1) Location, by address, of the proposed operation.
(2) A copy of the certificate of formation if the business is registered with the secretary of state, or the applicant’s d/b/a, if applicable;
(3) Name, address, telephone number and driver’s license number of the following persons, if applicable:
(A) Applicant if a natural person;
(B) All persons who own 25 percent or more interest in the amusement redemption machine game room;
(C) All corporate officers, if any, of the such business;
(D) If a partnership, each of the general and limited partners;
(E) The property owner; and
(F) The manager of the property and/or business.
(4) The previous occupation(s) of the applicant and, if applicable, all corporate officers and partners of the applicant within the preceding five years;
(5) Whether a previous license or permit of applicant, or, if applicable, corporate or partner of applicant, has been revoked within two years of filing of the application;
(6) Number of amusement redemption machines in the amusement redemption machine game room;
(7) An authorization to conduct a background check for all individuals included in subsection (b)(2). The license will be denied if any individual has any convictions, guilty pleas, or deferred adjudications related to gambling or organized crime or any felony or has within the prior five (5) years.
(8) A sworn statement that:
(A) All the facts contained in the application are true and correct;
(B) The location and operation of the amusement redemption machine game room will not violate any applicable deed restrictions; and
(C) The amusement redemption machine game room will be operated in accordance with all laws and city ordinances, including chapter 47 of the Texas Penal Code.
(9) Name, address, and telephone number of an emergency contact person who can be reached after hours.
(c) Expiration and renewal.
(1) Expiration. An annual amusement redemption machine game room license issued by the city shall automatically expire on the thirty-first day of December following its issuance, except as otherwise stated herein. Such license shall automatically expire if the licensee sells the property or the business, transfers equity to accomplish same, or otherwise disposes of such devices. An amusement redemption machine game room license is not assignable or transferable. The city shall not refund any portion of a license after the license is issued, nor shall it prorate or reduce in amount any fee due to the city.
(2) Late penalty. Upon the expiration of a license, the licensee shall obtain a renewal if the licensee wishes to continue operating an amusement redemption machine game room. Failure to obtain the renewal within 30 days after expiration will require such person to pay an additional late fee in an amount equal to 20 percent of the fee actually due or 20 percent of the previous year’s fee, whichever is greater, in order to obtain reinstatement of his license. Nothing herein authorizes the licensee to operate after the expiration of a license and before a renewal is effective.
(d) Posting of license. The license shall be conspicuously posted inside the building.
(e) Restrictions, regulations, controls, and limitations. The following restrictions, regulations, controls, and limitations shall apply to all amusement redemption machine game rooms:
(1) Condition of premises. All building and fire code standards must be met. A certificate of occupancy shall be requested before license is issued. Game room must be located in an area zoned for that activity.
(2) Methods of conduction of business. Amusement redemption machines are not allowed outdoors.
(3) Hours of operation. May only be operated between the hours of 10:00 a.m. and 12:00 a.m.
(4) Parking requirements. One space for each two machines, plus one space per employee per shift.
(5) Location requirements. Premises shall not operate within 500 feet radius of an established church, school, day care or hospital. Premises shall not operate within 1,500 feet radius of another amusement redemption machine game room.
(6) Alcoholic beverages. No amusement redemption machine game room may be located on premises where alcoholic beverages are sold or served, with the exception of any congressionally chartered, nonprofit organization.
(7) The owner, operator, or manager of the premises must be present to supervise the operation of the machines. The machines shall not be left unattended.
(8) Machines must be situated within the premises as to be in full and open public view, which entails being visible to all patrons of the establishment.
(9) A game room operator must be a person who is at least 18 years of age.
(10) Total number of machines in one establishment shall be limited to 50.
(11) All machines must be permitted according to the permitting requirements of section 6.16.003 of these regulations.
Sec. 6.16.003 Amusement redemption machine permitting
(a) Permit application. An owner, operator, or lessee of an amusement redemption machine game room shall be required to obtain a permit for each amusement redemption machine. As part of the application, the owner, operator, or lessee must submit, at their own expense, each amusement redemption machine, including hardware and software source code, to an independent gaming compliance and testing laboratory approved in advance by the city to ensure that the machine does not generate the resultant outcome independent of the skillful actions of the player. Any game that is determined to be beyond the ability of a player to predict or control the outcome will not be permitted or allowed to operate within the incorporated limits of the city.
(b) Permit. Following approval by the independent gaming compliance and testing laboratory, the city shall issue a permit that will be permanently affixed to the approved machine. The permit shall include the name of the machine and the machine’s serial number.
(c) Sealing or seizure. A person commits an offense if he or she owns an operational machine without a permit or with a tampered permit. In addition to other criminal or civil remedies outlined in this article, the city shall have the authority to seal or seize any coin-operated machine located in any amusement redemption machine for which a permit is not displayed. If any amusement redemption machine is found with evidence of permit tampering of any kind, including a permit issued to a different machine or a change in the game’s hardware or software after the date of the permit issuance, the city shall have the authority to seal or seize all amusement redemption machines in the game room for retesting at the owner’s expense and/or to revoke the owner’s license to operate a game room.
Sec. 6.16.004 Unrestricted access by city official
An owner, manager or employee of a game room or other person exercising control over a game room, a portion of a game room or an operational amusement redemption machine, shall provide a city official with immediate unrestricted access during business hours to all areas of the game room and to all operational amusement redemption machines located in the game room.
Sec. 6.16.005 Inspection by city officials
(a) Any city official may inspect a game room or an operational amusement redemption machine located within the city incorporated city limits to determine whether the game room or the operational amusement redemption machine complies with the city code and state law.
(b) An owner, manager or employee of a game room or other person who does not allow a city official to inspect a game room or operational amusement redemption machine commits an offense.
Sec. 6.16.006 Transparent, uncovered windows required
(a) Every game room shall have transparent unobstructed windows or open space on at least one (1) side so that the area is open to view by the general public passing by on a public street or using a corridor, lobby or other room to which the public has access and is admitted without charge. The owner, manager or employee of a game room shall not permit any obstruction of such public view by the use of drawn shades, blinds, partitions, tinting or other structures or obstructions.
(b) The requirements of subsection (a) above may be waived or modified by the building official if the game room owner can demonstrate:
(1) The game room is located in a structure deemed a historic landmark, or the structure is within a historic district, and deemed to have architectural or historic significance; and
(2) Compliance with the unobstructed view requirement shall require alterations to the structure that will have a substantially detrimental effect on its historic or architectural features.
Sec. 6.16.007 Hours of operation, ingress and egress
(a) All game rooms shall have their hours of operation clearly marked on every entrance.
(b) All game room shall have all doors providing ingress and egress from the game room unlocked during the hours of operation.
(c) It shall be unlawful for any person to keep, conduct or operate any game room for profit or to allow or permit any game room to remain open for business or open to the public before the hour of 10:00 a.m. or after the hour of 12:00 a.m.
Sec. 6.16.008 Offense; penalty
Any person who shall violate any of the provisions of this article or fail to comply therewith shall be deemed guilty of a class C misdemeanor and, upon conviction, shall be fined not to exceed the maximum amount allowable by law. This offense is hereby declared to be a strict liability offense and the culpable mental state required by chapter 6.02 of the Texas Penal Code is hereby specifically negated and clearly dispensed with. Each day that the violation occurs shall constitute a distinct and separate offense.
(a) The state legislature has found that the unrestricted operation of certain sexually oriented businesses may be detrimental to the public, health, safety, and welfare by contributing to the decline of residential and business neighborhoods and the growth of criminal activity. The purpose of this article to regulate sexually oriented businesses is to promote the health, safety, morals, and general welfare of the citizens of the city, to establish reasonable and uniform regulations to prevent the concentration of sexually oriented businesses within the city, to deter sexually related criminal activity occurring in and around sexually oriented businesses and to protect the health of patrons and employees of such businesses from sexually transmitted diseases. 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, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market.
(b) It is the intent of the city council that the locational regulations of section 6.17.013 of this article are promulgated pursuant to V.T.C.A. Local Government Code chapter 243 as they apply to a sex parlor, nude studio, modeling studio, lover parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel, or other similar commercial enterprise the primary business of which is the offering of a service or the selling, renting or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer. It is the intent of the city council that all other provisions of this article are promulgated pursuant to the city charter and V.T.C.A. Local Government Code chapter 243 and subchapter D of chapter 215.
(c) It is the intent of the city council to protect and preserve the health, safety and welfare of the patrons of adult oriented establishments, as well as the health, safety and welfare of the town’s citizens. Statistics and studies performed by a substantial number of cities and towns in the United States and research reviewed by the planning and zoning board and city council indicate the following:
(1) Large numbers of persons, primarily male, frequent such adult oriented establishments, especially those which provide closed booths, cubicles, studios and rooms for the private viewing of so-called adult motion pictures and/or video tapes and/or live entertainment;
(2) Such closed booths, cubicles, studios and rooms have been used by patrons, clients or customers of such adult oriented establishments for the purpose of engaging in certain sexual acts;
(3) Male and female prostitutes have been known to frequent such establishments in order to provide sex for hire to the patrons, clients or customers of such establishments within such booths, cubicles and rooms;
(4) Doors, curtains, blinds and/or other closures installed in or on the entrances and/or exits are in use encourage patrons using such booths, cubicles, studios and rooms to engage in sexual acts therein with prostitutes and/or with other members of the same sex, thereby promoting and encouraging prostitution and the commission of sexual acts which cause blood, semen and urine to be deposited on the floor and/or walls of such booths, cubicles, studios and rooms, which deposits could prove detrimental to the health and safety of other persons who may come into contact with such deposits;
(5) Communicable diseases may be spread by activities occurring in sexually oriented businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections;
(6) Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS caused by HIV in the United States;
(7) The U.S. Surgeon General in his October 22, 1986 report advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, and from an infected mother to her newborn;
(8) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts;
(9) Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities and the failure of the owners and operators of the facilities to self-regulate those activities and maintain those facilities;
(10) A reasonable licensing scheme is an appropriate mechanism to know the true identity of the owners, operators and employees, their criminal background (since someone convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this article or other laws), identifies potential witnesses or suspects and by preventing minors from working in such establishments;
(11) That there is an increasing commercial exploitation of human sexuality by owners and operators of commercial establishments where alcoholic beverages are served or offered for sale or consumption on the premises, or where alcoholic beverages are permitted to be consumed;
(12) That such exploitation takes place in the form of employing or permitting persons to perform or exhibit their nude or semi-nude bodies to other persons as an inducement to such other persons to purchase alcoholic beverages or to consume alcoholic beverages while on the premises;
(13) Such exploitation is further often accompanied by serious and dangerous criminal activity, such as the possession or use of controlled substances, the proliferation of drug-related activity, prostitution, disorderly conduct, assaults, and the like;
(14) That the direct result of such exploitation in the context of the location where it is permitted (i.e., where alcohol is served or consumed) threatens the preservation of property values of adjoining and adjacent properties and neighborhoods;
(15) That the direct result of such exploitation is the moral degradation and disturbances of the peace and good order of the community;
(16) Such commercial exploitation of such nude and semi-nude acts are adverse to the public’s interest and the quality of life, tone of commerce, and total community environment in the city;
(17) The hour restrictions on private clubs in the state under the current Alcoholic Beverage Commission were originally adopted to “safeguard the welfare, safety, and temperance of the people of Texas,” and we hereby find that such hours when applied to sexually oriented businesses equally safeguard the welfare and safety of the citizens of the city;
(18) The important governmental interests of the prevention of crime and prevention of disease (such as the City of Chattanooga presented evidence of high crime and health risks which supported that city’s adoption of City Code section 11-435(d) as outlined in DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997)) are furthered by the prohibition of touching between the sexually oriented business employees and customers and when a six foot buffer zone is established;
(19) The reasonable regulation and supervision of such adult oriented establishments tends to discourage such sexual acts and prostitution, and thereby promotes the health, safety and welfare of the patrons, clients and customers of such establishments;
(20) The continued unregulated operation of adult oriented establishments including, without limitation, those specifically cited in this provision, is and would be detrimental to the general welfare, health and safety of the citizens of the city;
(21) The above findings raise substantial governmental concerns;
(22) Such reasonable regulations are within the powers granted to the city by the Constitution and laws of the state in order to protect the public health, safety and welfare and have been enacted by this article without any intention of limiting or restricting the contents of any communicative materials or of denying or restricting the rights of any adult to obtain, view, distribute, exhibit, or sell any sexually oriented materials protected by the United States and/or State Constitution;
(23) The place restrictions hereinafter in accordance with powers granted to the city by the Constitution and laws of the state including V.T.C.A. Local Government Code chapter 243; such regulations will provide needed protection to the community from the adverse effects of sexually oriented businesses without depriving such businesses of adequate opportunities to locate within the city for this article satisfies City of Renton, Woodall and other case law for this article translates into 14.7% of the city being available to such businesses as reasonable alternative avenues of communication;
(24) In order to reduce the secondary effects of sexually oriented businesses, regulation of signage is necessary to protect the health, safety and welfare of the public.
Sec. 6.17.002 Definitions
In this article:
Achromatic. Colorless or lacking in saturation or hue. The term includes, but is not limited to, grays, tans, and light earth tones. The term does not include white, black, or any bold coloration that attracts attention.
Adult arcade. Any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
Adult bookstore or adult video store. A commercial establishment which as one of its principal business purposes offers for sale or rental for any form of consideration any one or more of the following:
(1) Books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or
(2) Instruments, devices, or paraphernalia which are designed for use in connection with specified sexual activities.
Adult cabaret. A nightclub, bar, restaurant, or similar commercial establishment which regularly features:
(1) Persons who appear in a state of nudity;
(2) Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
(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 entertainment enterprise. A sexually oriented business.
Adult motel. 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; or has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions;
(2) Offers a sleeping room for rent for a period of time that is less than 10 hours; or
(3) Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than 10 hours.
Adult motion picture theater. A commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
Adult tanning salons. A business or commercial enterprise that, as one of its primary business purposes, furnishes, offers to furnish, or advertises to furnish anyone who appears in a state of nudity or displays specified anatomical areas for a fee, tip, or other consideration.
Adult theater. A theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
Church. A facility, including all structures and grounds, at which persons regularly assemble for worship, intended primarily for purposes connected with such worship or for propagating a particular form of religious belief.
Customer. Any person who: (1) is allowed to enter a sexually oriented business in return for the payment of an admission fee or any other form of consideration or gratuity; (2) enters 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 club.
Employee. Any 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 a salary, wage, or other compensation by the operator of said business or who receives or has the expectation of receiving any compensation from the operator or customers of the business. By the way of example, rather than limitation, the term 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 these definitions cover not only conventional employer-employee relationships but also independent contractor relationships, agency relationships, and any other scheme or systems whereby the ‘employee’ has an expectation of receiving compensation, tips, or other benefits from the 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 delivery of goods to the premises.
Escort. A person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie, garments, apparel, devices or other such items or who agrees or offers to privately perform a striptease for another person.
Escort agency. A person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes, for a fee, tip, or other consideration.
Establishment. Includes any of the following:
(1) The opening or commencement of any sexually oriented business as a new business;
(2) The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
(3) The addition of any sexually oriented business to any other existing sexually oriented business;
(4) The relocation of any sexually oriented business; or
(5) A location and place of business.
Historic district. A historic overlay-zoning district as defined in the City of Greenville Code of Ordinances, as amended.
Licensed day care center. A facility licensed by the state that provides care, training, education, custody, treatment or supervision for children under 14 years of age, regardless of whether or not the facility is operated for a profit or charges for the service it offers.
Licensee. A person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license.
Nude studio or model studio. Any place where a person who appears in a state of nudity or displays “specified anatomical areas” is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration.
Nudity or a state of nudity.
(1) The appearance of a human bare buttock, anus, male genitals, female genitals, or female breast.
(2) A state of dress which fails to completely and opaquely cover a human buttock, anus, male genitals, female genitals, or areola of the female breast.
(3) This includes material that is painted or applied to the body, such as paint, liquid latex or employment of any device or covering intended to give the appearance of or simulate the parts of the body listed in (1) or (2).
(4) This definition shall not include a mother in the act of nursing her child.
Operates or causes to be operated. To cause to function or to put or keep in operation. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner, part owner, or licensee of the business.
Park. Publicly owned or publicly leased tracts of land, 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-ways, esplanades, traffic units, easements or traffic triangles unless such tracts or areas contain and provide improvements or access to a recreational or leisure use by the public.
Person. An individual, proprietorship, partnership, corporation, association, or other legal entity.
Police chief. The police chief of the City of Greenville or his designated agent.
Residential district. A single-family, patio home dwelling, two-family, multifamily, modular dwelling, mobile home, or HUD code manufactured home, family care home, or accessory apartments zoning district as defined in the city code.
Residential use. Any use permitted by the city code in a residential district and shall include premises 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.
School. A facility, including but not limited to all playgrounds, dormitories, stadiums, grounds, structures, and other appurtenances that are part of the facility used for the primary purpose of instruction or education, including but not limited to public or private kindergarten, primary or secondary schools, colleges and universities, special educational facilities in which students who have physical or learning disabilities receive specialized education in lieu of attending regular classes in kindergarten or grades one (1) through twelve (12) classes.
Semi-nude. A state of dress in which clothing or other matter opaquely covers no more than buttocks, anus, male or female genitalia or areola of a female breast, as well as portions of the body covered by supporting straps or devices.
Sexual encounter center. A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
(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. An adult entertainment enterprise, adult theater, sexual encounter center, sex parlor, nude studio, modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel, adult cabaret, escort agency or other commercial enterprise the primary business of which is the offering of a service or the selling, renting or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer. The enterprises or activities described above shall be subject to regulation under this order at any location at which they may occur, whether conducted within a building, a temporary enclosure or out of doors. Under this definition, a sexually oriented business does not include:
(1) A business operated by and employing or contracting with a licensed psychologist, licensed physical therapist, licensed athletic trainer, licensed cosmetologist, or licensed barber engaged in performing functions authorized under a state license;
(2) A business operated by and employing or contracting with a licensed tattooist or tanning shop operator engaged in performing functions authorized under a state license for a tattoo parlor or tanning salon;
(3) A business operated by and employing or contracting with a state licensed physician or licensed chiropractor engaged in practicing the healing arts;
(4) A business operated by and employing or contracting with a state licensed massage therapist who practices or offers massage engaged in performing the functions authorized by the license;
(5) A school, which is accredited or certified by a national academic accreditation organization, and which maintains an educational program training persons the necessary skills and knowledge to obtain a state issued license as a psychologist, physical therapist, athletic trainer, cosmetologist, tattooist, artist, barber, physician, chiropractor, or massage therapist;
(6) A person appearing nude in a modeling class:
(A) Operated by a proprietary school licensed by the state; a college, junior college, or university supported entirely or partly by taxation; or by a private college or university or junior college which maintains and operates educational programs in which credits earned are transferrable to a college, junior college, or university supported entirely or partly by taxation;
(B) In a structure which has no sign visible from the exterior of the structure advertising that a nude person is available for viewing;
(C) In order to participate in the class a student must enroll at least three days prior to the class; and
(D) Where there is no more than one nude model on the premises at any one time;
(7) Any activity, business, presentation, expression, material, film, video tape, photographic slide, CD-ROM disk, floppy diskette, book, or device, which when taken as a whole has or contains serious literary, artistic, political, or scientific value.
For the purposes of determining whether a commercial activity is a sexually oriented business under this article, the relevant inquiry shall be as to the nature of the primary business at the premises. Therefore it is immaterial and irrelevant that: some ancillary activity may occur as an incident to the otherwise adult activity, such as but not limited to, tanning, garment modeling, exercise, massage, or other simultaneously or in conjunction with one of the activities expressly identified hereinabove as constituting an sexually oriented business if, the activity taken as a whole appeals to the prurient interest in sex and is intended to sexually stimulate or sexually gratify any person, notwithstanding the presence of the ancillary activity; or, any particular word or term is or is not associated with or utilized in the name or description of an enterprise or establishment, including but not limited to the words: spa, sauna, center, studio, parlor, theater, cabaret, club, review, shop, gymnasium, pool, hall, salon, store, lounge, arcade, service, agency, or company.
Specified anatomical areas. Human genitals in a state of sexual arousal, whether clothed or nude.
Specified sexual activities. Includes 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, or sodomy;
(3) Masturbation, actual or simulated; or
(4) Excretory functions as part of or in connection with any of the activities set forth in (1) through (3) above.
Substantial enlargement of a sexually oriented business. The increase in floor area occupied by the business by more than 25 percent.
Topless. A female clothed in a manner that simulates or leaves uncovered or visible through less than fully opaque clothing any portion of the breasts or areola.
Transfer of ownership or control of a sexually oriented business. Includes any of the following:
(1) The sale, lease, or sublease of the business;
(2) The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, gift 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. 6.17.003 Classification
Sexually oriented businesses are classified as follows:
(1) Adult arcades or adult movie arcades;
(2) Adult bookstores, adult video stores, or adult paraphernalia stores;
(3) Adult cabarets;
(4) Adult motels;
(5) Adult motion picture theaters;
(6) Adult theaters;
(7) Escort agencies and escorts;
(8) Nude studios, nude modeling studios, or sexually oriented modeling studios; or
(9) Sexual encounter centers.
Sec. 6.17.004 License required; identification card required and issuance and display of such card
(a) A person commits an offense if he operates a sexually oriented business without a valid license, issued by the city for the particular type of business. A separate application and permit shall be required for each such business.
(b) An application for a license must be made on a form provided by the police chief. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but must be drawn to designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. Applicants who must comply with section 6.17.020 of this article shall submit a diagram meeting the requirements of section 6.17.020.
(c) The applicant must be qualified according to the provisions of this article and the premises must be in compliance with the law by the building official.
(d) If a person who wishes to operate a sexually oriented business is an individual, he must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a ten (10) percent or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under section 6.17.005 and each applicant shall be considered a licensee if a license is granted.
(e) An applicant shall be required to give the following information on the application form:
(1) The legal name and any other names (including all aliases and stage names) used by the intended operator(s) and the owners; street address and mailing address (if different) and driver’s license number of the intended operator(s) and the owners;
(2) The name under which the enterprise is to be operated and a general description of the services to be provided;
(3) The telephone number of the sexually oriented business;
(4) The address and legal description of the tract of land on which the sexually oriented business is to be located;
(5) If the sexually oriented business is in operation, the date on which the owner(s) acquired the sexually oriented business for which the permit is sought, and the date on which the sexually oriented business began operations as an sexually oriented business at the location for which the permit is sought;
(6) If the sexually oriented business is not in operation, the expected startup date (which shall be expressed in number of days from the date of issuance of the permit). If the expected startup date is to be more than ten (10) days following the date of issuance of the permit, then a detailed explanation of the construction, repair or remodeling work or other cause of the unexpected delay and a statement of the owner’s time schedule and plan for accomplishing the same;
(7) The application shall be accompanied by the following:
(A) Each of the applicant’s residential addresses for the three (3) years immediately preceding the date of the application, indicating the dates of each residence and including the present address and telephone number of the applicant;
(B) The applicant’s business, occupation and employment history for the three (3) years immediately preceding the date of application, indicating the applicable dates and addresses;
(C) Documentation that the applicant is at least eighteen (18) years of age;
(D) The applicant’s height, eye color and natural hair color;
(E) Two photographs of the applicant taken at the time of the application;
(F) The applicant’s criminal history, which shall consist of a statement of any and all criminal convictions. The term criminal convictions encompasses a defendant adjudged guilty of the offense charged. The term also encompasses a defendant who has entered a plea of guilty or nolo contendere to the offense in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated. The term shall not include class C misdemeanor traffic violations;
(G) Fingerprints of the applicant taken and maintained by the police department for the purpose of establishing identification;
(H) A copy of the applicant’s valid driver’s license or Texas Department of Transportation identification card;
(I) Other identification and information as determined by the police chief to be reasonably necessary in order to confirm the validity of information provided in the application;
(J) A mailing address where the applicant can be reliably contacted;
(K) 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) if the sexually oriented business is to be operated under an assumed name;
(L) If the sexually oriented business is a state corporation, a certified copy of the articles of incorporation, together with all amendments thereto, and residential addresses of all current officers and directors;
(M) If the sexually oriented business is a foreign corporation, a certified copy of the articles of incorporation, together with all amendments thereto, and residential addresses of all current officers and directors;
(N) If the sexually oriented business is a limited partnership formed under the laws of the state, a certified copy of the certificate of limited partnership, together with all amendments thereto, filed with the secretary of state, and residential addresses of all general and limited partners;
(O) If the sexually oriented business is a general partnership, the names and residential addresses of each of the partners;
(P) A joint venture or other similar entity shall provide the names and residential addresses of the participants and their valid drivers license numbers or Texas Department of Transportation identification card numbers, if any participant is a corporation or partnership, the applicable information required above shall be provided;
(Q) Proof of the current fee ownership of the tract of land on which the sexually oriented business is to be situated in the form of the recorded deed;
(R) If the person identified as the fee owner(s) of the tract of land in subsection (4) above are not also the owners of the sexually oriented business, then the lease, purchase contract, purchase option contract, lease option contract or other document(s) evidencing the legally enforceable right of the owners or proposed owners of the sexually oriented business to have or obtain the use and possession of the tract or portion thereof that is to be used for the sexually oriented business for the purpose of the operation of the sexually oriented business;
(S) A Department of Public Safety (DPS) background check on the applicant;
(T) A statement under oath that 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 that the applicant has read and understands the provisions of this article and that the applicant authorizes the police chief to seek such information from any third party or entity required to confirm any statement set forth in the application.
(f) The applicant must state on the application for a license which single type of sexually oriented business, as listed in section 6.17.003, the applicant will be operating. Operating any other type of sexually oriented business at this location is a violation according to the provisions of this article.
(g) A person who operates a sexually oriented business, as listed in section 6.17.003, or his agent or employee, commits an offense if he operates this business without maintaining on site at the sexually oriented business, a current roster of all employees along with a copy of a completed, updated identification card application for each employee; each application must have been approved by the police chief and on file with the city. Said roster shall be kept in a bound book of pages; the binding may be of glue, cloth, staples, wire spiral, or loose leaf pages in a ring binder. The roster shall be available for inspection by representatives of the health, fire, police, and code or building inspections department in the course of any inspection of the premises. It is an offense to fail or refuse to have and maintain an accurate roster, or to fail or refuse to produce it for inspection upon verbal request by one authorized to inspect the premises.
(h) It shall be unlawful for any person to act as an employee for any sexually oriented business in the city unless the person first obtains and continues to maintain in full force and effect an identification card from the city as herein required. All potential employees of sexually oriented businesses must provide the following when making application for an identification card:
(1) The employee’s full legal name (including all aliases and stage names). Each of the employee’s residential addresses for the three (3) years immediately preceding the date of the identification card application, indicating the dates of each residence and including the present address and telephone number of the employee;
(2) The employee’s business, occupation and employment history for the three (3) years immediately preceding the date of the identification card application, indicating the applicable dates and addresses;
(3) Documentation that the employee is at least eighteen (18) years of age;
(4) The employee’s height, eye color and natural hair color;
(5) Two photographs of the employee taken at the time of the application;
(6) The employee’s criminal history, which shall consist of a statement of any and all criminal convictions. The term criminal convictions encompasses a defendant adjudged guilty of the offense charged. The term also encompasses a defendant who has entered a plea of guilty or nolo contendere to the offense in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated. The term shall not include class C misdemeanor traffic violations.
(7) Fingerprints of the employee taken and maintained by the police department for the purpose of establishing identification;
(8) A copy of the employee’s valid driver’s license or Texas Department of Transportation identification card;
(9) Other identification and information as determined by the police chief to be reasonably necessary in order to confirm the validity of information provided in the application;
(10) A mailing address where the employee can be reliably contacted.
(11) A Department of Public Safety (DPS) background check on the employee.
(i) Any potential employee who has been convicted of the offenses listed under section 6.17.005(a)(9)(A) below, and for which the requisite period of time as provided under section 6.17.005(a)(9)(B) below has not been met, shall not be issued an identification card to work at a sexually oriented business.
(j) Application forms will be provided by the police chief and determination of compliance must be made by the police chief within thirty (30) days from the date the application was filed with the city. The identification card will be issued and the application placed on file with the city unless the police chief finds the potential employee is in violation of any applicable provisions contained in this article. The police chief, upon approving issuance of an identification card, shall send to the applicant, by certified mail, return receipt requested, written notice of that action and state where the applicant must pay the fee and obtain the identification card. The police chiefs approval of the issuance of an identification card does not authorize the applicant to work as an employee at a sexually oriented business until the applicant has paid all fees required by this article, obtained possession of the identification card and delivered a true and correct copy of the applicant’s identification card application to each sexually oriented business at which the applicant is an employee. The identification card, if granted, must state on its face the name and age of the person to whom it is granted, the expiration date, and include a photo identification of the person to whom it is granted. An identification card shall expire one (1) year from the date of issuance and may be renewed only by filing an application in compliance with this subsection. The request for renewal must be made at least thirty (30) days before the expiration of the identification card. When made less than thirty (30) days before the expiration date, the expiration of the identification card will not be stayed. An identification card may be suspended, revoked and appealed in accordance with the procedures and standards of sections 6.17.009, 6.17.010, and 6.17.011.
(k) No person may work for any sexually oriented business without having on his or her person at all times while at work an identification card issued by the police chief in subsection (h) showing that he or she is currently licensed. Such identification card shall be available at all times for inspection and shall be worn on the left breast of said employee during working periods. An employee shall not transfer his or her identification card to another person. While on the premises of a sexually oriented business, no one is allowed to wear another employee’s identification card.
Sec. 6.17.005 Issuance of license
(a) The police chief shall approve the issuance of a license by city manager to an applicant within 30 days after receipt of an application unless the chief of police finds one or more of the following to be true:
(1) An applicant is under 18 years of age;
(2) An applicant or an applicant’s spouse is overdue in payment to the city of taxes, fees, fines, or penalties assessed against or imposed upon the applicant or the applicant’s spouse in relation to a sexually oriented business;
(3) An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form;
(4) An applicant or an applicant’s spouse has been convicted of a violation of a provision of this article, other than the offense of operating a sexually oriented business without a license, within two years immediately preceding the application;
(5) Any fee required by this article has not been paid;
(6) An applicant has been employed in a sexually oriented business in a managerial capacity within the preceding 12 months and has demonstrated an inability to operate or manage a sexually oriented business premises in a peaceful and law-abiding manner, thus necessitating action by law enforcement officers;
(7) An applicant or the proposed establishment is in violation of or is not in compliance with any section of this article;
(8) The premises to be used for the sexually oriented business have not been approved by the building official as being in compliance with applicable laws and ordinances;
(9) An applicant or an applicant’s spouse has been convicted of a crime:
(A) Involving.
(i) Any of the following offenses as described in chapter 43 of the Texas Penal Code:
(aa) Prostitution;
(bb) Promotion of prostitution;
(cc) Aggravated promotion of prostitution;
(dd) Compelling prostitution;
(ee) Obscenity;
(ff) Sale, distribution, or display of harmful material to minors;
(gg) Sexual performance by a child;
(hh) Possession or promotion of child pornography;
(ii) Any of the following offenses as described in chapter 21 of the Texas Penal Code:
(aa) Public lewdness;
(bb) Indecent exposure;
(cc) Indecency with a child;
(iii) Sexual assault or aggravated sexual assault as described in chapter 22 of the Texas Penal Code;
(iv) Prohibited sexual conduct, enticing of a child, harboring a runaway child, or sale or purchase of a child as described in chapter 25 of the Texas Penal Code;
(v) Kidnapping or aggravated kidnapping as described in chapter 20 of the Texas Penal Code;
(vi) Robbery or aggravated robbery as described in chapter 29 of the Texas Penal Code;
(vii) A bribery or retaliation as described in chapter 36 of the Texas Penal Code;
(viii) A violation of the Texas Controlled Substances Act or Dangerous Drugs Act punishable as a felony, class A misdemeanor, or class B misdemeanor;
(ix) Engaging in organized criminal activity as described in chapter 71 of the Texas Penal Code;
(x) Gambling as described in chapter 47 of the Texas Penal Code;
(xi) Forgery as described in chapter 32 of the Texas Penal Code;
(xii) Money laundering as described in chapter 34 of the Texas Penal Code;
(xiii) Criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses;
(B) For which.
(i) Less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
(ii) Less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or
(iii) Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24-month period.
(b) The fact that a conviction is being appealed has no effect on the disqualification of the applicant or applicant’s spouse under subsection (a).
(c) An applicant who has been convicted or whose spouse has been convicted of an offense listed in subsection (a)(9)(A) may qualify for a sexually oriented business license only when the time period required by subsection (a)(9)(B) has elapsed.
(d) The police chief, upon approving issuance of a sexually oriented business license, shall send to the applicant, by certified mail, return receipt requested, written notice of that action and state where the applicant must pay the license fee and obtain the license. The police chief’s approval of the issuance of a license does not authorize the applicant to operate a sexually oriented business until the applicant has paid all fees required by this article and obtained possession of the license.
(e) The license, if granted, must state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. The license must 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.
(f) Next to the license a sign at least twenty-four (24) inches square bearing red letters a minimum of two (2) inches high on a white background 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 providing the following notice: “Indecent exposure, prostitution, public lewdness, and other such acts are illegal on these premises. These laws are strictly enforced and violators will be prosecuted to the full extent of the law.”
Sec. 6.17.006 Fees
The fees for this article can be found in the fee schedule in appendix A, sec. A6.17.006 of this code.
Sec. 6.17.007 Inspection
(a) An applicant or licensee shall permit representatives of the police department, health department, fire department, and building inspection division to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business.
(b) A person who operates a sexually oriented business or his agent or employee commits an offense if he refuses to permit a lawful inspection of the premises by a representative of the police department, health department, fire department, or building inspection division at any time it is occupied or open for business.
(c) The provisions of this section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation.
Sec. 6.17.008 Expiration of license
Each license expires one (1) year from date of issuance, unless suspended or revoked pursuant to this article, except that a license issued pursuant to a locational restriction exemption expires on the date the exemption expires. A license may be renewed only by making application as provided in section 6.17.004 and compliance with section 6.17.006. Application for renewal should be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the license will not be affected by the pendency of the application.
Sec. 6.17.009 Suspension
The police chief shall suspend a license for a period not to exceed 30 days if he determines that a licensee or an employee of a licensee has:
(1) Violated or is not in compliance with any section of this article;
(2) Engaged in excessive use of alcoholic beverages while on the sexually oriented business premises;
(3) Refused to allow an inspection of the sexually oriented business premises as authorized by this article;
(4) Knowingly permitted gambling by any person on the sexually oriented business premises;
(5) Demonstrated inability to operate or manage a sexually oriented business in a peaceful and law-abiding manner thus necessitating action by a law enforcement officer.
Sec. 6.17.010 Revocation
(a) The police chief shall revoke a license if a cause of suspension in section 6.17.009 occurs and the license has been suspended within the preceding 12 months.
(b) The police chief shall revoke a license if the police chief determines that:
(1) A licensee gave false or misleading information in the material submitted to the police chief during the application process;
(2) A licensee or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises;
(3) A licensee or an employee has knowingly allowed prostitution on the premises;
(4) A licensee or an employee operated the sexually oriented business during a period of time when the licensee’s license was suspended;
(5) A licensee has been convicted of an offense listed in section 6.17.005(a)(9)(A) for which the time period required in section 6.17.005(a)(9)(B) has not elapsed;
(6) On two or more occasions within a 12-month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in section 6.17.005(a)(9)(A) for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed;
(7) A licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in or on the licensed premises. The term “sexual contact” shall have the same meaning as it is defined in section 21.01, Texas Penal Code; or
(8) A licensee is delinquent in payment to the city for hotel occupancy taxes, ad valorem taxes, or sales taxes related to the sexually oriented business.
(c) The fact that a conviction is being appealed shall have no effect on the revocation of the license.
(d) Subsection (b)(7) does not apply to adult motels as a ground for revoking the license unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in a public place or within public view.
(e) When the police chief revokes a license, the revocation shall continue for one (1) year and the licensee shall not be issued a sexually oriented business license for one year from the date revocation became effective. If, subsequent to revocation, the police chief finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license was revoked under subsection (b)(5), an applicant may not be granted another license until the appropriate number of years required under section 6.17.005(a)(9)(B) has elapsed.
Sec. 6.17.011 Appeal
If the police chief denies the issuance or renewal of a license, or suspends or revokes a license, the police chief shall send to the applicant or licensee, by certified mail, return receipt requested, written notice of the action and the right to an appeal. Upon receipt of written notice of the denial, suspension, or revocation, the applicant or licensee whose application for a license or license renewal has been denied or whose license has been suspended or revoked has the right to appeal to the state district court. An appeal to the state district court must be filed within 30 days after the receipt of notice of the decision of the police chief. The applicant or licensee shall bear the burden of proof in court.
Sec. 6.17.012 Transfer of license
A licensee shall not transfer his license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application.
Sec. 6.17.013 Location
(a) A person commits an offense if he operates or causes to be operated a sexually oriented business within 1,000 feet of:
(1) A church;
(2) A school;
(3) A boundary of a residential or historic district as defined in this article;
(4) A public park;
(5) The property line of a lot devoted to a residential use as defined in this article;
(6) A hospital; or
(7) Licensed day care.
(b) A person commits an offense if he causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 1,000 feet of another sexually oriented business.
(c) A person commits an offense if he causes or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, or if he causes or permits the increase of floor area of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business.
(d) For the purposes of subsection (a) of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church, school, hospital, residential lot, or licensed day care facility or to the nearest boundary of an affected residential district, historic district, or public park.
(e) For purposes of subsection (b) of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
(f) Any sexually oriented business lawfully operating on the passage of this article that is in violation of subsections (a), (b), or (c) shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed six (6) months, unless sooner terminated for any reason or voluntarily discontinued for a period of 30 days or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later-established business(es) is nonconforming.
(g) A sexually oriented business fully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business license, of a church, school, licensed day care center, government building, cemetery or hospital within 1,000 feet of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application for a license is submitted after a license has expired or has been revoked.
Sec. 6.17.014 Exemption from location restrictions
(a) If the police chief denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of section 6.17.013 of this article, then the applicant may, not later than 10 calendar days after receiving notice of the denial, file with the city secretary a written request for an exemption from the locational restrictions of section 6.17.013.
(b) If the written request is filed with the city secretary within the 10-day limit, a permit and license appeal board, selected pursuant to ordinance by the city council, shall consider the request. The city secretary shall set a date for the hearing within 60 days from the date the written request is received.
(c) A hearing by the board may proceed if at least two of the board members are present. The board shall hear and consider evidence offered by any interested person. The formal rules of evidence do not apply.
(d) The permit and license appeal board may, in its discretion, grant an exemption from the locational restrictions of section 6.17.013 if it makes the following findings:
(1) The location of the proposed sexually oriented business will not have a detrimental effect on nearby properties or be contrary to the public safety or welfare;
(2) The granting of the exemption will not violate the spirit and intent of this article of the city code;
(3) The location of the proposed sexually oriented business will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban blight;
(4) The location of an additional sexually oriented business in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any effort of urban renewal or restoration; and
(5) All other applicable provisions of this article will be observed.
(e) The board shall grant or deny the exemption by a majority vote. Failure to reach a majority vote shall result in denial of the exemption. Disputes of fact shall be decided on the basis of a preponderance of the evidence. The decision of the board is final.
(f) If the board grants the exemption, the exemption is valid for one year from the date of the board’s action. Upon the expiration of an exemption, the sexually oriented business is in violation of the locational restrictions of section 6.17.013 until the applicant applies for and receives another exemption.
(g) If the board denies the exemption, the applicant may not reapply for an exemption until at least 12 months have elapsed since the date of the board’s action.
(h) The grant of an exemption does not exempt the applicant from any other provisions of this article other than the locational restrictions of section 6.17.013.
Sec. 6.17.015 Additional regulations for escort agencies
(a) An escort agency shall not employ any person under the age of 18 years.
(b) A person commits an offense if he acts as an escort or agrees to act as an escort for any person under the age of 18 years.
Sec. 6.17.016 Additional regulations for nude studio or modeling studio
(a) A nude studio or modeling studio shall not employ any person under the age of 18 years.
(b) A person under the age of 18 years commits an offense if he appears in a state of nudity in or on the premises of a nude studio or modeling studio. It is a defense to prosecution under this subsection if the person under 18 years was in a restroom not open to public view or persons of the opposite sex.
(c) A person commits an offense if he/she appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude studio or modeling studio premises which can be viewed from the public right-of-way.
(d) An employee of a nude studio or modeling studio, while exposing any specified anatomical areas, commits an offense if the employee touches a customer or the clothing of a customer.
(e) A customer at a nude studio or modeling studio commits an offense if he touches an employee who is exposing any specified anatomical areas or touches the clothing of the employee.
(f) A licensee or an employee of a nude studio or modeling studio commits an offense if he permits any customer access to an area of the premises not visible from the manager’s station or not visible by a walk through of the premises without entering a closed area, excluding a restroom.
(g) A nude studio or modeling studio shall not place or permit a bed, sofa, mattress or futon in any room on the premises, except that a sofa may be placed in a reception room open to the public.
Sec. 6.17.017 Additional regulations for adult theaters and adult motion picture theaters
(a) A person commits an offense if he knowingly allows a person under the age of 18 years to appear in a state of nudity in or on the premises of an adult theater or adult motion picture theater.
(b) A person under the age of 18 years commits an offense if he knowingly appears in a state of nudity in or on the premises of an adult theater or adult motion picture theater.
(c) It is a defense to prosecution under subsections (a) and (b) of this section if the person under 18 years was in a restroom not open to public view or persons of the opposite sex.
Sec. 6.17.018 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 a period of time that is less than 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 an offense if, as the person in control of a sleeping room in a hotel, motel, or similar commercial establishment that does not have a sexually oriented business license, he rents or subrents a sleeping room to a person and, within 10 hours from the time the room is rented, he rents or subrents the same sleeping room again.
(c) For purposes of subsection (b) of this section, the terms rent or subrent mean the act of permitting a room to be occupied for any form of consideration.
Sec. 6.17.019 Regulations pertaining to exhibition of sexually explicit films or videos
(a) A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises in a viewing room of less than 150 square feet of floor space, a film, video cassette, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
(1) Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager’s stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager’s station may not exceed 32 square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall not be required; however each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches. The police chief 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.
(3) No alteration in the configuration or location of a manager’s station may be made without the prior approval of the police chief or his designee.
(4) It is the duty of the owners and operator of the premises to ensure that at least one employee is on duty and situated in each manager’s station at all times that any patron is present inside the premises.
(5) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager’s station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager’s stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager’s stations. The view required in this subsection must be by direct line of sight from the manager’s station.
(6) It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in subsection (5) above remains unobstructed by any doors, walls, curtains, partitions or any other opaque coverings, merchandise, display racks or other materials at all times that any patron is present in the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection (1) above.
(7) 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 (5.0) foot candle as measured at the floor level.
(8) It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above is maintained at all times that any patron is present in the premises.
(b) A person having a duty under subsections (1) through (8) of subsection (a) above commits an offense if he knowingly fails to fulfill that duty.
Sec. 6.17.020 Additional regulations pertaining to visibility, continuous walls and illumination at all sexually oriented businesses
(a) Every sexually oriented business shall be physically arranged in a manner that the entire interior portion of any areas into which patrons are permitted access (including all booths, cubicles, rooms and stalls except adult motel rooms and toilet facilities) shall be clearly visible from the common areas of the premises and the visibility into such areas shall not be blocked or obscured by doors, screens, curtains, partitions, drapes, merchandise, display racks, other materials, or any other opaque obstruction whatsoever.
(b) All interior walls, partitions or other dividers of any areas into which patrons are allowed access (including all booths, cubicles, rooms and stalls except adult motel rooms and toilet facilities) shall be continuous from the floor to four feet (4') high with no apertures, holes or other openings. This provision shall not apply to conduits for plumbing, heating, air conditioning, ventilation or electrical service, provided that 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.
(c) Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of all interior walls, partitions or other dividers of any areas into which patrons are allowed access and designating any area into which patrons will not be permitted. A professionally prepared diagram in the nature of an engineer or architect’s blueprint shall not be required; however each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches. The police chief 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. The application shall be sworn to be true and correct by the applicant. No alteration in the configuration or location of an interior wall, partition or other divider may be made without the prior approval of the police chief or his designee.
(d) It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in subsection (a) remains unobstructed by any doors, walls, curtains, partitions, any other opaque coverings, merchandise, display racks or other materials at all times that any patron is present in the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection (c) above. It shall be the duty of the operators and owners and it shall also be the duty of any agents and employees present to ensure that the premises is monitored to assure that no openings are allowed to exist in violation of subsection (b), above, and to ensure that no patron is allowed access to any portion of the premises where any opening exists in violation of subsection (b), above, until the opening has been repaired. 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 (any portion of the interior of a sexually oriented business which is separated from any other portion of the same business by any wall, partition or other divider) 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.
(e) The premises of the view area specified in subsection (a) 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 five (5.0) foot candle as measured at the floor level. The parking lot of every sexually oriented business 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 five (5.0) foot candle as measured at the ground level.
(f) It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above is maintained at all times that any patron is present in the premises.
(g) A person having a duty under subsections (a) through (f) of this provision commits an offense if he/she knowingly fails to fulfill that duty.
(h) Every act or omission by an employee constituting a violation of the provisions of this article shall be deemed the act or omission of the operator if such act or omission occurs either with the authorization, knowledge or approval of the operator, or as a result of the operator’s negligent failure to supervise the employee’s conduct, and the operator shall be punishable for such act or omission in the same manner as if the operator committed the act or caused the omission.
(i) An operator shall be responsible for the conduct of all employees while on the licensed premises, and any act or omission of any employee constituting a violation of the provisions of this article shall be deemed the act or omission of the operator for purposes of determining whether the operator shall be subject to the penalties imposed by this article.
Sec. 6.17.021 Additional regulations pertaining to adult cabarets
(a) An employee of an adult cabaret, while appearing in a state of nudity, commits an offense if he touches a customer or the clothing of a customer.
(b) A customer at an adult cabaret commits an offense if he touches an employee who is appearing in a state of nudity or clothing of the employee.
(c) Any dance, performance, exhibition or show by an employee of an adult cabaret, while appearing in a state of nudity or seminude, shall occur on a platform which is raised at least two (2) feet from the level of the floor and the employee, while in the state of nudity or seminude, shall be at least six (6) feet from any customer.
(d) A licensee or an employee of an adult cabaret commits an offense if he permits any customer access to an area of the premises not visible from the manager’s station or not visible by a walk through of the premises without entering a closed area, excluding a restroom.
Sec. 6.17.022 Additional regulations where alcoholic beverages are served, consumed or offered for sale
(a) It shall be unlawful for any person maintaining, owning, or operating a commercial establishment located within the boundaries of the city, at which alcoholic beverages are served or offered for sale for consumption on the premises, or at which alcoholic beverages are permitted to be consumed:
(1) To suffer or permit any female person, while on the premises of said commercial establishment, to expose that area of the human female breast at or below the top of the areola thereof.
(2) To suffer or permit any female person, while on the premises of said commercial establishment, to use any device or covering which is intended to give the appearance of or simulate such portions of the human female breasts as described in subsection (a)(1) hereof.
(3) To suffer or permit any person, while on the premises of said commercial establishment, to expose his or her genitals, pubic area, buttocks, anus or anal cleft or cleavage.
(4) To suffer or permit any person, while on the premises of said commercial establishment, to use any device or covering which is intended to give the appearance of or simulate the genitals, pubic area, buttocks, anus, anal cleft, or cleavage.
(b) It shall be unlawful for any female person, while on the premises of a commercial establishment located within the boundaries of the city, at which alcoholic beverages are served or offered for sale for consumption on the premises, or at which alcoholic beverages are permitted to be consumed, to expose that area of the human female breast at or below the top of the areola thereof, or to use any device or covering which is intended to give the appearance or simulate such areas of the female breast as described herein.
(c) It shall be unlawful for any person, while on the premises of a commercial establishment located within the boundaries of the city, at which alcoholic beverages are served or offered for sale for consumption on the premises, or at which alcoholic beverages are permitted to be consumed, to expose his or her genitals, pubic area, buttocks, anus, or anal cleft or cleavage, or to use any device or covering which is intended to give the appearance of or simulate the genitals, pubic area, buttocks, anus or anal cleft or cleavage.
Sec. 6.17.023 Display of sexually explicit material to minors
(a) A person commits an offense if, in a business establishment open to persons under the age of 17 years, he displays a book, pamphlet, newspaper, magazine, film, or video cassette, the cover of which depicts, in a manner calculated to arouse the sexual lust or passion for commercial gain or to exploit sexual lust or perversion for commercial gain, any of the following:
(1) Human sexual intercourse, masturbation, or sodomy;
(2) Fondling or other erotic touching of human genitals, pubic region, buttocks, or female breasts;
(3) Less than completely and opaquely covered human genitals, buttocks, or that portion of the female breast below the top of the areola; or
(4) Human male genitals in a discernibly turgid state, whether covered or uncovered.
(b) In this section display means to locate an item in such a manner that, without obtaining assistance from an employee of the business establishment:
(1) It is available to the general public for handling and inspection; or
(2) The cover or outside packaging on the item is visible to members of the general public.
Sec. 6.17.024 Hours of operation
No sexually oriented business, except for an adult motel, may remain open at any time on Sunday between the hours of 1:15 a.m. and 1:00 p.m. or any other day at any time between the hours of 12:15 a.m. and 7:00 a.m.
Sec. 6.17.025 Exterior portions of sexually oriented businesses
(a) An owner or operator of a sexually oriented business commits an offense if he allows:
(1) The merchandise or activities of the establishment to be visible from any point outside the establishment;
(2) The exterior portions of the establishment to have flashing lights, or any words, lettering, photographs, silhouettes, drawings, or pictorial representations of any manner except to the extent permitted by this article;
(3) The exterior portions of the establishment to be painted any color other than a single achromatic color, except that this subsection does not apply to an establishment if the following conditions are met:
(A) The establishment is a part of a commercial multiunit center; and
(B) The exterior portions of each individual unit in the commercial multiunit center, including the exterior portions of the establishment, are painted the same color as one another or are painted in such a way as to be a component of the overall architectural style or pattern of the commercial multiunit center.
(b) Nothing in this section requires the painting of an otherwise unpainted exterior portion of a sexually oriented business.
Sec. 6.17.026 Sign requirements
(a) Notwithstanding any provision of the city code or any other code or regulation to the contrary, the owner or operator of any sexually oriented business or any other person commits an offense if he erects, constructs, or maintains any sign for the establishment other than one primary sign and one secondary sign, as provided in this section.
(b) A primary sign may have no more than two display surfaces. Each display surface must:
(1) Not contain any flashing lights;
(2) Be a flat plane, rectangular in shape;
(3) Not exceed 75 square feet in area;
(4) Not exceed 10 feet in height or 10 feet in length.
(c) A secondary sign may have only one display surface. The display surface must:
(1) Not contain any flashing lights;
(2) Be a flat plane, rectangular in shape;
(3) Not exceed 20 square feet in area;
(4) Not exceed five feet in height or four feet in width; and
(5) Be affixed or attached to a wall or door of the establishment.
(d) A primary or secondary sign must contain no photographs, silhouettes, drawings, or pictorial representations of any manner, and may contain only:
(1) The name or the establishment; and/or
(2) One or more of the following phrases:
(A) Adult arcade.
(B) Adult bookstore or adult video store.
(C) Adult cabaret.
(D) Adult motel.
(E) Adult motion picture theater.
(F) Adult theater.
(G) Escort agency.
(H) Nude model studio.
(I) Sexual encounter center.
(e) A primary sign for an adult motion picture theater may contain the phrase, “Movie Titles Posted on Premises,” in addition to the phrases listed in subsection (d)(2) of this section.
(f) Each letter forming a word on a primary or secondary sign must be of a solid color, and each letter must be the same print-type, size, and color. The background behind the lettering on the display surface of a primary or secondary sign must be of a uniform and solid color.
Sec. 6.17.027 Enforcement
(a) Any person violating section 6.17.013 of this article, upon conviction, is punishable by a fine not to exceed $2,000.00 for each offense and a separate offense shall be deemed committed upon each day during or on which a violation occurs.
(b) Any person violating a provision of this article other than section 6.17.013, upon conviction, is punishable as a class A misdemeanor for each offense and a separate offense shall be deemed committed upon each day during or on which the violation occurs. A class A misdemeanor is defined by and carries the penalties described by the Texas Penal Code.
(c) It is a defense to prosecution under sections 6.17.004(1), 6.17.013, or 6.17.016(d) that a person appearing in a state of nudity did so in a modeling class operated:
(1) By a proprietary school licensed by the state; a college, junior college, or university supported entirely or partly by taxation;
(2) By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or
(3) In a structure:
(A) Which is not visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing;
(B) Where in order to participate in a class a student must enroll at least three days in advance of the class; and
(C) Where no more than one nude model is on the premises at any one time.
(d) It is a defense to prosecution under section 6.17.004(a) or section 6.17.013 that each item of descriptive, printed, film, or video material offered for sale or rental, taken as a whole, contains serious literary, artistic, political, or scientific value.
(e) For a period of six (6) months after passage of this article, it is a defense to prosecution under section 6.17.019 if the sexually oriented business was in operation at its present location on the date of passage of this article and that the business is working toward compliance with section 6.17.019 such that the business is projected to be in compliance by the end of six (6) months after passage of this article.
(f) For a period of six (6) months after passage of this article, it is a defense to prosecution under section 6.17.020 if the sexually oriented business was in operation at its present location on the date of passage of this article and that the business is working toward compliance with section 6.17.020 such that the business is projected to be in compliance by the end of six (6) months after passage of this article.
(g) Any sexually oriented business in operation on the date of passage of this article will be entitled to thirty (30) days to fully complete an application for a license. During such thirty (30) days, said business will be granted a grace period regarding enforcement of this article. Moreover, if the application is completed in full during said 30 day period, then this period shall be extended to said business until the licensing decision is made under section 6.17.005 by the police chief.
(h) The revocation or suspension of any license 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 license.
Sec. 6.17.028 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 injunction as well as prosecution for criminal violations.
Sec. 6.17.029 Amendment of this article
Sections 6.17.013 and 6.17.014 of this article may be amended only after compliance with the procedure required to amend a zoning ordinance. Other sections of this article may be amended by vote of the city council.
Sec. 6.17.030 Zone
Sexually oriented businesses shall only be located in either the I-1 or I-2 zoning districts of the city.
Sec. 6.17.031 Providing for governmental immunity
All of the regulations provided in this article are hereby declared to be governmental and for the health, safety and welfare of the general public. Any member of the city council or any city official or employee charged with the enforcement of this article, acting for the city in the discharge of his duties, shall not thereby render himself personally liable; and he is hereby relieved from all personal liability for any damage that might accrue to persons or property as a result of any act required or permitted in the discharge of his duties.
(Ordinance 00-171, sec. 2, adopted 9/26/00; Ordinance 08-59, sec. 4, adopted 5/27/08)