74R11095 CAG-D
By Brady, Bailey, Yarbrough, Rabuck, Yost, H.B. No. 1711
et al.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the local regulation of a sexually oriented business
1-3 and the sale, possession, and consumption of alcoholic beverages on
1-4 the premises of a sexually oriented business; providing a penalty.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subchapter B, Chapter 11, Alcoholic Beverage
1-7 Code, is amended by adding Section 11.375 to read as follows:
1-8 Sec. 11.375. APPLICATION FOR AND RENEWAL OF CERTAIN PERMITS
1-9 FOR SEXUALLY ORIENTED BUSINESS. (a) An application for a permit
1-10 or renewal of a permit for premises located in an unincorporated
1-11 area of a county must contain a sworn statement by the applicant as
1-12 to whether the establishment to be operated on the premises or part
1-13 of the premises is a sexually oriented business licensed by the
1-14 county.
1-15 (b) The county clerk of the county in which the premises are
1-16 located shall certify whether the location or address given in the
1-17 application is a location or address that has been licensed by the
1-18 commissioners court under Section 243.0075, Local Government Code,
1-19 to operate a sexually oriented business.
1-20 (c) A holder of a permit may not operate a sexually oriented
1-21 business on the premises if:
1-22 (1) the holder fails to state in the application for
1-23 the permit or renewal of the permit under which the premises are
1-24 being operated that the holder is operating or intends to operate a
2-1 sexually oriented business; and
2-2 (2) the premises are not licensed as a sexually
2-3 oriented business by the county in which the premises are located.
2-4 (d) In this section, "sexually oriented business" has the
2-5 meaning assigned by Section 243.002, Local Government Code.
2-6 SECTION 2. Section 11.38(d), Alcoholic Beverage Code, is
2-7 amended to read as follows:
2-8 (d) The following are exempt from the fee authorized in this
2-9 section:
2-10 (1) agent's, airline beverage, passenger train
2-11 beverage, industrial, carrier's, private carrier's, private club
2-12 registration, local cartage, storage, and temporary wine and beer
2-13 retailer's permits;
2-14 (2) a wine and beer retailer's permit issued for a
2-15 dining, buffet, or club car; and
2-16 (3) a mixed beverage permit during the three-year
2-17 period following the issuance of the permit, unless the permit is
2-18 issued for a premises or part of a premises that is a sexually
2-19 oriented business.
2-20 SECTION 3. Section 11.39(a), Alcoholic Beverage Code, is
2-21 amended to read as follows:
2-22 (a) Every applicant for a pharmacist's medicinal, brewer's,
2-23 distiller's and rectifier's, mixed beverage, private club
2-24 registration, winery, wholesaler's, class B wholesaler's, wine
2-25 bottler's, or package store permit shall give notice of the
2-26 application by publication at the applicant's <his> own expense in
2-27 two consecutive issues of all daily newspapers of general
3-1 circulation published in the city or town in which the applicant's
3-2 place of business is located or all daily newspapers of general
3-3 circulation published in the most populous city or town in the
3-4 county if the applicant's place of business is located in an
3-5 unincorporated area of a county. If no daily newspaper is
3-6 published in the city or town, the notice shall be published in a
3-7 newspaper of general circulation published in the city, <or> town,
3-8 or county in which the applicant's <his> place of business is
3-9 located. <If no newspaper is published in the city or town, the
3-10 notice shall be published in a newspaper of general circulation
3-11 published in the county where the applicant's business is located.>
3-12 If no newspaper is published in the county, the notice shall be
3-13 published in a qualified newspaper published in the closest
3-14 neighboring county and circulated in the county of the applicant's
3-15 residence.
3-16 SECTION 4. Section 11.391, Alcoholic Beverage Code, is
3-17 amended to read as follows:
3-18 Sec. 11.391. Notice by Sign. (a) Except as provided by
3-19 Subsection (c), an <An> applicant for a mixed beverage permit or a
3-20 private club registration permit for a location not previously
3-21 licensed for the on-premises consumption of alcoholic beverages
3-22 shall, beginning on the first date <dates> notice is required to be
3-23 published under Section 11.39 of this code and for seven
3-24 consecutive business days after that date, prominently post an
3-25 outdoor sign at the location stating that alcoholic beverages are
3-26 intended to be served on the premises, the proposed hours of
3-27 operation of the premises, the type of permit, and the name and
4-1 business address of the applicant.
4-2 (b) The sign shall be written in a manner and of a size the
4-3 administrator considers adequate to be clearly visible from the
4-4 street and to inform the general public of the intended use of the
4-5 property. The administrator may require the sign to be both in
4-6 English and a language other than English if it is likely that a
4-7 substantial number of the residents in the area speak a language
4-8 other than English as their familiar language. The commission
4-9 shall provide such sign and may charge a fee therefor.
4-10 (c) If a sexually oriented business is to be operated on
4-11 premises covered by a permit identified by Subsection (a), the
4-12 applicant must also comply with the notice requirements of this
4-13 section when applying for a renewal permit, except that the sign
4-14 shall be posted beginning on the 30th day before the expiration
4-15 date of the permit and for seven consecutive business days after
4-16 that date.
4-17 (d) The commission shall deny an <An> application if the
4-18 applicant fails <may not be denied for failing> to post the notice
4-19 required by this section <if the commission or administrator
4-20 determines that the general public in the area in which the
4-21 premises to be licensed is located is adequately aware of the
4-22 nature of the application>.
4-23 (e) In this section, "business day" excludes Saturday,
4-24 Sunday, and a legal holiday.
4-25 SECTION 5. Subtitle A, Title 3, Alcoholic Beverage Code, is
4-26 amended by adding Chapter 54 to read as follows:
4-27 CHAPTER 54. NUDITY EXHIBITOR'S PERMIT
5-1 Sec. 54.001. DEFINITIONS. In this chapter:
5-2 (1) "Nude" has the meaning assigned by Section
5-3 243.002, Local Government Code.
5-4 (2) "Public place" includes any area on the premises
5-5 in which an employee or other person subject to control,
5-6 supervision, direction, or discharge by the permit holder performs
5-7 any portion of the person's work.
5-8 Sec. 54.002. AUTHORIZED ACTIVITY. A holder of a nudity
5-9 exhibitor's permit may allow a person to possess or consume on the
5-10 premises an alcoholic beverage during the time that the holder of
5-11 the permit allows an employee or other person subject to control,
5-12 supervision, direction, or discharge by the permit holder to be
5-13 nude at a public place on the premises covered by the permit.
5-14 Sec. 54.003. FEE. The annual state fee for a nudity
5-15 exhibitor's permit is $6,000.
5-16 Sec. 54.004. PERMIT REQUIRED; PENALTY. (a) A person
5-17 commits an offense if the person engages in conduct authorized by
5-18 Section 54.002 and does not hold a nudity exhibitor's permit.
5-19 (b) An offense under this section is a Class A misdemeanor.
5-20 Sec. 54.005. CONDUCT SURETY BOND. (a) An applicant for a
5-21 nudity exhibitor's permit or a holder of a nudity exhibitor's
5-22 permit issued under this chapter shall file with the commission a
5-23 surety bond in the amount required by Subsection (e) conditioned on
5-24 the applicant's or holder's conformance with the regulations of the
5-25 commission and the laws of this state relating to a sexually
5-26 oriented business, the sale and provision of alcoholic beverages,
5-27 and the provisions of Chapter 43, Penal Code.
6-1 (b) A surety bond required under this section must contain
6-2 the following statements on the face of the bond:
6-3 (1) that the holder of the permit or license will not
6-4 violate a law of this state, a regulation of the commission, or a
6-5 provision of Chapter 43, Penal Code, that relates to the ownership
6-6 or operation of a premises or employment on a premises covered by a
6-7 nudity exhibitor's permit; and
6-8 (2) that the holder of the permit or license agrees
6-9 that the amount of the bond shall be paid to the state if the
6-10 holder violates a law of this state, a regulation of the
6-11 commission, or a provision of Chapter 43, Penal Code, that relates
6-12 to the ownership or operation of a premises or employment on a
6-13 premises covered by a nudity exhibitor's permit.
6-14 (c) The commission shall adopt rules relating to the:
6-15 (1) form of the surety bond;
6-16 (2) qualifications for a surety;
6-17 (3) method for filing and obtaining approval of the
6-18 bond by the commission; and
6-19 (4) release or discharge of the bond.
6-20 (d) A holder of a nudity exhibitor's permit required to file
6-21 a surety bond may furnish instead of all or part of the required
6-22 bond amount:
6-23 (1) one or more certificates of deposit assigned to
6-24 the state issued by a federally insured bank or savings institution
6-25 authorized to do business in this state; or
6-26 (2) one or more letters of credit issued by a
6-27 federally insured bank or savings institution authorized to do
7-1 business in this state.
7-2 (e) The surety bond issued under this section shall be in
7-3 the amount of $25,000.
7-4 SECTION 6. Subchapter B, Chapter 61, Alcoholic Beverage
7-5 Code, is amended by adding Section 61.375 to read as follows:
7-6 Sec. 61.375. APPLICATION FOR AND RENEWAL OF CERTAIN LICENSES
7-7 FOR SEXUALLY ORIENTED BUSINESS. (a) An application for a license
7-8 or renewal of a license for premises located in an unincorporated
7-9 area of a county must contain a sworn statement by the applicant as
7-10 to whether the establishment to be operated on the premises or part
7-11 of the premises is a sexually oriented business licensed by the
7-12 county.
7-13 (b) The county clerk of the county in which the premises are
7-14 located shall certify whether the location or address given in the
7-15 application is a location or address that has been licensed by the
7-16 commissioners court under Section 243.0075, Local Government Code,
7-17 to operate a sexually oriented business.
7-18 (c) A holder of a license may not operate a sexually
7-19 oriented business on the premises if:
7-20 (1) the holder fails to state in the application for
7-21 the license or renewal of the license under which the premises are
7-22 being operated that the holder is operating or intends to operate a
7-23 sexually oriented business; and
7-24 (2) the premises are not licensed as a sexually
7-25 oriented business by the county in which the premises are located.
7-26 (d) In this section, "sexually oriented business" has the
7-27 meaning assigned by Section 243.002, Local Government Code.
8-1 SECTION 7. Section 61.38(c), Alcoholic Beverage Code, is
8-2 amended to read as follows:
8-3 (c) When an original application to sell beer at retail at a
8-4 location not previously licensed is filed, the county clerk shall
8-5 publish notice for two consecutive issues in all daily newspapers
8-6 of general circulation published in the city or town in which the
8-7 applicant's place of business is to be located or all daily
8-8 newspapers of general circulation published in the most populous
8-9 city or town in the county if the applicant's place of business is
8-10 located in an unincorporated area of a county. If no daily
8-11 newspaper of general circulation is published in the city or town,
8-12 the notice shall be published in a newspaper of general circulation
8-13 published in the city, <or> town, or county in which the
8-14 applicant's place of business is to be located. <If no newspaper
8-15 of general circulation is published in that city or town, the
8-16 notice shall be published in a newspaper of general circulation in
8-17 the county where the applicant's business is to be located.> If no
8-18 newspaper of general circulation is published in that county, the
8-19 notice shall be published in a newspaper which is published in the
8-20 closest neighboring county and is circulated in the county where
8-21 the license is sought. The notice shall be in 10-point boldface
8-22 type and shall set forth the type of license applied for; the exact
8-23 location of the business; the name of the owner or owners; the
8-24 trade name, if operating under an assumed name; and in the case of
8-25 a corporate applicant, the names and titles of all officers of the
8-26 corporation. At the time the application is filed, the applicant
8-27 shall deposit with the clerk the cost of publishing notice, which
9-1 the clerk shall use to pay for the publication.
9-2 SECTION 8. Section 61.381, Alcoholic Beverage Code, is
9-3 amended to read as follows:
9-4 Sec. 61.381. Notice by Sign. (a) Except as provided by
9-5 Subsection (c), an <An> applicant for a wine and beer retailer's
9-6 permit or a retail dealer's on-premise license for a location not
9-7 previously licensed for the on-premises consumption of alcoholic
9-8 beverages shall, beginning on the first date <dates> notice is
9-9 required to be published under Section 61.38 of this code and for
9-10 seven consecutive business days after that date, prominently post
9-11 an outdoor sign at the location stating that alcoholic beverages
9-12 are intended to be served on the premises, the proposed hours of
9-13 operation of the premises, the type of license, and the name and
9-14 business address of the applicant.
9-15 (b) The sign shall be written in a manner and of a size the
9-16 administrator considers adequate to be clearly visible from the
9-17 street and to inform the general public of the intended use of the
9-18 property. The administrator may require the sign to be both in
9-19 English and a language other than English if it is likely that a
9-20 substantial number of the residents in the area speak a language
9-21 other than English as their familiar language. The commission
9-22 shall provide such sign and may charge a fee therefor.
9-23 (c) If a sexually oriented business is to be operated on
9-24 premises covered by a permit or license identified by Subsection
9-25 (a), the applicant must also comply with the notice requirements of
9-26 this section when applying for a renewal permit or license, except
9-27 that the sign shall be posted beginning on the 30th day before the
10-1 expiration date of the permit and for seven consecutive business
10-2 days after that date.
10-3 (d) The commission shall deny an <An> application if the
10-4 applicant fails <may not be denied for failing> to post the notice
10-5 required by this section <if the commission or administrator
10-6 determines that the general public in the area in which the
10-7 premises to be licensed is located is adequately aware of the
10-8 nature of the application>.
10-9 (e) In this section, "business day" excludes Saturday,
10-10 Sunday, and a legal holiday.
10-11 SECTION 9. Section 243.002, Local Government Code, is
10-12 amended to read as follows:
10-13 Sec. 243.002. DEFINITIONS <DEFINITION>. In this chapter:<,>
10-14 (1) "Nude" means:
10-15 (A) entirely unclothed; or
10-16 (B) clothed in a manner that leaves uncovered or
10-17 visible through less than fully opaque clothing any portion of the
10-18 breasts below the top of the areola of the breasts, if the person
10-19 is female, or any portion of the genitals or buttocks.
10-20 (2) "Sexually <"sexually> oriented business" means:
10-21 (A) a sex parlor, nude studio, modeling studio,
10-22 love parlor, adult bookstore, adult movie theater, adult video
10-23 arcade, adult movie arcade, adult video store, adult motel, or
10-24 other commercial enterprise the primary business of which is the
10-25 offering of a service or the selling, renting, or exhibiting of
10-26 devices or any other items intended to provide sexual stimulation
10-27 or sexual gratification to the customer; or
11-1 (B) any place of business permitting,
11-2 requesting, or requiring a person to work nude.
11-3 SECTION 10. Section 243.007, Local Government Code, is
11-4 amended to read as follows:
11-5 Sec. 243.007. LICENSES OR PERMITS ISSUED BY MUNICIPALITY.
11-6 (a) A municipality <or county> may require that an owner or
11-7 operator of a sexually oriented business obtain a license or other
11-8 permit or renew a license or other permit on a periodic basis for
11-9 the operation of a sexually oriented business. An application for
11-10 a license or other permit must be made in accordance with the
11-11 regulations adopted by the municipality <or county>.
11-12 (b) The municipal <or county> regulations adopted under this
11-13 chapter may provide for the denial, suspension, or revocation of a
11-14 license or other permit by the municipality <or county>.
11-15 (c) A district court has jurisdiction of a suit that arises
11-16 from the denial, suspension, or revocation of a license or other
11-17 permit by a municipality <or county>.
11-18 SECTION 11. Chapter 243, Local Government Code, is amended
11-19 by adding Section 243.0075 to read as follows:
11-20 Sec. 243.0075. LICENSES OR PERMITS ISSUED BY COUNTY. (a) A
11-21 county shall require the owner or operator of a sexually oriented
11-22 business to obtain a license or other permit or renew a license or
11-23 other permit on a periodic basis for the operation of a sexually
11-24 oriented business.
11-25 (b) An application for a license or other permit must be
11-26 made in accordance with the regulations adopted by the county.
11-27 (c) An applicant for a license or other permit shall publish
12-1 notice of the applicant's intent to apply for a license or other
12-2 permit in the same manner as an applicant for an alcoholic beverage
12-3 license or other permit under Sections 11.39(a) and (b) and
12-4 11.391(a) and (b), Alcoholic Beverage Code. The notice shall also
12-5 contain the time and place of the public hearing held under
12-6 Subsection (d).
12-7 (d) The commissioners court of the county may grant a
12-8 license or other permit only after conducting a public hearing on
12-9 the issuance or renewal of the license or other permit.
12-10 (e) The county regulations adopted under this section shall
12-11 provide for the denial, suspension, or revocation of a license or
12-12 other permit by the county.
12-13 (f) A district court has jurisdiction of a suit that arises
12-14 from the denial, suspension, or revocation of a license or other
12-15 permit by a county.
12-16 SECTION 12. This Act takes effect September 1, 1995, and
12-17 applies only to an application for an alcoholic beverage or
12-18 sexually oriented business permit or license or a renewal of an
12-19 alcoholic beverage or sexually oriented business permit or license
12-20 filed on or after the effective date of this Act. An application
12-21 for an alcoholic beverage or sexually oriented business permit or
12-22 license or a renewal of an alcoholic beverage or sexually oriented
12-23 business permit or license filed before the effective date of this
12-24 Act is governed by the law as it existed immediately before the
12-25 effective date of this Act, and that law is continued in effect for
12-26 that purpose.
12-27 SECTION 13. The importance of this legislation and the
13-1 crowded condition of the calendars in both houses create an
13-2 emergency and an imperative public necessity that the
13-3 constitutional rule requiring bills to be read on three several
13-4 days in each house be suspended, and this rule is hereby suspended.