By Bailey H.B. No. 3287 75R6230 CAG-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the statewide regulation of sexually oriented 1-3 businesses; providing a criminal penalty. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Title 132, Revised Statutes, is amended by adding 1-6 Article 9031 to read as follows: 1-7 Art. 9031. SEXUALLY ORIENTED BUSINESSES 1-8 Sec. 1. DEFINITIONS. In this article: 1-9 (1) "Applicant" means an owner of or an agent of an 1-10 owner of a sexually oriented business or an individual who operates 1-11 a sexually oriented business who requests a certificate of 1-12 registration. 1-13 (2) "Department" means the Department of Public 1-14 Safety. 1-15 (3) "Operator" means a person who has control over the 1-16 premises of a sexually oriented business, has managerial authority 1-17 over any employees or contractors of a sexually oriented business, 1-18 or is otherwise responsible for the daily operation of a sexually 1-19 oriented business. 1-20 (4) "Owner" means a person who participates in the 1-21 profits or residual assets of a sexually oriented business. 1-22 (5) "Sexually oriented business" has the meaning 1-23 assigned by Section 243.002, Local Government Code, and also 1-24 includes an individual, including an independent contractor, who 2-1 provides sexually oriented entertainment, services, or products at 2-2 one or more locations. The term does not include an individual 2-3 employed by a sexually oriented business, if the sexually oriented 2-4 business is the only location at which the individual provides 2-5 sexually oriented entertainment, services, or products. 2-6 Sec. 2. DATABASE; REGISTRATION. (a) The department shall 2-7 establish a database containing information on sexually oriented 2-8 businesses. Information received by the department under this 2-9 article shall be included in the database. 2-10 (b) A county or municipal agency or department that issues 2-11 permits or licenses under Chapter 243, Local Government Code, shall 2-12 provide to the department the following information for each permit 2-13 or license the agency or department issues: 2-14 (1) the applicant's name, address, and telephone 2-15 number; 2-16 (2) the business street address of the applicant, or 2-17 if the business is not located at one specific location, the 2-18 business mailing address of the applicant; 2-19 (3) a general description of the type of sexually 2-20 oriented business and the service or products being provided; and 2-21 (4) the approximate number of individuals employed by 2-22 the applicant, including any independent contractors. 2-23 (c) A county or municipal agency or department that issues 2-24 permits or licenses under Chapter 243, Local Government Code, shall 2-25 report to the department the final disposition of any enforcement 2-26 action taken against a license or permit holder. 2-27 (d) A sexually oriented business located in a municipality 3-1 that has not adopted regulations under Chapter 243, Local 3-2 Government Code, or located in the unincorporated area of a county 3-3 that has not adopted regulations under Chapter 243, Local 3-4 Government Code, shall register with the department before the 3-5 sexually oriented business may offer any service or sell, rent, or 3-6 exhibit any device or item intended to provide sexual stimulation 3-7 or gratification to a customer. 3-8 (e) The department shall provide information collected under 3-9 this section to any law enforcement agency or any county or 3-10 municipal agency or department that issues permits or licenses 3-11 under Chapter 243, Local Government Code. 3-12 (f) An applicant for registration under this article must 3-13 submit an application to the department on a form prescribed by the 3-14 department. 3-15 (g) The department shall return to an applicant any 3-16 application or form that does not provide the requested information 3-17 or is determined to contain insufficient information. The 3-18 department shall indicate the information needed for a complete 3-19 application and the applicant may resubmit the completed 3-20 application. 3-21 Sec. 3. MINIMUM REQUIREMENTS FOR REGISTRATION. (a) A person 3-22 applying for registration under this article must: 3-23 (1) provide the applicant's name, address, and 3-24 telephone number and the name, address, and telephone number of 3-25 each shareholder, partner, or other person who has more than a 10 3-26 percent ownership interest in the business; 3-27 (2) provide authorization and any information for a 4-1 criminal history record information search under Section 411.132, 4-2 Government Code, for each owner and operator; and 4-3 (3) pay any registration fee required by the 4-4 department. 4-5 Sec. 4. ISSUANCE OF CERTIFICATE; TERMS OF REGISTRATION. (a) 4-6 The department shall issue a certificate of registration to each 4-7 sexually oriented business that complies with the registration and 4-8 distance requirements imposed under this article and pays the 4-9 required fees. The permit shall be issued or denied not later than 4-10 the 30th day after the date a completed application is submitted to 4-11 the department. 4-12 (b) A certificate of registration issued under this article 4-13 is valid for one year from the date of issuance. The department by 4-14 rule may adopt a system under which certificates of registration 4-15 expire on various dates during the year. 4-16 (c) The department by rule may adopt a system to renew a 4-17 certificate of registration or may require an applicant to reapply 4-18 for registration. 4-19 Sec. 5. FEES. The department by rule shall set registration 4-20 fees. The department shall set the fees in amounts that are 4-21 reasonable and necessary to cover the costs of administering and 4-22 enforcing this article. 4-23 Sec. 6. GROUNDS FOR DENIAL. (a) The department shall deny 4-24 an application and may not issue or renew a certificate of 4-25 registration if the department finds that: 4-26 (1) the applicant has been finally convicted of the 4-27 following: 5-1 (A) a violation of Section 21.07, 21.08, 21.11, 5-2 22.011, 22.02, 25.02, 25.04, 25.06, or Chapter 43, Penal Code; 5-3 (B) a violation of Subchapter D, Chapter 481, 5-4 Health and Safety Code; 5-5 (C) a criminal attempt, solicitation, or 5-6 conspiracy to commit an offense described by Subdivision (A) or 5-7 (B); 5-8 (D) an offense in another state, that if 5-9 committed in this state would have been an offense described by 5-10 Subdivision (A) or (B); or 5-11 (E) a violation of a regulation adopted under 5-12 Chapter 243, Local Government Code; and 5-13 (2) the application is filed less than: 5-14 (A) two years after the date of conviction or 5-15 the release from confinement imposed for the conviction, whichever 5-16 is later, if the offense was a misdemeanor; or 5-17 (B) five years after the date of conviction or 5-18 the release from confinement imposed for the conviction, whichever 5-19 is later, if the offense was a felony or if the person was 5-20 convicted of two or more misdemeanors within the last two years. 5-21 (b) The department shall deny an application and may not 5-22 issue or renew a certificate of registration if the department 5-23 finds that: 5-24 (1) the applicant has falsely or incorrectly answered 5-25 a question on the registration application; or 5-26 (2) during the 12 months preceding the date on which 5-27 the application is filed the premises for which the registration is 6-1 sought have been found to be a nuisance under this article. 6-2 Sec. 7. DISTANCE REQUIREMENTS. (a) A sexually oriented 6-3 business may not be located or offer any service or sell, rent, or 6-4 exhibit any device or item intended to provide sexual gratification 6-5 or stimulation within 1,000 feet of: 6-6 (1) a public or private school; 6-7 (2) a church or other place of worship; 6-8 (3) a hospital; 6-9 (4) a child-care or day-care facility; 6-10 (5) an adult-care facility; or 6-11 (6) a park, playground, playing field, or other 6-12 recreational facility used by children. 6-13 (b) An applicant must submit with an application a sworn 6-14 statement that the location of the sexually oriented business 6-15 satisfies the distance requirements of this section. 6-16 (c) For the purpose of this section, distance is measured in 6-17 a straight line from the nearest portion of the building used for 6-18 the sexually oriented business to the nearest portion of the 6-19 building or area used for a purpose under Subsection (a) of this 6-20 section. 6-21 Sec. 8. EFFECT OF MUNICIPAL OR COUNTY REGULATION; 6-22 INFORMATION. If a municipality or county in which a sexually 6-23 oriented business is located adopts any ordinance or order 6-24 regulating sexually oriented businesses or the owners, operators, 6-25 or employees of sexually oriented businesses under Chapter 243, 6-26 Local Government Code, the municipal or county ordinance or order 6-27 supersedes any requirement of this article relating to the 7-1 registration and location of a sexually oriented business, except 7-2 that the reporting requirements of Section 2 of this article apply 7-3 to any sexually oriented business. 7-4 Sec. 9. PROHIBITED CONDUCT; CRIMINAL PENALTY. (a) A 7-5 sexually oriented business may not offer any service or sell, rent, 7-6 or exhibit any device or item intended to provide sexual 7-7 stimulation or gratification to any customer unless registered 7-8 under this article. The registration must be posted in plain view 7-9 near the entrance to the sexually oriented business, or, in the 7-10 case of an individual, must be immediately available for inspection 7-11 by a law enforcement officer. 7-12 (b) The department may adopt rules for the operation of a 7-13 sexually oriented business under this article if the department 7-14 determines that the rule is necessary to prevent the violation of 7-15 the laws of this state relating to obscenity, public lewdness, or 7-16 prostitution or of any other law relating to sexual misconduct or 7-17 the use, sale, or possession of controlled substances on the 7-18 premises of a sexually oriented business. 7-19 (c) A violation of this article or a rule adopted under this 7-20 section is an offense. An offense under this section is a Class A 7-21 misdemeanor. 7-22 Sec. 10. INJUNCTION. (a) If a court finds that a sexually 7-23 oriented business has engaged in repeated illegal activity or has 7-24 been the location of repeated criminal activity, the court may 7-25 declare the sexually oriented business or the location of the 7-26 sexually oriented business to be a public nuisance. If the court 7-27 makes a determination of a public nuisance, the court may revoke a 8-1 certificate of registration issued under this article. 8-2 (b) The attorney general or the attorney for a municipality 8-3 or county may sue in district court to have a sexually oriented 8-4 business declared a public nuisance and may also file suit to 8-5 enjoin the operation of a sexually oriented business in violation 8-6 of this article. 8-7 (c) In a suit to enjoin a violation of this article, the 8-8 court may grant the injunction without requiring the state, 8-9 municipality, or county to post a bond or other undertaking. 8-10 (d) The state, a municipality, or county shall recover 8-11 attorney's fees from the defendants in a suit filed under this 8-12 article if the state, municipality, or county is the prevailing 8-13 party. 8-14 SECTION 2. Subchapter F, Chapter 411, Government Code, is 8-15 amended by adding Section 411.132 to read as follows: 8-16 Sec. 411.132. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: 8-17 APPLICANTS FOR SEXUALLY ORIENTED BUSINESS LICENSE OR PERMIT. The 8-18 department or a municipality or county that registers, licenses, or 8-19 otherwise regulates owners, operators, or employees of sexually 8-20 oriented businesses, on written request, is entitled to obtain from 8-21 the department all information, including criminal history record 8-22 information, maintained by the department. 8-23 SECTION 3. (a) Except as provided by Subsection (c) of this 8-24 section, this Act takes effect September 1, 1997. 8-25 (b) The Department of Public Safety shall adopt rules 8-26 relating to the regulation of sexually oriented businesses under 8-27 Article 9031, Revised Statutes, as added by this Act, not later 9-1 than October 1, 1997. 9-2 (c) Sections 2 and 9, Article 9031, Revised Statutes, as 9-3 added by this Act, take effect January 1, 1998. 9-4 (d) The distance requirements of Section 7, Article 9031, 9-5 Revised Statutes, as added by this Act, do not apply to a sexually 9-6 oriented business operating in a location before the effective date 9-7 of this Act. 9-8 SECTION 4. The importance of this legislation and the 9-9 crowded condition of the calendars in both houses create an 9-10 emergency and an imperative public necessity that the 9-11 constitutional rule requiring bills to be read on three several 9-12 days in each house be suspended, and this rule is hereby suspended.