CHAPTER 4

BUSINESS REGULATIONS

   ARTICLE 4.01 GENERAL PROVISIONS

   (Reserved)

   ARTICLE 4.02 ALCOHOLIC BEVERAGES*

   Division 1. Generally

   Sec. 4.02.001     Sale of beer and wine for off-premises consumption

At the local option election of the town held on May 15, 2004, the voters approved proposition no. 1 for the legal sale of beer and wine for off-premises consumption. (Ordinance 04-56 adopted 5/25/04)

   Sec. 4.02.002     Sale of alcoholic beverages near a church, school or public hospital

(a)     No person, as defined by the Texas Alcoholic Beverage Code, as amended, (“TABC”) shall sell alcoholic beverages if the place of business is within three hundred (300) feet of a church, public or private school or public hospital except as provided by the TABC. The sale of alcoholic beverages is also prohibited within one thousand (1,000) feet of a private school if the town council adopts by resolution a request for the one thousand (1,000) foot separation from the governing body of a private school. 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 a direct line across intersections. The measurement of the distance between the place of business where alcoholic beverages are sold and the public or private school shall be:

(1)     In a direct line from the property line of the public or private school to the property line of the place of business, and in a direct line across intersections; or

(2)     If a permit or license holder is located on or above the fifth (5th) story of a multistory building, in a direct line from the property line of the public or private school to the property line of the place of business, in a direct line across intersections, and vertically up the building at the property line to the base of the floor on which the permit or license holder is located.

(b)     Notwithstanding any provision provided herein, this section does not affect the provisions of chapter 3, subsection 1.4(16) and (26) or chapter 3, section 2 of the town's zoning ordinance 05-20, as amended (“zoning ordinance”); provided, however, this section shall apply to all other uses set forth in chapter 3, subsection 1.3, regardless of whether said uses are defined in chapter 3, section 2 of the zoning ordinance.

(Ordinance 12-37 adopted 10/30/12)

State law reference–Sales near church, school or hospital, V.T.C.A., Alcoholic Beverage Code, sec. 109.33.

   Sec. 4.02.003     Sale of mixed beverages

At the local option election of the town held on May 13, 2006, the voters approved proposition no. 1 for the legal sale of mixed beverages in restaurants by food and beverage certificate holders only. (Ordinance 14-06, sec. 2, adopted 2/11/14)

   Sec. 4.02.004     Alcoholic beverage sales distance variance requirements for certain retail structures

(a)     Pursuant to section 109.33(e) of the Texas Alcoholic Beverage Code, a variance to the distance requirements prescribed by section 4.02.002 and section 1.4(16) of chapter 3 of the zoning ordinance, as amended, may be requested and granted in accordance with the following procedures, for any retail structure over fifty thousand (50,000) square feet where the primary tenant occupies at least eighty percent (80%) of the structure.

(1)     An application shall be submitted to the town on a form provided by the department of development services.

(2)     The application shall contain all required information on the form.

(3)     The department of development services shall set a date for consideration of the application by the town council.

(4)     No less than ten (10) days before the date of consideration by the town council, the director of development services or his or her designee shall provide notice to the protected use that creates the need for the variance. For purposes of this section, “protected use” shall mean a church, public or private school, hospital, day-care center, or child-care facility as defined by the zoning ordinance, as amended.

(5)     In considering the application for a variance to any distance requirement, the town council shall consider if the distance requirement in the particular instance:

(A)     Is not in the best interest of the public;

(B)     Constitutes waste or inefficient use of land or other resources;

(C)     Creates an undue hardship on an applicant for an alcohol permit;

(D)     Does not serve its intended purpose;

(E)     Is not effective or necessary; or

(F)     For any other reason that the town council, after consideration of the health, safety, and welfare of the public and the equities of the situation, determines is in the best interest of the community.

(6)     The town council may impose reasonable conditions on the granting of a distance variance.

(b)     A variance granted pursuant to this section is valid for any subsequent renewals for the alcohol permit. A distance variance granted pursuant to this section may not be transferred to another location or to another alcohol permit holder.

(Ordinance 16-53 adopted 9/13/16)

   Secs. 4.02.005–4.02.030     Reserved

   Division 2. Permits and Licenses

   Sec. 4.02.031     Permit required; fee

It shall be unlawful for any person to manufacture, distill, brew, import, transport, store for purposes of sale, distribute or sell any beer, wine or other alcoholic beverage within the town without having first paid a town permit fee equal to one-half of the state fee required by the Alcoholic Beverage Code, as may be amended from time to time, of every person who may be issued any permit or license or renew such permit or license by the state for the manufacture, distilling, brewing, importing, transporting, storing, distributing or sale of any beer, wine or other alcoholic beverage. Such permit fee shall be paid to the town secretary every two years. The town secretary shall issue a receipt for the permit fee and keep a record of the same in the town secretary's office. All receipts issued for the payment of permit fees under the terms of this section shall terminate at midnight on the day before the anniversary date of their issuance, and no receipt shall be issued covering a longer term than two years.

   Sec. 4.02.032     Processing procedures

Before the town secretary shall sign any application for a permit or license under the Alcoholic Beverage Code, or any renewal, such application shall be submitted to the appropriate town departments, as determined by the town manager, to ensure that the application complies with all town ordinances and regulations and are for establishments located in a wet area.

(Ordinance 14-06, sec. 4, adopted 2/11/14)

   ARTICLE 4.03 SOLICITORS AND ITINERANT MERCHANTS; HANDBILL DISTRIBUTION*

   Division 1. Generally

   Sec. 4.03.001     Findings

(a)     The town council has investigated and determined that it will be advantageous, beneficial and in the best interest of the citizens of the town to reduce the potential for criminal behavior throughout the town.

(b)     The town council has investigated and determined that it will be advantageous, beneficial and in the best interest of the citizens of the town to protect the safety of citizens, peddlers, solicitors or handbill distributors by providing reasonable times in which to conduct such activities.

(c)     The town council has investigated and determined that it will be advantageous, beneficial and in the best interest of the citizens of the town to prevent nuisances, litter and invitations to vandalism.

(d)     The town council has investigated and determined that it will be advantageous, beneficial and in the best interest of the citizens of the town to reduce the opportunity for crime to occur.

(e)     The town council has investigated and determined that it will be advantageous, beneficial and in the best interest of the citizens of the town to provide a means of identifying a person appearing at the front door of a residence to demonstrating compliance with this article.

(f)     The town council has investigated and determined that it will be advantageous, beneficial and in the best interest of the citizens of the town to maintain the privacy of the home and limit nuisances and fears of crime that unwilling citizens must be exposed to relative to the enjoyment of the investment made in the home.

(g)     The town council has investigated and determined that it will be advantageous, beneficial and in the best interest of the citizens of the town to enhance psychological well-being for individuals and families.

(h)     The town council has investigated and determined that it will be advantageous, beneficial and in the best interest of the citizens of the town to prevent fraud and deceit that may occur in door-to-door solicitations.

(i)     The town council has investigated and determined that it will be advantageous, beneficial and in the best interest of the citizens of the town to establish reasonable regulations of certain commercial activities and the solicitation of funds.

(j)     The town council has investigated and determined that the requirements of this article are narrowly tailored to the governmental interests of the town.

(Ordinance 02-26, sec. 1, adopted 9/10/02)

   Sec. 4.03.002     Definitions

(a)     The following words and phrases, when used in this article, shall have the meanings ascribed to them by this subsection:

Business day. Any calendar day except Saturday, Sunday or any state or national holiday.

(Ordinance 02-04, sec. 2, adopted 2/12/02)

Charitable purpose. Philanthropic or other nonprofit objectives, including the benefit of poor, needy, sick, refugee or handicapped persons; the benefit of any patriotic or veterans' association or organization; the benefit of any fraternal, social or civil organization; or the benefit of any educational institution. “Charitable purpose” shall not be construed to include:

(1)     The direct benefit of the individual making the solicitation;

(2)     The benefit of any political group or political organization that is subject to financial disclosure under state or federal law; or

(3)     The benefit of any church or religious society or order.

(Ordinance 02-26, sec. 2, adopted 9/10/02)

Consumer. An individual who seeks or acquires real or personal property, services, money, or credit for personal, family or household purposes.

Consumer transaction. A sales transaction in which one (1) or more of the parties is a consumer.

(Ordinance 02-04, sec. 2, adopted 2/12/02)

Handbill. Any printed or written matter, any sample or device, dodger, circular, leaflet, pamphlet, paper, booklet, or any other printed or otherwise reproduced original or copies of any matter or literature that is commercial in nature or has a commercial intent. (Ordinance 02-26, sec. 2, adopted 9/10/02)

Handbill distributor. Any person engaging or engaged in the business for hire or gain of distributing handbills, other than newspapers distributed to subscribers thereof, and any person receiving compensation directly or indirectly for the distribution of such handbills.

Handbill sponsor. Any person, firm or corporation who utilizes handbills as a medium of advertising or spreading a message.

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 a 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 negotiations 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.

Individual or person. Only a natural person.

Job placement activities. Any request, offer, enticement, or action which announces the availability for or of employment or seeks to secure employment. As defined herein, “job placement activities” shall be deemed complete when made, whether or not an actual employment relationship is created.

Merchant. A party to a consumer transaction other than a consumer.

Resident. Any separate living unit occupied for residential purposes by one (1) or more persons, contained within any type of building or structure.

Solicit funds or solicitation of funds. Any home solicitation transaction; any request for the donation of money, property, or anything of value, or the pledge of a future donation of money, property, or anything of value; or the selling or offering for sale of any property, real or personal, tangible or intangible, whether of value or not, including, but not limited to, goods, books, pamphlets, tickets, publications or subscriptions to publications. Expressly excluded from the meaning of “solicit funds” or “solicitation of funds” is any offer of membership in any organization. A solicitation of funds is complete when the solicitation is communicated to any individual then located within the corporate limits of the town.

(b)     All terminology used in this article and not specifically defined above shall retain its meaning in conformance with applicable publications of the American National Standards Institute (ANSI) or its successor body and/or the latest volume of Webster's Collegiate Dictionary.

(Ordinance 02-04, sec. 2, adopted 2/12/02)

   Sec. 4.03.003     Unlawful solicitation and handbill distribution

(a)     No person, directly or through an agent, shall canvass or solicit in person from house to house in the town, to sell or attempt to sell goods, merchandise, wares, services or anything of value or to take or attempt to take orders for the future delivery of goods, merchandise, wares, or any personal property of any nature whatsoever, or take or attempt to take orders for services to be furnished or performed in the future, without first having a written permit therefor, unless the solicitation is for charitable purposes.

(b)     It shall be unlawful for any person, directly or through an agent or employee, to distribute or cause to be distributed, deposited, placed, thrown, cast, scattered, handed out or circulated any handbill in or upon any premises within the corporate limits of the town without first having obtained a written permit for such distribution.

(c)     It shall be unlawful for any person, directly or through an agent or employee, to solicit funds for charitable purposes within the corporate limits of the town without first having obtained a certificate of registration for such solicitation.

(d)     It shall be unlawful for any person, as the agent or employee of another, to solicit funds for charitable purposes within the corporate limits of the town unless his/her employer has received a certificate of registration.

(Ordinance 02-04, sec. 3, adopted 2/12/02)

(e)     It shall be unlawful to solicit funds or distribute handbills after sundown and before 9:00 a.m. (Ordinance 02-04, sec. 3, adopted 2/12/02; Ordinance adopting Code)

(f)     It shall be unlawful for any person, directly or through an agent or employee, to solicit funds or distribute handbills after the expiration of any permit or certificate of registration issued as hereinafter provided.

(g)     It shall be unlawful for the person registering or applying, or the agents or employees thereof, to solicit funds or distribute handbills for a purpose other than that set out in the registration statement or application upon which the certificate of registration or permit was issued.

(h)     It shall be unlawful for any person who shall solicit funds or distribute handbills in the town to represent that the issuance of a certificate of registration or permit by the town constitutes an endorsement or approval of the solicitation or distribution by the town or its officers or employees.

(i)     It shall be unlawful for any person to distribute or cause to be distributed, deposited, placed, thrown, cast, scattered, handed out or circulated any handbill in or upon any premises which are temporarily or continuously uninhabited or vacant.

(j)     It shall be unlawful for any person to distribute or cause to be distributed, deposited, placed, thrown, cast, scattered, handed out or circulated any handbill upon any premises which are inhabited and not otherwise posted as provided for in subsection (k) below, except by:

(1)     Handing or transmitting such handbill directly to the owner, occupant, or any other person then present in or upon such premises; or

(2)     Placing or depositing the handbill in a secure manner to prevent such handbill from being blown or drifting about the premises, except that mailboxes may not be used when prohibited by federal postal laws or regulations.

(k)     It shall be unlawful for any person to distribute or cause to be distributed, deposited, placed, thrown, cast, scattered, handed out or circulated any handbill upon any premises if requested not to do so by the owner, occupant, or any other person then present in or upon such premises, or if there is placed on such premises, in a conspicuous place upon or near the main entrance to the residence, a weatherproof card, not less than three (3) inches by four (4) inches in size bearing the words “no trespassing,” “no peddlers,” “no advertisements,” “no solicitation,” no handbills,” or any similar notice indicating in any manner that the occupants of such premises do not desire to be molested or to have their right of privacy disturbed, or to have any such handbill left upon such premises. The letters on such cards shall be not less than two-thirds (2/3) of an inch in height.

(l)     It shall be unlawful for any person to distribute or cause to be distributed, deposited, placed, thrown, cast, scattered, handed out or circulated any handbill in any place, under any circumstances, which does not have printed on the cover, front or back thereof, the name, address and telephone number of the handbill sponsor who caused the same to be distributed; provided, however, that in the case of a fictitious person or club, in addition to such fictitious name, the true names and addresses of the owners, managers, or agents for the fictitious person or club sponsoring such handbill shall also appear thereon.

(Ordinance 02-04, sec. 3, adopted 2/12/02)

   Sec. 4.03.004     Penalty for violation

Any person, firm, corporation or business entity violating this article shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined as provided in section 1.01.009 of this code. Each continuing day's violation under this article shall constitute a separate offense. The penal provisions imposed under this section shall not preclude the town from filing suit to enjoin the violation. The town retains all legal rights and remedies available to it pursuant to local, state and federal law. (Ordinance 02-04, sec. 25, adopted 2/12/02)

   Sec. 4.03.005     Supervision of child solicitors

It shall be unlawful for any person to use children thirteen (13) years of age or less for any type of solicitation or handbill distribution purposes unless the children are actively supervised by an adult individual at least eighteen (18) years of age, who has obtained the permit or certificate of registration required by this article, or is the agent of the individual who obtained the permit or certificate of registration. In all cases the supervising adult shall be within one hundred (100) yards of the child solicitor. (Ordinance 02-04, sec. 4, adopted 2/12/02)

   Sec. 4.03.006     Permit or certificate of registration–Grounds for denial or revocation

Failure to comply with any of the provisions of this article shall constitute grounds for denial or revocation of any permit or certificate of registration sought to be issued or issued in accordance with the provisions of this article. (Ordinance 02-04, sec. 5, adopted 2/12/02)

   Sec. 4.03.007     Same–Appeal from denial or revocation

Should an applicant or registrant be denied a permit or certificate of registration, or have a permit or certificate of registration revoked, he/she may appeal that action to the town administrator by submitting a letter within ten (10) days of the denial or revocation. The town administrator may review the appeal at a staff level and shall have the authority to reject the action complained of and order that the permit or certificate of registration be granted or reinstated. However, should the town administrator uphold the denial or revocation, he/she shall schedule a hearing before the town council at a regular or special meeting within thirty (30) days of the appeal request. The town council shall render a decision on the appeal within seven (7) days of the date of the hearing. Such hearing shall be an administrative hearing and adherence to formal rules of evidence shall not be required. The decision of the town council shall be final. (Ordinance 02-04, sec. 6, adopted 2/12/02)

   Sec. 4.03.008     Sale of merchandise on public right-of-way

It shall be unlawful for any person to peddle, solicit, sell, offer for sale, or exhibit for sale any merchandise upon any public sidewalk, street, street right-of-way, parkway, or other public right-of-way. (Ordinance 02-04, sec. 7, adopted 2/12/02)

   Sec. 4.03.009     Affirmative defense and exemption

(a)     It shall be an affirmative defense to prosecution under this article if the person is occupying the public right-of-way for the purpose of selling newspapers or publications of other printed material which deal with the dissemination of information or opinion; however, this defense is not available if said act occurred upon the paved surface or shoulder of any public street, highway or road.

(b)     The provisions of this article shall not apply to:

(1)     The regular delivery of newspapers or magazines or other items which have been subscribed to by the persons receiving them or by occupants of the premises to which they are delivered;

(2)     The interruption of service notices by utility companies;

(3)     The distribution of mail by the United States government; and

(4)     The service of any lien foreclosure or governmental notices of any character distributed by the town or any other governmental entity.

(Ordinance 02-04, sec. 8, adopted 2/12/02)

   Sec. 4.03.010     Exhibiting card prohibiting solicitors and handbill distributors

(a)     A person desiring that no merchant or other person engage in handbill distribution or a home solicitation at his/her premises shall exhibit, in a conspicuous place upon or near the main entrance to the premises, a weatherproof card, not less than three (3) inches by four (4) inches in size bearing the words “no trespassing,” “no peddlers,” “no advertisements,” “no solicitation,” “no handbills,” or any similar notice indicating in any manner that the occupants of such premises do not desire to be molested or to have their right of privacy disturbed, or to have any such handbill left upon the premises. The letters on such cards shall be not less than two-thirds (2/3) of an inch in height.

(b)     Every person upon going onto any premises shall first examine the premises to determine if any notice prohibiting solicitation or handbill distribution is exhibited upon or near the main entrance to the premises. If notice prohibiting soliciting or handbill distribution is exhibited, the person shall immediately depart from the premises without distributing, placing, or depositing any handbill or disturbing the occupant, unless the visit is the result of a request made by the occupant.

(c)     No person shall go upon any 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 of the premises, for the purpose of securing an audience with the occupant and engaging in or attempting to engage in a solicitation or distribution transaction, if a card, as described in this section, is exhibited in a conspicuous place upon or near the main entrance to the premises, unless the visit is the result of a request made by the occupant.

(d)     No person, other than the owner or occupant of the premises, shall remove, deface, or render illegible a card placed by the occupant pursuant to this section.

(e)     Any merchant who has gained entrance to a premises, or audience with the occupant, whether invited or not, shall immediately depart from the premises without disturbing the occupant further when requested to leave by the occupant.

(Ordinance 02-04, sec. 9, adopted 2/12/02)

   Secs. 4.03.011–4.03.040     Reserved

   Division 2. Charitable Solicitation

   Sec. 4.03.041     Exceptions

The following are exceptions from the operation of this division:

(1)     The solicitation of funds for charitable purposes by any organization or association from its members.

(2)     The solicitation of funds for charitable purposes by a person when such solicitation occurs on premises owned or controlled by the person soliciting funds or with the permission of the person who owns or controls the premises, when previously invited to the premises for the solicitation.

(3)     The issuance of any announcement or advertisement that charitable solicitation will occur or which announces or advertises an event at which unannounced charitable solicitation will occur.

(Ordinance 02-04, sec. 10, adopted 2/12/02)

   Sec. 4.03.042     Registration statement

(a)     All persons desiring to solicit funds for charitable purposes in the town shall file with the town's police department a registration statement, on forms provided by the town, containing the following information:

(1)     The name of the person registering and desiring to solicit funds for charitable purposes.

(2)     Whether the person registering is a natural person, partnership, corporation or association, and:

(A)     If a natural person, the business or residence address and telephone number must be given.

(B)     If a partnership, the names of all partners and the principal business address and telephone number of the partnership and the address and telephone number of each partner must be given.

(C)     If a corporation, the person registering must:

(i)     State whether it is organized under the laws of this state or is a foreign corporation;

(ii)     Show the mailing address and telephone number of the principal place of business;

(iii)     Show the mailing address, business location, telephone number and name of the individual in charge of the town office of such corporation, if any;

(iv)     State the names of all officers and directors or trustees of such corporation; and

(v)     If a foreign corporation, state the place of incorporation.

(D)     If an association, the registration statement must:

(i)     Show the association's principal business address, and telephone number, if any;

(ii)     Show names and principal business or residence addresses and telephone numbers of all members of the association unless they exceed ten (10) in number, in which case the application shall so state and the person registering may alternatively list the names of principal business or residence addresses and telephone numbers of the officers and directors or trustees of the association; and

(iii)     If the association is part of a multistate organization or association, the mailing address and business location of its central office shall be given, in addition to the mailing address and business location of its local office.

(3)     The names, mailing addresses and telephone numbers of all individuals who will be in direct charge or control of the solicitation of funds.

(4)     The time period within which the solicitation of funds is to be made, giving the date of the beginning of solicitation and its concluding date.

(5)     A description of the methods and means by which the solicitation of funds is to be accomplished.

(6)     Approved documentation of the nonprofit status of the applicant to justify the solicitation to be for charitable purposes.

(7)     A statement to the effect that if a certificate of registration is granted, such certificate will not be used or represented to be an endorsement or approval by the town or any of its officers or employees.

(8)     Each person registering shall provide proof of identification through submission of a valid driver's license or other valid/official photo ID.

(9)     Any other information which the town deems necessary for the administration of this division.

(b)     The registration statement must be signed by the applicant if the person registering is an individual; if the applicant registering is a partnership, by the partner charged with disbursing the funds solicited; if the applicant registering is a corporation or an association, by its officer charged with disbursing the funds solicited. The individual signing the registration statement shall sign the statement and swear before an officer authorized to administer oaths that he/she carefully read the registration statement and that all the information contained therein is true and correct.

(c)     Information provided by applicant in accordance with the provisions of this division shall be subject to verification by the town's police department. Such registration statement shall also be satisfactory written proof of the applicant's authority to represent the partnership, corporation, association or business entity.

(Ordinance 02-04, sec. 11, adopted 2/12/02)

   Sec. 4.03.043     Registration fee

Every registration statement shall be accompanied by a nonrefundable registration fee of twenty-five dollars ($25.00) to compensate the town for the cost of administering this article, and such fee will not be refunded if a certificate of registration is not issued. No certificate of registration provided for by this article shall be issued until such fee has been paid by the applicant registering. However, such registration fee of twenty-five dollars ($25.00) shall not be required of a duly authorized, nonprofit, charitable organization registered as such with the secretary of state for the state. Proof of such registration status must be provided to the town. (Ordinance 02-04, sec. 12, adopted 2/12/02)

   Sec. 4.03.044     Certificate of registration issuance, duration and form

(a)     After review of the registration statement to determine its compliance with section 4.03.043 above, and within ten (10) business days of the receipt of the registration statement, unless it is determined that the applicant has provided false or incomplete information on its application, the town police department shall either issue a certificate of registration or notify the person registering that the registration statement does not comply with the requirements of section 4.03.043 above, and specifically point out what information or explanation has not been furnished that is required before a certificate of registration can be issued.

(b)     Every certificate of registration issued by the town shall expire at the termination of the solicitation period specified in the registration statement or one (1) year from the date of issuance, whichever is less.

(c)     The town shall prescribe the form of the certificate of registration. Each such certificate of registration shall be printed in black and the following shall be printed thereon: “The issuance of this certificate of registration is not an endorsement by the Town of Prosper or any of its officers or employees.” Each certificate of registration shall bear a registration number which is the same as the file containing the registration statement filed by the registrant.

(Ordinance 02-04, sec. 13, adopted 2/12/02)

   Sec. 4.03.045     Solicitor's identification

Each solicitor shall carry with him/her and produce upon request the following authorization and identification:

(1)     Proof of nonprofit status or authorization to represent the charitable organization;

(2)     A copy of the certificate of registration issued by the town; and

(3)     A valid driver's license or other valid/official photo ID.

(Ordinance 02-04, sec. 14, adopted 2/12/02)

   Sec. 4.03.046     Public disclosure

All registration statements, whether or not a certificate of registration has been issued, shall be a public record and shall be available for inspection by members of the public during regular business hours, and copies may be obtained at cost. (Ordinance 02-04, sec. 15, adopted 2/12/02)

   Sec. 4.03.047     Charitable solicitation on public rights-of-way

Persons holding certificates of registration issued under the provisions of this division may conduct charitable solicitation within and upon public rights-of-way within the town subject to the following:

(1)     No such charitable solicitations shall be conducted upon or within the right-of-way of any street or road designated by the state as a state highway or farm-to-market road.

(2)     Charitable solicitations within and upon public rights-of-way within the town shall be conducted only during hours of daylight and shall be conducted no more than one (1) consecutive twenty-four-hour period each year per organization.

(3)     No person younger than eighteen (18) years of age shall conduct any solicitation within and upon public rights-of-way within the town.

(4)     Registrants for charitable solicitation who contemplate conducting any solicitation within and upon public rights-of-way shall, prior to conducting any such solicitation, furnish the town with a certificate of insurance showing the town as an additional insured.

(5)     All organizations and persons conducting charitable solicitations within and upon public rights-of-way shall execute a waiver of liability in favor of the town on a form prepared by the town.

(6)     Each organization conducting charitable solicitation within and upon public rights-of-way shall designate a person to be in charge of and responsible for each intersection and/or portion of public right-of-way upon which such solicitation is to be conducted.

(7)     All persons conducting such solicitation within and upon public rights-of-way shall, at all times during which the solicitation is being conducted, wear traffic safety vests.

(Ordinance 02-04, sec. 16, adopted 2/12/02)

   Secs. 4.03.048–4.03.080     Reserved

   Division 3. Noncharitable Solicitation and Handbill Distribution

   Sec. 4.03.081     Exception

The provisions of this division shall not apply to a person engaged in charitable solicitation and meeting one of the exceptions in section 4.03.041 or holding a certification of registration as provided for in division 2 of this article. (Ordinance 02-04, sec. 17, adopted 2/12/02)

   Sec. 4.03.082     Permit application

(a)     Any person desiring to make home solicitation transactions or distribute handbills within the town shall file a written application for a permit to do so with the town police department, which application shall show:

(1)     The name of the person applying and desiring to make home solicitations or distribute handbills.

(2)     The name of the handbill sponsor if the permit applied for is for distribution of handbills.

(3)     Whether the person applying is a natural person, partnership, corporation or association, and:

(A)     If a natural person, the business or residence address and telephone number must be given.

(B)     If a partnership, the names of all partners and the principal business address and telephone number of the partnership and the address and telephone number of each partner must be given.

(C)     If a corporation, the person applying must:

(i)     State whether it is organized under the laws of this state or is a foreign corporation;

(ii)     Show the mailing address and telephone number of the principal place of business;

(iii)     Show the mailing address, business location, telephone number and name of the individual in charge of the town office of such corporation, if any;

(iv)     State the names of all officers and directors or trustees of such corporation; and

(v)     If a foreign corporation, state the place of incorporation.

(D)     If an association, the application must:

(i)     Show the association's principal business address, and telephone number, if any;

(ii)     Show names and principal business or residence addresses and telephone numbers of all members of the association unless they exceed ten (10) in number, in which case the application shall so state and the person registering may alternatively list the names of principal business or residence addresses and telephone numbers of the officers and directors or trustees of the association; and

(iii)     If the association is part of a multistate organization or association, the mailing address and business location of its central office shall be given, in addition to the mailing address and business location of its local office.

(4)     The names, mailing addresses and telephone numbers of all individuals who will be in direct charge or control of the solicitation of funds or distribution of handbills.

(5)     The time period within which the solicitation of funds or distribution of handbills is to be made, giving the date of the beginning of solicitation and its concluding date.

(6)     A description of the methods and means by which the solicitation of funds or distribution of handbills is to be accomplished.

(7)     The names of other communities in which the applicant has made home solicitations or distribution of handbills in the past six (6) months.

(8)     The nature of merchandise to be sold or offered for sale or the nature of the services to be furnished.

(9)     Whether such applicant, upon any such order so obtained, will demand, accept or receive payment or deposit of money in advance of final delivery.

(10)     Each applicant shall provide proof of identification through submission of a valid driver's license or other valid/official photo ID.

(11)     A statement to the effect that if a permit is granted, such permit will not be used or represented to be an endorsement or approval by the town or any of its officers or employees.

(12)     Any other information which the town deems necessary for the administration of this division.

(b)     The application must be signed by the applicant, if the person applying is an individual; if the applicant is a partnership, by the partner charged with disbursing the funds solicited or overseeing the handbill distribution; if the applicant is a corporation or an association, by its officer charged with disbursing the funds solicited or overseeing the handbill distribution. The individual signing the application shall sign the application and swear before an officer authorized to administer oaths that he/she carefully read the application and that all the information contained therein is true and correct.

(c)     The application must be accompanied by a copy of a valid state sales tax certificate, if applicable.

(d)     Information provided by the applicant in accordance with the provisions of this division shall be subject to verification by the police department. Such application shall also be satisfactory written proof of the individual's authority to represent the partnership, corporation, association or business entity.

(Ordinance 02-04, sec. 18, adopted 2/12/02)

   Sec. 4.03.083     Permit fee generally

Every application shall be accompanied by a nonrefundable application fee of twenty-five dollars ($25.00) to compensate the town for the cost of administering this division, and such fee will not be refunded if a permit is not issued. No permit provided for by this division shall be issued until such fee has been paid by the applicant. (Ordinance 02-04, sec. 19, adopted 2/12/02)

   Sec. 4.03.084     Permit fee exemptions

The permit fee required for the issuance of a permit under the provisions of this division shall not be required of the following:

(1)     Ordinary commercial travelers who sell or exhibit for sale goods, wares or merchandise to persons selling and dealing in the same within the town.

(2)     Persons offering for sale agricultural products, meats, poultry or other articles of food grown or produced by such persons.

(3)     Individuals operating under licenses granted by a state agency.

(Ordinance 02-04, sec. 20, adopted 2/12/02)

(4)     Persons engaged in interstate commerce. (Ordinance adopting Code)

   Sec. 4.03.085     Permit issuance, duration and form

(a)     After review of the application to determine its compliance with section 4.03.082 above, and within ten (10) business days of the receipt of the application, unless it is determined that the applicant has provided false or incomplete information on its application, the police department shall either issue a permit, or notify the person applying that the application does not comply with the requirements of section 4.03.082 above and specifically point out what information or explanation has not been furnished that is required before a permit can be issued

(b)     A permit requested under this division shall be issued for the length of time requested, not to exceed one (1) year.

(c)     The town shall prescribe the form of the permit. Each such permit shall be printed in black and the following shall be printed thereon: “The issuance of this permit is not an endorsement by the Town of Prosper or any of its officers or employees.” Each permit shall bear a permit number which is the same as the files containing the application filed by the applicant.

(Ordinance 02-04, sec. 21, adopted 2/12/02)

   Sec. 4.03.086     Identification

Each solicitor and handbill distributor shall carry with him/her and produce upon request the following information and identification:

(1)     Authorization to represent the permittee by holding a copy of the permit issued by the town;

(2)     A copy of the valid state sales tax certificate, if applicable; and

(3)     A valid driver's license or other valid/official photo ID.

(Ordinance 02-04, sec. 22, adopted 2/12/02)

   Sec. 4.03.087     Public disclosure

All applications, whether or not a permit has been issued, shall be public record and shall be available for inspection by members of the public during regular business hours, and copies may be obtained at cost. (Ordinance 02-04, sec. 23, adopted 2/12/02)

   Secs. 4.03.088–4.03.120     Reserved

   Division 4. Job Placement Activities

   Sec. 4.03.121     Prohibited in unauthorized locations

(a)     No person shall engage in or attempt to engage in job placement activities in an unauthorized location. This section shall not apply to job placement activities concerning employment or business for the owner or lawful tenants of the subject premises.

(b)     This section shall only apply to unauthorized locations where the location has a notice posted in both English and Spanish in a conspicuous place at each entrance and exit to such location not less than eighteen (18) by twenty-four (24) inches in size with lettering not less than one (1) inch in height and not to exceed, in total area, six (6) square feet. The notice shall be in substantially the following form: “It is unlawful to engage in job placement activities on these premises.”

(c)     This section shall override other ordinances regulating the placement of signage, temporary or permanent, for the purpose of solicitation or job placement in and throughout the town.

(Ordinance 02-04, sec. 24, adopted 2/12/02)

   ARTICLE 4.04 SEXUALLY ORIENTED BUSINESSES*

   Sec. 4.04.001     Purpose and findings

(a)     Purpose. It is the purpose of this article to regulate sexually oriented businesses in order to promote the health, safety, morals, and general welfare of the citizens of the town; to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the town; and to minimize the deleterious secondary effects of sexually oriented businesses both inside such businesses and outside in the surrounding communities. The provisions of this article have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials or performances, including sexually oriented materials or performances. Similarly, it is neither the intent nor effect of this article to restrict or deny access by adults to sexually oriented materials or performances protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this article to condone or legitimize the distribution of obscene material.

(b)     Findings. Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the council, and on findings incorporated in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), City of Erie v. Pap's A.M., TDA “Kandyland,” 529 U.S. 277 (2000), and City of Los Angeles v. Alameda Books, Inc. 121 S. Ct. 1223 (2001) and on studies in other communities including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and also on findings from the Texas City Attorneys Association's 2008 commissioned study and the report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota), the council finds:

(1)     Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are generally uncontrolled by the operators of the establishments. Further, mechanisms are needed to make the owners of these establishments responsible for the activities that occur on their premises.

(2)     Certain employees of some sexually oriented businesses defined in this article engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments.

(3)     Sexual acts, including, but not limited to, masturbation, and oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semiprivate booths or cubicles for viewing films, videos, or live sex shows.

(4)     Offering and providing such space encourages such activities, which creates unhealthy conditions, undesirable incidental effects and increases the possibility of the spread of communicable diseases.

(5)     Persons often frequent certain sexually oriented businesses for the purpose of engaging in sexual activity within the premises of such sexually oriented businesses.

(6)     Engaging in physical contact at a sexually oriented business is not a form of expression protected by the First Amendment.

(7)     At least 50 communicable diseases may be spread by activities that occur in sexually oriented businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, Non A and Non B amebiasis, salmonella infections and shigella infections.

(8)     From 1999 to 2002 there has been an increasing cumulative number of reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States - 25,174 in 1999, 25,522 in 2000, 25,643 in 2001, and 26,464 in 2002, compared to 1982 when only 600 cases were reported.

(9)     The number of cases of early (less than one year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982 and 45,200 through November of 1990.

(10)     The number of cases of gonorrhea in the United States reported annually remains at a high level, with over one-half million cases being reported in 1990.

(11)     The surgeon general of the United States in his report of October 22, 1986, has 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.

(12)     According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.

(13)     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 the operators of the facilities to self-regulate those activities and maintain those facilities.

(14)     Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view “adult” oriented films.

(15)     Numerous studies and reports have determined that areas around sexually oriented businesses experience increased criminal activity, including increased property crimes, violent crimes and sex crimes.

(16)     Numerous studies and reports have determined that retail-only sexually oriented business (business that sell or rent goods that can be viewed or consumed off site such as adult video stores, adult bookstores, and adult novelty stores) create a negative secondary effect of reducing surrounding property values as well as increasing crime in the surrounding area.

(17)     The findings noted in subsections numbered (1) through (16) above raise substantial governmental concerns.

(18)     Sexually oriented businesses have operational characteristics that should be reasonably regulated in order to protect those substantial governmental concerns.

(19)     A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the sexually oriented businesses. Further, such a licensing procedure will place an incentive on the operators to see that the sexually oriented business is operated in a manner consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of the town. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein.

(20)     Removal of doors on adult booths and requiring sufficient lighting and visibility by a manager or third party on premises with adult booths advances a substantial governmental interest in curbing the illegal and/or unsanitary sexual activity occurring therein.

(21)     Requiring licensees of sexually oriented businesses to keep information regarding current employees and certain past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments.

(22)     The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually oriented business, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid with the prevention of the spread of sexually transmitted diseases.

(23)     It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain employees who may engage in the conduct that this article is designed to prevent or who are likely to be witnesses to such activity.

(24)     The fact that an applicant for an adult use license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this article.

(25)     The barring of such individuals from the management of adult uses for a period of years serves as a deterrent to and prevents conduct which leads to the transmission of sexually transmitted diseases and sexually related crimes.

(26)     There is an increasing commercial exploitation of human sexuality by owners and operators of sexually oriented businesses where alcoholic beverages are served or offered for sale for consumption on the premises, or where alcoholic beverages are permitted to be consumed.

(27)     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 person as an inducement to such other persons to purchase alcoholic beverages or to consume alcoholic beverages while on the premises.

(28)     Such exploitation is further often accompanied by serious and dangerous criminal activity, such as prostitution, disorderly conduct, assaults, and the like.

(29)     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 in a sexually oriented business) threatens the preservation of property values of adjoining and adjacent properties and neighborhoods.

(30)     The general welfare, health, morals and safety of the citizens of the town will be promoted by the enactment of this article.

   Sec. 4.04.002     Definitions

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, slug-operated, or for any form of consideration, or electronically, electrically, or mechanically controlled still or motion-picture machines, projectors, video or laser disc players, or other image-producing devices are maintained to show images to five 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 audio or video center. Any place at which any of the following activities occurs:

(1)     Inbound or outbound telephone or other audio communications in which a topic or purpose of the communication between an occupant of the premises and a third party is the discussion or description of specified sexual activities, specified anatomical areas or is otherwise pornographic in nature for consideration;

(2)     Video or audio broadcasting, whether live, delayed, by film, by tape recording or otherwise, of specified sexual activities, specified anatomical areas or pornographic material for consideration; or

(3)     Filming, taping or otherwise creating video or audio recordings, including but not limited to, films, movies, videotapes, DVD's, audiotapes or compact discs, that are broadcast, sold, manufactured or distributed for consideration.

Adult bookstore, adult novelty store or adult video store. A commercial establishment which, as one of its principal 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, videocassettes or video reproductions, slides, or other visual representations that 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” or designed to depict “specified anatomical areas.”

Adult cabaret. A commercial establishment that regularly features the offering to customers of adult cabaret entertainment.

Adult cabaret entertainer. An employee of a sexually oriented business who engages in or performs adult cabaret entertainment.

Adult cabaret entertainment. Live entertainment that:

(1)     Is intended to provide sexual stimulation or sexual gratification; and

(2)     Is distinguished by or characterized by an emphasis on matter depicting, simulating, describing, or relating to “specified anatomical areas” or “specified sexual activities.”

Adult motel. A hotel, motel or similar commercial establishment that:

(1)     Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”; and 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 ten (10) hours; or

(3)     Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten (10) hours.

Adult motion-picture theater. A commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”

Applicant.

(1)     A person in whose name a license to operate a sexually oriented business will be issued;

(2)     Each individual who signs an application for a sexually oriented business license as required by section 4.04.004;

(3)     Each individual who is an officer of a sexually oriented business for which a license application is made under section 4.04.004, regardless of whether the individual's name or signature appears on the application;

(4)     Each individual who has a twenty percent (20%) or greater ownership interest in a sexually oriented business for which a license application is made under section 4.04.004, regardless of whether the individual's name or signature appears on the application; and

(5)     Each individual who exercises substantial de facto control over a sexually oriented business for which a license application is made under section 4.04.004, regardless of whether the individual's name or signature appears on the application.

Conviction. A conviction in a federal court or a court of any state or foreign nation or political subdivision of a state or foreign nation that has not been reversed, vacated, or pardoned. Conviction includes disposition of charges against a person by probation or deferred adjudication.

Designated operator. The person or persons identified in the license application, or in any supplement or amendment to the license application, as being a designated operator of the sexually oriented business.

Employee. A person who performs any service on the premises of a sexually oriented business on a full-time, part-time or contract basis, whether or not the person is denominated an employee, independent contractor, agent or otherwise, and whether or not said person is paid a salary, wage or other compensation by the operator of said business. Employee does not include a person exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises.

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 or to privately perform a striptease or “specified sexual activities” for another person.

Escort agency. A person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its business purposes for a fee, tip, or other consideration.

Establishment. When used as a verb, means and 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; or

(4)     The relocation of any sexually oriented business.

License. Refers to both a sexually oriented business license and a sexually oriented business employee license, unless otherwise specified.

Licensee.

(1)     A person in whose name a license to operate a sexually oriented business has been issued;

(2)     Each individual listed as an applicant on the application for a license;

(3)     Each individual who is an officer of a sexually oriented business for which a license has been issued under this article, regardless of whether the individual's name or signature appears on the license application;

(4)     Each individual who has a twenty percent (20%) or greater ownership interest in a sexually oriented business for which a license has been issued under this article, regardless of whether the individual's name or signature appears on the license application;

(5)     Each individual who exercises substantial de facto control over a sexually oriented business for which a license has been issued under this article, regardless of whether the individual's name or signature appears on the license application; and

(6)     In the case of an employee license, a person in whose name a license has been issued authorizing employment in a sexually oriented business.

Minor. A person under the age of 18 years.

Nude model studio. Any place where a person who appears nude, in a state of nudity, or who displays “specified anatomical areas” and is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. Nude model studio shall not include a proprietary school licensed by the state or a college, junior college or university supported entirely or in part by public taxation; a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or in a structure:

(1)     That has no sign visible from the exterior of the structure and no other advertising that indicates a nude or semi-nude person is available for viewing;

(2)     Where in order to participate in a class a student must enroll at least three days in advance of the class; and

(3)     Where no more than one nude or semi-nude model is on the premises at any one time.

Nudity; state of nudity; semi-nude; or semi-nude condition.

(1)     The appearance of a human bare buttock, anus, male genitals, female genitals, female breast, or pubic area; or

(2)     A state of dress that fails to completely and opaquely cover a human buttock, anus, male genitals, female genitals, or any part of the female breast or breasts that is situated below a point immediately above the top of the areola, or the showing of the covered male genitals in a discernibly aroused state.

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.

Operator. Any person who has managerial control of the on-site, day-to-day operations of a sexually oriented business, regardless of whether that person is a designated operator of the sexually oriented business.

Person. An individual, a group of two (2) or more individuals, proprietorship, partnership, corporation, limited liability company, association, or other legal entity.

Sexually oriented business.

(1)     An adult arcade, adult audio or video center, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion-picture theater, escort agency, nude model studio, 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.

(2)     A commercial establishment may have other business purposes that are not a sexually oriented business or related to a sexually oriented business. Such other business purposes will not serve to exempt such commercial establishments from being categorized as a sexually oriented business so long as one of its business purposes is a sexually oriented business.

Specified anatomical areas.

(1)     Any of the following, or any combination of the following, when less than completely and opaquely covered:

(A)     Any human genitals, pubic region, or pubic hair;

(B)     Any buttock; or

(C)     Any portion of the female breast or breasts that is situated below a point immediately above the top of the areola; or

(2)     The human male genitals in a discernibly aroused state, even if completely and opaquely covered.

Specified criminal activity.

(1)     Any of the following offenses as described in the Texas Penal Code:

(A)     Prostitution, including promotion of, aggravated promotion of, and compelling prostitution;

(B)     Obscenity;

(C)     Sale, distribution, or display of harmful material to a minor;

(D)     Sexual performance by a child;

(E)     Possession or distribution of child pornography;

(F)     Public lewdness;

(G)     Indecent exposure;

(H)     Indecency with a child;

(I)     Sexual assault or aggravated sexual assault;

(J)     Incest, solicitation of a child, or harboring a runaway child;

(K)     Engaging in organized criminal activity;

(L)     Gambling;

(M)     Offenses involving necrophilia or bestiality;

(N)     Distribution of a controlled substance;

(O)     Criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses; or

(P)     Any similar offenses to those described above under the criminal or penal statutes of the states, country, county or city; 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.

(2)     The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or a person residing with the applicant.

Specified sexual activities. Any of the following:

(1)     The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;

(2)     Sex acts, normal or perverted, actual or simulated, including but not limited to, intercourse, oral copulation, masturbation, or sodomy; or

(3)     Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (2) above.

Substantial enlargement of a sexually oriented business. The increase in floor areas occupied by the business by more than ten percent (10%), as the floor areas exist on: (1) the date the ordinance from which this article is derived takes effect; or (2) for any premises not used as a sexually oriented business when this article took effect, the date an application for a license to use the premises as a sexually oriented business is received by the town designating the floor area of the structure or proposed structure in which the sexually oriented business will be conducted, regardless of any subsequent changes in applicants, licensees, owners, or operators of the premises or the sexually oriented business.

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 or ownership interests which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or

(3)     The establishment of a trust, gift, or other similar legal device that 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.

VIP room. Any separate area, room, booth, cubicle, or other portion of the interior of an adult cabaret (excluding a restroom and excluding an area of which the entire interior is clearly and completely visible from the exterior of the area) to which one or more customers are allowed access or occupancy and other customers are excluded.

   Sec. 4.04.003     Classification

Sexually oriented businesses are classified as follows:

(1)     Adult arcades;

(2)     Adult audio or video center;

(3)     Adult bookstores, adult novelty stores, or adult video stores;

(4)     Adult cabarets;

(5)     Adult motels;

(6)     Adult motion-picture theaters;

(7)     Escort agencies; and

(8)     Nude model studios.

   Sec. 4.04.004     License required

(a)     It is unlawful and shall be a misdemeanor:

(1)     For any person to operate a sexually oriented business without a valid sexually oriented business license issued by the town pursuant to this article for the premises at which the sexually oriented business is operating.

(2)     For any person who operates a sexually oriented business to have an employee or employ a person, regardless of the nature of the employment relationship, who works for the sexually oriented business who is not licensed as a sexually oriented business employee by the town pursuant to this article.

(3)     For any person to obtain employment, regardless of the nature of the employment relationship, with a sexually oriented business without having secured a sexually oriented business employee license pursuant to this article.

(4)     For any person to fail to have a designated operator, having a sexually oriented business employee license, and who is responsible for ensuring compliance with this article, on-duty and working at any time the sexually oriented business is open for business.

(b)     Time for submission of application for sexually oriented business license and regulations related to the requirement of posting notice of intent to locate a sexually oriented business include the following:

(1)     Whenever a sign is posted at an intended location of a sexually oriented business in compliance with this article, and the intended location of the sexually oriented business is not in violation of the locational restrictions of this article at the time the sign is posted, the sexually oriented business will not be rendered nonconforming by any location or designation, subsequent to the posting of the sign, of a use listed in section 4.04.011(b)(1)–(8) within one thousand (1,000) feet of the posted location of the sexually oriented business.

(2)     The operator of a proposed sexually oriented business shall notify the town secretary's office (“town secretary”), by either certified mail or hand delivery, whenever a sign is posted at the intended location of the business in compliance with this article. The notification must be in the form of a sworn statement indicating the location of the sign and the date it was posted and must be received by the town secretary within five (5) days after the date of the sign's posting.

(3)     Subsection (b)(1) of this subsection does not apply if:

(A)     A complete sexually oriented business license application for the proposed sexually oriented business is not filed with the town within fifteen (15) days after the expiration of the 60-day posting requirement of this article; or

(B)     The notification requirements of subsection (b)(2) of this section are not met.

(4)     An applicant for a sexually oriented business license shall, not later than the sixtieth (60th) day before the date the application is filed, prominently post an outdoor sign at the location for which the license is sought stating the following:

(A)     “Potential Site for Sexually Oriented Business”;

(B)     Name of the applicant;

(C)     Applicant's business mailing address; and

(D)     Contact the town's planning and development services.

(5)     The sign shall also meet the following specifications:

(A)     The notice sign shall be sixteen (16) square feet;

(B)     The width of the notice sign shall be four (4) feet;

(C)     The notice sign shall be constructed in accordance with the town's design standards for zoning signs as set forth in article 3.14, as it exists or may be amended;

(D)     The notice sign(s) shall be placed in a location visible from all streets adjacent to the property (more than one (1) sign is required if the property is adjacent to more than one (1) street);

(E)     The notice sign(s) shall be located no greater than twenty (20) feet from the property line adjacent to the street, unless otherwise directed in writing by the town for safety or visibility reasons; and

(F)     The lettering on the notice sign(s) shall be of sufficient size to be legible by passersby on the street that the sign is facing.

(6)     The posting of a sign is not required prior to submitting an application for renewal of a valid sexually oriented business license when the sexually oriented business is presently operating at the location.

(c)     An application for a sexually oriented business license or a sexually oriented business employee license must be made on a form provided by the town and shall be sworn to as true and correct by the applicant.

(d)     All applicants must be qualified according to the provisions of this article. The application may request and the applicant shall provide such information (including fingerprints) as to enable the town to determine whether the applicant meets the qualifications established in this article.

(e)     Only a person who is an officer of or who has an ownership interest in a sexually oriented business may apply for a sexually oriented business license. An individual wishing to operate a sexually oriented business must sign the application as the applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual having the power to control or direct its operations, each individual who is an officer and/or each individual having a twenty percent (20%) or greater ownership interest in the sexually oriented business must sign the application for a license as an applicant. Such persons include, but are not limited to, general partners, officers, directors, and controlling shareholder(s) or owners. Each applicant must be qualified under this article and each applicant shall be considered a licensee if a license is granted.

(f)     The completed application for a sexually oriented business license shall be on a form to be provided by the town, contain the following information and be accompanied by the following documents:

(1)     If the applicant is:

(A)     An individual, the individual shall state his/her legal name and any aliases and submit proof that he/she is eighteen (18) years of age;

(B)     A partnership, the partnership shall state its complete name, the date of its formation, evidence that the partnership is in good standing under the laws of the state and if not a state partnership, its state of formation and the names and capacity of all partners and officers, whether the partnership is general, limited or otherwise, a copy of the partnership agreement or certificate of partnership, if any, and the official name and address to be used for process of service on the partnership; and/or

(C)     A corporation, limited liability company or other legal entity, the entity shall state its complete name, the date of its incorporation or formation, evidence that the entity is in good standing under the laws of the state and if not a state entity, its state of incorporation or formation, the names and capacity of all officers, directors and controlling stockholders or owners, and the name of the registered agent and the address of the registered office for service of process.

(2)     If the applicant intends to operate the sexually oriented business under a name other than that of the applicant; he or she must state:

(A)     The sexually oriented business's fictitious name; and

(B)     Submit the required registration and assumed name documents.

(3)     Whether the applicant, or a person residing with the applicant, has been convicted of a “specified criminal activity” as defined in this article, and, if so, the specified criminal activity involved, the date, place, and jurisdiction of each conviction, and the date of release from confinement, if applicable.

(4)     Whether the applicant, or a person residing with the applicant, has had a previous license under this article or other similar sexually oriented business ordinances from another city or county denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation, and whether the applicant or a person residing with the applicant has been a partner in a partnership or an officer, director or principal stockholder or owner of a corporation or other legal entity that is licensed under this article whose license has previously been denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revocation.

(5)     Whether the applicant or a person residing with the applicant holds any other licenses under this article or other similar sexually oriented business ordinance from another city or county and, if so, the names and locations of such other licensed businesses.

(6)     The classification of the sexually oriented business for which the applicant is seeking the license. A sexually oriented business may only have one classification to be eligible for a license.

(7)     The location of the proposed sexually oriented business, including a legal description of the property, street address, telephone number(s), if any, and the dates a notice sign was posted as required by this article.

(8)     The applicant's mailing address and residential address.

(9)     For each applicant(s): a copy of (i) a valid state driver's license with photo, or a valid state identification card with photo for any applicant who does not drive, plus (ii) an additional form of identification with a photo. The originals of the required forms of identification shall be presented to the town secretary or his/her designee, for inspection prior to the issuance of a license.

(10)     The applicant's driver's license number and state of issuance.

(11)     The application must also include the name, address, and telephone number of one or more designated operators who will be present on the premises of the sexually oriented business during all hours of operation. The applicant or licensee shall maintain a current list of designated operators with the town. Before a person may serve as a designated operator of the sexually oriented business, the person must be named in the license application, or a supplement or amendment to the license application, and not be disqualified to operate a sexually oriented business under this article.

(12)     The application must include a current official state criminal history report with a fingerprint card (issued within the preceding 12 months) for the applicant, the applicant's spouse, and each designated operator showing that they are not disqualified to operate a sexually oriented business under this article.

(13)     A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business, prepared and sealed by an architect or engineer, drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches.

(14)     A current certificate and straight-line drawing prepared within thirty (30) days prior to application by a registered land surveyor depicting the property lines and the structures containing any existing sexually oriented businesses within one thousand (1,000) feet of the property to be certified; the property lines of any established religious institution/synagogue, school, or public park or recreation area within one thousand (1,000) feet of the property to be certified. For purposes of this section, a use shall be considered existing or established if it is in existence or owned by such type of user at the time an application is submitted.

(15)     If an applicant wishes to operate a sexually oriented business, other than an adult motel, which shall exhibit on the premises, in a viewing room or booth of less than one hundred fifty (150) square feet of floor space, films, videocassettes, other video reproductions, or live entertainment which depict “specified sexual activities” or “specified anatomical areas,” then the applicant shall comply with the additional application requirements set forth in section 4.04.022.

(16)     A statement whether the applicant or a person with whom applicant is residing remains delinquent in payment to the town of taxes, fees, fines or penalties, after notice of amount due has been sent.

(g)     The completed application for a sexually oriented business employee license shall be on a form to be provided by the town, contain the following information and shall be accompanied by the following documents:

(1)     The applicant's name or any other name (including “stage” names) or aliases used by the individual;

(2)     Age, date, and place of birth;

(3)     Height, weight, hair and eye color;

(4)     Present residence address and telephone number;

(5)     Present business address and telephone number;

(6)     A copy of (i) a valid state driver's license with photo, or a valid state identification card with photo for any applicant who does not drive, plus (ii) an additional form of identification with a photo. The originals of the required forms of identification shall be presented to the town secretary, or his/her designee, for inspection prior to the issuance of a license;

(7)     Proof that the individual is at least eighteen (18) years of age;

(8)     A color photograph of the applicant clearly showing the applicant's face, and the applicant's fingerprints on a form provided by the town. Any fees for the photographs and fingerprints shall be paid by the applicant;

(9)     A statement detailing the license history of the applicant for the five (5) years immediately preceding the date of the filing of the application, including whether such applicant previously operated or is seeking to operate, in this or any other county, city, state, or country has ever had a license, permit, or authorization to do business denied, revoked, or suspended, or had any professional or vocational license or permit denied, revoked, or suspended. In the event of any such denial, revocation, or suspension, state the name, the name of the issuing or denying jurisdiction, and describe in full the reason for the denial, revocation, or suspension. A copy of any order of denial, revocation, or suspension shall be attached to the application;

(10)     A statement whether the applicant has been convicted of a “specified criminal activity” as defined in this article and, if so, the “specified criminal activity” involved, the date, place and jurisdiction of each conviction, and the date of release from confinement, if applicable; and

(11)     A statement whether the applicant or a person with whom applicant is residing remains delinquent in payment to the town of taxes, fees, fines or penalties, after notice of amount due has been sent.

(h)     All employees of a sexually oriented business must obtain a sexually oriented business employee license as required by this article. Any person who fails to timely submit an application for a license, as required by this subsection or any person operating sexually oriented business who allows an employee to continue working who is not in compliance with this subsection or who fails to receive a license shall be considered to be in violation of subsections (a)(1), (2) and/or (3).

   Sec. 4.04.005     Issuance of license

(a)     Upon the filing of said complete application for a sexually oriented business employee license, the town shall issue a temporary license, valid for thirty (30) days, to said applicant. The application shall then be referred to the appropriate town departments for an investigation to be made on such information as is contained on the application. The investigation shall be completed within twenty-five (25) days from the date the completed application was filed. Upon completion of the investigation, the town shall issue a license, not later than thirty (30) days from the date the completed application was filed, unless it is determined by a preponderance of the evidence that one or more of the following findings is true:

(1)     The 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;

(2)     The applicant is a minor;

(3)     The applicant, applicant's spouse, or designated operator has been convicted of a “specified criminal activity” as defined in this article;

(4)     The sexually oriented business employee license is to be used for employment in a business prohibited or unlicensed by local or state law, statute, rule or regulation, or prohibited by a particular provision of this article;

(5)     The applicant has had a sexually oriented business employee license revoked by the town within two (2) years of the date of the current application;

(6)     The license fee required by this article has not been paid; or

(7)     The applicant or a person with whom applicant is residing remains delinquent in payment to the town of taxes, fees, fines or penalties, after notice of amount due has been sent.

(b)     If the sexually oriented business employee license is denied, the temporary license previously issued is immediately deemed null and void. Denial, suspension, or revocation of a license issued pursuant to this subsection shall be subject to appeal as set forth in section 4.04.009.

(c)     Sexually oriented business licenses and sexually oriented business employee licenses granted pursuant to this section shall be subject to annual renewal upon the written application of the applicant and a finding by the town that the applicant has not been convicted of any specified criminal activity as defined in this article or committed any act during the existence of the previous license, which would be grounds to deny the initial license application. The renewal of the license shall be subject to the payment of the fee as set forth in section 4.04.006.

(d)     Upon the filing of said complete application for a sexually oriented business license, the application shall be referred to the appropriate town departments for an investigation to be made on such information as is contained on the application. The investigation shall be completed within twenty-five (25) days from the date the completed application was filed. Upon completion of the investigation, the town shall issue a license not later than thirty (30) days from the date the completed application was filed, unless it is determined by a preponderance of the evidence that one or more of the following findings is true:

(1)     An applicant is a minor;

(2)     An applicant or a person with whom applicant is residing remains delinquent in payment to the town of taxes, fees, fines or penalties, including but not limited to those related to the sexually oriented business or the property on which the sexually oriented business is located, after notice of amount due has been sent;

(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 a person with whom the applicant is residing has been denied a license by the town to operate a sexually oriented business within the preceding twelve (12) months or whose license to operate a sexually oriented business has been revoked within the preceding twelve (12) months;

(5)     An applicant or a person with whom the applicant is residing has been convicted of a “specified criminal activity” as defined in this article;

(6)     The premises to be used for the sexually oriented business have not been approved by the police department, fire department, planning and development services, health and food safety department; or other town department or applicable governmental agency as being in compliance with applicable laws and ordinances;

(7)     The license fee required by this article has not been paid; or

(8)     An applicant of the proposed establishment is in violation of or is not in compliance with any of the provisions of this article, the zoning ordinance (ZO), as defined herein, or any other applicable town ordinance, as each is existing or may be amended.

(e)     The sexually oriented business license, if granted, shall state on its face, the name of the person or persons to whom it is granted, the expiration date, the address of the sexually oriented business and the classification for which the license is issued pursuant to section 4.04.003. All sexually oriented business licenses shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that they may be easily read at any time the establishment is occupied or open for business. A sexually oriented business license is only valid on the premises for which it was issued. The sexually oriented business employee license, if granted, shall state on its face the name of the person to whom it is granted, the expiration date and the address of the applicant. The holder of a sexually oriented business employee license shall have the license available for inspection at the premises where they are working pursuant to the authority granted under the license. The holder of a sexually oriented business license shall be responsible for verifying that each employee holds a valid sexually oriented business employee license and for maintaining copies of such employee licenses on the premises. Licenses are not transferable.

(f)     A sexually oriented business license shall issue for only one classification as found in section 4.04.003.

   Sec. 4.04.006     Fees

(a)     Every application for a sexually oriented business license shall be accompanied by a fee as established in appendix A to this code. An application shall not be considered complete until the fee is paid.

(b)     In addition to the application and investigation fee required above, every application for renewal of a valid sexually oriented business license shall pay to the town an annual nonrefundable renewal fee as established in appendix A to this code. An application for renewal shall not be considered complete until the fee is paid.

(c)     Every application for a sexually oriented business employee license (whether for a new license or for renewal of an existing license) shall be accompanied by an annual fee as established in appendix A to this code. An application shall not be considered complete until the fee is paid.

(d)     All license applications and fees shall be submitted to the town secretary, or its designee.

   Sec. 4.04.007     Inspection

(a)     As a condition of licensing, an applicant, licensee, operator, employee, or any person in control of the premises shall permit representatives of the police department, health and food safety department, fire department, planning and development services, or other town departments or agencies to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law, at any time it is occupied or open for business and at other reasonable times upon request.

(b)     A person who operates a sexually oriented business or his agent or employee commits a misdemeanor if he refuses to permit such lawful inspection of the premises.

   Sec. 4.04.008     Expiration of license

(a)     Each sexually oriented business license and each sexually oriented business employee license shall expire one year from the date of issuance and may be renewed only by making application as provided in section 4.04.004. Application for renewal shall be made at least thirty (30) days before the expiration date, and when made less than thirty (30) days before the expiration date, the license will still expire on its expiration date.

(b)     When the town denies renewal of a license, the applicant shall not be issued a license for one (1) year from the date of denial. If, subsequent to denial, the town finds that the basis for denial of the renewal license has been corrected or abated, the applicant may be granted a license if at least ninety (90) days have elapsed since the date the denial became final.

   Sec. 4.04.009     Appeal

(a)     Any applicant for a license who is denied a license or the holder of any license that is suspended or revoked shall have the right to appeal such decision to the town manager or his/her designee. The appeal may be made by filing with the town manager or his/her designee within ten (10) days after notice of the denial, suspension or revocation has been received, a written statement setting forth fully the grounds for the appeal and the name, mailing address, facsimile number and telephone number to be used by the town to provide notice of the hearing as required by subsection (b) of section 4.04.021.

(b)     The town manager or his/her designee shall provide for a hearing on such appeal and shall notify, in writing, the appellant and town official who denied, suspended or revoked the license of the date and time of such hearing at least seven (7) days prior to the hearing, unless appellant agrees in writing to a shorter notice. Disputes of fact shall be decided on the basis of a preponderance of the evidence. For purposes of this section, notice by facsimile or hand delivery shall be considered delivered on the date of fax or delivery if faxed or delivered prior to 5:00 p.m., and if after 5:00 p.m. it shall be considered delivered on the next day; and notice by mail shall be deemed delivered on the second day following deposit in the United States mail.

(c)     The decision of the town manager or his/her designee shall be made no later than thirty (30) days after receipt of notice of the appeal. The decision of the town manager or his/her designee is final.

(d)     If the appellant being denied a license renewal holds an unrevoked, unsuspended license for the preceding year, he/she shall be permitted to continue to operate under the existing license until a final decision is made by the town manager or his/her designee under this section, unless the town determines from evidence or information presented to it that continued operation or work by the appellant would constitute a continuing and imminent threat to the public welfare; however, if said license expired under section 4.04.008 of this article prior to the denial of the renewal, the license shall be considered expired and the appellant may not use the expired license.

(e)     An appellant appealing the suspension or revocation of a license may continue to use such license until a final decision is made by the town manager or his/her designee, unless the town determines from evidence or information presented to it that continued operation or work by the appellant would constitute a continuing and imminent threat to the public welfare.

   Sec. 4.04.010     Transfer of license

A licensee commits a misdemeanor if the licensee transfers his/her license to another or operates a sexually oriented business under the authority of a license at any place other than the address designated in the application.

   Sec. 4.04.011     Location

(a)     A person commits a misdemeanor if that person operates or causes to be operated a sexually oriented business in any zoning district other than as allowed by the town's zoning ordinance No. 05-20, as it exists or may be amended (“ZO”).

(b)     A person commits a misdemeanor if the person operates or causes to be operated, within the town limits, a sexually oriented business within one thousand (1,000) feet of any of the following located within the town limits or its extraterritorial jurisdiction:

(1)     A church, synagogue, mosque, temple or structure that is used primarily for religious worship and related religious activities or real property owned by, or for the benefit of, a religious organization that intends to use the property for such purposes if such ownership has been registered with the town;

(2)     A public or private educational facility, including but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, colleges and universities; school includes the school grounds and related athletic or other facilities regularly visited by students;

(3)     A boundary of a residential district as defined in the ZO or an area designated as residential on the town's future land use plan;

(4)     A public park or recreational area which has been designated for park or recreational activities, including but not limited to, a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, wilderness areas, or other similar public land within the town which is under the control, operation, or management of a governmental entity;

(5)     The property line of a lot devoted to a residential use as defined in the ZO;

(6)     An entertainment business which is oriented primarily towards children or family entertainment;

(7)     A licensed premises, licensed pursuant to the Texas Alcoholic Beverage Code; or

(8)     A road designated as a major thoroughfare on the town's thoroughfare plan.

(c)     A person commits a misdemeanor if that person causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within one thousand (1,000) feet of another sexually oriented business.

(d)     A person commits a misdemeanor if that person causes or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, or the increase of floor area of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business.

(e)     For the purpose of subsection (b) of this section, measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the building or structure that is part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a use or edge of a district listed in subsection (b), as determined by the town building official or his/her designee. Presence of a city, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section.

(f)     For purposes of subsection (c) of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to the intervening structures or objects or political boundaries, from the closest exterior wall of the structure in which each business is located, as determined by the town building official or his/her designee.

(g)     Any sexually oriented business lawfully operating prior to the effective date of this article that is in violation of one or more of subsections (a) through (f) of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed one year, unless sooner terminated for any reason, including but not limited to, suspension or revocation of license, or voluntarily discontinued for a period of thirty (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 one thousand (1,000) feet of one another and otherwise in a permissible location, the sexually oriented business which was first lawfully established and continually operating at a particular location is the conforming use and the later established business(es) is/are nonconforming.

(h)     A sexually oriented business lawfully 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 use listed in subsection (b) of this section within one thousand (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 been revoked.

   Sec. 4.04.012     Additional regulations for escort agencies

A person commits an offense if the person acts as an escort or agrees to act as an escort for a minor.

   Sec. 4.04.013     Additional regulations for nude model studios

(a)     A minor commits an offense if the minor appears in a state of nudity in or on the premises of a nude model studio.

(b)     A person commits an offense if the person appears in a state of nudity, or knowingly allows another to appear in a state of nudity in an area of a nude model studio premises which can be viewed from the public right-of-way.

(c)     A nude model studio shall not place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception room open to the public.

(d)     An employee of a nude model studio, while exposing any specified anatomical areas, commits an offense if the employee touches a patron or clothing of a patron.

(e)     A patron at a nude model studio commits an offense if the patron touches an employee who is exposing any specified anatomical areas or touches the clothing of the employee.

(f)     A licensee, an operator, or an employee of a nude model 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.

   Sec. 4.04.014     Additional regulations for adult theaters and adult motion-picture theaters

(a)     A person commits an offense if he knowingly allows a minor to appear in a state of nudity in or on the premises of an adult motion-picture theater.

(b)     A minor commits an offense if the minor knowingly appears in a state of nudity in or on the premises of an adult motion-picture theater.

   Sec. 4.04.015     Additional regulations for adult motels

(a)     Evidence that a sleeping room in a hotel, motel, or a similar commercial establishment has been rented and vacated two or more times in a period of time that is less than ten (10) hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this article.

(b)     A person commits a misdemeanor if, as the person in control of a sleeping room in a hotel, motel, or similar commercial establishment that does not have a sexually oriented business license, he rents or subrents a sleeping room to a person and, within ten (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” means the act of permitting a room to be occupied for any form of consideration.

   Sec. 4.04.016     Enforcement

(a)     Whenever a person does an act that is prohibited, fails to perform an act that is required, or commits an act that is made an offense by any provision of this article or any other ordinance regulating sexually oriented businesses, the violation is punishable as provided by section 243.010(b) of the Texas Local Government Code, as amended, or other applicable law. A person violating a provision of this article is guilty of a separate offense for each day or part of a day during which the violation is committed, continued, or permitted.

(b)     Except where otherwise specified, a culpable mental state is not required for the commission of an offense under this article.

(c)     It is a defense to prosecution under this article 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; or a college, a junior college, or a university supported entirely or partly by governmental 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 has no sign 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 (3) days in advance of the class; and

(C)     Where no more than one nude model is on the premises at any one time.

   Sec. 4.04.017     Injunction

A person who operates or causes to be operated a sexually oriented business without a valid license or who violates this article is subject to a suit for injunction as well as prosecution for criminal violations.

   Sec. 4.04.018     Identification records

(a)     A person commits an offense if he operates a sexually oriented business without maintaining on the premises a current registration card or file that clearly and completely identifies all employees of the sexually oriented business as required by this section.

(b)     The registration card or file must contain the following information for each employee:

(1)     Full legal name.

(2)     All aliases or stage names.

(3)     Date of birth.

(4)     Race and gender.

(5)     Hair color, eye color, height, and weight.

(6)     Current residence address and telephone number, and, for designated operators and adult cabaret entertainers, all residence addresses during the 12-month period preceding commencement of an employment or contractual relationship with the sexually oriented business.

(7)     Legible copy of a valid driver's license or other government-issued personal identification card containing the employee's photograph and date of birth.

(8)     Date of commencement of employment or contractual relationship with the sexually oriented business.

(9)     Original color photograph with a full face view that accurately depicts the employee's appearance at the time the employee commenced an employment or contractual relationship with the sexually oriented business.

(c)     The licensee shall maintain a separate file on each designated operator (other than the licensee or the licensee's spouse) and on each adult cabaret entertainer, which contains, in addition to the information and documentation required in subsection (b), the person's current official state criminal history report with a fingerprint card issued within the preceding 12 months.

(d)     Not later than 90 days after employing or contracting with a designated operator or an adult cabaret entertainer, the licensee shall include in the file a current official criminal history report from any state other than Texas in which the designated operator or adult cabaret entertainer resided during the 12-month period preceding commencement of the employment or contractual relationship with the sexually oriented business.

(e)     A licensee commits an offense if he allows a designated operator to operate a sexually oriented business without having on file, and available for inspection by representatives of the police department, all records and information required by this section for the designated operator.

(f)     A licensee or an operator commits an offense if he allows an adult cabaret entertainer to perform adult cabaret entertainment at a sexually oriented business without having on file, and available for inspection by representatives of the police department, all records and information required by this section for the adult cabaret entertainer.

(g)     All records maintained on an employee in compliance with this section must be retained at the sexually oriented business for at least 90 days following the date of any voluntary or involuntary termination of the employee's employment or contract with the sexually oriented business.

(h)     A person who operates a sexually oriented business or the person's agent or employee shall allow immediate access to these records by representatives of the police department.

   Sec. 4.04.019     Suspension

(a)     The town shall suspend a license for a period not to exceed thirty (30) days if it determines that a licensee, an operator, or an employee has:

(1)     Violated or is not in compliance with any section of this article;

(2)     Refused to allow an inspection of the sexually oriented business premises as authorized by this article; or

(3)     Knowingly permitted gambling by any person on the sexually oriented business premises.

(b)     A sexually oriented business may not operate while the sexually oriented business license issued for that business is suspended and the holder of a sexually oriented business employee license may not work on the premises of a sexually oriented business while that employee's license is suspended, except as allowed by section 4.04.009.

   Sec. 4.04.020     Revocation

(a)     The town shall revoke a license if a cause of suspension in section 4.04.019 occurs and the license has been suspended within the preceding twelve (12) months.

(b)     The town shall revoke a license if it determines that one or more of the following is true:

(1)     A licensee gave false or misleading information in the material submitted during the application process;

(2)     A licensee or an operator has knowingly allowed possession, use, or sale of controlled substances on the premises or failed to report such activities to the police;

(3)     A licensee or an operator has knowingly allowed prostitution on the premises or failed to report such activities to the police;

(4)     A licensee or an operator knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended;

(5)     A licensee or a designated operator has been convicted of an offense listed under the definition “specified criminal activity” in section 4.04.002 for which the time period required in that definition has not elapsed;

(6)     A licensee or an operator has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sex act to occur in or on the licensed premises;

(7)     A licensee remains delinquent in payment to the town of taxes, fees, fines or penalties, including but not limited to those related to the sexually oriented business or the property on which the sexually oriented business is located, after notice of amount due has been sent;

(8)     A designated operator, having a sexually oriented business employee license, responsible for ensuring compliance with this article is not on-duty and working at any time the premises is open for business; or

(9)     A licensee or operator has violated section 4.04.026 of this article.

(c)     The fact that a conviction is being appealed has no effect on the revocation of the license.

(d)     Subsection (b)(6) 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 town revokes a license, the revocation shall continue for one (1) year, and the licensee shall not be issued a license for one (1) year from the date the revocation became effective. If, subsequent to revocation, the town finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least ninety (90) days have elapsed since the date the revocation became effective.

(f)     After denial of an application, or denial of a renewal of an application, or suspension or revocation of any license, the applicant or licensee may seek judicial review of such administrative action in any court of competent jurisdiction. The administrative action shall be promptly reviewed by the court.

   Sec. 4.04.021     Notice of denial of issuance; renewal; suspension or revocation; or surrender of license

(a)     If the town denies the issuance or renewal of a sexually oriented business license or sexually oriented business employee license, or suspends or revokes a sexually oriented business license or sexually oriented business employee license, the town shall deliver to the applicant or licensee, either by hand delivery or by certified mail, return receipt requested, written notice of the action, the basis of the action, and the right to an appeal.

(b)     If the town suspends or revokes a license or denies renewal of a license that was valid on the date the application for renewal was submitted, the town may not enforce such action before the 11th day after the date the written notice required by subsection (a) is delivered to the applicant or licensee.

(c)     After suspension or revocation of a license or denial of renewal of a license that was valid on the date the application for renewal was submitted, the applicant or licensee shall discontinue operating the sexually oriented business and surrender the license to the town by 11:59 p.m. of the 10th day after the date:

(1)     Notice required by subsection (a) is delivered to the applicant or licensee, if no appeal is filed under section 4.04.009 of this article; or

(2)     A final decision is issued by the town manager upholding the action by the town, if an appeal is filed under section 4.04.009 of this article.

(d)     For purposes of this article, written notice is deemed to be delivered:

(1)     On the date the notice is hand delivered to the applicant or licensee; or

(2)     Three days after the date the notice is placed in the United State mail with proper postage and properly addressed to the applicant or licensee at the address provided for the applicant or licensee in the most recent license application.

   Sec. 4.04.022     Additional regulations pertaining to exhibition of sexually explicit films, videos or live entertainment in viewing rooms

(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, booth, stall or partitioned portion of a room having less than one hundred fifty (150) square feet of floor space, a film, videocassette, live entertainment, or other video reproduction which depicts “specified sexual activities” or “specified anatomical areas,” (herein referred to as “viewing area”) 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 thirty-two (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 (6") inches. The town 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)     No alteration in the configuration or location of a manager's station may be made without the prior written approval of the town.

(3)     It is the duty of the licensee of the premises to ensure that at least one licensed employee is on duty and situated in each manager's station at all times that any patron is present inside the premises. 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.

(4)     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. No viewing area shall have a door, half-door, curtain, portal partition or other divider unless at least one side is completely open to an adjacent public room and a manager's station so that the area inside is visible to persons in the adjacent public room and a manager's station.

(5)     It shall be the duty of the licensee to ensure that the view area specified herein remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, 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) of this section.

(6)     No viewing area may be occupied by more than one person at any time.

(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 five (5.0) footcandles as measured at the floor level.

(8)     It shall be the duty of the licensee to ensure that the illumination described above is maintained at all times that any patron is present in the premises.

(9)     No licensee shall allow openings of any kind to exist between viewing areas.

(10)     No person shall make or attempt to make an opening of any kind between viewing areas. A solid metal barrier in which an opening cannot be easily made shall be used in the wall construction between viewing areas within forty eight (48") inches of the floor.

(11)     The licensee shall, during each business day, regularly inspect the walls between the viewing areas to determine if any openings or holes exist.

(12)     The licensee shall cause all floor coverings in viewing areas to be nonporous, easily cleanable surfaces, with no rugs or carpeting.

(13)     The licensee shall cause all wall surfaces and ceiling surfaces in viewing areas to be constructed of, or permanently covered by, nonporous, easily cleanable material. No wood, plywood, composition board or other porous material shall be used within forty eight (48") inches of the floor.

(b)     A person having a duty under subsection (a)(1)–(13) above commits a misdemeanor if he knowingly fails to fulfill that duty.

   Sec. 4.04.023     Additional regulations for adult cabarets

(a)     A licensee or an operator of an adult cabaret commits an offense if he employs, contracts with, or otherwise allows a person to act as an adult cabaret entertainer if the person has been convicted of an offense listed under the definition “specified criminal activity” as defined in section 4.04.002 for which the time period required in that definition has not elapsed.

(b)     An employee of an adult cabaret, while exposing any specified anatomical areas, commits an offense if the employee touches a customer or the clothing of a customer.

(c)     A customer at an adult cabaret commits an offense if the customer touches an employee who is exposing any specified anatomical areas or touches the clothing of the employee.

(d)     An adult cabaret may not contain any VIP rooms, except that any VIP room contained in a lawfully operating adult cabaret on the effective date of this article may continue in existence for one year from the effective date of this article provided that no adult cabaret entertainment occurs in the VIP room.

(e)     Except for a restroom or an area of which the entire interior is clearly and completely visible from the exterior of the area, no area of an adult cabaret that is accessible to a customer may be separated from any other customer-accessible area by a door, wall, curtain, drape, partition, or room divider of any kind. Nothing in this subsection precludes the installation or maintenance of any wall or column that is essential to the structural integrity of the building. Any adult cabaret lawfully operating on the effective date of this article must comply with the requirement of this subsection not later than one year from the effective date of this article.

   Sec. 4.04.024     Additional regulations concerning public nudity

(a)     It shall be a misdemeanor for a person who knowingly and intentionally, in a sexually oriented business, appears in a state of nudity or depicts specified “sexual activities.”

(b)     It shall be a misdemeanor for a person who knowingly or intentionally in a sexually oriented business appears in a state of nudity unless the person is an employee who, while in a state of nudity, shall be at least ten (10) feet from any patron or customer and on a stage at least two (2) feet from the floor level used by patrons.

(c)     It shall be a misdemeanor for an employee, while in a state of nudity in a sexually oriented business, to solicit any pay or gratuity from any patron or for any patron to pay or give any gratuity to any employee, while said employee is in a state of nudity in a sexually oriented business.

(d)     It shall be a misdemeanor for an employee, while in a state of nudity, to touch a patron or the clothing of a patron.

(e)     It shall be a misdemeanor for a patron to touch an employee in a state of nudity, or to touch the clothing of an employee in a state of nudity.

   Sec. 4.04.025     Prohibition against minors

(a)     A licensee or an operator commits an offense if he knowingly:

(1)     Allows a minor to enter the interior premises of a sexually oriented business;

(2)     Employs, contracts with, or otherwise engages or allows a minor to perform adult cabaret entertainment; or

(3)     Employs a minor in a sexually oriented business.

(b)     Knowledge on the part of the licensee or operator is presumed under subsection (a)(2) or (a)(3) above if identification records were not kept in accordance with the requirements of section 4.04.018, and properly kept records would have informed the licensee or operator of the minor's age.

(c)     An employee commits an offense if the employee knowingly:

(1)     Allows a minor to enter the interior premises of a sexually oriented business;

(2)     Employs, contracts with, or otherwise engages or allows a minor to perform adult cabaret entertainment; or

(3)     Employs a minor in a sexually oriented business.

(d)     A minor commits an offense if the minor knowingly enters the interior premises of a sexually oriented business.

   Sec. 4.04.026     Hours of operation

No sexually oriented business, except for an adult motel, may remain open at any time between the hours of midnight (12:00 a.m.) and ten o'clock (10:00) a.m. on weekdays and Saturdays, and midnight (12:00 a.m.) and noon (12:00 p.m.) on Sundays.

   Sec. 4.04.027     Alcoholic beverage sales and consumption prohibited

(a)     It shall be an offense for any person to maintain, own, or operate a sexually oriented business if they also serve or offer for sale or consumption on or off the premises, alcoholic beverages.

(b)     It shall be an offense for any person including employees and patrons, while on the premises of a sexually oriented business, to possess, serve, offer for sale or consume alcoholic beverages.

   Sec. 4.04.028     Signs and exterior portions

(a)     A person commits an offense if the person allows:

(1)     The merchandise or activities of the sexually oriented business to be visible from any point outside the premises;

(2)     Any exterior portion of the premises of a sexually oriented business to have flashing lights, or any words, lettering, photographs, silhouettes, drawings, graphics or pictorial representations of any manner except for the words or letters allowed by subsection (b) of this section;

(3)     Any sign to exist that does not comply with article 3.14 of this code, as it exists or may be amended; or

(4)     Any exterior portion of the premises of a sexually oriented business to be any color other than a single achromatic color, unless the following conditions are met:

(A)     The premises is part of a commercial multi-unit development; and

(B)     The exterior portions of each premises or unit in the commercial multi-unit development, including the exterior of the sexually oriented business, are the same color as one another or are colored in such a way as to be a component of the overall architectural style or pattern of the commercial multi-unit development.

(b)     Notwithstanding any provision of article 3.14 of this code, as it exists or may be amended, a sexually oriented business is limited to one (1) primary sign and one (1) secondary sign and no sign visible from any point outside the premises shall contain photographs, silhouettes, drawings, or pictorial representations of any manner, and may contain only:

(1)     The name of the establishment; and/or

(2)     One of the following phrases:

(A)     Adult arcade;

(B)     Adult audio center or adult video center;

(C)     Adult bookstore;

(D)     Adult novelty store;

(E)     Adult video stores;

(F)     Adult cabaret;

(G)     Adult motel;

(H)     Adult motion-picture theater;

(I)     Escort agency;

(J)     Nude modeling studio.

(c)     A person commits an offense by installing or causing to be installed any sign in violation of this section or by allowing the continued display of an unlawful sign.

(Ordinance 11-48 adopted 6/14/11)

   ARTICLE 4.05 ALARM SYSTEMS*

   Sec. 4.05.001     Definitions

The following definitions shall apply in the interpretation and enforcement of this article and shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Alarm permit. A certificate, license, permit, registration, or other form of permission that authorizes a person to operate an alarm system.

Alarm site. A premises or location serviced by an alarm system.

Alarm system. A device or system that transmits or relays a signal intended to summon emergency services of the town, as illustrated by, but not limited to, local alarms. Alarm system does not include:

(1)     An alarm installed on a vehicle unless installed at a permanent site;

(2)     An alarm designed to alert only the inhabitants of a premises; nor

(3)     An alarm installed upon premises occupied by the town.

Business burglar alarm notification. The notification intended to summon the police, which is initiated or triggered manually or by an alarm system designed to respond to a stimulus characteristic of an unauthorized intrusion into a place of business.

Director. The chief of police or fire chief, or their respective authorized representatives.

Emergency medical assistance alarm. An alarm system which summons emergency medical assistance.

False burglar alarm notification. A burglar alarm notification to the police and occurs when the responding police officer finds no evidence of unauthorized intrusion or attempted unauthorized intrusion.

False emergency medical assistance alarm notification. An emergency medical assistance alarm notification to the communications center, when the responding public safety personnel find there is no evidence of need for medical assistance.

False fire alarm notification. A fire alarm notification to the fire department after which the responding fire personnel finds no evidence of fire.

False robbery alarm notification. A robbery alarm notification to the police, and the responding police officer finds no evidence of a robbery.

Fire alarm notification. Notification to summon the fire department initiated or triggered by smoke or fire or other stimulus characteristic of fire.

Local alarm. An alarm system that emits a signal at an alarm site that is audible or visible from the exterior of a structure and has as its primary purpose the summoning of aid from a Town department.

(Ordinance 11-49 adopted 7/26/11)

Monitoring. The process by which a monitoring company receives signals from an alarm system and relays an alarm dispatch request to the town for the purpose of summoning public safety personnel to the alarm site.

Monitoring company. A person in the business of providing monitoring services.

(Ordinance 17-64, sec. 2, adopted 9/12/17)

Person. An individual, corporation, partnership, association, organization or similar entity.

Residential burglar alarm notification. The notification intended to summon the police, which is initiated or triggered manually or by an alarm system designed to respond to a stimulus characteristic of unauthorized intrusion into a residence.

Robbery alarm notification. A notification by means of an alarm system designed to be purposely activated by a human who intended to summon the police when a robbery occurs.

Town manager. The town manager or his/her authorized representative and shall not be a police officer or a firefighter of the town.

   Sec. 4.05.002     Permit and fee required; application, duration, renewal, transferability and false statements

(a)     An annual, nonrefundable fee, as established in appendix A to this code, is required for each permit or renewal of a permit for a private residence. The permit is valid for a period of twelve (12) months from the date of issuance. An annual, nonrefundable fee, as established in appendix A to this code, is required for each permit or renewal of a permit for a place of business.

(b)     This fee may be paid at the time an application for permit is submitted, or the person may elect on the application to have the fee paid out over the course of the year on their town utility bill. A person shall make such election at the time they file an application for a permit, and such election shall continue in full force until person provides written notice to the town indicating otherwise. If a person elects to pay the fee on their town utility bill, upon receipt of payment for such bill, the town shall allocate payment in the following order: water, sewer, trash, alarm permit fee. In the event a person closes a town utility account, any unpaid portion of the annual, nonrefundable fee shall be included on the final utility bill.

(c)     A person commits an offense if he/she operates or causes to be operated an alarm system without first obtaining a permit from the director. A separate permit application is required for each alarm site and each type of alarm system.

(d)     Any person without an existing, valid permit for an alarm system on the effective date of this article must apply for a permit upon the earlier of:

(1)     Sixty (60) days of installation of the system; or

(2)     Sixty (60) days after the effective date of this article.

(e)     Upon receipt of the required fee and completed application form, the director shall issue a permit unless there is cause to believe the equipment responsible for initiating an alarm will not be maintained and operated in accordance with this article or the applicant will not comply with each provision of this article. The permit will be affixed in a location at the alarm site as proscribed by the director or his/her authorized representative.

(f)     Each permit application must contain the name, address and telephone number of the individual or alarm user representative who will be the permit holder and be responsible for the proper maintenance and operation of the alarm system and payment of fees or charges levied under this article.

(g)     An alarm permit is nontransferable. However, the individual designated to respond to an alarm or relay an alarm may be changed. A permit holder shall inform the director in writing of any changes that alter information listed on the permit application. No fee will be assessed for such changes.

(h)     Any false statement or misrepresentation of a material fact made by an applicant or person for the purpose of obtaining an alarm permit or renewal, or while making a change thereto, shall be sufficient cause for refusal to grant or suspension of a permit.

   Sec. 4.05.003     Other types of alarms

(a)     A person shall not install or maintain an alarm system except for the purpose of eliciting responses to burglaries, robberies, fires or medical emergencies unless specifically authorized by the director.

(b)     If innovations in alarm systems or other types of alarm devices adversely affect emergency services of the town, the director may promulgate other rules and regulations in order to protect the town's emergency services.

   Sec. 4.05.004     Service charges

(a)     If, within the previous twelve (12) month period, five (5) false burglar alarm notifications are emitted from an alarm site, the director shall assess the permit holder in control of that alarm site a fee for each subsequent false burglar alarm notification emitted from the site. The fee for a false burglar alarm under this subsection shall be as established in appendix A to this code.

(b)     The director shall assess a permit holder for each false robbery alarm notification emitted from the alarm site. The fee for each false robbery alarm shall be as established in appendix A to this code.

(c)     If, within the previous twelve (12) month period, two (2) false fire alarm notifications are emitted from an alarm site, the director shall assess the permit holder in control of that alarm site a fee for each subsequent false fire alarm notification emitted from the site. The fee for a false fire alarm under this subsection shall be as established in appendix A to this code.

(d)     If, within the previous twelve (12) month period, two (2) false emergency medical assistance alarm notifications are emitted from an alarm site, the director shall assess the permit holder in control of that alarm site a fee for each person subsequent emergency medical assistance alarm notification emitted from the site. The fee for a false emergency medical alarm under this subsection shall be as established in appendix A to this code.

(e)     A permit holder shall pay a fee assessed under this section within thirty (30) days after receipt of notice that it has been assessed.

(f)     The permit holder will be exempt from any fee charged for a false alarm notification which is later shown to have been, in the director's sole determination, justified or which was due to a natural or manmade catastrophe or other situation specifically exempted by the director.

   Sec. 4.05.005     Reporting of alarm systems

A permit holder shall not report his/her alarm signals through a relaying intermediary that:

(1)     Does not meet the requirements of this article and any rules and regulations promulgated by the director; and

(2)     Is not licensed by the state board of private investigators and private security agencies.

   Sec. 4.05.006     Proper alarm system operation and maintenance

A permit holder shall:

(1)     Cause an adjustment to be made to the sensory mechanism of his/her alarm system in order to suppress false indications of force so that the alarm system will not be activated by impulses due to:

(A)     Transient pressure changes in water pipes;

(B)     Flashes of light;

(C)     Wind noise caused by the rattling or vibrating of doors or windows;

(D)     Vehicular noise adjacent to the installation; or

(E)     Other forces unrelated to actual emergencies.

(2)     Maintain the premises containing an alarm system in a manner that ensures proper operation of the alarm system.

(3)     Comply with current underwriters laboratories restrictions or guidelines with reference to his/her alarm system or alarm equipment.

(4)     Adjust the mechanism so that an alarm signal will sound for not longer than fifteen (15) minutes after being activated.

(5)     Provide personnel, who will, within thirty (30) minutes after being notified, reset the alarm system and provide access to the premises. This shall not prevent public safety personnel from forcibly entering the structure when they reasonably believe that an emergency exists inside.

(6)     If the permit holder, or designee, fails to respond to the scene within thirty (30) minutes to reset the alarm system and provide access to the premises, a fee as established in appendix A to this code, in addition to the actual expenses incurred in securing the premises, will be charged to the permit holder. Failure of the permit holder to pay the assessed fee will result in suspension of the permit.

(Ordinance 11-49 adopted 7/26/11)

   Sec. 4.05.006.5     Monitoring procedures

Any monitoring company engaged in the business of monitoring alarm systems in the town shall:

(1)     Report alarm signals only using telephone numbers designated by the director;

(2)     Before requesting police response to an alarm signal, attempt to verify every alarm signal, except a duress, robbery, or panic alarm activation, with the owner/occupant of the alarm site at least twice unless secondary information is received that increases the potential validity of the alarm. Secondary information may include, but is not limited to:

(A)     Alarm monitors that provide further information that a crime is in progress or the alarm notification is valid (audio, video, etc.);

(B)     Witness reports that a crime has occurred or is in progress that corroborates the alarm notification, e.g., a citizen, monitoring company personnel or a private guard;

(C)     Multiple activations of different devices or zones at the same location, during the same incident, for example both the window alarm and a motion detector are activated inside the alarm site; and

(D)     Any other events or circumstances that indicate, in the director's sole opinion, that the alarm notification may be valid;

(3)     When reporting an alarm signal to the town, provide the alarm permit number and address of the alarm site from which the alarm notification originated;

(4)     Provide to town public safety personnel, concurrently with reporting the alarm notification, information indicating compliance with subsection (2) herein; and specifically information indicating any failure by the monitoring company to verify the alarm signal after at least two (2) attempts; and upon receipt of such information, public safety personnel shall respond; and

(5)     Communicate alarm notifications to the town in a manner determined by the director.

(Ordinance 17-64, sec. 3, adopted 9/12/17)

   Sec. 4.05.007     Manual reset required

A person in control of a local alarm or an alarm system that causes an alarm notification to be sent directly to the town shall adjust or cause the adjustment of the mechanism so that upon activation of the system, the system will transmit only one (1) alarm signal and will not transmit another alarm signal without first being manually reset.

   Sec. 4.05.008     Inspection

Upon reasonable notification, the director may inspect an alarm site and alarm system of a permit holder.

   Sec. 4.05.009     Suspension of permit, offense to operate and termination of response by the town

(a)     The director may suspend or refuse to renew an alarm system permit for failure to meet the standards set out in this article.

(b)     The director may suspend or refuse to renew an alarm permit if the director determines, in his/her sole discretion, that the system in question has a history of unreliability, which unreliability shall be presumed upon the occurrence in a twelve (12) month period of:

(1)     Ten (10) false burglar alarms;

(2)     Five (5) false robbery alarms;

(3)     Ten (10) false fire alarms; or

(4)     Ten (10) false medical emergency assistance alarms.

(c)     A suspension may be lifted or permit renewed upon a sufficient showing that the conditions which caused the false alarms have been corrected, and if the director determines that the alarm system is likely to be maintained and operated in a responsible manner in accordance with the provisions of this article.

(d)     A person commits an offense if he/she operates an alarm system during a period of suspension or after the director refuses to renew his/her permit.

(e)     Responses from the police and fire departments may be terminated to nonpermitted sites after notification to the owner has been made by regular and certified mail, return receipt requested.

(f)     Responses will not be terminated because of excessive false alarms to a site with a valid permit, if all fees are paid in full.

   Sec. 4.05.010     Appeal from denial or suspension or suspension of a permit

(a)     If the director refuses to issue or renew a permit, or suspends a permit, the director shall send to the applicant or permit holder by certified mail, return receipt requested, written notice of the director's action and a statement of the right to an appeal. The applicant or permit holder may appeal the decision of the director to the town manager by filing with the town manager a written request for a hearing, setting forth the reasons for the appeal, within ten (10) days after the receipt of the notice from the director. The filing of a request for an appeal hearing with the town manager stays an action of the director in suspending a permit until the town manager makes a final decision. If a request for an appeal hearing is not made within the ten (10) day period, the action of the director is final.

(b)     The town manager shall serve as hearing officer at an appeal hearing and consider evidence offered by any interested person. The formal rules of evidence do not apply at an appeal hearing, and the hearing officer shall make his/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, or the appeal shall be deemed granted. The hearing officer shall affirm, reverse or modify the action of the director, and his/her decision is final.

   Sec. 4.05.011     Indirect alarm reporting

(a)     A person who is engaged in the business of relaying alarm notifications to the town shall:

(1)     Send notification of an alarm to the town by a human operator;

(2)     Keep his/her business premises locked and secured at all times;

(3)     Allow an inspection of his/her business premises by the director at any time;

(4)     Report alarms only over a special telephone number, or numbers, designated by the director;

(5)     Send alarm notifications to the town in a manner and form determined by the director.

(b)     A person commits an offense if he/she engages in the business of relaying alarm notification in the town without complying fully with the items listed above.

   Sec. 4.05.012     Direct alarm reporting

It shall be unlawful for any person or business to operate or energize an alarm system or, alarm device, which activates an automatic dialing device, which sends a signal to the communications center, without the written approval of the director.

   Sec. 4.05.013     Protection of financial institutions

(a)     A financial institution required by applicable law to have an alarm system may install, with permission of the director, a signal line directly to the police department for the purpose of reporting burglaries and robberies. If such an installation is approved, all other requirements of this article must be met. The financial institution shall execute a letter of agreement with the town permitting the installation of all necessary equipment on an indicator panel monitored in the communications division of the police department. The installation shall be accomplished at the institution's expense.

(b)     The financial institution, at its expense, shall make arrangements to provide service for the alarm system on a twenty-four (24) hour basis, seven (7) days a week. In no event shall the town become liable for service charges for repairs and maintenance to the indicator panel monitor.

(c)     The financial institution shall pay a monthly fee for each indicator. The fee for monitoring alarms for financial institutions shall be as established in appendix A to this code. The director shall have the right, at reasonable times and upon oral notice, to inspect the alarm system at the alarm site and require necessary repairs or improvements. If the director finds that the alarm system continually fails to operate or be operated to his/her satisfaction, he/she may terminate the privilege to have equipment and indicators in the communications center of the police department and require prompt removal of same at the expense of the financial institution.

(d)     The financial institution may cancel its agreement with the town at any time by giving the town written notice through the director; whereupon such institution, at its sole expense, shall have its equipment and indicators promptly removed from the monitor panel in the communications center.

(e)     The director has the right to require any change, modernization or consolidation of alarm signaling equipment that he/she deems advisable. In no event shall the town become liable for such changes.

(f)     Instead of a direct line, a financial institution may choose to report burglaries and robberies by transmission through an alarm reporting service using a telephone number designated by the director.

   Sec. 4.05.014     Intentional activation unlawful

From and after the effective date of this article, it shall be unlawful for any person to intentionally activate or cause to be activated any alarm without the existence of an emergency situation and with the intent of causing a response by the town's public safety personnel.

   Sec. 4.05.015     Penalty for violation

(a)     Any person who operates an alarm system in violation of this article shall be deemed guilty of a misdemeanor and fined not in excess of five hundred ($500.00). Each day of violation shall constitute a separate and distinct offense.

(b)     A person commits an offense if he/she violates by commission or omission any provision of this article that imposes upon him a duty or responsibility.

(c)     In addition to prohibiting or requiring certain conduct of individuals, it is the intent of this article to hold a corporation, partnership, association, or other business entity criminally responsible for acts or omissions performed by an agent acting on behalf of the corporation, partnership, association, or business entity and within the scope of the agent's employment.

(d)     The penal provisions imposed under this article shall not preclude the town from filing suit to enjoin the violation. The town retains all legal rights and remedies available to it pursuant to local, state and federal law.

(Ordinance 11-49 adopted 7/26/11)

   ARTICLE 4.06 TOW SERVICES*

   Sec. 4.06.001     Policy

It is the policy of the town to provide for the protection of the public interest as it relates to the removal of disabled or abandoned vehicles on streets or public property to vehicle storage facilities without the consent of the vehicle owners or operators. To this end, this article provides for the regulation of incident management tow service, to be administered in a manner that protects the public health and safety and promotes the public convenience and necessity.

   Sec. 4.06.002     Definitions

In this article, the following words shall have the meanings ascribed to them below:

Accident. Any occurrence that renders a vehicle wrecked or disabled.

Chief of police. The chief of police of the town, or his designated representative.

Consent tow. The towing of a vehicle at the request of the owner or operator.

Disabled vehicle. A motor vehicle that has been rendered unsafe to be driven as the result of some occurrence, including, but not limited to mechanical failure or breakdown, fire or vandalism, or a motor vehicle that is in a safe driving condition but whose owner or operator is not present, able or permitted to drive so as to reasonably necessitate that the vehicle be removed by a wrecker.

Incident management tow. The towing of a vehicle without the prearranged knowledge and consent of the owner or operator of said vehicle. Examples include, but are not limited to, vehicles towed when the driver is incapacitated following an accident, vehicles towed when the driver has been arrested, vehicles removed from public property without pre-notification of the vehicle owner, and seizures.

Motor vehicle. Every vehicle which is self propelled.

Person. An individual, firm, partnership, association, corporation, company or organization of any kind.

Property owner. A person, or the person's agent or lessee, who holds legal title, deed, or right-of-occupancy to private property.

Street. Any public street, alley, road, right-of-way, or other public way within the corporate limits of the town. The term includes all paved and unpaved portions of the right-of-way.

Tow truck operator. A person engaged in the business of using a tow truck or wrecker to tow, winch or otherwise move a motor vehicle.

Tow truck. A vehicle designed to be used primarily for removing wrecked or disabled vehicles which is equipped with a mechanical device used to tow, winch, or otherwise move a vehicle, and which charges a fee for its services.

Town. The Town of Prosper, Texas.

Vehicle. A mechanical device in, upon or by which any person or property is or may be transported or drawn upon a public highway except devices moved by human power or used exclusively upon stationary rails or tracks.

Wrecked vehicle. A discarded, abandoned, junked, wrecked or worn out motor vehicle that is not in a condition to be lawfully operated on a public road.

   Sec. 4.06.003     Requirements

(a)     A person commits an offense if the person operates or employs another to drive, or operate any tow truck over any street in the town for the purpose of engaging in an incident management tow, except as provided by this article.

(b)     It is an affirmative defense to the prosecution of a violation of subsection (a) hereof that the person is engaging in one of the following:

(1)     The transportation of a vehicle by a nonresident tow truck operator from some point outside the town and traversing the town to some other destination outside the town;

(2)     The transportation of a vehicle by a tow truck operator at the request of the owner or operator of that vehicle; or

(3)     The transportation of a vehicle on the private property of another by a tow truck operator with the consent of the operator or owner of the vehicle or the owner of the private property.

   Sec. 4.06.004     Tow services agreement

(a)     The town shall have the right to contract with one or more tow truck operators for the towing of town-owned vehicles or for the towing or impoundment of any vehicle made necessary in the exercise of the town's police and governmental functions. Should the town contract with more than one tow truck operator, the companies shall be called on a rotation basis. If the tow truck operator that is called to respond to a tow and is unavailable, the next company on the list shall be called.

(b)     The town may call any tow service company or use any tow truck in cases where the tow truck operator is unable to respond as required by the contract, or when there exists an emergency situation or when the chief of police or the chief's authorized representative deems necessary. In all cases, a report will be forwarded to the chief of police describing the circumstances involving such use.

(Ordinance 17-22 adopted 3/28/17)

   ARTICLE 4.07 DRILLING AND MINING*

   Sec. 4.07.001     Definitions

For purposes of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning:

Drilling and/or mining. Any activity which is intended to produce, save or make available any oil, gas, sulphur, fissionable materials or other minerals in and under the land, and is illustrated by, but not limited to, the following:

(1)     Investigating;

(2)     Exploring;

(3)     Prospecting;

(4)     Drilling; and/or

(5)     Mining.

Person. A natural person (individual), corporation, company, association, partnership, firm, limited liability company, joint venture, joint stock company or association, and other such entity.

(Ordinance 01-15, sec. 2, adopted 8/7/01)

   Sec. 4.07.002     Violations prohibited

It shall be unlawful for any person to commit any drilling and/or mining in violation of this article and/or to permit any such violation of this article. (Ordinance 01-15, sec. 3, adopted 8/7/01)

   Sec. 4.07.003     Public nuisance

The presence of any drilling and/or mining within the town in violation of this article is hereby declared to be a common and public nuisance. (Ordinance 01-15, sec. 4, adopted 8/7/01)

   Sec. 4.07.004     Penalty

Any person, firm, corporation or business entity violating this article shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined as provided in section 1.01.009 of this code. Each continuing day's violation under this article shall constitute a separate offense. The penal provisions imposed under this article shall not preclude the town from filing suit to enjoin the violation. The town retains all legal rights and remedies available to it pursuant to local, state and federal law. (Ordinance 01-15, sec. 5, adopted 8/7/01)

   ARTICLE 4.08 CONSTRUCTION AND/OR DRILLING OF WATER WELLS*

   Sec. 4.08.001     Definitions

The following definitions shall apply in the interpretation and enforcement of this article and shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning.

Air gap. The unobstructed vertical distance through the free atmosphere between the lowest opening from any pipe or faucet conveying water to a tank, fixture, receptor, sink, or other assembly and the flood level rim of the receptacle. The vertical, physical separation must be at least twice the diameter of the water supply outlet, but never less than 1.0 in.

Approved water supply source. The town's water system.

Auxiliary water supply. Any water supply other than the town's approved water supply source, including water from another public water supply or from a natural source including, but not limited to, wells, cisterns, springs, rivers, streams, used waters, or industrial fluids.

Backflow. The reversal of flow of water or mixtures of water and other liquids, gases or other substances into the distribution pipes of a potable water supply from any sources other than an approved water supply source.

Backflow prevention assembly. An assembly which, when properly installed between the town's approved water supply system and at or near the point where the approved water supply source enters the premises. For the purposes of this article the only approved assembly shall be a reduced pressure backflow assembly (RPBA).

Backflow prevention assembly tester. An individual licensed in accordance with state commission on environmental quality (TCEQ) rules, as amended, for the purpose of testing backflow prevention assemblies.

Building official. The officer or other designated authority charged with the administration and enforcement of this article or a duly authorized representative of the town.

Contamination. An impairment of the quality of the public potable water supply or a private potable water supply by the introduction or admission of any foreign substance that degrades the quality and which creates an actual or potential hazard to the public health through poisoning or through the spread of disease by sewage, industrial fluids, or waste.

Cross-connection. A point in the plumbing system where the public water supply is connected directly, or has the potential of being connected, to a source of nonpotable substance that is not part of the potable water supply. Any actual or potential physical connection between a potable water line and any pipe, vessel or machine containing a nonpotable fluid, such that is it possible for the nonpotable fluid to enter into the potable water system by backflow. This connection may be temporary or permanent, potential or actual, indirect or direct.

Director of public works. The director of public works for the town or his or her designee.

Existing work. A water well or water system which had been installed prior to the effective date of this article.

Health hazard. Cross-connection, potential contamination hazard, or other situation involving any substance that can cause death, illness, and spread of disease or has a probability of causing such effects if introduced into the potable drinking water supply.

Nonpotable water. A water supply which has not been approved for human consumption by the town.

Person. Any individual, firm, partnership, association, corporation, company or organization of any kind.

Plumbing inspector. Any person hired by the town for the purpose of inspecting work and installation in connection with health and safety laws as provided in, or referred to in, this article. The plumbing inspector shall be licensed by the state board of plumbing examiners (TSBPE) in accordance with the Texas Plumbing License Law (Texas Occupation Code section 1301.001 et seq., as it exists or may be amended.)

Potable water. Any public water supply, which has been investigated and approved by the town as satisfactory for drinking, culinary and domestic purposes.

Premises or property. Any property real, improved or personal that is connected to the town-approved water supply source.

Premises isolation. The practice of protecting the potable water supply by installing a backflow prevention assembly at or near the point where water enters the premises. This protection does not provide backflow protection for personnel inside the premises.

Public sewer. A common sewer directly controlled by public authority.

Reduced pressure backflow assembly (RPBA). An assembly containing two independently acting approved check valves together with a hydraulically operating, mechanically independent pressure differential relief valve located between the check valves and at the same time below the first check valve. The unit includes properly located resilient-seated test cocks and two tightly-closing resilient-seated shutoff valves at each end of the assembly.

Sanitary sewer. A pipe which carries wastewater and excludes storm, surface water and groundwater.

Septic tank. A watertight receptacle which receives the discharge of a drainage system or part thereof, which is designed and constructed so as to separate solids from the liquid, digest organic matter through a period of detention, and allow the liquids to discharge into the soil outside of the tank through a drain field, disposal or perforated piping.

Service connection. The terminal end of a service connection from the public potable water system (i.e., where the water purveyor loses jurisdiction and sanitary control over the water at its point of delivery to the customer's water system). If a meter is installed at the end of the service connection, then the service connection shall mean the downstream end of the meter.

Testing or reporting deficiencies. Incomplete, or inaccurate backflow prevention assembly test results or reports filed with the town pursuant to this article, use of inaccurate gauges; or the use of improper operational certification methods.

Thermal expansion. Heated water that does not have any space to expand.

Town or Prosper. The Town of Prosper and its duly authorized representatives.

Town engineer. The person designated as the town engineer and registered as a professional engineer in the state or a consulting engineer providing authorized services to the town.

Water main. A water-distribution pipe for public or community use.

Water purveyor. The operator of a potable water system supplying at least 15 service connections or servicing at least 25 individuals at least 60 days out of the year.

Water wells. Bored wells, dug wells and driven wells developed into the underground soils, which are to produce water for private use. Water wells are prohibited unless approved under the provisions of this article.

(Ordinance 06-109, sec. 2, adopted 10/10/06)

   Sec. 4.08.002     Permits and licenses

It shall be unlawful for any person to construct, operate and/or drill a water well or water system in the town or its ETJ, as set out in this article, without having first obtained the necessary contractor registration and permit as provided for in this article. All workmanship and materials shall meet the requirements of this article in regard to the drilling, construction, location and operation of such wells and systems. The forms, plans and other information and documentation required to be provided under this article may be approved by the town engineer and building official or their designees only if all provisions of this article are complied with. (Ordinance 06-109, sec. 3, adopted 10/10/06)

   Sec. 4.08.003     Licensing requirements

Construction of water wells shall be performed only by those holding a valid water well drillers license issued by the state. The license number shall be displayed during construction at the site of the work. The number shall be clearly readable from the nearest traveled public roadway. Water well drillers must hold a current contractor registration with the town and be in good standing. In addition, the approved permit issued by the town shall be displayed during construction at the site of the work and remain on site until a final inspection is obtained. (Ordinance 06-109, sec. 4, adopted 10/10/06)

   Sec. 4.08.004     Permits, fees and inspection

(a)     When permit required. It shall be unlawful to construct a water well or to overhaul a water well without first securing a water well permit. “Overhaul” means work that is not considered routine maintenance.

(b)     When permit not required. Permits are not required for routine maintenance of pre-existing wells, as determined by the town engineer or director of public works or his or her designee. It is the well driller's responsibility to notify the town engineer or director of public works or his or her designee of routine maintenance so a determination may be made on whether or not a permit is required.

(c)     Permits not transferable. Each permit issued under this article shall be personal to the permittee. No such permit shall be assigned or transferred to another person, and no person shall permit another person to obtain a permit in his her name or permit any new well construction or overhaul work to be performed under his/her permit other than a person authorized to do the same.

(d)     False statement or bad faith. Any person who shall willfully make any false statement in order to obtain a permit shall be guilty of a misdemeanor and subject to the penalty provided herein. Bad faith or unreasonable delay in the performance of work under this article shall be deemed a sufficient reason for suspension of the permit of the well driller so offending and no further permit shall be issued until such act of bad faith or unreasonable delay has been corrected. Water well drillers in violation of any article governing contractor registration requirements may be suspended or have their registration revoked.

(e)     Issuance of permit. The building official, or his or her designated representative, shall issue all permits in accordance with the provisions and requirements of this article. Incomplete applications shall be rejected or denied. All applications for permits shall be on the approved and current form and provide the following information:

(1)     Company name, address and telephone number of the well driller;

(2)     Well driller's license number and town-assigned contractor registration number;

(3)     Name, address, legal description and telephone number of property owner;

(4)     Company name and town-assigned contractor registration number of electrical contractor;

(5)     Company name and town-assigned contractor registration number of plumbing contractor;

(6)     Company name and town-assigned contractor registration number of irrigation contractor (if applicable);

(7)     Company name and town-assigned contractor registration number of backflow prevention assembly tester;

(8)     A plan of the property that shows the location of the proposed water well, all buildings, septic tanks, drain fields and other significant structures. The plan shall also show the location of structures and adjacent property if within ten (10) feet of the property line. All setbacks and dimensions shall be shown to be in conformance with section 4.08.010 of this article;

(9)     Any other information deemed necessary by the town.

(f)     Duration of permits. Every permit issued under the provisions of this article shall expire ninety (90) days after the date issued. In every case where a permit is expired, a new permit shall be obtained before any work is resumed.

(g)     Permit and inspection fees. The permit and inspection fees provided in this article shall be paid to the town before the issuance of a permit and before any work is started. Fees shall not be collected prior to permit approval. The fees shall be as follows:

(1)     Water well drilling permit shall be sixty dollars ($60.00).

(2)     Electrical inspection fees, includes electrical underground and electrical final inspections, shall be sixty dollars ($60.00).

(3)     Plumbing inspection fees, includes plumbing rough (disconnect) and plumbing final (RPBA) inspections, shall be sixty dollars ($60.00).

(4)     Reinspection fees shall be in accordance with the town-approved fee schedule, as amended.

(5)     Whenever any work for which a permit is required by this article has been commenced or completed without first obtaining a permit, a special investigation shall be made before a permit may be issued for such work. An investigative fee, in addition to the permit fee, shall be collected whether or not a permit is then subsequently issued. The investigation fee shall be double the amount of the permit fee required by this article. The payment of such investigative fee shall not exempt any person from compliance with all provisions of this article nor from any penalty prescribed by law.

(h)     Inspections and tests.

(1)     The town engineer or building official or their designees shall have the right, at any time, to enter the property for the purpose of inspections to ensure compliance with this article. In addition, the town engineer or building official or their designees shall have the right to enter the property at any time in the future for the purpose of inspections to ensure that there are no cross-connections.

(2)     The original permit packet shall be located at the water meter at all times during construction. A 120v ground fault circuit interrupting (GFCI) receptacle shall be installed immediately adjacent to the well equipment to allow for maintenance work on the equipment or the use of a freeze protection device. Adequate provisions must be made to protect piping from freezing by insulation or heat or both on all water wells and RPBAs. A RPBA is the only approved backflow prevention assembly allowed on properties with water wells, located within the town, its ETJ or any other premises connected to the approved water supply source.

(3)     The RPBA is to be installed at or near the point where the approved water supply source enters the premises on the owner's side of the property line. For the purpose of this article the service connection shall mean where the approved water supply enters the premises.

(4)     The following inspections shall be required on all water wells drilled within the town or its ETJ:

(A)     Plumbing rough to verify the disconnection of the existing irrigation system from the approved water supply source (if applicable).

(B)     Plumbing final to determine the proper installation of the RPBA. The original backflow assembly test report, on a town-approved form, must be in the permit packet at time of inspection (if applicable).

(C)     A thermal expansion tank must be installed at the water heater by plumbing final. This can only be done by the state-licensed plumber listed on the water well application.

(D)     Electrical underground (EUG) to verify trench depth and proper wire is used (size and type).

(E)     Electrical final to verify disconnects are installed and appropriate panel box in place (weather tight).

(F)     Upon completion of the well, the well driller shall furnish the town engineer with a copy of the driller's report and a copy of the water analysis. Any well that is not completed shall be sealed and considered a plugged or an abandoned well in accordance with rules, regulations and statues of the state.

(G)     A backflow assembly test report, on a town-approved form, shall be submitted annually, within twelve months, from the last test. Only a state-licensed, town-registered, backflow prevention assembly tester (BPAT), shall perform the test.

(Ordinance 06-109, sec. 5, adopted 10/10/06)

   Sec. 4.08.005     Construction requirements

(a)     Casing. A casing of steel or other approved material shall be provided to prevent caving of the formations penetrated and also to ensure protection of water supply from contamination by water from shallow strata. The wall shall be cased from the bottom of the drilled hole to twenty four (24) inches above the finish grade or more if required to keep surface water from entering casing. The well casing shall be cemented in place and sealed to protect the underground water formation from potential contamination resulting from surface water or individual waste disposal systems (i.e. septic tanks).

(b)     Well seal. The annular space between the drilled hole and the well casing shall be sealed with concrete or grout for a depth of at least ten (10) feet above the water producing formation. The casing shall be covered at the ground with a concrete slab no less than twenty-four (24) inches by twenty-four (24) inches by twelve (12) inches. The top of the slab shall protrude six (6) inches above finished grade and shall be sloped away from the casing. The top of the casing shall be provided with a suitable well seal to prevent contamination of the well. If a vent is provided on the casing, it shall be equipped with an elbow turned downward and screened with a 16-mesh screen.

(c)     Disinfection of wells and equipment. Upon completion of the well, but before it is placed into service, the well and equipment shall be disinfected by the use of chlorine (powdered, tablet or solution).

(d)     Water samples. After the chlorine has been flushed, a sample of water shall be analyzed for purity. The well shall not be placed into service until the water has been tested and found to be suitable for human consumption.

(e)     Abandonment of wells. Permanently abandoned wells shall be filled with cement grout or concrete. Abandoned wells shall not be used for the disposal of wastewater, septic tank effluent or other wastes.

(f)     Screening. The water bearing formation shall be screened to control, among other similar conditions, the flow or production of sands and formation materials.

(g)     Compliance with state department of licensing and regulation (TDLR) rules and regulations. Permittee shall comply with any and all TDLR rules and regulations and other governing state statues.

(Ordinance 06-109, sec. 6, adopted 10/10/06)

   Sec. 4.08.006     Applicability of state regulations

The regulations of the TDLR and the Texas Water Well Drillers Act, as existing or as may be amended and as they pertain to the construction of water wells, shall be and are hereby incorporated into this article and must be strictly complied with. (Ordinance 06-109, sec. 7, adopted 10/10/06)

   Sec. 4.08.007     Domestic use

No more than one (1) household may be served by a single water well if the water is for use inside the house. (Ordinance 06-109, sec. 8, adopted 10/10/06)

   Sec. 4.08.008     Commercial use

It shall be unlawful for a commercial water well to be used for domestic (household) use or for consumption by the public. (Ordinance 06-109, sec. 9, adopted 10/10/06)

   Sec. 4.08.009     Irrigation use

Any irrigation water well must be constructed in accordance with the provisions of this article. No irrigation water well shall be used for domestic (potable water) use. No irrigation water well shall be shared without complying with the following requirements:

(1)     The owner of the water well, or proposed water well, shall furnish a notarized letter to the town that includes their name, address and legal description of the property. The letter shall include the names, addresses and legal descriptions of all properties wishing to tie on to the well. The letter shall state that the owner and all affected properties acknowledge and understand the well is for irrigation use only and not domestic (potable water) use.

(2)     All properties wishing to tie on to the well shall:

(A)     Hire a state-licensed, town-registered plumbing or irrigation contractor to obtain a plumbing permit for the installation of the RPBA. A state-licensed, town-registered backflow prevention assembly tester will have to be declared on the permit at time of application.

(B)     Plumbing permit and inspection fees shall be sixty dollars ($60.00). All requirements related to plumbing in section 4.08.005 of this article shall apply.

(C)     Plumbing permits shall expire ninety (90) days after the date issued. In every case where a permit is expired, a new permit shall be obtained before any work is resumed.

(Ordinance 06-109, sec. 10, adopted 10/10/06)

   Sec. 4.08.010     Location

Water wells shall be constructed no closer to property lines or significant structures than the following distances:

(1)     Front property line: twenty-five (25) feet;

(2)     Side property lines: five (5) feet;

(3)     Rear property lines: ten (10) feet;

(4)     Buildings: ten (10) feet;

(5)     Power lines: thirty (30) feet;

(6)     Septic tanks and drain fields: one hundred fifty (150) feet;

(7)     Septic tanks and drain fields: fifty (50) feet; if well is cement encased;

(8)     Septic spray heads/soil absorption area: eighty (80) feet;

(9)     Barns and animal pens: one hundred fifty (150) feet; and

(10)     Permanent derricks and towers: no closer than forty (40) feet to side property lines.

(Ordinance 06-109, sec. 11, adopted 10/10/06)

   Sec. 4.08.011     Sewer charges

The town is required to charge for water discharges into the public sewer on the basis of actual quantity of water discharge into the sanitary sewer. The method of determining this quantity is based on estimates made from the water meter readings; therefore, when a water well is being used the following shall apply:

(1)     Water well used only for yard or irrigation watering and other uses not connected with the sanitary sewer: No change in sewer charges is required.

(2)     Residential water wells used in such a manner that all or a portion of the well water enters the public sewer: Sewer charge shall be based on a minimum of ten thousand (10,000) gallons a month discharged entering the sanitary sewer.

(3)     Water wells used for purposes other than residential use where all or a portion of the well water enters the public sewer: The person being charged for sewer has the following options:

(A)     Water being discharged into the sanitary sewer will be estimated by the town based on each individual case; or

(B)     A wastewater meter shall be installed and maintained by the town, but all costs incurred by the town will be charged to the person using the public sewer.

(Ordinance 06-109, sec. 12, adopted 10/10/06)

   Sec. 4.08.012     Cross connections

In addition to the required RPBA, there shall also be a physical separation of at least twelve (12) inches (air gap) between systems. (Ordinance 06-109, sec. 13, adopted 10/10/06)

   Sec. 4.08.013     Debris, etc. on public rights-of-way

There shall be no debris, dirty water, mud or any other refuse dumped and/or discharged onto public rights-of-way. The drilling operation of any well shall control and dispose of, among other things, all drilling, cuttings, mud and water so as not to create a mud pit or disposal operation at the well site. (Ordinance 06-109, sec. 14, adopted 10/10/06)

   Sec. 4.08.014     Penalty

Any person, firm, corporation or entity violating this article shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined a sum not exceeding two thousand dollars ($2,000.00) per day. Each continuing day's violation under this article shall constitute a separate offense. The penal provisions imposed under this article shall not preclude the town from filing suit to enjoin the violation. The town retains all legal rights and remedies available to it pursuant to local, state and federal law. (Ordinance 06-109, sec. 15, adopted 10/10/06)

   ARTICLE 4.09 SPECIAL EVENTS AND TEMPORARY OUTDOOR SEASONAL SALES

   Sec. 4.09.001     Definitions

For the purpose of this article, the following terms, phrases, words and their derivation shall have the meaning given below:

Ambient (background) sound pressure level. The all-encompassing sound associated with a given environment, being usually a composite of sounds from all sources, excluding the alleged offensive sound, at the location and approximate time at which a comparison with the alleged offensive sound is to be made.

Ambient light. The general character and overall level of illumination in a particular area.

Amplified sound. Music, speech or sound projected or transmitted by artificial means, including but not limited to, amplifiers, loud speakers, or any similar devices which emit sound distinctly discernible at a distance of more than one hundred feet (100') beyond the property line of the premises where the equipment is located.

Building official. The town's building official or his/her authorized designee.

Carnival. A temporary event that is characterized by, among other things, mechanical rides, games of skill or chance, entertainment or food.

Circus. A temporary entertainment event that is characterized by, among other things, the performance of acrobats, trained or exotic animals, or clowns.

Concession. A temporary food establishment where food is offered to the public that operates for a period of no more than fourteen (14) consecutive days in conjunction with a single circus, carnival, special event, celebration or sales, seasonal or temporary.

Exotic animal. Any nondomesticated animal, other than livestock, that is native to a foreign country or of foreign origin or character, is not native to the United States, or was introduced from abroad. The term “exotic animal” specifically includes, but is not limited to, animals such as lions, tigers, jackals, dingoes, leopards, elephants, pandas, camels, antelope, anteaters, kangaroos, chimpanzees, gorillas, orangutans, water buffalo, and species of foreign domestic livestock requiring state or federal permits.

Nonprofit organization. Any organization registered with the state and recognized by the Internal Revenue Service under section 501(c) series rules.

Public school district. The Prosper Independent School District (PISD).

Religious institution. A use customarily associated with a building where persons regularly assemble for religious worship and which building, together with its accessory buildings and uses, including the on-site housing of ministers, rabbis, priests, nuns and similar staff personnel, is maintained and controlled by a religious body organized to sustain public worship.

Special event. An event or gathering that requires a temporary exception to otherwise applicable rules or requirements, including, but not limited to:

(1)     The temporary complete or partial closure of a public street;

(2)     The temporary closure or restriction of access to public property;

(3)     The temporary offer of merchandise, food, or beverages on public property or on private property where not otherwise permitted by the town or the applicable certificate of occupancy;

(4)     The temporary erection of a tent on public property or on private property where not otherwise permitted by the town or the applicable certificate of occupancy;

(5)     The temporary erection of a stage, band shell, portable building, grandstand, or bleachers on public property or on private property where not otherwise permitted by the town or the applicable certificate of occupancy;

(6)     The temporary use, for other than storage, of a trailer or van on public property or on private property where not otherwise permitted by the town or the applicable certificate of occupancy;

(7)     The temporary use of equipment to amplify and transmit sound, which exceeds ambient (background) sound pressure levels at the property lines;

(8)     The placement of portable toilets on public property or on private property where not otherwise permitted by the town or the applicable certificate of occupancy; or

(9)     Activities such as, among others, a carnival, circus, fireworks displays, runs, events not wholly contained on town parks or building sites or PISD.

Temporary outdoor seasonal sales. The sale of, including but not limited to, firewood, nuts, pumpkins and gourds, wreaths, dried corn stalks, square hay bales, Christmas trees, Christmas tree ornaments and crafts, illuminated and nonilluminated Christmas, Halloween, patriotic, or Easter yard art and crafts, Valentine flowers, and Valentine-related gifts, crafts, yard art and similar seasonal products (seasonal products) by town, civic, school, philanthropic, religious, or other nonprofit organizations.

All terminology used in this article, and not specifically defined above, shall retain its meaning in conformance with applicable publications of the American National Standards Institute (ANSI) or its successor body and/or the latest volume of Webster's Collegiate Dictionary.

(Ordinance 06-122, sec. 2, adopted 11/14/06)

   Sec. 4.09.002     Temporary outdoor seasonal sales

The following additional regulations shall apply to temporary outdoor seasonal sales:

(1)     Seasonal products may lawfully be sold during periods approved by the building official after the issuance of a permit referenced in section 4.09.004.

(2)     The sale of seasonal products shall not involve more than one tent or temporary building on a lot and no more than one motor home, recreational vehicle, travel trailer or similar vehicles for the sales operator's use. If the applicant elects to install a temporary tent or temporary building, the applicant must meet all town requirements for said installation, as they exist or may be amended.

(3)     Local businesses and property owners within the town may grant permission to a person or entity eligible to receive a permit to hold a temporary outdoor seasonal sale on their parking lot or property.

(4)     Temporary outdoor seasonal sales are not allowed on properties with a current residential use.

(5)     Off-street parking must be provided on site and be constructed of an approved all-weather surface, such as concrete, asphalt or gravel. Off-site or soft surface parking areas must have a parking plan submitted as part of the application process.

(6)     No required parking spaces, as set forth in applicable town articles may be used.

(7)     Livestock (i.e., equine, cattle, sheep, goats, lambs, pigs, etc.), fowl, rodents, reptiles, amphibians, or any other animal does not qualify for a temporary outdoor seasonal sale.

(8)     Temporary lighting and/or security lighting may be used at a temporary outdoor seasonal sale location. Electrical permits are required for temporary power and any other electrical installations at the premises. Electrical contractors must be a registered contractor with the town. Electrical work installed requires inspection by a town building inspector. Temporary lighting must meet the requirements of the town's comprehensive zoning article, as it currently exists or may be amended. Any lights located on the premises may not flash, travel, blink, fade, move, or scroll.

(9)     Sales items, display areas, jump houses and/or any other related items in conjunction with the temporary outdoor seasonal sale may not block any fire lanes, fire hydrants, public access areas or means of egress pathways as determined by a town building inspector.

(10)     Sidewalks and pedestrian access ramps are required to have a minimum of six (6) feet clearance at all times and meet the requirements of the Americans with Disabilities Act, as it currently exists or may be amended.

(11)     Written permission must be obtained from the property owner and must accompany the temporary outdoor seasonal sale permit application seeking a permit for the temporary use at the property.

(12)     If food and/or drinks are served, the applicant must meet any and all health requirements of the town, as they exist or may be amended.

(13)     Equipment used for a temporary outdoor seasonal sale shall comply with all ordinances of the town, as they currently exist or may be amended.

(14)     Proof of a current state sales tax permit must be submitted at time of application, if applicable.

(Ordinance 06-122, sec. 3, adopted 11/14/06)

   Sec. 4.09.003     Special events

The following additional regulations shall apply to a special event:

(1)     Special event requiring street closures or other participation from the town will be allowed only with the approval of the town manager or his/her designee.

(2)     Temporary lighting and/or security lighting may be used at a special event location. Electrical permits are required for temporary power and any other electrical installations at the premises. Electrical contractors must be a registered contractor with the town. Electrical work installed requires inspection by a town building inspector. Temporary lighting must meet the requirements of the town's comprehensive zoning ordinance, as it currently exists or may be amended. Any lights located on the premises may not flash, travel, blink, fade, move, or scroll.

(3)     Any items used in conjunction with the special event may not block any fire lanes, fire hydrants, public access areas or means of egress pathways as determined by a town building inspector.

(4)     Sidewalks and pedestrian access ramps are required to have a minimum of six (6) feet clearance at all times and meet the requirements of the Americans with Disabilities Act, as it currently exists or may be amended.

(5)     Written permission must be obtained from the property owner and must accompany the special event permit application seeking a permit for the temporary use at the property.

(6)     If food and/or drinks are served, the applicant must meet any and all health requirements of the town, as they exist or may be amended.

(7)     Equipment used for a special event shall comply with all ordinances of the town, as they currently exist or may be amended.

(8)     The following events are not considered a special event and are, therefore, exempt from this article:

(A)     Events which require the approval or sanctioning of, or are officially sponsored by, the town or PISD, and:

(i)     The event is wholly contained on a town park or building site or PISD property;

(ii)     The impact on traffic and surrounding neighborhoods was evaluated and found insignificant by the town police department before approval for the event was granted by the town or PISD; and

(iii)     The event conforms to the other general criteria of this article.

(B)     Private parties to which the public is not invited.

(C)     An event wholly contained on property specifically designed or suited for said event and which holds a certificate of occupancy for such use, including but not limited to, adequate parking.

(D)     Funeral processions.

(Ordinance 06-122, sec. 4, adopted 11/14/06)

   Sec. 4.09.004     Permit requirements; additional regulations

A permit for a temporary outdoor seasonal sale or special event permit may be issued by the building official subject to the following conditions:

(1)     Written application for a permit for a temporary outdoor sale or for a special event shall be provided on a form provided by the town. The application for a permit for a temporary outdoor sale shall be made no less than fifteen (15) business days prior to the date such temporary outdoor seasonal sale shall commence operation. The application for a permit for a special event, where the special event is intended to accommodate less than 500 persons, shall be made no less than fifteen (15) business days prior to the date such special event shall commence operation. The application for a permit for a special event, where the special event is intended to accommodate 500 or more persons, shall be made no less than thirty (30) business days prior to the date such special event shall commence operation. (Ordinance 19-02 adopted 1/8/19)

(2)     The application for a permit shall contain the following:

(A)     Name, address, and telephone number of person, organization, or company conducting the temporary outdoor seasonal sale or special event.

(B)     Requested date or dates and operating times of the temporary outdoor seasonal sale or special event.

(C)     A plan showing in detail the different component parts of the temporary outdoor seasonal sale or special event, including but not limited to, the shows, concessions, amusements, businesses, portable toilets and the location of each on the property, as well as any other details required by the town.

(D)     A written lease or agreement from the owner of such property stating permission to the applicant to operate the temporary outdoor seasonal sale or special event on said property.

(E)     Proposed location and size of parking area(s).

(F)     Location and quantity of solid waste disposal containers. Individual waste cans must be bagged and have a tight fitting lid. All waste, excluding cardboard boxes, disposed of in front or top loading dumpster containers must be bagged.

(G)     The approximate number of persons who are attending and, if applicable, the number and types of animals and vehicles that will constitute such event. If attendance is over five hundred (500) persons in any eight-hour period, town-approved security must be provided. The town police department requires one off-duty officer per five hundred people in attendance. If alcohol is served or is involved, than the requirement is two off-duty officers per five hundred people.

(H)     The location and orientation of loudspeakers or sound amplification devices, if any.

(Ordinance 06-122, sec. 5, adopted 11/14/06)

(I)     Insurance:

(i)     Proof of a liability insurance policy with minimum combined limits of one million dollars ($1,000,000.00). The building official shall require a certificate of insurance that shows such policy is in full force and effect prior to the commencement of the temporary outdoor seasonal sale or special event and provides that the town shall receive notification of cancellation of the insurance coverage. Nonprofit or tax-exempt entities or organizations and governmental entities are exempt from the foregoing requirement.

(ii)     Subject to town council approval, for any temporary outdoor seasonal sale or special event on town property where alcoholic beverages are served or sold, including any event where the town is a co-sponsor of the temporary outdoor seasonal sale or special event, the town shall require proof of a comprehensive general liability insurance policy with limits of not less than two million dollars ($2,000,000.00) for bodily injury and property damages and occurrence; and four million dollars ($4,000,000.00) total aggregate. The town shall be named an additional insured on all such policies; and the policies shall be in effect for the duration of the temporary outdoor seasonal sale or special event and for at least two years after completion of the temporary outdoor seasonal sale or special event. It shall be the responsibility of the temporary outdoor seasonal sale or special event permit holder to obtain any necessary approvals, permits or licenses for the sale or service of alcoholic beverages on town property, including but not limited to any permits or licenses required by the Texas Alcoholic Beverage Commission.

(Ordinance 19-37 adopted 6/11/19)

(J)     Any other information that the town shall deem necessary under the standards for issuance. (Ordinance 06-122, sec. 5, adopted 11/14/06)

(3)     Safe and orderly movement of normal traffic, as solely determined by the town, shall not be substantially interrupted. The town may require the permit holder to provide additional signage for traffic-control and safety-related issues. If any temporary outdoor seasonal sale or special event is located adjacent to a TxDOT­controlled road, a TxDOT sign permit must be obtained, and signs must be in place before a seasonal sale or event permit is issued. (The specific requirement for TxDOT signs may be waived if staff determines that sufficient traffic-control measures are currently in place.) The town police department shall review the event traffic flow and parking plan and may require the event holder to hire an appropriate number of off-duty police officers to direct traffic. In such case, the fees charged shall be those hourly fees as determined by the town police department, with a four-hour minimum per police officer. (Ordinance 19-37 adopted 6/11/19)

(4)     The temporary use shall not impede the movement of any public safety equipment.

(5)     Waste from animals shall be removed and properly disposed of daily from the premises. Animals shall not be kept closer than three hundred feet (300') to any residence, commercial establishment or food establishment.

(6)     The application shall be reviewed and approved by the building official, police chief, fire chief, and director of public works, or designees of these individuals, for traffic control, security, fire, medical, safety, and other related issues.

(7)     The permit for a special event will be valid for a maximum period of seven (7) days. each temporary outdoor seasonal sale permit will be valid for a maximum of thirty-five (35) days during one period of four weeks before and one week after the Valentine's Day, Halloween, Easter, or Christmas holidays.

(8)     All signs must conform with the town's sign code except that signs adjacent to a TXDOT-controlled road will be limited to two (2) signs not to exceed twenty (20) square feet.

(Ordinance 06-122, sec. 5, adopted 11/14/06)

   Sec. 4.09.005     Denial of permit

A permit of a temporary outdoor seasonal sale or special event permit may be denied by the town if:

(1)     A permit has been granted for another temporary outdoor seasonal sale or special event at the same place and time;

(2)     The proposed temporary outdoor seasonal sale or special event will unreasonably, as solely determined by the town, disrupt the orderly flow of traffic and no reasonable, as solely determined by the town, means of rerouting traffic or otherwise meeting traffic needs is available;

(3)     The application is incomplete;

(4)     The applicant fails to comply with or the proposed temporary outdoor seasonal sale or special event will violate a town code, ordinance, rule, regulation or other applicable law, unless the prohibited conduct or activity would be allowed under this article;

(5)     The applicant makes a false statement of material fact on an application for a temporary outdoor seasonal sale or special event permit;

(6)     The applicant has had a temporary outdoor seasonal sale or special event permit revoked within the preceding twelve (12) months or the applicant has committed two (2) or more violations of a condition of a provision of a temporary outdoor seasonal sale or special event permit or of this article within the preceding twelve (12) months; or

(7)     Solely determined by the town, the proposed temporary outdoor seasonal sale or special event would unduly burden town services or unreasonably disrupt the public order.

(Ordinance 06-122, sec. 6, adopted 11/14/06)

   Sec. 4.09.006     Revocation of permit

A permit of a temporary outdoor seasonal sale or special event permit may be revoked by the town if:

(1)     Applicant fails to comply with the temporary outdoor seasonal sale or special event violates a condition or a provision of the permit, an ordinance, rule or regulation of the town, or any other applicable law;

(2)     The permit holder made any false statements on an application for a temporary outdoor seasonal sale or special event permit; or

(3)     As solely determined by the town, the temporary outdoor seasonal sale or special event unduly burdens town services or unreasonably disrupts the public order.

(Ordinance 06-122, sec. 7, adopted 11/14/06)

   Sec. 4.09.007     Fees

(a)     Temporary outdoor seasonal sale or special event permit fee shall be as established in appendix A to this code. The fee shall be waived for nonprofit or tax-exempt entities or organizations and governmental entities. Deposits, as established in appendix A, shall not be applicable to special events conducted on private property. (Ordinance 17-23, sec. 3, adopted 3/28/17)

(b)     The applicant shall provide a deposit as established in appendix A to this code at the time of the permit application for clean up after the temporary outdoor seasonal sale or special event. If the applicant cleans up, satisfactory to the town, within twenty-four (24) hours after the temporary outdoor seasonal sale or special event ends, the deposit will be refunded to the applicant within fourteen (14) business days of the temporary outdoor seasonal sale or special event ending. The deposit shall be waived for nonprofit or tax-exempt entities or organizations and governmental entities. (Ordinance 14-16, sec. 3, adopted 3/25/14)

   Sec. 4.09.008     Appeal

Any applicant who has been denied a permit or any person, whose permit has been suspended or revoked, shall have the right to a hearing before the town manager, or his/her designee. Request for a hearing must be made in writing and received by the town manager, or his/her designee, within ten (10) days of the date of the denial or the date of the notice of suspension or revocation. The town manager, or his/her designee, may review the appeal at a staff level and has the authority to reverse the decision of the building official and order that a permit be granted or to reinstate a suspended or revoked permit. The town manager's failure to take any action shall result in a denial of the appeal. The decision of the town manager shall be final. (Ordinance 06-122, sec. 9, adopted 11/14/06)

   Sec. 4.09.009     Other requirements

All federal, state and local rules, regulation, codes and ordinances will be adhered to by all participants and applicants. The provisions of this article are cumulative of all other town ordinances, rules and regulations. Tent permits, building permits, electrical permits, food establishment and handling permits, sign permits and all other permits and licenses required by the town or other law for specific activities conducted in conjunction with or as a part of the temporary outdoor seasonal sale or special event must be applied for in a form satisfactory to the town. (Ordinance 06-122, sec. 10, adopted 11/14/06)

   Sec. 4.09.010     Offense; notice of violation

(a)     A person commits an offense if he/she:

(1)     Commences or conducts a temporary outdoor seasonal sale or special event without the appropriate permits or fails to comply with any requirement or condition of a permit or this article.

(2)     Participates in a temporary outdoor seasonal sale or special event for which a permit has not been granted.

(b)     In the event any owner, tenant, agent or person (hereinafter “owner”) responsible for or claiming or having supervision or control over a temporary outdoor seasonal sale or special event fails to comply with provisions of this article, the town, by and through its building official, or designee, shall give notice of the violation to such owner. Such notice shall be given to the owner in any one of the following ways:

(1)     Verbal or written to the owner or responsible person;

(2)     By posting notice at the site or sale location; or

(3)     By letter addressed to the responsible owner on said application and/or property owner at premises as recorded in the appraisal district records of the appraisal district in which the property is located.

(Ordinance 06-122, sec. 11, adopted 11/14/06)

   Sec. 4.09.011     Citations; work or improvements by the town; charges against owner

An applicant, owner, tenant, agent or individual who fails or refuses to comply with a demand for compliance may be issued citations and/or their permit(s) may be suspended or revoked. The town may do the work or make improvements required to abate violations, pay for the work done or improvements made, and charge all expenses to the owner, tenant, agent or individual. (Ordinance 06-122, sec. 12, adopted 11/14/06)

   Sec. 4.09.012     Penalty

Any person, firm, corporation or business entity violating this article shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine not to exceed the sum of ($500.00), unless the violation relates to fire safety, zoning or public health and sanitation, including dumping and refuse, in which the fine shall not exceed the sum of two thousand and no/100 dollars ($2,000.00). Each continuing day's violation under this article shall constitute a separate offense. The penal provisions imposed under this article shall not preclude the town from filing suit to enjoin the violation. The town retains all legal rights and remedies available to it pursuant to local, state and federal law. (Ordinance 06-122, sec. 13, adopted 11/14/06)

   Sec. 4.09.013     Enforcement and interpretation; privilege

The building official shall enforce this article. Unless otherwise provided herein, the building official shall be responsible for interpreting and administering this article. The receipt of a permit required by this article is a privilege and not a property right. (Ordinance 06-122, sec. 14, adopted 11/14/06)

   ARTICLE 4.10 GARAGE SALES

   Sec. 4.10.001     Definitions

The following terms used in this article shall be defined as follows:

Garage sale. An occasional sale, exchange, or barter to the general public, on properties with a residential use, for the purpose of disposing of surplus personal property. The term includes, but is not limited to, all sales entitled “garage,” “lawn,” “yard,” “room,” “estate,” “backyard,” “patio,” “rummage” and “neighborhood.” The term also includes sales authorized by section 4.10.003(10) and section 4.10.006.

Right-of-way. The area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the town has an interest.

Signs. Includes only those signs, issued by the town, for purposes of advertising a garage sale.

Property owners association. A designated representative of the owners of property in a subdivision, condominium complex, or other property and may be referred to as a “homeowners association,” “neighborhood association,” “community association,” “civic association,” “civic club,” “association,” “committee,” or similar term. The membership of the association consists of the owners/tenants of property within the subdivision, condominium complex, or other residential property.

(Ordinance 07-093, sec. 2, adopted 11/13/07)

   Sec. 4.10.002     Permit required

No person, firm, nonprofit, or corporation shall advertise, operate, or participate in a garage sale within the limits of the town without first obtaining a garage sale permit. The fee for a garage sale permit shall be $10.00. (Ordinance 07-093, sec. 3, adopted 11/13/07)

   Sec. 4.10.003     Conditions of permit

The following regulations apply in connection with the conduct and operation of a garage sale:

(1)     Prior to holding or conducting a garage sale, a garage sale permit must be obtained in person at development services. Only individuals who are residents of the town may apply for a garage sale permit.

(2)     A garage sale permit, if issued, will be issued by the building official of the town or his/her designee(s).

(3)     A garage sale permit must be obtained by an adult occupant of the property where the garage sale is to be conducted or their designated adult representative (herein referred to as the occupant). Proof of the ownership or occupancy of such property may be verified by the town through the Collin or Denton County Appraisal Districts, by a copy of a deed, by a copy of a rental/lease agreement, or by water account information.

(4)     A garage sale permit shall be issued by property address, not applicant name.

(5)     A garage sale permit may only be issued for properties with a residential use, except for a sale authorized by section 4.10.006.

(6)     A garage sale permit may be issued no more than three (3) times per calendar year for the same premises (the maximum number of garage sales), excluding community garage sales. At least thirty (30) days must elapse between garage sales occurring on the same property.

(7)     A garage sale permit shall be valid for up to three (3) consecutive calendar days. On each such day, a garage sale may commence not earlier than thirty (30) minutes following sunrise and shall end not later than thirty (30) minutes prior to sunset.

(8)     A current garage sale permit issued for the property must be posted on the property where the sale is conducted at all times while the garage sale is being conducted, and must be displayed in a conspicuous location.

(9)     No more than three (3) families may combine their property for sale at a single garage sale.

(10)     A property owners association shall be permitted to have a community garage sale and in connection therewith shall abide by and be subject to the provisions set forth in sections 4.10.002 and 4.10.003 of this article. For purpose of determining the number of garage sales conducted annually on a property, the holding of a community garage sale shall not be considered a garage sale conducted on an individual residential property which is subject to the jurisdiction of the association. Except as otherwise provided for in this article, all community garage sales shall be subject to the same terms and conditions applicable to a garage sale for an individual residential property including, without limitation, that no more than three (3) community garage sales may occur each calendar year.

(11)     Garage sale items may be displayed for sale only in the following areas: residential yard including the front or back yard, garage, patio area, under a carport covering, driveway, or inside a residence.

(12)     Garage sale items must be placed at least ten (10) feet from the back of the curb and at least five (5) feet from each side property line. Garage sale items shall not be located within the public right-of-way.

(13)     Garage sale items including, but not limited to: items for sale, displays, tables, racks, tarps, and boxes must be removed by the occupant from the sale area by 8:00 a.m. the day following the last day of the sale. Items are strictly prohibited from remaining in the sale area or in the yard of the property.

(Ordinance 07-093, sec. 4, adopted 11/13/07)

   Sec. 4.10.004     Signs

All signs to be located in the town or its ETJ related to garage sales shall conform to the standards of a “residential sign” as defined and regulated by Ordinance 18-49, as amended. (Ordinance 18-70 adopted 9/11/18)

   Sec. 4.10.005     Cancellations/inclement weather

The following regulations pertain to the cancellation of a garage sale:

(1)     Subject to subsection (2) of this section, if inclement weather occurs on any part of three days of a scheduled garage sale, resulting in cancellation of the garage sale in its entirety each such day, the garage sale shall not count toward the maximum number of garage sales permitted within one calendar year.

(2)     If the conditions of subsection (1) of this section apply, the occupant must contact development services within three (3) business days following cancellation due to inclement weather to reschedule the date of the garage sale. If the occupant fails to do so, the garage sale shall be counted toward the maximum number of garage sales allowed per calendar year.

(3)     Garage sales will only be rescheduled due to inclement weather. (No exceptions.)

(4)     Permit fees will not be refunded under any circumstances.

(Ordinance 07-093, sec. 6, adopted 11/13/07)

   Sec. 4.10.006     Charitable, religious, educational, fraternal, governmental or nonprofit organizations

The following regulations shall apply to charitable, religious, educational, fraternal, governmental, or nonprofit organizations (together, nonprofit organizations):

(1)     Nonprofit organizations may only conduct a garage sale on the nonprofit organization's property or other properties with written permission regardless of zoning or land use.

(2)     If a nonprofit organization desires to conduct a garage sale on property not its own the nonprofit organization must present to the town a letter from the owner of the property authorizing the nonprofit organization to conduct a sale on the property. The letter must include the property address, the name of the nonprofit organization sponsoring the garage sale and the dates the garage sale is to take place and must be signed by the property owner.

(3)     The fee for the garage sale permit will be applied as in section 4.10.002.

(Ordinance 07-093, sec. 7, adopted 11/13/07)

(4)     A nonprofit organization is permitted to conduct a maximum of twelve (12) garage sales per calendar year. (Ordinance 15-39 adopted 6/23/15)

(5)     The number of families participating in a garage sale sponsored by a nonprofit organization is not restricted. (Ordinance 07-093, sec. 7, adopted 11/13/07)

   Sec. 4.10.007     Penalty

Any person, firm, corporation or business entity violating this article, or as amended, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined a sum not exceeding five hundred dollars ($500.00). Each continuing day's violation under this article shall constitute a separate offense. The penal provisions imposed under this article shall not preclude the town from filing suit to enjoin the violation. The town retains all legal rights and remedies available to it pursuant to local, state and federal law. (Ordinance 07-093, sec. 8, adopted 11/13/07)