Sec. 21-211. - Same—Issuance or denial.
(a) Within thirty (30) days of receipt of any application, either original or renewal, the chief shall grant or deny the requested permit and give written notice to the applicant as to the decision, unless such time period is extended at the request of the applicant as provided in subsection (d) below.
(b) The chief of police shall issue a permit to the applicant within thirty (30) days of verification unless one or more of the following conditions exist:
(1) The applicant's sexually oriented business is located within one thousand (1,000) feet of any public or private elementary, secondary or high school, any place of regular religious worship, including property used as a church, synagogue, mosque, or other religious worship facility, public park, or licensed day-care center. Measurements shall be made in a straight line, without regard to intervening structures or objects, from the nearest point on the property line of the applicant's sexually oriented business to the nearest point on the property line of such school, church, public park, or licensed day-care center;
(2) The applicant's sexually oriented business is located within one thousand (1,000) feet of any other sexually oriented business for which there is a permit. Measurements shall be made in a straight line, without regard to intervening structures or objects, from the nearest point on the property line of the applicant's sexually oriented business to the nearest point on the property line of any other sexually oriented business;
(3) The applicant's sexually oriented business is located within one thousand (1,000) feet of any property located within an "RP" or a residential zoning district boundary, whether temporary or permanent, or devoted to a residential use, including any land zoned for one of the aforementioned residential uses which is also described as a planned unit development or traditional neighborhood development, but excluding airports;
(4) The applicant failed to supply all of the information requested on the application;
(5) The applicant gave materially false, fraudulent or untruthful information on the application;
(6) The applicant's sexually oriented business is not in compliance with section 21-215 of this article (the chief may allow any noncompliance with section 21-215 to be cured during the chief's review period established in subsection (d), below, provided that it must be cured before the notice of decision on the permit is issued);
(7) The application or the sexually oriented business does not meet any other requirement of this article;
(8) The operator has had a permit revoked for the same sexually oriented business within the 180-day period next preceding the date that the application was filed; or
(9) The applicant has not demonstrated that the owner of the sexually oriented business owns or holds a lease for the property or the applicable portion thereof upon which the sexually oriented business will be situated or has a legally enforceable right to acquire the same.
(10) Downtown district prohibition. In addition to the location restrictions of subsection (a), it shall be a violation to operate, own, manage, or maintain a sexually oriented business within the "D" downtown zoning district boundary.
(11) Certificate of occupancy. A certificate of occupancy for the business has not been obtained. Said certificate of occupancy shall not authorize the operation of an unpermitted sexually oriented business.
(c) Method of measurement and survey requirements.
(1) Sole tenant. Measurements shall be in a straight line, without regard to intervening structures or objects, from the nearest property line of the lot on which the sexually oriented business is located, to the nearest property line of the protected properties described in the above subsection (a), which requires separation. This method of measurement shall apply to a sexually oriented business that is the sole tenant, within one (1) building, located on one (1) platted lot.
(2) Multiple tenants. Measurements shall be in a straight line, without regard to intervening structures or objects, from the nearest point of the occupied space of the sexually oriented business to the nearest property line of the protected property described in the above subsection (a) which requires separation. This method of measurement shall apply to a sexually oriented business that is a tenant within a multiple tenant building.
(3) Easements excluded. In calculating the distances described in subsections (b)(1) and (b)(2) above, easements (such as right-of-way, drainage and utility easements) that are zoned as, or abut, a protected property classification, shall not be considered as part of the protected property.
(4) Survey. A certified survey prepared by a licensed surveyor or licensed engineer showing distance measurements in accordance with subsections (1) and (2) of this subsection shall be submitted to the director of development services for all sexually oriented businesses as part of the application for the certificate of occupancy for the use. Any certificate of occupancy issued for a building or facility used to conduct a sexually oriented business without submission of the required survey shall be null and void.
(5) Property uses and distances for original applications shall be determined as of the time that the application is filed. If a renewal application is timely filed as provided in this section, the property uses and measurements for the renewal application shall be determined as of the time that the original application for the sexually oriented business was filed. If not timely filed, renewal applications shall be subject to the same fees and shall be treated in the same manner in all respects as original applications.
(d) In the event that the chief determines that an applicant is not eligible for a permit, the applicant shall be given notice in writing of the reasons for the denial within thirty (30) days of the receipt of its application by the chief of police provided that the applicant may request, in writing, that such period be extended for an additional period of not more than ten (10) days at any time before the notice is issued in order to make modifications necessary to comply with this section.
(e) An applicant may appeal the decision of the chief regarding such denial by filing a written request for a hearing within twenty (20) days after he is given notice of such denial. The chief's decision on the application shall be final unless an appeal is timely filed. An appeal shall not stay the chief's decision on the issuance of a permit. The applicant's written request for a hearing shall set out the grounds on which the denial is challenged.
(1) The hearing shall be conducted by a hearing official designated by the city manager. Hearings shall be conducted by the hearing official. The hearing official shall not have participated in any investigation or decision relating to the denial of the permit. At the hearing the hearing official shall receive oral and written testimony regarding the application. Hearings shall be conducted under rules issued by the chief, which shall be consistent with the nature of the proceedings and shall ensure that each party may present evidence, cross-examine witnesses and be represented by legal counsel.
(2) The hearing official shall conduct the hearing within twenty (20) days after receipt of the applicant's written request for a hearing unless the applicant requests an extension in writing. The hearing official shall render a written decision and issue notice thereof to the applicant within five (5) days after the conclusion of the hearing. The written decision of the hearing official shall be final subject to the provisions of section 21-252 of this article.
(f) Failure of the chief to give timely notice of his action on an application, or failure of the hearing official to timely conduct or give notice of his decision on an appeal from the chief's decision shall entitle the applicant to the issuance of a temporary permit upon written demand therefor filed by the applicant with the chief unless the delay resulted from a written request for a delay or deferral by the applicant. Such temporary permit shall only be valid until the third day after the chief gives notice of his action on the application or the hearing official gives notice of his decision on the appeal, as applicable.
(g) In any instance in which the applicant's establishment is to be situated within one thousand (1,000) feet, as measured hereunder, from another proposed establishment for which a previously filed permit application has been denied, and the previously filed application is still subject to appeals, the chief may grant the permit on a conditional basis, subject to the outcome of the appeals on the previous application. A permit so issued may be withdrawn and denied effective upon the third day after notice thereof is given to the operator following the resolution of the appeals on the prior permit. In case of denial the applicant shall have the same rights of appeal hereunder as if the permit had been denied in the first instance.
(h) The provisions of subsection (b)(2) above shall not be construed to prohibit a sexually oriented business for which there is a permit from relocating to another location situated within one thousand (1,000) feet of its existing location, provided that the proposed location complies with all applicable requirements of this article other than its proximity to its own existing sexually oriented business location. An original permit application shall be required to be filed for the proposed relocation, and the chief shall conditionally grant the application on the stipulation that the permit will not actually be issued until the applicant discontinues operation at its existing location and surrenders the permit for its existing location. Any such relocation must be completed within one hundred eighty (180) days from the date that the permit is conditionally granted or the conditional grant of the application will become void. Pending the removal of the sexually oriented business to its new location, both the old and new locations shall be deemed to be operating under a permit for purpose of measurements to locations of other proposed sexually oriented business for which applications may be filed.
(i) If an application is rejected based on an inspection of the premises only, the chief of police shall provide to the owner-operator a notice of rejection within twenty (20) business days following the deadline to issue a permit or notice.
(j) An applicant may request a re-inspection only if the owner-operator:
(1) Submits the request, by certified mail, return receipt requested, within ten (10) business days subsequent to the receipt of the decision of the chief of police, and
(2) Pays to the city a nonrefundable inspection fee of one hundred fifty dollars ($150.00) with the submission of the request.
(Ord. No. 2012-12-06-0933, §§ 4, 6, 12-6-12)
