§ 5.203 SPECIALIZED CERTIFICATE OF OCCUPANCY.
(a) Specialized certificate of occupancy required.
(1) A person commits an offense if he or she establishes, operates or continues to operate a sexually oriented business without a valid specialized certificate of occupancy expressly allowing the particular type of business issued by the City of Fort Worth for the particular type of business and activity to be conducted on the premises.
(2) The fact that a person possesses other types of state or city permits does not exempt him or her from the requirement of obtaining and thereafter maintaining a valid specialized certificate of occupancy. A person who operates a sexually oriented business and possesses other state or city permits shall comply with the requirements and provisions of this article as well as the requirements and provisions of the other applicable permits.
(3) A person shall not cause the establishment, operation or continuation of a sexually oriented business establishment under any other form of certificate of occupancy, such as a “lounge,” “nightclub,” “bar,” “tanning salon,” etc., that does not also expressly provide for the sexually oriented business and activity also conducted on the premises.
(b) Application for specialized certificate of occupancy.
(1) Any person, association, firm, partnership or corporation or other entity desiring to obtain a specialized certificate of occupancy for a sexually oriented business shall make application on a form(s) provided by the city’s planning and development department. The applicant shall also furnish any and all necessary supporting documents as required by the application.
(2) An application for a specialized certificate of occupancy shall be valid for a period of two years and shall expire on the second anniversary of its date of filing with the city if the sexually oriented business is not open for business under a valid specialized certificate of occupancy. A subsequent application shall be subject to all the current ordinance requirements, including, but not limited to, distance and zoning requirements, and any amendments to the ordinance since the filing of the previous application.
(3) Only a person who is an officer of or who has at least a 20% ownership interest in a sexually oriented business may apply for a specialized certificate of occupancy for the business. Each applicant must be qualified according to the provisions of this section and shall be considered an operator if a specialized certificate of occupancy is granted.
(4) If an applicant is an individual, he or she must sign the application form as “applicant.”
(5) If the applicant is other than an individual, each person or entity who is an officer of the business or has a 20% or greater investment or ownership interest in the business entity must sign the application as an “applicant.” An application on behalf of a corporation or partnership must provide sufficient documentation with the application to identify all corporate shareholders and directors or partners who have a 20% or greater ownership interest.
(6) If the enterprise is a Texas corporation, a certified copy of the articles of incorporation, together with all amendments must be submitted.
(7) If the enterprise is a foreign corporation, a certified copy of the certificate of authority to transact business in this state, along with all amendment must be submitted.
(8) If the enterprise is a limited partnership formed under the laws of Texas, the applicant must submit a certified copy of the certificate of limited partnership, together with all amendments filed in the office of the Secretary of State of Texas. If the partnership is a foreign limited partnership, the applicant must submit the certificate of limited partnership and the qualification documents along with all amendments filed in the office of the Secretary of State of Texas.
(9) Proof of the current fee ownership of the tract of land on which the enterprise is to be situated in the form of a copy of the recorded deed or binding lease for the premises on which the business would be operated.
(10) In addition to identifying those person required to sign an application under this subsection (b), the application must identify all parent and sexually oriented related corporations or entities of any person who will own or operate the sexually oriented business and include the names of the officers of each parent or related corporation or entity.
(11) Subsequent corporate sales, mergers, changes in shareholders or changes in partners shall be registered with the planning and development department immediately upon completion of the documentation evidencing the transaction. All subsequent shareholders and directors or partners must be identified and shall be subject to qualification and compliance with the requirements for obtaining the specialized certificate of occupancy.
(12) The application must be accompanied by:
a. A sketch or diagram drawn to scale of the floor plan(s). A professionally prepared sketch or diagram in the nature of an engineer or architect’s blueprint is recommended but shall not be required. Each sketch or diagram shall be oriented to the north or to some designated street or landmark. Each sketch or diagram shall be drawn to a designated scale or with marked dimensions sufficient to show the various dimensions of all areas, walls, doors, windows or other material aspects of the premises. Each sketch or diagram shall include at least the following:
1. The internal and external configuration of the premises, including a statement of total floor space occupied by the structure;
2. A statement fully describing the external signage to be displayed on the premises, as well as signage intended to be displayed elsewhere in the city to advertise the business;
3. The location of one or more manager’s stations or office;
4. The location of all electrical wiring and fixtures, including, but not limited to, lighting fixtures, sound systems, special effects equipment, video display equipment, video surveillance systems, etc.;
5. Designation of any portion of the premises in which customers will not be permitted or in which sexually oriented business activities will not be conducted;
6. A plan or description of the safety and security measures for the inside and outside of the premises, its customers and employees;
7. A designation of the place(s) at which the specialized certificate of occupancy, a copy of the floor plan(s), and other necessary permits, licenses and signage will be conspicuously posted; and
8. The director of the planning and development department may waive the foregoing sketch or diagram requirements only for renewal applications if the applicant expressly adopts by reference a floor plan that was previously approved and certifies that the configuration of the premises has not been altered or enlarged since it was approved.
b. All new applications shall include a certified survey map prepared by a licensed surveyor or licensed engineer which shows the required minimum distances from properties with protected uses or protected zoning.
(13) A nonrefundable application fee shall accompany all applications. An application shall not be considered filed until all applicable fees are paid and all information required by the application form has been submitted.
(14) A copy of all applications and supporting documentation for specialized certificates of occupancy shall be maintained in the planning and development department.
(15) The operator of a sexually oriented business shall permit and cooperate with the appropriate city enforcement personnel to lawfully inspect the entire premises as well as all activity being conducted therein.
(16) Each applicant shall sign a waiver and authorization form authorizing the chief to request on behalf of the applicant criminal history reports from the Texas department of public safety and any appropriate federal agency.
(17) Each application shall contain the following statements signed by applicant:
a. I represent that I have personal knowledge of all statements made and information given in this application and that the information is true and correct;
b. If required by law, that an outdoor sign was posted in conformance with this article and state law not later than the sixtieth day before the date the application was filed; and
c. The applicant has read the provisions of this article.
(c) Issuance of original specialized certificate of occupancy.
(1) The planning and development department shall approve the issuance of a specialized certificate of occupancy to an applicant within 30 working days after all conditions required for the application have been satisfied.
(2) When issued, the certificate shall state on its face:
a. The full name, address and telephone number of the person(s) (“the operator”) to whom it is granted;
b. The name, address and telephone number of the establishment;
c. A description of specifically what type of sexually oriented business operation has been approved to be conducted on the premises; and
d. The expiration date.
(3) When issued, the specialized certificate of occupancy shall remain the sole property of the city and shall be valid only as to the operator and location for which it was originally issued and shall not be sold, loaned or otherwise transferred to any other person, subsequent operator of the business or to another location unless the sale, loan or transfer complies with the provisions of this article.
(4) The specialized certificate of occupancy as well as a copy of the currently approved floor plan shall be continually displayed in a conspicuous place within the establishment so that it is visible to the public at all times and may be easily read.
(5) It shall be an offense for any person to counterfeit, forge, change, deface or alter a specialized certificate of occupancy.
(6) No increase of the floor area or modification in the internal structural configuration of a sexually oriented business shall be made beyond the area or configuration as shown in the floor plan as approved with the issuance of the specialized certificate of occupancy unless an amended specialized certificate of occupancy is issued by the planning and development department per subsection (d) below.
(d) Issuance of amended or modified certificates of occupancy.
(1) In the event a lawfully operating sexually oriented business desires to modify its operations by varying the type of entertainment or activity provided to another type which is not authorized in the operator’s current specialized certificate of occupancy, the operator shall notify the planning and development department in writing 30 days in advance, apply for and acquire prior written approval for the modification, up to and including an amended or modified specialized certificate of occupancy, if necessary. The planning and development department’s approval or denial shall be made within 30 days of receipt of said written request from the operator.
(2) A non-refundable processing fee equal to one-half of the original application fee shall be required for obtaining an amended or modified certificate. The amended or modified certificate shall expire on the same date as the original certificate.
(e) Expiration and renewal of a specialized certificate of occupancy.
(1) Each specialized certificate of occupancy shall be valid for a period of one year and shall expire on the anniversary of its date of issuance, unless sooner revoked or surrendered. Each specialized certificate of occupancy shall be subject to renewal as of its expiration date by the filing of a renewal application with the development services director.
(2) The operator holding a specialized certificate of occupancy issued under this section may renew the certificate rather than reapply for an original certificate if, not later than 30 days prior to the expiration of the certificate, the operator files and receives approval of a renewal application.
(3) Application for renewal shall be made to the planning and development department on the form(s) prescribed and accompanied with payment of the nonrefundable processing fee equal to one-half of the original application fee. All applications for renewal shall meet the same requirements as set for an original application.
(4) A violation of a city ordinance or state law that would constitute the basis for the denial, suspension or revocation of a certificate that occurs before the filing of a renewal application shall be considered as the basis for the denial of the renewal application.
(5) If the planning and development department denies an application for renewal, the operator may appeal the decision to the board of adjustment as provided in subsection (h) hereafter. Any action by the development services director is stayed pending the decision of the board of adjustment and if applicable, any appeal of the board’s decision.
(f) Denial of application for a specialized certificate of occupancy.
(1) The planning and development department shall deny issuance of the certificate if one or more of the following are found to be true:
a. The location of the establishment would be in violation of the applicable zoning district classification for the intended property use;
b. The location would be in violation of the distance regulation as set forth in § 5.202;
c. The application fees have not been paid;
d. An applicant has failed to make full disclosure or supply all of the information requested on the application;
e. An applicant has failed to provide information reasonably necessary for the issuance of the specialized certificate of occupancy or had provided false, fraudulent or untruthful information on the application, or is attempting to acquire the certificate under false pretenses;
f. The configuration and layout of the proposed premises would be in violation of the applicable provisions regarding accessibility, visibility and inspection as set forth in this article;
g. The structure, configuration and layout of the premises would be in violation of, or are not in compliance with, all other applicable city ordinances, including fire code and building codes;
h. An applicant has not demonstrated lawful ownership of the premises; or does not hold a binding lease for the premises upon which the business would be operated, or has not demonstrated a legally enforceable right to acquire the same;
i. An applicant is under 18 years of age;
j. An applicant is under 21 years of age and the sale or serving of alcoholic beverages would be an aspect of the business;
k. If the location of the proposed sexually oriented business is within a building, structure or portion thereof contains another sexually oriented business;
l. An applicant or an applicant’s spouse is overdue in payment to the city of taxes, fees, fines or penalties assessed against or imposed upon the applicant or the applicant’s spouse in relation to a sexually oriented business and has not paid the taxes, fees or penalties after submission of the application and before the issuance of the specialized certificate of occupancy by the planning and development department;
m. The applicant has been operating the proposed business as a sexually oriented business without a valid specialized certificate of occupancy issued under this article;
n. The applicant or the applicant’s spouse is required to register as a sex offender under the provisions of Tex. Code of Criminal Procedure Chapter 62;
o. An applicant or an applicant’s spouse has been convicted of a criminal offense within the last ten years involving any of the following offenses set forth in the Texas Penal Code:
1. Tex. Penal Code Chapter 21: Public lewdness, indecent exposure, indecency with a child;
2. Tex. Penal Code Chapter 22: Sexual assault or aggravated sexual assault;
3. Tex. Penal Code Chapter 25: Incest, solicitation of a child or harboring a runaway child;
4. Tex. Penal Code Chapter 43: Prostitution, promotion of prostitution, aggravated promotion of prostitution, compelling prostitution, obscenity, display or distribution, sale, distribution or display of harmful material to a minor, sexual performance by a child, employment harmful to minors, possession or promotion of child pornography; or
5. i. Criminal attempt, conspiracy or solicitation to commit any of the foregoing offenses;
ii. For which:
A. Less than two years have elapsed since the date of conviction or the date of release from the terms of community supervision, probation, parole or deferred disposition or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
B. Less than five years have elapsed since the date of conviction or the date of release from the terms of community supervision, probation, parole or deferred disposition or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a felony offense; or
C. Less than five years since the date of conviction or the date of release from the terms of community supervision, probation, parole or deferred disposition or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction are of two or more misdemeanor offenses or combination or misdemeanor offense occurring within any 24-month period.
(2) The applicant who has been convicted or whose spouse has been convicted of a criminal offense listed this section may obtain a specialized certificate of occupancy only after the time period required for satisfactory completion has elapsed and full release has been received from all conditions imposed regarding confinement, parole or probation, whichever is the later date.
(3) The fact that a conviction is being appealed has no effect on the disqualification of the applicant or applicant’s spouse under this subsection (f).
(g) Appeal of a denial of an application for a specialized certificate of occupancy. If the planning and development department denies the application and the issuance of a specialized certificate of occupancy, certified mail, return receipt requested written notice shall be provided to the applicant(s) of such action within 35 working days after receipt of the application.
(1) Upon receipt of the notice of denial the applicant may respond by requesting reconsideration and providing appropriate documentation sufficient to complete the application or otherwise address the department’s basis for the denial.
(2) If a written request for reconsideration is received, the application and supplemental information shall be reconsidered and a response provided within ten working days after the request is received.
(3) Upon receipt of notice of denial of the reconsidered application, the applicant shall have the right to appeal the denial to the board of adjustment within 30 days, but only for a determination as to whether the application was denied through error or mistake.
(4) The written appeal to the board of adjustment shall provide a clear and concise statement of the factual basis or grounds for the appeal. The request for appeal shall also be accompanied with the non-refundable fee pursuant to the adopted fee schedule.
(5) The appeal hearing shall be scheduled and conducted according to the board of adjustment’s rules of procedure.
(6) The applicant shall bear the burden of proof of disputed factual matters to produce a preponderance of the evidence to establish that the application was erroneously or mistakenly denied by the planning and development department.
(7) The board of adjustment may overturn the denial of the application and thereafter approve the issuance of the certificate only if the application was erroneously or mistakenly denied by the planning and development department and is otherwise shown to comply with all other requirements for an application. Unless the application was erroneously or mistakenly denied, the board of adjustment shall affirm the department’s denial.
(h) Appeal of a denial of a renewal application for a specialized certificate of occupancy.
(1) A denial of a renewal application for a specialized certificate of occupancy may be appealed to the board of adjustment following the same procedures as provided in subsection (g) above.
(2) The filing of any appeal under this subsection (h) stays the action of the development services director until the board of adjustment makes a final decision.
(i) Suspension of specialized certificate of occupancy.
(1) The director of the planning and development department shall suspend a specialized certificate of occupancy for a period not to exceed 30 days if it is determined that the operator has:
a. Violated or is not in compliance with the regulations set forth in this article;
b. Refused to allow an inspection of the sexually oriented business premises as authorized by this article; or
c. Committed acts that constitute grounds for revocation as set forth in subsection (j) below.
(2) A suspension may be appealed to the board of adjustment as provided in subsection (k) below.
(j) Revocation of a specialized certificate of occupancy.
(1) The director of the planning and development department shall revoke a specialized certificate of occupancy if the director of planning and development determines that one or more of the following is true:
a. The operator gave false or fraudulent information in the application or otherwise acquired the certificate under false pretenses;
b. The operator knowingly operated, provided or permitted sexually oriented business activity or entertainment to occur on the premises during a period of time when the specialized certificate of occupancy was suspended;
c. The operator knowingly allowed or participated in the unlawful possession, use or sale of controlled substances on the premises;
d. The operator knowingly allowed or participated in prostitution, or its solicitation, or unlawful offenses of a similar nature to take place on the premises;
e. The operator has been convicted of a criminal offense listed in subsection(f)(1)o. above for which the time period required subsection (f)(2) above has not lapsed;
f. An operator is delinquent in payment to the city for hotel occupancy taxes, ad valorem taxes or sales taxes related to the sexually oriented business;
g. An operator has transferred the specialized certificate of occupancy in violation of this article; and/or
h. Cause for suspension as provided in subsection (i) above has occurred, and the certificate has been previously suspended for any reason at least two times in the preceding 12-month period.
(2) The fact that a conviction is being appealed has no effect on the revocation of the specialized certificate of occupancy.
(3) When the development services director revokes a specialized certificate of occupancy, the revocation will continue for one year, and the operator shall not apply for or be issued a specialized certificate of occupancy for one year after the date of revocation became effective. If, subsequent to revocation, the development services director finds that the basis for the revocation has been corrected or abated, the operator may apply for and be granted a specialized certificate of occupancy if at least 90 days have elapsed since the date the revocation became effective. If the specialized certificate of occupancy was revoked under subsection (j)(1)e. above, an applicant may not apply for or be granted another specialized certificate of occupancy until the appropriate period required by subsection (f)(2) above has lapsed.
(4) A revocation may be appealed to the board of adjustment as provided in subsection (k) hereafter.
(k) Appeal of the suspension or revocation of a specialized certificate of occupancy.
(1) If the development services director suspends or revokes a specialized certificate of occupancy, the director of planning and development shall send to the operator, by certified mail, return receipt requested, written notice of the action and the right to appeal.
(2) Upon receipt of written notice of the suspension or revocation, the operator whose specialized certificate of occupancy has been suspended or revoked has the right to appeal to the board of adjustment.
(3) An appeal to the board of adjustment must be in accordance with subsection (g) above. The filing of any appeal under this subsection (k) stays the action of the development services director in suspending or revoking a specialized certificate of occupancy until the board of adjustment makes a final decision.
(4) Any appeal of the decision of the board of adjustment must be filed with the state district court within 30 days after the receipt of notice of the decision of the board of adjustment. The operator shall bear the burden of proof. The filing of any appeal under this subsection (k) stays any action of the development services director.
(l) Transfer of specialized certificate of occupancy.
(1) A person commits an offense if he or she operates a sexually oriented business under a specialized certificate of occupancy in any name or at any location other than the name and address designated on the face of the certificate.
(2) Any person desiring to continue the operation of a sexually oriented business after purchase or transfer must meet all requirements of a new applicant and receive a new specialized certificate of occupancy in his or her own name prior to continuing the business operation. Otherwise, the certificate shall automatically be deemed revoked as of the date of the transfer or purchase of the operator in whose name the certificate was issued.
(3) A person commits an offense if he or she wrongfully counterfeits, forges, changes, defaces or alters a specialized certificate of occupancy. Any certificate wrongfully altered shall automatically be deemed void and invalid.
(4) If corporations that have substantially similar ownership merge or consolidate, a fee of one-half the original filing fee shall be paid for each sexually oriented business holding a specialized certificate of occupancy that is merged or consolidated into the surviving corporation. The surviving corporation succeeds to all privileges of the prior corporation that held the specialized certificate of occupancy if the owners of the surviving corporation meet the qualifications for an applicant to acquire the certificate under this section. For the purposes of this section, corporations have “substantially similar ownership” if 90% or more of the corporations involved are owned by the same person or persons, or by the same corporation or corporations, or if the surviving corporation has maintained an ownership interest in the merged or consolidated corporations since the date the original specialized certificate of occupancy was issued.
(5) The city’s specialized certificate of occupancy is not property to be inherited or otherwise transferred in cases of incapacity or death. If an operator becomes legally incapacitated or dies, the executor or guardian of the estate shall, as soon as reasonably possible but no event later than 30 days of the death or incapacity, notify the planning and development department in writing of the status of business operations, the persons controlling the estate, and those heirs or other persons involved in settling the estate. Any person desiring to continue the sexually oriented business must meet all requirements of new applicants and receive a new specialized certificate of occupancy in his or her own name prior to continuing the business operations. otherwise, the certificate shall automatically be deemed revoked as of the date of the death or incapacity of the operator in whose name the certificate was issued.
(6) The city’s specialized certificate of occupancy is not property to be listed as an “asset” or otherwise transferred for purposes of resolution in bankruptcy. If an operator files a petition in bankruptcy seeking protection as a failing business, the operator shall also immediately deliver true and correct copies of documentation of same to the planning and development department.
(Ord. 16118, § 1, passed 9-14-2004; Ord. 17522, §§ 5, 6, passed 4-24-2007; Ord. 17782, § 1, passed 9-18-2007; Ord. 24030-02-2020, § 22, passed 2-4-2020)
