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O391ORDINANCE NO. 391 AN ORDINANCE OF THE CITY OF KENNEDALE, TEXAS AMENDING CHAPTER 11 "LICENSES, TAXATION AND MISCELLANEOUS BUSINESS REGULATIONS", ARTICLE V "AMUSEMENT HALLS", BY ADOPTING REGULATIONS FOR AMUSEMENT MACHINE ESTABLISHMENTS; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY FOR VIOLATIONS HEREOF; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Kennedale is a home rule city acting under its charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of the Local Government Code; and WHEREAS, the City Council of the City of Kennedale has previously adopted regulations regarding amusement halls; and WHEREAS, the City Council deems it advisable and in the public interest to amend the regulations for amusement machines and amusement machine establishments. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS: SECTION 1. Chapter 11 "Licenses, Taxation and Miscellaneous Business Regulations", Article V "Amusement Halls", is amended to read as follow: ARTICLE V. AMUSEMENT MACHINE ESTABLISHMENTS DIVISION 1. DEFINITIONS Sec. 11-106. Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: W:\Kennedale\ORDINANC\8-Liners.wpd (03-07-08) Page 1 Amusementmachine means a machine or device operated by orwith a coin orother United States currency, metal slug, token, electronic card, or check, that dispenses or is used or capable of being used to dispense or afford amusement, skill, or pleasure or is operated for any purpose other than for dispensing only merchandise, music, or service. The term does not include: (a) musical devices; (b) billiard tables; (c) machines designed exclusively for children; (d) devices designed to train persons in athletic skills, including golf, tennis, baseball, archery, or other similar sports. Amusementmachineestsblishment means a business in which at least twenty-five percent (25%) of the useable floor space open to the public is devoted to amusement machines that are used, or capable of being used or operated, for amusement, pleasure or skill. Secs. 11-107 -11-125. Reserved. DIVISION 2. PERMITS Sec. 11-126. Permit required. (a) Except as provided in subsection (b) below, it shall be unlawful for any person, individually or in association with others, to operate an amusement machine establishment without having a valid, current annual permit issued by the city and without having a valid, current decal issued by the city for each amusement machine being displayed or operated in the establishment. (b) The permitting and regulating provisions of this article do not apply to: (1) Amusement machines kept in private residences or apartments and used without charge by members of the family or bona fide guests; (2) Amusement machines provided on the premises of religious, charitable, educational, or fraternal organizations for the use of members or their guests, and not for private profit, although a charge is made for playing; (3) Amusement machines provided on the premises of bona fide clubs or social organizations, not operated for private profit although a charge is made for playing, which provide other membership privileges and activities usual in bona fide private clubs organized for the promotion of some common object and whose members must be individually W:\Kennedale\ORDINANC\8-liners.wpd (03-07-08) Page 2 passed upon and elected as members by a committee or board made up of members of the club and its affairs and management shall be conducted by a board of directors, executive committee or similar body chosen by the members at their annual meetings; or (4) Amusement machines provided on the premises of publicly owned facilities. Sec. 11-127. Permit fees. (a) The annual permit fee for each amusement machine establishment that displays four or fewer amusement machines shall be $100.00. (b) The annual permit fee for each amusement machine establishment that displays five or more amusement machines shall be $300.00. (c) No permit shall be issued until the applicant has paid the required permit fee. Sec. 11-128. Applications. (a) A person desiring a permit to operate an amusement machine establishment shall file a written application with the city secretary. The application must be on a form provided by the city secretary and include the following information: (1) The full name, home address, and home telephone number of the applicant. (2) All of the following business information that applies: a. The business trade name and a general description of the business and the address and phone number of the business; b. If the applicant is a limited partnership, a certified copy of the certificate of limited partnership; c. If the applicant is a corporation, a certified copy of the articles of incorporation and, for an out-of-state corporation, the certificate of authority to do business in the state; d. The name and address of all partners or shareholders with 20 percent or greater interest in the business; and e. The federal tax identification number of the organization for which the person works or with which the person is affiliated. W:1Kennedale\ORDINANC\8-Liners.wpd (03-07-08) Page 3 (3) The physical location and street address where the establishment will be operated. (4) The total number of amusement machines that will be located and available for use in the establishment. (5) A complete description of all amusement machines that will be located in the establishment, including without limitation the name or type of the machine, the serial number of the machine, and every owner of the machine (if different from the applicant). (6) The total floor area of the establishment, and the total floor area of that portion of the establishment that is to be open to customers or patrons for the use or operation of amusement machines. (7) If the applicant has been convicted of any crime directly related to an amusement machine establishment, the date, location, and nature of the offense and the penalty received. (8) Such other and additional information as the city secretary may deem necessary to assure that the applicant meets the requirements of this article. (b) Applications for all permits shall contain the statements that: (1) "I understand that the permit applied for shall be subject to all the provisions and regulations of the Kennedale City Code and all other ordinances of the city and laws of the state, and I certify that I and all of my employees, agents, and operators will comply with said ordinances and laws"; and (2) "I certify that none of the amusement machines to be placed on the premises will be operated in a way that constitutes an illegal lottery, including an "eight-liner" orothersuch machine forwhich cash, prizes, or coupons are awarded, and that none of the machines is an illegal gambling device as defined by Section 47.01(4) of the Texas Penal Code, as amended." (c) The application shall be signed and sworn to by the applicant before a notary public. Sec. 11-129. Issuance of permit and decal; nonassignability. (a) The city secretary shall issue a permit after the city secretary has completed the necessary investigation and determined that the applicant meets the requirements of and has fully complied with this article and with all other W:\Kennedale\ORDINANC\8-Liners.wpd (03-07-08) Page 4 ordinances and laws of the city and state. Permits shall be deemed personal to the permittee and shall not be assignable or transferable from one person to another or one location or place of business to another. (b) Upon issuance of a permit under subsection (a) above, the city secretary shall issue a decal for every amusement machine located in a permitted amusement machine establishment that is listed on the permit. (1) Every amusement machine in an amusement machine establishment shall contain a decal. The decal for each amusement machine is deemed personal to the machine and location for which it is issued. No decal attached to an amusement machine shall be placed on another amusement machine. No amusement machine may be moved to another business location or business establishment in the city without first amending the permittee's application and obtaining a new decal for the machine. (2) Before replacing an amusementmachine(s) oradding an amusement machine(s) to an establishment, the permittee shall amend the application with the city secretary to update and reflect accurately the information required pursuant to subsection 11-128(a)(5). Upon amendment of the application, the city secretary shall issue a decal(s) for the replacement or additional amusement machine(s). If the total number of permitted amusement machines has changed, the city secretary shall also issue an amendment to the permit specifying the revised number of amusement machines allowed in the establishment and the date of such amendment. Sec. 11-130. Duration of permit; decal. The permit shall be valid from the date of issuance until December 31 of the year the permit was issued. The decal shall be valid until the amusement machine is moved from the location for which it is issued. Sec. 11-131. Posting of permit. (a) The permit shall state on its face to whom it is issued, the date it will expire, the address and location of the establishment, and the type of establishment authorized to be operated. The permit shall be signed and sealed by the city secretary. A permittee, while engaged in the operation of business, shall have the permit posted in a conspicuous place at or near the entrance and in such a place and position that it is easy to read at any time of day or night. (b) In addition to the information contained on a permit pursuant to subsection (a), a permit for an amusement machine establishment must also state on its W:\Kennedale\ORDINANC\8-Liners.wpd (03-07-05) Page 5 face the total number of amusement machines allowed in the establishment and the serial number and decal number of each amusement machine. Sec. 11-132. Permit denial. (a) The city secretary shall deny an application for a permit if the city secretary finds any of the following: (1) -The applicant failed to furnish the city with all information required by section 11-128; (2) The applicant has ever been convicted: a. Of any felony or class A or B misdemeanor directly related to gambling, theft from a customer of a business owned or operated by the applicant, or any other crime directly related to the applicant's operation of an amusement machine establishment; or b. Within the five years before applying for the permit, of any class C misdemeanor directly related to gambling, theft from a customer of a business owned or operated by the applicant, or any other crime directly related to the applicant's operation of an amusement machine establishment; or (3) Evidence that the applicant does not meet the requirements of this article or any other ordinances or laws of the city or state. (b) The city secretary shall note the reasons for denial on the application and shall notify the applicant of the denial by mailing notice to the applicant at the address shown on the application. Sec. 11-133. Permit revocation. (a) The city secretary shall revoke a permit if it is determined that: (1) The establishment is not being operated in accordance with this article or with any ordinances or laws of the city or state; (2) Any statement made in the application is untrue; (3) The applicant has ever been convicted: a. Of any felony or class A or B misdemeanor directly related to gambling, theft from a customer of a business owned or operated by the applicant, or any other crime directly related to W:\Kennedale\ORDINANC\&Liners.wpd (03-07-0B) Page 6 the applicant's operation of an amusement machine establishment; b. Within the five years before applying for the permit of any class C misdemeanor directly related to gambling, theft from a customer of a business owned or operated by the applicant, or any other crime directly related to the applicant's operation of an amusement machine establishment; (4) The applicant falsely certified to the statements required by subsection 62-8(b); or (5) The applicant displayed or operated an amusement machine that did not have a decal or was not listed on the permit for the amusement machine establishment. Sec. 11-134. Appeal from denial or revocation of permit. (a) The city secretary shall give written notice of the reason for denial or revocation of a permit by mailing notice to the applicant at the address shown on the application for the permit. (b) To contest the denial or revocation, the applicant may file with the city secretary, within ten days after the city secretary mails notice of denial or revocation, a written appeal for a hearing before the city council. (1) A denial is final and effective on the day the city secretary denies the permit. (2) A revocation is final and effective 11 days after the city secretary mails the notice of the revocation, unless the applicant appeals the revocation as prescribed by this section, in which case the revocation is stayed until the city council makes a final determination. (c) After an appeal is filed, the city secretary shall provide the city council with a record of all proceedings conducted with regard to the application for a permit, including the written application, the action of the city secretary, and the reasons for such action. The city secretary shall provide to the applicant a copy of this information at least 24 hours before the hearing, if the applicant requests such information in writing. (d) The city council must hold a hearing on the appeal of the denial or revocation of a permit within 30 days after the date of filing of the appeal, unless the appellantwaives in writing the right to a hearing within 30 days. The decision of the city council shall be final and conclusive as to all parties. W:\Kennedale\ORDINANC\8-Liners.wpd (03-07-05) Page 7 Secs. 11-135 -11-150. Reserved. DIVISION 3. GENERALLY Sec. 11-151. Hours of Operation. (a) Except as provided in subsections (b) or (c) of this section, no amusement machine establishment may be operated between the hours of 12:01 a.m. to 9:00 a.m., seven days a week. (b) No amusement machine establishment that is within 500 feet of a district restricted to residential use under the Comprehensive Zoning Ordinance of the City of Kennedale, may be operated between the hours of 11:00 p.m., Sunday through Thursday, and 9:00 a.m. the following day, or between the hours of 12:01 a.m. to 9:00 a.m. on Saturday and Sunday. (c) No amusement machine establishment that is within 500 feet of a public or private elementary or secondary school, may be operated between the hours of 9:00 a.m. to 4:00 p.m. Monday through Friday during the fall or spring term when students are required to attend school in the school district in which the center is located. (d) For purposes of this section, measurements shall be made in a straight line, without regard to intervening structures or objects, from the nearest entry door in the portion of the building used as an amusement machine establishment to the nearest point of a district restricted to residential use or nearest entry door of a school. Secs. 11-152 -11-170. Reserved. DIVISION 4. ENFORCEMENT Sec. 11-171. inspections. Any amusement machine establishment within the city shall be subject to inspection by authorized city personnel including but not limited to a police officer, the city secretary, the building official and the fire marshal or their authorized agents. Sec. 11-172. Violation. (a) It shall be a violation of this article for any person to: (1) Display any machine or device of any kind or character that is prohibited by this article or by any other ordinances or laws of the city or state; W:\Kennedale\ORDINANC\8-Liners.wpd (03-07-08) Page 8 (2) Operate any amusement machine or amusement machine establishment that does not meet the requirements of this article and any other ordinances or laws of the city or state; or (3) Permit any of the following activities at an amusement machine establishment: a. violation of any possession, sale, or delivery in Subchapter 4 of the Texas Controlled Substances Act; b. violation of any provision in Article 666-17(14) of the Texas Liquor Control Act; c. prostitution; d. gambling; e. entry of a person younger than 17 years between the hours of 9:00 a.m. to 4:00 p.m. during the fall or spring term when students are required to attend school in the school district in which the amusement machine establishment is located; or violation of Section 42.01 of the Penal Code. (b) Any permittee who operates an amusement machine establishment or any person who manages or controls an amusement machine establishment shall be responsible for violations of this article. Sec. 11-173. Penalties. (a) In case of any willful violation of any of the terms and provisions of this article, the city may institute any appropriate action or proceedings in a court of appropriate jurisdiction to restrain, correct, or abate such violation. For violations of this article, the city may also invoke civil remedies provided by the laws of the state, which shall be cumulative and subject to prosecutions prescribed for such violations. (b) A fine not to exceed $500.00 shall be levied against any person upon conviction of any violation of any provision of this article. Each day shall constitute a separate offense. SECTION 2. This ordinance shall be cumulative of all provisions of ordinances and of the Code of Ordinances of the City of Kennedale, as amended, except where the provisions of this W:\Kennedale\ORDINANC\8-Liners.wpd (03-07-08) Page 9 ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event the conflicting provisions of such ordinances and such Code are hereby repealed. SECTION 3. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph, or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs, and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 4. Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to comply with or who resists the enforcement of any of the provisions of this ordinance shall be fined not more than Five Hundred Dollars ($500.00) for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. SECTION 5. All rights and remedies of the City of Haltom City are expressly saved as to any and all violations of the provisions of any ordinances governing zoning that have accrued at the time of the effective date of this ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such W:\Kennedale\ORDINANC\8-Liners.wpd (03-07-08) Page 10 ordinances, same shall not be affected by this ordinance but may be prosecuted until final disposition by the courts. SECTION 6. The City Secretary of the City of Kennedale is hereby directed to publish the caption, penalty clause, publication clause and effective date of this Ordinance as required by Section 3.10 of the Charter of the City of Kennedale. SECTION 7. This ordinance shall be in full force and effect from and after its passage and publication as required by law, and it is so ordained. '''~ ,>rbE~,~~~'` PASSED AND APPROVED ON THIS 13 DAY OF ARCH °,'~ F , 2008 ~~.``y ., t-.. :~}~ •~\ -` ° `°. ,r ~~r: MAYOR y4~S~f •9 ~. BJr ~ \._. CITY SECR ARY EFFECTIVE: ' -~ ~- 2008 APPR VED AS TO FORM AND LEGALITY: !~ ~~- CITY ATTORNEY W:\Kennedale\ORDINANC\8-Liners.wpd (03-07-08) Page 11