1 2 3 4 5 6 7 8 KERR COUNTY COMMISSIONERS COURT 9 Special Session 10 Tuesday, February 22, 2000 11 1:00 p.m. 12 Commissioners Courtroom 13 Kerr County Courthouse 14 Kerrville, Texas 15 16 17 18 19 20 21 22 23 PRESENT: FREDERICK L. HENNEKE, Kerr County Judge H. A. "BUSTER" BALDWIN, Commissioner Pct. 1 24 WILLIAM "BILL" WILLIAMS, Commissioner Pct. JONATHAN LETZ, Commissioner Pct. 3 25 LARRY GRIFFIN, Commissioner Pct. 4 2 1 I N D E X 2 February 22, 2000 PAGE 3 4 1.2 Amend Court Order 26235 for public hearing 3 to abandon platted road easements in Japonica 5 Hills Subdivision: 1. Sendero, 2. Deer Hollow, 3. Javelina Point, 4. Lisa Lane, and 5. an 6 unnamed road easement along NW edge of Lot 6 7 1.1 Approve and set public hearing for "Order 4 8 of the Kerr County Commissioners' Court Adopting the Regulations for Sexually 9 Oriented Businesses in the Unincorporated Area of Kerr County, Texas" 10 11 --- Adjourned 59 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 On Tuesday, February 22, 2000, at 1:00 p.m., a Special 2 Session of the Kerr County Commissioners Court was held in 3 the Commissioners' Courtroom, Kerr County Courthouse, 4 Kerrville, Texas, and the following proceedings were had in 5 open court: 6 P R O C E E D I N G S 7 JUDGE HENNEKE: Good afternoon. It's 8 1 o'clock on Tuesday afternoon, February 22nd. We'll call 9 to order this special meeting of the Kerr County 10 Commissioners Court. Two items on the agenda. With the 11 indulgence of the Court, I think we'll take up the second 12 one first, since it really has little controversy to it. 13 This is actually a request by Commissioner Griffin, so I'll 14 let you explain what we're doing here. 15 COMMISSIONER GRIFFIN: Yeah. This is an 16 amendment of the court order which will allow us to have the 17 public hearing on the banning -- you remember at the last 18 session we had the banning of the roads in Japonica Hills 19 subdivision, and what this does is we found, in closer 20 reading of the law, that the time required between the 21 notice and the -- and the public hearing will allow us to 22 move that up to the 13th of March, our first meeting in 23 March, instead of March the 28th or 27th, whatever. It was 24 going to be the second meeting of the month. 25 COMMISSIONER LETZ: Is that a motion? 4 1 COMMISSIONER GRIFFIN: And I so move -- 2 COMMISSIONER LETZ: Second. 3 COMMISSIONER GRIFFIN: -- that we do amend 4 the order. 5 JUDGE HENNEKE: Moved by Commissioner 6 Griffin, seconded by Commissioner Letz, that we amend Court 7 Order Number 26235 to establish a public hearing to abandon 8 platted road easements in Japonica Hills Subdivision for 10 9 o'clock a.m. on March 13th, Year 2000. Any further 10 discussion? If not, all in favor, raise your right hands. 11 (The motion was carried by unanimous vote.) 12 JUDGE HENNEKE: All opposed, same sign. 13 (No response.) 14 JUDGE HENNEKE: Motion carries. We'll now 15 take up what is listed as the first item on the agenda, 16 which is consider and discuss approving and setting a public 17 hearing for "Order of Kerr County Commissioners Court 18 Adopting the Regulations for Sexually-Oriented Business in 19 the Unincorporated Area of Kerr County, Texas." Ms. Bailey? 20 MS. BAILEY: Thank you, Your Honor. There 21 were several questions raised at the last meeting about the 22 order, as proposed, and I'd like to go through a few of 23 those at this time, because certainly before we set the 24 public hearing, we kind of need to all be in agreement of 25 what the contents of the order need to be. First of all, 5 1 there was a question raised about whether or not Tommy Hall, 2 the Texas Alcohol and Beverage Commission agent, was 3 comfortable with this order. I have discussed it with him. 4 He hasn't read this particular order, but he basically said 5 that the concerns that the T.A.B.C. have are primarily that 6 you can't have totally nude dancers in a place with a liquor 7 license. And, since this proposed order does not allow for 8 totally nude at any time under any circumstances, he felt as 9 though the order would be appropriate under his guidelines. 10 I asked him to try to be here this afternoon, 11 and he said he would be here, so I'm sort of expecting him 12 to come so he can answer any other questions that you might 13 have. I also asked the Sheriff's Department to kind of be 14 here to answer any questions that they might have, and 15 Travis Semora is here, and we've discussed this order a 16 little bit. He is familiar with the Houston and the Harris 17 County orders because he's from this jurisdiction. And, 18 since that's the model that we're using, he's very well 19 aware of the ins and outs of that particular order. 20 One of the main questions that you had last 21 time was how we were going about setting -- going to go 22 about setting up the hearing for people who oppose an 23 application, or if it -- if the application has been denied, 24 the applicant asking for another hearing. The order as 25 written says a "hearing officer." Didn't really set up how 6 1 it was to be appointed or who was to do that. Judge Henneke 2 has suggested perhaps that a Justice of the Peace might be 3 the appropriate person to do that. That is not in any of 4 the other ordinances I was -- or orders I was able to find, 5 but I think it's -- it sounds to me like a really 6 appropriate way to resolve that issue. That way the Court 7 doesn't have to appoint a different person every time. A 8 Justice of the Peace would presumably be familiar with 9 adjudicatory processes and taking of evidence, and since the 10 business will have a geographical location in one of the 11 precincts, it will be real obvious which of the Justices of 12 the Peace would be the one to do that. So, if you all 13 decide that a Justice of the Peace would be the appropriate 14 person instead of a randomly appointed hearing officer, I'll 15 certainly rewrite it that way, and I think that would be a 16 really good resolution. 17 COMMISSIONER GRIFFIN: Just so I understand, 18 it would be each J.P. in each precinct, not one assigned for 19 the whole thing? 20 MS. BAILEY: Exactly. For instance, if the 21 business were in Precinct 4 and there was some request for a 22 public hearing by a concerned citizen, then the Sheriff 23 would notify the J.P. and then the hearing would be held in 24 the Justice of the Peace court. 25 COMMISSIONER GRIFFIN: All right. 7 1 COMMISSIONER BALDWIN: But there's no law 2 prohibiting another J.P. to hear -- J.P. 2 to hear J.P. 4's 3 work? 4 MS. BAILEY: Yeah. I don't -- I think then 5 you'd go under the general rule that they -- that they are 6 able to -- to trade-off and help each other and switch out, 7 but that would be something for them to determine between 8 themselves, rather than for us to put in the order. 9 COMMISSIONER BALDWIN: It can even be bumped 10 to County Court at Law, probably, huh? 11 MS. BAILEY: If we set it up with the 12 Justices of the Peace being the ones to make the initial 13 decision, then really, the only way it would end up in 14 County Court at Law is if we make that the appellate 15 process. And, that might be appropriate, since our justice 16 courts are not courts of record. If an applicant or an 17 interested party who's opposing an application wanted to 18 really make an issue out of something, they probably ought 19 to be able to at least get it into a court of record so they 20 have a transcript that can be reviewed by some other entity. 21 So, that might be another thing we'd want to discuss, and 22 add that in. And -- did you have something you wanted to 23 address on that? 24 MR. SEMORA: Not on that particular issue, 25 but I do have some things I'd want to bring up in a little 8 1 bit. 2 MS. BAILEY: Okay. Then there was some 3 discussion about lengthening distances. This order -- this 4 order talks about 1,500 feet. I have orders from Guadalupe 5 County and from Comal County. Both of those orders use 6 2,500 feet as the distance requirement from school, church, 7 the other entities. If -- if you want to go with 2,500 8 feet, it certainly has precedent. If you want to increase 9 that amount, we can discuss that. As I think I mentioned 10 earlier, the larger distance you place on the restriction, 11 the more likely it is that you'll end up in litigation at 12 some point, but I think we certainly could be comfortable 13 with 2,500 feet because we already have that in existence in 14 two counties that are analogous to ours, more rural than 15 the -- than the Harris County order. So, just keep that in 16 mind. As far as time frames, Judge Henneke had suggested 17 that the time frames listed in the order were a little 18 short. I agree with him. He had suggested -- I'll get to 19 it. 20 COMMISSIONER BALDWIN: What was the time 21 frame in reference to? I don't remember. 22 JUDGE HENNEKE: That's the timing in which 23 the -- 24 MS. BAILEY: In the issuance -- 25 JUDGE HENNEKE: -- application be approved or 9 1 denied. 2 MS. BAILEY: In Section XII, the order 3 indicated that a permit -- Class I permit should be issued 4 within 45 days after submission of a completed application. 5 Judge Henneke recommended that that was too short, and 6 perhaps it should be changed to 60 days. I don't think that 7 would be a problem. And then, also, Subsection (b) says, 8 "A Class II permit shall be issued within 7 business days 9 unless the application is denied." He suggested that be 10 increased to 10 days, and, again, I don't see that as a 11 problem. If you all want to recommend those increases, I'll 12 make those changes. 13 COMMISSIONER WILLIAMS: Sixty days as opposed 14 to 45, and -- 15 MS. BAILEY: Yes, and 10 rather than 7. 16 COMMISSIONER WILLIAMS: Ten? 17 MS. BAILEY: Ten rather than 7 in Subsection 18 (b). Judge Henneke also had some question about who would 19 design and produce the various forms and applications 20 required for the application process and for the permits, 21 themselves. Certainly, the order places that duty on the 22 Sheriff's Department, but I have been working with 23 Lieutenant Semora and we have some forms from other 24 counties. I think between us we could come up with the 25 appropriate forms in pretty short order, don't you think? 10 1 MR. SEMORA: Yes. 2 MS. BAILEY: Then, I just want to go through 3 the order -- Judge Henneke provided me with his comments, 4 and I just wanted to go through them and see what -- what 5 you all thought about these various points. 6 On Page 9, under definition for hospital, 7 the -- the definition has -- it reads -- says a hospital is 8 "a building used to provide inpatient medical care," and I 9 think -- and Judge Henneke noted that we do have some 10 outpatient-type facilities here, and we might want to expand 11 that definition to include inpatient and outpatient 12 facilities. For instance, Outreach and La Hacienda's -- 13 COMMISSIONER WILLIAMS: Does it have to say 14 hospital? Could it not say "health care facility"? 15 MS. BAILEY: It could say health care 16 facility. That probably would be better. 17 COMMISSIONER WILLIAMS: Be more inclusive. 18 MS. BAILEY: And then just "to provide 19 inpatient or outpatient medical or psychiatric care"? 20 JUDGE HENNEKE: All right. I want to take up 21 La Hacienda, Starlight, Rafael Clinic. 22 COMMISSIONER WILLIAMS: Mm-hmm. 23 JUDGE HENNEKE: Certainly the new outpatient 24 facility for Sid Peterson. 25 MS. BAILEY: Good. I put "inpatient or 11 1 outpatient medical, psychiatric, or substance abuse 2 treatment or care." Do you think that would cover? 3 JUDGE HENNEKE: Pretty broad. 4 MS. BAILEY: Pretty broad, all right. Then 5 the next definition down, (v), Interested Party. That's 6 where one of -- one of the places where we use 1,500 feet. 7 If you want me to use 2,500, I'll make all those changes. 8 If you'd like me to increase it all the way up to 3,000, I 9 can do that. But, as I say, I'm little uncomfortable about 10 getting much larger spaces, 'cause I don't want to ask for 11 litigation. 12 COMMISSIONER BALDWIN: Are you comfortable 13 with 2,500? 14 MS. BAILEY: I'm comfortable with 2,500 15 because it seems to be working in Comal County and Guadalupe 16 County. 17 COMMISSIONER LETZ: I like 2,500; it's 18 reasonable. Pretty big area in a small town. 19 MS. BAILEY: Also, Judge, you had a question 20 about the interested party excludes all magistrates elected 21 in Kerr County. 22 COMMISSIONER WILLIAMS: What page are you on? 23 MS. BAILEY: It's the next -- it's under (v) 24 on Page 9. Were you just concerned that that wasn't 25 expressly enough identified? 12 1 JUDGE HENNEKE: I don't know what a 2 magistrate is. Is it the J.P.? 3 MS. BAILEY: Magistrates includes all J.P.'s 4 by definition in the Penal Code or the Code of Criminal 5 Procedure. Justice of the Peace, Kerr County Court at Law 6 Judge, County Judge, District Judge, they all can perform 7 the functions of a magistrate. 8 JUDGE HENNEKE: Okay. All right. 9 COMMISSIONER LETZ: Ilse, on the distance -- 10 MS. BAILEY: Yes? 11 COMMISSIONER LETZ: Is the language -- as an 12 example, I mean, K.I.S.D. is building a new elementary 13 school. I mean, does it cover that right-of-way, or when 14 does it -- does it have to wait until the school's opened up 15 on the distance from the schools? 16 MS. BAILEY: The order, itself, doesn't 17 specify, but I would imagine that it would have to be when 18 the school is opened, that -- that it would apply. Because, 19 really, the issue is keeping children protected from those 20 kinds of influences, and if there aren't any children at the 21 facility, I don't think that the workers that are building 22 it are necessarily in need of that kind of protection. 23 COMMISSIONER LETZ: It covers private and 24 public schools? 25 MS. BAILEY: I believe it does. Let me see 13 1 where it says school here. 2 COMMISSIONER WILLIAMS: It's an excellent 3 point, Jonathan. 4 (Discussion off the record.) 5 MS. BAILEY: Well, I'm assuming that we 6 intend for it to cover both private and public schools, and 7 I will make sure that that definition is included somewhere 8 in there. 9 COMMISSIONER WILLIAMS: Can I follow up on 10 that? That's an interesting point, and we're talking about 11 school. Are we talking about school in the traditional 12 sense, the building, where, you know, you sit down with 13 books and so forth? Are we talking about athletic 14 facilities? Are we talking about any school -- any school 15 property? 'Cause that's really where I'm going with this. 16 MS. BAILEY: You mean like a -- 17 COMMISSIONER WILLIAMS: Some type of field. 18 COMMISSIONER LETZ: Developed or undeveloped. 19 JUDGE HENNEKE: The definition says a 20 facility, including all attached playgrounds, dormitories, 21 stadiums, other appurtenances. You might want to delete the 22 word "attached" and pick up -- 23 COMMISSIONER WILLIAMS: Attached doesn't even 24 fit here right now. 25 COMMISSIONER GRIFFIN: Yeah. Yeah, it's not 14 1 necessarily attached. 2 COMMISSIONER WILLIAMS: Right. 3 COMMISSIONER GRIFFIN: It's school -- 4 MS. BAILEY: School property. Because, for 5 instance, Tivy Stadium doesn't -- is not attached to other 6 school property, but if there were a topless bar right next 7 to that, there are a lot of occasions where there are a lot 8 of kids at that location. 9 COMMISSIONER WILLIAMS: Could we go a little 10 step further, following up on Commissioner Letz, and talk 11 about school-owned property, where they are contemplating -- 12 contemplating the construction of facilities? Or is that 13 stretching too far? 14 MS. BAILEY: I think that goes back to the 15 question he had, that as soon as it becomes occupied by any 16 kind of students, it automatically falls within -- within 17 the definition. 18 JUDGE HENNEKE: I think you could go a little 19 further and have anything under -- which would include 20 facilities under construction for the -- 21 MS. BAILEY: All right. 22 JUDGE HENNEKE: -- primary purpose of -- 23 COMMISSIONER WILLIAMS: Okay. 24 JUDGE HENNEKE: -- education, or related -- 25 COMMISSIONER WILLIAMS: I like that. 15 1 JUDGE HENNEKE: -- endeavors. 2 COMMISSIONER LETZ: And under the definition 3 of when you go into private, does it contemplate religious 4 schools? 5 MS. BAILEY: Well, it does say both public 6 and private. I can put "both religious and secular" if you 7 think that's necessary. 8 COMMISSIONER LETZ: I don't know that it's 9 necessary. I mean, it's -- I would -- 10 COMMISSIONER GRIFFIN: Yeah, church is 11 included in the language, so -- 12 MS. BAILEY: Because it also has churches 13 included specifically. 14 COMMISSIONER GRIFFIN: Right. 15 MS. BAILEY: And child care facilities. 16 COMMISSIONER GRIFFIN: And child care 17 facilities. So, that's just about everything. 18 (Discussion off the record.) 19 COMMISSIONER LETZ: Okay. 20 MS. BAILEY: All right. And, also, on Page 21 10, under (hh) -- 22 COMMISSIONER BALDWIN: Wait. Wait, can we 23 back up to Page 9? 24 MS. BAILEY: All right. 25 COMMISSIONER BALDWIN: Please. Under (w), 16 1 Live Exhibition, a live performance by one or more 2 individuals conducting -- conducted in front of at least one 3 patron, including, but not limited to, dancing, modeling, 4 sword swallowing, juggling, acrobatic acts, wrestling, and 5 pantomime. Now, does this -- you can't do those things 6 naked? Or you can't do those things at all? 7 MS. BAILEY: You can't do those things in a 8 sexually-oriented business, unless it's provided for. These 9 are just definitions, so then later on we've got to find a 10 place where it says when you can and cannot do live 11 exhibitions, and then you look back to here to see whether 12 or not that falls under live exhibitions. 13 COMMISSIONER BALDWIN: Okay, I see where 14 you're going. All right. Thank you. I mean, sword 15 swallowing. We've got to watch that stuff, anyway. At the 16 Point Theater, we'll have no sword swallowing. 17 MS. BAILEY: Well, actually, that brings up 18 my next point -- or, actually, Judge Henneke had pointed 19 this out in his notes to me, that on Page 10, (hh), Sexually 20 Oriented Modeling Studio, would -- the way this is defined, 21 would prohibit the kind of art classes they do if they do 22 any nude drawing classes out at the Point. And, I don't 23 think that it's, certainly, the intention of anyone in this 24 room to do anything to -- to restrict or affect true art 25 education. So, I suggested that we add to that definition 17 1 the following sentence: "This definition specifically 2 excludes places where such activity takes place in 3 connection with or at the direction of a generally 4 recognized educational facility." You might -- I don't know 5 if you want to say, "including, but not limited to" -- I 6 don't know if the Arts Foundation really wants their name 7 specified in the order, but I want to have something in 8 there that says this doesn't include that kind of real 9 educational facility. Does that meet with -- 10 COMMISSIONER GRIFFIN: That sounds pretty 11 good. 12 MS. BAILEY: -- your approval? All right. 13 Then, on Page 12 -- 14 (Discussion off the record.) 15 MS. BAILEY: Then, on Page 12, there was a 16 question about the form and who was going to provide it. 17 And, as I said, I think what we would do is I would work 18 with the Sheriff's Department to provide the appropriate 19 forms and then bring them back to the Court for approval or 20 modification so that you have a chance to see what was going 21 to be on those forms and if you approve the language. On 22 Page 13, down at the very bottom, Number 4, Judge, you had a 23 question about whether we should say "joint venturers" 24 instead of "participants" where we say the names and 25 residential addresses of the joint venturers. I think we 18 1 probably ought to leave it "participants," because it does 2 say, "if the applicant is a joint venturer or other similar 3 entity," and I'd be worried that if we had a similar entity 4 that was not a joint venturer, it wouldn't, therefore, be 5 covered under that. But, I'm certainly open to discussion. 6 I don't -- 7 JUDGE HENNEKE: The term "participants" means 8 to me somebody who's a left-fielder or a point guard. 9 Doesn't mean somebody who is a partner in a business 10 enterprise. 11 MS. BAILEY: So, you want a word that 12 includes -- 13 JUDGE HENNEKE: "Participants" don't mean -- 14 to me, it has no legal sense in terms of a business 15 enterprise, business entity. 16 MS. BAILEY: I've got you. Then I will work 17 on another word that fulfills both my concerns and that 18 concern that you've expressed. I'll have to look -- get the 19 thesaurus out; I can't suggest it right at this moment. 20 COMMISSIONER GRIFFIN: Could be that someone 21 who has a -- has a business interest in the -- 22 JUDGE HENNEKE: An ownership interest. 23 COMMISSIONER GRIFFIN: An ownership interest 24 or business interest or something like that. 25 COMMISSIONER WILLIAMS: Equity interest. 19 1 COMMISSIONER GRIFFIN: May not be equity, may 2 not be ownership. See, that's -- that's the tricky part. 3 JUDGE HENNEKE: Well, but you can't go too 4 far. If someone's -- 5 COMMISSIONER GRIFFIN: Yeah. If someone has 6 a business interest, that means they work -- 7 JUDGE HENNEKE: If they're hired to manage 8 it, you have a business interest, but does the State have a 9 legitimate interest in having that information provided as 10 part of the application? Or if you're the bookkeeper, say 11 you're -- 12 MS. BAILEY: Yeah. We really care more about 13 the ownership interest people than we do the -- their 14 employees. 15 JUDGE HENNEKE: So you can't get too far down 16 the road. 17 COMMISSIONER GRIFFIN: No, that's fine. 18 MS. BAILEY: Would you be comfortable with 19 "ownership interest"? 20 JUDGE HENNEKE: Mm-hmm. 21 MS. BAILEY: All right. Then there's -- down 22 in Subsection (4) on Page 14, there's a grammatical 23 difficulty that Judge Henneke had pointed out. Under (4), 24 Subsection (iii), the -- it doesn't make grammatical sense, 25 so I am going to suggest changing that to, "A certification 20 1 that the proposed enterprise would be located: at a place 2 where not more than two other Class I enterprises are 3 located." And I think that fixes the grammatical 4 difficulty. 5 The next page -- again, there's some 6 questions raised about under notice being sent within 10 7 days after the application filed -- is filed with the 8 Sheriff, who was to be responsible for that. And, as I 9 suggest, if we're going to do it with the Justices of the 10 Peace, my concept of how that would work is that an 11 application is filed with the Sheriff. The Sheriff sends 12 all of the application information to the Justice of the 13 Peace, and the Justice of the Peace sends notifications, 14 however it is we decide that's to be done. Since the -- the 15 Justice of the Peace would be the one holding the hearing. 16 JUDGE HENNEKE: So, you're going to change 17 Number (6), where it says every applicant shall give written 18 notice? 19 MS. BAILEY: To owners? Well, no, I would 20 leave that. But, as far as the -- oh, I'm thinking of a 21 different notice area, the notice of the hearing to the 22 interested parties further on. No, I think the applicant 23 should be required to give the written notice as set out in 24 Subsection (6), which included the (i), (ii), and (iii) 25 underneath. 21 1 COMMISSIONER BALDWIN: Then we change that to 2 2,500 feet? 3 MS. BAILEY: And the -- yes, we'll -- I'll 4 change all the 1,500's to 2,500. Under -- so, disregard 5 what I just said; that's another section I was talking 6 about. Under Subsection (7) there on Page 15, I would 7 change that language to say, "An applicant for an SOBP for 8 an existing sexually-oriented business which is in operation 9 on the date this order is passed." So, I crossed that out, 10 the "permitted under the repealed county sexually-oriented 11 business regulations," 'cause we don't have ones that are 12 repealed. 13 Now, this whole Section IX does refer to 14 requirements for existing enterprises, of which we don't 15 think there are any, so it's not really that crucial that we 16 add everything in here. But, there was some, again, 17 question about who would make findings, and under the 18 proposal that the Justices of the Peace do it, then the 19 Justice would be the one making those findings. 20 On Page 17, this is the one that will have 21 to be changed pretty significantly, because it all has to do 22 with who's to do the confirming, who's to do the hearing. 23 Under Subsection (a)(1) of Section XI, it says, "A hearing 24 official, appointed by Commissioners Court..." If we change 25 that to the Justice of the Peace for the precinct in which 22 1 the business is located, would that be -- meet with your 2 approval? 3 COMMISSIONER WILLIAMS: Mm-hmm. 4 JUDGE HENNEKE: Mm-hmm. 5 COMMISSIONER BALDWIN: What about Number (3) 6 there? Actually scheduling a Sunday morning? I mean, is 7 that -- is this -- 8 MS. BAILEY: Saturday. 9 COMMISSIONER BALDWIN: I'm sorry, Saturday. 10 Any day. Would you put a specific day in something like 11 that? 12 COMMISSIONER WILLIAMS: I would leave that to 13 the discretion of the hearing officer. 14 MS. BAILEY: We might want to include 15 something like, "The hearing shall be scheduled at a time 16 when it is reasonably likely that the members of the public 17 would be able to show up." I think that's the reason for it 18 being like that, but I'll make it more general. 19 Publicizing the hearing. Under Subsection 20 (5), the way that the Harris County order is written, it 21 would be the responsibility of the interested party who 22 requested the hearing. And, the Sheriff is required to make 23 available to the public a copy of any Request for Hearing, 24 but it's not their job to publicize it. That's probably the 25 best way to leave that, because I think the whole point 23 1 behind this is that if someone cares enough to want to have 2 a hearing and they want to get the public up in arms, either 3 one way or the other, it's really up to them to do it and 4 it's not up to the Commissioners Court or the elected 5 officers of the County to raise that ruckus if -- if there's 6 going to be ruckus raised. 7 COMMISSIONER BALDWIN: Shouldn't be using 8 that body to -- 9 JUDGE HENNEKE: T.N.R.C.C. doesn't require 10 people who request a hearing to publicize the request for 11 the hearing. Are there any other State agencies that you're 12 aware of that request that people who request the hearing to 13 publicize the hearing? 14 MS. BAILEY: My impression of this -- I might 15 be wrong. I'll read it more closely, but by understanding 16 was that it's more that if -- if it's to be publicized, 17 they're the ones to do it. In other words, they aren't 18 requiring -- there's no requirement on the County to do 19 anything. If they want to do it, it's up to them, so it's 20 not a requirement that they do it. It's a requirement that 21 if someone's going to, it's not going to be at the County's 22 expense. 23 COMMISSIONER LETZ: There's no -- 24 JUDGE HENNEKE: I'd hate to be a precinct -- 25 a Commissioner who had an application for a sexually- 24 1 oriented business in their precinct, and one person 2 requested a hearing and no public -- no publicity was done 3 on the hearing, and only that one person showed up, and all 4 your constituents heard about it after the fact. 5 COMMISSIONER GRIFFIN: But, I -- well, let's 6 see. There's -- is there any legal posting of the hearing 7 that's required? Any, you know, courthouse kind of postings 8 or anything of that sort? Because it seems like we've got 9 two things here. One's talking about publicizing the 10 hearing; the other thing is about posting notice of the 11 hearing. 12 MS. BAILEY: It does -- 13 COMMISSIONER GRIFFIN: Which is a different 14 deal. 15 MS. BAILEY: It does require, on the next 16 page, that the Sheriff has a place to sign at the location 17 identified in the application as being the -- the proposed 18 sexually-oriented business. There's -- there's to be a sign 19 placed at that location by the Sheriff saying at this 20 location, there's an application pending for a sexually- 21 oriented business. 22 COMMISSIONER GRIFFIN: Right. 23 MS. BAILEY: So, in that sense -- 24 COMMISSIONER GRIFFIN: I'm talking about the 25 hearing. If someone requested a hearing, is there any 25 1 requirement for just -- not publicizing, but posting notice 2 of that hearing? Is there any requirement for that anywhere 3 in here? Because I agree with you, the way this is worded, 4 it sounds like the publicity piece of it is -- if you want 5 to publicize it, it's up to you. But, it seems like that 6 there ought to be somebody who is responsible for making 7 public notice of the hearing, just like we do on all our 8 hearings, for example. 9 COMMISSIONER LETZ: I think there's public 10 notice on the application. 11 MS. BAILEY: But where would it be posted, 12 since it's a precinct-related -- 13 COMMISSIONER GRIFFIN: Sounds like it needs 14 to be posted like -- 15 COMMISSIONER LETZ: Couldn't it be 16 required -- you have to do all other public notices in the 17 paper, you have to put -- the application has to get posted? 18 And that way it puts the public on notice. Otherwise, no 19 one's going to know. 20 JUDGE HENNEKE: Well, no. The -- the 21 applicant is required to send a copy of the application to 22 everybody or every business within 2,500 feet of where the 23 SOB is going to be, so that's that type of notice. What 24 we're talking about here is how do you let -- 25 COMMISSIONER GRIFFIN: The public. 26 1 JUDGE HENNEKE: -- Reverend Crane, who was 2 here -- Crane? I think -- know that there's a hearing on 3 a -- 4 COMMISSIONER GRIFFIN: Plumb. 5 JUDGE HENNEKE: Plumb, you're right -- that 6 there's a hearing on an SOB anywhere in the county? 7 MS. BAILEY: Maybe we should include a 8 provision that says when the Sheriff receives the 9 application, one of the duties is to have that posted in the 10 newspaper. 11 COMMISSIONER WILLIAMS: Well, I thought it 12 was. I suggest Number (5) -- suggest that be made mandatory 13 that the Sheriff -- it talks about what the Sheriff's going 14 to do there. "Publicizing the hearing shall be the 15 responsibility..." If we change it to the Sheriff, the 16 Sheriff's going to make available to the public a copy of 17 any request for the hearing, so why not have them just put a 18 notice in the paper? 19 MS. BAILEY: We have to exercise a certain 20 amount of -- exercise some caution with that, because as -- 21 as Commissioner Griffin was saying, the difference between 22 publicizing, as in trying to get people stirred up, versus 23 letting the public know, the County can't be in the position 24 of trying to stir up controversy, particularly on the 25 anti-business side of that, because that -- then the County 27 1 is getting into the business of unconstitutionally limiting 2 -- attempting to limit a person's ability to do a legal 3 business. 4 JUDGE HENNEKE: If all we're doing is 5 publishing a notice -- 6 MS. BAILEY: Then I think we're okay. 7 COMMISSIONER GRIFFIN: That's right. 8 MS. BAILEY: I think we don't want to say 9 publicizing. I think just publish. 10 COMMISSIONER GRIFFIN: It is the Sheriff's -- 11 the Sheriff that -- that has to post notice, just like we do 12 for any other County public hearing, and that's newspapers 13 and in three places in the courthouse, or whatever it is 14 that we do for our agenda, for example. 15 COMMISSIONER LETZ: Why -- I mean, why do we 16 want the Sheriff to do it? Why can't we make the applicant 17 do the public notice? 18 MS. BAILEY: Well, because the -- the 19 hearing's going to have to be set by the Justice of the 20 Peace. In other words, you don't want an applicant taking 21 on the powers to say, "We're going to have it at such-and- 22 such a time, such-and-such a place." I think that's going 23 to be -- that's more appropriate for an elected official to 24 make the decision. Whether that's the Sheriff -- 25 COMMISSIONER BALDWIN: Back in the old 28 1 subdivision days, in the beginning of those things, it was 2 written as -- you know, like when you had to publicly notify 3 there is going to be a change, the wording in that thing was 4 that the Commissioners Court "shall cause." And we always 5 interpreted that as two ways. We could pick up the tab; we 6 could actually run the ads in the paper, or we could cause 7 the developer to go and do that. 8 JUDGE HENNEKE: We could always roll that 9 into the fee we charge for the application, as well. 10 COMMISSIONER BALDWIN: And we still kind of 11 do some of those some of those things with the subdivision. 12 We -- we pay for some things, and then they pay us back 13 eventually. But, I -- I don't think we should be paying for 14 their advertisement in the paper of a notice, or not -- 15 COMMISSIONER WILLIAMS: I think it can be 16 rolled into the application cost, the cost of the 17 application. 18 COMMISSIONER BALDWIN: I understand. I 19 understand. However we do it. 20 COMMISSIONER LETZ: Rusty? 21 MR. HIERHOLZER: One thing, in visiting with 22 Tommy, the way they do their T.A.B.C. new alcohol licenses, 23 the date for the hearing is kind of set between the County 24 Clerk and the Judge, I believe, or whatever. And, if that's 25 going to be governed by the Sheriff's Office and the J.P., 29 1 let those two set the date, but then the applicant is 2 required to make the public notice and run it, however. And 3 that way, it's on the applicant's shoulders as far as 4 getting the notice out and the number of times, and it's on 5 their shoulders for the fee. 6 JUDGE HENNEKE: But a requirement is there, 7 because it says in here that the Sheriff has to produce a 8 Notice of Hearing, Number (4). In Number (5), we could put 9 a requirement that the applicant shall publish a copy of the 10 Notice of Hearing in a newspaper of general circulation in 11 Kerr County not less than 3 business days prior to the date 12 of the hearing. 13 COMMISSIONER BALDWIN: Full page, twice. 14 (Discussion off the record.) 15 MR. SEMORA: Well, my question is, who are 16 you going to have write the notice or style the notice 17 that -- 18 MS. BAILEY: That will be what we -- we 19 provide that, between, I guess, probably my office, your 20 office, and the J.P., and then we'll give that to the 21 applicants and tell them they have to post it in the papers 22 that -- yeah. Would that work? 23 MR. SEMORA: Yes, that would work. 24 MS. BAILEY: Okay. 25 COMMISSIONER BALDWIN: What did we decide? 30 1 MS. BAILEY: That we're going to -- if I 2 understand correctly, that with respect to Subsection Number 3 (5), I'm going to write it so that the notice, which is 4 provided by the Sheriff in Subsection Number (4), will -- 5 and date of hearing, that the Sheriff and the Justice of the 6 Piece will decide on what the notice is going to look like, 7 and then, under Number (5), the applicant will be required 8 to post that notice in a newspaper of general circulation of 9 Kerr County not less than 3 business days prior to the 10 hearing. 11 JUDGE HENNEKE: The Sheriff and the Justice 12 of the Peace are not going to decide what the notice of the 13 hearing is going to look like. It's going to be a standard 14 form that you and the Sheriff are going to agree on. 15 MS. BAILEY: Right. 16 JUDGE HENNEKE: All you do is fill in 17 information, hand it to him, and say, "You've got to publish 18 this 3 days before the hearing or your hearing gets 19 postponed." 20 MS. BAILEY: It will be a form. 21 JUDGE HENNEKE: Yeah. 22 MS. BAILEY: One of the forms we'll provide 23 to you for approval before we get this going. 24 COMMISSIONER GRIFFIN: Okay. 25 MS. BAILEY: Page 18, there's a Number (7) 31 1 that allows for hearing being rescheduled for good cause. I 2 think that we probably want to -- well, it does specify that 3 the person who makes that decision is the hearing official, 4 who will be our Justice of the Peace. I don't know if 5 there's anything else about that you think needs to be more 6 specified, or if that's clear enough. And, Judge, I believe 7 you had a question about -- under Subsection (b), if the 8 Judge -- if the Sheriff receives a request for public 9 hearing after the permit's been issued or renewed, the 10 hearing shall be scheduled when the next renewal application 11 is filed. Did you have a concern about -- 12 JUDGE HENNEKE: That's a lot of recordkeeping 13 for the Sheriff's Department. I don't -- I don't remember 14 what the term of these licenses is. 15 MS. BAILEY: A year, I believe. 16 JUDGE HENNEKE: I mean, somebody submits a 17 request for a hearing, you know, for 9 o'clock on the 18 morning after the license was approved the day before. That 19 means 364 days after that, the Sheriff's got to remember, 20 "Oh, yeah," you know, "there was a request for hearing." 21 So, if this renewal comes in, then he's -- then he's got to 22 take all the steps without having something trigger him, or 23 her. 24 MS. BAILEY: My understanding would be that 25 that would be filed amongst the papers for that business, 32 1 which automatically comes up for renewal or expiration in a 2 year, anyway, and -- would that be about right? 3 MR. SEMORA: Yes. I don't think that would 4 be a huge problem, if we're looking at one or two businesses 5 and we have someone appointed to review those files in a 6 timely manner. I don't think that would be a huge issue. 7 JUDGE HENNEKE: Okay. 8 MS. BAILEY: And then there was some question 9 about the provision allowing interested parties expressly 10 waiving the rights of counsel -- well, that they're entitled 11 to counsel, and then they could waive it. I think that's 12 just sort of standard Code of Criminal Procedure matters 13 that anyone that's entitled to counsel is entitled to waive 14 counsel, except, perhaps, capital murder defendants. 15 JUDGE HENNEKE: Is this considered a criminal 16 proceeding, so they have the right to counsel? What I'm 17 concerned about is you're setting up a straw person where 18 they can go back and appeal the decision because they didn't 19 have counsel available. 20 MS. BAILEY: No, I think I can expressly 21 indicate in here that they're entitled to retain their own 22 counsel, but they're not entitled to appointed counsel 23 because they're not, certainly, at risk of losing liberty. 24 JUDGE HENNEKE: Okay. Well, to me, if you 25 give them -- put in there that they expressly waive the 33 1 right to counsel, that implies that they have a right to 2 counsel. Which they have, but it's not in criminal context, 3 where -- 4 MS. BAILEY: I think probably I should 5 combine those two and, instead, indicate that interested 6 parties may appear with or without counsel. 7 JUDGE HENNEKE: Okay. 8 COMMISSIONER BALDWIN: You wouldn't have -- 9 on a hearing like this, you wouldn't have a Court-appointed 10 attorney to represent those people? 11 MS. BAILEY: No. 12 COMMISSIONER WILLIAMS: This is trying to 13 avoid that. 14 COMMISSIONER BALDWIN: Oh, okay. 15 MS. BAILEY: Trying to make sure that we 16 clarify, so that it's not the case. And then -- 17 COMMISSIONER WILLIAMS: What you just said is 18 that you're going to -- you're going to rewrite it so that 19 they may or may not have counsel? 20 MS. BAILEY: Just to indicate that they can 21 appear at a hearing with counsel or without, as their 22 choice. 23 COMMISSIONER WILLIAMS: Okay. Can we just go 24 a step further and say "at their expense," so that there's 25 no question about it? 34 1 JUDGE HENNEKE: Sure. 2 MS. BAILEY: I'll put it in there. 3 COMMISSIONER WILLIAMS: At the applicant's 4 expense. 5 MS. BAILEY: At the other party's expense, 6 'cause there could be someone contesting the right to put in 7 a business. 8 COMMISSIONER GRIFFIN: Yeah, an interested 9 party is both sides of the issue. Either side of the issue. 10 COMMISSIONER WILLIAMS: At their expense. 11 COMMISSIONER GRIFFIN: Mm-hmm. 12 MS. BAILEY: Right. And then, the following 13 provisions basically relate to holding the hearing and the 14 process with the -- the Justice of the Peace can make 15 evidentiary decisions, exclude things. Relevance and 16 materiality decisions. That will be, I think, more easily 17 done when we have a Justice of the Peace doing them than if 18 it were any other kind of hearing officer, because they're 19 very familiar with doing that sort of process. 20 On the next page, down in (f), this scenario 21 contemplates, at the end of the hearing, the Justice of the 22 Peace producing a -- a written set of findings and 23 recommendation. For instance, if they're going to permit 24 the business to -- to start out, but there are restrictions 25 on it, some particular kind of restriction, that would be 35 1 part of the recommendations from the Justice of the Peace. 2 Then that would go to the Sheriff, who would then issue the 3 license. Then, of course, under Section XII, we get into 4 those time frames that we're going to expand to 60 days and 5 to 10 days. 6 Then the next part -- the whole next page has 7 to do with mandatory denials of the permit. These are not 8 the exclusive reasons for which a permit can be denied, but 9 if you find any of these, the permit must be denied. And, 10 it includes whether the applicant is -- has been convicted 11 of any specific crimes within a specific time period. Most 12 of these are violence or sex-related offenses. This does 13 not mean that an application could not be denied for other 14 criminal offenses, but we can't put the whole Penal Code in 15 there, because then I think we'd be unduly restricting their 16 right to operate businesses. All of these offenses can be 17 rationally related to the kind of criminal activities that 18 are traditionally associated with these kind of businesses, 19 which is why they're included there. 20 COMMISSIONER BALDWIN: So, this portion is 21 straight out of the Penal Code, and then the law allows us 22 to stretch or to bend or to add to? 23 MS. BAILEY: Exactly. For instance, theft is 24 not -- this just is an example. I don't see theft in here 25 as a mandatory conviction requiring mandatory denial of the 36 1 permit. Because you can -- you know, there are -- there are 2 thefts and then there are thefts. If you had someone who 3 had multiple convictions for forgery related to a business 4 practice, that might be a reason to restrict or deny that 5 permit, whereas it's not mandatory in here. 6 Then, on Page 21, it goes on to talk about 7 different crimes or whether they're prohibited enterprises. 8 One of the things that would allow the permit to be denied 9 is if an applicant is delinquent in payment of county taxes, 10 fees, fines, or penalties assessed or imposed regarding the 11 operation of a sexually-oriented business, or if they hadn't 12 paid their fees, or if they've been operating -- employed in 13 a managerial capacity of another business that has been 14 declared a public nuisance by the Civil Practice and 15 Remedies Code. The Sheriff is allowed to attach reasonable 16 conditions to the permits pursuant to the recommendations -- 17 JUDGE HENNEKE: Well -- 18 MS. BAILEY: Yes, sir? 19 JUDGE HENNEKE: The tax thing relates to 20 taxes regarding the operation of a business. 21 MS. BAILEY: Of that business. 22 JUDGE HENNEKE: SOB. 23 MS. BAILEY: Right. 24 JUDGE HENNEKE: What if the owner of the 25 property is delinquent in their property taxes? 37 1 MS. BAILEY: Again, I think that goes back to 2 whether we're talking about mandatory or permissive denial. 3 I think that since this is under a section where it's 4 mandatory, denial of the permit relating it to the business 5 is really appropriate. That's not to say that they couldn't 6 be required to come current on their own taxes as a 7 condition of retaining their license. In other words, the 8 Justice of the Peace could introduce or consider those kind 9 of issues as a restriction or permissive denial, but I don't 10 think it would be appropriate to put it as a -- a required 11 denial. 12 JUDGE HENNEKE: And that is why -- 13 MS. BAILEY: Because for the -- for the same 14 reason that all of these restrictions have to be real 15 careful. The further you go in making ways to mandatorily 16 deny it, the -- the closer you get to inviting a lawsuit. 17 You know, what's the rational relationship between 18 mandatorily denying my right to engage in this business 19 because I have not paid my homeowners' taxes over here? 20 JUDGE HENNEKE: I didn't say homeowners' tax, 21 I said taxes on the premises where the business is located. 22 MS. BAILEY: Well, but that would -- if it's 23 on the premises, doesn't that have to do with the business? 24 It was -- if they're delinquent in payment of any County 25 taxes or fees regarding the operation of the business, it 38 1 seems to me like that -- 2 JUDGE HENNEKE: "...assessed or imposed 3 regarding the operation of the sexually-oriented business." 4 MS. BAILEY: Just put "and premises"? 5 JUDGE HENNEKE: Sure. 6 MS. BAILEY: As long as it's related to the 7 business, I don't have -- 8 COMMISSIONER GRIFFIN: What about the case 9 where the owners of this business are leasing the property 10 from a -- 11 JUDGE HENNEKE: Most of them will. 12 COMMISSIONER GRIFFIN: Yeah, a land holding 13 company. If that land holding company doesn't pay their 14 taxes, the business doesn't have anything to do with it. 15 JUDGE HENNEKE: The business is leasing the 16 property. I mean, you know, I think we have a -- 17 COMMISSIONER GRIFFIN: I'm just saying 18 legally. 19 JUDGE HENNEKE: We also have an obligation to 20 collect taxes. So -- 21 MS. BAILEY: Otherwise, everyone would just 22 go out and lease their property. 23 COMMISSIONER GRIFFIN: We can go through 24 other means, not through the ordinance. If the taxes aren't 25 being paid on the business, we can go -- we can go take the 39 1 property and -- and auction it off on the courthouse steps. 2 We have other remedies. 3 JUDGE HENNEKE: And get about 20 percent of 4 what we're owed, typically. 5 MS. BAILEY: But, what I mean is that, 6 legally, we may be plowing up a snake here in that if we -- 7 if we say that if the landowner doesn't pay the -- the 8 taxes, that we're going to -- we're going to shut down the 9 business that's operating there. 10 JUDGE HENNEKE: We're going to deny the 11 application. 12 MS. BAILEY: Yeah, we're going to deny the 13 application. It seems like, to me, that that business may 14 have legal recourse to go and say, "Look, Judge, I don't 15 have anything to do -- all I do is run my business. I don't 16 pay the taxes; I don't own the property, and I've done 17 everything I'm supposed to do." 18 JUDGE HENNEKE: Where's Tommy? Tommy? 19 MR. HALL: Yes, sir? 20 JUDGE HENNEKE: Is there any requirement for 21 an alcohol permit that all the ad valorem taxes be paid? 22 MR. HALL: No, sir. 23 JUDGE HENNEKE: There's not? 24 MR. HALL: No, sir, we leave that to the 25 statutes, handled way up, like Commissioner Griffin 40 1 mentioned. 2 JUDGE HENNEKE: Okay thank, you. All right. 3 MS. BAILEY: So, I should leave it the way it 4 is, then? 5 JUDGE HENNEKE: I think so. 6 MS. BAILEY: All right. 7 COMMISSIONER BALDWIN: Commissioner Griffin, 8 "plow up a snake"? 9 COMMISSIONER GRIFFIN: Well, sometimes in an 10 honest endeavor, you turn up something you didn't want to 11 turn up. That's -- 12 COMMISSIONER BALDWIN: "Plow up a snake." Is 13 that Houston language, or -- 14 COMMISSIONER GRIFFIN: No, that's east Texas. 15 COMMISSIONER BALDWIN: East Texas, okay. I 16 thought I recognized it. 17 MS. BAILEY: I knew what he was talking 18 about. 19 JUDGE HENNEKE: If there's any plowing, 20 Buster, you'd know what that was all about. 21 COMMISSIONER BALDWIN: Listen, I just did a 22 program, a forum; I plowed up some snakes there. 23 JUDGE HENNEKE: That's not plowing, that's 24 tap dancing. 25 COMMISSIONER BALDWIN: I see. 41 1 COMMISSIONER GRIFFIN: That's tap dancing. 2 MS. BAILEY: Let's see. On the next page, 3 Judge, you had underlined in Subsection (c), the enterprise 4 shall have the opportunity to appear before a hearing 5 examiner appointed by Commissioners Court. Of course, if we 6 change to Justice of the Peace, then you don't have any 7 question about that; is that right? 8 JUDGE HENNEKE: Right. 9 MS. BAILEY: Are those time limits ones that 10 you feel comfortable with in this same section? That the -- 11 within 10 days? 12 JUDGE HENNEKE: I think the 10 days is fine. 13 I think the 14 -- 14 MS. BAILEY: Might be a little bit -- 15 JUDGE HENNEKE: -- might be a little tight. 16 MS. BAILEY: Yeah. What would you all 17 suggest as an alternative? 18 COMMISSIONER LETZ: Thirty? 19 JUDGE HENNEKE: Twenty? 20 MS. BAILEY: Twenty. 21 JUDGE HENNEKE: Be four full weeks. Twenty. 22 COMMISSIONER GRIFFIN: How many? 23 JUDGE HENNEKE: Twenty. 24 MS. BAILEY: Twenty business days. 25 COMMISSIONER BALDWIN: Actually, 14, that 42 1 puts a burden on the J.P., doesn't it? 2 MS. BAILEY: Also, it isn't an even number of 3 weeks. You go into, like, one day in the following week. 4 Yeah, because a lot of times the J.P.'s are going to have 5 pretty full hearing schedules. I'll make that 20. Then, on 6 Page 24, again, there are a couple of questions about the 7 forms to be provided, and we will go through this and make 8 sure we have forms that fit all the places where they say 9 there's going to be a form required, and we'll bring those 10 to you for review. 11 Page 25, Section XVIII, Investigation. It 12 just says upon receiving application for the permit or 13 application for renewal, the Sheriff shall conduct an 14 investigation to determine compliance with these 15 regulations. And, Travis, you feel like the Sheriff's 16 Department's pretty comfortable with that duty being on 17 them? 18 MR. SEMORA: Yes. Yes. If could I mention, 19 on some of these, with the parties involved, we may be 20 looking at doing 25 or 30 criminal history checks, if all 21 the participants in the business come in. When you get into 22 the dancers, depending on how big an enterprise they try to 23 set up here, it's not uncommon for them to have 25 or 30 24 employees. We would have to do criminal history checks on 25 all of those, but that could be accomplished. If we get 43 1 more than one or two businesses trying to operate in this 2 county, that could become a manpower issue at some point. 3 COMMISSIONER BALDWIN: The -- the people that 4 you do a background history on -- just as an example, a 5 dancer, even. 6 MR. SEMORA: Yes, sir. I haven't -- 7 COMMISSIONER BALDWIN: What if Sally gets 8 fired Saturday night, you have a brand-new one in there on 9 Sunday morning? 10 MR. SEMORA: Well, I haven't had a chance to 11 read Ilse's ordinance at all, but if it's styled after the 12 Houston ordinance, all those people have to come in and be 13 permitted, so -- and if they dance without permits, they're 14 in violation, which is in violation of their permit. 15 MS. BAILEY: And if they sell liquor, it's a 16 violation of the liquor license too, isn't it? If you've 17 got a dancer dancing that's supposed to be licensed and is 18 not? 19 MR. HALL: Yes, but let me clarify there. 20 The State -- the T.A.B.C. will not issue an alcoholic 21 beverage permit to a totally new establishment. We have -- 22 we have laws in the Alcoholic Beverage Code and the Penal 23 Code that prohibit that. The all-nude places that you see 24 in the areas are B.Y.O.B., bring your own alcohol. We will 25 not permit those. 44 1 MR. SEMORA: Right. 2 MS. BAILEY: This order presupposes no total 3 nudity whatsoever. So, in theory, then, under this order, 4 they could still be -- they could still receive the liquor 5 license, theoretically. If -- 6 MR. HALL: Right. 7 MR. SEMORA: Right. 8 MS. BAILEY: But if they had a liquor license 9 and there was a dancer who was supposed to be licensed 10 herself and she wasn't, would that be a violation of the 11 liquor license, if they had one? 12 MR. HALL: Yes. We -- we have a -- a rule 13 that adopts City and County ordinances, so in turn, we could 14 take administrative action against the alcohol permit for 15 having a nonpermitted dancer. 16 MR. SEMORA: Right. I would presume most of 17 your businesses here would be topless, versus totally nude, 18 but it would not be beyond the expectation to figure that 19 somebody would try to come in and set up a totally nude and 20 get around the T.A.B.C. license and be a bring-your-own- 21 bottle club. 22 MS. BAILEY: And that's where this order 23 would fit in, because under that scenario, this order would 24 prohibit that business enterprise, because it would be 25 totally nude. 45 1 COMMISSIONER LETZ: What if they wanted to 2 set up a topless, but bring your own booze? 3 MS. BAILEY: Well, then they would be subject 4 to our order, but not any T.A.B.C. regulations. Under 5 Section XX, Transfer Prohibited, Judge Henneke had 6 suggested -- 7 COMMISSIONER GRIFFIN: Let me ask a question, 8 I'm sorry. We just went through and said, okay, this 9 ordinance doesn't allow totally nude operations, but it's 10 modeled after the Houston ordinance? 11 MS. BAILEY: The Harris County ordinance. 12 COMMISSIONER GRIFFIN: Harris County. Are 13 we -- did we change that? Did we add that, or was it in 14 the -- 15 MS. BAILEY: It was in the Harris County 16 ordinance like that. 17 COMMISSIONER GRIFFIN: Okay. So it's been 18 tested. I just wanted to make sure if -- 19 MS. BAILEY: Yes. With respect to transfer 20 of licenses being prohibited, that's essential, of course, 21 'cause we -- we're looking into the backgrounds of the full 22 applicants when we grant the license, so we want to make 23 sure it's not -- you know, a good, clean person that can get 24 a license, and then transfer it to someone that's 25 disreputable. Judge Henneke suggested that we add to that, 46 1 where it says "is not transferable, assignable, or 2 divisible" to include "either by action or operation of law; 3 i.e., stock sale and merger" to make it absolutely clear 4 that we don't have any kind of change, and that's a good 5 change. 6 COMMISSIONER GRIFFIN: That is. 7 MS. BAILEY: I don't see any other marks in 8 my order. I just want to tell you a couple of things that I 9 discovered from the other orders that I've been able to 10 check. On the Guadalupe County order, just to let you know, 11 they use 2,500 feet as their margin, which is -- which I 12 feel comfortable with doing that. Their licenses for fees 13 -- they actually have the fees in the order. So does -- no, 14 Comal County does not. Guadalupe uses $2,000 for the permit 15 for the -- the facility, and for entertainer, a $100 16 license. Those are annual fees, just to give you some idea 17 of, ballpark, what numbers they're using. 18 District Court hears appeals from the denial 19 or revocation of a license. We might want to include a 20 provision -- and I don't know if you want to make it 21 District Court or County Court at Law. Might be better to 22 have it County Court at Law. If I'm not mistaken, I -- 23 Guadalupe County may not have a County Court at Law. Do you 24 know, Judge? 25 JUDGE HENNEKE: I think they do. 47 1 MS. BAILEY: They do? I don't really have an 2 opinion either way as to how that ought to go, but clearly, 3 that's the place that a court of record hears some kind of 4 appeals, so we might want to include that. 5 MR. SEMORA: Could I mention something there? 6 MS. BAILEY: Sure. 7 MR. SEMORA: If I could mention something, 8 one of the things -- I wanted to add about five points. I 9 want to mention, one of them is enforcement down the road. 10 If these people are in violation, one of the things we'll be 11 looking to are the common and public nuisance laws in the 12 State of Texas, and also injunctive power from a court to 13 file an injunction against a club to continue operating in 14 violation of common and public nuisance laws and in 15 violation of a permit. My prior experience has been that we 16 did that in civil District Court, and so I'm really posing a 17 question in connection with what you're talking about here. 18 If we're pursuing common public nuisance prosecution by 19 State law, then I am posing a question to you. 20 COMMISSIONER GRIFFIN: Can do you that in 21 County Court at Law? 22 MS. BAILEY: In the same -- well, actually, 23 that's another thing that I wanted to mention, sort of 24 related to that issue, is that this order, I don't think, 25 specifies criminal penalties. And, I think we need to draw 48 1 -- and, certainly, Comal County and Guadalupe County 2 specifically say violation of this order is Class A 3 misdemeanor. The reason that that's important is that it's 4 much easier to do a criminal prosecution than to do an 5 injunction, 'cause in order for me to do an injunction, 6 first we have to determine that it's necessary. Then we 7 have to come to Commissioners Court to get authority to 8 proceed on a civil case. Then we have to have the papers 9 drafted and get an order from the Court. In the meantime, 10 you might have an enterprise operating for three weeks or a 11 month without any action being able to be taken, whereas if 12 you've got criminal penalties, you can jump right to the 13 criminal penalties and get people arrested and shut the 14 business down. 15 COMMISSIONER GRIFFIN: Question. How does 16 that work with T.A.B.C.? 17 MR. HALL: We have administrative and 18 criminal sanctions against the license, and we usually take 19 both. If the employee or the permit holder commits a 20 violation of the law, we file a criminal charge, most of the 21 time in County Court, against that person. Then we file an 22 administrative charge against the license that carries an 23 option of either taking a suspension for "X" number of days 24 or paying a civil penalty and staying open. That civil 25 penalty is set by the Legislature at no less than $150 per 49 1 day, so if you assessed a 10-day suspension of the permit, 2 they could take a 10-day close-up or pay a $1,500 civil 3 penalty and keep operating. 4 COMMISSIONER GRIFFIN: Model it after them. 5 COMMISSIONER BALDWIN: That sounds good. 6 COMMISSIONER GRIFFIN: I like that. 7 COMMISSIONER BALDWIN: My question is, I 8 don't understand the misdemeanor program. Is a Class A 9 misdemeanor, is that the -- 10 MS. BAILEY: That's the highest. 11 COMMISSIONER BALDWIN: -- toughest penalty 12 you can get before you get into the -- 13 MS. BAILEY: Into felonies. 14 COMMISSIONER BALDWIN: -- felonies? 15 MS. BAILEY: Exactly. It's got a potential 16 penalty range of 365 days in jail and $4,000 fine. 17 COMMISSIONER BALDWIN: Oh, I like it. I like 18 that. 19 MS. BAILEY: And since it's a misdemeanor, it 20 doesn't have to go before Grand Jury. We can just do it 21 with complaint information, which makes it a more 22 expeditious process. It doesn't answer the question that 23 Travis had about going to the same court for appeal and for 24 nuisance. I don't see a problem with that, but it might be 25 appropriate to have appeals from denial or revocation of 50 1 licenses go directly to County Court at Law, since it is the 2 trial level -- the lowest court of record, trial level 3 court. But, then have any injunctive relief that we need to 4 seek go through District Court, and then we wouldn't get in 5 a question of whether the same judge had already formed some 6 kind of opinion about the -- the enterprise from his hearing 7 of the appeal. Think that sounds good? And I don't think 8 we need to specify in the order the injunctive relief would 9 go to District Court, because that's statutory. District 10 Courts have the jurisdiction over that kind of injunctive 11 relief. 12 I thought it was interesting that Comal 13 County's order doesn't have the two different classes of 14 permits. It just permits the businesses, it doesn't permit 15 the entertainers. From what little I've been able to glean 16 from the people that do this regulation, the -- the people 17 who are regulated would much rather be in a position of not 18 having two different types of permits, 'cause it's more 19 difficult for them to run their business if they always have 20 to figure out which, you know, dancers got which licenses. 21 To me, I think that that sort of mitigates in favor of 22 having the two different kind of licenses. Clearly, 23 those -- those issues need to be addressed, and we don't 24 want to just have any random people that we don't have 25 knowledge of who are performing in these establishments and 51 1 going back and forth from one place to another. 2 MR. SEMORA: Could I support you in that? 3 MS. BAILEY: Yeah. In fact, you have more 4 information than I do. 5 MR. SEMORA: Well, if I could support her in 6 that, if you have experience with these type places and the 7 persons who do the dancing and whatever and the problems 8 that come out of them, one of the problems can come out of 9 the customers being slipped "mickeys," so-to-speak. And, a 10 lot of these girls make as much or more money off thefts of 11 credit cards, more money that way than they do dancing. 12 While they're doing their dancing or entertainment, 13 sometimes they strike a customer, steal credit cards or 14 money, whatever. And, if -- and one nice thing about having 15 the dancers, the entertainers, themselves, permitted is we 16 have records of whoever is supposed to have been employed 17 there. And then, if we have a reoccurring problem that only 18 happens when Dancer "X" is at that club, you know, that -- 19 that helps narrow our focus on the investigation, and also 20 helps prove up things for common and public nuisances later. 21 So, it is important. And, that can be a problem, the theft 22 and other type crimes that occur out there other than your 23 sexually-oriented-type crimes. 24 MS. BAILEY: The only other note that I'd 25 made to myself is that in all of the orders I was able to 52 1 find, the Sheriff does the reviewing and the investigating 2 and the recordkeeping, so that we're in line with the other 3 ones on that. If there are any other questions, I'd be 4 happy to address them. 5 JUDGE HENNEKE: I believe Rusty has a 6 comment. 7 MR. HIERHOLZER: Only thing, since in this 8 one y'all are actually making the Justice of the Peace, you 9 know, handle these, should there be something in there 10 regarding if there is a conflict of interest from that 11 Justice of the Peace, that another one -- going back to the 12 Code of Criminal Procedure, then, you know, relating it back 13 to another one would hear it, a different one? Because you 14 do have some -- and not saying anything about Justices of 15 the Peace, but being that that's also an elected position, 16 you could have a Justice of the Peace that may also have a 17 separate business on the side. And, under the way the law's 18 written, how are you going to avoid conflicts of interest? 19 COMMISSIONER WILLIAMS: Or a brother-in-law 20 who opened up a -- 21 JUDGE HENNEKE: That's probably a good idea. 22 What we should do is put a provision in there that if a 23 Justice of the Peace of the precinct in which the business 24 is located recuses himself or is found to have other 25 conflicts of interest, then the Commissioners Court would 53 1 designate a J.P. to conduct the hearing. 2 COMMISSIONER GRIFFIN: Only reservation that 3 comes to mind on that one is -- is that you could also, in 4 the injunctive side, have a District Court Judge who could 5 have a conflict of interest, and there are procedures 6 already for recusing themselves if they have a conflict. 7 JUDGE HENNEKE: But that's -- 8 COMMISSIONER GRIFFIN: I'm assuming the 9 J.P.'s do too, don't they? 10 JUDGE HENNEKE: What's missing is there's no 11 provision for designating someone else. If Judge Ables 12 recused himself from a hearing, then -- well, let's say 13 Judge Prohl. If Judge Prohl recuses himself from a matter, 14 Judge Ables, as the Administrative Judge, appoints someone 15 to take that -- that matter. 16 COMMISSIONER GRIFFIN: Okay. 17 JUDGE HENNEKE: We need to set out a 18 procedure where, if one of our J.P.'s, for whatever reason, 19 is unable to ethically and legally hear that matter, then 20 there's a procedure where we tell someone else to do it. 21 MS. BAILEY: Well, and in particular, since, 22 I mean, in -- theoretically, you could have a circumstance 23 where maybe all four Justices of the Peace would be 24 conflicted for some reason, and that at least that's a 25 situation where the Commissioners Court can appoint someone 54 1 in their place. 2 COMMISSIONER GRIFFIN: I see the distinction. 3 MS. BAILEY: That's all I have. 4 MR. HALL: I have a question. Does the 5 proposed ordinance cover -- and this happens in Kerr County 6 quite often with our alcohol license establishments. Every 7 once in a while they will bring in girls or guys to put on a 8 sexually-oriented show for an afternoon or an evening. I 9 know we have some guys coming out here to a place in the 10 city. Would this -- would this cover to where those guys or 11 gals would have to be permitted to come in to put on a 12 4-hour show? 13 MS. BAILEY: I think it does, but I can't -- 14 I can't identify it right away. I'm assuming we do want 15 that covered if it's not covered locally in there. 16 MR. SEMORA: Does your draft include -- well, 17 it includes the definition of a sexually-oriented business 18 in there. Participation in certain activity -- if they're 19 participating in certain activity that falls within the 20 definitions of the sexually-oriented business, be it for an 21 hour or moments of an entertainment or routine business, 22 would it fall under the draft you have? 23 MS. BAILEY: I seem to recall that it does, 24 but I'm not certain of it. I'll just make sure that it 25 does. 55 1 MR. SEMORA: Would I be able to mention a 2 couple things? I had a brief conversation with the Sheriff. 3 The Sheriff doesn't have any real concerns about manpower at 4 this point, as we don't have any existing businesses, and 5 we're looking at maybe one possible known applicant. 6 Registration costs, there could be some minor costs involved 7 there. If we're going to give the entertainers and their 8 operators a Sheriff's Department permit I.D., then there 9 could be some minimum cost with the I.D. cards and 10 laminating. It would be best done with a digital camera 11 where you lay the photo into the paper and then laminate it. 12 We're not looking at a huge cost. We have a digital camera 13 in our jail facility. But, once again, we're not looking at 14 huge costs there, but there could be some costs there. 15 We already discussed courts of jurisdiction. 16 One thing we -- I can assure you that we would be looking at 17 at the Sheriff's office, and there could be an issue later, 18 we would have a standard operating procedure for 19 investigation, inspection, and review for these places. 20 That's always an issue that comes up, but we would have that 21 standard operating procedure. And, I just reassure you that 22 if we have violations there, in addition to violations of 23 the County ordinance and the permit process, we would be 24 pursuing the common and public nuisance law enforcement 25 there. And, that's all I have to add. 56 1 JUDGE HENNEKE: Anyone have any additional 2 questions or comments? 3 COMMISSIONER BALDWIN: Well, only comment I 4 have is that this type of business, in my view, is an 5 abomination to our county, and we need to -- and it appears 6 to me that we are restricting or making these -- making it 7 as tough as we possibly can for anyone to even open -- open 8 the door. And, I appreciate -- appreciate all y'all have 9 done. This is good. If you can find a way to make it even 10 tougher, I'm in favor of it. 11 JUDGE HENNEKE: When would this be available 12 for us to approve and set a public hearing on? 13 MS. BAILEY: These are pretty limited 14 amendments that I need to make to it. I could do it in a 15 very short period of time. 16 JUDGE HENNEKE: When you're ready, you need 17 to put it on the agenda so we can approve it and set a 18 public hearing. 19 MS. BAILEY: What I'll do is I'll provide it 20 back to you, Commissioner Baldwin, since you're the one that 21 got the ball rolling. 22 COMMISSIONER BALDWIN: Very good. I'll 23 handle it. 24 COMMISSIONER GRIFFIN: Could we put it on for 25 next week? 57 1 COMMISSIONER BALDWIN: We have a nighttime 2 meeting next week. 3 MS. BAILEY: Is that soon enough for 4 publishing, or do you want to have -- 5 JUDGE HENNEKE: No, we have to approve it. 6 MS. BAILEY: Approve it, and then -- 7 JUDGE HENNEKE: Approve the ordinance, set a 8 public hearing on what we've approved, and then have a 9 public hearing and adopt the ordinance. 10 MS. BAILEY: If you want to put it on for 11 next week, I'll certainly have it within the next couple 12 days. 13 COMMISSIONER BALDWIN: Okay. So, we're going 14 to put it on for the nighttime meeting. 15 COMMISSIONER GRIFFIN: The 28th? 28th. 16 COMMISSIONER BALDWIN: Next Monday. Let me 17 ask you this, though. I still haven't found anything in 18 here about public hearings. What is the time frame? Are we 19 just going to give 14-day notice, or is there something in 20 the law that says that you shall have a public hearing 21 and -- 22 MS. BAILEY: Well, again -- 23 JUDGE HENNEKE: On the ordinance or on the 24 license? 25 COMMISSIONER BALDWIN: On the ordinance, 58 1 itself. 2 JUDGE HENNEKE: It wouldn't be in here, but 3 just like any other ordinance we have. 4 MS. BAILEY: I think, yeah, it just goes 5 under whatever regular -- 6 COMMISSIONER BALDWIN: Publish it in the 7 paper a couple of times or whatever. Yeah, okay. 8 MS. BAILEY: I'll get this to you as quickly 9 as I can. 10 COMMISSIONER BALDWIN: And, I guess -- I 11 guess our agenda item would be to adopt -- 12 JUDGE HENNEKE: TO approve. 13 COMMISSIONER BALDWIN: To approve. 14 JUDGE HENNEKE: And set a public hearing. 15 COMMISSIONER BALDWIN: And set a public 16 hearing, okay. 17 JUDGE HENNEKE: We don't adopt. 18 COMMISSIONER BALDWIN: Yeah, I understand. 19 MS. BAILEY: Yeah. You can do the agenda 20 item request now, as long as you don't have any problem 21 doing it without the actual first order in place. I've got 22 court all day today and I won't get it to you till -- 23 COMMISSIONER GRIFFIN: Deadline's in three 24 hours and 45 minutes. 25 COMMISSIONER LETZ: We don't need the draft 59 1 until Thursday or so. 2 MS. BAILEY: All right. I think I can do it 3 by then. 4 JUDGE HENNEKE: Any other questions? If not, 5 we stand adjourned. Thank you all for coming. 6 (Court was adjourned at 2:15 p.m.) 7 - - - - - - - - - - 8 9 10 11 12 STATE OF TEXAS | 13 COUNTY OF KERR | 14 The above and foregoing is a true and complete 15 transcription of my stenotype notes taken in my capacity as 16 County Clerk of the Commissioners Court of Kerr County, 17 Texas, at the time and place heretofore set forth. 18 DATED at Kerrville, Texas, this 25th day of February, 19 2000. 20 21 22 JANNETT PIEPER, Kerr County Clerk 23 BY: _________________________________ Kathy Banik, Deputy County Clerk 24 Certified Shorthand Reporter 25