Chapter 70 - OFFENSES AND MISCELLANEOUS PROVISIONS
Part of the Code of Ordinances of Burnet, TX.
The text
Footnotes:
--- (1) --- Cross reference— Civil emergencies, ch. 38.
State Law reference— Suit to abate prostitution, gambling, etc., V.T.C.A., Civil Practice and Remedies Code § 125.001 et seq.; preemption of criminal offenses by Penal Code, V.T.C.A., Penal Code § 1.08; municipal public health powers, V.T.C.A., Health and Safety Code § 122.005; abatement of health nuisances, V.T.C.A., Health and Safety Code § 341.011 et seq.
ARTICLE I. - IN GENERAL#
Sec. 70-1. - Tampering with city-owned facilities.#
It shall be unlawful for any person to do, commit, or assist in committing any of the following things or acts in the city: (1)
Open or close any fire hydrant or stopcock connected with the waterworks system of the city, or to lift or remove the covers of any gate valves or shutoffs thereof, without the permission of the city manager or his designee, except in case of fire, and then under the direction of the officers of the fire department.
(2)
Interfere with, destroy, deface, impair, injure, or wantonly force open any gate or door, or in any way whatsoever destroy, injure, or deface any part of the engine house, reservoir, standpipe, elevated tank, buildings or appurtenances, fences, trees, shrubs, fixtures or property appertaining to the waterworks system.
(3)
Go upon or ascend the stairway or steps on any elevated water storage tank or standpipes of the waterworks system, except by the permission of the waterworks superintendent.
(4)
Place any telegraph, telephone, electric light poles, or any obstruction whatsoever within three feet of any fire hydrant.
(5)
Interfere with any reservoir, tank, fountain, hydrant, pipe, cock valve, or other apparatus pertaining to the waterworks system, or to turn off or on without the authority, the water in any hydrant or water fixture, or to hitch or tie any animal thereto.
(6)
Tamper with an electric meter in any way.
(Code 1979, ch. 1, § 16(A))
Sec. 70-2. - Entry of fire station without permission.#
It shall be unlawful for any person to enter the fire station or any building used to house firefighting apparatus that is subject to the current use in fighting fires without the permission of a duly authorized city official or member of the city fire department, providing that this shall not apply to any employee of the city when acting in their official capacity. It shall be unlawful for anyone to tamper with, deface, or in any way do anything whatsoever that will impair or interfere with efficient use of any apparatus used in fighting fires, or for the prevention of fires.
(Code 1979, ch. 1, § 16(B))
Cross reference— Fire prevention and protection, ch. 46.
Sec. 70-3. - Discharge of firearms.#
(a)
Generally. It shall be unlawful for any person to shoot or discharge any gun, pistol, shotgun, rifle, arrow with explosive tip or other firearm of any description within the city limits of the city.
(b)
Discharge into the city. It shall be unlawful for any person to shoot or discharge any gun, pistol, shotgun, rifle, arrow with explosive tip or other firearm of any description into, over or through the city limits.
(c)
Firing ranges. Subsections (a) and (b) shall not apply to:
(1)
The discharge of a firearm at a gunsmith's establishment or a shooting facility lawfully operating pursuant to a permit issued in accordance with state law, when the firearm is discharged at an approved firing line in the direction of the targets and such discharge is otherwise in accordance with all terms and conditions imposed as a condition of the issuance of any permit; or
(2)
The discharge of a firearm by any person exercising any right expressly or impliedly granted by the laws of this state or the laws of the United States, the exercise of which expressly or implied includes the discharging of firearms.
(d)
Air guns. Unless otherwise provided for herein, it shall be unlawful for any person to shoot or discharge an air gun, air rifle, BB gun, pellet gun, or similar instrument over or through the city limits.
(e)
Pneumatic tools excepted. Nothing contained herein shall be deemed to prohibit the use of pneumatic nail guns or similar construction tools.
(f)
Exception for charity or non-profit events. This section shall not apply to the discharge of a firearm or air gun at a charity or nonprofit event being conducted with the approval of the city manager or his/her designee.
(g)
Certain other exceptions.
(1)
Subsections (a) and (b) shall not apply if any such gun or rifle is discharged within an enclosed building or shooting gallery or within any building or shooting gallery specifically designed for such discharges so long as no projectile discharged from said gun or rifle leaves the said building or shooting gallery; and
(2)
Subsections (a), (b) and (h)(1) shall not apply to the discharge of BB, #2, #4, #6, #8, or smaller shot from a shotgun or air gun equal to or less than .177 caliber; provided that such shotgun or air gun is discharged:
a.
At a place or location that prevents the discharged projectile from crossing the boundary line of any other property; and
b.
On a tract of land that is 100 acres or more in size or multiple contiguous tracts of land that are owned by the same property owner and that when aggregated equal at least 100 acres; and
c.
On a tract of land that has an agricultural zoning designation; and
d.
By the owner, and/or guests of the owner of the land on which the shotgun or airgun is discharged.
(h)
Hunting and trapping. It shall be unlawful for any person within the city either on public or private property to do any of the following acts:
(1)
To knowingly shoot, kill or hunt any wild game on a tract of land less than 100 acres or multiple contiguous tracts of land that are owned by the same property owner and that when aggregated equal at least 100 acres, by any means other than a shotgun or airgun as provided for in subsection (g)(2).
(2)
To set a trap or to trap any animal by the use of a steel-jawed spring trap or any other type of trap that would be injurious to the animal or person; provided, however, that this provision shall not prohibit the trapping of mice and rats with conventional mousetraps.
(3)
City staff, authorized by the city manager to destroy wild animals, may discharge firearms on public property for the purpose of destroying wild animals including but not limited to, snakes, deer in the city municipal airport, skunks, wild pigs, armadillos, possums, and other wild animals. Further, city staff may discharge firearms within the city limits as authorized by state statute for the destruction of animals.
(i)
Administration. The city manager is authorized to develop administrative rules to facilitate the efficient implementation of this section and protect the best interest of the city.
(Ord. No. 96-8, §§ 1—7, 5-14-96; Ord. No. 96-8A, 6-25-96; Ord. No. 2003-15, §§ 2, 3, 9-16-03; Ord. No. 2003-19, §§ 2, 3, 11-10-03; Ord. No. 2015-28, § 1, 1-12-16)
Sec. 70-4. - Nudity.#
(a)
No person shall appear in a state of nudity in any public place or in an area viewable from a public place in the City of Burnet, Texas. No intentional conduct is required to be in violation as it is the protection of the public which is at issue in this section.
(b)
"Nudity" shall have the same definition as found in section 118-67 of this Code.
(c)
"Public place" includes, but is not limited to any place to which the public or a substantial group of the public has access, any public right-of-way (including roadways), public easements, and commercial property which caters to the general public.
(d)
It is an affirmative defense to prosecution of this section that a person accused of violating this section is:
(1)
Under the age ten; or
(2)
Was performing at a duly permitted adult cabaret as that term is defined by section 118-67 of this Code.
(e)
A violation of this offense is punishable as a class C misdemeanor.
(Ord. No. 2012-01, 1-24-12)
Secs. 70-5—70-25. - Reserved.#
ARTICLE II. - MINORS#
DIVISION 1. - GENERALLY#
Secs. 70-26—70-35. - Reserved.#
DIVISION 2. - CURFEW#
Footnotes:
--- (2) --- Editor's note— Ord. No. 2016-02, § 2, adopted February 23, 2016, amended div. 2, §§ 70-36—70-41, in its entirety, to read as set out herein. Former div. 2 pertained to "Curfew Hours for Minors," and was derived from Ord. No. 2012-04, § 2, adopted February 28, 2012.
Sec. 70-36. - Short title.#
This division shall be known and may be cited as the "Curfew Hours for Minors Ordinance."
(Ord. No. 2016-02, § 2, 2-23-16; Ord. No. 2020-03, § 2, 2-11-20; Ord. No. 2023-01, § 2, 1-24-23)
Sec. 70-37. - Definitions.#
For the purposes of this division the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.
Curfew hours means: (1)
11:00 p.m. on any Sunday, Monday, Tuesday, Wednesday or Thursday until 6:00 a.m. of the following day; and
(2)
12:01 a.m. until 6:00 a.m. on any Friday or Saturday.
Emergency means an unforeseen combination of circumstances or the resulting state that calls for immediate action. The term includes, but is not limited to, a fire, a natural disaster, an automobile accident or any situation requiring immediate action to prevent serious bodily injury or loss of life.
Establishment means any privately-owned place of business operated for a profit to which the public is invited, including, but not limited to, any place of amusement or entertainment.
Guardian means: (1)
A person who, under court order, is the guardian of a minor; or
(2)
A public or private agency with whom a minor has been placed by a court.
Minor means any person under 17 years of age.
Operator means any individual, firm, association, partnership or corporation, operating, managing or conducting any establishment. The term includes the members or partners of an association or partnership and the officers of a corporation.
Parent means a person who is: (1)
A natural parent, adoptive parent or step-parent or another person; or
(2)
At least 18 years of age and authorized by a parent or guardian in writing to have the care and custody of a minor.
Public place means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities and shops.
Remain means to: (1)
Linger or stay; or
(2)
Fail to leave premises when requested to do so by a police officer or the owner, operator or other person in control of the premises.
Serious bodily injury means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
(Ord. No. 2016-02, § 2, 2-23-16; Ord. No. 2020-03, § 2, 2-11-20; Ord. No. 2023-01, § 2, 1-24-23)
Sec. 70-38. - Curfew related offenses.#
(a)
A minor commits an offense if he remains in any public place or on the premises of any establishment within the city during curfew hours.
(b)
A parent or guardian of a minor commits an offense if he knowingly permits, or by insufficient control allows, the minor to remain in any public place or on the premises of any establishment within the city during curfew hours.
(c)
The owner, operator or any employee of an establishment commits an offense if he knowingly allows a minor to remain upon the premises of the establishment during curfew hours.
(Ord. No. 2016-02, § 2, 2-23-16; Ord. No. 2020-03, § 2, 2-11-20; Ord. No. 2023-01, § 2, 1-24-23)
Sec. 70-39. - Exceptions and defenses.#
(a)
It is a defense to prosecution under section 70-38 that the minor was:
(1)
Accompanied by the minor's parent or guardian;
(2)
On a lawful errand at the direction of the minor's parent or guardian, without any detour or stop;
(3)
In a motor vehicle involved in interstate travel;
(4)
Engaged in an employment activity, or going to or returning home from an employment activity, without any detour or stop;
(5)
Involved in an emergency;
(6)
On the sidewalk abutting the minor's residence of a next-door neighbor if the neighbor did not complain to the police department about the minor's presence;
(7)
Attending an official school, religious or other recreational activity supervised by adults and sponsored by the city, a civic organization or another similar entity that takes responsibility for the minor, or going to or returning home from, without any detour or stop, an official school, religious or other recreational activity supervised by adults and sponsored by the city, a civic organization; or another similar entity that takes responsibility for the minor;
(8)
Exercising First Amendment rights protected by the United States Constitution, such as the free exercise of religion, freedom of speech and the right of assembly; or
(9)
Married or had been married or had disabilities of minority removed in accordance with V.T.C.A. Family Code, ch. 31.
(b)
It is a defense to prosecution under subsection 70-38(c) that the owner, operator or employee of an establishment promptly notified the police department that a minor was present on the premises of the establishment during curfew hours and refused to leave.
(Ord. No. 2016-02, § 2, 2-23-16; Ord. No. 2020-03, § 2, 2-11-20; Ord. No. 2023-01, § 2, 1-24-23)
Sec. 70-40. - Enforcement.#
Before taking any enforcement action under this division, a police officer shall ask the apparent offender's age and reason for being in the public place. The officer shall not issue a citation or make an arrest under this division unless the officer reasonably believes that an offense has occurred and that, based on any response and other circumstances, no defense in section 70-39 is present.
(Ord. No. 2016-02, § 2, 2-23-16; Ord. No. 2020-03, § 2, 2-11-20; Ord. No. 2023-01, § 2, 1-24-23)
Sec. 70-41. - Penalties.#
(a)
A person who violates a provision of this section is guilty of a separate offense for each day or part of a day during which the violation is committed, continued or permitted. Each offense, upon conviction, is punishable by a fine not to exceed $500.00.
(b)
When required by V.T.C.A, Family Code § 51.08, as amended, the municipal court shall waive original jurisdiction over a minor who violates subsection 70-38(a) of this division and shall refer the minor to juvenile court.
(Ord. No. 2016-02, § 2, 2-23-16; Ord. No. 2020-03, § 2, 2-11-20; Ord. No. 2023-01, § 2, 1-24-23)
Secs. 70-42—70-60. - Reserved.#
ARTICLE III. - SMOKING#
Sec. 70-61. - Smoking of tobacco prohibited.#
It shall be unlawful for any person to smoke, or possess, any lighted or burning cigarette, cigar, pipe, or tobacco, of any description, within any building owned and maintained by the city, and open to and used by the general public.
(Ord. No. 96-12, § 1, 9-24-96)
Sec. 70-62. - Notice.#
The city manager shall cause signs to be placed in one or more prominent places within each building owned and maintained by the city and open to and used by the general public, giving notice that the smoking and/or use of any lighted tobacco product is prohibited within such building. Such notice or notices shall be posted near the entrance of the building, It shall be sufficient that any such sign be eight inches by eight inches or larger, and contain the words "No Smoking."
(Ord. No. 96-12, § 2, 9-24-96)
Sec. 70-63. - Designated smoking area.#
The city manager may in appropriate circumstances designate an area or office in any city building open to the public as an area in which smoking is permitted. Except for any office so designated, any area so designated shall be identified with an appropriate sign bearing the words "Designated Smoking Area." It shall not be a violation of this article for a person to smoke a tobacco product within an area that has been so designated as an authorized "Designated Smoking Area."
(Ord. No. 96-12, § 3, 9-24-96)
Sec. 70-64. - Definitions.#
E-cigarette means any device which simulates tobacco smoking by producing a vapor that resembles smoke.
Enclosed area means a space that is enclosed on all sides by solid walls that extend from the floor to the ceiling, exclusive of windows and doors.
Operator means the owner or person in charge of a public place or workplace, including an employer.
Public place means an enclosed area to which the public is invited or in which the public is permitted, including but not limited to, banks, bars, educational facilities, health care facilities, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters, waiting rooms, and offices unless exempted as provided for herein. A private residence is not a "public place" unless it is used as a child care, adult day care, or health care facility.
Retail tobacco store means a retail store used primarily for the sale of tobacco products and accessories, including retail establishments primarily engaged in the sale of e-cigarettes and e-cigarette supplies, and in which the sale of other non-tobacco and non-e-cigarette products is incidental.
Smoking/smokes means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, weed, plant, or other combustible plant or plant derived substance. For the purpose of this ordinance, the term smoking/smokes shall include vaping.
Vaping mean the act of inhaling water vapor through an e-cigarette.
(Ord. No. 2014-23, § 3, 1-15-15)
Editor's note— Ord. No. 2014-23, § 2, adopted January 15, 2015, repealed § 70-64 in its entirety; and § 3 enacted a new § 70-64 to read as set out herein. Former § 70-64 pertained to penalties and was derived from Ord. No. 96-12, § 4, September 24, 1996.
Sec. 70-65. - Smoking prohibited.#
(a)
A person commits an offense if the person smokes:
(1)
In a public place.
(2)
Within 15 feet from an entrance or operable window of an enclosed area in which smoking is prohibited.
(b)
The owner, or operator, of a public place commits an offense if the person fails to take necessary steps to prevent or stop another person from smoking in an enclosed area in a public place.
(Ord. No. 2014-23, § 4, 1-15-15)
Sec. 70-66. - Exemptions.#
Public places and enclosed areas listed below are exempt from the provisions of this chapter. (1)
A dwelling unit used exclusively for residential use;
(2)
A facility operated by a fraternal organization for a charitable, benevolent, or educational function if the premises is controlled by the organization; and if:
a.
Areas in which smoking is permitted are clearly signed as smoking areas;
b.
An enclosed non-smoking area is provided and identified by no smoking signage complying with the terms of this chapter;
c.
The smoking area is mechanically ventilated to prevent smoke and vapors from entering a non-smoking area; and
d.
No one under the age of 18 is admitted to the smoking area.
(3)
A hotel or motel room designated and signed as a smoking room by the operator.
(4)
An office or other enclosed workspace that is not readily accessible by the general public provided the operator has designated and signed said office or workspace as an area in which smoking is permitted, and smoking is not otherwise prohibited by the adopted fire code of the city.
(5)
A private or semi-private room in a nursing home or long-term care facility that the operator has designated and signed as a smoking room and is occupied by individuals who smoke and have requested in writing to be placed in a room where smoking is permitted.
(6)
A retail tobacco store as defined herein.
(7)
A fenced, or otherwise contained patio or outdoor area that is adjunct to and restricted to use by patrons of a restaurant, café, or bar if said patio or outdoor area satisfies the requirements of this chapter, or if:
a.
The operator has designated and signed said patio or outdoor area as an area in which smoking is permitted; and
b.
Said patio or outdoor area is not located on a public sidewalk, alley, or right-of-way; and
c.
Said patio or outdoor area is located at least 15 feet from any operable window and any doorway used as a building entrance by the general public.
(Ord. No. 2014-23, § 5, 1-15-15)
Sec. 70-67. - No smoking signage.#
(a)
The operator of a public place shall conspicuously post a "no smoking" sign displaying the international "no smoking" symbol (depiction of a burning cigarette enclosed in a red circle with a red bar across it). No smoking signs shall also contain words prohibiting the use of e-cigarettes.
(1)
In each public place where smoking is prohibited by this chapter; and
(2)
At each entrance to a public place.
(b)
The operator of a public place shall conspicuously post signs in areas where smoking is permitted.
(c)
The operator of a public place shall remove any ashtray or other smoking accessory from a place where smoking is prohibited.
(d)
It is not a defense to prosecution under this chapter that an operator failed to post a sign required under this section.
(Ord. No. 2014-23, § 6, 1-15-15)
Sec. 70-68. - E-cigarettes, possession by and sale to minors.#
(a)
Possession of an e-cigarette by a minor shall be a violation of this ordinance.
(b)
Sale of an e-cigarette to a minor shall be a violation of this ordinance.
(Ord. No. 2014-23, § 7, 1-15-15)
Sec. 70-69. - Penalties.#
Any person convicted of violating any provision of this article shall be guilty of a Class "C" misdemeanor and shall be subject to a fine in an amount not to exceed $100.00 for a first offense, $250.00 for a second offense, and $500.00 for any subsequent offense. Each day of such violation shall be a separate violation.
(Ord. No. 2014-23, § 8, 1-15-15)
Secs. 70-70—70-80. - Reserved.#
ARTICLE IV. - STORAGE OF APPLIANCES#
Sec. 70-81. - Storage of appliances.#
It shall be unlawful for any person to deposit, leave, abandon or store any refrigerator, freezer, cooling box, icebox, oven range, stove, heater, washer, dryer, hot water heater or similar appliance on any vacant lot or unoccupied land within the city.
(Ord. No. 98-3, § 1, 2-10-98)
Sec. 70-82. - Removal or securing doors.#
It shall be unlawful for any person to deposit, leave, abandon or store any unused refrigerator, freezer, cooling box, icebox, commercial refrigerator or walk-in storage cooler unattended in any house, building, barn, structure, storage area, lot, or vacant land of any kind that is not fully and completely secured from any and all unauthorized entry, unless the door has first been removed from such refrigerator, freezer, cooling box, ice box, commercial refrigerator or walk-in storage cooler, or such door had been secured by a sturdy lock and chain in a manner to prevent the door from being opened more than three inches without removing the lock.
(Ord. No. 98-3, § 2, 2-10-98)
Sec. 70-83. - Owner and occupant responsible.#
It shall be unlawful for any person owning, occupying or in control of any property, to suffer, allow or permit any refrigerator, freezer, cooling box, icebox, commercial refrigerator or walk-in storage cooler to be or remain in or on the property or land in violation of sections 70-81 and 70-82 above.
(Ord. No. 98-3, § 3, 2-10-98)
Sec. 70-84. - Penalty.#
Any person who shall violate any of the provisions of this article, or shall fail to comply therewith, or with any of the requirements thereof, within the city limits shall be deemed guilty of an offense and shall be liable for a fine not to exceed the sum of $2,000.00. Each day the violation exists shall constitute a separate offense. Such penalty shall be in addition to all the other remedies allowed by law.
(Ord. No. 98-3, § 4, 2-10-98)
Secs. 70-85—70-89. - Reserved.#
ARTICLE V. - NOISE AND SOUND LEVEL REGULATION#
Footnotes:
--- (3) --- Editor's note— Ord. No. 2014-01, adopted January 28, 2014, repealed art. V, §§ 70-90, 70-91, in its entirety and enacted a new art. V, §§ 70-90—70-99 to read as set out herein. Former art. V, pertained to noise and was derived from Ord. No. 2003-01, §§ 2, 3, adopted January 28, 2003.
Sec. 70-90. - Definitions.#
The following words, terms, and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, unless the context of their usage clearly indicates another meaning:
Daytime hours shall mean the hours from 7:00 a.m. on one day and 10:00 p.m. the same day for residential properties or areas and 6:00 a.m. on one day and midnight on the same day for nonresidential properties or areas.
dB(A) shall mean the intensity of a sound expressed in decibels.
Emergency shall mean any occurrence or set of circumstances involving actual or imminent physical trauma or property damage or loss that demands immediate action.
Emergency work shall mean any work performed for the purpose of: (1)
Preventing or alleviating the physical trauma or property damage threatened or caused by an emergency,
(2)
Restoring property to a safe condition following a fire, accident, or natural disaster,
(3)
Protecting persons or property from exposure to danger, or
(4)
Restoring public utilities.
Nighttime hours shall mean the hours between 10:01 p.m. on one day and 6:59 a.m. the following day for residential properties or areas and 12:01 a.m. and 5:59 a.m. the same day for nonresidential properties or areas.
Nonresidential property/areas shall mean any real property that is not included in the definition of residential property as defined in this section. Without limitation, the term includes properties that have been zoned other than as residential property, and properties that are devoted to public purposes, such as public parks.
Plainly audible means any sound that can be detected by a person using his or her unaided hearing faculties. For example, if the sound source under investigation is a portable or personal vehicular sound amplification or reproduction device, the enforcement officer need not determine the name of the song, specific words or the artist performing it. The detection of the rhythmic bass component of the music is sufficient to constitute a plainly audible sound.
Property line shall mean, with respect to single occupancy properties, the line along the ground surface and its vertical extension that separates the real property owned, leased, or occupied by one person from that owned, leased, or occupied by another person. With respect to shared occupancy properties the term shall mean the imaginary line that represents the legal limits of occupancy of any person who owns, leases, or otherwise occupies an apartment, condominium, hotel or motel room, office, or any other type of occupancy from that of other occupants.
Residential property/areas shall mean any real property zoned residential (public, single family residential, multifamily)
Streets shall be defined as being in the same category as the surrounding zoning. In the case of residential properties/areas which are across the street from nonresidential properties/areas, the street shall be considered to be in a residential area.
(Ord. No. 2014-01, 1-28-14)
Sec. 70-91. - General prohibitions.#
(a)
It shall be unlawful for any person to make, continue, or cause to be made or continued any loud, unnecessary, or unusual noise that annoys, disturbs, injures, or endangers the comfort, repose, health, peace, or safety of others. In determining whether a noise is loud, unnecessary, or unusual, the following factors shall be considered: time of day; proximity to residential properties/areas as defined above; whether the noise is recurrent, intermittent, or constant; the volume and intensity; whether the noise has been enhanced in volume or range by any type of electronic or mechanical means; and whether the noise is subject to being controlled without unreasonable effort or expense to the creator thereof.
(b)
It shall be unlawful for any person to make, assist in making, permit, continue, cause to be made or continued, or permit the continuance of any sound that either exceeds the maximum permitted sound levels specified in section 70-95 ("Maximum permissible sound levels") or for purposes of section 70-92("Noisy vehicles generally"), section 70-93 ("Amplified sound"), and section 70-94("Noisy animals and birds") of this article, otherwise unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or safety of others.
(c)
The acts enumerated in the following sections of this chapter, among others, are declared to be loud, disturbing, and unnecessary noises in violation of this chapter, but such enumeration shall not be deemed to be exclusive.
(d)
This article shall not apply to any public utility or public works.
(Ord. No. 2014-01, 1-28-14)
Sec. 70-92. - Noisy vehicles generally.#
(a)
The use of any motor vehicle so out of repair or so extra loaded, that it creates any loud and unreasonable or unusual, (that is, not standard equipment for the type vehicle, or which violates state of Texas regulations for equipment or emissions), grating, grinding, rattling, or any other loud and unreasonable sound is hereby prohibited and declared to be unlawful.
(b)
No person shall operate an engine of any motor vehicle as defined by the state transportation code so as to "brake" or slow through the use of gears (commonly known as "jake braking") or by any other method which produces any noise in addition to the normal operating engine noise.
(c)
No person shall operate or allow an engine of any sort of motor vehicle, except emergency equipment or vehicles then located at a permitted public event or parade, to idle for more than one hour.
(Ord. No. 2014-01, 1-28-14)
Sec. 70-93. - Amplified sound.#
(a)
It shall be unlawful for any person to make, assist in making, permit, continue, cause to be made or continued, or permit the continuance of any sound using any sound amplifier that is part of or connected to any speaker system, radio, stereo receiver, compact disc player, cassette tape player, microphone, or any other sound source, when operated:
(1)
In such a manner as to disturb the peace, quiet, and comfort of the neighboring inhabitants, or
(2)
At any time with louder volume than is necessary for convenient hearing for persons who are in the vehicle or within the property or premises in which such sound amplifier is operated and who are voluntary listeners thereto.
The operation of any such sound amplifier in such a manner as to be plainly audible at a distance of 50 feet or more from a vehicle shall be presumed to be in violation of this section. The operation of any such sound amplifier in such a manner that bass sounds are plainly audible at a distance of 50 feet or more from the property line of a property or premises in which the amplification is located shall be presumed to be in violation of this section.
(b)
It is an affirmative defense to prosecution under this section that the sound source is a motor vehicle and that:
(1)
The motor vehicle is a mobile sound stage or studio that is being used on a stationary basis at a location not situated upon any street for the purpose of providing sound, during daytime hours, for an event or function and
(2)
The use is in compliance with all other provisions of this article.
(Ord. No. 2014-01, 1-28-14)
Sec. 70-94. - Noisy animals and birds.#
(a)
The keeping of any animal or bird that causes or makes frequent or long and continued sound that unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or safety of ordinary, reasonable persons of normal sensibilities and ordinary tastes, habits, and modes of living who reside in the vicinity thereof is hereby prohibited and declared to be unlawful as a sound nuisance in violation of this chapter, regardless of whether the sound so created by said animal or bird is within the permissible levels specified in section 70-95 (Maximum permissible sound levels").
(b)
In any prosecution for a violation of this section, the fact that any loud animal noise which disturbed any person and which occurs in residential areas either:
(1)
During nighttime hours; or
(2)
When none of the residents who reside at the place where the animal or bird is being kept are at home;
shall create a rebuttable presumption that such noise was in violation of this article.
(c)
In any prosecution for a violation of this section, the fact that any animal or bird has been allowed or permitted to persistently and chronically violate this section, as demonstrated by the issuance of two or more citations and or the receipt of two or more complaints from more than one household within a two-month period shall create a rebuttable presumption that such noise was in violation of this article.
(Ord. No. 2014-01, 1-28-14)
Sec. 70-95. - Maximum permissible sound levels.#
(a)
In addition to the violations established by the preceding sections of this chapter, no person shall conduct, permit, or allow any activity or sound source to produce a sound discernible beyond the property on which the sound is being generated that when measured as provided in ("Method of sound measurement") of this article exceeds 85 dB(A) during daytime hours and 70 dB(A) during nighttime hours for the respective areas described above.
Any sound that exceeds the dB(A) levels set forth in this section under the conditions and measurement criteria set forth in this chapter is a violation of this chapter. Evidence that an activity or sound source produces a sound that exceeds the dB(A) levels specified in this section shall be prima facie evidence of a sound nuisance that unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or safety of others in violation of this chapter.
(b)
Regardless of the measurable dB(A) level established above and measured as provided in section 70-96 ("Method of sound measurement"), below, the generator of any sound of such a nature as to cause persons occupying or using any property other than the property upon which the sound is being generated to experience physically detectable sound, vibrations or resonance at a distance of 50 feet from the source of the sound (measured as set out below) caused by the sound shall also be prima facie evidence of a sound that unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or safety of others in violation of this chapter.
(Ord. No. 2014-01, 1-28-14)
Sec. 70-96. - Method of sound measurement.#
Whenever portions of this chapter prohibit sound over a certain decibel limit, measurement shall be made with a calibrated sound level meter utilizing the A-weighting scale and the slow meter response as specified by the American Standards Association. Measurements recorded shall be taken so as to provide a proper representation of the sound being measured. The microphone of the meter shall be positioned so as not to create any unnatural enhancement or diminution of the measured sound. A wind screen for the microphone shall be used. Traffic, aircraft, and other transportation noise shall not be considered in taking measurements except where such background noise interferes with the noise being measured and cannot reasonably be distinguished from the primary noise. Measurements of sound generated shall be taken from the curb line of the nearest public street to the property where the sound is generated and taken toward the source of the sound. In the event that there is not at least 50 feet of distance from the building in which sound is being generated and from which sound is being measured, then measurements shall be taken from the street curb line opposite the said building of the nearest public street to the property where the sound is generated.
(Ord. No. 2014-01, 1-28-14)
Sec. 70-97. - Use of outdoor sound amplification equipment.#
(a)
No person shall use or cause to be used any loudspeaker, loudspeaker system, sound amplifier, or any other machine or device that produces, reproduces, or amplifies sound outside of buildings or other enclosed structures in a manner that exceeds the levels specified in section 70-96 ("Maximum permissible sound levels").
(Ord. No. 2014-01, 1-28-14)
Sec. 70-98. - Defenses.#
The following defenses shall apply to any offense established in this chapter, and the same must be specifically plead by anyone charged with a violation: (1)
The emission of any sound was for the purpose of alerting persons to the existence of an emergency, danger, or attempted crime, or was produced pursuant to any safety rule or regulation of any governmental entity or agency.
(2)
The sound was produced by an authorized emergency vehicle.
(3)
The sound was produced by emergency work.
(4)
The sound was generated:
a.
At a lawfully scheduled stadium event;
b.
At a lawfully scheduled city site;
c.
By a parade and spectators and participants on the parade route during a lawful parade;
d.
By spectators and participants at lawfully scheduled amphitheater event;
e.
By patrons and participants using cannons and gunfire during historical battle re-enactments for which a pyrotechnic permit was obtained and the explosives were inspected by the fire marshal;
f.
By a pyrotechnic display that was inspected and approved by the fire marshal; or
g.
By spectators and participants of any outdoor event, fun run, race, festival, fiesta, or concert that was sponsored or cosponsored by the city and in full compliance with a permit issued by the city.
(5)
The sound was produced by the erection, excavation, construction, or demolition of any building or structure, including the use of any necessary tools or equipment, which activity did not produce a sound exceeding 85 dB(A) when measured from the property line of the residential property where the sound is being received.
(6)
The sound was produced by aircraft, in flight or in operation at an airport, or railroad equipment in operation on railroad rights-of-way.
(7)
The sound was produced by operating or permitting the operation of any mechanically powered saw, drill, sander, router, grinder, lawn or garden tool, lawnmower, or any other similar device used between the hours of 7:00 a.m. and 9:00 p.m. when the sound is being produced for the maintenance or upkeep of the property on which it was operated.
(8)
The sound was produced by church bells or church chimes when used as part of a religious observance or service during daytime hours for the zone in which the church is located.
(9)
The sound was produced during daytime hours by activities conducted on public parks, public playgrounds, and public or private school grounds, including, but not limited to, school athletic, band and school entertainment practice or events.
(Ord. No. 2014-01, 1-28-14)
Sec. 70-99. - Penalty.#
(a)
It is an offense for any person to violate section 70-92, section 70-93, section 70-94, or section 70-95. An offense is punishable by a fine of not more than $500.00. Multiple violations may arise from the same occurrence if violations continue unabated after the issuance of a citation.
(b)
Enforcement hereunder shall not require the pleading or proving of any culpable mental state.
(Ord. No. 2014-01, 1-28-14)
ARTICLE VI. - EXHIBITION OF ACCELERATION#
Sec. 70-100. - Exhibition of acceleration prohibited.#
In any place visible to the general public, causing unreasonable, disturbing, or unnecessary noise by spinning, sliding, or squealing the tires of a motor vehicle, or otherwise causing the tires of a motor vehicle to lose traction with the road surface, is prohibited and is hereby declared to be a nuisance. This includes, but is not limited to, accelerating in a manner that causes the drive wheels to spin, the maneuver commonly referred to as "cutting donuts," and stopping a vehicle in a manner to cause the wheels to slide (except when necessary to avoid a collision).
(Ord. No. 2007-10, § 2, 5-8-07)
Sec. 70-101. - Penalty.#
Any person violating section 70-100 shall be fined not less than $100.00 nor more than $200.00.
(Ord. No. 2007-10, § 2, 5-8-07)
Secs. 70-102—70-109. - Reserved.#
ARTICLE VII. - WHEELIES#
Sec. 70-110. - Wheelies prohibited.#
In any area visible to the general public, causing the front wheel or wheels of a motorized vehicle to leave the driving surface (commonly known as a "wheelie") is prohibited and hereby declared to be a nuisance.
(Ord. No. 2007-10, § 3, 5-8-07)
Sec. 70-111. - Penalty.#
Any person violating section 70-110 shall be fined not less than $100.00 nor more than $200.00.
(Ord. No. 2007-10, § 3, 5-8-07)
Secs. 70-112—70-123. - Reserved.#
ARTICLE VIII. - ILLEGAL SMOKING MATERIAL AND ILLEGAL SMOKING MATERIAL PARAPHERNALIA#
Footnotes:
--- (4) --- Editor's note— Ord. No. 2010-24, § 2, adopted Jan. 11, 2011, enacted provisions intended for codification as §§ 70-4—70-10 of this Code. To preserve the style of this Code, and to facilitate indexing, said provisions have been redesignated as Art. X, §§ 70-124—70-130.
Sec. 70-124. - Definitions.#
Illegal smoking material shall mean any substance, however marketed, which can reasonably be converted for smoking purposes whether it is presented as incense, tobacco, herbs, spices or any blend thereof if it includes any of the following chemicals or a comparable chemical: (1)
Salvia divinorum or salvinorin A; all parts of the plant presently classified botanically as salvia divinorum, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts, derivative, mixture or preparation of such plant, its seeds or extracts;
(2)
2-[(1R, 3S)-3-hydroxycyclohexyl]-5-(2-methyloctan-2-yl) phenol (also known as CP47, 497) and homologues;
(3)
(6aS, 10aS)-9-(hydroxymethyl)-6, 6-dimethyl-3-(2-methyloctan-2-yl)-6a, 7, 10, 10a-tetra-hydrobenzo [c]chromen-1-ol (also known as HU-211 or Dexanabinol);
(4)
1-pentyl-3-(1-naphthoyl) indole (also known as JWH-018);
(5)
1-butyl-3-(1-naphthoyl) indole (also known as JWH-073); or
(6)
1-pentyl-3-(4-methoxynaphthoyl) indole (also known as JWH-081).
Products containing some or all of the above substances are currently being marketed under the following commercial names: "K-2", "K-2 Summit", "K-2 Sex", "Genie", "Dascents", "Zohai", "Sage", "Spice", "KO Knock-Out 2", "Spice Gold", "Spice Diamond", "Yucatan Fire", "Solar Flare", "Pep Spice", "Fire N' Ice", " Blaze" "Red X Dawn" and "Salvia Divinorum".
Any product containing any of the chemical compounds set forth above shall be subject to the provisions of this article, regardless of whether they are marketed under alternative names.
Illegal smoking material paraphernalia shall mean any paraphernalia, equipment or utensil that is used or intended to be used in ingesting or inhaling illegal smoking materials and may include, but is not limited to: (1)
A metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or without a screen, permanent screen, hashish head, or punctured metal bowl;
(2)
A water pipe;
(3)
A carburetion tube or device;
(4)
A smoking or carburetion mask;
(5)
A chamber pipe;
(6)
A carburetor pipe;
(7)
An electric pipe;
(8)
An air-driven pipe;
(9)
A chillum;
(10)
A bong; or
(11)
An ice pipe or chiller.
Person shall mean an individual, a group of two or more individuals, proprietorship, corporation, partnership, wholesaler, association or other legal entity, or any licensed or unlicensed business.
(Ord. No. 2010-24, § 2(70-4), 1-11-11)
Sec. 70-125. - Illegal smoking materials and illegal smoking material paraphernalia; purpose.#
The purpose of this article is to prohibit the purchase, sale, offer for sale, delivery, or gift of illegal smoking materials as defined herein within the city limits of the City of Burnet, and to prohibit the possession or use of illegal smoking materials and illegal smoking material paraphernalia within the city limits of the city. Any form of delivery, including, without limitation, a simple gift constitutes a violation of this article.
(Ord. No. 2010-24, § 2(70-5), 1-11-11)
Sec. 70-126. - Purchase, sale, delivery, offer, or gift.#
It shall be unlawful for any person to purchase, sell, offer for sale, deliver or to give any illegal smoking material to any person.
(Ord. No. 2010-24, § 2(70-6), 1-11-11)
Sec. 70-127. - Possession or use of illegal smoking materials.#
It shall be unlawful for any person to have in their possession or to use, inject, ingest, inhale, or otherwise introduce into the human body illegal smoking materials within the corporate limits of the city.
(Ord. No. 2010-24, § 2(70-7), 1-11-11)
Sec. 70-128. - Possession or use of illegal smoking material paraphernalia.#
It shall be unlawful for any person to have in their possession any illegal smoking material paraphernalia with the intent to use it, to ingest, inhale or otherwise consume or introduce into the human body illegal smoking material. It is a violation of this section, if a person is found in possession of illegal smoking material paraphernalia and appropriate forensic testing is done on the paraphernalia showing traces of illegal smoking material present on the paraphernalia.
(Ord. No. 2010-24, § 2(70-8), 1-11-11)
Sec. 70-129. - Affirmative defenses to prosecution.#
(a)
It shall be an affirmative defense to prosecution for a violation of this article if the use of the illegal smoking material is at the direction or under a prescription issued by a licensed physician or dentist authorized to prescribe controlled substances within the State of Texas.
(b)
It shall be an affirmative defense to prosecution under the terms of this article if an individual charged with a violation can provide proper and complete historic documentation that the use of such materials is a portion of a religious undertaking or activity of a religious denomination in which they have long standing historic membership supported by documentation from clergy or spiritual leader recognized by the state.
(Ord. No. 2010-24, § 2(70-9), 1-11-11)
Sec. 70-130. - Penalty.#
(a)
Any person who violates any provision of this article shall be guilty of a misdemeanor, punishable by a fine not to exceed $500.00.
(b)
Every act in violation of this article shall constitute a separate offense.
(c)
Unless otherwise specifically set forth herein, an allegation and/or evidence of culpable mental state is not required for the proof of an offense of this article.
(d)
The penal provisions imposed under this article shall not preclude the city from filing suit to enjoin the violation of this article. The city retains all legal rights and remedies available to it pursuant to local, state and federal law.
(Ord. No. 2010-24, § 2(70-10), 1-11-11)
ARTICLE IX. - SEX OFFENDERS#
Sec. 70-131. - Regulation of sex offender residency.#
(a)
Finding and intent. The city council finds that sex offenders who are required to register as a sexual predator under V.T.C.A., Code of Criminal Procedure, ch. 62, present an extreme threat to the health, safety and welfare of children. Sex offenders are likely to repeat an offense, have many more victims than are ever reported, are prosecuted for only a fraction of their actual sexual offenses, and children not only lack the ability to protect themselves but additional measures should be taken to keep known sex offenders from having access to children in areas where children generally feel safe.
It is the intent of this section to serve the city's compelling interest to promote, protect and improve the health, safety and welfare of the citizens of the city by creating areas around locations where children regularly congregate in concentrated numbers wherein certain registered sex offenders and sexual predators are prohibited from establishing temporary or permanent residency.
(b)
Definitions. The following words, terms, and phrases; when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning.
Any premises where children commonly gather. This term includes, but is not limited to, a playground, playscape, school, day care facility, crisis center or shelter, skate park, youth soccer or baseball field, video arcade facility, public or private youth center, or public swimming pool, as those terms are commonly understood and/or defined in V.T.C.A., Health and Safety Code § 481.134.
Minor. A minor is a person younger than 17 years of age.
Residence means the place within the city: (1)
Where a person registers or verifies under V.T.C.A., Code of Criminal Procedure art. 62.152 as the person's residence;
(2)
Where a person abides, lodges or resides for more than seven consecutive days;
(3)
Where a person abides, lodges or resides for a period of 14 or more days in the aggregate during any calendar year and which is not the person's permanent residence;
(4)
Where a person routinely abides, lodges, or resides for a period of four or more consecutive or non-consecutive days in any month and which is not the person's permanent residence; or
(5)
Where a person abides, resides, lodges or rents any space for any amount of time within the city's RV park located and designated on the map (exhibit A).
(c)
Sex offender residency prohibition; penalty; and exceptions.
(1)
It is unlawful for a person who is required to register on the state department of public safety's sex offender database pursuant to V.T.C.A., Code of Criminal Procedure ch. 62 because of a violation involving a victim who was less than 17 years of age, to establish a permanent or temporary residence within 1,000 feet of any premise where children commonly gather. It shall be prima facie evidence that this [section] and the database indicates that the victim was less than 17 years of age.
(2)
For the purpose of determining the minimum distance separation, the requirement shall be measured by following a straight line from the outer property line of the permanent or temporary residence to the nearest property line of the premises where children commonly gather, as described herein, or in the case of multiple residences on one property, measuring from the nearest wall of the building or structure occupied or the parking lot/driveway, whichever is closer to the nearest property line of the premises where children commonly gather, as described herein. A map generally depicting the prohibited areas is attached to this [section] as exhibit A for representation purposes, and a copy will be available at the city police department.
(3)
Civil and criminal penalties. The city shall have the power to administer and enforce the provisions of this section as may be required by governing law. Any person violating any provision of this section is subject to suit for injunctive relief as well as prosecution for criminal violations. Any violation of this section is hereby declared to be a nuisance.
a.
Criminal prosecution. Any person, firm or corporation violating a provision of this [section] shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $500.00 per violation. Each day that any violation of this section shall continue shall constitute a separate offense.
b.
Civil remedies. Nothing in this section shall be construed as a waiver of the city's right to bring a civil action to enforce the provisions of this [section] and to seek remedies as allowed by law including, but not limited to, the following:
1.
Injunctive relief to prevent specific conduct that violates the section or to require specific conduct that is necessary for compliance with the section; and
2.
A civil penalty up to $100.00 per day when it is shown that the defendant was actually notified of the provisions of the section and after receiving notice committed acts in violation of the section or failed to take action necessary for compliance with the section; and
3.
Other available relief.
(4)
Culpable mental state not required. Neither allegation nor evidence of a culpable mental state is required for the proof of an offense defined by this chapter.
(5)
Exceptions. This section does not apply to the following situations:
a.
The person is not required to comply with V.T.C.A., Code of Criminal Procedure ch. 62.
b.
The person was a minor when he/she committed the offense and was not convicted as an adult.
c.
The person is a minor.
d.
The premises where children commonly gather, as specified herein, within 1,000 feet of the person's permanent residence was opened after the person established the permanent or temporary residence and complied with all sex offender registration laws of the state.
e.
The person proves to the state department of public safety that the information on the database is incorrect and that, if corrected, this [section] would not apply to the person erroneously listed on the database.
f.
The person has established permanent residency prior to the effective date of this [section] by owning the property in fee simple and said person is in compliance with all sex offender registration laws of the state.
(6)
Property owners prohibited from renting real property to sexual offenders; penalty.
a.
It is unlawful to knowingly rent any place, structure or part thereof, manufactured home, trailer, or other conveyance, with the knowledge that it will be used as a permanent or temporary residence by any person prohibited from establishing such permanent or temporary residence pursuant to the terms of this Code, if such place, structure or part thereof, manufactured home, trailer, or other conveyance is located within 1,000 feet, as determined pursuant to subsection (c)(2) of this section, of any premises where children commonly gather.
b.
Penalty—civil and criminal penalties. The city shall have the power to administer and enforce the provisions of this section as may be required by governing law. Any person violating any provision of this section is subject to suit for injunctive relief as well as prosecution for criminal violations. Any violation of this section is hereby declared to be a nuisance.
1.
Criminal prosecution. Any person, firm or corporation violating a provision of this [section] shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed $500.00 per violation. Each day that any violation of this [section] shall continue shall constitute a separate offense.
2.
Civil remedies. Nothing in this section shall be construed as a waiver of the city's right to bring a civil action to enforce the provisions of this section and to seek remedies as allowed by law, including, but not limited to the following:
i.
Injunctive relief to prevent specific conduct that violates this section or to require specific conduct that is necessary for compliance with this section; and
ii.
A civil penalty up to $100.00 per day when it is shown that the defendant was actually notified of the provisions of the section and after receiving notice committed acts in violation of the section or failed to take action necessary for compliance with this section; and
iii.
Other available relief.
(7)
Affirmative defense. It is an affirmative defense to prosecution for an offense under this section that on or prior to the date of the alleged offense, the property owner conducted a criminal history check with the state department of public safety and reviewed the department of public safety's sexual predator registration database, and that at the time the property owner conducted the criminal history check and reviewed the sexual predator database the sexual offender's criminal history did not include a record of a sexual offense and the offender's name did not appear in the database.
(Ord. No. 2011-19, § 2, 2-14-12)
Editor's note— It should be noted that exhibit A is not set out at length herein but is on file and available for inspection at the city police department.