[HISTORY: Adopted by the Borough Council of the Borough of Tullytown 8-7-2007
by Ord. No. 309. Amendments noted where applicable.]
It is the purpose of this chapter to address the negative impacts associated
with adult or sexually oriented businesses, as identified in the legislative
findings made in connection with the adoption of this chapter to reduce or
prevent neighborhood blight; to protect and preserve the quality of the Borough's
neighborhoods and commercial districts, to protect the Borough's retail
trade, to maintain property values; to protect and preserve the quality of
Borough life; to reduce the incidence or unlawful activity, and to promote
the health, safety, moral and general welfare of the citizens of the Borough.
The provisions of this chapter have neither the purpose nor effect of imposing
a limitation or restriction on the content of any communicative materials,
including adult-oriented materials. Similarly, it is not the intent nor effect
of this chapter to restrict or deny access by adults to adult-oriented materials
protected by the First Amendment, or to deny access by the distributors and
exhibitors of adult-oriented entertainment to their intended market. Neither
is it the intent nor effect of this chapter to condone or legitimize the distribution
of obscene material.
A.
ADULT ARCADE
ADULT BOOKSTORE
ADULT BUSINESS
ADULT BUSINESS OPERATOR
ADULT BUSINESS OWNER
ADULT CABARET
ADULT ENTERTAINMENT ENTERPRISE
ADULT ENTERTAINMENT ROOM
ADULT HOTEL/MOTEL
ADULT MODELING STUDIO
ADULT MOTION-PICTURE THEATER
ADULT VISUAL MATERIALS OR VIDEO STORE
APPLICANT
BAR
CODE ENFORCEMENT OFFICER
DISTINGUISHED OR CHARACTERIZED BY AN EMPHASIS UPON
EMPLOYEE
ENTERTAINER
OPERATE AN ADULT BUSINESS
PERMITTEE
PERSON
REGULARLY FEATURES
SEMINUDE
SPECIFIED ANATOMICAL AREAS
SPECIFIED SEXUAL ACTIVITIES
(1)
(2)
(3)
(4)
(5)
For the purpose of this chapter, unless the context clearly
require different meaning, the words, terms and phrases set forth shall have
the meanings given them in this section.
Any place to which the public is permitted or invited wherein coin-operated
or slug-operated or electronically, electrically, or mechanically controlled
still or motion-picture or video machines, projectors or other image-producing
devices are maintained to show images to five or fewer persons per machine
at any one time, and where the images so displayed are distinguished or characterized
by the depicting or describing of specified sexual activities or specified
anatomical areas.
An establishment having as a substantial, significant, or preponderant
portion of its stock in matter which is distinguished or characterized by
their emphasis on content depicting, describing or relating to specified sexual
activities or specified anatomical areas, as defined herein.
Any adult or sexually oriented business, including any business establishment
that regularly features live performances which are distinguished or characterized
by an emphasis on the exposure of the genitals or buttocks of any person,
or the breasts of any female person, or specified sexual activities that involve
the exposure of the genitals or buttocks of any person, or the breasts of
any female person, or any business whose primary purpose is the sale or display
of matter that, because of its sexually explicit nature, may, pursuant to
state law or other regulatory authority, be offered only to persons over the
age of 18 years. Adult business may include an adult arcade, adult bookstore,
adult cabaret, adult hotel/motel, adult motion-picture theater, adult visual
materials or video store, adult modeling studio, or adult entertainment enterprise,
as defined herein.
A person who supervises, manages, inspects, directs, organizes, controls
or in any other way is responsible for or in charge of the premises of an
adult business or the conduct or activities occurring on the premises thereof.
A person or persons who hold a financial or other business interest,
in whole or in part, either singly or jointly, in an adult business. For purposes
of this chapter, indicia of ownership may be established by evidence including,
but not limited to, business license information, fictitious business name
registration, utility billing information, or by other competent evidence.
For purposes of this chapter, the person whose name appears on the business
license application as the business owner shall be deemed to be the adult
business owner.
A building or portion thereof or area regularly featuring the presentation
or exhibition of live performers whose performances are distinguished or characterized
by an emphasis on matter depicting, describing or relating to specified sexual
activities or specified anatomical areas as hereinafter defined; or whose
performances are rendered in a state of dress so as to expose the female breast
below a point immediately above the top of the areola, male or female genitals;
pubic areas; buttocks; or the female breast with only the nipple and areola
covered, or any combination thereof, for observation by patrons or customers.
Any business activity wherein is furnished for a fee or charge or
other like consideration the opportunity to paint, feel, handle, touch, be
in the presence of, be entertained by, be painted by, felt by, or touched
by, the unclothed body or the unclothed of the body of another person, or
to observe, view, or photograph such activity; or a fee or charge or like
consideration is paid or received for goods sold or services rendered by or
in the presence of one or more persons with an unclothed body or an unclothed
portion of the body. Adult entertainment enterprise shall include, but not
be limited to, the following business activities and activities similar thereto:
adult or nude encounter studios, adult or nude dance studios, nude exhibitions,
peep shows, wrestling centers, adult or nude art or photograph studios. "Unclothed
portion of the body" shall mean state of dress so as to expose the female
breast below a point immediately above the top of the areola, male or females
genitals, pubic areas, buttocks, or female breast with only the nipple and
areola covered.
Any room of an adult entertainment establishment which constitutes
an adult cabaret, adult motion-picture theater, adult entertainment enterprise,
or adult theater, or adult visual materials store pursuant to this section.
A hotel or motel or similar business establishment offering public
accommodations for any form of consideration which provides patrons with closed-circuit
television transmissions, films, computer-generated images, motion pictures,
videocassettes, slides, or other photographic reproductions 30% or more of
the number of which are distinguished or characterized by an emphasis upon
the depiction or description of specified sexual activities or specified anatomical
areas; and rents, leases, or lets any room for less than a six-hour period,
or rents, leases, or lets any single room more than twice in a twenty-four-hour
period.
A business which provides, for any form of compensation, monetary
or other consideration, hire or reward, figure models who, for the purposes
of sexual stimulation of patrons, display specified anatomical areas to be
observed, sketched, photographed, painted, sculpted or otherwise depicted
by persons paying such consideration. "Modeling studio" does not include schools
maintained pursuant to standards set by the State Board of Education. "Modeling
studio" further does not include a studio or similar facility owned, operated,
or maintained by an individual artist or group of artists, and which does
not provide, permit, or make available specified sexual activities.
A building or portion thereof or area, open or enclosed, used for
the presentation on more than 1/3 of the days in a calendar year during which
motion-picture films, videocassettes, cable television or any other such visual
media are displayed or exhibited, of films, videocassettes, cable television
or other visual media which are distinguished or characterized by an emphasis
on matter depicting, describing, or relating to specified sexual activities
or special anatomical areas as hereinafter defined for observation by patrons
or customers. Adult motion-picture theater does not include any room or suite
of rooms rented for human occupancy in a hotel or motel which is equipped
or furnished with a videocassette playing machine or cable television, unless
such hotel or motel is determined to be an adult hotel/motel as defined herein.
A building or portion thereof used by an establishment having not
less than 30% of its actual display area devoted to, or stock-in-trade for
sale or rental to the public or any segment thereof consist of, books, magazines,
other publications, films, videocassettes, or any combination thereof which
are distinguished or characterized by their emphasis on matter depicting,
describing or relating to specified sexual activities or specified anatomical
areas as hereinafter defined.
A person who is required to file an application for a permit under
this chapter, including an individual owner, managing partner, officer of
a corporation, or any other operator, manager, employee, or agent of an adult
business.
Any commercial establishment licensed by the State Liquor Control
Board to serve any alcoholic beverages on the premises.
The person responsible for ordinance enforcement functions within
the jurisdiction of the Borough, including, but not limited to, responsibility
for administration and enforcement of the provisions of this chapter.
Means or refers to the dominant or essential theme of the object
described by such phrase.
Every owner, partner, manager, supervisor, performer or other worker,
whether paid or not, who renders services of any nature in the conduct of
an adult business establishment. For purposes of this chapter, it shall be
a rebuttable presumption that every person who renders services of any nature
in the conduct of an adult business is an employee of the adult business.
Any person who is an employee or independent contractor of the adult
business, or any person who, with or without any compensation or other form
of consideration, performs live entertainment for patrons of an adult business.
The supervising, managing, inspecting, directing, organizing, controlling
or in anyway being responsible for or in charge of the conduct of activities
of an adult business or activities within an adult business.
The person to whom an adult business permit is issued.
Any individual, firm, association, partnership, coparty, corporation,
limited liability corporation, joint-stock company, joint venture or combination
of the above in whatever form or character.
With respect to an adult business means a regular, substantial course
of conduct. The presentation, in or at any building or portion thereof, of
live performances which are distinguished or characterized by an emphasis
upon the display of specified anatomical areas or specified sexual activity
on two or more occasions within a thirty-day period, three or more occasions
within a sixty-day period, or four or more occasions within a one-hundred-eighty-day
period shall to the extent permitted by law be deemed to be a regular and
substantial course of conduct.
A state of dress in which clothing covers no more than the genitals,
pubic region, buttocks, areola of the female breast, as well as portions of
the body covered by supporting straps or devices, such as by G-strings, pasties,
thongs, bikinis, or other similar forms of garments or devices.
Includes any of the following:
Includes any of the following, whether performed directly or indirectly
through clothing or other coverings:
Human genitals in a state of sexual stimulation or arousal;
Sexual acts, actual or simulated, including sexual intercourse, oral
copulation or sodomy;
Fondling or other erotic touching of human genitals, pubic region, buttocks
or female breast;
Masturbation, actual or simulated; and
This chapter does not apply to any activity conducted or sponsored by
a school district or other public agency; so long as such activity is being
conducted as part of and within the scope of an authorized and regular part
of the curriculum or is part of a training or instructional program being
conducted by a public agency.
A.
It shall be unlawful for any person to engage in, conduct,
or carry a permit to be engaged in, conducted or carried on, in or upon any
premises within the Borough the operation of an adult business unless the
person first obtains and continues to maintain in full force and effect a
permit issued by the Code Enforcement Officer as required by this chapter.
B.
A permit shall be issued to any applicant who has complied
with all the following requirements:
(2)
The applicant has not made a material misrepresentation
in the application for a license.
(3)
The establishment, including the building and lot or
portion thereof where the establishment is or is proposed to be situated,
and the physical facilities and maintenance related thereto, complies with
all the requirements of this chapter, as determined pursuant to one or more
inspections conducted by investigating officials of the Borough.
C.
Each application for a permit shall be accompanied by
a nonrefundable fee in an amount established by resolution of the Borough
Council. The application fee shall be used to defray, in part, administrative
costs incurred in the processing of the application, and is not made in lieu
of any other fees or taxes required under this Code.
A.
Any person who proposes to operate, maintain or conduct
an adult business in the Borough shall first submit to the Code Enforcement
Officer a complete application for an adult business permit on a form provided
by the Borough containing the information set forth in this section, and payment
of the required Borough nonrefundable application fee as established by resolution
and amended by the Borough Council from time to time. An application which
is not accompanied by the required application fee shall not be deemed a complete
application.
B.
If the applicant is an individual, the individual shall
state his/her complete name, including any aliases, address, and submit satisfactory
written proof that he or she is at least 18 years of age.
C.
If the applicant is a partnership, the partners shall
state the partnership's complete name, registered fictitious names, address,
the names and addresses of all partners, whether the partnership is general
or limited, and attach a copy of the partnership agreement, if any.
D.
If the applicant is a corporation, the corporation shall
provide its name, the date of its incorporation, evidence that the corporation
is in good standing under the laws of Pennsylvania, the names and capacity
of all officers and directors, the name of the registered corporate agent
and the address of the registered office for service of process.
E.
If the applicant is an individual, he or she shall sign
the application. If the applicant is other than an individual, an officer
of the business entity or an individual with a 10% or greater interest in
the business entity shall sign the application.
F.
If the applicant intends to operate the adult business
under a name other than that of the applicant, the applicant shall file the
fictitious name of the adult business and show proof of registration of the
fictitious name.
G.
Each application shall contain:
(1)
A narrative description of the proposed or existing adult
business for which the permit is requested, which shall include hours of operation,
number of employees and description of titles and/or positions.
(2)
A sketch or diagram showing the interior floor plan and
configuration of the premises, depicting all interior rooms including rest
rooms, office space, storage areas and public areas, and dimensions. The sketch
or diagram need not be professionally prepared, but shall be drawn to a designated
scale with marked dimensions of the interior of the premises to an accuracy
of plus or minus six inches. Rest rooms made available in the ordinary course
of business only to employees, and not to the general public or customers,
shall be specifically identified as such on the sketch or diagram.
(3)
A site plan showing the lot or property on which the
adult business is or will be located, the location of the building or portion
thereof in which the adult business is or will be located, the number of available
parking spaces, the location and type of available and proposed lighting,
landscaping, trash enclosures, and all means of ingress and egress to and
from the property. The site plan need not be professionally prepared, but
shall be drawn to scale with marked dimensions to an accuracy of plus or minus
one foot.
(4)
The full name, address and telephone number of the property
owner and/or property management company if different from the applicant,
a copy of the lease agreement in effect at the time of the application, if
any, and a copy of any other agreements, easements, conditions, covenants,
restrictions or other such documents, if any, that contain evidence affecting
the use or operation of the lot, property premises or structures which will
be subject to the permit for which the application has been submitted. If
any of the documents identified in this subsection do not exist, the application
shall contain a statement to that effect. If any of the documents identified
in this subsection exist but are not available to the applicant, the application
shall contain a statement to that effect, together with a statement describing
the contents of the documents to the best of the applicant's knowledge,
including the terms of any such leases, or other agreements, easements, conditions,
covenants, restrictions and other such documents.
H.
Each application shall also contain the following information
about the applicant, if the applicant is an individual:
(1)
Full name, including any aliases, current residential
address, telephone number, date of birth, social security number, and driver's
license number.
(2)
The previous address of each applicant for a period of
three years immediately prior to the date of application and the dates of
residence on each.
(3)
Written proof that the applicant is at least 18 years
of age.
(4)
Applicant's height, weight, color of eyes and hair.
(5)
Business, occupation or employment history of the applicant
for three years immediately preceding the date of the application.
(6)
Two recent passport-style color photographs.
I.
An adult business establishment lawfully existing and
operating on the effective date of this chapter shall apply for a permit within
90 days therefrom and shall be allowed to continue operating during the pendency
of the application process, including judicial review of a license denial
or restriction, unless otherwise ordered by a court of competent jurisdiction.
No provision herein shall be deemed to waive, limit or restrict the Borough's
right to petition a court of competent jurisdiction for an order suspending,
revoking or terminating any permit issued under the provisions of this subsection
under such terms and conditions as the court may determine, nor shall any
provision herein be deemed or interpreted to restrict or in any way limit
or compromise the right of the Borough to seek revocation of any use or occupancy
permit pertaining to the premises upon which an adult business is conducted
on any ground applicable to such revocations, including, but not limited to,
violations or failure to comply with any zoning, building, fire, electrical,
plumbing, and health codes or ordinances, it not being the purpose of this
chapter to confer upon applicants rights greater than those of any other applicant
not otherwise subject to the terms of this chapter, or to excuse or permit
violations of such codes or ordinances based on the adult entertainment nature
of the applicant's business.
J.
Upon application of any adult business establishment not lawfully existing and operating on the effective date of this chapter, a temporary permit not to exceed 30 days shall be issued immediately upon receipt of a completed application. This permit shall in all other respects be controlled by the provisions of immediately preceding Subsection I.
A.
Upon receipt of a completed application and payment of
the application and permit fees, the application shall be immediately stamped
as received by the Code Enforcement Officer.
B.
Within 30 days of receipt of the completed application,
the Code Enforcement Officer or his designated official shall conduct and
complete an investigation of the information contained in the application
to determine whether the applicant shall be issued an adult business permit
in accordance with the provisions of this chapter and notify the applicant
as follows:
(1)
The Code Enforcement Officer shall write or stamp "Granted"
or "Denied" on the application and date and sign such notation.
(2)
If the application is denied, the Code Enforcement Officer
shall provide a written statement of the reasons for denial.
(3)
If the application is granted, the Code Enforcement Officer
shall issue an adult business permit.
(4)
The application as granted or denied and the permit,
if any, shall be sent by United States mail, first-class postage prepaid,
addressed to the applicant to the address stated in the application.
C.
The Code Enforcement Officer shall grant the application
and issue a business permit upon finding that the applicant has met all of
the standards and requirements of this chapter. A permit shall be deemed issued
in the event the required inspections are not completed in a timely manner,
unless the failure to complete said inspections is the result of any delay
by the applicant, or to the applicant's refusal or inability to allow
the required inspection within 10 days of the end of the specified time period.
No provision herein shall be deemed to waive, limit or restrict the Borough's
right to petition a court of competent jurisdiction for an order suspending,
revoking or terminating any permit issued under the provisions of this chapter
under such terms and conditions as the court may determine, nor shall any
provision herein be deemed or interpreted to restrict or in any way limit
or compromise the right of the Borough to seek revocation of any use or occupancy
permit pertaining to the premises upon which an adult business is conducted
on any ground applicable to such revocations, including, but not limited to,
violations or failure to comply with any zoning, building, fire, electrical,
plumbing, and health codes or ordinances, it not being the purpose of this
chapter to confer upon applicants rights greater than those of any other applicant
not otherwise subject to the terms of this chapter, or to excuse or permit
violations of such codes or ordinances based on the adult entertainment nature
of the applicants business.
D.
Upon notification that the permit has been granted by
the Code Enforcement Officer, or if the director fails to either grant or
deny the application within 30 days of receipt of a completed application,
the applicant may begin operating as an adult business pursuant to the terms
and conditions of the permit as set forth in this chapter. The permittee shall
post the permit conspicuously in the premises of the adult business establishment.
Notification of the issuance of a permit, or of a permit being deemed issued
under any provision of this chapter, shall be given to the applicant by first-class
mail to the address provided in the application.
E.
Each adult business permit shall expire one year from
the date of issuance, or the date it is deemed issued, and may be renewed
only by filing with the Code Enforcement Officer a written request for renewal,
accompanied by the annual permit fee and a copy of the permit to be renewed.
The request for renewal shall be made at least 30 days before the expiration
date of the permit. When made less than 30 days before the expiration date,
the expiration of the permit will not be stayed. Each application for renewal
shall be acted on and processed as provided herein for action upon applications
for permits.
A.
Within 30 days of receipt of a completed application,
the Code Enforcement Officer shall deny an application for a permit if he
or she makes any of the following findings:
(1)
The establishment, including the building or portion
thereof where the adult business is or is proposed to be situated, and the
physical facilities and maintenance related thereto, lacks or is denied a
use and occupancy permit or fails to comply with all applicable provisions
of this chapter.
(2)
The applicant, his or her employee, agent, partner, director,
officer or manager has knowingly made any false, misleading or fraudulent
statement of material fact in the application for an adult business permit.
(3)
The applicant, or any of the following persons, has had
a license or permit issued pursuant to this chapter revoked within one year
of the date of the application.
B.
Transmittal of decision. The permit or decision to deny
the application shall be given to the applicant in writing, setting forth
specifically the ground or grounds upon which the decision is based, the pertinent
code section or sections, and a brief statement of the factual matters in
support thereof. The decision shall be mailed, certified mail, return receipt
requested, postage prepaid, addressed to the applicant at the last known address
of the applicant, and the address on the most recent permit application.
A.
Appeal to Council. Within 10 days from the deposit of
the denial in the mail or from its receipt by applicant, the applicant may
appeal in writing to the Council setting forth with particularity the ground
or grounds for the appeal. Any appeal hereunder to Council shall be conducted
according to the Pennsylvania Local Agency Law. The burden of proof shall
in all cases rest with the Borough. No provision herein shall be deemed to
waive, limit or restrict the Borough's right to petition a court of competent
jurisdiction for an order suspending, revoking or terminating any permit issued
under the provisions of this subsection under such terms and conditions as
the court may determine, nor shall any provision herein be deemed or interpreted
to restrict or in any way limit or compromise the right of the Borough to
seek revocation of any use or occupancy permit pertaining to the premises
upon which an adult business is conducted on any ground applicable to such
revocations, including, but not limited to, violations or failure to comply
with any zoning, building, fire, electrical, plumbing, and health codes or
ordinances, it not being the purpose of this chapter to confer upon applicants
rights greater than those of any other applicant not otherwise subject to
the terms of this chapter, or to excuse or permit violations of such codes
or ordinances based on the adult entertainment nature of the applicant's
business.
B.
Hearing on appeal. The Council or a committee of Council,
consisting of at least three members, or any other applicable Borough officer,
shall hear the appeal and shall set a time and place for the hearing on the
appeal not less than 10 days nor more than 30 days from the date the appeal
was received.
C.
Disposition of appeal. After the hearing on the appeal, the Council Committee may refer the matter back to the Code Enforcement Officer for a new investigation and decision, may affirm the denial of the application by the Code Enforcement Officer, or may approve the application. The matter shall not be referred back to the Code Enforcement Officer unless the applicant consents. Notice of the committee's decision shall be mailed to the applicant within 10 days of the hearing date. A permit shall be deemed issued if the Council committee shall fail to render a decision within the time required by this section. The permit so issued shall be governed and issued according to the provisions of § 39-6 hereof. No provision herein shall be deemed to waive, limit or restrict the Borough's right to petition a court of competent jurisdiction for an order suspending, revoking or terminating any permit issued under the provisions of this subsection under such terms and conditions as the court may determine, nor shall any provision herein be deemed or interpreted to restrict or in any way limit or compromise the right of the Borough to seek revocation of any use or occupancy permit pertaining to the premises upon which an adult business is conducted on any ground applicable to such revocations, including, but not limited to, violations or failure to comply with any zoning, building, fire, electrical, plumbing, and health codes or ordinances, it not being the purpose of this chapter to confer upon applicants rights greater than those of any other applicant not otherwise subject to the terms of this chapter, or to excuse or permit violations of such codes or ordinances based on the adult entertainment nature of the applicant's business.
An applicant whose application for a license has been denied may reapply
for such license after a period of not less than one year has elapsed from
the date such denial was deposited in the mail or received by the applicant,
whichever occurs first; provided, however, that an earlier reapplication may
be made if accompanied by evidence that the ground or grounds for denial of
the application no longer exist.
A permittee may be subject to suspension or revocation of a permit issued
pursuant to this chapter, or be subject to other appropriate disciplinary
action, for any of the following grounds arising from the acts or omissions
of the permittee, or employee, agent, partner, director, stockholder, or manager
of an adult business:
A.
The permittee has knowingly made any false, misleading
or fraudulent statement of material facts in the application for a permit,
or in any report or reports required to be filed with the Borough.
B.
The establishment, including the building and lot or
portion thereof where the establishment is or is proposed to be situated,
and the physical facilities and maintenance related thereto, fails to comply
with all provisions of this chapter.
C.
The permittee, employee, agent, partner, director, stockholder,
or manager of the adult business has knowingly allowed or permitted, and has
failed to make a reasonable effort to prevent the occurrence of any of the
following on the premises of the adult business establishment:
(1)
Any act of unlawful sexual intercourse, sodomy, oral
copulation, or masturbation.
(2)
The use of the establishment as a place where unlawful
solicitation of sexual intercourse, sodomy, oral copulation or masturbation
openly occur.
(3)
The occurrence of acts of lewdness or prostitution as
those terms are defined in 18 Pa.C.S.A. §§ 5902 and 5901.
(4)
Any act constituting a violation of 18 Pa.C.S.A. § 5903,
relating to the distribution of obscene and other sexual materials and performances.
(5)
Any act constituting a violation of provisions relating
to the distribution of dissemination of obscene matter to minors or that would
constitute corruption of minors as that is defined in 18 Pa.C.S.A. § 6301.
(6)
Any conduct constituting a criminal offense of which
an essential element consists of the use of force or violence.
(7)
Any act constituting a felony involving the sale, use,
possession, possession for sale of any controlled substance.
D.
Failure to comply with one or more of the facilities and operations requirements set forth in § 39-14.
E.
The existence of a condition of the premises as hazardous
or unsafe for human occupancy, in which event the Borough shall have the right
to elect as an alternative to the procedures established hereunder to petition
any court or competent jurisdiction for an order suspending the permit on
such terms and conditions as the court may determine.
F.
No provision herein shall be deemed to waive, limit or
restrict the Borough's right to petition a court of competent jurisdiction
for an order suspending, revoking or terminating any permit issued under the
provisions of this subsection under such terms and conditions as the court
may determine, nor shall any provision herein be deemed or interpreted to
restrict or in any way limit or compromise the right of the Borough to seek
revocation of any use or occupancy permit pertaining to the premises upon
which an adult business is conducted on any ground applicable to such revocations,
including, but not limited to, violations or failure to comply with any zoning,
building, fire, electrical, plumbing, and health codes or ordinances, it not
being the purpose of this chapter to confer upon applicants rights greater
than those of any other applicant not otherwise subject to the terms of this
chapter, or to excuse or permit violations of such codes or ordinances based
on the adult entertainment nature of the applicant's business.
Upon determining that grounds for permit suspension or revocation exist,
the Code Enforcement Officer shall furnish written notice of the proposed
suspension or revocation to the permittee. Such notice shall set forth the
time and place of a hearing. and the ground or grounds upon which the hearing,
is based, the pertinent code sections, and a statement of the factual matters
in support thereof. The notice shall be mailed; postage prepaid, addressed
to the last known address of the permittee, and/or shall be delivered to the
permittee personally.
A.
Hearing before Council. A hearing hereunder before Council
shall be conducted according to the Pennsylvania Local Agency Law. The burden
of proof shall in all cases rest with the Borough at every stage or the proceedings.
No provision herein shall be deemed to waive, limit or restrict the Borough's
right to petition a court of competent jurisdiction for an order suspending,
revoking or terminating any permit issued under the provisions of this subsection
under such terms and conditions as the court may determine, nor shall any
provision herein be deemed or interpreted to restrict or in any way limit
or compromise the right of the Borough to seek revocation of any use or occupancy
permit pertaining to the premises upon which an adult business is conducted
on any ground applicable to such revocations, including, but not limited to,
violations or failure to comply with any zoning, building, fire, electrical,
plumbing, and health codes or ordinances, it not being the purpose of this
chapter to confer upon applicants rights greater than those of any other applicant
not otherwise subject to the terms of this chapter, or to excuse or permit
violations of such codes or ordinances based on the adult entertainment nature
of the applicant's business.
B.
Hearing or appeal. The Council or a committee of Council,
consisting of at least three members, or any other applicable Borough officer,
shall hear the appeal and shall set a time and place for the hearing on the
appeal not less than 10 days nor more than 30 days from the date of the Code
Enforcement Officer's written notice pursuant to this section.
C.
Disposition of appeal. After the hearing, the Council
Committee may refer the matter back to the Code Enforcement Officer for a
new investigation and decision, may affirm the denial of the application by
the Code Enforcement Officer, or may approve the application. The matter shall
not be referred back to the Code Enforcement Officer unless the applicant
consents. Notice of the committee's decision shall be mailed to the applicant
within 10 days of the hearing date. A permit shall be deemed not to have been
suspended or revoked if the Council committee shall fail to render a decision
within the time required by this section. No provision herein shall be deemed
to waive, limit or restrict the Borough's right to petition a court of
competent jurisdiction for an order suspending, revoking or terminating any
permit issued under the provisions of this subsection under such terms and
conditions as the court may determine, nor shall any provision herein be deemed
or interpreted to restrict or in any way limit or compromise the right of
the Borough to seek revocation of any use or occupancy permit pertaining to
the premises upon which an adult business is conducted on any ground applicable
to such revocations, including, but not limited to, violations or failure
to comply with any zoning, building, fire, electrical, plumbing, and health
codes or ordinances, it not being the purpose of this chapter to confer upon
applicants rights greater than those of any other applicant not otherwise
subject to the terms of this chapter, or to excuse or permit violations of
such codes or ordinances based on the adult entertainment nature of the applicant's
business.
No refund or rebate of a permit fee shall be allowed by reason of the
fact the permit discontinues an activity for which a permit is required pursuant
to this chapter, or that the license is suspended or revoked.
In the event that a permit is canceled, suspended, revoked, or invalidated,
the permit shall be forwarded to the Code Enforcement Officer not later than
the end of the third business day after notification of such cancellation,
suspension, revocation, or invalidation.
All adult business establishments subject to the provisions of this
chapter shall comply with the following facilities and operations requirements:
A.
All adult business shall be operated in any manner that
permits the observation of any material or activities depicting, describing
or relating to specific sexual activities or specified anatomical areas from
any public way or from any location outside the building or area of such establishment.
This provision shall apply to any display, decoration, sign, show window or
other opening. No exterior door or window on the premises shall be propped
or kept open at any time while the business is open, and any exterior windows
shall be covered with opaque covering at all times.
B.
All off-street parking area and premises entries of the
adult business should be illuminated from dusk to closing hours of operation
with a lighting system which provides an average maintained horizontal illumination
of one footcandle of lighting on the parking surface and/or walkways. The
required lighting level is established in order to provide sufficient illumination
of the parking areas and walkways servicing the sexually oriented business
for the personal safety of patrons and employees and to reduce the incidence
of vandalism and criminal conduct. The lighting shall be shown on the required
sketch or diagram of the premises.
C.
The premises within which the adult business is located
shall provide sufficient sound-absorbing insulation so that noise generated
inside the premises shall not be audible anywhere on any adjacent property
or public right-of-way or within any other building or other separate unit
within the same building.
D.
With the exception of adult cabarets, each adult business
subject to this chapter shall close and remain closed from 12:00 midnight
to 9:00 a.m. the following day.
E.
The building entrance to an adult business shall be clearly
and legibly posted with a notice indicating that persons under 18 years of
age are precluded from entering the premises. The notice shall be constructed
and posted to the satisfaction of the Director of Public Safety or designee.
No person under the age of 18 years shall be permitted within the premises
at any time.
F.
All indoor areas of the adult business shall be physically
arranged in such a manner that the entire interior portion of the booths,
rooms, cubicles or stalls where adult entertainment is provided shall be clearly
visible from the common areas of the premises, excluding rest rooms. Rest
rooms may not contain video reproduction equipment.
G.
Visibility into booths, cubicles, rooms or stalls shall
not be blocked or obscured by doors, curtains, partitions, drapes or any other
obstruction whatsoever.
H.
No adult business shall contain partitions between subdivisions
of a room or portions or parts of a building, structure or premises with an
aperture which is designed or constructed to facilitate sexual activity between
persons on either side of the partitions.
I.
No viewing room may be occupied by more than one person
at any one time.
J.
Customers, patrons or visitors shall not be allowed to
stand idly by or in the vicinity of any such video booths, or from remaining
in the common area of such business, other than the rest rooms, who are not
actively engaged in shopping for or reviewing the products available on display
for purchaser viewing. Signs prohibiting loitering shall be posted in prominent
places in and near the video booths.
K.
The floors, seats, walls and other interior portions
of all video booths shall be maintained clean and free from waste and bodily
secretions. Presence of human excrement, urine, semen or saliva in any such
booth shall be evidence of improper maintenance and inadequate sanitary controls;
repeated instances of such conditions may justify suspension or revocation
of the owner's and operator's license to conduct the adult-oriented
establishment.
L.
All areas of the adult premises shall be equipped with
overhead lighting fixtures of sufficient intensity to illuminate every place
to which patrons are permitted access at an illumination of not less than
one footcandle as measured at the floor level. It should be the duty of the
operator and operator's agents to insure that the illumination required
by this subsection is maintained at all times that a patron is present or
the premises.
M.
The adult business shall provide and maintain separate
rest room facilities for male patrons and employees, and female patrons and
employees. Male patrons and employees shall be prohibited from using the rest
room(s) for females, and female patrons and employees shall be prohibited
from using the rest room(s) for males, except to carry out duties of repair,
maintenance and cleaning of the rest room facilities. The rest rooms shall
be free from any adult material. Rest rooms shall not contain television monitors
or other motion-picture or video projection, recording or reproduction equipment.
The foregoing provisions of this subsection shall not apply to an adult business
which deals exclusively with sale or rental of adult material which is not
used or consumed on the premises, such as an adult bookstore or adult video
store, and which does not provide rest room facilities to patrons or the general
public.
N.
The following additional requirements shall pertain to
adult businesses providing live entertainment depicting specified anatomical
areas or involving specified sexual activities:
(1)
No person shall perform live entertainment for patrons
of an adult business except upon a stage at least 18 inches above the level
of the floor which is separated by a distance of at least 10 feet from the
nearest area occupied by patrons, and no patron shall be permitted within
10 feet of the stage while the stage is occupied by an entertainer.
(2)
The adult business shall provide separate dressing room
facilities for entertainers which are exclusively dedicated to the entertainers'
use. No cameras or other surveillance devices shall be installed or maintained
by the adult business owner or operator in the dressing room facilities for
the purpose of broadcasting or projecting images for viewing by the patrons
of the establishment or for broadcasting or projecting images over the Internet.
(3)
The adult business shall provide an entrance/exit for
entertainers separate from the entrance/exit used by patrons.
(4)
The adult business shall provide access for entertainers
between the stage and the dressing rooms which is completely separated from
the patrons. If such separate access is not physically feasible, the adult
business shall provide a minimum three-foot-wide walk aisle for entertainers
between the dressing room area and the stage, with a railing, fence or other
barrier separating the patrons and the entertainers capable of (and which
actually results in) preventing any physical contact between patrons and entertainers.
(5)
No entertainer, either before, during or after performances,
shall have physical contact with any patron and no patron shall have physical
contact with any entertainer either before, during or after performances by
such entertainer. This subsection shall only apply to physical contact on
the premises of the adult business.
(6)
Fixed rail(s) at least 30 inches in height shall be maintained
establishing the separations between entertainers and patrons required by
this subsection.
(7)
Any of the foregoing provisions may be waived, modified
or altered if the physical characteristics of the premises upon which the
adult business is conducted are such that compliance with these provisions
is impossible or impractical. The standards and procedures governing such
waivers, modifications or alterations shall be those that govern zoning variances,
and the burden of proof shall be on the applicant to justify the proposed
waiver, modification or alteration.
O.
Adult businesses shall employ security guards in order
to maintain public peace and safety, based upon the following standards:
(1)
Adult businesses featuring live entertainment shall provide
at least one security guard at all times while the business is open. If the
occupancy limit of the premises is greater than 35 persons, an additional
security guard shall be on duty.
(2)
Security guard(s) for other adult businesses may be required if it is determined by the Code Enforcement Officer that their presence is necessary in order to prevent any of the conduct listed in § 39-10 from occurring on the premises.
(3)
Security guard(s) shall be charged with preventing violations
of law and enforcing compliance by patrons of the requirements of these regulations.
Security guard(s) shall be uniformed in such a manner so as to be readily
identifiable as a security guard by the public and shall be duly licensed
as a security guard as required by applicable provisions of state law. No
security guard required pursuant to this subsection shall act as a door person,
ticket seller, ticket taker, admitting person, or sole occupant of the Manager's
station while acting as a security guard.
P.
The requirements of this section shall be deemed conditions
of adult business regulatory permit approvals, and failure to comply with
every such requirement shall be grounds for suspension or revocation of the
permit issued pursuant to these regulations and in accordance with the procedures
established hereunder.
A.
The applicant shall authorize and allow entry by public
officials of the Borough into the premises wherein the applicant operates
or proposes to operate an adult business establishment for the purpose of
conducting one or more inspections to determine whether the establishment
complies with all applicable building, fire, electrical, plumbing, health
and zoning requirements of this Code, all state and federal requirements of
a similar nature which are customarily enforced by the Borough, and the provisions
of this chapter.
B.
Any and all investigating officials of the Borough shall
have the right to enter adult entertainment establishments from time to time
during regular business hours to make reasonable inspections to observe and
enforce compliance with building, fire, plumbing, zoning, or health regulations
or provisions of this chapter. A warrant shall be obtained whenever required
by law.
C.
A person who operates an adult business or his or her
agent or employee is in violation of the provisions of this chapter if he
or she refuses to permit a lawful inspection of the premises at any time it
is occupied or open for business.
It shall be unlawful to operate an adult business establishment under
any name or conduct business under any designation not specified in the permit.
Before changing the location of an adult business establishment, an application to the Code Enforcement Officer shall be made pursuant to § 39-5.
No permit issued pursuant to the provisions of this chapter shall be assigned or transferred in any manner, nor shall any person other than those mentioned in such permit engage in the enterprise for which the permit is issued. As used herein, "transfer" shall include, but not be limited to, any modification of a business entity operating an enterprise, or otherwise required to be disclosed pursuant to § 39-5, including transfer of more than 10% of the stock of any corporation.
The owner or operator of an adult business establishment shall display
the permit in an open and conspicuous place on the premises. Passport-size
photographs of the permit shall be affixed to the permit on display pursuant
to this section.
Each operator of an establishment subject to the provisions of this
chapter, and legally doing business on the effective date of this chapter,
shall apply for a permit not later than 90 days therefrom, and shall comply
with all requirements which are prerequisites for issuance of a license before
such license will issue.
The provisions of this chapter regulating adult businesses are not intended
to be exclusive and compliance therewith shall not excuse noncompliance with
any other regulations pertaining to the operation of businesses as adopted
by the Borough.