[HISTORY: Adopted by the Board of Supervisors of Franklin Township 6-7-1990
as Ch. 13, Part 3, of the 1990 Code. Amendments noted where applicable.]
This chapter shall be known as, and may be cited as, the “Franklin
Township Sexually Oriented Businesses Ordinance.”
It is the purpose of this chapter to regulate sexually oriented businesses
to promote the health, safety, morals and general welfare of the citizens
of Franklin Township, and to establish reasonable and uniform regulations
to prevent the continued concentration of sexually oriented businesses within
the Township. 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 sexually oriented materials. Similarly, it is not the
intent nor effect of this chapter to restrict or deny access by adults to
sexually oriented materials protected by the First Amendment, or to deny access
by the distributors and exhibitors of sexually oriented entertainment to their
intended market.
As used in this chapter, the following terms shall have the meanings
indicated:
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 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.
A commercial establishment which as one of its principal business
purposes offers for sale or rental for any form of consideration any one or
more of the following:
Books, magazines, periodicals or other printed matter, or photographs,
films, motion pictures, video cassettes or video reproductions, slides, or
other visual representations which depict or describe specified sexual activities
or specified anatomical areas; or
Instruments, devices, or paraphernalia which are designed for use in
connection with specified sexual activities.
A nightclub, bar, restaurant or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity;
Live performances which are characterized by the exposure of specified
anatomical areas or by specified sexual activities; or
Films, motion pictures, video cassettes, slides, or other photographic
reproductions which are characterized by the depiction or description of specified
sexual activities or specified anatomical areas.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any form of consideration; provides
patrons with closed-circuit television transmissions, films, motion pictures,
video cassettes, slides, or other photographic reproductions which are characterized
by the depiction or description of specified sexual activities or specified
anatomical areas; and has a sign visible from the public right-of-way which
advertises the availability of this adult type of photographic reproductions;
Offers a sleeping room for rent for a period of time that is less than
10 hours; or
Allows a tenant or occupant of a sleeping room to subrent the room for
a period of time that is less than 10 hours.
A commercial establishment where, for any form of consideration,
films, motion pictures, video cassettes, slides, or similar photographic reproductions
are regularly shown which are characterized by the depiction or description
of specified sexual activities or specified anatomical areas.
A theater, concert hall, auditorium, or similar commercial establishment
which regularly features persons who appear in a state of nudity or live performances
which are characterized by the exposure of specified anatomical areas or by
specified sexual activities.
The Code Enforcement Officer of Franklin Township or his designated
agent or assistant.
A person who, for consideration, agrees or offers to act as a companion,
guide, or date for another person, or who agrees or offers to privately model
lingerie or to privately perform a striptease for another person.
A person or business association who furnishes, offers to furnish,
or advertises to furnish escorts as one of its primary business purposes,
for a fee, tip, or other consideration.
Includes any of the following:
The opening or commencement of any sexually oriented business as a new
business;
The conversion of an existing business, whether or not a sexually oriented
business, to any sexually oriented business;
The addition of any sexually oriented business to any other existing
sexually oriented business; or
The relocation of any sexually oriented business.
A historic zoning district as defined in the Franklin Township Zoning
Chapter.
A person in whose name a license to operate a sexually oriented business
has been issued, as well as the individual listed as an applicant on the application
for a license.
Any place where a person who appears in a state of nudity or displays
specified anatomical areas is provided to be observed, sketched, drawn, painted,
sculptured, photographed, or similarly depicted by other persons who pay money
or any form of consideration.
To cause to function, or to put or keep in operation. A person may
be found to be operating or causing to be operated a sexually oriented business
whether or not that person is an owner, part owner, or licensee of the business.
An individual, proprietorship, partnership, corporation, association
or other legal entity (all references to the male gender shall include the
female gender, unless otherwise indicated or unless the context dictates otherwise).
A single-family, duplex, townhouse, multiple-family or mobile home
zoning district as defined in the Franklin Township Zoning Chapter.
A single-family, duplex, multiple-family, or mobile home park, mobile
home subdivision, and campground use as defined in the Franklin Township Zoning
Chapter.
A state of dress in which clothing covers no more than the genitals,
pubic region, and areola of the female breast, as well as portions of the
body covered by supporting straps or devices.
A business or commercial enterprise that, as one of its primary business
purposes, offers for any form of consideration:
An adult arcade, adult bookstore or adult video store, adult cabaret,
adult motel, adult motion picture theater, adult theater, escort agency, nude
model studio, or sexual encounter center.
Human genitals in a state of sexual arousal.
Includes any of the following:
The increase in floor area occupied by the business by more than
25%, as the floor area exists as of the effective date of this chapter.
Includes any of the following:
The sale, lease, or sublease of the business;
The transfer of securities which constitute a controlling interest in
the business, whether by sale, exchange, or similar means; or
The establishment of a trust, gift, or other similar legal device which
transfers the ownership or control of the business, except for transfer by
bequest or other operation of law upon the death of the person possessing
the ownership or control.
Sexually oriented businesses are classified as follows:
A.
A person commits an offense if he operates a sexually
oriented business without a valid license issued by the Township for the particular
type of business.
B.
An application for a license must be made on a form provided by the Code Enforcement Officer or Township Secretary. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. Applicants who must comply with § 50-19 of this chapter shall submit a diagram meeting the requirements of § 50-19.
C.
The applicant must be qualified according to the provisions
of this chapter.
D.
If a person who wishes to operate a sexually oriented business is an individual, he must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a 20% or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under § 50-6 and each applicant shall be considered a licensee if a license is granted.
E.
The fact that a person possesses a valid theater license,
dance hall license, or public house of amusement license does not exempt him
from the requirement of obtaining a sexually oriented business license. A
person who operates a sexually oriented business and possesses a theater license,
public house of amusement license or dance hall license shall comply with
the requirements and provisions of this chapter.
A.
The Code Enforcement Officer shall approve the issuance
of a license to an applicant within 30 days after receipt of an application
unless the Code Enforcement Officer finds one or more of the following to
be true:
(1)
An applicant is under 18 years of age.
(2)
An applicant or an applicant's spouse is overdue
in payment to the Township of taxes, fees, fines, or penalties assessed against
or imposed upon the applicant or the applicant's spouse in relation to
a sexually oriented business.
(3)
An applicant has failed to provide information reasonably
necessary for issuance of the license or has falsely answered a question or
request for information on the application form.
(4)
An applicant or an applicant's spouse has been convicted
of a violation of a provision of this chapter, other than the offense of operating
a sexually oriented business without a license, within two years immediately
preceding the application. The fact that a conviction is being appealed shall
have no effect.
(5)
The license fee required by this chapter has not been
paid.
(6)
An applicant has been employed in a sexually oriented
business in a managerial capacity within the preceding 12 months and has demonstrated
an inability to operate or manage a sexually oriented business premises in
a peaceful and law-abiding manner, thus necessitating action by law enforcement
officers or the Township.
(8)
An applicant or an applicant's spouse has been convicted
of a crime:
(a)
Involving any of the following offenses as described
in the Pennsylvania Crimes Code:
[1]
Prostitution;
[2]
Promotion of prostitution;
[3]
Aggravated promotion of prostitution;
[4]
Compelling prostitution;
[5]
Obscenity;
[6]
Sale, distribution, or display of harmful material to
minor;
[7]
Sexual performance by a child;
[8]
Possession of child pornography;
[9]
Public lewdness;
[10]
Indecent exposure;
[11]
Indecency with a child;
[12]
Rape, sexual assault or aggravated sexual assault;
[13]
Incest, solicitation of a child, or harboring a runaway
child; or
[14]
Criminal attempt, conspiracy, or solicitation to commit
any of the foregoing offenses;
(b)
For which:
[1]
Less than two years have elapsed since the date of conviction
or the date of release from confinement imposed for the conviction, whichever
is the later date, if the conviction is of a misdemeanor offense;
[2]
Less than five years have elapsed since the date of conviction
or the date of release from confinement for the conviction, whichever is the
later date, if the conviction is of a felony offense; or
[3]
Less than five years have elapsed since the date of the
last conviction or the date of release from confinement for the last conviction,
whichever is the later date, if the convictions are of two or more misdemeanor
offenses or combination of misdemeanor offenses occurring within any twenty-four-month
period.
B.
The fact that a conviction is being appealed shall have
no effect on the disqualification of the applicant or applicant's spouse.
C.
The license, if granted, shall state on its face the
name of the person or persons to whom it is granted, the expiration date,
and the address of the sexually oriented business. The license shall be posted
in a conspicuous place at or near the entrance to the sexually oriented business
so that it may be easily read at any time.
The annual fee for a sexually oriented business license shall be as
set from time to time by resolution of the Board of Supervisors, which shall
be paid in full at or prior to the time of application for any new or renewal
license. The current list of fees is on file in the Township offices.[1]
A.
An applicant or licensee shall permit the Code Enforcement
Officer to inspect the premises of a sexually oriented business for the purpose
of insuring compliance with the law at any time it is occupied or open for
business.
B.
A person who operates a sexually oriented business or
his agent or employee commits an offense if he refuses to permit a lawful
inspection of the premises by the Code Enforcement Officer at any time it
is occupied or open for business.
C.
The provisions of this section do not apply to areas
of an adult motel which are currently being rented by a customer for use as
a permanent or temporary habitation.
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in § 50-5. Application for renewal should be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date the expiration of the license will not be affected.
The Code Enforcement Officer shall suspend a license for a period not
to exceed 30 days if he determines that a licensee or an employee of a licensee
has:
B.
Engaged in excessive use of alcoholic beverages or any
illegal use of a controlled substance while on the sexually oriented business
premises;
C.
Refused to allow an inspection of the sexually oriented
business premises as authorized by this chapter;
D.
Knowingly permitted gambling by any person on the sexually
oriented business premises;
E.
Demonstrated inability to operate or manage sexually
oriented business in a peaceful and law-abiding manner thus necessitating
action by law enforcement officers or the Township.
A.
The Code Enforcement Officer shall revoke a license if a cause of suspension in § 50-10 occurs and the license has been suspended within the preceding 12 months.
B.
The Code Enforcement Officer shall revoke a license if
he determines that:
(1)
A licensee gave false or misleading information in the
material submitted during the application process;
(2)
A licensee or an employee has knowingly allowed possession,
use or sale of controlled substances on the premises;
(3)
A licensee or an employee has knowingly allowed prostitution
on the premises;
(4)
A licensee or an employee knowingly operated the sexually
oriented business during a period of time when the licensee's license
was suspended;
(5)
A licensee has been convicted of an offense listed in § 50-6A(8)(a) for which the time period required in § 50-6A(8)(b) has not elapsed;
(6)
On two or more occasions within a twelve-month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in § 50-6A(8)(a), for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed;
(7)
A licensee or an employee has knowingly allowed any act
of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact
to occur in or on the licensed premises. The term “sexual contact”
shall have the same meaning as it is defined in the Pennsylvania Crimes Code;
or
(8)
A licensee is delinquent in payment to the Township for
ad valorem or real estate taxes, or sales taxes to the Commonwealth of Pennsylvania
related to the sexuality oriented business.
C.
The fact that a conviction is being appealed shall have
no effect on the revocation of the license.
D.
Subsection B(7) does not apply to adult motels as a ground for revoking the license unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation or sexual contact to occur in a public place or within public view.
E.
When the Code Enforcement Officer revokes a license, the revocation shall continue for one year and the licensee shall not be issued a sexually oriented business license for one year from the date revocation became effective. If, subsequent to revocation, the Code Enforcement Officer finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license was revoked under Subsection B(5), an applicant may not be granted another license until the appropriate number of years required under § 50-6A(8)(b) has elapsed.
If the Code Enforcement Officer denies the issuance of a license, or
suspends or revokes a license, the Code Enforcement Officer shall send to
the applicant, or licensee, by certified mail, return receipt requested, written
notice of the action and the right to an appeal. Upon receipt of written notice
of the denial, suspension, or revocation, the licensee whose application for
a license has been denied or whose license has been suspended or revoked shall
have the right to appeal to the Court of Common Pleas of Adams County, Pennsylvania.
An appeal to the Court of Common Pleas of Adams County, Pennsylvania must
be filed within 30 days after the receipt of notice of the decision of the
Code Enforcement Officer. The licensee shall bear the burden of proof in court.
A licensee shall not transfer his license to another, nor shall a licensee
operate a sexually oriented business under the authority of a license at any
place other than the address or location designated in the application.
A.
A person commits an offense if he operates or causes
to be operated a sexually oriented business within 1,000 feet of:
(1)
A church;
(2)
A public or private elementary school or secondary school;
(3)
A boundary of a residential, historic or agricultural
district as defined in and delineated by the Franklin Township Zoning Chapter,
nor shall a sexually oriented business be operated or located within any of
said districts;
(4)
A public park; or
(5)
The property line of a lot devoted to a residential use
as defined and delineated by the Franklin Township Zoning Chapter.
B.
A person commits an offense if he causes or permits the
operation, establishment, substantial enlargement, or transfer of ownership
or control of a sexually oriented business within 1,000 feet of another sexually
oriented business.
C.
A person commits an offense if he causes or permits the
operation, establishment, or maintenance of more than one sexually oriented
business in the same building, structure, or portion thereof, or the increase
of floor area of any sexually oriented business in any building, structure,
or portion thereof containing another sexually oriented business.
D.
For the purpose of Subsection A, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church or public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential, historic or agricultural district, or residential lot.
E.
For purposes of Subsection B of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures, or objects, from the closest exterior wall of the structure in which each business is located.
F.
Any sexually oriented business lawfully operating as of the effective date of this chapter that is in violation of Subsections A, B, or C of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed three years, unless sooner terminated for any reason or voluntarily discontinued for a period of 30 days or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later-established business(es) is nonconforming.
G.
A sexually oriented business lawfully operating as a
conforming use is not rendered a nonconforming use by the location, subsequent
to the grant or renewal of the sexually oriented business license, of a church,
public or private elementary or secondary school, public park, residential,
historic or agricultural district, or residential lot within 1,000 feet of
the sexually oriented business. This provision applies only to the renewal
of a valid license, and does not apply when an application for a license is
submitted after a license has expired or has been revoked.[1]
A.
A nude model studio shall not employ any person under
the age of 18 years.
B.
A person under the age of 18 years commits an offense
if he appears in a state of nudity in or on the premises of a nude model studio.
It is a defense to prosecution under this subsection if the person under 18
years was in a rest room not open to public view or persons of the opposite
sex.
C.
A person commits an offense if he appears in a state
of nudity or knowingly allows another to appear in a state of nudity in an
area of a nude model studio premises which can be viewed from the public right-of-way.
D.
A nude model studio shall not place or permit a bed,
sofa, or mattress in any room on the premises, except that a sofa may be placed
in a reception room open to the public.
A.
A person commits an offense if he knowingly allows a
person under the age of 18 years to appear in a state of nudity in or on the
premises of an adult theater or adult motion picture theater.
B.
A person under the age of 18 years commits an offense
if he knowingly appears in a state of nudity in or on the premises of an adult
theater or adult motion picture theater.
A.
Evidence that a sleeping room in a hotel, motel, or similar
commercial establishment has been rented and vacated two or more times in
a period of time that is less than 10 hours creates a rebuttable presumption
that the establishment is an “adult motel” as that term is defined
in this chapter.
B.
A person commits an offense if, as the person in control
of a sleeping room in a hotel, motel, or similar commercial establishment
that does not have a sexually oriented business license, he rents or subrents
a sleeping room to a person and, within 10 hours from the time the room is
rented, he rents or subrents the same sleeping room again.
A.
A person who operates or causes to be operated a sexually
oriented business, other than an adult motel, which exhibits on the premises
in a viewing room of less than 150 square feet of floor space, a film, video
cassette, or other video reproduction which depicts specified sexual activities
or specified anatomical areas, shall comply with the following requirements:
(1)
Upon application for a sexually oriented business license,
the application shall be accompanied by a diagram of the premises showing
a plan thereof specifying the location of one or more manager's stations
and the location of all overhead lighting fixtures and designating any portion
of the premises in which patrons will not be permitted. A manager's station
may not exceed 32 square feet of floor area. The diagram shall also designate
the place at which the permit will be conspicuously posted, if granted. A
professionally prepared diagram in the nature of an engineer's or architect's
blueprint shall not be required; however, each diagram should be oriented
to the north or to some designated street or object and should be drawn to
a designated scale or with marked dimensions sufficient to show the various
internal dimensions of all areas of the interior of the premises to an accuracy
of plus or minus six inches. The Code Enforcement Officer may waive the foregoing
diagram for renewal applications if the applicant adopts a diagram that was
previously submitted and certifies that the configuration of the premises
has not been altered since it was prepared.
(2)
The application shall be sworn to be true and correct
by the applicant.
(3)
No alteration in the configuration or location of a manager's
station may be made without the prior approval of the Code Enforcement Officer.
(4)
It is the duty of the owner and operator of the premises
to ensure that at least one employee is on duty and situated in each manager's
station at all times that any patron is present inside the premises.
(5)
The interior of the premises shall be configured in such
a manner that there is an unobstructed view from a manager's station
of every area of the premises to which any patron is permitted access for
any purpose, excluding rest rooms. Rest rooms may not contain
video reproduction equipment. If the premises has two or more manager's
stations designated, then the interior of the premises shall be configured
in such a manner that there is an unobstructed view of each area of the premises
to which any patron is permitted access for any purpose from at least one
of the manager's stations. The view required in this subsection must
be by direct line of sight from the manager's station.
(6)
It shall be the duty of the owner and operator, and it shall also be the duty of any agents and employees present in the premises, to ensure that the view area specified in Subsection A(5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all tines that any patron is present in the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection A(1) of this section.
(7)
The 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 1.0 footcandle as
measured at the floor level.
(8)
It shall be the duty of the owner and operator, and it
shall also be the duty of any agents and employees present in the premises,
to ensure that the illumination described above is maintained at all times
that any patron is present in the premises.
A.
A person commits an offense if, in a business establishment
open to persons under the age of 18 years, he displays a book, pamphlet, newspaper,
magazine, film, or video cassette, the cover of which depicts, in a manner
calculated to arouse sexual lust or passion for commercial gain or to exploit
sexual lust or perversion for commercial gain, any of the following:
(1)
Human sexual intercourse, masturbation, or sodomy;
(2)
Fondling or other erotic touching of human genitals,
pubic region, buttocks, or female breasts;
(3)
Less than completely and opaquely covered human genitals,
buttocks, or that portion of the female breast below the top of the areola;
or
(4)
Human male genitals in a discernibly turgid state, whether
covered or uncovered.
B.
In this section “display” means to locate
an item in such a manner that, without obtaining assistance from an employee
of the business establishment:
A.
Any person, firm, corporation or other entity, or any
agent thereof, who violates or permits a violation of this chapter, shall,
upon conviction in a summary proceeding brought before a District Justice
under the Pennsylvania Rules of Criminal Procedure, be guilty of a summary
offense and shall be punishable by a fine of not more than $1,000, plus costs
of prosecution. In default of payment thereof, the defendant may be sentenced
to imprisonment for a term not exceeding 90 days. Each day or portion thereof
that such violation continues or is permitted to continue shall constitute
a separate offense, and each section of this chapter that is violated shall
also constitute a separate offense.
B.
This chapter shall be enforced by the Code Enforcement
Officer.
C.
It is a defense to prosecution under § 50-5A, 50-14, or 50-16, that a person appearing in a state of nudity did so in a modeling class operated:
(1)
By a proprietary school licensed by the Commonwealth
of Pennsylvania; a college, junior college or university supported entirely
or partly by taxation;
(2)
By a private college or university which maintains and
operates educational programs in which credits are transferable to a college,
junior college, or university supported entirely or partly by taxation; or
(3)
In a structure:
(a)
Which has no sign visible from the exterior of the structure
and no other advertising that indicates a nude person is available for viewing;
and
(b)
Where in order to participate in a class a student must
enroll at least three days in advance of the class; and
(c)
Where no more than one nude model is on the premises
at any one time.
A person who operates or causes to be operated a sexually oriented business
in violation of this chapter is subject to a suit for injunction at law or
in equity, as well as prosecution for criminal violations.
Section 50-14 of this chapter may be amended only after compliance with the procedure required to amend a zoning ordinance. Other sections of this chapter may be amended by regular ordinance.
