[Added 8-9-1994 by Ord.
No. 1898; amended in its entirety 1-14-2003 by Ord. No. 2249]
It is the purpose of this article to regulate sexually oriented
businesses, to promote the health, safety and general welfare of the
citizens of the Municipality and to establish reasonable and uniform
regulations to prevent the continued deleterious location and concentration
of sexually oriented businesses within the Municipality. The provisions
of this article 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 article 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. Neither is it the intent nor
effect of this article to condone or legitimize the distribution of
obscene material.
Sexually oriented businesses are defined in Article VI, Definitions, and are classified as follows:
A.
Any person who operates a sexually oriented business without a valid
permit issued by the Municipality is guilty of a violation of this
chapter.
B.
An application for a permit to operate a sexually oriented business
must be made on a form provided by the Zoning Officer. The application
must be accompanied by a sketch or diagram showing the floor plan
and plot plan 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.
C.
The applicant must be qualified according to the provisions of this
article and the premises must be inspected and found to be in compliance
with applicable laws or ordinances by the Zoning Officer, the Building
Official and the Fire Official.
D.
If a person who wishes to operate a sexually oriented business is
an individual, that person must sign the application for a permit
as applicant. If a person who wishes to operate a sexually oriented
business is other than an individual, each individual who has a ten-percent
or greater interest in the business must sign the application for
a permit as applicant. If a corporation is listed as owner of a sexually
oriented business or as the entity which wishes to operate such a
business, each individual having a direct or indirect interest of
10% or greater in the corporation must sign the application for a
permit as applicant.
E.
The fact a person possesses other types of Municipal permits does
not exempt the person from the requirement of obtaining a sexually
oriented business permit.
A.
The Zoning Officer shall notify the applicant within 30 days after
receipt of an application that the Zoning Official intends to approve
or disapprove the application. The Zoning Official shall notify the
applicant of an intent to disapprove the application only if one or
more of the following is found to be true:
(1)
Any individual set forth on the application that is under 18 years
of age.
(2)
An application or an applicant's spouse is overdue in the payment
to the Municipality of taxes, fees, fines, or penalties assessed against
him or imposed upon him in relation to a sexually oriented business.
(3)
An applicant has provided false or misleading information on the
application form or has failed to provide a complete application.
(4)
An applicant is residing with a person who has been denied a permit
by the Municipality to operate a sexually oriented business within
the preceding 12 months, or residing with a person whose license to
operate a sexually oriented business has been revoked within the preceding
12 months.
(5)
The premises to be used for the sexually oriented business have been
disapproved by the Zoning Officer, the Building Official and/or the
Fire Official as not being in compliance with applicable laws and
ordinances.
(6)
The permit fee required by this article has not been paid.
(7)
An applicant of the proposed establishment is in violation of or
is not in compliance with any of the provisions of this article.
(8)
An individual applicant or any individual holding a direct or indirect
interest of more than 10% of a corporate applicant, or any of the
officers and directors of a corporate applicant, if the applicant
is a corporation; or any of the partners, including limited partners,
if the application is a partnership; or the manager or other person
in charge of the operation of the applicant's business, has or have
been convicted of and offense involving sexual misconduct within the
Commonwealth of Pennsylvania, including, but not limited to, prostitution,
obscenity and possession of child pornography, or convicted of any
offense in any jurisdiction other than the Commonwealth of Pennsylvania
that would have constituted an offense involving sexual misconduct
if committed within the Commonwealth of Pennsylvania. In order for
approval to be denied pursuant to this subsection, the person or persons'
conviction or release in connection with the sexual misconduct offense
must have occurred within two years of the date of application in
the event of a misdemeanor and within five years of the date of application
in the event of a felony.
B.
The permit, 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 permit 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.
C.
The Zoning Officer, the Building Official and Fire Official shall
complete their certification that the premises are in compliance or
not in compliance within 20 days of receipt of the application by
the Zoning Officer. The certifications shall be promptly presented
by the Zoning Officer. To the extent that the Zoning Officer, the
Building Official, and the Fire Official fail to complete their certification
for reasons other than denial of access by the applicant, the failure
to complete the certification cannot be used as a basis to deny a
certification. Rather, the premises will be deemed to be in compliance
with applicable laws and ordinances.
D.
In the event the Zoning Officer issues a notice of intent to deny
the application, the notice shall state the reason or reasons giving
rise to the Zoning Officer's determination of an intent to deny and
shall provide the applicant with the opportunity to demand a hearing
before the Zoning Hearing Board to dispute the Zoning Officer's findings.
The demand for hearing shall be made in writing to the Zoning Official
within 10 days of issuance of the intent to deny. If the applicant
fails to demand a hearing on the intent to deny within 10 days after
issuance of the intent to deny by the Zoning Officer, the application
shall be deemed denied. In the event the applicant timely requests
a hearing before the Zoning Hearing Board, the matter shall be placed
on the agenda for the next regularly scheduled Zoning Hearing Board
meeting occurring at least 10 days after the demand for hearing. In
the event there are no regularly scheduled Zoning Hearing Board meetings,
a hearing shall be scheduled no less than 30 days following issuance
of the demand for hearing. At the hearing, the applicant and the Municipality
shall submit whatever information or evidence either party has to
substantiate their respective positions. At the conclusion of the
hearing, the Zoning Hearing Board shall either approve or disapprove
the application based on the information received at the hearing.
The decision either approving or disapproving the application shall
be rendered within 90 days after the application is filed with the
Zoning Officer and if disapproved shall contain a brief explanation
setting forth the reasons for disapproval. If no decision is rendered
on the application within 90 days after receipt of the application,
the application shall be deemed approved and the permit shall be deemed
to have been granted immediately. The applicant may agree to extend
the time frames as set forth herein by agreement to extend in writing.
The annual fee for a sexually oriented business permit is $500.
A.
An applicant, or permittee, shall permit representatives of the Police
Department, Building Official, Fire Official, Zoning Officer, or other
Municipal departments or agencies to inspect the premises of a sexually
oriented business for the purpose of insuring compliance with the
law, at any time that the sexually oriented business is occupied or
open for business. In the event the business has not yet opened for
regular business, the applicant or permittee shall permit the said
representatives access to inspect the premises at mutually convenient
times during regular business hours (9:00 a.m. to 5:00 p.m.) within
five days of request to inspect.
B.
A person who operates or intends to operate a sexually oriented business
or his agent or employee violates this chapter if he refuses to permit
such lawful inspection of the premises at any time it is occupied
or open for business or within five days of request if not yet regularly
open for business.
A.
Each permit shall expire one year from the date of issuance and may be renewed only by making application as provided in § 359-53. 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 pendency of the application will not prevent the expiration of the permit.
B.
If the renewal of a license is denied, the applicant shall not be
issued a permit for one year from the date of denial, except that
after 90 days have elapsed since the date of denial, the applicant
may be granted a permit if the Zoning Officer finds that the basis
for denial of the renewal permit has been corrected or abated.
The Zoning Officer shall suspend a permit for a period not to
exceed 30 days if he determines that a permittee or an employee of
a permittee has:
A.
Violated or is not in compliance with any section of this article;
B.
Engaged in excessive use of alcoholic beverages while on the sexually
oriented business premises or engaged in the use of illegal narcotics;
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;
A.
The Zoning Officer shall revoke a permit if a cause of suspension set forth in § 359-57 occurs and the permit has been suspended within the preceding 12 months.
B.
The Zoning Officer shall revoke a permit if he determines that:
(1)
A permittee, or any of the persons specified in § 359-53A(8), is or has been convicted of the offenses specified in § 359-53A(8);
(2)
A permittee gave false or misleading information in the material
submitted to the Municipality during the application process;
(3)
A permittee or an employee of a permittee has knowingly allowed possession,
use or sale of controlled substances on the premises;
(4)
A permittee or an employee of a permittee has knowingly allowed prostitution
on the premises;
(5)
A permittee or an employee of a permittee knowingly operated the
sexually oriented business during a period of time when the permittee's
permit was suspended;
(6)
A permittee or an employee of a permittee has knowingly allowed any
act of sexual intercourse, sodomy, oral copulation, masturbation or
other explicit sexual conduct to occur in or on the permitted premises;
or
(7)
A permittee is delinquent in payment to the Municipality or state
of any taxes or fees relating to sexually oriented business.
C.
When the Zoning Officer revokes a permit, the revocation shall continue for one year, and the permittee shall not be issued a sexually oriented business permit for one year from the date revocation became effective, except that if the revocation is pursuant to Subsection B(1) above, the revocation shall be effective for two years in the event of a misdemeanor or five years in the case of a felony.
D.
After denial of an application, or denial of a renewal of an application,
or suspension or revocation of a permit, the applicant or licensee
or permittee shall have the right to appeal said action and to seek
prompt judicial review of such administrative action in any court
of competent jurisdiction.
A permittee shall not transfer his permit to another person.
A permittee shall not operate a sexually oriented business under the
authority of a permit at any place other than the address designated
in the application.
A.
A person is guilty of a violation of this chapter if he operates
or causes to be operated a sexually oriented business outside of the
district in which a sexually oriented business is a conditional use.
No sexually oriented businesses shall be located outside a district
in which a sexually oriented business is a conditional use. Sexually
oriented businesses, as defined herein, shall be permitted in an M-2
Industrial Zoning District, as a conditional use.
B.
A person is guilty of a violation of this chapter if he operates
or causes to be operated a sexually oriented business within 1,000
feet of:
C.
A person is guilty of a violation of this chapter if he causes or
permits the operation, establishment, substantial enlargement or transfer
of ownership or control of a sexually oriented business within 3,000
feet of another sexually oriented business.
D.
A person is guilty of a violation of this chapter 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 areas of any sexually oriented business
in any building, structure or portion thereof containing another sexually
oriented business.
E.
For the purpose of this article, 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, public or private pre-elementary,
elementary or secondary school, public library, child-care facility
or nursery school or to the nearest boundary of an affected public
park.
F.
For purposes of Subsection C 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.
G.
Any sexually oriented business lawfully operating on the date of enactment of this article that is in violation of Subsections A through F of this section shall be deemed a nonconforming use. Such nonconforming uses shall not be increased, enlarged, extended or altered, except that the use may be changed to a conforming use. In the event that two or more sexually oriented businesses are within 3,000 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 is nonconforming.
H.
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 permit, of
a church, public or private pre-elementary, elementary or secondary
school, public library, child-care facility, nursery school or public
park within 1,000 feet of the sexually oriented business. This provision
applies only to the renewal of a valid permit and does not apply when
an application for a permit is submitted after a permit has expired
or has been revoked.
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
or videocassette or other video or other image production or reproduction
which depicts specified sexual activities or specified anatomical
areas shall comply with the following requirements:
(1)
The application for a permit to operate a sexually oriented business
shall be accompanied by a floor plan and plot plan diagram of the
premises showing a plan thereof specifying the location of one or
more manager's stations, the location of all viewing rooms, partitions
and doors 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 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 Zoning 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 Zoning Officer or designee.
(4)
It is the duty of the owners and operators 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
or viewing 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
stations.
(6)
It shall be the duty of the owners and operators and it shall also be the duty of any agents and employees present on the premises to ensure that the view as specified in Subsection A(5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times 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)
No viewing room may be occupied by more than one person at any time.
No connections or openings to an adjoining viewing room shall be permitted.
(8)
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 one footcandle
as measured at the floor level.
(9)
It shall be the duty of the owners and operators 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.
It is a defense to prosecution under §§ 359-53 and 359-60 that a person appearing in a state of nudity did so in a modeling class operated:
A.
By a proprietary school, licensed by the Commonwealth of Pennsylvania,
or a college, junior college or university supported entirely or partly
by taxation;
B.
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
C.
In a structure:
(1)
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
(2)
Where, in order to participate in a class, a student must enroll
at least three days in advance of the class; and
(3)
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 without a valid permit or in violation of this article is
subject to an action in equity or a suit for injunction as well as
citations for violations of this chapter.
Any existing business that would qualify under this article
shall have one year from the time of enactment to come into compliance
with this article.
With exception of the issuance of the sexually oriented business permit which appeal/hearing procedure is set forth in § 359-53 of this article, any decision of the Zoning Officer made under any of the provisions set forth herein shall be immediately appealable to the Zoning Hearing Board. Appeals to the Zoning Hearing Board shall be made within 10 days of the date of the decision of the Zoning Officer. The Zoning Hearing Board shall thereafter consider the appeal at its next regularly scheduled meeting occurring at least 10 days after the notice of appeal or in the event there are no regularly scheduled meetings then within the next 30 days of the notice of appeal. The Zoning Hearing Board shall render a decision to affirm or override the decision of the Zoning Officer within 60 days after receipt of the notice of appeal. In the event no decision is rendered within 60 days of receipt of the notice of appeal, the decision of the Zoning Officer shall be deemed to be overruled. The business may continue in operation pending the decision of the Zoning Hearing Board.
Any person, corporation and/or other entity who or which shall
be convicted of a violation of any of the provisions of this article
before any District Magistrate or other court of competent jurisdiction
shall be sentenced to pay a fine of not more than $500 per violation,
per day, and cost of prosecution, and who fails to correct any violation
of this article within 90 days from the date of said conviction shall
be subject to revocation of any and all applicable permits and approvals
issued by the governing body of the Municipality of Monroeville.
The provisions of this article are severable and if any section,
sentence, clause, part or provision hereof shall be held illegal,
invalid or unconstitutional by any court of competent jurisdiction,
such decision of the court shall not affect the remaining sections,
sentences, clauses, parts or provisions of this article. It is hereby
declared to is the intent of the Council that this article would have
been adopted if such illegal, invalid or unconstitutional section,
sentence, clause, part or provision had not been included herein.
