[HISTORY: Adopted by the Borough Council of the Borough of New Wilmington 10-2-2000
by Ord. No. 449. Amendments noted where applicable.]
A.
Pursuant to the authority granted in the Municipalities
Planning Code, 53 P.S. Sec. § 10101 et seq., to promote and secure
the health, cleanliness, comfort and safety of the citizens of, to regulate
places of public entertainment, amusement and recreation, and to prevent and
prohibit public nuisances due to adverse secondary effects, the Borough of
New Wilmington (hereinafter "borough") enacts this chapter to minimize and
control the adverse secondary effects of sexually oriented businesses and
thereby protect the health, safety and welfare of its citizens; protect the
citizens' property values and character of surrounding neighborhoods;
and deter the spread of blight.
B.
The New Wilmington Borough Council has determined that
zoning regulation and permitting is a legitimate and reasonable means of accountability
to ensure that operators of sexually oriented businesses comply with reasonable
regulations and to ensure that operators do not knowingly allow their establishments
to be used as places of illegal sexual activity or solicitation.
C.
The borough does not intend this chapter to suppress
any speech activities protected by the First Amendment, but to enact a content-neutral
ordinance which addresses the secondary effects of sexually oriented businesses.
It is not the intent of the borough in enacting this legislation to deny any
person rights of speech protected by the Constitution of the United States
of the Constitution of Pennsylvania, or both, nor is it the intent of the
borough to impose by this chapter any additional limitations or restrictions
on the contents of any communicative materials, including sexually oriented
films, videotapes, books and other materials. Further, by enacting this legislation,
the borough does not intend to deny or restrict the rights of any adult to
obtain or view, or both, any sexually oriented materials or conduct protected
by the Constitution of the United States or the Constitution of Pennsylvania,
or both, nor does it intend to restrict or deny any constitutionally protected
rights that distributors or exhibitors of sexually oriented materials may
have to sell, distribute or exhibit these materials.
The New Wilmington Borough Council finds:
A.
Law enforcement personnel have determined, and statistics
and studies performed in a substantial number of communities in this commonwealth,
and in the United States indicate, that sexually oriented businesses have
adverse secondary effects, including those specified and recognized at 68
Pa. C.S.A. § 5501(a), which secondary effects should be regulated
to protect the public health, safety and welfare. These secondary effects
include, but are not limited to, the spread of communicable diseases, performance
of sexual acts in public places, presence of discarded sexually oriented materials
on public and private property, sexual harassment, obscenity, prostitution
and other illegal sexual activities, crime and neighborhood deterioration.
B.
Based on evidence concerning the adverse secondary effects
of adult uses on the community presented in depositions and hearings conducted
by the United States District Court for the Middle District of Pennsylvania,
Case No. 3: CV99-1801 (Judge Munley), and by the United States District Court
for the Western District of Pennsylvania, Case No. 98-1140 (Judge Lancaster);
and in reports made available to the borough on findings incorporated in the
cases of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41(1986), Young
v. American Mini Theatres, 426 U.S. 50 (1976), and Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991); and on studies in other communities, including,
but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas;
Indianapolis, Indiana; Amarillo, Texas; Biloxi, Mississippi; Seattle, Washington;
Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and also on
findings from the Report of the Attorney General's Working Group On the
Regulation of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota),
the borough finds:
(1)
Sexually oriented businesses lend themselves to ancillary
unlawful and unhealthy activities that are presently uncontrolled by the operators
of the establishments. Further, there is presently no mechanism to make the
owners of these establishments responsible for the activities that occur on
their premises.
(2)
Certain employees of sexually oriented businesses defined
in this chapter as adult theaters and cabarets engage in a higher incidence
of certain types of illicit sexual behavior than employees of other establishments.
(3)
Sexual acts, including masturbation, and oral and anal
sex, occur at sexually oriented businesses, especially those which provide
private or semi-private booths or cubicles for viewing films, videos or live
sex shows. Furthermore, adult bookstores tend to attract homosexual men who
engage in unprotected, high-risk sexual activities.
(4)
Offering and providing such space encourages such activities,
which creates unhealthy conditions.
(5)
Persons frequent certain adult theaters, adult arcades
and other sexually oriented businesses for the purpose of engaging in sex
within the premises of such sexually oriented businesses.
(6)
A least 50 communicable diseases may be spread by activities
occurring in sexually oriented businesses, including, but not limited to,
syphilis, gonorrhea, human immune deficiency virus infection (HIV-AIDS), genital
herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella
infections.
(7)
The Surgeon General of the United States, in his report
of October 22, 1986, has advised the American public that AIDS and HIV infection
may be transmitted through sexual contact, intravenous drug abuse, exposure
to infected blood and blood components and from an infected mother to her
newborn.
(8)
According to the best scientific evidence, AIDS and HIV
infection, as well as syphilis and gonorrhea, are principally transmitted
by sexual acts.
(9)
Sanitary conditions in some sexually oriented businesses
are unhealthy, in part, because the activities conducted there are unhealthy,
and, in part, because of the unrelated nature of the activities and the failure
of the owners and the operators of the facilities to self-regulate those activities
and maintain those facilities.
(10)
Numerous studies and reports have determined that semen
is found in areas of sexually oriented businesses where persons view adult
oriented films.
(11)
Numerous studies have indicated that sexually oriented
businesses have a substantial negative impact on property values and cause
neighborhood blight, and the appropriate zoning regulation will help prevent
the negative impact of these secondary effects on the community.
C.
Sexually oriented businesses have adverse secondary effects
in the nature of a public nuisance, which secondary effects should be regulated
to protect the public health, safety and welfare.
D.
Sexually oriented businesses have operational characteristics
which should be reasonably regulated in order to protect those substantial
governmental concerns.
E.
A reasonable zoning regulation and permitting procedure
is an appropriate mechanism to place the burden of that reasonable regulation
on the owners and the operators of the sexually oriented business. Further,
such a regulatory procedure will place a heretofore nonexistent incentive
on the operators to see that the sexually oriented business is run in a manner
consistent with the health, safety and welfare of its patrons and employees,
as well as the citizens of the borough. It is appropriate to require reasonable
assurances that the licensee is the actual operator of the sexually oriented
business, fully in possession and control of the premises and activities occurring
therein.
F.
Removal of doors on adult booths and requiring sufficient
lighting on premises with adult booths advances a substantial governmental
interest in curbing the illegal and unsanitary sexual activity occurring in
adult theaters and bookstores.
G.
Requiring licensees of sexually oriented businesses to
keep information regarding current employees and certain past employees will
help reduce the incidence of certain types of criminal behavior by facilitating
the identification of potential witnesses or suspects and by preventing minors
from working in such establishments.
H.
The disclosure of certain information by those persons
ultimately responsible for the day-to-day operation and maintenance of the
sexually oriented business, where such information is substantially related
to the significant governmental interest in the operation of such uses, will
aid in preventing the spread of sexually transmitted diseases.
I.
It is desirable in the prevention of the spread of communicable
diseases to obtain a limited amount of information regarding certain employees
who may engage in the conduct which this chapter is designed to prevent or
who are likely to be witnesses to such activity.
J.
The fact that an applicant for an adult or sexually oriented
use license has been convicted of a sexually related crime leads to the rational
assumption that the applicant is likely to engage in that conduct in contravention
of this chapter.
K.
The barring of such individuals from the management of
sexually oriented uses for a period of years serves as a deterrent to and
prevents conduct which leads to the transmission of sexually transmitted diseases.
L.
The general welfare, health and safety of the citizens
of the borough will be promoted by the enactment of this chapter.
M.
The limitation of operating hours of sexually oriented
businesses from 8:00 a.m. to 10:00 p.m., on Mondays through Saturdays, and
closure of such businesses on Sundays and holidays reduces the adverse secondary
effects of such businesses, including, particularly, but not limited to, late
night noise levels, crime and sexually offensive materials and activities
in public areas, and promotes the public health, safety and welfare.
N.
The reasonable regulation and supervision of sexually
oriented businesses tends to discourage sexual acts and prostitution and thereby
promote the health, safety and welfare of patrons, clients and customers of
these businesses.
O.
The continued unregulated operation of such sexually
oriented businesses would be detrimental to the general health, safety and
welfare of citizens of the Borough of New Wilmington.
As used in this chapter, the following words and phrases shall have
the meanings indicated unless the context clearly indicates a different meaning:
Any place to which the public is permitted or invited wherein coin-operated,
slug-operated or for any form of consideration, or electronically, electrically
or mechanically controlled still or motion-picture machines, projectors, video
or laser disc players or other image-producing devices are maintained, not
located within viewing booths, 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, CD
ROM discs or other computer software or other visual representations which
are characterized by the depiction or description of 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 other commercial establishment which
regularly features:
Persons who appear in a state of nudity or seminudity; or
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 or visual presentations of any other kind which are characterized
by the depiction or description of specified sexual activities or specified
anatomical areas.
A commercial establishment where, for any form of consideration,
films, motion pictures, video cassettes, slides or similar photographic reproductions
or visual presentations of any kind are regularly shown which are characterized
by the depiction or description of specified sexual activities or specified
anatomical areas.
A theater, concert hall, dance hall, auditorium or similar commercial
establishment which regularly features persons who appear in a state of nudity
or seminudity, or live performances which are characterized by the exposure
of specified anatomical areas or by specified sexual activities.
A person who performs any service on the premises of a sexually oriented
business on a full-time, part-time or contract basis, whether or not the person
is denominated an employee, independent contractor, agent or otherwise and
whether or not said person is paid a salary, wage or other compensation by
the operator of said business. "Employee" does not include a person exclusively
on the premises for repair or maintenance of the premises or equipment on
the premises or for the delivery of goods to the premises.
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 to a nonsexually oriented business; or
The relocation of any sexually oriented business.
Having general knowledge of or reason to know or a belief or ground
for belief which warrants further inspection or inquiry of both:
The character and content of any material or performance described herein
which is reasonably susceptible to examination by a license or person; and
The age of the minor; provided, however, that an honest mistake shall
constitute an excuse from liability hereunder if the licensee or person made
a reasonable bona fide attempt to ascertain the true age of such minor.
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; and, in the case of an employee, a person in whose name a license
has been issued authorizing employment in a sexually oriented business.
Any place where a person who appears seminude, in a state of nudity
or who displays specified anatomical areas and is provided to be observed,
sketched, drawn, painted, sculptured, photographed or similarly depicted by
other persons who pay money or any form of consideration. "Nude model studio"
shall not include a proprietary school licensed by the State of Pennsylvania
or a college, junior college or university supported entirely or in part by
public taxation; 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 in a structure:
That no sign visible from the exterior of the structure and no other
advertising that indicates a nude or seminude person is available for viewing;
and
Where in order to participate in a class a student must enroll at least
three days in advance of the class; and
Where no more than one nude or seminude model is on the premises at
any one time.
The showing of the human male or female genitals, pubic area, vulva,
anus, anal cleft or cleavage with less than a fully opaque covering, the showing
of the female breast with less than a fully opaque covering of any part of
the nipple, or the showing of the covered male genitals in a discernible turgid
state.
An individual, proprietorship, partnership, corporation, association
or other legal entity.
The state of dress in which clothing partially or nonopaquely covers
specified anatomical areas.
A business or commercial enterprise that, as one of its principal
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore, adult novelty store, adult video
store, adult cabaret, adult motion-picture theater, adult theater, escort
agency, nude model studio or sexual encounter center.
Human genitals, pubic region, anus, buttocks, female breast(s) below
a point immediately above the top of the areola, or human male genitals in
a discernibly turgid state, even if completely covered.
Any of the following offenses:
Prostitution or promotion of prostitution; dissemination of obscenity;
sale, distribution or display of harmful material to a minor; sexual performance
by a child; possession or distribution of child pornography; public lewdness;
indecent exposure; indecency with a child; engaging in organized criminal
activity; sexual assault; molestation of a child; gambling; supplying alcohol
to minors or distribution of a controlled substance; or any similar offenses
to those described above under the criminal or penal code of other states
or countries; for which:
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;
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
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.
The fact that a conviction is being appealed shall have no effect on
the disqualification of the applicant or a person residing with the applicant.
Any of the following:
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.
Booths, stalls, partitioned portions of a room, rooms or other enclosures
which are available for viewing films, movies, videos or visual reproductions
of any kind depicting or describing specified sexual activities or specified
anatomical areas, or persons who appear in a state of nudity or seminudity
or who offer performances or presentations characterized by the exposure of
specified anatomical areas or by specified sexual activities.
A.
It is unlawful:
(1)
For any person to operate a sexually oriented business
without a valid sexually oriented business license issued by the borough pursuant
to this chapter.
(2)
For any person who operates a sexually oriented business
to employ a person to work for the sexually oriented business who is not licensed
as a sexually oriented business employee by the borough pursuant to this chapter.
(3)
For any person to obtain employment with a sexually oriented
business without having secured a sexually oriented business employee license
pursuant to this chapter.
(4)
Beginning on the 60th day after enactment of this chapter
for any person to continue to operate any sexually oriented business in operation
at the time of enactment of this chapter without a valid sexually oriented
business license pursuant to this chapter.
(5)
Beginning on the 60th day after enactment of this chapter
for any person who operates a sexually oriented business in operation at the
time of enactment of this chapter to employ a person to work for the sexually
oriented business who is not licensed as a sexually oriented business employee
by the borough pursuant to this chapter.
(6)
Beginning on the 60th day after enactment of this chapter
for any person to obtain employment with a sexually oriented business in operation
at the time of enactment of this chapter without having secured a sexually
oriented business employee license pursuant to this chapter.
B.
An application for a license must be made on a form provided
by the borough.
C.
All applicants must be qualified according to the provisions
of this chapter. The application may request and the applicant shall provide
such information (including fingerprints) as to enable the borough to determine
whether the applicant meets the qualifications established in this chapter.
D.
If a person who wishes to operate a sexually oriented
business is an individual, the person 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 an interest of 20% or
greater in the business must sign the application for a license as applicant.
Each applicant must be qualified under the following section and each applicant
shall be considered a licensee if a license is granted.
E.
Contents of application for business license.
(1)
The completed application for a sexually oriented business
license shall contain the following information and shall be accompanied by
the following documents:
(a)
If the applicant is:
[1]
An individual, the individual shall state his/her legal
name and any aliases and submit proof that he/she is at least 18 years of
age;
[2]
A partnership, the partnership shall state its complete
name and the name of all partners, whether the partnership is general or limited
and a copy of the partnership agreement, if any;
[3]
A corporation, the corporation shall state its complete
name, the date of its incorporation, evidence that the corporation is in good
standing under the laws of its state of incorporation and qualified and authorized
to conduct business in Pennsylvania, the names and capacity of all officers,
directors and principal stockholders and the names of the registered corporate
agent and the address of the registered office for service of process.
(b)
If the applicant intends to operate the sexually oriented
business under a name other than that of the applicant, he or she must state
the sexually oriented business' fictitious name and submit the required
registration documents.
(c)
Whether the applicant or a person residing with the applicant
has been convicted of a specified criminal activity as defined in this chapter
and, if so, the specified criminal activity involved, the date, place and
jurisdiction of each.
(d)
Whether the applicant or a person residing with the applicant
has had a previous license under this chapter or other similar sexually oriented
business ordinance from another municipality, state or county denied, suspended
or revoked, including the name and location of the sexually oriented business
for which the permit was denied, suspended or revoked, as well as the date
of denial, suspension or revocation, and whether the applicant or a person
residing with the applicant has been a partner in a partnership or an officer,
director or principal stockholder of a corporation that is licensed under
this chapter whose license has previously been denied, suspended or revoked,
including the name and location of the sexually oriented business for which
the permit was denied, suspended or revoked, as well as the date of denial,
suspension or revocation.
(e)
Whether the applicant or a person residing with the applicant
holds any other licenses under this chapter or other similar sexually oriented
business ordinance from another municipality, state or county and, if so,
the names and locations of such other licensed businesses.
(f)
The specific classification of sexually oriented use
for which the applicant is filing, along with a detailed description of each
and every activity encompassed by the proposed sexually oriented business,
which description shall thoroughly demonstrate compliance and/or intended
compliance with all provisions of this chapter.
(g)
The location of the proposed sexually oriented business,
including a legal description of the property, street address and telephone
number(s), if any.
(h)
The applicant's mailing address and residential
address.
(i)
A recent photograph of the applicant(s).
(j)
The applicant's driver's permit number, social
security number and his/her state or federally issued tax identification number.
(k)
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 it 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.
(l)
A current certificate and straight-line drawing prepared
within the 30 days prior to application by a registered land surveyor depicting
the property lines, the property to be certified.
(m)
If an applicant wishes to operate a sexually oriented business which includes viewing booths, then the applicant shall also comply with the application requirements set forth in Subsection E(1)(k) and shall separately apply for and obtain a building and occupancy permit for the installation of the viewing booths.
(2)
The application form shall inform the applicant that
separate applications are required for any necessary zoning permits, subdivision
and land development approvals and building and occupancy permits and that
the applicant may apply for such permits by contacting the Borough Zoning
Officer and the Lawrence County Planning Commission and that Department of
Labor and Industry approval is required.
F.
Before any applicant may be issued a sexually oriented
business employee license, the applicant shall submit, on a form to be provided
by the borough, the following information:
(1)
The applicant's name or any other name (including
"stage" names) or aliases used by the individual;
(2)
Age, date and place of birth;
(3)
Height, weight, hair and eye color;
(4)
Present residence address and telephone number;
(5)
Present business address and telephone number;
(6)
Date, issuing state and number of driver's license
or other identification card information;
(7)
Social security number; and
(8)
Proof that the individual is at least 18 years of age.
G.
Attached to the application form for a sexually oriented
business employee license as provided above, shall be the following:
(1)
A color photograph of the applicant, clearly showing
the applicant's face, and the applicant's fingerprints on a form
provided by any police department. Any fees for photographs and fingerprints
shall be paid by the applicant.
(2)
A statement detailing the license history of the applicant
for the five years immediately preceding the date of the filing of the application,
including whether such applicant previously operated or is seeking to operate,
in this or any other county, municipality, state or country any business or
has ever had a license, permit or authorization to do business denied, revoked
or suspended. In the event of any such denial, revocation or suspension, state
the name, the name of the issuing or denying jurisdiction and describe in
full the reason for the denial, revocation or suspension. A copy of any order
of denial, revocation or suspension shall be attached to the application.
(3)
A statement as to whether the applicant has been convicted
of a specified criminal activity as defined in this chapter and, if so, the
specified criminal activity involved, the date, place and jurisdiction of
each.
A.
Upon the filing of said application in a fully completed
form for a sexually oriented business license or for a sexually oriented business
employee license, the application shall then be referred to the Borough Zoning
Officer for review and investigation. The Borough Zoning Officer shall utilize
any available resources through the Pennsylvania State Police, the Commonwealth
of Pennsylvania and/or other law enforcement agencies as may be necessary
to complete the review and investigation required by this chapter. Within
30 days from the date the completed application is filed, the Borough Zoning
Officer shall issue a license, unless it is determined by the Borough Zoning
Officer that one or more of the following findings is true:
(1)
The 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;
(2)
The applicant is under the age of 18 years;
(3)
The applicant has been convicted of a specified criminal
activity as defined in this chapter;
(4)
The sexually oriented business employee license is to
be used for employment in a business prohibited by local or state law, statute,
rule or regulation or prohibited by a particular provision of this chapter;
or
(5)
The applicant has had a sexually oriented business employee license revoked by the borough within two years of the date of the current application. If the sexually oriented business employee license is denied, the temporary license previously issued is immediately deemed null and void. Denial, suspension or revocation of a license issued pursuant to this subsection shall be subject to appeal as set forth in § 188-10.
(6)
The required application, investigation and license fees
have not been paid.
(7)
An applicant's license to operate a sexually oriented
business, issued by any jurisdiction, has been revoked within the preceding
12 months.
(8)
The proposed sexually oriented business is in violation
of or is not in compliance with any of the provisions of this chapter.
B.
A license granted pursuant to this section shall be subject to annual renewal upon the written application of the applicant and a finding by the borough that the applicant has not been convicted of any specified criminal activity as defined in this chapter or committed any act during the existence of the previous license, which would be grounds to deny the initial license application. The renewal of the license shall be subject to the payment of the fee as set forth in § 188-6.
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,
the address of the sexually oriented business and the specific classification
of sexually oriented use for which the license is issued. Licenses for sexually
oriented businesses shall state that the sexually oriented business shall
not commence until all necessary zoning, subdivision and land development
and/or building code approvals and Department of Labor and Industry approvals
are obtained. All licenses shall be posted in a conspicuous place at or near
the entrance to the sexually oriented business so that they may be easily
read at any time.
D.
Applications for building and occupancy permits shall
be processed and either denied or approved within 30 days of receipt of a
complete application by the borough.
E.
A sexually oriented business license shall issue for
the specific classification of sexually oriented use as permitted by ordinance
and applied for.
G.
Any person aggrieved by the grant or denial of a license may appeal, in writing, within 30 days from the date of issuance of the license, to the Borough Council. The Borough Council shall then hold a Local Agency Law hearing within 20 days from the date of filing of the appeal and render a decision within 10 days from the end of the hearing. Appeals from a decision of the Borough Council may be taken to court subject to § 188-10E of this chapter.
A.
Every application for a sexually oriented business license
(whether for a new license or for renewal of an existing license) shall be
accompanied by a nonrefundable application and investigation fee in an amount
set by resolution of the Borough Council.
B.
In addition to the application and investigation fee
required above, every sexually oriented business that is granted a license
(new or renewal) shall pay to the borough an annual nonrefundable license
fee in an amount set by resolution of the Borough Council within 30 days of
license issuance or renewal.
C.
Every application for a sexually oriented business employee
license (whether for a new license or for renewal of an existing license)
shall be accompanied by an annual nonrefundable application, investigation
and license fee in an amount set by resolution of the Borough Council.
D.
All license applications and fees shall be submitted
to the office of the Borough Secretary/Treasurer and, therefrom, the applications
shall be forwarded to the Borough Zoning Officer for review and investigation
and approval of denial.
A.
An applicant or licensee shall permit authorized borough
officials and their agents or consultants to inspect the premises of a sexually
oriented business for the purpose of ensuring 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/her agent or employee commits a violation of this chapter if he/she refuses
to permit such lawful inspection of the premises at any time it is occupied
or open for business.
A.
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in § 188-4. Application for renewal shall be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the date of expiration of the license will not be extended.
B.
When the borough denies renewal of a license, the applicant
shall not be issued a license for one year from the date of denial. If, subsequent
to denial, the borough finds that the basis for denial of the renewal license
has been corrected or abated, the applicant may be granted a license if at
least 90 days have elapsed since the date denial became final.
The Borough Zoning Officer shall suspend a license for a period not
to exceed 30 days if he determines that a license or an employee of a licensee
has:
A.
Violated or is not in compliance with any provision of
this chapter;
B.
Refused to allow an inspection of the sexually oriented
business premises as authorized by this chapter; or
C.
Knowingly permitted gambling by any person or consumption
of alcohol by minors on the sexually oriented business premises.
A.
The Borough Zoning Officer shall revoke a license if a cause of suspension in § 188-9 occurs and the license has been suspended within the preceding 12 months.
B.
The Borough Zoning 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 has knowingly allowed possession, use or sale
of controlled substances on the premises;
(3)
A licensee has knowingly allowed prostitution on the
premises;
(4)
A licensee knowingly operated the sexually oriented business
during a period of time when the licensee's license was suspended;
(5)
A licensee has knowingly allowed any act of sexual intercourse,
sodomy, oral copulation, masturbation or other sex act to occur in or on the
license premises; or
(6)
A licensee is delinquent in payment to the borough for
any licensing fees past due.
C.
When the borough 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 the revocation became effective.
If, subsequent to revocation, the borough 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.
D.
All permit denial, renewal, suspension or revocation
decisions shall be sent in writing to the applicant or licensee. All such
decisions which deny, refuse to renew, suspend or revoke a permit shall state
specifically the chapter requirement not met and any other basis for decision.
After denial of an application, or denial of a renewal of an application,
or after suspension or revocation of any permit, the applicant or permittee
may appeal pursuant to procedures of the Local Agency Law (2 Pa. C. S. A. § 551
et seq.) to the New Wilmington Borough Council, except as modified herein.
Any such appeal must be filed, in writing, with the Council Administrator
within 10 days from the date of the mailing of the decision appealed from
and shall specify, in detail, the basis for the appeal. Failure or refusal
to file said appeal or specify the basis of said appeal with the Council Administrator
shall be deemed a conclusive determination as to the issues or matters addressed
by the written decision. If an appeal is timely filed, the New Wilmington
Borough Council will then hold a Local Agency Law hearing pursuant to 2 Pa.
C.S.A. § 551 et seq. within 20 days from the date the appeal is
filed and will render a written decision within 10 days from the date such
hearing concludes. In the case of a denial of renewal, or in the case of a
permit suspension or revocation, the permittee may continue to operate to
the same extent as immediately prior to the suspension or revocation until
the earlier of: the expiration of the ten-day appeal period without filing
of an appeal; or the date of a final decision dismissing any appeal.
E.
Any person aggrieved by a decision of the Borough Council
may appeal to a court of competent jurisdiction pursuant to the Local Agency
Law (2 Pa. C.S.A. § 551 et seq.) and 42 Pa. C.S.A. § 933
(a)(2). The borough shall, upon filing of such appeal, consent to any request
by a permit applicant or permittee to the court to give expedited review of
such appeal. The borough shall certify any record to the court within 20 days
after the appeal is filed. In the case of a denial of a permit renewal, or
in case of a permit suspension or revocation, the permittee may continue to
operate to the same extent as immediately prior to the denial, suspension
or revocation until the earlier of:
A licensee shall not transfer his/her 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 designated in the application.
A.
A person who operates viewing booths or causes them to
be operated shall comply with the following requirements:
(1)
Upon application for a sexually oriented 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 interior of the premises to an accuracy
of plus or minus six inches. The borough 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)
It is the duty of the licensee of the premises to ensure
that at least one licensed employee is on duty and situated in each manager's
station at all times that any patron is present inside the premises.
(4)
The interior of the premises shall be configured in such
a manner that there is an unobstructed view from the manager's station
of every area of the premises to which any patron is permitted access for
any purpose, excluding restrooms. Restrooms 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. In addition, all viewing booths shall have
at least one side fully open so that all of the area inside the booth is open
to the view of persons in the public area of the establishment.
(5)
It shall be the duty of the licensee to ensure that the view area specified in Subsection A(4) remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, 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.
(6)
No viewing room may be occupied by more than one person
at any time.
(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 five footcandles,
as measured at the floor level.
(8)
It shall be the duty of the licensee to ensure that the
illumination described above is maintained at all times that any patron is
present in the premises.
(9)
No licensee shall allow openings of any kind to exist
between viewing rooms or booths.
(10)
No person shall make or attempt to make an opening of
any kind between viewing booths or rooms.
(11)
The licensee shall, during each business day, regularly
inspect the walls between the viewing booths to determine if any openings
or holes exist.
(12)
The licensee shall cause all floor coverings in viewing
booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
(13)
The licensee shall cause all wall surfaces and ceiling
surfaces in viewing booths to be constructed of or permanently covered by
nonporous, easily cleanable material. No wood, plywood, composition board
or other porous material shall be used within 48 inches of the floor.
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 a violation
of this chapter if the person appears seminude or 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 restroom not open
to public view or visible to any other person.
C.
A person commits a violation of this chapter if the person
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 recreation room open to the public.
A.
It shall be a violation of this chapter for a person
to knowingly and intentionally, in a public place:
B.
For the purposes of this section, "public place" includes
all outdoor areas owned by or open to the general public, and all buildings
and enclosed places owned by or open to the general public, including, but
not limited to, places of entertainment, taverns, restaurants, clubs, theaters,
dance halls, banquet halls, party rooms or halls limited to specific members,
and party rooms or halls restricted to adults or to patrons invited to attend,
whether or not an admission charge is levied. This section shall not apply
to:
(1)
Any child under 10 years of age; or
(2)
Any individual exposing a breast in the process of breastfeeding
an infant under two years of age; or
(3)
The exercise of free speech or free expression in the
form of artistic and theatrical performances. It is the intention of the borough
that this section be construed, enforced and interpreted in such a manner
as will cause the least possible infringement of the constitutional rights
of free speech, free expression, due process, equal protection or other fundamental
rights.
C.
It shall be a violation of this chapter for a person
who knowingly or intentionally in a sexually oriented business appears in
a nude or seminude condition unless the person is an employee who, while nude
or seminude, shall be at least 10 feet from any patron or customer and on
a stage at least two feet from the floor.
D.
It shall be a violation of this chapter for an employee,
while nude or seminude in a sexually oriented business, to solicit any pay
or gratuity from any patron or customer or for any patron or customer to pay
or give any gratuity to any employee, while said employee is nude or seminude
in a sexually oriented business.
A person commits a violation of this chapter if the person knowingly
allows a person under the age of 18 years on the premises of a sexually oriented
business.
No sexually oriented business shall be open for business before 9:00
a.m., Monday through Saturday, or after 10:00 p.m., Monday through Saturday.
Sexually oriented businesses shall be closed at all times on Sundays and legal
holidays.
It is a defense to prosecution under § 188-14 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, 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.
Any person, firm or corporation who violates or permits
the violation of any provisions of this chapter or the rules and regulations
approved and hereinafter adopted shall pay a fine not exceeding $600 a day
for each violation. Whenever such person shall have been officially notified
by the borough that he/she is committing a violation of this chapter or the
rules and regulations approved and hereinafter adopted, each day that he/she
shall continue such violation after such notification shall constitute a separate
violation punishable by a like fine. Any person who violates or permits the
violation of this chapter shall pay, in addition to the fine set forth above,
all court costs and reasonable attorney's fees incurred by the borough
in connection with any civil enforcement proceedings brought to enforce this
chapter.
B.
The borough may commence civil enforcement
proceedings to assess fines for violations of this chapter. In addition to
such civil enforcement proceedings, the borough may commence, at any time,
appropriate actions in equity or otherwise to prevent, restrain, correct,
enjoy or abate violations of this chapter.
