[HISTORY: Adopted by the Board of Commissioners of the Township of Swatara 6-7-1995 by Ord. No. 1995-5 (Ch. 10, Part 8, of the 1990 Code). Amendments noted where applicable.]
The Board of Commissioners finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature. The concern over sexually transmitted diseases is a legitimate health concern of Swatara Township which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of the citizens. Permitting and/or licensing is a legitimate and reasonable means of accountability to ensure that operators of sexually oriented business 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. There is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values. It is recognized that sexually oriented businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to neighborhood blight and downgrading the quality of life in the adjacent area. Swatara Township desires to minimize and control these adverse effects and thereby protect the health, safety and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of surrounding neighborhoods and deter the spread of neighborhood blight. It is not the intent of 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 Board of Commissioners to condone or legitimize the distribution of obscene material.
It is the purpose of this chapter to regulate sexually oriented businesses to promote the health, safety and general welfare of the citizens of the Township and to establish reasonable and uniform regulations to prevent the continued deleterious location and 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. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene material.
As used in this chapter, the following terms shall have the meanings indicated:
- ADULT ARCADE
- 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. A commercial establishment which has a substantial or significant portion of its stock-in-trade and offers for sale or rental for any form of consideration any one or more of the following:
- (1) Books, magazines, periodicals or other printed matter or photographs, films, motion pictures, video cassettes or video reproductions, slides or other visual representations distinguished or characterized by their emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas.
- (2) Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities.
- B. A commercial establishment may have substantial or significant portions of its stock-in-trade in other goods and/or services that do not involve the offering for sale or rental of material distinguished or characterized by its emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas and still be categorized as "adult bookstore" or "adult video store." Such other business purposes will not serve to exempt such commercial establishment from being categorized as an adult bookstore or adult video store so long as one of its principal business purposes meets the definition of an "adult bookstore" or "adult video store" set forth above.
- ADULT CABARET
- A nightclub, bar, restaurant or similar commercial establishment which regularly features:
- A. Persons who appear in the state of nudity.
- B. Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
- C. Films, motion pictures, video cassettes, slides or other photograph reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT MOTION-PICTURE THEATER
- 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.
- ADULT THEATER
- 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 specified sexual activities.
- 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.
- ESCORT AGENCY
- 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.
- NUDE MODEL STUDIO
- 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.
- NUDITY or A STATE OF NUDITY
- The appearance of a human bare buttock, anus, male or female
genitalia or pubic regions, or female breast.[Amended 9-8-2004 by Ord. No. 2004-6]
- PERMITTEE and/or LICENSEE
- A person in whose name a permit and/or license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit and/or license.
- An individual, proprietorship, partnership, corporation, association or other legal entity.
- 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.
- SEXUAL ENCOUNTER CENTER
- A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
- SEXUALLY ORIENTED BUSINESS
- An adult arcade, adult bookstore or adult video store, adult cabaret, adult motion-picture theater, adult theater, escort agency, nude model studio or sexual encounter center.
- SPECIFIC ANATOMICAL AREAS
- The male genitals in the state of sexual arousal and/or the vulva or more intimate parts of the female genitals.
- SPECIFIED SEXUAL ACTIVITIES
- Include any of the following:
- SUBSTANTIAL ENLARGEMENT
- A sexually oriented business means the increase in floor areas occupied by the business by more than 25%, as the floor area exists on the date of enactment of this chapter.
- The Township of Swatara.
- TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS
- Includes any of the following:
- A. The sale, lease or sublease of the business.
- B. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means.
- C. 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:
Any person who operates a sexually oriented business without a valid permit issued by the Township is guilty of a violation of Chapter 295, Zoning, of the Township Code.
An application for a permit to operate a sexually oriented business must be made on a form provided by the Code Enforcement Officer of the Township. 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.
The applicant must be qualified according to the provisions of this chapter and the premises must be in compliance with this and all other applicable Township ordinances.
If a person who wishes to operate a sexually oriented business is an individual, he or she 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 10% 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.
The fact that a person possesses other types of Township permits does not exempt the person from the requirement of obtaining a sexually oriented business permit.
The Township Code Enforcement Officer shall issue a permit to an applicant within 30 days after receipt of an application unless he finds one or more of the following to be true, in which event he shall deny the permit within said thirty-day period:
An applicant is under 18 years of age.
An applicant has failed to provide information reasonably necessary for issuance of the permit or has falsely answered a question or request for information on the application form.
The premises to be used for the sexually oriented business does not meet the requirements of the Township Code and ordinances.
The permit fee required by this chapter has not been paid.
An applicant of the proposed establishment is in violation of or is not in compliance with any of the provisions of this chapter.
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.
The annual fee for a sexually oriented business permit is $500.
An applicant, or permittee, shall permit representatives of the Police Department, Fire Marshal, Code Enforcement Officer and other Township 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.
Each permit shall expire one year from the date of issuance and may be renewed only by making application as provided in § 90-6. Application for renewal should be made at least 30 days before the expiration date; the pendency of the application will not prevent the expiration of the permit. A decision to renew or deny shall be made within 30 days of receipt of the application by the Township.
Where the applicant certifies, under penalty of perjury, that no change has occurred in the use, possession and/or physical structure of the premises since the date of the issuance of the last permit, the applicant shall be permitted to continue the operation of its business under the exact provisions of said permit pending a decision by the Township Code Enforcement Officer on the renewal application. In the event the renewal application is denied, applicant may continue to operate it business under the exact conditions of the expired permit until said denial is reviewed by the Court of Common Pleas of Dauphin County, Pennsylvania, provided applicant appeals said denial within 30 days of the decision of the Township.
The Code Enforcement 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:
Violated or is not in compliance with any section of this chapter.
Engaged in excessive use of alcoholic beverages while on the sexually oriented business premises.
Refused to allow an inspection of the sexually oriented business premises as authorized by this chapter.
Knowingly permitted gambling by any person on the sexually oriented business premises.
The Code Enforcement Officer shall revoke a permit if a cause of suspension set forth in § 90-10 occurs and the permit has been suspended within the preceding 12 months.
The Code Enforcement Officer shall revoke a permit if he determines that:
A permittee gave false or misleading information in the material submitted to the Township during the application process.
A permittee or an employee of a permittee has knowingly allowed possession, use or sale of controlled substances on the premises.
A permittee or an employee of a permittee has knowingly allowed prostitution on the premises.
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.
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.
When the Code Enforcement 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.
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 action in a court of competent jurisdiction, as provided by the Pennsylvania Municipalities Planning Code, Chapter 295, Zoning, and/or other applicable laws of the Commonwealth of Pennsylvania.
Editor's Note: See 53 P.S. § 10101 et seq.
A permittee shall not transfer his or her 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 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 video cassette, or other video or other image production or reproduction which is distinguished or characterized by its emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas shall comply with the following requirements:
All viewing rooms shall be open to an adjacent public area of the premises.
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 and adjacent open public areas, 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 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.
The application shall be sworn to be true and correct by the applicant.
No alteration in the configuration or location of a manager's station may be made without the prior approval of the Code Enforcement Officer or his designee.
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.
The interior of the premises shall be configured in such a manner that there is an unobstructed view from the public area adjacent to the viewing room and from the manager's station to 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, other than rest rooms, from each of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station and the public areas adjacent to view rooms.
It shall be the duty of the owner and operators, and it shall also be the duty of any agents and employees present on the premises, to ensure that the view area specified in Subsection A(6), above, 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.
No viewing rooms may be occupied by more than one person at any time. No connections or openings to an adjoining viewing room shall be permitted.
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.
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 §§ 90-6 and 90-13 that a person appearing in a state of nudity did so in modeling class operated:
By a proprietary school, licensed by the Commonwealth of Pennsylvania, or a college, junior college or university supported entirely or partly by taxation.
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.
In a structure:
Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing.
Where, in order to participate in a class, a student must enroll at least three days in advance of the class.
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 chapter is subject to an action in equity or a suit for injunction as well as citations for violations of Chapter 295, Zoning.
Any person who violates any provision of this chapter shall be guilty of and liable for a summary offense and, upon conviction, shall be sentenced to pay a fine not exceeding $600 and the costs of the action. In default of payment of such fine and costs, such person may be sentenced and committed to Dauphin County prison for a period not exceeding 30 days.