[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:
Any place to which the public is permitted or invited wherein
coin-operated or slug-operated or electronically, electrically or
mechanically controlled still or motion-picture machines, projectors
or other image-producing devices are maintained to show images to
five or fewer persons per machine at any one time, and where the images
so displayed are distinguished or characterized by the depicting or
describing of specified sexual activities or specified anatomical
areas.
A commercial establishment which 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:
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.
Instruments, devices or paraphernalia which
are designed for use in connection with specified sexual activities.
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.
A nightclub, bar, restaurant or similar commercial establishment
which regularly features:
Persons who appear in the state of nudity.
Live performances which are characterized by
the exposure of specified anatomical areas or by specified sexual
activities.
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.
A commercial establishment where, for any form of consideration,
films, motion pictures, video cassettes, slides or similar photographic
reproductions are regularly shown which are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas.
A theater, concert hall, auditorium or similar commercial
establishment which regularly features persons who appear in a state
of nudity or live performances which are characterized by the exposure
of specified anatomical areas or 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.
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.
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.
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]
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.
A business or commercial enterprise that, as one of its primary
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore or adult video store, adult
cabaret, adult motion-picture theater, adult theater, escort agency,
nude model studio or sexual encounter center.
The male genitals in the state of sexual arousal and/or the
vulva or more intimate parts of the female genitals.
Include any of the following:
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.
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.
The establishment of a trust, gift or other
similar legal device which transfers the ownership or control of the
business, except for transfer by bequest or other operation of law
upon the death of the person possessing the ownership or control.
Sexually oriented businesses are classified
as follows:
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
A.
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:
(1)
An applicant is under 18 years of age.
(2)
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.
(3)
The premises to be used for the sexually oriented
business does not meet the requirements of the Township Code and ordinances.
(4)
The permit fee required by this chapter has not been
paid.
(5)
An applicant of the proposed establishment is in violation
of or is not in compliance with any of the provisions of this chapter.
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.
The annual fee for a sexually oriented business
permit is $500.
A.
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.
A.
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.
B.
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:
A.
Violated or is not in compliance with any section
of this chapter.
B.
Engaged in excessive use of alcoholic beverages while
on the sexually oriented business premises.
C.
Refused to allow an inspection of the sexually oriented
business premises as authorized by this chapter.
D.
Knowingly permitted gambling by any person on the
sexually oriented business premises.
A.
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.
B.
The Code Enforcement Officer shall revoke a permit
if he determines that:
(1)
A permittee gave false or misleading information in
the material submitted to the Township during the application process.
(2)
A permittee or an employee of a permittee has knowingly
allowed possession, use or sale of controlled substances on the premises.
(3)
A permittee or an employee of a permittee has knowingly
allowed prostitution on the premises.
(4)
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.
(5)
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.
C.
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.
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 action in a court of competent
jurisdiction, as provided by the Pennsylvania Municipalities Planning
Code,[1] Chapter 295, Zoning, and/or other applicable laws of the Commonwealth of Pennsylvania.
[1]
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.
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:
(1)
All viewing rooms shall be open to an adjacent public
area of the premises.
(2)
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.
(3)
The application shall be sworn to be true and correct
by the applicant.
(4)
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.
(5)
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.
(6)
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.
(7)
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.
(8)
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.
(9)
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.
(10)
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:
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.
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.
(2)
Where, in order to participate in a class, a student
must enroll at least three days in advance of the class.
(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 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.
