[Added 9-24-1990 by Ord. No. 90-582]
As used in this article, 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-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 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; or
Films, motion pictures, videocassettes, slides
or other photographic reproductions which are characterized by the
depiction or description of specified sexual activities or specified
anatomical areas.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any
form of consideration; provides patrons with closed-circuit television
transmissions, films, motion pictures, videocassettes, slides or other
photographic reproductions which are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas; and has a sign visible from the public right-of-way which advertises
the availability of this adult-type of photographic reproductions;
or
Offers sleeping rooms for rent four or more
times in one calendar day during five or more calendar days in any
continuous thirty-day period.
A commercial establishment where, for any form of consideration,
films, motion pictures, videocassettes, slides or similar photographic
reproductions are regularly shown which are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas.
[Amended 4-15-2021 by Ord. No. 2021-872]
A commercial establishment which 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 picture, videocassettes or video reproductions, slides
or other visual representations which depict or describe 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 business purposes that do
not involve the offering for sale or rental of material depicting
or describing specified sexual activities or specified anatomical
areas and still be categorized as an adult store. Such other business
purposes will not serve to exempt such commercial establishment from
being categorized as an adult store.
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.
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.
The relocation of any sexually oriented business.
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 genitals,
female genitals or female breast.
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 areolae 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 or consideration:
An adult arcade, adult store, adult cabaret, adult motel,
adult motion-picture theater, adult theater, escort agency, nude model
studio or sexual encounter center.
[Amended 4-15-2021 by Ord. No. 2021-872]
The male genitals in a state of sexual arousal and/or the
vulva or more intimate parts of the female genitals.
Includes any of the following:
The increase in floor area occupied by the business by more
than 25%, as the floor areas exist on June 25, 1990.
The Township of Upper Merion.
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 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 this chapter.
B.
An application for a permit to operate a sexually
oriented business must be made on a form provided by the Building
Official of the Township. The application must be accompanied by a
sketch or diagram showing the configuration of the premises, including
a statement of total floor space occupied by the business. The sketch
or diagram need not be professionally prepared but must be drawn to
a designated scale or drawn with marked dimensions of the interior
of the premises to an accuracy of plus or minus six inches.
C.
The applicant must be qualified according to the provisions
of this chapter and the premises must be inspected and found to be
in compliance with the law by the Code Enforcement Department, the
Fire Marshal and the Building Official.
D.
If a person who wishes to operate a sexually oriented
business is an individual, he 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 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 Building Official shall approve the issuance
of 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:
(1)
An applicant is under 18 years of age.
(2)
An applicant or an applicant's spouse is overdue
in his payment to the Township of taxes, fees, fines or penalties
assessed against him or imposed upon him in relation to a sexually
oriented business.
(3)
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.
(4)
An applicant is residing with a person who has
been denied a permit by the Township to operate a sexually oriented
business within the preceding 12 months or is residing with a person
whose license to operate a sexually oriented business has been revoked
with the preceding 12 months.
(5)
The premises to be used for the sexually oriented
business have been reviewed and have been disapproved by either the
Code Enforcement Department, the Fire Marshal or the Building 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 applicant (if an individual); any individual
holding a direct or indirect interest of more than 10% of the corporation,
or any of the officers and directors, if the applicant is a corporation;
or any of the partners, including limited partners, if the applicant
is a partnership; or the manager or other person in charge of the
operation of the business, have been convicted of an offense involving
sexual misconduct within the Commonwealth of Pennsylvania 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.
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 Code Enforcement Department, the Fire Marshal
and the Building Official shall complete their certification that
the premises is in compliance or not in compliance within 20 days
of receipt of the application by the Building Official. The certification
shall be promptly presented to the Building Official.
The annual fee for a sexually oriented business
permit is $500.
A.
An applicant or permittee shall permit representatives
of the Police Department, the Fire Marshal, the Building Official,
the Code Enforcement Department or other Township departments or agencies
to inspect the premises of a sexually oriented business for the purpose
of ensuring compliance with the law at any time that the sexually
oriented business is occupied or open for business.
B.
A person who operates 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.
A.
Each permit shall expire one year from the date of issuance and may be renewed only by making application as provided in § 165-269. 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.
After the Township Building Official denies renewal
of a license, 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 Building
Official finds that the basis for denial of the renewal permit has
been corrected or abated.
The Building Official 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.
C.
Refused to allow an inspection of the sexually oriented
business premises as authorized by this article.
D.
Knowingly permitted gambling by any person on the
sexually oriented business premises.
A.
The Building Official shall revoke a permit if a cause of suspension set forth in § 165-273 occurs and the permit has been suspended within the preceding 12 months.
B.
The Building Official shall revoke a permit if he
determines that:
(1)
A permittee or any of the persons specified in § 165-269A(8) has been convicted of the offenses specified in § 165-269A(8).
(2)
A permittee gave false or misleading information
in the material submitted to the Township 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 or sexual intercourse, sodomy, oral copulation,
masturbation or other sexual conduct to occur in or on the permitted
premises.
(7)
A permittee is delinquent in payment to the
Township or state for any fees for taxes past due.
C.
When the Building Official 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. If, subsequent to revocation, the Building Official
finds that the basis for the revocation has been corrected or abated,
the applicant may be granted a permit if at least 90 days have elapsed
since the date the 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 may seek prompt judicial review of such administrative
action in any court of competent jurisdiction. The administrative
action shall be promptly reviewed by the court.
A permittee shall not transfer his permit to
another person, nor shall a permittee 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 a district in which a sexually oriented business is a permitted
use. No sexually oriented businesses shall be located outside a district
in which a sexually oriented business is a permitted 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 1,000 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 or residential district.
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 June 25, 1990, 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. If two or more sexually oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later-established businesses 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, public park or residential district 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 diagram of the premises
showing a plan thereof specifying the location of one or more manager's
stations and the location of all overhead lighting fixtures and designating
any portion of the premises in which patrons will not be permitted.
A manager's station may not exceed 32 square feet of floor area. The
diagram shall also designate the place at which the permit will be
conspicuously posted, if granted. A professionally prepared diagram
in the nature of an engineer's or architect's blueprint shall not
be required; however, each diagram should be oriented to the north
or to some designated street or object and should be drawn to a designated
scale or with marked dimensions sufficient to show the various internal
dimensions of all areas of the interior of the premises to an accuracy
of plus or minus six inches. The Building Official 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
Building Official or his designee.
(4)
It is the duty of the owners and operator of
the premises to ensure that at least one employee is on duty and situated
in each manager's station at all times that any patron is present
inside the premises.
(5)
The interior of the premises shall be configured
in such a manner that there is an unobstructed view from a manager's
station of every area of the premises to which any patron is permitted
access for any purpose, excluding rest rooms. Rest rooms may not contain
video reproduction equipment. If the premises has two or more manager's
stations designated, then the interior of the premises shall be configured
in such a manner that there is an unobstructed view of each area of
the premises to which any patron is permitted access for any purpose
from at least one of the manger's stations. The view required in this
subsection must be by direct line of sight from the manager's station.
(6)
It shall be the duty of the owners and operator 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(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.
(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 1.0 footcandle as measured at the floor level.
(9)
It shall be the duty of the owners and operator
and it shall also be the duty of any agents and employees present
in the premises to ensure that the illumination described above is
maintained at all times that any patron is present in the premises.
It is a defense to prosecution under §§ 165-269 and 165-276 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 § 165-276 is subject to an action in equity or a suit for injunction as well as citations for violations of this chapter.
