[HISTORY: Adopted by the Board of Supervisors
of the Township of White 8-14-2002 by Ord. No. 980. Amendments noted where
applicable.]
A.
Title. This chapter shall be known as the "White Township
Adult Business Ordinance."
B.
Purpose. Pursuant to the authority granted in the
Second Class Township Code to promote and secure the health, cleanliness,
comfort and safety of the citizens of White Township, to regulate
and inspect the use and occupancy of public buildings, to regulate
places of public entertainment, amusement and recreation and to prevent
and prohibit public nuisances due to adverse secondary effects, White
Township (hereafter "Township") 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.
(1)
The Board of Supervisors has determined that licensing
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.
(2)
The Board of Supervisors does not intend this chapter
to suppress any speech activities protected by the First Amendment,
but to enact a content neutral ordinance that addresses the secondary
effects of sexually oriented businesses. It is not the intent of the
Board of Supervisors in enacting this chapter to deny any person rights
of speech protected by the Constitution of the United States or the
Constitution of Pennsylvania, or both, nor is it the intent of the
Board of Supervisors 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 chapter, the Board of Supervisors 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.
C.
Legislative findings. The Board of Supervisors finds:
(1)
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, decreased property values
and neighborhood deterioration.
(2)
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. 3CV99-1801 (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 Township and on findings incorporated in the cases of City of
Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), Young v. American
Mini Theaters, 426 U.S. 50 (1976) and Barnes V. Glen Theater, 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 Township finds:
(a)
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.
(b)
Certain employees of sexually oriented businesses
defined in this chapter as adult theaters and cabarets engage in higher
incidence of certain types of illicit sexual behavior than employees
of other establishments.
(c)
Sexual acts, including masturbation and oral
and anal sex, occur at sexually oriented businesses, especially those
that provide private or semiprivate 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.
(d)
Offering and providing such space encourages
such activities, which creates unhealthy conditions.
(e)
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.
(f)
At least 50 communicable diseases may be spread
by activities occurring in sexually oriented businesses, including,
but not limited to, syphilis, gonorrhea, human immunodeficiency virus
infection (HV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis,
salmonella infections and shigella infections.
(g)
The Surgeon General of the United States in
his report of October 22, 1986, has advised the American public that
AIDS and HIV infections may be transmitted through sexual contact,
intravenous drug abuse, exposure to infected blood and blood components
and from an infected mother to her newborn.
(h)
According to the best scientific evidence, AIDS
and HIV infection, as well as syphilis and gonorrhea are principally
transmitted by sexual acts.
(i)
Sanitary conditions in some sexually oriented
businesses are unhealthy, in part, because the activities conducted
there are unhealthy and, in part, because of the unregulated 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.
(j)
Numerous studies and reports have determined
that semen is found in the areas of sexually oriented businesses where
persons view "adult" oriented films.
(k)
Numerous studies have indicated that sexually
oriented businesses have a substantial negative impact on property
values and cause neighborhood blight.
(3)
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.
(4)
Sexually oriented businesses have operational characteristics
that should be reasonably regulated in order to protect those substantial
governmental concerns.
(5)
A reasonable licensing 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 licensing 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 Township. 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.
(6)
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.
(7)
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.
(8)
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.
(9)
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 that this chapter
is designed to prevent or who are likely to be witnesses to such activity.
(10)
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.
(11)
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.
(12)
The general welfare, health and safety of the citizens
of the Township will be promoted by the enactment of this chapter.
(13)
The limitation of operating hours of sexually oriented
businesses from 8:00 a.m. to 10:00 p.m., 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.
(14)
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.
(15)
The continued unregulated operation of such sexually
oriented businesses would be detrimental to the general health, safety
and welfare of the citizens of White Township.
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 electronically,
electrically or mechanically controlled still or motion picture machines,
projectors, video or laser disc players 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 distinguishable
or characterized by the depicting or describing of specified sexual
activities or specified anatomical areas.
A commercial establishment which, as one of its principal
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 or other visual representations which
are characterized by the depiction or description of specified sexual
activities or specified anatomical areas.
Instruments, devices or paraphernalia which
are designed for use in connection with specified sexual activities.
A nightclub, bar, restaurant or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity or seminudity.
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 photographic reproductions which are characterized by the
depiction or description of specified sexual activities or specified
anatomical areas.
An exhibition of any adult-oriented motion pictures
which are distinguished and characterized by an emphasis on matter
depicting, describing or relating to specified sexual activities or
specified anatomical areas.
A live performance, display or dance of any
type, which has a significant or substantial portion of the performance,
any actual or simulated performance of specified sexual activities
or exhibition in viewing of specified anatomical areas or persons
in a state of nudity or seminudity.
Films, motion pictures, video cassettes, slides
or other photographic 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, tavern, concert hall, banquet hall, party room,
conference center, restaurant, nightclub, club, bar, recreation center,
indoor amusement center, dance hall, auditorium or similar commercial
establishment which regularly features person who appear in a state
of nudity or seminudity or performances which are characterized by
the exposure of specified anatomical areas or 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, lessee, lessee of a dance floor or space or otherwise and whether
or not said person is paid a salary, wage or 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, or who agrees or offers
to privately model lingerie or to privately perform a strip tease
for another person.
A person or business association who furnishes, offers to
furnish or advertises to furnish escort as one of its primary business
purposes for a fee, tip or other consideration.
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
or sexually oriented use to any other existing sexually oriented business
or sexually oriented use.
The relocation of any sexually oriented business.
Having a general knowledge of, or reason to know, or a belief
or ground for belief that warrants further inspection or inquiry of
both:
The character and content of any material or
performance described herein which is reasonably susceptible of examination
by a licensee or persons.
The age of a 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 studios shall not include a proprietary
school licensed by the State of Pennsylvania, where 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.
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 seminude model is on
the premises at 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 full 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 opaquely
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, sexual encounter center or other
commercial establishment where adult entertainment is presented for
money or other forms of consideration.
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 discernible 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 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 conviction,
whichever is the later date, if the conviction is of a felony offense.
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:
Of a sexually oriented business means the increase in floor
areas occupied by the business by more than 25%, as the floor areas
exist on the date of licensing.
Of an adult entertainment business means and 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.
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.
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 establish and operate a sexually
oriented business after the effective date of this chapter without
a valid sexually oriented business license issued by the Township
pursuant to this chapter.
(2)
For any person who establishes and operates a sexually
oriented business after the effective date 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 Township pursuant
to this chapter.
(3)
For any person to obtain employment with a sexually
oriented business after the effective date of this chapter without
having secured a sexually oriented business employee license pursuant
to this chapter.
(4)
Beginning on the 180th day after enactment of this
chapter, for any person to continue to operate a sexually oriented
business already in operation on the effective date of this chapter
without a valid sexually oriented business license pursuant to this
chapter.
(5)
Beginning on the 180th day after the effective date
of this chapter, for any person operating a sexually oriented business
in operation at the time of the 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 Township pursuant
to this chapter.
(6)
Beginning on the 180th day after the effective date
of this chapter, for any person working as a employee of a sexually
oriented business on the effective date of this chapter to continue
such employment without having secured a sexually oriented business
employee license pursuant to this chapter.
B.
Application for a business or employee license must
be made on a form provided by the Township. For purposes of this chapter,
the responsibility for conducting any investigation, receiving and
processing any application and issuing or denying any license required
under this chapter shall be the Township Code Enforcement Officer
and/or his assistant.
C.
All applicants must be qualified according to the
provisions of this chapter. The application may request and the applicant
shall provide such information as to enable the Township 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 a twenty-percent or greater interest in the business must sign
the application for a license as applicant. Each applicant must be
qualified under the following subsection, and each applicant shall
be considered a licensee if a license is granted.
E.
The completed application for a sexually oriented
business license shall contain the following information and shall
be accompanied by the following documents:
(1)
If the applicant is:
(a)
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.
(b)
A partnership, the partnership shall state its
complete name and the names of all partners, whether the partnership
is general or limited, and a copy of the partnership agreement, if
any.
(c)
A corporation, the corporation shall state its
complete name, the date of its incorporation, the type of classification
of the corporation, 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 name of the
registered corporate agent and address of the registered office for
service of process.
(2)
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.
(3)
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.
(4)
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,
county or jurisdiction 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 the
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.
(5)
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, county
or jurisdiction and, if so, the names and locations of such licensed
businesses.
(6)
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
use, which description shall thoroughly demonstrate compliance and/or
intended compliance with all provisions of this chapter.
(7)
The location of the proposed sexually oriented business,
including a legal description of the property, street address and
telephone number(s), if any.
(8)
The applicant's mailing address and residential address.
(9)
A recent photograph of the applicant(s).
(10)
The applicant's driver's permit number, social security
number and/or his/her state and federally issued tax identification
number.
(11)
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.
(12)
If an applicant wishes to operate a sexually oriented business, which shall exhibit on the premises, in a viewing room or booth of less than 150 square feet of floor space, films, video cassettes, other video reproductions or live entertainment which depict specified sexual activities or specified anatomical areas, then the applicant shall also comply with the application requirements set forth in § 75-12 of this chapter.
(14)
An infectious plan to protect employees and the public
from bodily fluids of infectious contamination. A copy of this plan
shall be attached to the application and shall be OSHA (Occupational
Safety and Health Act) compliant.
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 Township 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.
(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)
At the time the application if filed, the Township
will take a color photograph of the applicant clearly showing the
applicant's face, which photograph shall be used to complete the criminal
background check required by this chapter.
(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 county any business or has ever had a license, permit or
authorization to do business denied, revoked or suspended or had any
professional or vocational license or permit denied, revoked or suspended.
In the event of any such denial, revocation or suspension, state 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 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.
(4)
A statement acknowledging that the employee has reviewed
the infections control plan adopted by the sexually oriented business.
H.
Any and all sexually oriented businesses in operation
within the Township, as of the effective date of this chapter, must
apply for the required licenses and pay any applicable license fees
under this chapter and, furthermore, must come into full compliance
with this chapter within six months after the effective date of this
chapter.
I.
To the extent permitted by law, all applicants for
licenses required by this chapter and materials submitted therewith,
shall be maintained by the Township in a confidential file which shall
not be made available to the public, except that all sexually oriented
business licenses shall be available for public inspection.
A.
Upon the filing of a fully completed application form
for a sexually oriented business license or employee license, the
Township shall issue a temporary license to said applicant which shall
entitle the applicant to operate the sexually oriented business or
work as an employee. The application shall then be referred to the
Township Code Enforcement Officer and/or his assistant as the licensing
administrator for purposes of this chapter for an investigation to
be made on such information as is contained on the application. The
processing and investigation of the application shall be completed
within 30 days of the date that the fully completed application is
filed with the Township. Any incomplete application shall be returned
to the applicant and the thirty-day period for processing and investigation
shall not commence until a fully completed application has been filed.
After the processing and investigation, the Township shall issue a
permanent license, unless it is determined by a preponderance of the
evidence that one or more of the following findings is true:
(1)
The applicant 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 license is to be used for operation of a business
or employment in a business prohibited by local or state law, statute,
rule or regulation or prohibited by a particular provision of this
chapter.
(5)
The applicant has had a sexually oriented business
license or sexually oriented business employee license revoked by
the Township within one year of the date of the current application.
(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 proceeding
12 months.
(8)
The application demonstrates that the proposed sexually
oriented business is in violation of or is not in compliance with
any of the provisions of this chapter.
(9)
A licensee is delinquent in payment of the Township,
county or state for any taxes or fees past due.
B.
If the sexually oriented business license or sexually oriented business employee license is denied, the temporary license previously issued shall remain in effect during all appeals. Denial, no-renewal, suspension or revocation of a license issued pursuant to this subsection shall be subject to appeal as set forth in § 75-9.
C.
A license granted pursuant to this section shall be subject to annual renewal upon the written application of the applicant pursuant to § 75-3 of this chapter and a finding by the Township 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 this license shall be subject to the payment of the fee as set forth in § 75-5.
D.
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 or employee and
the specific classification of sexually oriented use for which the
license is issued. 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.
E.
Applications for licenses required by the Township
under this chapter shall be processed and either denied or approved
within 30 days after a complete application is filed with the Township.
A letter notifying the applicant of such denial or approval shall
be mailed to the applicant within 30 days of the submittal of a complete
application. If the Township fails to render a decision granting,
denying or renewing a license required by this chapter within 30 days
after a complete application is filed with the Township, the permanent
license required by this chapter shall be deemed to have been approved.
The deemed approval rule shall apply to both applications for sexually
oriented business licenses and sexually oriented business employee
licenses.
F.
A sexually oriented business license shall be issued
for the specific classification for a sexually oriented use permitted
by this chapter and applied for.
A.
Every application for a sexually oriented business
license shall be accompanied by a nonrefundable application and investigation
fee in an amount to be established, from time to time, by resolution
of the Board of Supervisors.
B.
Every application for renewal of an existing sexually
oriented business license shall be accompanied by an annual nonrefundable
renewal license fee in an amount to be established, from time to time,
by resolution of the Board of Supervisors within 30 days of license
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 to be established, from
time to time, by resolution of the Board of Supervisors.
D.
All license applications and fees shall be submitted
to the office of the Township Secretary/Treasurer and, thereafter,
the application shall be forwarded to the Township Code Enforcement
Officer and/or his assistant designated as licensing administrator
for review, investigation and approval or denial.
E.
The schedule of fees set forth in this section may
be amended by resolution of the Township.
Subject to the consent of an applicant or licensee,
the Township Code Enforcement Officer and/or his assistance may inspect
the premises of sexually oriented businesses for purposes of ensuring
compliance with this chapter, during any time it is open for business.
In the event that the Township Code Enforcement Officer and/or his
assistant has probable cause to believe that a sexually oriented business
is operating in violation of this chapter, he and/or his assistant
may inspect the premises of the sexually oriented business for purposes
of ensuring compliance with this chapter during any time it is open
for business. In addition to the foregoing, each applicant of a licensed
sexually oriented business shall file with the Township on January
1, May 1, October 1 of each year a notarized certification, on a form
provided by the Township, that the business and all of its employees
are operating in compliance with this chapter.
A.
Each license issued under this chapter shall expire one year from the date of issuance and may be renewed only by making application as provided if §§ 75-3 and 75-4B. 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 Township Code Enforcement Officer 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
Township Code Enforcement Officer finds that the basis for denial
of the renewal license has been corrected and abated, the applicant
shall be granted a license if at least 90 days have elapsed since
the date of denial became final.
A.
The Township Code Enforcement Officer shall suspend
a license for a period not to exceed 30 days if he determines that
a licensee or an employee of a licensee has:
B.
The Township Code Enforcement Officer shall revoke a license if a cause of suspension in Subsection A occurs and the license has been suspended within the preceding 12 months.
C.
The Township Code Enforcement 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 licensed premises.
(6)
A licensee is delinquent in payment to the Township,
county or state for any taxes or fees past due.
(7)
A licensee had failed to develop and follow an infectious
control plan to protect employees and the public.
D.
When the Township Code Enforcement Officer revokes
the 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, however, subsequent
to revocation, the Township Code Enforcement Officer finds that the
basis for the revocation has been corrected or abated, the applicant
shall be granted a license if at least 90 days have elapsed since
the date of the revocation became effective.
A.
All license application 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 license shall state specifically the chapter requirement
not met and any other basis for the decision. After denial of an application,
or denial of a renewal of an application, or after suspension or revocation
of any license, the applicant or licensee may appeal pursuant to the
procedures of the Local Agency Law (2 Pa.C.S.A. § 101 et
seq.) to the Township Board of Supervisors, except as modified herein.
Any such appeal must be filed, in writing, with the Township Secretary
within 10 days from the date of 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 Township Secretary shall be deemed a conclusive determination
as to the issues or matters addressed by the written decision. If
an appeal is timely filed, the Township Board of Supervisors will
then hold a Local Agency Law hearing, pursuant to 2 Pa.C.S.A. § 101
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 a license or license renewal,
or in the case of a license suspension or revocation, the licensee
may continue to operate to the same extent and in the same manner
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.
B.
Any person aggrieved by a decision of the Township
Board of Supervisors may appeal to a court of competent jurisdiction
pursuant to the Local Agency Law (2 Pa.C.S.A. § 101 et seq.)
and 42 Pa.C.S.A. § 933(a)(2). The Township shall, upon filing
of such appeal, consent to any request by a license applicant or licensee
to the court to give expedited review of such appeal. The Township
shall certify any record to the court within 20 days after the appeal
is filed. In the case of a denial of a license or license renewal,
or in the case of a license suspension or revocation, the licensee
may continue to operate to the same extent and in the same manner
as immediately prior to the 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 person commits a violation of this chapter
if that person causes or permits the operation, establishment or maintenance
of more than one sexually oriented business in the same buildings,
structure, or portion thereof, or causes a substantial enlargement
of any sexually oriented business in any building, structure, or portion
thereof, containing another sexually oriented business.
A.
A person who operates or causes to be operated a sexually
oriented business, which exhibits on the premises in a viewing room
or booth of less than 150 square feet of floor space a film, video
cassette, live entertainment or other video reproduction which depicts
specified sexual activities or specified anatomical areas, shall comply
with the following requirements:
(1)
Upon application for a sexually oriented business
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 or interior of the premises
to an accuracy of plus or minus six inches. The Township 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 prior approval of the Township.
(4)
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.
(5)
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 the restroom. 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.
(6)
It shall be the duty of the licensees to ensure that the view area specified in Subsection A(5) 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.
(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 five
foot candles as measured at the floor level.
(9)
It shall be the duty of the licensees to ensure that
the illumination described above is maintained at all times that any
patron is present in the premises.
(10)
No licensee shall allow openings of any kind
to exist between viewing rooms or booths.
(11)
No person shall make or attempt to make any
opening of any kind between the viewing booths or rooms.
(12)
The licensee shall, during each business day,
regularly inspect the walls between the viewing booths to determine
if any openings or holes exist.
(13)
The licensee shall cause all floor coverings
in viewing booths to be nonporous, easily cleanable surfaces, with
no rugs or carpeting.
(14)
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.
(15)
A licensee shall brief all employees as to the
approved infectious control plan and OSHA regulations before and during
employment at intervals of at least six months.
It shall be a violation of this chapter for
a person to knowingly or intentionally in a sexually oriented business
appear in a seminude or nude condition, unless the person is an employee,
who while nude or seminude, shall be at least two feet from any patron
or customer and on a stage at least two feet from 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
and/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 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 reception room open to the public.
B.
For purposes of this chapter, "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.
(2)
Any individual exposing a breast in the process of
breastfeeding an infant under two years of age.
(3)
The exercise of free speech or free expression in
the form of artistic and theatrical performances. It is the intention
of the Township 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.
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 8:00 a.m., Monday through Saturday or after 10:00
p.m., Monday through Saturday. A sexually oriented business shall
be closed at all times on Sundays and legal federal or state recognized
holidays.
The Township shall enforce any violation of
this chapter through a civil enforcement proceeding before a Magisterial
District Judge. The civil enforcement proceeding shall be initiated
by complaint or by such other means as may be provided by the Pennsylvania
Rules of Civil Procedure. Any person, partnership or corporation who
or which has violated any provision of this chapter shall, upon being
found liable therefor in a civil enforcement proceeding commenced
by the Township, pay a judgment of not more than $500 for each violation,
plus all court costs and reasonable attorneys' fees incurred by the
Township in the enforcement proceedings. In any case where a penalty
for a violation of this chapter has not been timely paid and the person
upon whom the penalty was imposed is found to have been liable therefor
in civil proceedings, the violator shall be liable for the penalty
imposed, including additional daily penalties for continuing violations,
plus court costs and reasonable attorneys' fees incurred by the Township
in the enforcement proceedings. A separate violation shall arise for
each day or portion thereof in which a violation is found to exist
or for each section of this chapter which is found to have been violated.
Additionally, the Township shall be exempt from the payment of costs
in any civil case brought to enforce an ordinance in according with
this section. Further, the Township may enforce any violation of this
chapter through an equity action brought in the Court of Commons Pleas
of the County of Indiana.
