[HISTORY: Adopted by the Borough Council
of the Borough of Ingram 8-10-1998 by Ord. No. 9-1998. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 185.
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 Borough, and to establish reasonable
and uniform regulations to prevent the deleterious location and/or
concentration of sexually oriented businesses within the Borough.
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.
An establishment having as a substantial or significant portion
of its stock-in-trade books, magazines, other periodicals, films,
slides and/or videotapes and which establishment is customarily not
open to the public generally, but excludes minors by reason of age.
A nightclub, bar, restaurant, or similar commercial establishment
which regularly features:
Persons who appear in the state of nudity; or
Live performances which are characterized by
the exposure of specified anatomical areas or by specified sexual
activities; or
Films, motion pictures, video cassettes, slides,
or other photographic reproductions 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, video cassettes, 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, 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.
The Borough of Ingram.
A person who, for consideration, agrees to or offers to act
or acts as a companion, guide, or date for another person, or who
agrees to 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 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(s)
listed 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 motel, adult motion-picture theater, adult theater,
escort agency, nude model studio, or sexual encounter center.
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 fondling or other erotic touching of human
genitals, pubic region, buttocks, anus, or female breasts;
Sex acts, normal or perverted, actual or simulated,
including intercourse, oral copulation, or sodomy;
Masturbation, actual or simulated; or
Excretory functions as part of or in connection
with any of the activities set forth above.
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 date of enactment of this chapter.
Of a sexually oriented 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; or
The establishment of a trust, gift, or other
similar legal device which transfers the ownership or control of the
business, except for transfer by bequest or other operation of law
upon the death of the person possessing the ownership or control.
Sexually oriented businesses are classified
as follows:
A.
Any person who operates a sexually oriented business without a valid permit issued by the Borough is guilty of a violation of Chapter 185, Zoning.
B.
An application for a permit to operate a sexually
oriented business must be made on a form provided by the Zoning Officer.
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 inspected and found to be
in compliance with the law by the Zoning Officer and the Borough Fire
Marshal and/or Fire Code Official. If a person who wishes to operate
a sexually oriented business is an individual, he/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.
D.
The fact that a person possesses other types of Borough
permits does not exempt the person from the requirement of obtaining
a sexually oriented business permit.
A.
The Zoning Officer shall approve the issuance of a
permit to an applicant within 30 days after receipt of an application
unless he/she 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 Borough 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 Borough to operate a sexually oriented business
within the preceding 12 months, or residing with a person whose license
to operate a sexually oriented business has been revoked within 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
Zoning Officer or the Fire Marshal and/or Fire Code Official as not
being in compliance with applicable laws and ordinances.
(6)
The permit fee required by this chapter 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 chapter.
(8)
An individual applicant or any individual holding
a direct or indirect interest of more than 10% of a corporate applicant,
or any of the officers and directors of a corporate applicant, 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 applicant's business,
has or have been convicted of an offense involving sexual misconduct
within the Commonwealth of Pennsylvania, including, but not limited
to, prostitution, obscenity and possession of child pornography, 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. In
order for approval to be denied pursuant to this subsection, the person
or persons' conviction or release in connection with the sexual misconduct
offense must have occurred within two years of the date of application
in the event of a misdemeanor and within five years of the date of
application in the event of a felony.
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 Zoning Officer and Fire Marshal and/or Fire Code
Official shall complete their certification that the premises are
in compliance or not in compliance within 20 days of receipt of the
application by the Zoning Officer. The certification shall be promptly
presented to the Zoning Officer.
The annual fee for a sexually oriented business
permit shall be as set from time to time by resolution of the Borough
Council.[1]
A.
An applicant, or permittee, shall permit representatives
of the Police Department, Fire Marshal and/or Fire Code Official,
Zoning Officer, or other Borough 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 § 40-5. Application for renewal should be made at least 30 days before the expiration date and, when made fewer than 30 days before the expiration date, the pendency of the application will not prevent the expiration of the permit.
B.
If the Zoning Officer 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 Zoning Officer
finds that the basis for denial of the renewal permit has been corrected
or abated.
The Zoning Officer shall suspend a permit for
a period not to exceed 30 days if he/she 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 Zoning Officer shall revoke a permit if a cause of suspension set forth in § 40-9 occurs and the permit has been suspended within the preceding 12 months.
B.
The Zoning Officer shall revoke a permit if he/she
determines that:
(2)
A permittee gave false or misleading information in
the material submitted to the Borough 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 of sexual intercourse, sodomy, oral copulation, masturbation,
or other explicit sexual conduct to occur in or on the permitted premises;
(7)
A permittee is delinquent in payment to the Borough
or state of any taxes or fees relating to sexually oriented businesses.
C.
When the Zoning 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, except that if the revocation is pursuant to Subsection B(1) above, the revocation shall be effective for two years in the event of a misdemeanor or five years in the case of a felony.
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
to the Zoning Hearing Board and to seek prompt judicial review of
such administrative action in any court of competent jurisdiction
as well as to exercise any and all other legal remedies.
A permittee shall not transfer his 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 is guilty of a violation of Chapter 185, Zoning, if he/she operates or causes to be operated a sexually oriented business outside of the district in which a sexually oriented business is a permitted use as a special exception. No sexually oriented businesses shall be located outside a district in which a sexually oriented business is a permitted use. Sexually oriented businesses as defined herein shall be permitted in the Community Business Zoning District (C-2) as a special exception.
B.
A person is guilty of a violation of Chapter 185, Zoning, if he/she operates or causes to be operated a sexually oriented business within 600 feet of:
C.
A person is guilty of a violation of Chapter 185, Zoning, if he/she causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 1,200 feet of another sexually oriented business.
D.
A person is guilty of a violation of Chapter 185, Zoning, if he/she 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 chapter, 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.
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 the date of enactment of this chapter 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. In the event that two or more sexually oriented businesses are within 1,200 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 business 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, child-oriented
business, nursery school or public park within 1,200 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 fewer than 150 square feet of floor
space a film or video cassette, 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 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,
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 shall be oriented to
the north or to some designated street or object and shall 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 Zoning 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.
(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
Zoning Officer or his designee.
(4)
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.
(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 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 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 owners and operators, and it shall also be the duty of any agents and employees present on the premises to ensure that the view as 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. No connections or openings to an adjoining viewing room
shall be permitted.
(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 fewer than
one footcandle as measured at the floor level.
(9)
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 §§ 40-5 and 40-12 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 this chapter is subject to an action in equity or a suit for injunction as well as citations for violations of Chapter 185, Zoning.
