[Added 5-11-1995 as Ord. No. 1165, approved 5-11-1995]
A.
It is hereby determined that adult entertainment uses,
as defined by this Article, tend to bring with them secondary concerns
that impact on the health, safety and general welfare concerns of
Prospect Park. These associated concerns include difficulties for
law enforcement, municipal maintenance, trash, deleterious effects
on business and residential property values, increased crime, particularly
corruption of the morals of minors, and prostitution, and encourage
residents and businesses to move elsewhere.
B.
With these goals in mind, Prospect Park is amending
the Zoning Ordinance to restrict or limit the location of where said
activities can locate within the bounds of Prospect Park. The Borough
of Prospect Park has concluded that a permitting and/or licensing
process is a legitimate and reasonable means of accountability to
ensure that the operators of Adult Entertainment Uses comply with
reasonable regulation and do not knowingly allow their establishments
to be used as places of illegal sexual activity or solicitation. Prospect
Park also does not intend by this Article to effect or suppress any
activities protected by the First Amendment but instead address these
secondary effects.
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 give to five or fewer persons per machine at any
one time or where the image is so displayed or distinguished or characterized
by depicting or describing specified sexual activities or specified
anatomical areas.
Any establishment offering adult entertainment and a cabaret,
dance hall, club, tavern, nightclub, restaurant or similar commercial
establishment offering entertainment used for presenting material
distinguished or characterized by an emphasis on matter depicting
or describing specified sexual activities or specified anatomical
areas for observation by patrons therein. Such presentation or material
may be live or through films, motion picture, videocassettes, slides
or other photographic reproduction depicting or describing specified
sexual activities or specified anatomical areas.
Live or non-live entertainment containing specified sexual
activities or displaying or presenting specified anatomical areas.
This definition is a broad overall definition which includes the activities
adult cabaret, dance hall, club, bar, tavern, adult materials sales,
adult mini-motion-picture theater, motion-picture theater, motion-picture
theater and peep shows as part of its definition for adult entertainment.
Book, video, magazine sales, other printed matter,
photographs, films, motion-picture video or production slides or other
visual representation and/or rentals where either the materials, advertising
or the displays or the signs in or out of the locations offer written
material showing, displaying or used for presenting material distinguished
or characterized by an emphasis on matter depicting or describing
specified sexual activities or specified anatomical areas for observation
by patrons therein. This does not apply to the availability for sale
of any material displayed in such a way that only the name of the
book or magazine appears.
Instruments, devices or paraphernalia which
are used for presenting material distinguished or characterized by
an emphasis on matter depicting or describing specified sexual activities
or specified anatomical areas.
Such a commercial establishment as listed in Subsection A and B may have other principal business purposes that do not involve the offering for sale or rental of material depicted or describing specified sexual activities or specified anatomical areas and still be characterized as adult material sales. Such other business purposes will not serve to exempt such commercial establishments from being categorized as adult material sales so long as one of its principal business purposes is the offering for sale or rental for consideration in specified materials used for presenting material distinguished or characterized by an emphasis on matter depicting or describing specified sexual activities or specified anatomical areas.
Any enclosed, semienclosed or unenclosed building which houses
a commercial establishment with the capacity for fewer than 50 persons
used for presenting material distinguished or characterized by an
emphasis on matter depicting or describing specified sexual activities
or specified anatomical areas, for observation by patrons therein.
A hotel, motel or similar commercial establishment which
offers accommodation to the public for any form of consideration;
provides patrons of closed-circuit television transmissions, films,
motion pictures, videocassettes, slides or other photographic reproduction
which are used for presenting material distinguished or characterized
by an emphasis on matter depicting or describing specified sexual
activities or specified anatomical areas.
Any enclosed, partially enclosed or unenclosed building which
houses a commercial establishment with the capacity of 50 or more
persons used for presenting material distinguished or characterized
by an emphasis on matter depicting or describing specified sexual
activities or specified anatomical areas for observation by patrons
therein.
A person who applies by filling out an application for a
permit for an adult entertainment business.
A department and/or agency for the Borough, after inspection
of the premises for adult entertainment, writes a report to the Building
Inspector regarding compliance or noncompliance.
The opening or commencement of any adult entertainment
as a new business.
The conversion of an existing business, whether
or not an adult entertainment, to an adult entertainment business.
The additions of any adult entertainment business
to any other existing adult entertainment business.
The relocation of any adult entertainment business.
The appearance of the specified anatomical areas without
any coverings on the body area.
Any enclosed, semienclosed or unenclosed building/enclosure
which houses a commercial establishment with the capacity for one
person used for presenting material distinguished or characterized
by an emphasis on matter depicting or describing specified sexual
activity or specified anatomical areas for observation by parties
therein.
A person or persons to whom a permit and/or license to operate
an adult entertainment has been issued, as well as the individual
or individuals listed as an applicant on the application for a permit
and/or license.
State of dress in which clothing partially or opaquely covers
specified anatomical areas.
A business or commercial enterprise that as one of its primary
business purposes offers for any form of consideration the following:
The sale, lease or sublease of a business;
The transfer of securities which constitutes
a controlling interest in the business, whether by sale, exchange
or similar means; or
The establishment of a trust, gift or other
similar device which transfers partnership or control of the business
except for transfer by a bequest or other operation of law upon the
death of a person possessing the ownership or control.
A.
Only in the Industrial Districts, when authorized
by a special exception, shall the land, buildings or premises be used
for the following uses:
(1)
Adult arcade.
(2)
Adult cabaret/dance hall/club/bar/tavern or nightclub,
restaurant or similar commercial establishment.
(3)
Adult entertainment.
(4)
Adult material sales.
(5)
Adult mini-motion-picture theater.
(6)
Adult motel.
(7)
Adult motion-picture theater.
(8)
Peep shows.
(9)
Sexual encounter center.
B.
In addition, the above additional uses are allowed
by permit only in the Industrial District if the property line of
this use is greater than 650 feet from the property lines of:
C.
For purposes of this Article, measures 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 an adult entertainment business is conducted
to the nearest property line of a school, house of worship, Borough-owned
park and/or residential district.
A.
An applicant or permittee shall permit representatives
of the Police, Fire Marshal, Zoning Officer or other Borough departments
or agencies to inspect the premises of an adult entertainment business
for the purpose of ensuring compliance with the law at any time the
adult entertainment business is occupied or open for business. These
inspection departments/agencies shall certify, in writing, to the
Building Inspector whether compliance is achieved.
B.
A person who operates an adult entertainment business
or his agent or employee violates the Zoning Ordinance of the Borough
of Prospect Park if he refuses to permit such lawful inspection of
the business at any time it is occupied or open for business.
A.
The Building Inspector, upon submission to the Borough
of an application, shall present the applicant with a building permit
for adult entertainment business(s) as follows.
B.
In the Industrial Districts, a permit shall be issued only if the applicant is successful in obtaining a special exception for the proposed type of adult entertainment and the application successfully meets all health, use and occupancy and/or building permit requirements as defined in the pertinent ordinances and their amendments/revisions and the location of said use is demonstrated to comply with § 70-100 above.
C.
The applicant must be qualified according to the provisions
of this Article and the premises must be inspected and found to be
in compliance with the law by the Building Inspector, the Fire Marshal
and the police.
D.
The fact that a person possesses other types of Borough
permit(s) does not exempt the person from the requirement of obtaining
an adult entertainment business permit.
E.
The Building Inspector shall approve the issuance
of a permit to an applicant within 30 days after applicant is awarded
a special exception by the Zoning Hearing Board of the Borough of
Prospect Park and will not approve a permit if the Building Inspector
finds one or more of the following to be true:
(1)
The applicant is under 18 years of age.
(2)
The applicant or applicant's spouse is overdue on
his or her payment to the Borough of taxes, fees, fines or penalties
assessed against him or her or imposed upon him or her in relation
to an adult entertainment business.
(3)
The 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)
The permit fee required by this Article has not been
paid or the fees for health, use, occupancy and/or building permits
have not been complied with or the fees were not paid before.
(5)
The applicant of the proposed establishment is in
violation of or is not in compliance with any of the provisions of
this Article.
F.
The permit, if granted, shall have a life of one year
from the date of issuance. At that time, the applicant must file another
application before the expiration of the permit in order to continue
doing business without interruption. Application for renewal should
be made at least 30 days before the expiration date.
G.
The Building Inspector, Fire Marshal and the police
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 Inspector.
H.
If the Borough Building Inspector denies a 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 of lapse since
the date of denial, the applicant may be granted a permit if the Building
Inspector finds that the basis for denial of the renewal permit has
been corrected or abated.
The annual fee for an adult entertainment business
permit is $500.
The Building Inspector or his representative
shall suspend a permit for a period not to exceed 30 days if he determines
that a permittee or an employee of the permittee has:
A.
The Building Inspector or his representative shall revoke a permit if a cause of suspension set forth in § 70-104 occurred and the permit has been suspended within the preceding 12 months.
B.
The Building Inspector or his representative shall
also have the power to revoke a permit if he determines that:
(1)
A permittee or any of the persons specified has given
false or misleading information or materials submitted to the Borough
during the application process.
(3)
A permittee or employee of the permittee knowingly
operated the adult entertainment business during a period of time
when the permittee's permit was suspended or revoked.
(4)
A permittee or employee of the permittee knowingly
allowed any action of sexual intercourse, sodomy, oral copulation,
masturbation or other sexual conduct to occur in or on the permitted
premises.
(5)
A permittee is delinquent in payment of the Borough
or state for any taxes or fees past due.
C.
When the Building Inspector revokes the permit, the
revocation shall continue for one year and the permittee shall not
be issued an adult entertainment business permit for one year from
when the date of revocation became effective. If, subsequent to revocation,
the Building Inspector 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 of 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 a 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 an adult entertainment
business under the authority of a permit at any place other than the
address designated within the application.
A person who operates or causes to be operated
an adult entertainment business without a valid permit or in violation
of this Article is subject to an action in equity or a suit for injunction
as well as citations for violations of the Zoning Ordinance.
Any person who violates any provision of this Article shall be subject to the penalties set forth in § 70-82, entitled "Violations and penalties," of the Zoning Ordinance.
