[Ord. 683, 7/9/2001, § 1]
This Part shall be referred to as the "Sexually Oriented Business"
regulation provisions.
[Ord. 683, 7/9/2001, § 2]
1. Purpose. Pursuant to the authority granted in the Borough code to
prohibit nuisances, to promote the health, welfare, cleanliness, comfort
and safety of the citizens of the Borough of McDonald (hereinafter
"Borough") and to regulate the time of opening and closing and the
conduct of places of public entertainment, amusement and recreation,
the Borough of McDonald enacts this Part to minimize and control the
adverse secondary effects of sexually oriented businesses and thereby
protect the health, safety and welfare of its citizens, to protect
the citizens from increased crime, to preserve the quality of life,
to preserve the property values and character of surrounding neighborhoods
and to deter the spread of blight. The Council of McDonald Borough
(hereinafter "Council") 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. The
Council does not intend by this Part to suppress any speech or expression
activities protected by the First Amendment, but to enact a content
neutral ordinance which addresses the secondary effects of sexually
oriented businesses.
2. Legislative Findings. The Council finds that:
A. Sexually oriented businesses have adverse secondary effects which
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, crime and neighborhood deterioration.
B. 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 businesses. Further, such a licensing procedure
will place a hereto fore 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 Borough. It is appropriate to require
reasonable assurance that the license is the actual operator of the
sexually oriented business, fully in possession and control of the
premises and activities occurring therein.
C. Removal of doors on viewing booths and requiring sufficient lighting
on premises with viewing booths advances a substantial governmental
interest in discouraging illegal and unsanitary sexual activity occurring
in adult theaters.
D. Requiring licenses of sexually oriented businesses to keep information
regarding current employees and certain past employees will help reduce
the incident of certain types of criminal behavior by facilitating
the identification of potential witnesses or suspects and by preventing
minors from working in such establishments.
E. The disclosure of certain information by those persons ultimately
responsible for the day-to-day operation and maintenance of the sexually
oriented businesses will help limit and control the adverse secondary
effects of such businesses.
F. It is desirable, for the prevention of the spread of communicable
diseases, to obtain a limited amount of information regarding certain
employees who may engage in the conduct which this Part is designed
to prevent or who are likely to be witnesses to such activity.
G. The fact that an applicant for a sexually oriented business 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 Part.
H. The barring of such individuals from the management of sexually oriented
businesses for a period of years serves as a deterrent to and prevents
conduct which leads to the transmission of sexually transmitted diseases.
I. The general welfare, health and safety of the citizens of the Borough
will be promoted by the enactment of this Part.
J. The limitation of operating hours of sexually oriented businesses
to 10:00 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.
[Ord. 683, 7/9/2001, § 3]
As used in this Part, the following words and phrases shall
have the meaning indicted unless the context indicates a different
meaning:
ADULT ARCADE
Any place to which the public is permitted or invited wherein
coin-operated, slug operated or for any form of consideration or electronically,
electrically or mechanically controlled still or motion picture machines,
projectors, video or laser disc players or other image producing devices
are maintained, not located within viewing booths, to show images
to five or fewer person 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 anatomic
areas."
ADULT BOOKSTORE, ADULT NOVELTY STORE OR ADULT VIDEO STORE
A commercial establishment which, as one of its principal
business purposes, offers for sale or rental for any form of consideration
any one or more of the following:
A.
Books, magazine, periodicals or other printed matter or photographs,
films, motion pictures, video cassettes or video reproductions, slides,
CD-ROM discs or other computer software or other visual representations
which are characterized by the depiction or description of "specified
sexual activities" or "specified anatomical areas."
B.
Instruments, devices or paraphernalia which are designed for
use in connection with "specified sexual activities."
ADULT CABARET
A nightclub, bar, restaurant or other commercial establishment
which regularly features:
A.
Persons who appear in a state of nudity or semi-nudity.
B.
Live performances which are characterized by the exposure of
"specified anatomical areas" or by "specified sexual activities."
C.
Films, motion pictures, videocassettes, slides or other photographic
reproductions or visual presentations of any other kind which are
characterized by the depiction or description of "specified sexual
activities" or "specified anatomical areas."
ADULT MOTION PICTURE THEATER
A commercial establishment where, for any form of consideration,
films, motion pictures, video cassettes, slides or similar photographic
reproductions or visual presentations of any kind are regularly shown
which are characterized by the depiction or description of "specified
sexual activities" or "specified anatomical areas."
ADULT THEATER
A theater, concert hall, dance hall, auditorium or similar
commercial establishment which regularly features person who appear
in a state of nudity or semi-nudity or live performances which are
characterized by the exposure of "specified anatomical area" or "specified
sexual activities."
EMPLOYEE
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 or otherwise and whether or not said person is paid a salary,
wage or other compensation by the operator of said business. Employee
does not include a person exclusively on the premises or for the delivery
of goods to the premises.
ESCORT
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.
ESCORT AGENCY
A person or business association who furnishes, offer to
furnish or advertises to furnish escorts as one of its primary business
purposes for a fee, tip or other consideration.
ESTABLISHMENT
Any of the following:
A.
The opening or commencement of any sexually oriented business
as a new business.
B.
The conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business.
C.
The addition of any sexually oriented business to any other
existing sexually oriented business or to a non-sexually oriented
business.
D.
The relocation of any sexually oriented business.
KNOWINGLY
Having general knowledge of, or reason to know or a belief
or ground for belief which warrants further inspection or inquiry
of both:
A.
The character and content of any material or performance described
herein which is reasonably susceptible of examination by a licensee
or person.
B.
The age of the 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.
LICENSEE
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.
NUDE MODEL STUDIO
Any place where a person who appears nude or semi-nude, 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 mode studio shall not include a
proprietary school licensed by the State of Pennsylvania or a college,
junior college or university supported entirely or in part by public
taxation, a private college or university which maintains and operates
educational program in which credits are transferable to a college,
junior college or university supported entirely or partly by taxation,
or in a structure:
A.
That no sign visible from the exterior of the structure and
no other advertising that indicates a nude or semi-nude person is
available for viewing.
B.
Where in order to participate in a class a student must enroll
at least three days in advance of the class.
C.
Where no more than one nude or semi-nude model is on the premises
at any one time.
NUDITY OR A STATE OF NUDITY
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 fully
opaque covering of any part of the nipple or the showing of the covered
male genitals in a discernible turgid state.
PERSON
An individual, proprietorship, partnership, corporation,
association or other legal entity.
PUBLIC PLACE
All outdoor areas owned by or opened 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 member and party rooms or halls restricted
to adults or patrons invited to attend, whether or not an admission
charge is levied.
SEXUAL ENCOUNTER CENTER
A business or commercial enterprise that, as one of its principal
business purposes, offers for any form of consideration:
A.
Physical contact in the form of wrestling or tumbling between
persons of the opposite sex.
B.
Activities between male and female persons and/or persons of
the same sex when one or more of the persons is in a state of nudity
or semi-nudity.
SEXUALLY ORIENTED BUSINESS
An adult arcade, adult bookstore, adult novelty store, adult
video store, adult cabaret, adult motion picture theater, adult theater,
escort agency, nude model studio or sexual encounter center.
SPECIFIED ANATOMICAL AREAS
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.
SPECIFIED CRIMINAL ACTIVITY
Any of the following offenses:
A.
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 or other states or countries.
B.
For which:
(1)
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 late date, if the conviction is a misdemeanor offense.
(2)
Less than five years have elapsed since the date of conviction
or the date of release from confinement for the conviction, whichever
is the later date, if the conviction is of a felony offense.
(3)
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.
C.
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.
SPECIFIED SEXUAL ACTIVITIES
Any of the following:
A.
The fondling or other erotic touching of human genital, pubic
region, buttocks, anus or female breasts.
B.
Sex acts, normal or perverted, actual or simulated, including
intercourse, oral copulation, masturbation or sodomy.
C.
Excretory functions as part of or in connection with any of the activities set forth in Subsections
A and
B above.
TRANSFER OF OWNERSHIP OR CONTROL
Of a sexually oriented business means and includes any of
the following:
A.
The sale, lease or sublease of the business.
B.
The transfer of securities which constitute a controlling interest
in the business, whether by sale, exchange or similar means.
C.
The establishment of a trust, gift or other similar legal device
which transfer 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.
VIEWING BOOTHS
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" or persons who
appear in a state of nudity or semi-nudity or who offer performances
or presentations characterized by the exposure of "specified anatomical
areas" or "specified sexual activities."
[Ord. 683, 7/9/2001, § 4]
1. It is unlawful:
A. For any person to operate a sexually oriented business without a
valid sexually oriented business license issued by the Borough pursuant
to this Part.
B. For any person who operates a sexually oriented business to employ
a person to work for the sexually oriented business who is not licensed
as a sexually oriented business employee by the Borough pursuant to
this Part.
C. For any person to obtain employment with a sexually oriented business
without having secured a sexually oriented business employee license
pursuant to this Part.
D. Beginning on the 60th day after enactment of this Part, for any person
to continue to operate any sexually oriented business in operation
at the time of the enactment of this Part without a valid sexually
oriented business license pursuant to this Part.
E. Beginning on the 60th day after enactment of this Part, for any person
who operates a sexually oriented business in operation at the time
of the enactment of this Part to employ a person to work for the sexually
oriented business who is not licensed as a sexually oriented business
employee by the Borough pursuant to this Part.
F. Beginning on the 60th day after enactment of this Part, for any person
to obtain employment with a sexually oriented business in operation
at the time of the enactment of this Part without having secured a
sexually oriented business employee license pursuant to this Part.
2. An application for a license must be made on a form provided by the
Borough.
3. All applicants must be qualified according to the provisions of this
Part. The application may request and the applicant shall provide
such information (including fingerprints) as to enable the Borough
to determine whether the applicant meets the qualifications established
in this Part.
4. If a person who wished 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 20%
or greater interest in the business must sign the application for
a license as applicant. Each applicant must be qualified under this
Part and each applicant shall be considered a licensee if a license
is granted.
5. The completed application for a sexually oriented business shall
contain the following information and shall be accompanied by the
following documents:
A. If the applicant is:
(1)
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.
(2)
A partnership, the partnership shall state is complete name
and the name of all partners whether the partnership is general or
limited and a copy of the partnership agreement, if any.
(3)
A corporation, the corporation shall state its complete name,
the date of its incorporation, 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 agent and the address of the registered
office for service of process.
B. 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.
C. Whether the applicant, or a person residing with the applicant, has
been convicted of a specified criminal activity as defined in this
Part and, if so, the specified criminal activity involved, the date,
place and jurisdiction of each.
D. Whether the applicant, or a person residing with the applicant, has
had a previous license under this Part or other similar sexually oriented
business ordinance or law from another municipality, state or county
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 Part 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.
E. Whether the applicant or a person residing with the applicant holds
any other license under this Part or other similar sexually oriented
business ordinance or law from another municipality, state, of county
and, if so, the names and location of such other licensed businesses.
F. 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 business,
which description shall thoroughly demonstrate compliance and/or intended
compliance with all provisions of this Part.
G. The location of the proposed sexually oriented business, including
a legal description of the property, street address and telephone
number(s), if any.
H. The applicant's mailing address and residential address.
I. A recent photograph of the applicant(s).
J. The applicant's driver's permit number, Social Security number and
his/her State or Federally issued tax identification number.
K. 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.
L. A current certificate and straight-line drawing prepared within 30
days prior to application by a registered land surveyor depicting
the property lines, the property to be certified, the location of
all structures, the depiction of all parking areas, to include the
dimensions of each space.
M. If an applicant wishes to operate a sexually oriented business, which
includes viewing booths, then the applicant shall also comply with
the application requirements set forth in Subsection 5K above and
shall separately apply for and obtain a building and occupancy permit
for the installation of the viewing booths.
N. The application form shall inform the applicant that separate applications
are required for any necessary zoning permits, subdivision and land
development approvals or building and occupancy permits and that the
applicant may apply for such permits by contacting the Borough Code
Enforcement Officer (hereinafter "Enforcement Officer") and that Department
of Labor and Industry approval is required.
O. Before any applicant may be issued a sexually oriented business employee
license, the applicant shall submit on a form to be provided by the
Borough, the following information:
(1)
The applicant's name or any other name (including "stage" name)
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.
(8)
Proof that the individual is at least 18 years of age.
P. Attached to the application form for a sexually oriented business
employee license as provided above, shall be the following:
(1)
A color photograph of the applicant clearly showing the applicant's
face and the applicant's fingerprints on a form provided by any police
department. Any fees for the photographs and fingerprints shall be
paid by the applicant.
(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 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, 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 Part and, if so, the specified
criminal activity involved, the date, place and jurisdiction of each.
[Ord. 683, 7/9/2001, § 5]
1. Upon the filing of said application in a fully completed form for
a sexually oriented business license or for a sexually oriented business
employee license, the application shall then be referred to the Enforcement
Officer for review and investigation. The Enforcement Officer shall
utilize any available resources through the Pennsylvania State Police,
the Commonwealth of Pennsylvania and/or other law enforcement agencies
as may be necessary to complete the review and investigation required
by this Part. Within 30 days from the date the completed application
is filed, the Enforcement Officer shall issue a license, unless it
is determined by the Enforcement Officer that one or more of the following
findings is true:
A. The applicant has failed to provide information reasonably necessary
for issuance of the license or has falsely answered a question or
request for information on the application form.
B. The applicant is under the age of 18 years.
C. This applicant has been convicted of a "specified criminal activity,"
as defined in this Part.
D. The sexually oriented business employee license if to be used for
employment in a business prohibited by local or state law, statute,
rule or regulation or prohibited by a particular provision of this
Part.
E. The applicant has had a sexually oriented business employee license revoked by the Borough within two years of the date of the current application. If the sexually oriented business employee license is denied, the temporary license previously issued is immediately deemed null and void. Denial, suspension or revocation of a license issued pursuant to this section shall be subject to appeal as set forth in §
13-610 of this Part.
F. The required application, investigation and license fees have not
been paid.
G. An applicant's license to operate a sexually oriented business, issued
by any jurisdiction, has been revoked within the preceding 12 months.
H. The proposed sexually oriented business in violation of or is not
in compliance with any of the provisions of this Part.
2. A license granted pursuant to this section shall be subject to annual renewal upon the written application of the applicant and a finding by the Borough that the applicant has not been convicted of any specified criminal activity as defined in this Part or committed any act during the existence of the previous license, which would be grounds to deny the initial license application. The renewal of the license shall be subject to the payment of the fee as set forth in §
13-606.
3. 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 and the specific classification
of sexually oriented use for which the license is issued. Licenses
for sexually oriented businesses shall state that the sexually oriented
business shall not commence until all necessary zoning, subdivision
and land development and/or building code approvals and Department
of Labor Industry approvals are obtained. 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 by any person at any time.
4. Applications for building and occupancy permits shall be processed
and either denied or approved within 30 days of a complete application
by the Borough.
5. A sexually oriented business license shall issue for the specific
classification of sexually oriented use as permitted by this Part
and applied for.
6. A license denial shall conform to the provisions of § 13-601(4).
7. Any person aggrieved by the grant of a license may appeal, in writing, within 10 days from the date of issuance of the license, to the Council. The Council shall then hold a Local Agency Law Hearing within 10 days of the date of filing of the appeal and render a decision within 10 days from the end of the hearing. Appeals from a decision of the Council may be taken to court subject to §
13-601, Subsection
5, of this Part.
[Ord. 683, 7/9/2001, § 6]
1. Every application fee for a sexually oriented business license (whether
for a new license or for renewal of an existing license) shall be
accompanied by a nonrefundable application and investigation fee in
any amount set by resolution of the Council.
2. In addition to the application and investigation fee required above,
every sexually oriented business that is granted a license (new or
renewal) shall pay to the Borough an annual nonrefundable license
fee in an amount set by resolution of the Council within 30 days of
license issuance or renewal.
3. 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 set by resolution by the Council.
4. Any license applications and fees shall be submitted to the Office
of the Borough Secretary/Treasurer and, thereafter, the applications
shall be forwarded to the Enforcement Officer for review and investigation
and approval or denial.
[Ord. 683, 7/9/2001, § 7]
1. An applicant or licensee shall permit authorized Borough officers
and their agents or consultants to inspect the premises of a sexually
oriented business for the purpose of ensuring compliance with the
law and this Part, at any time it is occupied or open for business.
2. A person who operates a sexually oriented business or his agent or
employee commits a violation of this Part if he refuses to permit
such lawful inspection of the premises at any time it is occupied
or open for business.
[Ord. 683, 7/9/2001, § 8]
1. Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in §
13-604. An application for renewal shall be made at least 30 days before the expiration date, and when made less than 30 days before the expiration, the date of the expiration of the license will not be extended.
2. When the Borough 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 Borough finds that the basis for denial
of the renewal license has been corrected or abated, the applicant
may be granted a license if at 90 days have elapsed since the date
denial became final.
[Ord. 683, 7/9/2001, § 9]
The Enforcement Officer shall suspend a license for a period
not to exceed 30 days if he determines that a license or an employee
of a licensee has:
A. Violated or is not in compliance with any provision of this Part.
B. Refused to allow an inspection of the sexually oriented business
premises as authorized by this Part.
C. Knowingly permitted gambling by any person on the sexually oriented
business premises.
[Ord. 683, 7/9/2001, § 10]
1. The Enforcement Officer shall revoke a license if a cause of suspension in §
13-609 occurs and the license has been suspended within the preceding 12 months.
2. The Enforcement Officer shall revoke a license if he determines that:
A. A licensee gave false or misleading information in the material submitted
during the application process.
B. A licensee has knowingly allowed possession, use or sale of controlled
substances on the premises.
C. A licensee has knowingly allowed prostitution on the premises.
D. A licensee knowingly operated the sexually oriented business during
a period of time when the licensee's license was suspended.
E. A licensee has knowingly allowed any act of sexual intercourse, sodomy,
oral copulation, masturbation or other sex act to occur in or on the
license premises.
F. A licensee is delinquent in payment to the Borough for any licensing
fees past due.
3. When the Borough revokes a 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, subsequent to revocation, the Borough finds that the
basis for the revocation has been corrected or abated, the applicant
may be granted a license if at least 90 days have elapsed since the
date the revocation became effective.
4. All license applications, renewal, suspension or revocation decisions
shall be sent, in writing, to the applicant or licensee. All such
decisions which deny, suspend or revoke a permit shall state specifically
the Part 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 Local Agency Law to the Council.
The Council will then hold a Local Agency Law Hearing within 20 days
from the date the appeal was filed and will render a written decision
within 10 days from the date such hearing concludes. Any such appeal
must be filed, in writing, with the Borough Secretary/Treasurer, with
10 days from the date of mailing of the decision appealed from. Failure
to file said appeal with the Borough Secretary/Treasurer within 10
days from the date of the mailing of the decision appealed from shall
be deemed a conclusive determination as to the issues or matters addressed
by the written decision. In the case of a denial of a license renewal,
or in the case of a license suspension or revocation, the licensee
may continue to operate to the same extent 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 decision dismissing any appeal.
5. Any person aggrieved by a decision of the Council may appeal to a
court of competent jurisdiction. The Borough shall, upon filing of
such appeal, consent to any request by a license applicant or licensee
to the court to give expedited review to such appeal. The Borough
shall certify any record to the court within 20 days of any request
by the court to do so.
[Ord. 683, 7/9/2001, § 11]
A licensee shall not transfer his/her/its 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.
[Ord. 683, 7/9/2001, § 12]
1. A person who operates viewing booths or causes them to be operated
shall comply with the following requirements:
A. Upon application for a sexually oriented 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 of all area of interior of the premises to an accuracy
of plus or minus six inches. The Borough may waive the foregoing diagram
for renewal applications, if the applicant adopts a diagram that was
previous submitted and certifies that the configuration of the premises
has not been altered since it was prepared.
B. The application shall be sworn to be true and correct by the applicant.
C. 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.
D. 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, including rest rooms. 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. In addition,
all viewing booths shall have at least one side fully open so that
all of the area inside the booth is open to the view of persons in
the public area of the establishment.
E. It shall be the duty of the licensee to ensure that the view area
specified in Subsection 1D above, 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 1A above.
F. No viewing room may be occupied by more than one person at a time.
G. 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 candle
as measured at the floor level.
H. It is the duty of the licensees to ensure that the illuminating described
above is maintained at all times that any patron is present in the
premises.
I. No licensee shall allow openings of any kind to exist between viewing
rooms or booths.
J. No person shall make or attempt to make an opening of any kind between
viewing rooms or booths.
K. The licensee shall, during each business day, regularly inspect the
walls between viewing booths to determine if any openings or holes
exist.
L. The licensee shall cause all floor coverings in viewing booths to
be nonporous, easily cleanable surfaces, with no rugs or carpeting.
M. 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.
2. A person having a duty under Subsection 1A through M above commits
a violation of this Part if he knowingly fails to fulfill that duty.
[Ord. 683, 7/9/2001, § 13]
1. An escort agency shall not employ any person under the age of 18
years.
2. A person commits a violation of this Part if the person acts as an
escort or agrees to act as an escort for any person under the age
of 18 years.
[Ord. 683, 7/9/2001, § 14]
1. A nude model studio shall not employ any person under the age of
18 years.
2. A person under the age of 18 years commits a violation of this Part
if the person appears semi-nude or in a state of nudity in 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.
3. A person commits a violation of this Part if the person appears in
a state of nudity or knowingly allows another to appear in a state
of nudity in an area of a nude model studio premises which can be
viewed from the public right-of-way.
4. A nude model studio shall 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
[Ord. 683, 7/9/2001, § 15]
1. It shall be a violation of this Part for a person to knowingly and
intentionally, in a public place:
A. Engage in sexual intercourse or to engage in deviate sexual intercourse
as defined by the Pennsylvania Crimes Code.
B. Appeal in a state of nudity as that term is herein defined.
C. Fondle the genitals of himself, herself or another person.
2. The section shall not apply to:
A. Any child under 10 years of age.
B. Any individual exposing a breast in the process of breast-feeding
an infant under two years of age.
C. The exercise of free speech or free expression in the form of artistic
and theatrical performances. It is the intention of the Borough and
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.
3. It shall be a violation of this Part for a person who knowingly or
intentionally in a sexually oriented business appear in a semi-nude
condition unless the person is an employee who, while semi-nude, shall
be at least 10 feet from any patron or customer and on a state at
least two feet from the floor.
4. It shall be a violation of this Part for an employee, while semi-nude,
in a sexually oriented business, to solicit any pay or gratuity from
any patron or customer or for any patron or customer to pay or give
any gratuity to any employee, while said employee is semi-nude in
a sexually oriented business.
[Ord. 683, 7/9/2001, § 16]
A person commits a violation of this Part if the person knowingly
allows a person under the age of 18 years on the premises of a sexually
oriented business.
[Ord. 683, 7/9/2001, § 17]
No sexually oriented business shall be open for business before
10:00 a.m., Monday through Saturday or after 10:00 p.m., Monday through
Saturday. Sexually oriented businesses shall be closed at all time
on Sundays and legal Holidays.
[Ord. 683, 7/9/2001, § 18]
It is a defense to prosecution under §
13-615 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,
a college, a 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 partially by taxation.
C. In a structure:
(1)
Which has no sign visible from the exterior of the structure
and no other advertising that indicates a nude person is available
for viewing.
(2)
Where, in order to participate in a class a student must enroll
at least three days in advance of the class.
(3)
Where no more than one nude model is on the premises at any
one time.
[Ord. 683, 7/9/2001, § 19; as amended by Ord. 702,
9/12/2005]
1. Any person, firm or corporation who violates or permits the violation
of any provisions of this Part or the rules and regulations approved
and hereinafter adopted shall, upon conviction thereof, be sentenced
to pay a fine of not more than $1,000 plus costs for each violation
and, in default of payment of said fine and costs, to a term of imprisonment
not to exceed 30 days. Whenever such person shall have been officially
notified by the Borough that he is committing a violation of this
Part or the rules and regulations approved and hereinafter adopted,
each day that he shall continue such violations after such notification
shall constitute a separate offense punishable by like fine.
2. Any person who violates or permits the violation of this Part shall
pay, in addition to the fine set forth above, all court costs and
reasonable attorney's fees incurred by the Borough in connection with
any civil enforcement proceedings brought to enforce this Part.
3. The Borough may commence civil enforcement proceedings to assess
fines for violations of this Part. In addition to such civil enforcement
proceedings, the Borough may commence, at any time, appropriate actions
in equity or otherwise to prevent, restrain, correct, enjoin or abate
violations of this Part.