[HISTORY: Adopted by the Borough Council of the Borough of Girard 10-21-1996 by Ord. No. 654 (Ch. VI, Part 5, of the 1974 Code of Ordinances). Amendments noted where applicable.]
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 continued deleterious location and 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:
- ADULT ARCADE
- 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.
- ADULT BOOKSTORE 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, magazines, periodicals or other printed matter or photographs, films, motion pictures, videocassettes or video reproductions, slides or other visual representations which depict or describe specified sexual activities or specified anatomical areas.
- B. Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities. A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing specified sexual activities and still be categorized as an adult bookstore or adult video store. Such other business purposes will not serve to exempt such commercial establishment from being categorized as an adult bookstore or adult video store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials which depict or describe specified sexual activities or specified anatomical areas.
- ADULT CABARET
- A nightclub, bar, restaurant or similar commercial establishment which regularly features:
- A. Persons who appear in the state of 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 which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT MOTEL
- A hotel, motel or similar commercial establishment which:
- A. Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproduction.
- B. 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.
- ADULT MOTION-PICTURE THEATER
- A commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- Borough of Girard.
- 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, offers to furnish or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.
- NUDE MODEL STUDIO
- 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.
- NUDITY or A STATE OF NUDITY
- The appearance of a human bare buttock, anus, male genitals, female genitals or female breast.
- PERMITTEE and/or LICENSEE
- A person in whose name a permit and/or license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit and/or license.
- An individual, proprietorship, partnership, corporation, association or other legal entity.
- A state of dress in which clothing covers no more than the genitals, pubic region and areola of the female breast, as well as portions of the body covered by supporting straps or devices.
- SEXUAL ENCOUNTER CENTER
- A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
- SEXUALLY ORIENTED BUSINESS
- 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.
- SPECIFIED ANATOMICAL AREAS
- The male genitals in a state of sexual arousal and/or the vulva or more intimate parts of the female genitals.
- SPECIFIED SEXUAL ACTIVITIES
- Includes any of the following:
- A. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts.
- B. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy.
- C. Masturbation, actual or simulated.
- D. Excretory functions as part of or in connection with any of the activities set forth in Subsections A through C above.
- SUBSTANTIAL ENLARGEMENT OF A SEXUALLY ORIENTED BUSINESS
- The increase in floor area occupied by the business by more than 25%, as the floor area exists on the date of enactment of this chapter.
- TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS
- 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 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:
Any person who operates a sexually oriented business without a valid permit issued by the Borough is guilty of a violation of Chapter 425, Zoning, of the Code of the Borough of Girard.
An application for a permit to operate a sexually oriented business must be made on a form provided by the Borough Manager of the Borough. 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.
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 Borough Manager.
If any person who wishes to operate a sexually oriented business is an individual, he must sign the application for a permit as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a ten-percent or greater interest in the business must sign the application for a permit as applicant. If a corporation is listed as owner of a sexually oriented business, each individual having a direct or indirect interest of 10% or greater in the corporation must sign the application for a permit as applicant.
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.
The Borough Manager shall approve the issuance of a permit to an applicant within 30 days after receipt of an application, unless he finds one or more of the following to be true:
An applicant is under 18 years of age.
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.
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.
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.
The premises to be used for the sexually oriented business have been reviewed and have been disapproved by either the Borough Manager, Borough Engineer or the Fire Chief as not being in compliance with applicable laws and ordinances.
The permit fee required by this chapter has not been paid.
An applicant of the proposed establishment is in violation of or is not in compliance with any of the provisions of this chapter.
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's or persons' conviction or release in connection with the sexual misconduct offense must have occurred with 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.
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 all times.
The Borough Manager shall complete a certification that the premises are in compliance or not in compliance within 20 days of receipt of the application by the Borough Manager.
The annual fee for a sexually oriented business permit shall be as set from time to time by resolution of the Borough Council.
An applicant or permittee shall permit representatives of the Police Department, Fire Department, Borough Manager 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.
Each permit shall expire one year from the date of issuance and may be renewed only by making application as provided in § 325-5. Application for renewal should be made at least 30 days before the expiration date; the pendency of the application will not prevent the expiration of the permit.
If the Borough Manager 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 Borough Manager finds that the basis for denial of the renewal permit has been corrected or abated.
The Borough Manager shall suspend a permit for a period not to exceed 30 days if he determines that a permittee or an employee of a permittee has:
Violated or is not in compliance with any section of this chapter.
Engaged in excessive use of alcoholic beverages while on the sexually oriented business premises.
Refused to allow an inspection of the sexually oriented business premises as authorized by this chapter.
Knowingly permitted gambling by any person on the sexually oriented business premises.
The Borough Manager shall revoke a permit if a cause of suspension set forth in § 325-9 occurs and the permit has been suspended within the preceding 12 months.
The Borough Manager shall revoke a permit if he determines that:
A permittee gave false or misleading information in the material submitted to the Borough during the application process.
A permittee or an employee of a permittee has knowingly allowed possession, use, or sale of controlled substances on the premises.
A permittee or an employee of a permittee has knowingly allowed prostitution on the premises.
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.
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.
A permittee is delinquent in payment to the Borough or state of any taxes or fees relating to sexually oriented businesses.
When the Borough Manager 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.
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 and to seek prompt judicial review of such administrative action in any court of competent jurisdiction.
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 person is guilty of a violation of Chapter 425, Zoning, if he operates or causes to be operated a sexually oriented business outside of the district in which a sexually oriented business is a permitted use. No sexually oriented businesses shall be located outside a district in which a sexually oriented business is a permitted use. Sexually oriented businesses as defined herein shall be permitted in the Commercial Highway Zoning District (C-2) as a special exception.
A person is guilty of a violation of Chapter 425, Zoning, if he operates or causes to be operated a sexually oriented business within 1,000 feet of:
A person is guilty of a violation of Chapter 425, Zoning, if he causes or permits the operation, establishment, substantial enlargement or transfer of ownership or control of a sexually oriented business within 5,000 feet of another sexually oriented business.
A person is guilty of a violation of Chapter 425, Zoning, if he causes or permits the operation, establishment or maintenance of more than one sexually oriented business in the same building, structure or portion thereof or the increase of floor area of any sexually oriented business in any building, structure or portion thereof containing another sexually oriented business.
For the purpose of this chapter, measurement shall be 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.
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.
Any sexually oriented business lawfully operating on date of enactment of this chapter that is in violation of Subsections A through G 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 changed to a conforming use. In the event that two or more sexually oriented businesses are within 5,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later-established business is nonconforming.
A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business permit, of a church, public or private pre-elementary, elementary, or secondary school, public library, child-care facility, nursery school or public park within 1,000 feet of the sexually oriented business. This provision applies only to the renewal of a valid permit and does not apply when an application for a permit is submitted after a permit has expired or has been revoked.
A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises, in a viewing room of less than 150 square feet of floor space, a film or videocassette or other video or other image production or reproduction which depicts specified sexual activities or specified anatomical areas shall comply with the following requirements:
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 overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed 32 square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches. The Borough Manager 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.
The application shall be sworn to be true and correct by the applicant.
No alteration in the configuration or location of a manager's station may be made without the prior approval of the Borough Manager or his designee.
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.
The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of each 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.
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 area specified in Subsection A(5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection A of this section.
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.
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 one footcandle as measured at the floor level.
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 §§ 325-5 and 325-13 that a person appearing in a state of nudity did so in a modeling class operated:
By a proprietary school, licensed by the Commonwealth of Pennsylvania, or a college, junior college or university supported entirely or partly by taxation.
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.
In a structure:
Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude 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 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 violation of Chapter 425, Zoning.