[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:
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.
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:
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.
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.
A nightclub, bar, restaurant or similar commercial establishment
which regularly features:
Persons who appear in the state of nudity.
Live performances which are characterized by the exposure of
specified anatomical areas or by specified sexual activities.
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.
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, 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.
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, 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.
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
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.
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 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.
Any of the following:
The sale, lease or sublease of the business.
The transfer of securities which constitute a controlling interest
in the business, whether by sale, exchange or similar means.
The establishment of a trust, gift or other similar legal device
which transfers the ownership or control of the business, except for
transfer by bequest or other operation of law upon the death of the
person possessing the ownership or control.
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 425, Zoning, of the Code of the Borough of Girard.
B.
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.
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 Borough Manager.
D.
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.
E.
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 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:
(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 Borough Manager,
Borough Engineer or the Fire Chief 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'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.
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 all times.
C.
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.
A.
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.
A.
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.
B.
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:
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 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.
B.
The Borough Manager shall revoke a permit if he 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 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.
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 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.
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.
B.
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:
C.
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.
D.
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.
E.
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.
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 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.
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, 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.
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:
(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 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.
(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 Borough Manager
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
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.
(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 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.
(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 less 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 §§ 325-5 and 325-13 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.
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.
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.
