[HISTORY: Adopted by the Borough Council of the Borough of Waterford 6-5-2000 by Ord. No. 2-2000. 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.
- A. 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:
- (1) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or
- (2) Instruments devices, or paraphernalia which are designed for use in connection with specified sexual activities.
- B. A commercial establishment may have other principal business purposes that do not involve the offering the sale or rental of material depicting or describing specified sexual activities and still be categorized as adult bookstore or adult video store. Such other business purposes will not serve to exempt such commercial establishment from being one of its principal business purposes is the offering for sale or rental for consideration of 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 sate of nudity; or
- B. Live performances which are characterized by the exposures of specified anatomical areas or by specified sexual activities; or
- C. Films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- 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, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions; or
- 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, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- The Borough of Waterford.
- 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 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:
- SUBSTANTIAL ENLARGEMENT OF A SEXUALLY ORIENTED BUSINESS
- The increase in floor areas occupied by the business by more than 25%, as the floor area exists on date of enactment of this chapter.
- TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS
- 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; or
- 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 280, Zoning, of the Code of the Borough of Waterford.
An application for a permit to operate a sexually oriented business must be made on a form provided by the Borough Secretary. 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 Secretary.
If a 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 10% or greater interest in the business must sign the application for a permit as applicant. If a corporation is listed as owner of a sexually oriented business, 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 Secretary 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 for 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 Secretary, Borough Engineer, or the Fire Chief as not being in compliance with applicable laws and ordinances.
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, of 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 or any offense in any jurisdiction other than the Commonwealth of Pennsylvania that would have constituted an offense involving sexual misconduct if committed within the Commonwealth of Pennsylvania. In order for approval to be denied pursuant to this subsection, the person or person's conviction or release in connection with the sexual misconduct offense must have occurred within two years of the date of application in the event of a misdemeanor and within five years of the date of application in the event of a felony.
The permit fee required by this chapter has not been paid.
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 easily be read at all times.
The Borough Secretary 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 Secretary.
The annual fee for sexually oriented business permits shall be as set by resolution of the Borough Council.
An applicant or permittee shall permit representatives of the authorized Borough official or representatives of the Fire Department, Borough Secretary, or other state or 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 § 206-5. 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 Secretary 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 Secretary finds that the basis for denial of the renewal permit has been corrected or abated.
The Borough Secretary shall suspend a permit for a period not to exceed 30 days if the determines that a permittee or an employee of a permittee:
Has violated or is not in compliance with any section of this chapter;
Has engaged in excessive use of alcoholic beverage while on the sexually oriented business premises;
Has refused to allow an inspection of the sexually oriented business premises as authorized by this chapter;
Has knowingly permitted gambling by any person on the sexually oriented business premises;
The Borough Secretary shall revoke a permit if a cause of suspension set forth in § 206-9 occurs and the permit has been suspended within the preceding 12 months.
The Borough Secretary 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 Secretary revokes a permit, the revocation shall continue for one year, and the permittee shall not be issued a sexually oriented businesses permit for one year from the date revocation become 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 and 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 280, 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 a B-2 Business District (B-2) as a special exception.
A person is guilty of a violation of Chapter 280, Zoning, if he operates or causes to be operated a sexually oriented businesses within 1,000 feet of:
A person is guilty of a violation of Chapter 280, 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 280, 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 areas 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 F of this section shall be deemed a nonconforming use. Such nonconforming uses shall not be increased, enlarged, extended or altered, except that the use may be changed to a conforming use. In the event that two or more sexually oriented businesses are within 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 video cassette, or other video or other image production or reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
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 Secretary 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 Secretary 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 when 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 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(1) 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 §§ 206-5 and 206-12 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; or
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; and
Where, in order to participate in a class, a student must enroll at least three days in advance of the class; and
Where no more than one nude model is on the premises at any one time.
A person who operates or causes to be operated a sexually oriented business without a valid permit or in violation of this chapter is subject to an action in equity or a suit for injunction as well as citations for violations of Chapter 280, Zoning.