[HISTORY: Adopted by the City Council of the City of Altoona 8-27-1997 by Ord. No.
5431; amended in its entirely 7-28-1999 by Ord. No. 5459. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Planning Code — See Ch. 535.
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 City and to establish reasonable and uniform regulations
to prevent the deleterious location and concentration of sexually
oriented businesses within the City. 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 the distributors and exhibitors
of sexually oriented entertainment to their intended market. Neither
is in the intent or 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 of 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; or
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 or specified anatomical
areas 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 features:
Persons who appear in the state of nudity; or
Live performances which are characterized by the exposure of
specified anatomical areas or by specified sexual activities; or
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 a public right-of-way which advertises the availability of this
adult type of photographic reproductions; or
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 shown which are characterized by the depiction or
description of specified sexual activities or specified anatomical
areas.
A theater, concert hall, auditorium, or similar commercial
establishment which features persons who appear in a state of nudity
or live performances which are characterized by the exposure of specified
anatomical areas or specified sexual activities.
A commercial establishment which, as one of its principal
business purposes, serves and/or sells to children and their families
food, apparels, goods, services, play, and/or entertainment.
Any person who does any one or more of the following shall
be deemed to be conducting business:
Operates a cash register, cash drawer, or other depository on
the adult business premises where cash funds or records of credit
card or other credit transactions generated in any manner by the operation
of the establishment or the activities conducted therein are kept;
Displays or takes orders from any customer for any merchandise,
goods, entertainment or other services offered on the adult business
premises;
Delivers or provides to any customer any merchandise, goods,
entertainment or other services offered on the adult business premises;
Acts as a door attendant to regulate the entry of customers
or other persons into the business premise; and/or
Supervises or manages other persons in the performance of any
of the foregoing activities on the business premises.
Any act or performance, such as a play, skit, reading, revue,
pantomime, scene, song, dance, musical rendition or striptease, whether
performed by employees, agents, contractors or customers. The term
"entertainment" shall also mean bartenders, waiters, waitresses or
other employees exposing specified anatomical areas or engaging in
specified sexual activities in the presence of customers.
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.
As used in this chapter, means nationally recognized holidays:
New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving,
and Christmas.
Having knowledge of, or reason to know, or a belief or ground
for belief which warrants further inspection or inquiry of:
The character and content of any material or performance described
herein which is reasonably susceptible of examination by a licensee
or person;
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.
"Knowingly" also means that a reasonable person using reasonable
skills and faculties would have known or been aware.
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 with less than a fully opaque covering,
or showing the female breast with less than a fully opaque covering
or any portion thereof below the top of the nipple.
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, sole 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:
This term does not include the following types of commercial
enterprises:
An enterprise in which massage therapy that does not involve
specified sexual activities is provided by a physician, chiropractor,
registered nurse, or other medical practitioner licensed or certified
by the Commonwealth of Pennsylvania.
An enterprise in which massage therapy that does not involve
specified sexual activities is provided by a professional massage
therapist who is licensed or certified by a national massage therapists'
professional organization that has an explicit and enforced policy
statement which fully deals with the concerns raised by this chapter
and furthers the purposes of this chapter.
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.
Includes any of the following:
A sexually oriented business means the increase in floor
areas occupied by the business by more than 25% as the floor areas
exist on date of enactment of this chapter (Ordinance No. 5431 adopted
8-27-1997).
A sexually oriented business means and includes 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; or
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 City of Altoona is guilty of a violation of this
chapter.
B.
An application for a permit to operate a sexually oriented business
must be made on a form provided by the Zoning Officer.
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 Zoning Officer.
D.
If a person who wishes to operate a sexually oriented business is
an individual, he or she 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 or as the entity which wishes to operate such a 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 City permits does
not exempt the person from the requirement of obtaining a sexually
oriented business permit.
A.
The Zoning Officer shall approve the issuance of a permit to an applicant
within 30 days after receipt of an application unless he or she 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 or her
payment to the City of taxes, fees, fines, or penalties assessed against
him or her or imposed upon him or her 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)
The premises to be used for the sexually oriented business have been
reviewed and have been disapproved as not being in compliance with
applicable laws and ordinances.
(5)
The permit fee required by this chapter has not been paid.
(6)
An applicant of the proposed establishment is in violation of or
not in compliance with a provision of this chapter.
(7)
An individual applicant, individual holding a direct interest of
more than 10% in a corporate applicant, officer or director of a corporate
applicant, partner or limited partner if the applicant is a partnership,
or 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, rape, statutory rape, 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 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.
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 any time.
C.
The Zoning Officer shall complete the certification that the premises
are in compliance or not in compliance within 20 days of receipt of
the application.
[Amended 7-24-2002 by Ord. No. 5512[1]]
The initial permit fee for a sexually oriented business shall
be as established by resolution of the City Council. The annual renewal
permit fee for a sexually oriented business shall be as established
by resolution of the City Council.
A.
An applicant or permittee shall permit the Police Department and
the Zoning Officer to inspect the premises of a sexually oriented
business for the purpose of ensuring compliance with the law at any
time that the sexually oriented business is open for business.
B.
A person who operates a sexually oriented business, or his or her
agent or employee, violates this chapter if he or she refuses to permit
such lawful inspection of the premises at any time it is 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 § 584-4. Application for renewal should be made at least 30 days before the expiration date, and when made fewer than 30 days before the expiration date, the pendency of the application will not prevent the expiration of the permit.
B.
If the Zoning Officer 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 Zoning Officer finds
that the basis for denial of the renewal permit has been corrected
or abated. The denial of the permit by the Zoning Officer shall be
appealable to the Zoning Hearing Board as provided by the Pennsylvania
Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
The Zoning Officer shall suspend a permit for a period not to
exceed 30 days if he or she determines that a permittee or an employee
of a permittee has:
A.
The Zoning Officer shall revoke a permit if a cause of suspension set forth in § 584-9 occurs and the permit has been suspended within the preceding 12 months.
B.
The Zoning Officer shall revoke a permit if he or she determines
that:
(2)
A permittee gave false or misleading information in the material
submitted to the City 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;
or
(7)
A permittee is delinquent in payment to the City or state of any
taxes or fees relating to the involved sexually oriented business.
C.
When the Zoning Officer 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, denial of a renewal of an application,
or suspension or revocation of a permit, the applicant, 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 or her 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 this chapter if he or she operates
or causes to be operated a sexually oriented business (excepting businesses
existing as of the date of passage of Ordinance No. 5431, adopted
8-27-1997) within 1,000 feet of:
B.
A person is guilty of a violation of this chapter if he or she causes
or permits the operation, establishment, substantial enlargement,
or transfer of ownership or control of a sexually oriented business
within 1,000 feet of another sexually oriented business.
C.
A person is guilty of a violation of this chapter if he or she 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.
D.
For the purposes of this chapter, measurement shall be made in a
straight line, without regard to intervening structures or objects,
from the nearest portion of the building or structure used as a part
of the premises where 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, child-oriented business, or nursery school, or to the nearest
boundary of an affected public park. The presence of a municipal,
county, or other political subdivision boundary shall be irrelevant
for purposes of calculating and applying the distance requirements
of this section.
E.
For purposes of Subsection B 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.
F.
A sexually oriented business that was lawfully operating on the date of the enactment of this chapter (Ordinance No. 5431 adopted 8-27-1997) that is in violation of Subsection A, B or C 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.
G.
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, child-oriented business,
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.
Limitation of operating hours of sexually oriented businesses
which apply for initial license after passage of this chapter to the
hours of 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, sexually offensive
materials and activities in public areas, and promotes the public
health, safety and welfare.
It is unlawful for any employee, owner, operator, responsible
managing employee, manager, or permittee of a sexually oriented business
to allow any person below the age of 18 years upon the premises or
within the confines of a sexually oriented business either as a patron
or as an employee.
It is a defense to prosecution under §§ 585-5
and 584-12 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; or
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; and
(2)
Where, in order to participate in a class, a student must enroll
at least three days in advance of the class; and
(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 violations of this chapter.
A person violating any provision of this chapter commits a summary
offense and shall, upon conviction, be sentenced to pay a fine of
not more than $300 or to imprisonment for not more than 90 days, or
both.
