[HISTORY: Adopted by the Borough Council of the Borough of
Tyrone 11-8-1999 by Ord. No. 1160. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 205.
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 deleterious location and concentration of sexually
oriented businesses within the Borough. The provisions of this chapter
have neither the purpose nor the 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.
A.
For the purposes of this chapter, certain terms and words used herein
shall be interpreted or defined as follows:
(1)
Words used in the present tense shall include the future.
(2)
Words used in the singular shall include the plural. References to
any gender shall, unless the context indicates otherwise, include
all genders.
(3)
The word "person" includes a corporation, company, partnership and
association as well as an individual.
(4)
The word "lot" includes the words parcel and plot.
(5)
The term "shall" is always mandatory.
(6)
The words "used or occupied" as applied to any land or building shall
be construed to include the words "intended, arranged or designed
to be used or occupied."
(7)
The word "building" includes the word "structure."
B.
The particular shall control the general.
The words and phrases set forth below shall have the meanings
respectively ascribed to them:
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, video cassettes 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,
regardless of whether such establishment sells or offers alcohol for
sale, which regularly 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, video cassettes, 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, 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
which advertises the availability of this adult type of photographic
reproductions; or
Offers a sleeping room for rent for a time period that is less
than 10 hours; or
Allows a tenant or occupant of a sleeping room to sublet for
a period of time that is less than 10 hours.
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.
A theater, concert hall, auditorium, or similar commercial
establishment which regularly 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.
One or more persons who are permitted to view a performance
for consideration of any type in or from a public place.
A commercial establishment which, as one of its principal
business purposes, serves and/or sells to children and/or their families
food, apparel, goods, services, play and/or entertainment.
A person who, for consideration, agrees or offers or advertises
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.
Includes any of the following:
The opening or commencement of any sexually oriented business
as a new business;
The conversion of any existing business, whether or not a sexually
oriented business, to a sexually oriented business;
The addition of any sexually oriented business to any other
existing sexually oriented business; or
The relocation of any sexually oriented business.
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, sole proprietorship, partnership, corporation,
association, or other entity.
Any live or reproduced exhibition, including but not limited
to any play, motion picture film, dance or appearance presented to
or performed before an audience.
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 for such area of practice.
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 therapist
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.
The male genitals in a state of sexual arousal, the male
buttocks and/or the vulva or more intimate parts of the female genitals,
buttocks and female breasts.
Includes any of the following:
Of a sexually oriented business means the increase in floor
areas occupied by the business by more than 25%, as the floor area
exists on the date of enactment of this chapter.
Of 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 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 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. The application
shall be filed in triplicate with and dated 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 all applicable federal, state and local laws by the Zoning Officer.
D.
If a person who wishes to operate a sexually oriented business is
an individual, said person must sign the application for the permit
as an 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
the permit as an 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
in ten-percent or greater of the corporation must sign the application
for a permit as an applicant.
E.
The fact that a person possesses other types of Borough permits to
operate a business within the Borough 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 a completed application unless said
Officer 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 and/or agent is overdue
in such person's payment to the Borough of taxes, fees, fines
or penalties assessed against such person or imposed upon such person
in relation to a sexually oriented business.
(3)
An applicant has failed to provide information reasonably necessary
for issuance of a 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 resides 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 a sexually oriented business has been
reviewed and has been disapproved by the Borough 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 a provision of this chapter.
(8)
An individual applicant, individual holding a direct interest or
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 an 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 30 days of receipt of
the completed application by the Borough.
The permit fee for a sexually oriented business shall be determined
by the Borough Council from time to time. The fee must be reasonably
related to recoup the expenses from the application process. The Borough
Council shall also determine an annual fee for renewal of the permit.
A.
An applicant, or permittee, shall permit the Police Department and/or
the Zoning Officer 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.
B.
A person who operates a sexually oriented business, or said person's
agent or employee, violates this chapter if said person refuses to
permit such lawful inspection of the premises at any time it 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 § 58-5. 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 Zoning Officer shall suspend a permit for a period not to
exceed 30 days if said Officer 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.
Refused to allow an inspection of the sexually oriented business
premises as authorized by this chapter;
C.
Engaged in excessive use of alcoholic beverages while on sexually
oriented business premises;
D.
Knowingly permitted gambling by any person on sexually oriented business
premises;
E.
Demonstrated an inability to manage or operate a sexually oriented
business in a peaceful or lawful manner thus necessitating action
by law enforcement officers.
A.
The Zoning Officer shall revoke a permit if a cause of suspension set forth in § 58-10 occurs and the permit has been suspended within the preceding 12 months.
B.
The Zoning Officer shall revoke a permit if said Officer 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 of the Borough or state of any
taxes or fees relating to the involved sexually oriented businesses.
C.
A transfer of ownership or control of a sexually oriented business
and/or the permit involved and/or any interest in said permit shall
automatically and immediately revoke the permit.
D.
When a 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 the revocation became effective. If subsequent to the revocation, the Zoning Officer finds that the basis for the revocation has been corrected or abated, the applicant may be granted a permit if at least 90 days have elapsed since the date the revocation became effective. 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.
E.
After denial of an application, denial of renewal of a permit, or
suspension or revocation of a permit, the Zoning Officer shall send
to the applicant or permittee, by certified mail, return receipt requested,
written notice of the action and the right to an appeal. The written
notice shall contain the specific reasons for denial of the permit
or for the suspension or revocation of the permit. The applicant 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 said permittee's permit
to any other person. A permittee shall not operate a sexually oriented
business under the authority of a permit at any place and/or site
other than the address designated in the application and approved
by the Borough.
The permit shall be displayed in a conspicuous, public place
in the sexually oriented business.
A.
A person is guilty of a violation of Chapter 205, Zoning, of the Code of the Borough of Tyrone and this chapter if said person operates or causes to be operated a sexually oriented business outside of the zoning district in which a sexually oriented business is allowed by Chapter 205, Zoning. Sexually oriented businesses as defined herein shall be permitted in the H-C Highway Commercial District as a special exception.
B.
A person is guilty of a violation of Chapter 205, Zoning, and this chapter if said person 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 205, Zoning, and this chapter if such person 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.
D.
A person is guilty of a violation of this chapter if such person
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.
E.
For the purposes of this chapter and Chapter 205, Zoning, 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, the nearest boundary of an affected public park; or to the nearest boundary of any residential district.
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.
A sexually oriented business that was lawfully operating on the date of the enactment of this chapter or the relevant amendments to Chapter 205, Zoning, (whichever applies) that is in violation of subsections A, B, C, or D of this section shall be deemed a nonconforming use. Such nonconforming use shall not be increased, enlarged, extended or altered, except that the use may be changed to a conforming use.
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, child-oriented business,
nursery school, public park or residential district 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.
Operating hours of sexually oriented businesses which apply
for an initial permit and/or any renewal permit after passage of this
chapter shall be between the hours of 10:00 a.m. to 10:00 p.m., Mondays
through Saturdays, and closure of such businesses on Sundays and holidays.
This section is intended to reduce 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 it promotes the public health, safety and welfare.
It is a defense to prosecution under §§ 58-5 and 58-13 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; 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.
In addition to any other remedies and/or penalties provided
in this chapter, any person found guilty before a Magisterial District
Judge of violating any provision of this chapter shall be sentenced
to pay a fine of not less than $500 and not more than $1,000 plus
costs and, in default of payment, undergo imprisonment for a period
not to exceed 30 days. Each day a violation of this chapter continues
shall be deemed a separate and distinct violation.