Borough of Tyrone, PA Chapter 58 Adult Entertainment

[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.

§ 58-1 Purpose and intent.

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.

§ 58-2 Word usage.

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.

§ 58-3 Definitions.

The words and phrases set forth below shall have the meanings respectively ascribed to them:

ADULT ARCADE

Any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.

ADULT BOOKSTORE or ADULT VIDEO STORE

A. 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 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.

ADULT CABARET

A nightclub, bar, restaurant or similar commercial establishment, regardless of whether such establishment sells or offers alcohol for sale, which regularly features:

A. Persons who appear in the state of nudity; or

B. Live performances which are characterized by the exposure 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 which advertises the availability of this adult type of photographic reproductions; or

B. Offers a sleeping room for rent for a time period that is less than 10 hours; or

C. Allows a tenant or occupant of a sleeping room to sublet for a period of time that is less than 10 hours.

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.

ADULT THEATER

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.

AUDIENCE

One or more persons who are permitted to view a performance for consideration of any type in or from a public place.

CHILD-ORIENTED BUSINESS

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.

ESCORT

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.

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.

ESTABLISHMENT

Includes any of the following:

A. The opening or commencement of any sexually oriented business as a new business;

B. The conversion of any existing business, whether or not a sexually oriented business, to a sexually oriented business;

C. The addition of any sexually oriented business to any other existing sexually oriented business; or

D. The relocation of any sexually oriented business.

NUDE MODEL STUDIO

Any place where a person who appears in a state of nudity or displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration.

NUDITY or A STATE OF NUDITY

The appearance of a human bare buttock, anus, male genitals, female genitals, or female breast.

PERMITTEE and/or LICENSEE

A person in whose name a permit and/or license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit and/or license.

PERSON

An individual, sole proprietorship, partnership, corporation, association, or other entity.

PERFORMANCE

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.

SEMINUDE

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. A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:

(1) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or

(2) Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or seminude.

B. This term does not include the following types of commercial enterprises:

(1) 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.

(2) 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.

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, the male buttocks and/or the vulva or more intimate parts of the female genitals, buttocks and female breasts.

SPECIFIED SEXUAL ACTIVITIES

Includes any of the following:

A. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, and female breasts;

B. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;

C. Masturbation, actual or simulated; or

D. Excretory functions as part of or in connection with any of the activities set forth in Subsections A through C above.

SUBSTANTIAL ENLARGEMENT

Of a sexually oriented business 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.

TRANSFER OF OWNERSHIP OR CONTROL

Of a sexually oriented business means and 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 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.

§ 58-4 Classification.

Sexually oriented businesses are classified as follows:

A. Adult arcades;

B. Adult bookstores or adult video stores;

C. Adult cabarets;

D. Adult motels;

E. Adult motion-picture theaters;

F. Adult theaters;

G. Escort agencies;

H. Nude model studios; and

I. Sexual encounter centers.

§ 58-5 Permit required.

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.

§ 58-6 Issuance of 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.

§ 58-7 Fees.

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.

§ 58-8 Inspection.

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.

§ 58-9 Expiration of permit.

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.

§ 58-10 Suspension of permit.

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.

§ 58-11 Revocation of permit.

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:

(1) A permittee, or any of the persons specified in § 58-6A(8), is or has been convicted of the offenses specified in § 58-6A(8);

(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.

§ 58-12 Transfer of permit/site of operation.

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.

§ 58-13 Display of permit.

The permit shall be displayed in a conspicuous, public place in the sexually oriented business.

§ 58-14 Location of sexually oriented businesses.

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:

(1) A church;

(2) A public or private pre-elementary, elementary or secondary school;

(3) A public library;

(4) A child-care facility or nursery school;

(5) A public park adjacent to any residential district;

(6) A child-oriented business;

(7) The boundary of any residential district as defined by Chapter 205, Zoning.

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.

§ 58-15 Hours of operation.

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.

§ 58-16 Exemptions.

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.

§ 58-17 Injunction.

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.

§ 58-18 Violations and penalties.

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.