[HISTORY: Adopted by the Board of Supervisors of Newberry
Township 5-26-2015 by Ord. No.
387. Amendments noted where applicable.]
A.
Pursuant to the authority granted in the Second Class Township Code[1] to promote the health, safety, morals, and general welfare
of the inhabitants of Newberry Township, to regulate and inspect the
use and occupancy of buildings, to regulate places of public entertainment,
amusement and recreation, and to prevent and prohibit public nuisances
due to adverse secondary effects, Newberry Township enacts this chapter
to minimize and control the adverse secondary effects of sexually
oriented businesses, including adult bookstores, adult cabarets, and
adult theaters, and thereby to protect the health, safety, and welfare
of its citizens, protect the citizens' property values and the character
of surrounding neighborhoods, and deter the spread of blight.
(1)
Newberry Township has determined that licensing is a legitimate and
reasonable means of accountability to insure that operators of sexually
oriented businesses comply with reasonable regulations and to insure
that sexually oriented establishments are not used as places of illegal
sexual activity or solicitation.
(2)
Newberry Township does not intend this chapter to suppress any speech
activities protected by the First Amendment but to enact a content-neutral
ordinance which addresses the secondary effects of sexually oriented
businesses. It is not the intent of the Township in enacting this
chapter to deny any person rights of speech protected by the Constitution
of the United States or the Constitution of the Commonwealth of Pennsylvania,
or both, nor is it the intent of the Township to impose any additional
limitations or restrictions on the contents of any communicative materials,
including sexually oriented films, videotapes, books, or other materials.
Further, by enacting this chapter, the Township does not intend to
deny or restrict the rights of any adult to obtain or view, or both,
any sexually oriented materials or conduct protected by the Constitution
of the United States or the Constitution of the Commonwealth of Pennsylvania,
or both, nor does it intend to restrict or deny any constitutionally
protected rights that distributors or exhibitors of sexually oriented
materials have to sell, distribute, or exhibit these materials.
[1]
Editor's Note: See 53 P.S. § 65101 et seq.
B.
The Newberry Township Board of Supervisors finds as follows:
(1)
Law enforcement personnel have determined, and statistics and studies
performed in a substantial number of communities in the commonwealth
and in the United States indicate, that sexually oriented businesses
have adverse secondary effects, which secondary effects should be
regulated to protect the public health, safety, and welfare. These
secondary effects include, but are not limited to, the spread of communicable
diseases, performance of sexual acts in public places, presence of
discarded sexually oriented materials on public and private property,
sexual harassment, obscenity, prostitution, and other illegal sexual
activities, crime, decreased property values, and neighborhood deterioration.
(2)
Based on evidence concerning the adverse, secondary effects of adult
uses on the community in findings incorporated in the cases of City
of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v.
Amer. Mini Theatres, 426 U.S. 41 (1976), and Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991) and on other information available to the
Township, the Township finds as follows:
(a)
Sexually oriented businesses lend themselves to ancillary unlawful
and unhealthy activities that are presently uncontrolled by the operators
of the establishments.
(b)
Certain employees of adult cabarets engage in higher incidences
of certain types of illicit sexual behavior than employees of other
establishments.
(c)
Sexual acts, including masturbation, oral and anal sex, occur
at sexually oriented businesses, especially those which provide private
or semiprivate booths or cubicles for viewing films, videos, or live
sex shows. Furthermore, adult bookstores tend to attract customers
who engage in unprotected, high-risk sexual activity.
(d)
Offering and providing such space encourages such activities,
which creates unhealthy conditions.
(e)
Persons frequent certain adult theaters and other sexually oriented
businesses for the purpose of engaging in sexual activities within
the premises of such sexually oriented businesses.
(f)
At least 50 communicable diseases may be spread by activities
occurring in sexually oriented businesses, including but not limited
to syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS),
genital herpes, hepatitis B, Non A, Non B, amebiasis, salmonella infections
and shigella infections.
(g)
The Surgeon General of the United States in his report of October
22, 1986, has advised the American public that AIDS and HIV infections
may be transmitted through sexual contact, intravenous drug abuse,
exposure to infected blood and blood components, and from an infected
mother to her newborn child.
(h)
According to the best scientific evidence, AIDS and HIV infections,
as well as syphilis and gonorrhea, are principally transmitted by
sexual acts.
(i)
Sanitary conditions in some sexually oriented businesses are
unhealthy, in part, because the activities conducted there are unhealthy,
and in part, because of the unregulated nature of the activities and
the failure of the owners and the operators of the facilities to self-regulate
those activities and maintain those facilities.
(j)
Numerous studies and reports have determined that semen is found
in the areas of sexually oriented businesses where persons view sexually
oriented films.
(k)
Numerous studies have indicated that sexually oriented businesses
have a substantial negative impact on property values and cause neighborhood
blight.
(3)
Sexually oriented businesses have adverse secondary effects, which
secondary effects should be regulated to protect the public health,
safety, and welfare.
(4)
Sexually oriented businesses have operational characteristics that
should be reasonably regulated to protect those substantial governmental
concerns.
(5)
A reasonable licensing procedure is an appropriate mechanism to place
the burden of that reasonable regulation on the owners and the operators
of sexually oriented businesses. Further, such a licensing procedure
will place a heretofore nonexistent incentive on the operators to
see that the sexually oriented business is run in a manner consistent
with the health, safety, and welfare of its patrons and employees,
as well as the citizens of the Township. It is appropriate to require
reasonable assurances that the licensee is the actual operator of
the sexually oriented business, fully in possession and control of
the premises and activities occurring therein.
(6)
Removal of doors on adult booths and requiring sufficient lighting
on premises with adult booths advances a substantial governmental
interest in curbing the illegal and unsanitary, sexual activity occurring
in adult facilities.
(7)
Requiring licensees of sexually oriented businesses to keep information
regarding current employees and certain past employees will help reduce
the incidence of certain types of criminal behavior by facilitating
the identification of potential witnesses or suspects and by preventing
minors from working in such establishments.
(8)
The disclosure of certain information by those persons ultimately
responsible for the day-to-day operation and maintenance of the sexually
oriented businesses, where such information is substantially related
to the significant governmental interest in the operation of such
uses, will aid in preventing the spread of sexually transmitted diseases.
(9)
It is desirable in the prevention of the spread of communicable diseases
to obtain certain information regarding certain employees may engage
in the conduct which this chapter is designed to prevent or who are
likely to be witnesses to such activity.
(10)
The fact that an applicant for a sexually oriented businesses
license has been convicted of a sexually related crime leads to the
rational assumption that the applicant is likely to engage in that
conduct in contravention of this chapter.
(11)
The barring of such individuals from the management of sexually
oriented businesses for a period of years serves as a deterrent to
and prevents conduct that leads to the transmission of sexually transmitted
diseases.
(12)
The general welfare, health, and safety of the citizens of the
Township will be promoted by the enactment of this chapter.
(13)
The limitation of operating hours of sexually oriented businesses
from 8:00 a.m. to 10:00 p.m., Mondays through Sundays, and closure
of such businesses on Sundays and holidays reduce the adverse secondary
effects of such businesses, including particularly, but not limited
to, late night noise levels, crime and sexually offensive materials
and activities in public areas, and promotes the public health, safety
and welfare.
(14)
The reasonable regulation and supervision of sexually oriented
businesses tends to discourage sexual acts and prostitution and thereby
promote the health, safety, and welfare of patrons, clients and customers
of these businesses.
(15)
The continued unregulated operation of such sexually oriented
businesses would be detrimental to the general health, safety, and
welfare of the citizens of Newberry Township.
C.
In interpreting and applying the provisions of this chapter, they
shall be held to be the minimum requirements for the promotion of
the public health, safety, comforts, conveniences, and general welfare
of Newberry Township's citizens. Where the provision of any statute,
other ordinance, or regulation impose greater restrictions than this
chapter, the provisions of such statute, other ordinance, or regulation
shall be controlling. Where the provisions of this chapter impose
greater restrictions than those of any statute, other ordinance or
regulation, the provisions of this chapter shall be controlling to
the extent allowed by law. However, in no case shall the provisions
of this chapter be interpreted in such a manner as to violate the
United States Constitution or the Constitution of the Commonwealth
of Pennsylvania.
As used in this chapter the following words and phrases shall
have the meanings indicated unless the context clearly indicates a
different meaning.
An establishment or business which provides the services
of baths of all kinds, including all forms and methods of hydrotherapy,
during which specified anatomical areas are displayed or specified
sexual activity occurs. This section shall not apply to hydrotherapy
treatment practiced by or under the supervision of a medical practitioner.
A medical practitioner, for the purpose of this chapter, shall be
a medical doctor, physician, chiropractor or similar professional
licensed by the Commonwealth of Pennsylvania.
Any establishment or business which provides the services
of applying paint or other substance, whether transparent or nontransparent,
to or on the human body when specified anatomical areas are exposed.
Any establishment which has a substantial or significant
portion of its stock or in trade:
Books, films, magazines or other periodicals or other forms
of audio or visual representation which are distinguished or characterized
by an emphasis or description of specified sexual activities or specified
anatomical areas.
Instruments, devices or paraphernalia which are designed for
use in connection which specified sexual activities.
A nightclub, theater, bar or other establishment which features
live or media representations of performances by topless or bottomless
dancers, go-go dancers, exotic dancers, strippers, or similar entertainers,
where such performances are distinguished or characterized by an emphasis
on specified sexual activities or specified anatomical areas.
An exhibition of any adult-oriented motion pictures which are
distinguished and characterized by an emphasis on matter depicting,
describing or relating to specific sexual activities or specified
anatomical areas; or
A live performance, display or dance of any type, which has
as a significant or substantial portion of the performance any actual
or simulated performance of specified sexual activities or exhibition
or viewing of specified anatomical areas or persons in a state of
nudity or seminudity; or
Films, motion pictures, videocassettes, slides, or other photographic
reproductions that are characterized by the depiction of description
of specified sexual activities or specified anatomical areas.
Any establishment or business which provides the services
of massage and body manipulation, including exercises, heat and light
treatments of the body and all forms and methods of physiotherapy,
unless operated by a medical practitioner, chiropractor or professional
physical therapist licensed by the commonwealth. This definition does
not include athletic club, health club, school, gymnasium, reducing
salon, spa or similar establishment where massage or similar manipulation
of the human body is offered as an incidental or accessory service.
An enclosed or unenclosed building with capacity of more
than five, but fewer than 50 persons used for presenting any form
of audio or visual material, and in which a substantial portion of
the total presentation time measured on an annual basis is devoted
to the showing of material which is distinguished or characterized
by an emphasis on depiction or description of specified sexual activities
or specified anatomical areas.
Any place where, for any form of consideration or gratuity,
figure models who display specified anatomical areas are provided
to be observed, sketched, drawn, painted, sculptured, photographed
or similarly depicted by persons paying such consideration or gratuity,
except that this provision shall not apply to any "figure studio"
or "school of art" or similar establishment which meets the requirements
established in the Education Code of the Commonwealth of Pennsylvania
for the issuance or conferring of, and is in fact authorized thereunder
to issue and confer, a diploma.
A motel or similar establishment offering public accommodations
for any consideration, which provides patrons with material distinguished
or characterized by an emphasis on depiction or description of specified
sexual activities or specified anatomical areas.
Any place to which the public is permitted or invited wherein
a coin- or slug-operated or electronically 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 an emphasis on depiction or description of specified
sexual activities or specified anatomical areas.
An enclosed or unenclosed building with a capacity of 50
or more persons used for presenting any form of audio or visual material,
and in which a substantial portion of the total presentation of time,
measured on an annual basis, is devoted to the showing of material
which is distinguished or characterized by an emphasis on depiction
or description of specified sexual activities or specified anatomical
areas.
Any coin-operated machine or device which dispenses material
substantially devoted to the depiction of specified sexual activities
or specified anatomical areas.
Any establishment or business which provides an outcall service
which consists of individuals leaving the premises upon request or
by appointment to visit other premises for a period of time for the
purpose of providing any service during which time specified anatomical
areas are displayed or specified sexual activity occurs.
Any business, agency of person who, for any form of consideration
or gratuity, provides a place where two or more persons, not all members
of the same family, may congregate, assemble or associate for the
purpose of engaging in specified sexual activity or exposing specified
anatomical areas, excluding psychosexual workshops, operated by a
medical practitioner licensed by the Commonwealth, to engage in sexual
therapy.
A theater, concert hall, auditorium or other similar establishment,
either indoor or outdoor in nature, which regularly features live
performances which are distinguished or characterized by an emphasis
on specified sexual activities or by exposure of specified anatomical
areas for observation by patrons.
A commercial use which has 50% or more of its stock-in-trade
consisting of videotapes, video discs, or both, which are distinguished
or characterized by an emphasis, depiction, or description of specified
sexual activities or anatomical areas.
A person who performs any service on the premises of a sexually oriented
business on a full-time, part-time, or contract basis, whether or
not the person is denominated an employee, independent contractor,
agent, lessee, lessee of a dance floor or space or otherwise, and
whether or not said person is paid a salary, wage or compensation
by the operator of the business. "Employee" does not include a person
exclusively on the premises for the repair or maintenance of the premises
or equipment on the premises, or for the delivery of goods to the
premises.
A person who, for consideration, agrees or offers to act
as a companion, guide, or date for another, 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 advertise to furnish escorts as one of its business purposes
for a fee, tip or other consideration.
The opening or commencement of any sexually oriented business;
The conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business;
The addition of any sexually oriented business or sexually oriented
use to any other existing sexually oriented use; or
The relocation of any sexually oriented business.
Having a general knowledge of, or reason to know, or a belief
or grounds for belief which warrants further inspection of inquiry
of either:
The character and content of any material or performance described
herein which is reasonably susceptible of examination by a licensee
or persons; or
The age of a 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.
A person in whose name a license to operate a sexually oriented
business has been issued, as well as the individual listed as an applicant
on the application for a license; and in the case of an employee,
a person whose name a license has been issued authorizing employment
in a sexually oriented business.
Any place where a person who appears seminude, in a state
of nudity, or who displays specific anatomical areas and is provided
to be observed, sketched, drawn, painted, sculptured, photographed,
or similarly depicted by other persons who pay money or any form of
consideration. Nude model studios shall not include a proprietary
school licensed by the Commonwealth of Pennsylvania; a college, junior
college or university supported entirely or in part by public taxation;
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 taxations, or in a structure
where:
No sign visible from the exterior of the structure and no other
advertising indicates that a nude or seminude person is available
for viewing; and
In order to participate in a class, a student must enroll at
least three days in advance of the class; and
No more than one nude or seminude model is in any one room on
the premises at one time.
The showing of the human male or female genitals, pubic area,
vulva, anus, anal cleft, or cleavage with less than a fully opaque
covering, the showing of the female breast with less than a fully
opaque covering of any part of the nipple, or the showing of the covered
male genitals in discernibly turgid state.
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
The state of dress in which clothing partially or opaquely
covers specified anatomical areas.
Any business, agency of person who, for any form of consideration
or gratuity, provides a place where two or more persons, not all members
of the same family, may congregate, assemble or associate for the
purpose of engaging in specified sexual activity or exposing specified
anatomical areas, excluding psychosexual workshops, operated by a
medical practitioner licensed by the Commonwealth, to engage in sexual
therapy.
An adult bookstore, adult novelty store, adult video store,
adult cabaret, adult theater, escort agency, nude model studio, sexual
encounter center, or other commercial or not-for-profit establishment
where adult entertainment is presented for money or other forms of
consideration.
Human genitals, pubic region, anus, buttocks, and female
breast below a point above the top of the areola, or human male genitals
in a discernibly turgid state, even if completely covered.
Prostitution or promotion of prostitution; dissemination of
obscenity; sales, distribution or display of harmful material to a
minor; sexual performance by a child; possession or distribution of
child pornography; public lewdness; indecent exposure; indecency with
a child; gambling; or distribution of a controlled substance; or a
similar offense to those described above under the Criminal or Penal
Code[1] of the Commonwealth of Pennsylvania or other states or
countries for which:
Less than two years have elapsed since the date of conviction
or the date of release from confinement imposed for the conviction,
whichever is the later date, if the conviction is a misdemeanor offense;
or
Less than five years have elapsed since the date of conviction
of the date of release from confinement for conviction, whichever
is the later date, if the conviction is a felony offense; or
Less than five years have elapsed since the date of the last
conviction of the date of release from confinement for the last conviction
whichever is the later date, if the convictions are of two or more
misdemeanor offenses or combination of misdemeanor offenses occurring
within any twenty-four-month period.
The fact that a conviction is being appealed shall have no effect
on the disqualification of the applicant.
The increase in floor areas occupied by a sexually oriented
business by more than 25%, as the floor areas exist on the date of
licensing.
The sale, lease, or sublease of a sexually oriented business;
or
The establishment or a trust, gift, or other similar legal device
which transfers ownership or control of a sexually oriented business;
or
Any change in the identity of the officers or directors of a
corporation operating a sexually oriented business.
Booths, stalls, partitioned portions of a room, rooms, or
other enclosures that are available for viewing:
Films, movies, videos, or visual reproductions of any kind depicting
or describing specified anatomical areas; or
A person or persons who appear in a state of nudity or seminudity
or who offer performance or presentations characterized by the exposure
of specified anatomical areas or by specified sexual activities.
[1]
Editor's Note: See 18 Pa.C.S.A § 101 et seq.
A.
It is unlawful:
(1)
For any person to establish and operate a sexually oriented business
after the effective date of this chapter without a valid sexually
oriented business license issued by the Township pursuant to this
chapter;
(2)
For any person who establishes and operates a sexually oriented business
after the effective date of this chapter to employ a person to work
for the sexually oriented business who is not licensed as a sexually
oriented business employee by the Township pursuant to this chapter;
(3)
For any person to obtain employment with a sexually oriented business
after the effective date of this chapter without having secured a
sexually oriented business employee license pursuant to this chapter;
(4)
For any person to operate a sexually oriented business already in
operation on the effective date of this chapter without a valid sexually
oriented business license pursuant to this chapter;
(5)
For any person operating a sexually oriented business in operation
at the time of the enactment of this chapter to employ a person to
work for the sexually oriented business who is not licensed as a sexually
oriented business employee by the Township pursuant to this chapter;
(6)
For any person working as an employee of a sexually oriented business
on the effective date of this chapter to continue such employment
without having secured a sexually oriented business employee license
pursuant to this chapter.
B.
Application for a business or employee license must be made on a
form provided by the Township. For purposes of this chapter, the responsibility
for conducting any investigation, receiving and processing any application,
and issuing or denying any license required under this chapter shall
be the Township's Zoning Officer or other Township designee, appointed
from time to time by the Board of Supervisors.
C.
All applicants must be qualified according to the provisions of this
chapter. The application may request and the applicant shall provide
such information as to the Township to determine whether the applicant
meets the qualifications established in this chapter.
D.
If a person who wishes to operate a sexually oriented business is
an individual, the person must sign the application for a license
as applicant. If a person who wishes to operate a sexually oriented
business is other than an individual, each individual who has a 20%
or greater interest in the business must sign the application for
a license as applicant. Each applicant must be qualified under the
following section and each applicant shall be considered a licensee
if a license is granted.
E.
The completed application for a sexually oriented business license
shall contain the following information and shall be accompanied by
the following documents.
(1)
If the applicant is:
(a)
An individual, the individual shall state his/her legal name
and any aliases and submit proof that he/she is at least 18 years
of age;
(b)
A partnership, the partnership shall state its complete name,
and the names of all partners, whether the partnership is general
or limited, and a copy of the partnership agreement if any;
(c)
A corporation, the corporation shall state its complete name,
the date of its incorporation, the type of classification of the corporation,
evidence that the corporation is in good standing under the laws of
its state of incorporation and qualified and authorized to conduct
business in Pennsylvania, the names and capacity of all officers and
directors, and the name of the registered corporate agent and address
of the registered office for service of process;
(2)
If the applicant intends to operate the sexually oriented business
under a name other than that of the applicant, he or she must state
the sexually oriented business's fictitious name and submit the required
registration documents.
(3)
Whether the applicant has been convicted of a specified criminal
activity as defined in this chapter, and, if so, the specified criminal
activity involved, the date, place and jurisdiction of each.
(4)
Whether the applicant has had a previous license under this chapter
or other similarly sexually oriented business ordinance from another
municipality, county, or other jurisdiction denied, suspended, or
revoked, including the name and location of the sexually oriented
business for which the permit was denied, suspended, or revoked, as
well as the date of the denial, suspension, or revocation, and whether
the applicant has been a partner in a partnership, or an officer,
director, or principal stockholder of a corporation that is licensed
under this chapter whose license has previously been denied, suspended,
or revoked, including the name and location of the sexually oriented
business for which the permit was denied, suspended, or revoked as
well as the date of denial, suspension or revocation.
(5)
Whether the applicant holds any other licenses under this chapter
or other similarly sexually oriented business ordinance from another
municipality, county, or jurisdiction, and if so, the names and locations
of such other licensed businesses.
(6)
The specific classification of sexually oriented use for which the
applicant is filing, along with a detailed description of each and
every activity encompassed by the proposed sexually oriented use,
which description shall thoroughly demonstrate compliance and/or intended
compliance with all provisions of this chapter.
(7)
The location of the proposed sexually oriented business, including
a legal description of the property, street address, and telephone
number(s), if any.
(8)
The applicant's mailing address and residential address.
(9)
A recent photograph of the applicant(s), no older than one year.
(10)
The applicant's driver's permit number, social security number,
and/or his/her state or federally issued tax identification number.
(11)
A sketch or diagram showing the 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 it
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.
(12)
If an applicant wished to operate a sexually oriented business which shall exhibit on the premises in a viewing room or booth of less than 150 square feet of floor space films, video cassettes, other video representations, or live entertainment, which depict specified sexual activities or specified anatomical areas, then the applicant shall also comply with the application requirements set forth in § 317-12 of this chapter.
(14)
An infection plan to protect employees and the public from bodily
fluids of infectious contamination. A copy of the plan shall be attached
to the application and shall by OSHA (Occupational Safety and Health
Act) compliant.
F.
Before any applicant may be issued a sexually oriented business employee
license, the applicant shall submit on a form to be provided by the
Township the following information:
(1)
The applicant's name or any other name (including "stage" names)
or aliases used by the individual;
(2)
Age, date and place of birth;
(3)
Height, weight, hair and eye color;
(4)
Present residence address and telephone number;
(5)
Present business address and telephone number;
(6)
Date, issuing state, and number of driver's license or other identification
card information;
(7)
Social security number; and
(8)
Proof that the individual is at least 18 years of age.
G.
Attached to the application form for a sexually oriented business
employee license as provided above shall be the following:
(1)
A color photograph clearly showing the applicant's face, to be taken
at the time the application is filed, which photograph shall be used
to complete the criminal background check required by this chapter.
(2)
A statement detailing the license history of the applicant for five
years immediately preceding the date of the filing of the application,
including whether such applicant previously operated or is seeking
to operate, in this or any other county, municipality, state or country
any sexually oriented business or has ever had a license, permit,
or authorization to operate a sexually oriented business denied, revoked,
or suspended or has any professional or vocational license or permit
denied, revoked, or suspended. In the event of any such denial, revocation,
or suspension, state the name of the issuing or denying jurisdiction,
and describe in full the reason for revocation, or suspension. A copy
of any order of denial, revocation, or suspension shall be attached
to the application.
(3)
A statement acknowledging that the employee has reviewed the infectious
control plan adopted by the sexually oriented business.
(4)
A statement acknowledging that the employee has reviewed the infectious
control plan adopted by the sexually oriented business.
H.
Any and all sexually oriented businesses in operation within the
Township as of the effective date of this chapter must apply for the
required licenses and pay any applicable license fees under this chapter
within five months after the effective date of this chapter and, furthermore,
must come into full compliance with this chapter within six months
after the effective date of this chapter.
I.
To the extent permitted by law, all applications for licenses required
by this chapter, and materials submitted therewith, shall be maintained
by the Township as a confidential file.
A.
Upon proof of a zoning permit by submitting a copy of a duly authorized
zoning permit and the filing of a fully completed application form
for a sexually oriented business license or employee license, the
Township shall issue a temporary license to said applicant which shall
entitle the applicant to operate the sexually oriented business or
work as an employee. The application shall then be referred to the
Township Zoning Officer or other Township designee as may be appointed
from time to time by the Board of Supervisors as the licensing administrator
for purposes of this chapter for an investigation to be made on such
information as is contained on the application. The processing and
investigation of the application shall be completed within 30 days
of the date that the fully completed application is filed with the
Township. An incomplete application shall be returned to the applicant,
and the thirty-day period for processing and investigation shall not
commence until a fully completed application has been filed. After
the processing and investigation, the Township shall issue a permanent
license, unless it is determined by preponderance of the evidence
that one or more of the following findings is true.
(1)
The applicant has falsely answered a question or request for information
on the application form.
(2)
The applicant is under the age of 18 years.
(3)
The applicant has been convicted of a specified criminal activity
as defined in this chapter.
(4)
The license is to be used for operation of business license or employment
in a business prohibited by local or state law, statute, rule, or
regulation, or prohibited by a particular provision of this chapter.
(5)
The applicant has had a sexually oriented business license or sexually
oriented business employee license revoked by the Township or any
other jurisdiction within one year of the date of the current application.
(6)
The required application, investigation, and license fees have not
been paid.
(7)
The application demonstrates that the proposed sexually oriented
business is in violation of or is not in compliance with any provisions
of this chapter.
(8)
If the sexually oriented business or sexually oriented business employee license is denied, the temporary license previously issued shall remain in effect during all appeals. Denial, nonrenewal, suspension, or revocation of a license issues pursuant to this subsection shall be subject to appeal as set forth in § 317-9.
B.
A license granted pursuant to this section shall be subject to annual renewal upon the written application of the applicant and a finding by the Township that the applicant has not been convicted of any specified criminal activity as defined in this chapter or committed any act during the existence of the previous license that would be grounds to deny the initial license application. The renewal of the license shall be subject to the payment of the fee as set forth in § 317-5.
C.
The license, if granted, shall state on its face the name of the
person or persons to whom it is granted, the expiration date, the
address of the sexually oriented business or employee and the specific
classification of the sexually oriented use for which the license
is issued. All licenses shall be posted in a conspicuous place at
or near the entrance of the sexually oriented business so that they
may be easily read at any time.
D.
Applications for license required by the Township under this chapter
shall be processed and either denied or approved within 30 days after
the complete application is filed with the Township. A letter notifying
the applicant of such denial or approval shall be mailed to the applicant
within 30 days of the submittal of a complete application. If the
Township fails to render a decision granting, denying or renewing
a license required by this chapter within 30 days after a complete
application is filed with the Township, the permanent license required
by this chapter shall be deemed to have been approved. This "deemed
approval" rule shall apply to both applications for sexually oriented
business licenses and sexually oriented business employee licenses.
E.
A sexually oriented business license shall be issued for the specific
classification of a sexually oriented use permitted by this chapter
and for which application has been made.
A.
Every application for new sexually oriented business license shall
be accompanied by a nonrefundable application and investigation fee
in the amount to be set by resolution of the Board of Supervisors.
B.
Every application for renewal of an existing sexually oriented business
license shall be accompanied by an annual nonrefundable renewal license
fee within 30 days of license renewal. Said fee shall be set by resolution
of the Board of Supervisors.
C.
Every application for a sexually oriented business license (whether
for a new license or for renewal of an existing license) shall be
accompanied by an annual nonrefundable application, investigation
and license fee. Said fee shall be set by resolution of the Board
of Supervisors.
D.
All license applications and fees shall be submitted to the office
of the Township Secretary/Treasurer, and thereafter, the application
shall be forwarded to the Township Zoning Officer or other Township
designee appointed from time to time by the Board of Supervisors,
designated as licensing administrator, for review, investigation and
approval or denial.
Subject to the consent of an applicant or licensee, the Township
Zoning Officer or other Township designee appointed from time to time
by the Board of Supervisors may inspect the premises of the sexually oriented
businesses for purposes of ensuring compliance with this chapter during
any time it is open for business. In the event the Township Zoning
Officer or other Township designee appointed from time to time by
the Board of Supervisors has probable cause to believe that a sexually
oriented business is operating in violation of this chapter, he may
inspect the premises of the sexually oriented business for purposes
of ensuring compliance with this chapter during any time it is open
for business.
A.
Each license issued under this chapter shall expire one year from the date of issuance and may be renewed only by making application as provided in § 317-3. Application for renewal shall be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the date of expiration of the license will not be extended.
B.
When the Township Zoning Officer or other Township designee appointed
from time to time by the Board of Supervisors denies renewal of the
license, the applicant shall not be issued a new license for one year
from the date of denial. If, subsequent to the denial, the Township
Zoning Officer or other Township designee appointed from time to time
by the Board of Supervisors finds the basis for denial of the renewal
license has been corrected and abated, the application may be granted
a license if at least 90 days have elapsed since the date denial became
final.
A.
The Township Zoning Officer or other Township designee appointed
from time to time by Board of Supervisors shall suspend a license
for a period not to exceed 30 days if he determines that a licensee
or an employee of a licensee has violated or is not in compliance
with any provision of this chapter.
B.
The Township Zoning Officer or other Township designee appointed
from time to time by Board of Supervisors shall revoke a license if
a cause of suspension in § 317-8A(1) occurs and the license
has been suspended within the preceding 12 months.
C.
The Township Zoning Officer or other Township designee appointed
from time to time by Board of Supervisors shall revoke a license if
he determines that:
(1)
A licensee gave false or misleading information in the material submitted
during the application process;
(2)
A licensee has knowingly allowed possession, use, or sale of controlled
substances on the premises;
(3)
A licensee has knowingly allowed prostitution on the premises;
(4)
A licensee has knowingly operated the sexually oriented business
during a period of time when the licensee's license was suspended;
(5)
A licensee has knowingly allowed any act of sexual intercourse, sodomy,
oral copulation, masturbation, or other sex act to occur in or on
the licensed premises;
(6)
A licensee is delinquent in payment to the Township, county, or state
for any taxes or fees past due; or
(7)
A licensee has failed to develop and follow an infectious control
plan to protect employees and the public.
D.
The revocation shall continue for one year, and a licensee shall
not be issued a new sexually oriented business license for one year
from the date the revocation becomes effective.
A.
All license application denial, renewal, suspension, or revocation
decisions shall be sent in writing to the applicant or licensee. All
such decisions which deny, refuse to renew, suspend, or revoke a license
shall state specifically this chapter requirement not met and any
other basis for the decision. After denial of an application, or denial
of a renewal of an application, or after suspension or revocation
of any license, the applicant or licensee may appeal pursuant to procedures
of the Local Agency Law (2 Pa.C.S.A. § 101 et seq.) to the
Township Board of Supervisors, except as modified herein. Any such
appeal must be filed, in writing, with the Township Secretary within
10 days from the date of the mailing of the decision appealed from
and shall specify, in detail, the basis for the appeal. Failure or
refusal to file said appeal or to specify the basis of said appeal
shall be deemed a conclusive determination as to the issues or matters
addressed by the written decision. If an appeal is timely filed, the
Township Board of Supervisors will then hold a Local Agency Law hearing
pursuant to 2 Pa.C.S.A. § 101 et seq. within 20 days from
the date the appeal is filed and will render a written decision within
10 days from the date such hearing concludes. In the case of a denial
of a license or license renewal, or in the case of a license suspension
or revocation until the earlier of 1) the expiration of the ten-day
appeal period without filing an appeal; or 2) the date of the final
decision dismissing any appeal.
B.
Any person aggrieved by a decision of the Township Board of Supervisors
may appeal to a court of competent jurisdiction pursuant to the Local
Agency Law (2 Pa.C.S.A. § 101 et seq.) and 42 Pa.C.S.A.
§ 933(a)(2). The Township shall, upon filing of such appeal,
consent to any request by a licensee applicant or licensee to the
court to give expedited review of such appeal. The Township shall
certify any record to the court within 20 days after the appeal is
filed. In the case of a denial of a license or license renewal, or
in the case of a license suspension or revocation, the license may
continue to operate to the same extent as immediately prior to the
suspension of revocation until the earlier of 1) the expiration of
the thirty-day appeal period without filing an appeal; or 2) the date
of decision dismissing an appeal by as court of competent jurisdiction.
A licensee shall not transfer his/her license to another, nor
shall a licensee operate a sexually oriented business under the authority
of a license at any place other than the address designation in the
application.
A licensed sexually oriented business may not be substantially
enlarged without a new license.
A.
A person who operates or causes to be operated a sexually oriented
business, which exhibits on the premises in a viewing room of less
than 150 square feet of floor space a film, video cassette, live entertainment,
or other video reproduction which depicts specified sexual activities
or specified anatomical areas, shall comply with the following requirements:
(1)
Upon application for a sexually oriented business license, the application
shall be accompanied by a diagram of the premises showing a plan thereof
specifying the location of one or more manager's stations, and the
location of all overhead lighting fixtures, and designing 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
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 Township may waive the foregoing diagram
for renewal applications if the applicant adopts a diagram that was
previously submitted and certified that the configuration of the premises
has not been altered since it was prepared.
(2)
The application shall be sworn to be true and correct by the applicant.
(3)
No alteration in the configuration or location of a manager's station
may be made without the prior approval of the Township.
(4)
It is the duty of the licensee of the premises to ensure that at
least one licensed employee is on duty and situated in each manager's
station at any time that any patron is present inside the premises.
(5)
The interior of the premises shall be configured in such a manner
that there is an unobstructed view of a manager's station of every
area of the premises to which any patron is permitted access for any
purpose excluding restrooms. Restrooms may not contain video reproduction
equipment. The view required by this subsection must be by direct
line of sight from the manager's station.
(6)
It shall be the duty of the licensee to ensure that the view area specified in § 317-12A(5) remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks, or other materials and, at all times, 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 § 317-12A(1) of this section.
(7)
No viewing room may be occupied by more than one person at any time.
(8)
The premises shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place to which patrons are
permitted access at an illumination of not less than one footcandle
as measured at the floor level.
(9)
It shall be the duty of the licensees to ensure that the illumination
described above is maintained at all times that any patron is present
in the premises.
(10)
No licensee shall allow openings of any kind to exist between
viewing rooms or booths.
(11)
No person shall allow openings of any kind to exist between
viewing booths and rooms.
(12)
The licensee shall, during each business day, regularly inspect
the walls between the viewing booths to determine if any openings
or holes exist.
(13)
The licensee shall cause all floor coverings in viewing booths
to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
(14)
The licensee shall cause all wall surfaces and ceiling surfaces
in viewing booths to be constructed of, or permanently covered by
nonporous, easily cleanable material. No wood, plywood, composition
board, or other porous material shall be used within 48 inches of
the floor.
(15)
A licensee shall brief all employees as to the approved infectious
control plan and OSHA regulations before and during employment at
intervals of no more than six months.
B.
A person having a duty under § 317-12A(1) through (15) above commits a violation of this chapter if he/she knowingly fails to fulfill that duty.
It shall be a violation of this chapter for a person to knowingly
or intentionally in a sexually oriented business appear in a seminude
or nude condition unless the person is an employee, licensed under
this chapter, who while nude or seminude shall be at least two feet
from any patron or customer and on a stage at least two feet from
the floor.
A.
A nude model studio shall not employ any person under the age of
18 years.
B.
A person under the age of 18 years commits a violation of this chapter
if the person appears seminude or in a state of nudity and/or on the
premises of a nude model studio.
C.
A person commits a violation of this chapter if the person appears
in a state of nudity or knowingly allows another to appear in a state
of nudity on a nude model studio's premises, where said person can
be viewed from the public right-of-way.
D.
A nude model studio shall not place or permit a bed, sofa, or mattress
in any room on the premises, except that a sofa may be placed in a
reception room open to the public.
A.
It shall be a violation of this chapter for a person to knowingly
or intentionally, in a public place:
B.
For purposes of this chapter, a "public place" includes all outdoor
areas owned by or open to the general public, including but not limited
to places of entertainment, taverns, restaurants, clubs, theaters,
dance halls, banquet halls, party rooms or halls limited to specific
members and party or halls restricted to adults or to patrons invited
to attend, whether or not an admission charge is levied. This section
shall not apply to:
C.
It is the intention of the Township that this section be construed,
enforced and interpreted in such a manner as will cause the least
possible infringement on the constitutional rights of free speech,
free expression, due process, equal protection or other fundamental
rights.
A person commits a violation of this chapter if the person knowingly
allows a person under the age of 18 years on the premises of a sexually
oriented business.
No sexually oriented business shall be open for business before
8:00 a.m., Monday through Saturday, or after 10:00 p.m. Monday through
Saturday. (A sexually oriented business shall be closed at all times
on Sundays and federal- and state-recognized holidays.)
A.
Any person who violates or permits a violation of this chapter shall,
upon conviction in a summary proceeding brought before a Magisterial
District Judge under the Pennsylvania Rules of Criminal Procedure,
be guilty of a summary offense and shall be punishable by a fine of
not more than $1,000, plus costs of prosecution. In default of payment
thereof, the defendant may be sentenced to imprisonment for a term
not exceeding 90 days. Each day or portion thereof that such violation
continues or is permitted to continue shall constitute a separate
offense, and each section of this chapter that is violated shall also
constitute a separate offense.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.
The provisions of this chapter shall be enforced by the Newberry
Township Police Department or any police officer having authority
within Newberry Township, and any other individual authorized by law.
C.
The Township may enforce any violation of this chapter through an
equity action brought in the Court of Common Pleas of York County.
The provisions of this chapter are severable and if any section,
subsection, clause, sentence or part therefore shall be held or declared
illegal, invalid, and unconstitutional by any court of competent jurisdiction,
the decision shall not affect or impair any of the remaining sections,
subsections, clauses, sentences, or parts thereof. It is hereby declared
to be the intent of the Newberry Township Board of Supervisors that
this chapter would have been adopted if such illegal, invalid, or
unconstitutional section, subsection, clause, sentence, or part thereof
had not been included herein.
All ordinances inconsistent with the terms of this chapter are
hereby repealed to the extent of such inconsistency.
This chapter shall be effective five days after enactment.
