City of New Castle, PA Adult Entertainment Establishments

It is the intent of this article to restrict the location of Adult Entertainment Establishments to promote the health, safety and general welfare of the citizens of the City of New Castle, and to establish reasonable and uniform regulations and restrictions designed to effectuate the purposes of this article. It is recognized that, among other things, negative secondary affects result from sexually oriented businesses, including the transmission of sexually oriented diseases; increased crime; decreased property values and a downgrading of the quality of life in neighborhoods adjacent to Adult Entertainment Establishments. Moreover, the location of Adult Entertainment Establishments is a vital concern, especially when the location is in or near areas where minors may learn, play, pass by or would be exposed to the advertising, window displays or general atmosphere accompanying such establishment. Thus, it is a firm belief of the legislative body of the City of New Castle that it has a vital duty and role to promulgate laws designed to protect the moral fiber and standards of City residents, including the minors of the community.

(b)

The City of New Castle, in enacting these regulations and restrictions relative to Adult Entertainment Establishments, is exercising the power which has been conferred upon it and does not attempt or intend to absolutely prohibit Adult Entertainment Establishments in the City of New Castle, but rather, seeks to restrict the location of such establishment and to regulate such establishments provided that such regulation is not protected by the First Amendment of the United States Constitution. The provisions of this article have neither the purpose nor affect of imposing a limitation, or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor affect of this article 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. Nor is it the intent nor affect of this article to condone or legitimate the distribution of obscene material.

§ 1336.02 Definitions.

[Ord. 7903, passed 11-12-2009]

It is the purpose of this section, together with its subsections to provide clear and concise definitions of those words, terms and phrases most commonly utilized in the provisions of this article in order to assist in the interpretation of said provisions and to insure uniformity of application. It is intended that the following words, terms and phrases, whenever used, shall be construed as defined in the following subsections and subparagraphs unless from the context a different meaning is clearly intended.

(a)

For the purpose of this article, "Adult Entertainment Establishments" are defined as follows:

(1)

ADULT BOOKSTORE — Any establishment having as a substantial or significant portion (25% or greater) of its stock in:

Books, films, magazines or other periodicals or other forms of audio or visual representation which are distinguished or characterized by an emphasis on depiction or description of specified sexual activities or specified anatomical areas;

Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities.

(2)

ADULT CABARET —

An establishment devoted to adult entertainment, either with or without a liquor license, presenting material distinguished or characterized by an emphasis on matter depicting, describing, or relating to sexual activities or anatomical genital areas;

A cabaret that features topless dancers, go-go dancers, strippers, male or female impersonators, or similar entertainers for observation by patrons.

(3)

ADULT MINI MOTION THEATER — An enclosed or unenclosed building with a capacity of more than five but less 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.

(4)

ADULT MODEL STUDIO — 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 descriptions of specified sexual activities or specified anatomical areas.

(5)

ADULT MOTEL — A motel or similar establishment offering public accommodations for any consideration, which provides persons with material distinguished or characterized by an emphasis on depiction or descriptions of specified sexual activities or specified anatomical areas.

(6)

ADULT MOTION PICTURE ARCADE — 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 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.

(7)

ADULT MOTION PICTURE THEATER — 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 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.

(8)

ADULT NEWSRACK — Any coin-operated machine or device which dispenses material substantially devoted to the depiction of specified sexual activities or specified anatomical areas.

(9)

ADULT THEATER — 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.

(10)

BATH HOUSE — An establishment or business which provides the services of baths of all kind, 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 article shall be a medical doctor, physician, chiropractor or similar professional licensed by the Commonwealth of Pennsylvania.

(11)

BODY PAINTING STUDIO — Any establishment or business which provides the service of applying paint or other substance whether transparent or non-transparent to or on the human body when specified anatomical areas are exposed.

(12)

MASSAGE PARLOR — 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 medical practitioner, chiropractor or professional physical therapist licensed by the Commonwealth of Pennsylvania. This definition does not include an 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.

(13)

OUT CALL SERVICE ACTIVITY — An establishment or business which provides an Out Call 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.

(14)

SEXUAL ENCOUNTER CENTER — Any business, agency or 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 area, excluding psychosexual workshops, operated by a medical practitioner as defined in No. 10 above, licensed by the Commonwealth of Pennsylvania, to engage in sexual therapy.

(15)

Any other business or establishment which offers its patrons services or entertainment characterized by an emphasis on matter depicting, describing or relating to specified sexual activities" or "specified anatomical areas."

(b)

"Specified anatomical areas" as used herein, shall mean and include any of the following:

(1)

Less than completely and opaquely covered human genitals, pubic region, buttocks, anus or female breasts below a point immediately above the top of the areolae, or;

(2)

Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

(c)

"Specified sexual activities" include the following:

(1)

Showing of human genitals in a state of sexual stimulation or arousal;

(2)

Acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio, cunnilingus, or any other specified sexual activity prohibited by law;

(3)

Fondling or erotic touching of human genitals, pubic region, buttock or female breasts.

§ 1336.03 Minimum spacing and proximity requirements.

[Ord. 7903, passed 11-12-2009]

(a)

No Adult Entertainment Establishment shall be located within 1,000 feet of any other Adult Entertainment Establishment or any other regulated use.

(b)

No such establishment shall be located within 1,000 feet of any parcel of land which contains any one or more of the following specified land uses:

(1)

Amusement park;

(2)

Camp (for minors' activities);

(3)

Child care facility;

(4)

Church, or similar place of worship or religious instruction;

Community center;

Dwelling;

Hospital;

Library;

Museum;

Park;

Playground;

School or school bus stop;

(13)

Health care facility;

(14)

Senior citizen centers;

(15)

Other lands where minors may be present or congregate.

(c)

The distance between any two Adult Entertainment Establishments shall be measured in a straight line, without regard to intervening structures, from the closest point on the exterior parcel line of each establishment; and the distance between an Adult Entertainment Establishment and any land use specified in Subsection (b) above shall be measured in a straight line, without regard to intervening structures, from the closest point on the exterior parcel line of the Adult Entertainment Establishment to the closest point on the property line of said land use.

§ 1336.04 Visibility from the street.

[Ord. 7903, passed 11-12-2009]

(a)

No person operating an Adult Entertainment Establishment shall permit, or cause to be permitted to be viewed from a public street, sidewalk or highway, any sign or stock in trade which depicts, describes or relates to specified sexual activities and/or specified anatomical areas.

§ 1336.05 Hours of operation.

[Ord. 7903, passed 11-12-2009]

(a)

No Adult Entertainment Establishment shall remain open or transact business between the hours of 10:00 p.m. and 12:00 noon. Adult Entertainment Establishments shall be closed on Sundays and legal holidays.

§ 1336.06 Permit required.

[Ord. 7903, passed 11-12-2009]

(a)

Any person who operates an Adult Entertainment Establishment without a valid permit issued by the City of New Castle is guilty of a violation of the New Castle Zoning Ordinance and shall be subject to the preventative remedies and enforcement remedies set forth in Section 1323.99(b) and (c) of Article 1323 Administration, Enforcement and Appeals, in addition to any and all other remedies available in law or equity.

(b)

An application for a permit shall be made on a form provided by the Department of Code Enforcement. The applicant shall provide truthful, accurate, full and complete information as requested by the Department of Code Enforcement in conjunction with the issuance of a permit.

(c)

The Department of Code Enforcement shall, with the input of the Zoning Officer, issue a permit to an applicant within 30 days after receipt of a completed application, unless he finds one or more of the following to be true, in which event he shall deny the permit within said thirty-day period:

(1)

An applicant is under 18 years of age;

(2)

An applicant has failed to provide the information reasonably necessary for issuance of the permit or has falsely answered a question or request for information on the Application form;

(3)

The premises to be used for the Adult Entertainment Establishment do not meet each and every requirement of the ordinances of the City of New Castle and the laws of the Commonwealth of Pennsylvania;

(4)

The permit fee required by this article has not been paid;

(5)

An applicant of the proposed establishment is in violation of or is not in compliance with one or more of the provisions of this ordinance.

(d)

The permit, if granted, shall state on its face the name of the person(s) or entity to whom it is granted, the name, address and telephone number of the person in charge of the day to day affairs of the establishment, the address of the Adult Entertainment Establishment, and the issuance and expiration date of said permit. The permit shall be posted in a conspicuous space at or near the main public entrance to the Adult Entertainment Establishment so that it may be easily read at any time from outside the confines of the Adult Entertainment Establishment building.

§ 1336.07 Fees.

[Ord. 7903, passed 11-12-2009]

The annual fee for an Adult Entertainment Establishment shall be $2,000.

§ 1336.08 Inspection.

[Ord. 7903, passed 11-12-2009]

One who has been issued a permit shall at any time that the Adult Entertainment Establishment is occupied or open for business, permit representatives of the New Castle Police Department, New Castle Fire Department, Department of Code Enforcement and the Zoning and Health Officers to inspect the premises for the purposes of ensuring compliance with the law.

§ 1336.09 Expiration of permit.

[Ord. 7903, passed 11-12-2009]

(a)

Each permit shall expire one year from the date of issuance and may be renewed only by complying with the application procedure set forth in Section 1336.06. Application shall be made at least 30 days before the permit expiration date. A decision to renew or deny the issuance of a permit shall be made within 30 days of receipt of the completed application by the Department of Code Enforcement.

(b)

Where the applicant certifies, under penalty of perjury, that no change has occurred in the ownership, use, possession and/or physical structure of the premises since the date of the issuance of the last permit, the applicant shall be permitted to continue the operation of its business under the exact provisions of said permit pending a decision by the Department of Code Enforcement on the renewal application.

§ 1336.10 Suspension and revocation of permit.

[Ord. 7903, passed 11-12-2009]

(a)

The Department of Code Enforcement shall suspend a permit for a period not to exceed 30 days if it is determined that a permittee or his employee or agent has:

(1)

Refused to allow an inspection of the Adult Entertainment Establishment as authorized by this article; or

(2)

Violated or is not in compliance with any section of the Codified Ordinances of the City of New Castle; or

(3)

Violated the provisions of the laws of the Commonwealth of Pennsylvania or the United States of America.

(b)

The Department of Code Enforcement shall revoke a permit if a cause of suspension occurs and the permit has been suspended within the preceding 12 months.

(c)

The Department of Code Enforcement shall revoke a permit if it is determined that:

(1)

A permittee gave false or misleading information in the material submitted to the Department of Code Enforcement during the application process;

(2)

The permittee or his employee or agent has knowingly allowed possession, use or sale of controlled substances on the premises;

(3)

A permittee or his employee or agent has knowingly allowed prostitution on the premises;

(4)

A permittee or his employee or agent knowingly operated the Adult Entertainment Establishment during a period of time when the permittee's permit was suspended;

(5)

The permittee or his employee or agent has violated this article, the laws of the Commonwealth of Pennsylvania or the laws of the Untied States of America on one or more occasions.

§ 1336.11 Transfer of permit.

[Ord. 7903, passed 11-12-2009]

No permittee shall transfer a permit to any other person or entity or operate an Adult Entertainment Establishment under the authority of a permit at any place other than the address designated in the application.

§ 1336.12 Other action.

[Ord. 7903, passed 11-12-2009]

(a)

This article shall not be construed to limit the authority of the City of New Castle to pursue any and all other remedies and relief that may be available to it in law or in equity under the laws applicable in any case.

§ 1336.13 Repealer.

[Ord. 7903, passed 11-12-2009]

Any resolution, ordinance or part of any resolution or ordinance inconsistent herewith and any amendments thereof are hereby expressly repealed except as provided for in this article. However, it is expressly provided that the provisions of this article shall not affect the validity of and shall be construed consistently with the New Castle Zoning Ordinance, as amended from time to time. If there is a conflict, the more restrictive provision shall control.

§ 1336.14 Severability.

[Ord. 7903, passed 11-12-2009]

Each of the provisions of this article is severable, and if any provision is held invalid, the remaining provisions shall not be affected, but shall remain in full force and effect.