[Ord. 7903, passed 11-12-2009]
(a) 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.
[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:
A.
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;
B.
Instruments, devices or paraphernalia which are designed for
use in connection with specified sexual activities.
(2)
ADULT CABARET —
A.
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;
B.
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.
[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:
(2)
Camp (for minors' activities);
(4)
Church, or similar place of worship or religious instruction;
(12)
School or school bus stop;
(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.
[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.
[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.
[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.
[Ord. 7903, passed 11-12-2009]
The annual fee for an Adult Entertainment Establishment shall
be $2,000.
[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.
[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.
[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.
[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.
[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.
[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.
[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.