An Ordinance Amending The Zoning Ordinance Of Reserve Township
To Regulate The Time, Manner And Place Of Sexually Oriented Business.
A.
Whereas, the Act of 1996, October 16, P.L. 696, No. 120, 68 Pa.C.S.A.
§ 5501, contains various finding of the General Assembly
of the Commonwealth of Pennsylvania, which findings are hereby adopted
by the Board of Commissioners of Reserve Township; and
B.
Whereas, it is not the intent of this article to suppress any freedom of speech or freedom of expression activities protected by the First Amendment of the United States Constitution or Article I, § 7 of the Pennsylvania Constitution; and
C.
Whereas, it is not the intent of the Board of Commissioners of Reserve
Township to condone or to legitimize the distribution of obscene materials;
and
D.
Whereas, the stated findings, purposes and intent of the Board of
Commissioners in adopting this Sexually Oriented Business Article
shall be interpreted consistently with the decision of the Pennsylvania
Supreme Court, Pap's A.M. t/d/b/a Kandyland v. City of Erie, Pa.,
A.2d (2002), 2002 Pa. LEXIS 2806, Nos. 16 and 17 WAP 1997, filed December
19, 2002; and
E.
Whereas, it is a stated purpose of this article to comply with the
Pennsylvania Supreme Court decision of Pap's A.M. t/d/b/a Kandyland
v. City of Erie, supra, and it is specifically not a stated purpose
of this article to combat any secondary effects of adult businesses
that may infringe upon any citizen's freedom of expression.
As used in this article, the following terms shall have the
meanings indicated:
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.
An establishment having a substantial or significant portion
of its stock and trade in, or an establishment which as one of its
principal business purposes, offers for sale, books, films, video
cassettes or magazines and other periodicals which are distinguishable
or characterized by their emphasis on matter depicting, describing
or relating to specified sexual activities and, in conjunction therewith,
has facilities for the presentation of adult entertainment for observation
by patrons.
An exhibition of any adult-oriented motion pictures, meaning
those distinguished or characterized by an emphasis on matter depicting,
describing, or relating to specified sexual activities or specified
anatomical areas.
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
and viewing of specified anatomical areas, removal of articles of
clothing or appearing unclothed, pantomiming, modeling or any other
personal services offered customers.
An enclosed building with a capacity of less than 50 persons
which has a principal business purpose of exhibiting, presenting or
selling material distinguished or characterized by an emphasis on
matter depicting, describing or relating to specified sexual activities
or specified anatomical areas for observation by patrons.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films,
motion pictures, video cassettes, slides, or other photographic reproductions
which are characterized by the depiction or description of specified
sexual activities or specified anatomical areas; and has a sign visible
from the public right-of-way which advertises the availability of
this adult type of photographic reproductions; or
Offers sleeping rooms for rent four or more times in one calendar
day during five or more calendar days in any continuous thirty-day
period.
An enclosed building with a capacity of 50 or more persons
which has a principal business purpose of exhibiting, presenting or
selling material distinguished or characterized by an emphasis on
matter depicting, describing or relating to specified sexual activities
or specified anatomical areas for observation by patrons.
Includes, without limitation, the following establishments when
operated for profit, whether direct or indirect:
Adult bookstores.
Adult motion-picture theaters.
Adult mini-motion-picture theaters.
Any premises to which the public, patrons or members are invited
or admitted and which are so physically arranged as to provide booths,
cubicles, rooms, studios, compartments or stalls separate from the
common areas of the premises for the purpose of viewing adult-oriented
motion pictures or where an entertainer provides adult entertainment
to a member of the public, patron or a member.
An adult entertainment studio or any premises that are physically
arranged and used as such, whether advertised or represented as an
adult entertainment studio, rap studio, exotic dance studio, encounter
studio, sensitivity studio, modeling studio or any other term of like
import.
The term "booths, cubicles, rooms, studios, compartments or
stalls" for purposes of defining adult-oriented establishments does
not mean enclosures which are private offices used by the owner, manager
or persons employed on the premises for attending to the tasks of
their employment, and which are not held out to the public for the
purpose of viewing motions pictures or other entertainment for a fee,
and which are not open to any persons other than employees.
A commercial establishment which, as one of its principal
business purposes, serves, sells and/or caters food, apparels, goods,
services, play and/or entertainment to children and their families.
Any and all persons, including independent contractors, who
work in or at or render any services directly related to the operation
of an adult-oriented establishment.
A person who provides entertainment within an adult-oriented
establishment, whether or not a fee is charged or accepted for entertainment
and whether or not entertainment is provided as an employee or an
independent contractor.
A person who, for consideration, agrees or offers to act
as a companion, guide, or date for another person and who agrees or
offers to privately model lingerie or to privately perform a striptease
for another person.
A person or business association who furnishes, offers to
furnish, or advertises to furnish escorts as one of its primary business
purposes for a fee, tip, or other consideration.
Any place where a person who appears in a state of nudity
or displays specified anatomical areas is provided to be observed,
sketched, drawn, painted, sculptured, photographed, or similarly depicted
by other persons who pay money or any form of consideration.
The appearance of a human bare buttock, anus, male genitals,
female genitals, or female breast.
A person, partnership, or corporation operating, conducting,
or maintaining an adult-oriented establishment.
A person in whose name a permit and/or license to operate
a sexually oriented business has been issued, as well as the individual
listed as an applicant on the application for a permit and/or license.
An individual proprietorship, partnership, corporation, association,
or other legal entity.
A place where the principal and substantial activity is the
sale of food and the incidental sale of non-intoxicating beverages
or intoxicating beverages if licensed by the Pennsylvania Liquor Control
Board.
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.
Does not include any of the following:
Medical publications or films or bona fide educational publications
or films.
Any art or photography publications, which devote at least 25%
of the lineage of each issue to articles and advertisements dealing
with subjects of art or photography.
Any news periodical, which reports or describes current events
and which from time to time, publishes photographs of nude or seminude
persons in connection with the dissemination of the news.
Any publications or films, which describe and report different
cultures and which from time to time publish or show photographs of
depictions of nude or seminude persons when describing cultures in
which nudity is indigenous to the populations.
A business or commercial enterprise that, as one of its primary
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore or adult video store, adult
motel, adult mini-motion-picture theater, adult motion-picture theater,
escort agency, nude model studio, or sexual encounter center or any
other adult-oriented establishment.
And includes any of the following:
Of a sexually oriented business means the increase in floor
areas occupied by the business by more than 25%, as the floor areas
exist on date of enactment of this article.
The Township of Reserve.
Of a sexually oriented business means and includes any of
the following:
The sale, lease, or sublease of the business;
The transfer of securities which constitute a controlling interest
in the business, whether by sale, exchange, or similar means; or
The establishment of a trust, gift, or other similar legal 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.
The Zoning Officer and/or Building Inspector of the Township
of Reserve.
Sexually oriented businesses are classified as follows:
A.
Any person who operates a sexually oriented business without a valid
permit issued by the Zoning Hearing Board granting such use as a special
exception 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/Building Inspector
of the Township. The application must be accompanied by a sketch or
diagram showing the floor plan and plot plan configuration of the
premises, including a statement of the total floor space occupied
by the business. The sketch or diagram need not be professionally
prepared, but 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. Parking facilities must be specifically identified
and shall meet all requirements of this chapter. Nonconforming structures
and those structures not having the required parking sites shall not
be issued permits unless the sexually oriented business was in existence
as a lawful use prior to the date of this article.
C.
The applicant must be qualified according to the provisions of this
article and the premises must be inspected and found to be in compliance
with the law by the Zoning Officer/Building Inspector and the Fire
Marshall.
D.
If a person who wishes to operate a sexually oriented business is
an individual, he must sign the application for a permit as applicant.
If a person who wishes to operate a sexually oriented business is
other than an individual, each individual who has a 10% or greater
interest in the business must sign the application for a permit as
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 of 10% or greater
in the corporation must sign the application for a permit as applicant.
E.
The fact that a person possesses other types of Township permits
does not exempt the person from the requirement of obtaining a sexually
oriented business permit.
A.
The Zoning Hearing Board of the Township of Reserve shall hear and
decide requests for a special exception to operate a sexually oriented
business and shall approve the issuance of a permit to an applicant
within 30 days after receipt of an application and permit fee, unless
it 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 is overdue in his payment
to the Township of taxes, fees, fines, or penalties assessed against
him or imposed upon him in relation to a sexually oriented business.
(3)
An applicant has failed to provide information reasonably necessary
for issuance of the special exception and 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 Township to operate a sexually oriented business within
the preceding 12 months, or residing 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 the sexually oriented business have
been reviewed and have been disapproved by either the Zoning Officer/Building
Inspector or the Fire Marshall as not being in compliance with applicable
laws and ordinances and the Zoning Hearing Board affirms such determination.
(6)
The permit fee required by this article has not been paid.
(7)
An applicant of the proposed establishment is in violation of,
or is not in compliance with, any of the provisions of this article.
(8)
An individual applicant, or any individual holding a direct
or indirect interest of more than 10% of a corporate applicant, or
any of the officers and directors of a corporate applicant, if the
applicant is a corporation, or any of the partners, including limited
partners, if the applicant is a partnership, or the 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 and possession of child pornography, or convicted of any
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 or persons'
conviction or release 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.
If the special exception is granted, the permit 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/Building Inspector and Fire Marshall shall complete
their certification that the premises are in compliance or not in
compliance within 20 days of receipt of the application by the Zoning
Officer/Building Inspector. The certification shall be promptly presented
to the Zoning Hearing Board.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The annual fee for a sexually oriented occupancy permit shall
be in an amount set by resolution of the Board of Commissioners.
A.
An applicant, or permittee, shall permit representatives of the Police
Department, Fire Marshall, the Zoning Officer/Building Inspector or
other Township departments or agencies 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 his agent or
employee violates this chapter if he refuses to permit such lawful
inspection of the premises at any time it is occupied or open for
business.
A.
Each permit shall expire one year from the date of issuance and may
be renewed only by making application to the Zoning Hearing Board.
Applications 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 Hearing Board 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 Hearing Board finds
that the basis for the denial of the renewal permit has been corrected
or abated.
The Zoning Officer/Building Inspector shall suspend a permit
for a period not to exceed 30 days if he determines that a permittee
or an employee of a permittee has:
A.
Violated or is not in compliance with any section of this article;
B.
Engaged in excessive use of alcoholic beverages while on the sexually
oriented business premises;
C.
Refused to allow an inspection of the sexually oriented business
premises as authorized by this article;
D.
Knowingly permitted gambling by any person on the sexually oriented
business premises;
A.
The Zoning Officer/Building Inspector shall revoke a permit if a cause of suspension set forth in § 430-104 occurs and the permit has been suspended within the preceding 12 months.
B.
The Zoning Officer/Building Inspector shall revoke a permit if he
determines that:
(1)
A permittee, or any of the persons specified in § 430-100A(8), is or has been convicted of the offenses specified in § 430-100A(8);
(2)
A permittee gave false or misleading information in the material
submitted to the Township or the Zoning Hearing Board 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 to the Township or State
of any taxes or fees relating to sexually oriented businesses.
C.
When the Zoning Officer/Building Inspector 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 revocation became effective, except that 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.
D.
After denial of an application, or denial of a renewal of an application,
or suspension or revocation of a permit, the applicant or licensee
or permittee shall have the right to appeal said action and to seek
prompt judicial review of such administrative action in any court
of competent jurisdiction.
A permittee shall not transfer his permit to another person.
A permittee shall not operate a sexually oriented business under the
authority of a permit at any place other than the address designated
in the application.
A.
A person is guilty of a violation of this chapter if he operates
or causes to be operated a sexually oriented business in any location
in which a sexually oriented business is not a permitted use. No sexually
oriented businesses shall be located outside a location in which a
sexually oriented business is a permitted use. Sexually oriented businesses
as defined herein shall be permitted only as a Special Exception in
a C-2 General Commercial Zoning District.
B.
A person is guilty of a violation of this chapter if he operates
or causes to be operated a sexually oriented business within the below
listed distances of the following institutions or residences, and
a special exception shall not be granted and no permit will be issued
for any such sexually oriented business which intends to be located
within the below listed distances of such institutions or residences:
(1)
A church: 500 feet;
(2)
A public or private pre-elementary, elementary, or secondary
school: 1,000 feet;
(3)
A public library: 500 feet;
(4)
A child-care facility or nursery school: 500 feet;
(5)
A public park adjacent to any residential district: 1,000 feet;
(6)
A child-oriented business: 500 feet;
(7)
A residence: 150 feet.
C.
A person is guilty of a violation of this chapter if he causes or
permits the operation, establishment, substantial enlargement, or
transfer of ownership of control of a sexually oriented business,
and no special exception shall be granted and no permit shall be issued
for any such sexually oriented business intended to be located within
750 feet of another sexually oriented business.
D.
A person is guilty of a violation of this chapter if he 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 purpose of this article, 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,
or nursery school; or to the nearest boundary of an affected public
park or residence.
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.
Any sexually oriented business lawfully operating on date of enactment of this article that is in violation of Subsections A through F of this section shall be deemed a nonconforming use. Such nonconforming uses shall not be increased, enlarged, extended, or altered, except that the use may be changed to a conforming use. In the event that two or more sexually oriented businesses are within 750 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later-established business is nonconforming.
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, nursery school, public park or residence within those distances set forth in § 430-107B 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 special exception and a permit is submitted after a permit has expired or has been revoked.
A.
A person who operates or causes to be operated a sexually oriented
business, other than an adult motel, which exhibits on the premises
in a viewing room of less than 150 square feet of floor space, a film
or video cassette, or other video or other image production or reproduction
which depicts specified sexually activities or specified anatomical
areas, shall comply with the following requirements:
(1)
The application for a permit to operate a sexually oriented
business shall be accompanied by a floor plan and plot plan diagram
of the premises showing a plan thereof specifying the location of
one or more manager's stations, the location of all viewing rooms,
partitions and doors and the location of all overhead lighting fixtures
and designating 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 also 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 Zoning Hearing
Board may waive the foregoing diagram for renewal applications if
the applicant adopts a diagram that was previously submitted and certifies
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 Zoning Hearing
Board.
(4)
It is the duty of the owners and operators of the premises to
ensure that at least one employee is on duty and situated in each
manager's station at all times 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 from a manager's station of every
area of the premises to which any patron is permitted access for any
purpose, excluding rest rooms. Rest rooms may not contain video reproduction
or viewing equipment. If the premises has two or more manager's stations
designated, then the interior of the premises shall be configured
in such a manner that there is an unobstructed view of each area of
the premises to which any patron is permitted access for any purpose
from at least one of the manager's stations. The view required in
this subsection must be by direct line of sight from the manager's
station.
(6)
It shall be the duty of the owners and operators, and it shall also be the duty of any agents and employees present on the premises to ensure that the view area specified in Subsection A(5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and 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 Subsection A(1) of this section.
(7)
No viewing room may be occupied by more than one person at any
time. No connections or openings to an adjoining viewing room shall
be permitted.
(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 owners and operators and it shall
also be the duty of any agents and employees present in the premises
to ensure that the illumination described above is maintained at all
times that any patron is present in the premises.
B.
No sexually oriented business, other than an adult motel, shall open
to do business before 10:00 a.m., Monday through Saturday, prevailing
time; and no sexually oriented business, other than an adult motel,
shall remain open after 10:00 p.m., Monday through Saturday, prevailing
time. No sexually oriented business, other than an adult motel, shall
be open for business on any Sunday or on a legal holiday as set forth
in the Act of May 31, 1893, P.L. 188, § 1, as amended, 44
P.S. § 11.
It is a defense to prosecution under §§ 430-100 and 430-107 that a person appearing in a state of nudity did so in a modeling class operated:
A.
By a proprietary school, licensed by the Commonwealth of Pennsylvania,
or a college, junior college, or university supported entirely or
partly by taxation;
B.
By a private college or university which maintains and operates educational
programs in which credits are transferable to a college, junior college,
or university supported entirely or partly by taxation; or
C.
In a structure:
(1)
Which has no sign visible from the exterior of the structure
and no other advertising that indicates a nude person is available
for viewing; and
(2)
Where, in order to participate in a class, a student must enroll
at least three days in advance of the class; and
(3)
Where no more than one nude model is on the premises at any
one time.
A person who operates or causes to be operated a sexually oriented
business without a valid permit or in violation of this article is
subject to an action in equity or a suit for injunction as well as
citations for violations of this chapter.
The provisions of this article are severable and, if any court
of competent jurisdiction hereof shall hold any section, sentence,
clause, part, or provision illegal, invalid, or unconstitutional,
such decision of the court shall not affect the remaining sections,
sentences, clauses, parts, or provisions of this article. It is hereby
declared to be the intent of Board of Commissioners that this article
would have been adopted if such illegal, invalid or unconstitutional
section, sentence, clause, part or provision had not been included
herein.
Upon enactment, existing businesses as defined in this article, shall have one year to come into compliance with the regulations contained in this article, excluding location requirements of § 430-107 contained herein.
