A.
It is hereby determined that adult entertainment uses, as defined by this Article XIXA, tend to bring with them secondary concerns that impact on the health, safety and general welfare concerns of the Township of Tinicum. These associated concerns include difficulties for law enforcement, municipal maintenance, noise, trash, traffic and parking congestion, deleterious effects on business and residential property values and increased crime, particularly corruption of the morals of minors and prostitution, and encourage residents and businesses to move elsewhere.
B.
With these goals in mind, the Township of Tinicum is amending the Zoning Ordinance to restrict or limit the location of where said activities can locate within the bounds of the Township of Tinicum and to establish reasonable and uniform regulations of commercial establishments. The Township of Tinicum has concluded that a permitting and/or licensing process is a legitimate and reasonable means of accountability to ensure that the operators of adult entertainment uses comply with reasonable regulation and do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation. The Township of Tinicum also does not intend by this Article XIXA to affect or suppress any activities protected by the First Amendment, but instead to address these secondary effects.
As used in this section, 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-producing devices are maintained
to show images to five or fewer persons per machine at any one time
or where the image is so displayed or distinguished or characterized
by depicting or describing specified sexual activities or specified
anatomical areas.
Any cabaret, dance hall club, tavern, bar, nightclub, restaurant
or similar commercial establishment offering entertainment used for
presenting material distinguished or characterized by an emphasis
on matter depicting or describing specified sexual activities or specified
anatomical areas, for observation by patrons therein, whether or not
liquor is sold on the premises. Such presentation or material may
be live or through films, motion pictures, videocassettes, slides
or other photographic reproduction depicting or describing specified
sexual activities or specified anatomical areas.
Live or non-live entertainment containing specified sexual
activities or displaying or presenting specified anatomical areas.
This definition is a broad overall definition which includes the activities
and uses of an adult cabaret, adult dance hall, adult club, adult
bar, adult tavern, adult materials sales, adult mini-motion-picture
theater, adult motion picture theater, peep shows and sexual encounter
center, all as part of its definition for adult entertainment.
Book video, magazine rentals, other printed matter, photographs,
films, motion picture video or production slides or other visual representation
and/or sales where the locations offer the showing or displaying of
matter depicting or describing specified sexual activities or specified
anatomical areas for observation by patrons on the premises. This
does not apply to the availability for sale of any material displayed
in such a way that only the names of the book or magazine appears.
This also does not include rentals and/or sales for use of such materials
off the premises of said establishment.
Instruments, devices or paraphernalia which are used for presenting
material distinguished or characterized by an emphasis on matter depicting
or describing specified sexual activities or specified anatomical
areas.
Such a commercial establishment as listed in Subsections A and B above may have other principal business purposes that do not involve the offering for sale or rental of material depicted or describing specified sexual activities or specified anatomical areas and still be characterized as adult material sales. Such other business purposes will not serve to exempt such commercial establishments from being categorized as adult material sales so long as one of its principal business purposes is the offering for sale or rental for consideration in specified materials used for presenting material distinguished or characterized by an emphasis on matter depicting or describing specified sexual activities or specified anatomical areas.
Any enclosed or semi-enclosed or unenclosed building which
houses a commercial establishment with the capacity for fewer than
50 persons used for presenting material distinguished or characterized
by an emphasis on matter depicting or describing specified sexual
activities or specified anatomical areas, for observation by patrons
therein.
A hotel, motel or similar commercial establishment which
offers accommodation to the public for any form of consideration;
provides patrons of closed circuit television transmissions, films,
motion pictures, videocassettes, slides or other photographic reproduction
which are used for presenting material distinguished or characterized
by an emphasis on matter depicting or describing specified sexual
activities or specified anatomical areas.
Any enclosed or semi-enclosed or unenclosed building which
houses a commercial establishment with the capacity of 50 or more
persons used for presenting material distinguished or characterized
by an emphasis on matter depicting or describing specified sexual
activities or specified anatomical areas for observation by patrons
therein.
A person who applies by filling out an application for a
permit for an adult entertainment business.
A department and/or agency of the Township, after inspection
of the premises for adult entertainment, writes a report to the Code
Zoning Officer regarding compliance or noncompliance.
The opening or commencement of any adult entertainment as a
new business;
The conversion of an existing business, whether an adult entertainment,
to an adult entertainment business;
The additions of any adult entertainment business to any other
existing adult entertainment business; or
The relocation of any adult entertainment business.
The appearance of the specified anatomical areas without
any coverings on the body area.
Any enclosed or semi-enclosed or unenclosed building/enclosure
which houses a commercial establishment with the capacity for one
person used for presenting material distinguished or characterized
by an emphasis on matter depicting or describing specified sexual
activities or specified anatomical areas, for observation by patrons
therein.
A person or persons to whom a permit and/or license to operate
an adult entertainment has been issued, as well as the individual
or individuals listed as an applicant on the application for permit
and/or license.
An individual, proprietorship, partnership, corporation,
association or other legal entity.
State of dress in which clothing partially or opaquely covers
specified anatomical areas.
A business or commercial enterprise that as one of its primary
business purposes offers for any form of consideration:
The sale, lease or sublease of a 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 device which
transfers the ownership or control of the business except for transfer
by a bequest or other operation of law upon death of a person possessing
the ownership or control.
A.
Except when authorized by special exception in the C-4A Commercial-Industrial Districts, as more fully set forth and described herein, adult entertainment uses, as defined and described in § 395-21, Definitions, are prohibited uses, and no lot or premises shall be used for said use in residential districts, BCD Business Center Districts, Special Use Districts, Commercial Districts, H Industrial Districts and/or Waterfront or Outdoor Recreation Districts.
B.
Only permitted in the C-4A Commercial-Industrial Districts, when
authorized as a special exception, the land, buildings or premises
shall be by special exception for the following uses:
(1)
Adult arcade.
(2)
Adult cabaret, adult dance hall, adult club, adult bar, adult
tavern, nightclub, restaurant or similar commercial establishment
having adult entertainment.
(3)
Adult entertainment.
(4)
Adult material rental and sales.
(5)
Adult mini-motion-picture theater.
(6)
Adult motel.
(7)
Adult motion-picture theater.
(8)
Peep shows.
(9)
Sexual encounter center.
C.
The above additional uses are allowed by permit only in the C-4A
Commercial-Industrial Districts if the property line of this use is
greater than 650 feet from the property lines of a:
D.
For purposes of this Article XIXA, measures 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 an adult entertainment business is conducted, to the nearest property line of a school, house of worship, Township-owned park and/or residential district.
E.
Nonconforming uses. The lawful use of a building existing at the effective date of this Article XIXA, or authorized by a building or occupancy permit issued prior hereto may be continued although such use does not conform to the provisions of this Article XIXA. A, but such use must conform to the operating regulations of this Article XIXA, including permit process, inspection, fee(s), suspension and revocation provisions, transfer of permit provisions, parking, loading and unloading and access provisions, injunction, penalties and all other provisions of this Article XIXA.
The Zoning Officer, upon submission to the Township of an application,
shall present the applicant with a building permit for adult entertainment
business(es), as follows:
A.
In the C-4A Commercial-Industrial Districts, a permit shall be issued only if the applicant is successful in obtaining a special exception for the proposed type of adult entertainment and the application successfully meets all health, use and occupancy and/or building permits requirements as defined in the pertinent ordinances and their amendments/revisions and the location of said use is demonstrated to comply with § 395-122C above.
B.
The application for a permit to operate an adult entertainment business
must be made on the form provided by the Zoning Officer of the Township.
The application must be accompanied by a sketch or diagram showing
the 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 at least be drawn to a designated scale
or drawn with marked dimensions on the interior and exterior of the
premises to an accuracy of plus or minus six inches.
C.
The applicant must be qualified according to the provisions of this Article XIXA and the premises must be inspected and found to be in compliance with the law by the Zoning Officer, the Fire Marshal and the police.
D.
If a person wishes to operate an adult entertainment business as
an individual, he (she) must sign the application for permit as an
applicant. If a person who wishes to operate an adult entertainment
business is other than an individual, each individual that has a 10%
or greater interest in the business must sign the application for
permit as an applicant. If a corporation is listed as owner of an
adult entertainment 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
permit as an applicant.
E.
The fact that a person possesses other types of Township permit(s)
does not exempt the person from the requirement of obtaining an adult
entertainment business permit.
F.
The Zoning Officer shall approve the issuance of a permit to an applicant
within 30 days after the applicant is awarded a special exception
by the Zoning Hearing Board of the Township of Tinicum and will not
approve a permit if the Zoning Officer finds one or more of the following
to be true:
(1)
Applicant is under 18 years of age.
(2)
Applicant or applicant's spouse is overdue on his or her
payment to the Township of taxes, fees, fines or penalties assessed
against him or her or imposed upon him or her in relation to an adult
entertainment business.
(3)
Applicant has failed to provide information reasonably necessary
for issuance of the permit or has falsely answered a question or request
for information on the application form.
(4)
Permits to be used for the adult entertainment business has
been reviewed and has been disapproved by either the Zoning Officer,
the Fire Marshal or the police as not being in compliance with the
applicable laws and ordinances.
G.
The permit, if granted, shall state on its face the name of the person
or persons to whom it is granted, the expiration date and the address
of the adult entertainment business. The permit shall be posted in
a conspicuous place at or near the entrance of the adult entertainment
business so it can be read at any time.
H.
The permit, if granted, shall have a life of one year from the date
of issuance. At that time, the applicant must file another application
before the expiration of the permit in order to continue doing business
without interruption. Application for renewal should be made at least
30 days before the expiration date. When an application is made less
than 30 days before the expiration date, the pendency of the application
will not prevent the expiration of the permit. Again, all of the above
rules listed in this section and the entire article (ordinance) must
be complied with as if a new permit is being issued.
I.
The Zoning Officer, Fire Marshal and the police 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.
This certification shall be promptly presented to the Zoning Officer.
J.
If the Township Zoning Officer denies a 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 of lapse since the date of denial,
the applicant may be granted a permit if the Zoning Officer finds
that the basis for denial of the renewal permits has been corrected
or abated.
A.
An applicant or permittee shall permit a representative of the police,
Fire Marshal, Zoning Officer or other Township departments or agencies
to inspect the premises of an adult entertainment business for the
purpose of ensuring compliance with the law at any time the adult
entertainment business is occupied or open for business. These inspection
departments/agencies shall certify, in writing, to the Code Enforcement
Officer whether compliance is achieved.
B.
A person who operates an adult entertainment business or his agent
or employee violates the Zoning Ordinance of the Township of Tinicum
if he refuses to permit such lawful inspection of the premises at
any time it is occupied or open for business.
The annual fee for an adult entertainment business permit is
$500.
The Zoning Officer shall suspend a permit for a period not to
exceed 30 days if he determines that a permittee or an employee of
the permittee has:
A.
The Zoning Officer shall revoke a permit if a cause of suspension set forth in § 395-126 occurred and the permit has been suspended within the preceding 12 months.
B.
The Zoning Officer shall also have the power to revoke a permit if
he determines that:
(1)
A permittee or any of the person specified has given false or
misleading information or materials submitted to the Township during
the application process.
(2)
A permittee or employee of the permittee has knowingly allowed
prostitution on the premises as defined by the Pennsylvania Crime
Codes.
(3)
A permittee or employee of the permittee knowingly operated
the adult entertainment business during a period of time when the
permittee's permit was suspended or revoked.
(4)
A permittee or employee of the permittee knowingly allowed any
action of sexual intercourse, sodomy, oral copulation, masturbation
or other sexual conduct to occur in or on the permitted premises.
(5)
A permittee is delinquent in payment of the Township or state
for any taxes or fees past due.
C.
When the Zoning Officer revokes the permit, the revocation shall
continue for one year and the permittee shall not be issued an adult
entertainment business permit for one year from when the date of revocation
became effective. If, subsequent to revocation, the Zoning Officer
finds that the basis for the revocation has been corrected or abated,
the applicant may be granted a permit if at least 90 days have elapsed
since the date the revocation became effective.
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 may seek prompt judicial review of such administrative
action in any court of competent jurisdiction. The administrative
action shall be promptly reviewed by the court.
A permittee shall not transfer his permit to another person
or business entity, nor shall a permittee operate an adult entertainment
business under the authority of a permit at any place other than the
address designed within the application.
Parking, loading and unloading and access regulations shall
apply as set forth, enumerated and provided in § 61-5.2B(5),
Regulations for Business Center District, excluding Subsection B(5)(a)[9].[1]
[1]
Editor's Note: So in original.
It is a defense to prosecution under this Article XIXA that a person appearing in a state of nudity did so in a modeling class operated as follows:
A.
By a propriety 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 or operates education
programs in which credits are transferable to any college, junior
college or university supported entirely or partly by taxation.
A person who operates or causes to be operated an adult entertainment business without a valid permit or in violation of this Article XIXA, is subject to an action in equity or a suit for injunction, as well as citations for violations of the Zoning Ordinance.
For any and every violation of the provisions of this Article XIXA, the permittee, owner, tenant, general agent, managing company, realtor or contractor of a building or premises where such violation has been committed or shall exist, and the lessee or tenant of any building or premises where such violation has been committed or shall exist, and the owner, permittee, general agent or contractor, lessee or tenant of a building or premises in which part such violation has been committed or shall exist, and the owner, permittee, lessee, general agent, architect, builder, realtor, contractor or any other person who knowingly commits, takes part or assists in any such violation or maintains any building or premises in which any such violation shall exist shall be liable on conviction thereof to a fine or penalty not exceeding $500, which shall ensure to the benefit and use of Tinicum Township, with the cost of the suit, and in default of payment thereof, the Magisterial District Judge may, in his discretion, commit the offender to prison in the county jail for a period not exceeding 30 days for each and every offense; and whenever such person shall have been officially notified by Tinicum Township or by service of a summons in a prosecution or in any other official manner that he is committing a violation, each day's continuance of such violation after such notification shall constitute a separate offense punishable by like fine or penalty.
