It is the purpose of this article to regulate
sexually oriented businesses to promote the health, safety and general
welfare of the citizens of the Township and to establish reasonable
and uniform regulations to prevent the continued deleterious location
and concentration of sexually oriented businesses within the Township.
The provisions of this chapter have neither the purpose nor effect
of imposing a limitation or restriction on the content of any communicative
materials, including sexually oriented materials. Similarly, it is
not the intent nor effect of this chapter 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. Neither is it the intent nor
effect of this chapter to condone or legitimize the distribution of
obscene material.
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 of specified anatomical
areas.
A commercial establishment which has a substantial
or significant portion of its stock-in-trade, and offers for sale
or rental for any form of consideration, any one or more of the following:
Books, magazines, periodicals or other printed
matter, or photographs, films, motion pictures, video cassettes or
video reproductions, slides or other visual representations distinguished
or characterized by their emphasis on matters depicting, describing
or relating to specified sexual activities or specified anatomical
areas; or
Instruments, devices or paraphernalia which
are designed for use in connection with specified sexual activities.
A commercial establishment may have substantial
or significant portions of its stock-in-trade in other goods and/or
services that do not involve the offering for sale or rental of material
distinguished or characterized by its emphasis on matters depicting,
describing or relating to specified sexual activities or specified
anatomical areas and still be categorized as an adult bookstore or
adult video store. Such other business purposes will not serve to
exempt such commercial establishment from being categorized as an
adult bookstore or adult video store so long as one of its principal
business purposes meets the definition of an adult bookstore or adult
video store set forth above.
A nightclub, bar, restaurant or similar commercial establishment
which regularly features:
Persons who appear in the state of nudity;
Live performance which are characterized by
the exposure of the specified anatomical areas or by specified sexual
activities; or
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.
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.
A commercial establishment where, for any form of consideration,
films, motion pictures, video cassettes, slides or similar photographic
reproductions are regularly shown which are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas.
A theater, concert hall, auditorium or similar commercial
establishment which regularly features persons who appear in a state
of nudity or live performances which are characterized by the exposure
of specified anatomical areas or specified sexual activities.
A person who, for consideration, agrees or offers to act
as a companion, guide or date for another person 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 advertises to furnish escorts as one of its primary business
purposes for a fee, tip or other consideration.
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.
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.
An individual, proprietorship, partnership, corporation,
association or other legal entity.
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.
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
cabaret, adult motel, adult motion-picture theater, adult theater,
escort agency, nude model studio or sexual encounter center.
The male genitals in the state of sexual arousal and/or the
vulva or more intimate part of the female genitals.
Includes any of the following:
The increase in floor areas occupied by the business by more
than 25%, as the floor areas exist on date of enactment of this chapter.
The Township of Lower Providence.
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.
Sexually oriented businesses are classified
as follows:
A.
Any person who operates a sexually oriented business
without a valid permit issued by the Township is guilty of a violation
of the Zoning Ordinance of the Township.
B.
An application for a permit to operate a sexually
oriented business must be made on a form provided by the Code Enforcement
Officer 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 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 or the premises to an accuracy of plus
or minus six inches.
C.
The applicant must be qualified according to the provisions
of this chapter, and the premises must be in compliance with this
and all other applicable Township ordinances.
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 ten-percent
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 Township Code Enforcement Officer shall issue
a permit to an applicant within 30 days after receipt of an 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 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 sexually oriented
business do not meet the requirements of the Township Code and ordinances.
(4)
The permit fee required by this chapter has not been
paid.
(5)
An applicant of the proposed establishment is in violation
of or is not in compliance with any of the provisions of this chapter.
B.
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 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.
The annual fee for a sexually oriented business
permit is $500.
A.
An applicant, or permittee, shall permit representatives
of the Police Department, Fire Marshal, Code Enforcement Officer or
other Township department or agencies to inspect the premises of a
sexually oriented business for the purpose of ensuring 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 the Zoning Ordinance of the Township
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 as provided in § 143-221. Application for renewal should be made at least 30 days before the expiration date and, when made less than 30 days before the expiration date, the pendency of the application will not prevent the expiration of the permit. A decision to renew or deny shall be made within 30 days of receipt of the application by the Township.
B.
Where the applicant certifies, under penalty of perjury,
that no change has occurred in the 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 Township Code Enforcement Officer on the renewal
application. In the event that the renewal application is denied,
the applicant may continue to operate its business under the exact
conditions of the expired permit until said denial is reviewed and
determined by the Court of Common Pleas of Montgomery County, Pennsylvania,
provided that the applicant appeals said denial within 30 days of
the decision by the Township.
The Code Enforcement Officer 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 chapter;
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 chapter;
D.
Knowingly permitted gambling by any person on the
sexually oriented business premises; or
E.
Failed to staff managers' stations and/or maintain
viewing rooms as set forth in this article.
A.
The Code Enforcement Officer shall revoke a permit
if a cause of suspension as set forth in this article occurs and the
permit has been suspended within the preceding 12 months.
B.
The Code Enforcement Officer shall revoke a permit
if he determines that:
(1)
A permittee gave false or misleading information in
the material submitted to the Township during the application process;
(2)
A permittee or an employee of a permittee has knowingly
allowed possession, use or sale of controlled substances on the premises;
(3)
A permittee or an employee of a permittee has knowingly
allowed prostitution on the premises;
(4)
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;
(5)
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.
C.
When the Code Enforcement Officer 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.
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 action in a court of competent
jurisdiction, as provided by the Pennsylvania Municipalities Planning
Code,[1] Township Zoning Ordinance and/or other applicable laws
of the Commonwealth of Pennsylvania.
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
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 designate in the application.
A.
A person is guilty of a violation of the Zoning Ordinance
if he operates or causes to be operated a sexually oriented business
outside of the district in which a sexually oriented business is a
permitted use. Sexually oriented businesses as defined herein shall
be permitted in the Institutional Overlay District as a special exception.
B.
A person is guilty of a violation of the Zoning Ordinance
if he operates or causes to be operated a sexually oriented business
within 100 feet of the boundary of a residential district or within
1,000 feet of:
C.
A person is guilty of a violation of the Zoning Ordinance
if he causes or permits the operation, establishment, substantial
enlargement or transfer of ownership or control of a sexually oriented
business within 1,000 feet of another sexually oriented business.
D.
A person is guilty of a violation of the Zoning Ordinance
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 chapter, 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.
F.
For purposes of Subsection C of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, with 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 in date of enactment of this chapter that is in violation of Subsection 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 1,000 feet of one another in an otherwise 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 or public park within 1,000 feet 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 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 videocassette, or other video or other image production
or reproduction which is distinguished or characterized by its emphasis
on matters depicting, describing or relating to specific sexual activities
or specified anatomical areas, shall comply with the following requirements:
(1)
All viewing rooms shall be open to an adjacent public
area of the premises;
(2)
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
and adjacent open public areas, 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,
such 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 6 inches. The Code Enforcement Officer may waive the foregoing
diagram for renewal application 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.
(3)
The application shall be sworn to be true and correct
by the applicant.
(4)
No alternation in the configuration or location of
a manager's station may be made without prior approval of the Code
Enforcement Officer or his designee.
(5)
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.
(6)
The interior of the premises shall be configured in
such a manner that there is an unobstructed view from the public area
adjacent to the viewing room and from the manager's station to every
area of the premises to which any patron is permitted access for any
purpose, excluding restrooms. Restrooms may not contain video reproduction
or viewing equipment. If the premises has two or more manager's stations
designated, 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, other than
restrooms, from each of the manager's stations. The view required
in this subsection must be by direct line of sight from the manager's
station and the public areas adjacent to viewing rooms.
(7)
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 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.
(8)
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.
(9)
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.
It is a defense to prosecution under §§ 143-221 and 143-228 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;
(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 chapter is subject to an action in equity or a suit for injunction
as well as citations for violations of the Zoning Ordinance.
The provisions of this article are severable
and if any section, sentence, clause, part or provision hereof shall
be held illegal, invalid or unconstitutional by any court of competent
jurisdiction, 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 the Board that this article
would have been adopted if such illegal, invalid or unconstitutional
section, sentence, clause, part or provision had not been herein.
This article shall take effect and be in force
from and after its enactment as required by law.
