[HISTORY: Adopted by the Board of Supervisors of the Township of
East Whiteland 3-9-2005 by Ord. No. 170-2005.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 200.
[1]
Editor's Note: This ordinance was adopted as Ch. 114, but was
renumbered to maintain the alphabetical organization of the Code.
A.
Statement of authority and purpose. Pursuant to the authority
granted in the Second Class Township Code to prohibit nuisances and to promote
the health, cleanliness, comfort and safety of the citizens of East Whiteland
Township; and to regulate the time of opening and closing and the conduct
which occurs in places of public entertainment, amusement and recreation,
as well as the sale, distribution, display and exhibition of and activities
concerning obscene and other sexual material as provided for in 18 P.S. § 5903(k)
and as upheld by the United States District Court for the Eastern District
of Pennsylvania in Brown v. Pornography Commission of Lower Southampton Township,
620 F. Supp. 1199 (1985), the Board enacts this chapter for the following
purposes:
(1)
To minimize and control the adverse effects of adult
entertainment businesses and thereby protect the health, safety and welfare
of the citizens of the Township;
(2)
To protect the citizens of the Township from increased
crime associated with adult entertainment businesses;
(3)
To preserve the quality of life of the citizens of the
Township; and
(4)
To preserve the property values and character of surrounding
neighborhoods and deter the spread of blight.
(5)
The Board has determined that location criteria alone
does not adequately protect the health, safety and general welfare of the
people of the Township and that licensing is a legitimate and reasonable means
of accountability to insure that operators of adult entertainment and/or massage
businesses comply with reasonable regulations and to insure that operators
do not knowingly allow their establishments to be used as places of illegal
sexual activity or solicitation.
(6)
The Board does not intend this chapter to suppress any
speech activities protected by the First Amendment to the United States Constitution,
but instead to enact a content-neutral ordinance which addresses the secondary
effects of adult entertainment and/or businesses.
B.
Findings. The Board makes the following findings and,
pursuant to the authority in City of Renton v. Playtime Theaters, Inc. 475
U.S. 41 (1986), adopts by reference the results of reports and studies conducted
by other municipalities and states concerning and documenting the adverse
secondary effects of adult entertainment businesses:
(1)
The adverse secondary effects of adult entertainment
businesses raise substantial governmental concerns;
(2)
Adult entertainment businesses have operational characteristics
which should be reasonably regulated in order to protect those substantial
governmental concerns;
(3)
A reasonable licensing procedure is an appropriate mechanism
to place the burden of that reasonable regulation on the owners and the operators
of the adult entertainment businesses;
(4)
A licensing procedure will provide an incentive for operators
of adult entertainment businesses to see that the adult entertainment business
is run in a manner consistent with the health, safety and welfare of its patrons
and employees, as well as the citizens of the Township.
(5)
Removal of doors on adult booths and requiring sufficient
lighting on premises with adult booths advances a substantial governmental
interest in curbing the illegal and unsanitary sexual activity occurring in
adult theaters;
(6)
Requiring licensees of adult entertainment businesses
to keep information regarding current employees and certain past employees
will help reduce the incidence of certain types of criminal behavior by facilitating
the identification of potential witnesses or suspects and preventing minors
from working in such establishments;
(7)
The general welfare, health and safety of the citizens
of the Township will be promoted by the enactment of this chapter.
B.
COMMUNITY
EMPLOYEE
HARMFUL TO MINORS
(1)
(2)
(3)
KNOWING
LICENSEE
MASSAGE
MASSAGE ESTABLISHMENT
MATERIAL
MINOR
OBSCENE
(1)
(2)
(3)
PERFORMANCE
SADOMASOCHISTIC ABUSE
SEXUAL CONDUCT
SEXUAL EXCITEMENT
SPECIFIED CRIMINAL ACT1VITY
(1)
(2)
(3)
TRANSFER OF OWNERSHIP OR CONTROL
(1)
(2)
(3)
As used in this chapter, the following words and phrases
shall have the meanings given to them in this subsection:
For the purpose of applying the "contemporary community standards"
in this chapter, "community" means the Commonwealth of Pennsylvania.
Any person over 18 years of age who renders any service in connection
with the operation of an adult business and receives compensation from the
operation of the business or patrons.
That quality of any description or representation, in whatever form,
of nudity, sexual conduct, sexual excitement or sadomasochistic abuse when
it:
Predominantly appeals to the prurient, shameful or morbid interest of
minors;
Is patently offensive to prevailing standards in the adult community
as a whole with respect to what is suitable material for minors; and
Taken as a whole, lacks serious literary, artistic, political, educational
or scientific value for minors.
Having general knowledge of, reason to know or belief or ground for
belief which warrants further inspection or inquiry of the character and content
of any material or performance described therein which is reasonably susceptible
of examination by the person charged with violation of this chapter.
A person in whose name a license to operate an adult entertainment
business has been issued, as well as the individual listed as an applicant
on the application for a license, and in the case of an employee, a person
in whose name a license has been issued authorizing employment in an adult
entertainment business.
The manipulation of body muscle or tissue by rubbing, stroking, kneading
or tapping, by hand, mechanical device or other means.
An establishment which provides the services of massage, unless operated
by a medical practitioner, chiropractor or professional physical therapist
licensed by the Commonwealth of Pennsylvania.
Any literature, including any book, magazine, pamphlet, newspaper,
story paper, bumper sticker, comic book or writing, or any figure, visual
representation or image, including any drawing, photograph, picture, videotape
or motion picture.
Any person under the age of 18 years of age.
Any material or performance if:
The average person applying contemporary community standards would find
that the subject matter taken as a whole appeals to the prurient interest;
The subject matter depicts or describes, in a patently offensive way,
sexual conduct of a type described in this chapter; and
The subject matter, taken as a whole, lacks serious literary, artistic,
political, educational or scientific value.
Any play, dance or other live exhibition performed before an audience.
In a sexual context, flagellation or torture by or upon a person
who is nude or clad in undergarments, a mask or in a bizarre costume, or the
condition of being fettered, bound or otherwise physically restrained on the
part of one who is nude or so clothed.
Patently offensive representations or descriptions of ultimate sexual
acts, normal or perverted, actual or simulated, including sexual intercourse,
anal or oral sodomy and sexual bestiality; and patently offensive representations
or descriptions of masturbation, excretory functions, sadomasochistic abuse
and lewd exhibitions of the genitals.
The condition of human male or female genitals when in a state of
sexual stimulation or arousal.
Any of the following offenses: prostitution or promotion of prostitution;
dissemination of obscenity; sale, distribution or display of harmful material
to a minor; sexual performance by a child; indecency with a child; engaging
in organized criminal activity; sexual assault; molestation of a child; gambling;
distribution of a controlled substance; or any similar offenses to those described
above under the criminal or penal code of other states or countries for which:
Less than two years have elapsed since the date of conviction or the
date of release from confinement imposed for the conviction, whichever is
the later date, if the conviction is of a misdemeanor offense;
Less than five years have elapsed since the date of conviction or the
date of release from confinement for the conviction, whichever is the later
date, if the conviction is of a felony offense; or
Less than five years have elapsed since the date of the last conviction
or the date of release from confinement for the last conviction, whichever
is the later date, if the convictions are of two or more misdemeanor offenses
or combination of misdemeanor offenses occurring within any twenty-four-month
period. The fact that a conviction is being appealed shall have no effect
on the disqualification of the application or a person residing with the applicant.
When referring to an adult entertainment business, such term shall
mean and include 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.
A.
It shall be unlawful:
(1)
For any person to operate an adult entertainment and/or
massage business without a valid adult entertainment business license issued
by the Township pursuant to this chapter.
(2)
For any person who operates an adult entertainment and/or
business to employ a person to work for the adult entertainment and/or massage
business who is not licensed as an adult entertainment and/or massage business
employee by the Township pursuant to this chapter.
(3)
For any person to obtain employment with an adult entertainment
and/or massage business without having secured an adult entertainment business
employee license pursuant to this chapter.
B.
All applicants for business and employee licenses must
be qualified according to the provisions of this chapter. The application
may request, and the applicant shall provide, such information (including
fingerprints) as to enable the Township to determine whether the applicant
meets the qualifications established in this chapter. The application for
a license must be made on a form provided by the Township and shall contain
the following supporting information and/or documents:
(1)
If the applicant is:
(a)
An individual, the individual shall state his/her legal
name and any aliases and submit proof that he/she is at least 18 years of
age.
(b)
A partnership, the partnership shall state its complete
name and the names of all partners, whether the partnership is general or
limited, and a copy of the partnership agreement, if any.
(c)
A corporation, the corporation shall state its complete
name, the date of its incorporation, evidence that the corporation is in good
standing under the laws of its state of incorporation and qualified and authorized
to conduct business in Pennsylvania, the names and capacity of all officers,
directors and principal stockholders, the name of the registered corporate
agent and the address of the registered office for service of process.
(3)
Whether the applicant or a person residing with the applicant
has been convicted of a specified criminal activity as defined in this chapter,
and, if so, the specified criminal activity involved and the date, place and
jurisdiction of each;
(4)
Whether the applicant or a person residing with the applicant
has had a previous license under this chapter, or other similar adult entertainment
and/or massage business ordinance from another municipality or county, denied,
suspended or revoked, including the name and location of the adult entertainment
business for which the permit was denied, suspended or revoked, as well as
the date of the denial, suspension or revocation, and whether the applicant
or person residing with the applicant has been a partner in a partnership
or an officer, director or principal stockholder of a corporation that is
licensed under this chapter whose license has previously been denied, suspended
or revoked, including the name and location of the adult entertainment business
and/or massage for which the permit was denied, suspended or revoked, as well
as the date of denial, suspension or revocation.
(5)
Whether the applicant or a person residing with the applicant
holds any other licenses under this chapter or other similar adult entertainment
and/or massage business ordinance from another municipality or county, and,
if so, the names and locations of such other licensed businesses.
(6)
The specific classification of adult entertainment and/or
massage use for which the applicant is requesting a license.
(7)
The location of the proposed adult entertainment and/or
massage business, including a legal description of the property, street address
and telephone number(s), if any.
(8)
The applicant's mailing address and residential
address.
(9)
A recent photograph of the applicant(s).
(10)
The applicant's driver's license number, social
security number and/or his/her state or federally issued tax identification
number, or if a corporation, the federally issued tax identification number.
(11)
A sketch or diagram showing the 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 it 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.
(12)
If an applicant wishes to operate an adult entertainment
and/or massage business which shall exhibit on the premises, in a viewing
room or booth of less than 150 square feet of floor space, films, video cassettes,
other video reproductions or live entertainment which depict specified sexual
activities or specified anatomical areas, the applicant shall also comply
with all applicable sections of this Code.
(13)
If a person who wishes to operate an adult entertainment
business is an individual, the person must sign the application for a license
as applicant. If a person who wishes to operate an adult entertainment and/or
massage business is other than an individual, each individual who has a 20%
or greater interest in the business must sign the application for a license
as applicant. Each applicant must be qualified under the following section,
and each applicant shall be considered a licensee if a license is granted.
C.
Before the Township will issue an adult entertainment
and/or massage business employee license, the applicant and/or employee shall
submit to the Township, on a form to be provided by the Township, the following
information:
(1)
The employee's name or any other name (including
"stage" names) or aliases used by the individual.
(2)
The employee's age and date and place of birth.
(3)
The employee's height, weight, hair color and eye
color.
(4)
The employee's present residence address and telephone
number.
(5)
The employee's present business address and telephone
number.
(6)
The date, issuing state and number of driver's license
or other identification card information for the employee.
(7)
The employee's social security number.
(8)
Proof that the employee is at least 18 years of age.
(9)
A color photograph of the applicant clearly showing the
applicant's face, and the applicant's fingerprints on a form provided
by any police department; any fees for the photographs and fingerprints shall
be paid by the applicant.
(10)
A statement detailing the license history of the applicant
for the five years immediately preceding the date of the filing of the application,
including whether such applicant previously operated or is seeking to operate
in this or any other county, municipality, state or country any business,
or has ever had a license, permit or authorization to do business denied,
revoked or suspended, or had any professional or vocational license or permit
denied, revoked or suspended; in the event of any such denial, revocation
or suspension, state the name of the issuing or denying jurisdiction and describe
in full the reason for the denial, revocation or suspension; a copy of any
order or denial, revocation or suspension shall be attached to the application.
(11)
A statement whether the applicant has been convicted
of a specified criminal activity as defined in this chapter, and, if so, the
specified criminal activity involved and the date, place and jurisdiction
of each.
A.
Within 30 days after receipt of a complete adult entertainment
and/or massage business license, the Township shall approve or deny the issuance
of a license to an applicant. Upon the filing of a complete application for
an adult entertainment and/or massage business license or adult entertainment
and/or business employee license, the Township shall refer the application
to the appropriate Township official and/or consultant for an investigation
to be made on such information as is contained in the application. The investigation
process shall be completed within 30 days from the date the completed application
is filed. The Township shall approve the issuance of a license, unless it
is determined by a preponderance of the evidence that one or more of the following
findings is true:
(1)
An applicant is under 18 years of age;
(2)
An applicant has failed to provide information reasonably
necessary for the issuance of the license or has falsely answered a question
or request for information on the application form;
(3)
An applicant or a person with whom the applicant is residing
has been denied a license by the Township to operate an adult entertainment
and/or massage business within the preceding 12 months or whose license to
operate an adult entertainment and/or massage business has been revoked within
the preceding 12 months;
(4)
An applicant or a person with whom the applicant is residing
has been convicted of a specified criminal activity defined in this chapter;
(5)
The premises to be used for the adult entertainment and/or
massage business has not been approved by the Fire Marshal and the Building
Official as being in compliance with applicable laws and ordinances;
(6)
The license fee required by this chapter has not been
paid; or
(7)
The applicant fails to comply with any of the provisions
of this chapter.
B.
A license granted pursuant to this section shall be subject to annual renewal upon the written application of the applicant and a finding by the Township that the applicant has not been convicted of any specified criminal activity as defined in this chapter or committed any act during the existence of the previous license which would be grounds to deny the initial license application. The renewal of the license shall be subject to the payment of the fee as set forth in § 48-5 of this chapter.
C.
The license, if granted, shall state on its face the
name of the person or persons to whom it is granted, the expiration date,
the address of the adult entertainment and/or massage business and the specific
classification of adult entertainment and/or massage use for which the license
is issued. All licenses shall be posted in a conspicuous place at or near
the entrance to the adult entertainment and/or massage business so that they
may be easily read at any time.
D.
The Fire Marshal and the Building Official shall complete
their certification that the premises is in compliance or not in compliance
within 20 days of receipt of the application by the Township.
E.
An adult entertainment business and/or massage license
shall be issued for the specific classification of adult entertainment and/or
massage use as permitted by ordinance and applied for.
A.
Every application for an adult entertainment and/or massage
business license (whether for a new license or for renewal of an existing
license) shall be accompanied by a nonrefundable application and investigation
fee in an amount of $1,000 or as amended by the Board by resolution.
B.
In addition to the application and investigation fee
required above, every adult entertainment and/or massage business that is
granted a license (new or renewal) shall pay to the Township an annual nonrefundable
license fee of $750 within 30 days of license issuance or renewal.
C.
Every application for an adult entertainment and/or massage
business employee license (whether for a new license or for renewal of an
existing license) shall be accompanied by an annual nonrefundable application,
investigation and license fee of $250.
A.
An applicant or licensee shall permit representatives
of the Township, including the Fire Marshal, Zoning Officer or other official
and/or consultant, to inspect the premises of an adult entertainment and/or
massage business at any time it is occupied or open for business for the purpose
of insuring compliance with the provisions of this chapter and any other applicable
federal, state or Township law.
B.
A person who operates an adult entertainment and/or massage
business or his agent or employee commits a violation of 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 license shall expire one year from the date of issuance and may be renewed only by making application as provided in § 48-3 above. An application for renewal shall be made at least 30 days before the expiration date of the license.
B.
When the Township denies renewal of a license, the applicant
shall not be issued a license for one year from the date of denial. If subsequent
to denial, the Township finds that the basis for denial of the renewal license
has been corrected or abated, the applicant may be granted a license if at
least 90 days have elapsed since the date denial became final.
The Township shall suspend a license for a period not to exceed 30 days
if it determines that a licensee or an employee of a licensee has:
A.
Violated or is not in compliance with any provision of
this chapter;
B.
Refused to allow an inspection of the adult entertainment
and/or massage business premises as authorized by this chapter; or
C.
Knowingly permitted gambling by any person on the adult
entertainment and/or massage business premises.
A.
The Township shall revoke a license for the following
reasons:
(1)
If a cause of suspension in § 48-7 occurs and the license has been suspended within the preceding 12 months;
(2)
A licensee gave false or misleading information in the
material submitted during the application process;
(3)
A licensee has knowingly allowed possession, use or sale
of controlled substances on the licensed premises;
(4)
A licensee has knowingly allowed prostitution on the
licensed premises;
(5)
A licensee has knowingly operated the adult entertainment
and/or massage business during a period of time when the licensee's license
was suspended; or
(6)
A licensee has knowingly allowed any act of sexual intercourse,
sodomy, oral copulation, masturbation or other sex act to occur in or on the
licensed premises.
B.
When the Township revokes a license, the revocation shall
continue for one year, and the licensee shall not be issued an adult entertainment
and/or massage business license for one year from the date the revocation
became effective. If subsequent to revocation of a license the Township finds
that the basis for the revocation has been corrected or abated, the applicant
may be granted a license if at least 90 days have elapsed since the date the
revocation became effective.
C.
After denial of an application, denial of a renewal of
an application or suspension or revocation of any license, the applicant or
licensee may seek prompt judicial review of such administrative action in
any court of competent jurisdiction.
A licensee shall not transfer his/her license to another, nor shall
a licensee operate an adult entertainment and/or massage business under the
authority of a license at any place other than the address designated in the
application.
A person who operates or causes to be operated an adult entertainment
and/or massage business which exhibits on the premises, in a viewing room
of less than 150 square feet of floor space, a film, video cassette, live
entertainment, or other video reproduction which depicts specified sexual
activities or specified anatomical areas shall comply with the following requirements:
A.
Upon application for an adult entertainment and/or massage
license, the application shall be accompanied by a diagram of the premises
showing a plan thereof specifying the location of one or more manager's stations
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 Township 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.
B.
The application shall be sworn to be true and correct
by the applicant.
C.
No alteration in the configuration or location of a manager's
station may be made without the prior approval of the Township.
D.
It is the duty of the licensee of the premises to ensure
that at least one licensed employee is on duty and situated in each manager's
station at all times that any patron is present inside the premises.
E.
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 the restrooms. Restrooms may not contain video reproduction
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.
F.
It shall be the duty of the licensee to ensure that the view area required in Subsection E above remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and at all times 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 of this section.
G.
No viewing room may be occupied by more than one person
at any time.
H.
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 that five footcandles
as measured at the floor level. It shall be the duty of the licensee to ensure
that the illumination required herein is maintained at all times that any
patron is present in the premises.
I.
The licensee shall cause all floor coverings in viewing
booths to be nonporous, easily cleanable surfaces with no rugs or carpeting.
J.
The licensee shall cause all wall surfaces and ceiling
surfaces in viewing booths to be constructed of or permanently covered by
nonporous, easily cleanable material. No wood, plywood, composition board
or other porous material shall be used within 48 inches of the floor.
A.
A nude model studio shall not employ any person under
the age of 18 years.
B.
A person under the age of 18 years commits a violation
of this chapter if the person appears seminude or in a state of nudity in
or on the premises of a nude model studio. It is a defense to prosecution
under this subsection if the person under 18 years was in a restroom not open
to public view or visible to any other person.
C.
A person commits a violation of this chapter if the person
appears in a state of nudity or knowingly allows another to appear in a state
of nudity in an area of a nude model studio premises which can be viewed from
the public right-of-way.
D.
A nude model studio shall not place or permit a bed,
sofa or mattress in any room on the premises, except that a sofa may be placed
in a reception room open to the public.
A.
A massage establishment may not employ any person under
the age of 18 years.
B.
A massage establishment employee may not place his or
her hand(s) upon, to touch with any part of his or her body, fondle in any
manner, or massage a sexual or genital part of any other person. Sexual or
genital parts shall include the genitals, pubic area, buttocks, anus, or perineum
of any person, or the vulva or breasts or any female.
C.
A massage establishment employee may not expose his or
her sexual or genital parts, or any portion(s) thereof, to any person, nor
may the massage establishment employee expose the sexual or genital parts,
or any portion(s) thereof, of any person.
D.
A massage establishment employee shall, while in the
presence of any other person in a massage establishment, conceal with a fully
opaque covering the sexual or genital parts of his/her body.
E.
A licensee shall not knowingly, cause, allow or permit
a massage establishment employee, or any other person under his/her control
or supervision, to perform such acts as prohibited in this chapter.
A.
It shall be unlawful for a person to knowingly or intentionally
appear in a state of nudity or depict specified sexual activities in an adult
entertainment business within the Township.
B.
It shall be unlawful for a person to knowingly or intentionally
appear in a seminude condition in an adult entertainment business within the
Township unless the person is an employee who, while seminude, shall be at
least 10 feet from any patron or customer and on a stage at least two feet
from the floor.
C.
It shall be unlawful for an employee, while seminude
in an adult entertainment business, to solicit any pay or gratuity from any
patron or customer or for any patron or customer to pay or give any gratuity
to any employee while said employee is seminude in an adult entertainment
business.
D.
It shall be a defense to prosecution under this § 48-15 that a person appearing in a state of nudity did so in a modeling class operated:
(1)
By a proprietary school licensed by the Commonwealth
of Pennsylvania, a college, junior college or university supported entirely
or partly by taxation;
(2)
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
(3)
In a structure, as defined by this Code:
(a)
Which has no sign visible from the exterior of the structure
and no other advertising that indicates a nude person is available for viewing;
(b)
Where, in order to participate in a class, a student
must enroll at least three days in advance of the class; and
(c)
Where no more than one nude model is on the premises
at any one time.
It shall be unlawful for a person to knowingly allow a person under
the age of 18 years on the premises of an adult entertainment business.
No adult entertainment and/or massage business may remain open at any
time between the hours of 1:00 a.m. and 9:00 a.m. on weekdays and Saturdays
and 1:00 a.m. and 12:00 noon on Sundays.
Any person who shall violate the provisions of this chapter shall, upon
a finding of guilt in a civil action before any District Justice, pay a fine
not to exceed one $1,000, attorney fees and costs of suit.
