[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.
A. 
The defined terms as contained in Chapter 200, Zoning, § 200-7, are hereby adopted by reference in this chapter.
B. 
As used in this chapter, the following words and phrases shall have the meanings given to them in this subsection:
COMMUNITY
For the purpose of applying the "contemporary community standards" in this chapter, "community" means the Commonwealth of Pennsylvania.
EMPLOYEE
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.
HARMFUL TO MINORS
That quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sadomasochistic abuse when it:
(1) 
Predominantly appeals to the prurient, shameful or morbid interest of minors;
(2) 
Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(3) 
Taken as a whole, lacks serious literary, artistic, political, educational or scientific value for minors.
KNOWING
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.
LICENSEE
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.
MASSAGE
The manipulation of body muscle or tissue by rubbing, stroking, kneading or tapping, by hand, mechanical device or other means.
MASSAGE ESTABLISHMENT
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.
MATERIAL
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.
MINOR
Any person under the age of 18 years of age.
OBSCENE
Any material or performance if:
(1) 
The average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;
(2) 
The subject matter depicts or describes, in a patently offensive way, sexual conduct of a type described in this chapter; and
(3) 
The subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.
PERFORMANCE
Any play, dance or other live exhibition performed before an audience.
SADOMASOCHISTIC ABUSE
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.
SEXUAL CONDUCT
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.
SEXUAL EXCITEMENT
The condition of human male or female genitals when in a state of sexual stimulation or arousal.
SPECIFIED CRIMINAL ACT1VITY
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:
(1) 
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;
(2) 
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
(3) 
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.
TRANSFER OF OWNERSHIP OR CONTROL
When referring to an adult entertainment business, such term shall mean and include any of the following:
(1) 
The sale, lease or sublease of the business;
(2) 
The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means; or
(3) 
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.
(2) 
If the applicant intends to operate the adult entertainment and or massage business under a name other than that of the applicant, he or she must:
(a) 
State the adult entertainment and/or massage business' fictitious name; and
(b) 
Submit the required registration documents.
(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. 
An escort agency shall not employ any person under the age of 18 years.
B. 
A person commits a violation of this chapter if the person acts as an escort or agrees to act as an escort for any person under the age of 18 years.
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.
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.