[HISTORY: Adopted by the Borough Council of the Borough of Brookville 5-15-2007
by Ord. No. 1052. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 230.
A.
Purpose.
(1)
Pursuant to the authority granted in the Pennsylvania
Borough Code, 53 P.S. § 46202 (4), (5), (6), (24), (30) and (74),
to promote and secure the health, cleanliness, comfort, safety, trade and
commerce of the citizens of Brookville Borough, to regulate and inspect the
use and occupancy of public buildings, to regulate and license the use and
opening and closing times of places of public entertainment, amusement, theatrical
exhibitions, dances and recreation, and to prevent and prohibit public nuisances
due to adverse secondary effects, the Borough of Brookville (hereinafter "Borough")
enacts this chapter to minimize and control the adverse secondary effects
of sexually oriented businesses and thereby protect the health, safety and
welfare of its citizens; protect the citizens' property values and character
of surrounding neighborhoods; and deter the spread of blight.
(2)
The Borough has determined that licensing is a legitimate
and reasonable means of accountability to insure that operators of sexually
oriented 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.
(3)
The Borough does not intend this chapter to suppress
any speech activities protected by the First Amendment but to enact a content-neutral
ordinance which addresses the secondary effects of sexually oriented businesses.
It is not the intent of the Borough in enacting this legislation to deny any
person rights of speech protected by the Constitution of the United States
or the Constitution of Pennsylvania, or both, nor is it the intent of the
Borough to impose by this chapter any additional limitations or restrictions
on the contents of any communicative materials, including sexually oriented
films, videotapes, books and other materials. Further, by enacting this legislation,
the Borough does not intend to deny or restrict the rights of any adult to
obtain or view, or both, any sexually oriented materials or conduct protected
by the Constitution of the United States or the Constitution of Pennsylvania,
or both, nor does it intend to restrict or deny any constitutionally protected
rights that distributors or exhibitors of sexually oriented materials may
have to sell, distribute, or exhibit these materials.
B.
Legislative findings. The Borough Council finds:
(1)
Law enforcement personnel have determined, and statistics
and studies performed in a substantial number of communities in this commonwealth
and in the United States indicate that sexually oriented businesses have adverse
secondary effects, including those specified and recognized at 68 Pa.C.S.A.
§ 5501(a), which secondary effects should be regulated to protect
the public health, safety and welfare. These secondary effects include, but
are not limited to, the spread of communicable diseases, performance of sexual
acts in public places, presence of discarded sexually oriented materials on
public and private property, sexual harassment, obscenity, prostitution and
other illegal sexual activities, crime, decreased property values and neighborhood
deterioration.
(2)
Based on evidence and expert testimony and reports concerning
the adverse secondary effects of adult uses on communities presented in depositions,
hearings and trials conducted by the United States District Court for the
Middle District of Pennsylvania, Case No. 3:CV99-1801 (Judge Munley), and
in the United States District Court for the Western District of Pennsylvania,
Case No. 98-1140 (Judge Lancaster), and in the Court of Common Pleas of Westmoreland
County, Pennsylvania, at Case Nos. 3244 of 2000 and 3799 of 1999, and in the
Court of Common Pleas of Franklin County, Pennsylvania, Case No. 2000-3181;
and in reports made available to the Borough and on findings incorporated
in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986),
Young v. American Mini Theatres, 426 U.S. 50 (1976), and Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991); and on studies in other communities, including,
but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas;
Indianapolis, Indiana; Amarillo, Texas; Biloxi, Mississippi; Seattle, Washington;
Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and also on
findings from the Report of the Attorney General's Working Group on the
Regulation of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota),
the Borough finds:
(a)
Sexually oriented businesses lend themselves to ancillary
unlawful and unhealthy activities that are presently uncontrolled by the operators
of the establishments. Further, there is presently no mechanism to make the
owners of these establishments responsible for the activities that occur on
their premises.
(b)
Certain employees of sexually oriented businesses defined
in this chapter as adult theaters and cabarets engage in higher incidence
of certain types of illicit sexual behavior than employees of other establishments.
(c)
Sexual acts, including masturbation, and oral and anal
sex, occur at sexually oriented businesses, especially those which provide
private or semiprivate booths or cubicles for viewing films, videos, or live
sex shows. Furthermore, adult bookstores tend to attract homosexual men who
engage in unprotected, high-risk sexual activities.
(d)
Offering and providing such space encourages such activities,
which creates unhealthy conditions.
(e)
Persons frequent certain adult theatres, adult arcades,
and other sexually oriented businesses for the purpose of engaging in sex
within the premises of such sexually oriented businesses.
(f)
At least 50 communicable diseases may be spread by activities
occurring in sexually oriented businesses, including, but not limited to,
syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital
herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella
infections.
(g)
The Surgeon General of the United States in his report
of October 22, 1986, has advised the American public that AIDS and HIV infection
may be transmitted through sexual contact, intravenous drug abuse, exposure
to infected blood and blood components, and from an infected mother to her
newborn.
(h)
According to the best scientific evidence, AIDS and HIV
infection, as well as syphilis and gonorrhea, are principally transmitted
by sexual acts.
(i)
Sanitary conditions in some sexually oriented businesses
are unhealthy, in part, because the activities conducted there are unhealthy,
and, in part, because of the unregulated nature of the activities and the
failure of the owners and the operators of the facilities to self-regulate
those activities and maintain those facilities.
(j)
Numerous studies and reports have determined that semen
is found in the areas of sexually oriented businesses where persons view "adult"
oriented films.
(k)
Numerous studies have indicated that sexually oriented
businesses have a substantial negative impact on property values and cause
neighborhood blight.
(3)
Sexually oriented businesses have adverse secondary effects
in the nature of a public nuisance, which secondary effects should be regulated
to protect the public health, safety and welfare.
(4)
Sexually oriented businesses have operational characteristics
which should be reasonably regulated in order to protect those substantial
governmental concerns.
(5)
A reasonable licensing procedure is an appropriate mechanism
to place the burden of that reasonable regulation on the owners and the operators
of the sexually oriented business. Further, such a licensing procedure will
place a heretofore nonexistent incentive on the operators to see that the
sexually oriented 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 Borough. It is appropriate to require reasonable assurances that the licensee
is the actual operator of the sexually oriented business, fully in possession
and control of the premises and activities occurring therein.
(6)
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 and bookstores.
(7)
Requiring licensees of sexually oriented 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 by preventing minors
from working in such establishments.
(8)
The disclosure of certain information by those persons
ultimately responsible for the day-to-day operation and maintenance of the
sexually oriented business, where such information is substantially related
to the significant governmental interest in the operation of such uses, will
aid in preventing the spread of sexually transmitted diseases.
(9)
It is desirable in the prevention of the spread of communicable
diseases to obtain a limited amount of information regarding certain employees
who may engage in the conduct which this chapter is designed to prevent or
who are likely to be witnesses to such activity.
(10)
The fact that an applicant for an adult or sexually oriented
use license has been convicted of a sexually related crime leads to the rational
assumption that the applicant is likely to engage in that conduct in contravention
of this chapter.
(11)
The barring of such individuals from the management of
sexually oriented uses for a period of years serves as a deterrent to and
prevents conduct which leads to the transmission of sexually transmitted diseases.
(12)
The general welfare, health and safety of the citizens
of the Borough will be promoted by the enactment of this chapter.
(13)
The limitation of operating hours of sexually oriented
businesses from 8:00 a.m. to 10:00 p.m., Mondays through Saturdays, and closure
of such businesses on Sundays and holidays reduces the adverse secondary effects
of such businesses, including, particularly, but not limited to, late-night
noise levels, crime and sexually offensive materials and activities in public
areas, and promotes the public health, safety and welfare.
(14)
The reasonable regulation and supervision of sexually
oriented businesses tends to discourage sexual acts and prostitution and thereby
promote the health, safety and welfare of patrons, clients and customers of
these businesses.
(15)
The continued unregulated operation of such sexually
oriented businesses would be detrimental to the general health, safety and
welfare of citizens of the Borough.
As used in this chapter, the following words and phrases shall have
the meanings indicated unless the context clearly indicates a different meaning.
Any place to which the public is permitted or invited wherein coin-operated,
slug-operated, or for any form of consideration, electronically, electrically,
or mechanically controlled still- or motion-picture machines, projectors,
video or laser disc players, 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 distinguishable or characterized by the depicting
or describing of specified sexual activities or specified anatomical areas.
A commercial establishment which, as one of its principal purposes,
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, videocassettes or video reproductions, slides or other
visual representations which are characterized by the depiction or description
of 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 other principal business purposes
that do not involve the offering for sale or rental of material depicting
or describing specified sexual activities or specified anatomical areas and
still be categorized as "adult bookstore", "adult novelty" or "adult video
store." Such other business purposes will not serve to exempt such commercial
establishments from being categorized as an "adult bookstore," "adult novelty
store" or adult video store" so long as one of its business purposes is the
offering for sale or rental for consideration the specified materials which
are characterized by the depiction or description of specified sexual activities
or specified anatomical areas.
A nightclub, bar, restaurant or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity or seminudity;
Live performances which are characterized by the exposure of specified
anatomical areas or by specified sexual activities; or
Films, motion pictures, videocassettes, slides or other photographic
reproductions which are characterized by the depiction or description of specified
sexual activities or specified anatomical areas.
An exhibition of any adult-oriented motion pictures which are distinguished
and characterized by an emphasis on matter depicting, describing or relating
to specified sexual activities or specified anatomical areas;
A live performance, display or dance of any type, which has a significant
or substantial portion of the performance, any actual or simulated performance
of specified sexual activities or exhibition in viewing of specified anatomical
areas or persons in a state of nudity or seminudity; or
Films, motion pictures, videocassettes, slides or other photographic
reproductions which are characterized by the depiction or description of specified
sexual activities or specified anatomical areas.
A commercial establishment where, for any form of consideration,
films, motion pictures, videocassettes, 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, tavern, concert hall, banquet hall, party room, conference
center, restaurant, nightclub, club, bar, recreation center, indoor amusement
center, dance hall, auditorium, or similar commercial establishment which
regularly features persons who appear in a state of nudity or seminudity,
or performances which are characterized by the exposure of specified anatomical
areas or by specified sexual activities.
A person who performs any service on the premises of a sexually oriented
business on a full-time, part-time or contract basis, whether or not the person
is denominated an employee, independent contractor, agent, lessee, lessee
of a dance floor or space or otherwise, and whether or not said person is
paid a salary, wage or compensation by the operator of said business. Employee
does not include a person exclusively on the premises for repair or maintenance
of the premises or equipment on the premises, or for the delivery of goods
to the premises.
A person who, for consideration, agrees or offers to act as a companion,
guide, or date for another, or who agrees or offers to privately model lingerie
or to privately perform a strip tease 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.
Includes any of the following:
The opening or commencement of any sexually oriented business as a new
business;
The conversion of an existing business, whether or not a sexually oriented
business, to any sexually oriented business;
The addition of any sexually oriented business or sexually oriented
use to any other existing sexually oriented business or sexually oriented
use; or
The relocation of any sexually oriented business.
A person in whose name a license to operate a sexually oriented 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 a sexually oriented business.
Having a general knowledge of, or reason to know, or a belief or
ground for belief which warrants further inspection or inquiry of both:
The character and content of any material or performance described herein
which is reasonably susceptible of examination by a licensee or persons;
The age of a minor; provided, however, that an honest mistake shall
constitute an excuse from liability hereunder if the licensee or person made
a reasonable bona fide attempt to ascertain the true age of such minor.
Any place where a person who appears seminude, in a state of nudity,
or who displays specified anatomical areas and is provided to be observed,
sketched, drawn, painted, sculptured, photographed, or similarly depicted
by other persons who pay money or any form of consideration. Nude model studios
shall not include a proprietary school licensed by the State of Pennsylvania
where a college, junior college or university supported entirely or in part
by public taxation; 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 in a structure:
That no sign visible from the exterior of the structure and no other
advertising that indicates a nude or seminude person is available for viewing;
Where in order to participate in a class, a student must enroll at least
three days in advance of the class; and
Where no more than one nude or seminude model is on the premises at
one time.
The showing of the human male or female genitals, pubic area, vulva,
anus, anal cleft or cleavage with less than a fully opaque covering, the showing
of the female breast with less than a fully opaque covering of any part of
the nipple, or the showing of the covered male genitals in a discernible turgid
state.
An individual, proprietorship, partnership, corporation, association,
or other legal entity.
The state of dress in which clothing partially or opaquely covers
specified anatomical areas.
A business or commercial enterprise that, as one of its principal
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore, adult novelty store, adult videostore,
adult cabaret, adult motion-picture theater, adult theater, escort agency,
nude model studio, sexual encounter center or other commercial establishment
where adult entertainment is presented for money, a fee or other forms of
consideration.
Human genitals, pubic region, anus, buttocks, female breast(s) below
a point immediately above the top of the areola, or human male genitals in
a discernible turgid state, even if completely covered.
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; possession or distribution of child
pornography; public lewdness; indecent exposure; indecency with a child; engaging
in organized criminal activity; sexual assault; molestation of a child; gambling;
or 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 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 applicant or a person residing with the applicant.
Any of the following:
Of a sexually oriented business, means the increase in floor areas
occupied by the business by more than 25%, as the floor areas exist on the
date of licensing.
Of an adult entertainment business, means and includes any of the
following:
The sale, lease or sublease of the business;
The transfer of securities which constitute a controlling interest in
the business, whether by sale, exchange or similar means; or
The establishment of a trust, gift, or other similar legal device which
transfers the ownership or control of the business, except for transfer by
bequest or other operation of law upon the death of the person possessing
the ownership or control.
Booths, stalls, partitioned portions of a room, rooms or other enclosures
which are available for viewing:
Films, movies, videos, or visual reproductions of any kind depicting
or describing specified sexual activities or specified anatomical areas; or
Persons who appear in a state of nudity or seminudity or who offer performances
or presentations characterized by the exposure of specified anatomical areas
or by specified sexual activities.
A.
It is unlawful:
(1)
For any person to establish and operate a sexually oriented
business after the effective date of this chapter without a valid sexually
oriented business license issued by the Borough pursuant to this chapter;
(2)
For any person who establishes and operates a sexually
oriented business after the effective date of this chapter to employ a person
to work for the sexually oriented business who is not licensed as a sexually
oriented business employee by the Borough pursuant to this chapter;
(3)
For any person to obtain employment with a sexually oriented
business after the effective date of this chapter without having secured a
sexually oriented business employee license pursuant to this chapter;
(4)
Beginning on the 180th day after enactment of this chapter
for any person to continue to operate a sexually oriented business open and
in operation on the effective date of this chapter without a valid sexually
oriented business license pursuant to this chapter;
(5)
Beginning on the 180th day after the effective date of
this chapter for any person operating a sexually oriented business open and
in operation at the time of the enactment of this chapter to employ a person
to work for the sexually oriented business who is not licensed as a sexually
oriented business employee by the Borough pursuant to this chapter;
(6)
Beginning on the 180th day after the effective date of
this chapter for any person working as an employee of a sexually oriented
business open and in operation on the effective date of this chapter to continue
such employment without having secured a sexually oriented business employee
license pursuant to this chapter.
B.
Application for a business or employee license must be
made on a form provided by the Borough. For purposes of this chapter, the
responsibility for conducting any investigation, receiving and processing
any application, and issuing or denying any license required under this chapter
shall be the Borough Code Enforcement Officer and/or his assistant.
C.
All applicants must be qualified according to the provisions
of this chapter. The application may request and the applicant shall provide
such information as to enable the Borough to determine whether the applicant
meets the qualifications established in this chapter.
D.
If a person who wishes to operate a sexually oriented
business is an individual, the person must sign the application for a license
as applicant. If a person who wishes to operate a sexually oriented business
is other than an individual, each individual who has a twenty-percent 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.
E.
The completed application for a sexually oriented business
license shall contain the following information and shall be accompanied by
the following 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, the type or classification of the corporation,
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
and the name of the registered corporate agent and address of the registered
office for service of process;
(2)
If the applicant intends to operate the sexually oriented
business under a name other than that of the applicant, he or she must state:
a) the sexually oriented business' fictitious name; and b) submit the
required registration documents.
(3)
Whether the applicant has been convicted of a specified
criminal activity as defined in this chapter, and, if so, the specified criminal
activity involved, the date, place and jurisdiction of each.
(4)
Whether the applicant has had a previous license under
this chapter or other similar sexually oriented business ordinance from another
municipality, county or jurisdiction denied, suspended or revoked, including
the name and location of the sexually oriented 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 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 sexually oriented business
for which the permit was denied, suspended or revoked as well as the date
of denial, suspension or revocation.
(5)
Whether the applicant holds any other licenses under
this chapter or other similar sexually oriented business ordinance from another
municipality, county or jurisdiction and, if so, the names and locations of
such other licensed businesses.
(6)
The specific classification of sexually oriented use
for which the applicant is filing, along with a detailed description of each
and every activity encompassed by the proposed sexually oriented use, which
description shall thoroughly demonstrate compliance and/or intended compliance
with all provisions of this chapter.
(7)
The location of the proposed sexually oriented 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 permit number, social
security number, and/or his/her state of 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 a sexually oriented business, which shall exhibit on the premises in a viewing room or booth of less than 150 square feet of floor space films, videocassettes, other video reproductions, or live entertainment which depict specified sexual activities or specified anatomical areas, then the applicant shall also comply with the application requirements set forth in § 178-12 of this chapter.
(14)
An infectious plan to protect employees and the public
from bodily fluids of infectious contamination. A copy of the plan shall be
attached to the application and shall be OSHA (Occupational Safety and Health
Act) compliant.
F.
Before any applicant may be issued a sexually oriented
business employee license, the applicant shall submit on a form to be provided
by the Borough the following information:
(1)
The applicant's name or any other name (including
"stage" names) or aliases used by the individual;
(2)
Age, date and place of birth;
(3)
Height, weight, hair and eye color;
(4)
Present residence address and telephone number;
(5)
Present business address and telephone number;
(6)
Date, issuing state and number of driver's license
or other identification card information;
(7)
Social security number; and
(8)
Proof that the individual is at least 18 years of age.
G.
Attached to the application form for a sexually oriented
business employee license as provided above shall be the following:
(1)
At the time the application is filed, the Borough will
take a color photograph of the applicant clearly showing the applicant's
face, which photograph shall be used to complete the criminal background check
required by this chapter.
(2)
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 of denial, revocation, or suspension shall be attached to the
application.
(3)
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, the date, place and jurisdiction of
each.
(4)
A statement acknowledging that the employee has reviewed
the infections control plan adopted by the sexually oriented business.
H.
Any and all sexually oriented businesses open and in
actual operation within the Borough as of the effective date of this chapter
must apply for the required licenses, and pay any applicable license fees
under this chapter within five months after the effective date of this chapter
and furthermore must come into full compliance with this chapter within six
months after the effective date of this chapter.
I.
To the extent permitted by law, all applications for
licenses required by this chapter, and materials submitted therewith, shall
be maintained by the Borough in a confidential file which shall not be made
available to public, except that all sexually oriented business licenses shall
be available for public inspection.
A.
Upon the filing of a fully completed application form
for a sexually oriented business license or employee license, the Borough
shall issue a temporary license to said applicant which shall entitle the
applicant to operate the sexually oriented business or work as an employee.
The application shall then be referred to the Borough Code Enforcement Officer
and/or his assistant as the licensing administrator for purposes of this chapter
for an investigation to be made on such information as is contained on the
application. The processing and investigation of the application shall be
completed within 30 days of the date that the fully completed application
is filed with the Borough. Any incomplete application shall be returned to
the applicant and the thirty-day period for processing and investigation shall
not commence until a fully completed application has been filed. After the
processing and investigation, the Borough shall issue a permanent license,
unless it is determined by a preponderance of the evidence that one or more
of the following findings is true:
(1)
The applicant has falsely answered a question or request
for information on the application form.
(2)
The applicant is under the age of 18 years.
(3)
The applicant has been convicted of a specified criminal
activity as defined in this chapter.
(4)
The license is to be used for operation of a business
or employment in a business prohibited by local or state law, statute, rule
or regulation, or prohibited by a particular provision of this chapter.
(5)
The applicant has had a sexually oriented business license
or sexually oriented business employee license revoked by the Borough within
one year of the date of the current application.
(6)
The required application, investigation and license fees
have not been paid.
(7)
An applicant's license to operate a sexually oriented
business, issued by any jurisdiction, has been revoked within the preceding
12 months.
(8)
The application demonstrates that the proposed sexually
oriented business is in violation of or is not in compliance with any of the
provisions of this chapter.
B.
If the sexually oriented business license or sexually oriented business employee license is denied, the temporary license previously issued shall remain in effect during all appeals. Denial, nonrenewal, suspension, or revocation of a license issued pursuant to this subsection shall be subject to appeal as set forth in § 178-9.
C.
A license granted pursuant to this section shall be subject to annual renewal upon the written application of the applicant pursuant to § 178-3 of this chapter and a finding by the Borough 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 § 178-5.
D.
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 sexually oriented business or employee and the specific
classification of sexually oriented use for which the license is issued. All
licenses shall be posted in a conspicuous place at or near the entrance of
the sexually oriented business so that they may be easily read at any time.
E.
Applications for licenses required by the Borough under
this chapter shall be processed and either denied or approved within 30 days
after a complete application is filed with the Borough. A letter notifying
the applicant of such denial or approval shall be mailed to the applicant
at the mailing address set forth on the application within 30 days of the
submittal of a complete application. If the Borough fails to render a decision
granting, denying or renewing a license required by this chapter within 30
days after a complete application is filed with the Borough, the permanent
license required by this chapter shall be deemed to have been approved. This
"deemed approval" rule shall apply to both applications for sexually oriented
business licenses and sexually oriented business employee licenses.
F.
A sexually oriented business license shall be issued
for the specific classification of a sexually oriented use permitted by this
chapter and applied for.
A.
Every application for a new sexually oriented business
license shall be accompanied by a five-hundred-dollar nonrefundable application
and investigation fee.
B.
Every application for renewal of an existing sexually
oriented business license shall be accompanied by an annual nonrefundable
renewal license fee of $200 within 30 days of license renewal.
C.
Every application for a sexually oriented business employee
license (whether for a new license or for renewal of an existing license)
shall be accompanied by an annual fifty-dollar nonrefundable application,
investigation and license fee.
D.
All license applications and fees shall be submitted
to the office of Borough Secretary/Treasurer, and, thereafter, the application
shall be forwarded to the Borough Code Enforcement Officer and/or his assistant
designated as licensing administrator for review, investigation and approval
or denial.
E.
The schedule of fees set forth in this section may be
amended by resolution of the Borough.
Subject to the consent of an applicant or licensee, the Borough Code
Enforcement Officer and/or his assistant may inspect the premises of sexually
oriented businesses for purposes of ensuring compliance with this chapter,
during any time it is open for business. In the event that the Borough Code
Enforcement Officer and/or his assistant has probable cause to believe that
a sexually oriented business is operating in violation of this chapter, he
and/or his assistant may inspect the premises of the sexually oriented business
for purposes of ensuring compliance with this chapter during any time it is
open for business. In addition to the foregoing, each applicant of a licensed
sexually oriented business shall file with the Borough, on January 1, May
1, and October 1 of each year, a notarized certification on a form provided
by the Borough that the business and all of its employees are operating in
compliance with this chapter.
A.
Each license issued under this chapter shall expire one year from the date of issuance and may be renewed only by making application as provided in §§ 178-3 and 178-4. Application for renewal shall be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the date of expiration of the license will not be extended.
B.
When the Borough Code Enforcement Officer denies a license
or 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 Borough
Code Enforcement Officer finds that the basis for denial of the renewal license
has been corrected and abated, the applicant shall be granted a license if
at least 90 days have elapsed since the date denial became final.
A.
The Borough Code Enforcement Officer shall suspend a
license for a period not to exceed 30 days if he determines that a licensee
or an employee of a licensee has:
B.
The Borough Code Enforcement Officer shall revoke a license if a cause of suspension in § 178-8A(1) occurs and the license has been suspended within the preceding 12 months.
C.
The Borough Code Enforcement Officer shall revoke a license
if he determines that:
(1)
A licensee gave false or misleading information in the
material submitted during the application process;
(2)
A licensee has knowingly allowed possession, use or sale
of controlled substances on the premises;
(3)
A licensee has knowingly allowed a prostitution on the
premises;
(4)
A licensee knowingly operated the sexually oriented business
during a period of time when the licensee's license was suspended;
(5)
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;
(6)
A licensee has failed to develop and follow an infectious
control plan to protect employees and the public.
D.
When the Borough Code Enforcement Officer denies or revokes
the license, the revocation shall continue for one year, and the licensee
shall not be issued a sexually oriented business license for one year from
the date the revocation became effective. If, however, subsequent to revocation,
the Borough Code Enforcement Officer finds that the basis for the revocation
has been corrected or abated, the applicant shall be granted a license if
at least 90 days have elapsed since the date of the revocation became effective.
A.
All license application denial, renewal, suspension or
revocation decisions shall be sent in writing to the applicant or licensee.
All such decisions which deny, refuse to renew, suspend or revoke a license
shall state specifically the ordinance requirement not met and any other basis
for the decision. After denial of an application, or denial of a renewal of
an application, or after suspension or revocation of any license, the applicant
or licensee may appeal pursuant to procedures of the Local Agency Law (2 Pa.C.S.A.
§ 101, et seq.) to the Borough Council, except as modified herein.
Any such appeal must be filed, in writing, with the Borough Secretary, within
10 days from the date of the mailing of the decision appealed from and shall
specify, in detail, the basis for the appeal. Failure or refusal to file said
appeal or specify the basis of said appeal with the Borough Secretary shall
be deemed a conclusive determination as to the issues or matters addressed
by the written decision. If an appeal is timely filed, the Borough Council
will then hold a Local Agency Law hearing pursuant to 2 Pa.C.S.A. § 101,
et seq., within 20 days from the date the appeal is filed, unless extended
by mutual written agreement of the parties, and will render a written decision
within 10 days from the date such hearing concludes, unless extended by mutual
written agreement of the parties. In the case of a denial of a license or
license renewal, or in the case of a license suspension or revocation, the
licensee may continue to operate to the same extent and in the same manner
as immediately prior to the denial, suspension or revocation until the earlier
of: 1) the expiration of the ten-day appeal period without filing of an appeal;
or 2) the date of a final decision dismissing and/or rejecting any appeal.
If further appeal is filed to the Court of Common Pleas of the county in which
the business is located, the licensee may continue to operate to the same
extent and in the same manner as immediately prior to the denial, suspension
or revocation until the date of a final decision by the court of common pleas
dismissing and/or rejecting any appeal.
B.
Any person aggrieved by a decision of the Borough Council
may appeal to a court of competent jurisdiction pursuant to the Local Agency
Law (2 Pa.C.S.A. § 101, et seq.) and 42 Pa.C.S.A. § 933(a)(2).
The Borough shall, upon filing of such appeal, consent to any request by a
license applicant or licensee to the court to give expedited review of such
appeal. The Borough shall certify any record to the court within 20 days after
the appeal is filed. Following the rejection or dismissal of any appeal by
the court of common pleas, the licensee may no longer continue to operate
without a valid license unless further stayed by the court.
A licensee shall not transfer his/her license to another, nor shall
a licensee operate a sexually oriented business under the authority of a license
at any place other than the address designated in the application.
A person commits a violation of this chapter if that person causes or
permits the operation, establishment, or maintenance of more than one sexually
oriented business in the same building, structure, or portion thereof, or
causes a substantial enlargement of any sexually oriented business in any
building, structure, or portion thereof, containing another sexually oriented
business.
A.
A person who operates or causes to be operated a sexually
oriented business, which exhibits on the premises in a viewing room or booth
of less than 150 square feet of floor space a film, videocassette, live entertainment,
or other video reproduction which depicts specified sexual activities or specified
anatomical areas, shall comply with the following requirements:
(1)
Upon application for a sexually oriented business 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 Borough may waive the foregoing diagram for
renewal applications if the applicant adopts a diagram that was previously
submitted and certifies that the configuration of the premises has not been
altered since it was prepared.
(2)
The application shall be sworn to be true and correct
by the applicant.
(3)
No alteration in the configuration or location of a manager's
station may be made without the prior approval of the Borough.
(4)
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.
(5)
The interior of the premises shall be configured in such
a manner that there is an unobstructed view from a manager's station
of every area of the premises to which any patron is permitted access for
any purpose, excluding rest rooms. Rest rooms may not contain video reproduction
equipment. If the premises has two or more manager's stations designated,
then the interior of the premises shall be configured in such a manner that
there is an unobstructed view of each area of the premises to which any patron
is permitted access for any purpose from at least one of the manager's
stations. The view required in this subsection must be by direct line of sight
from the manager's station.
(6)
It shall be the duty of the licensees to ensure that the view area specified in Subsection A(5) 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(1) of this section.
(7)
No viewing room may be occupied by more than one person
at any time.
(8)
The premises shall be equipped with overhead lighting
fixtures of sufficient intensity to illuminate every place to which patrons
are permitted access at an illumination of not less than five footcandles
as measured at the floor level.
(9)
It shall be the duty of the licensees to ensure that
the illumination described above is maintained at all times that any patron
is present in the premises.
(10)
No license shall allow openings of any kind to exist
between viewing rooms or booths.
(11)
No person shall make or attempt to make an opening of
any kind between viewing booths or rooms.
(12)
The licensee shall, during each business day, regularly
inspect the walls between the viewing booths to determine if any openings
or holes exist.
(13)
The licensee shall cause all floor coverings in viewing
booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
(14)
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.
(15)
A licensee shall brief all employees as to the approved
infectious control plan and OSHA regulations before and during employment
at intervals of at least six months.
A.
It shall be a violation of this chapter for a person
to knowingly or intentionally in a sexually oriented business appear in a
seminude or nude condition unless the person is an employee, who while nude
or seminude, shall be at least two feet from any patron or customer and on
a stage at least two feet from 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 and/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 rest room 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.
It shall be a violation of this chapter for a person
to knowingly and intentionally, in a public place: 1.) engage in sexual intercourse
or to engage in deviate sexual intercourse as defined by the Pennsylvania
Crimes Code; or 2.) fondle the genitals of himself, herself or another person.
(1)
For purposes of this chapter, "public place" includes
all outdoor areas owned by or open to the general public, and all buildings
and enclosed places owned by or open to the general public, including but
not limited to places of entertainment, taverns, restaurants, clubs, theaters,
dance halls, banquet halls, party rooms or halls limited to specific members,
and party rooms or halls restricted to adults or to patrons invited to attend,
whether or not an admission charge is levied.
(2)
This section shall not apply to:
(a)
Any child under 10 years of age; or
(b)
Any individual exposing a breast in the process of breast
feeding an infant under two years of age; or
(c)
The exercise of free speech or free expression in the
form of artistic and theatrical performances. It is the intention of the Borough
that this section be construed, enforced and interpreted in such a manner
as will cause the least possible infringement of the constitutional rights
of free speech, free expression, due process, equal protection or other fundamental
rights.
A person commits a violation of this chapter if the person knowingly
allows a person under the age of 18 years on the premises of a sexually oriented
business.
No sexually oriented business shall be open for business before 8:00
a.m., Monday through Saturday or after 10:00 p.m., Monday through Saturday.
A sexually oriented business shall be closed at all times on Sundays and legal
federal or state recognized holidays.
The Borough shall enforce any violation of this chapter as a summary
offense through an enforcement proceeding before a District Justice pursuant
to 53 P.S. § 48301 et seq. Any person, partnership or corporation
who or which has violated any provision of this chapter shall, upon being
convicted, pay a fine of not more than $1,000 for each violation, plus all
court costs and reasonable attorney's fees incurred by the Borough in
the enforcement proceedings and any and all appeals thereof. A separate violation
and fine shall arise for each day or portion thereof in which a violation
is found to exist or for each section of the chapter which is found to have
been violated. Further, the Borough may enforce any violation of this chapter
through an equity action brought in the Court of Common Pleas of the County
where the Borough is situate seeking, inter alia, injunctive relief.
