[HISTORY: Adopted by the Borough Council
of the Borough of Emsworth 5-13-1998 by Ord. No. 900. Amendments noted where
applicable.]
GENERAL REFERENCES
Zoning — See Ch. 245.
It is the purpose of this chapter to regulate
sexually oriented businesses, to promote the health, safety and general
welfare of the citizens of the Borough, and to establish reasonable
and uniform regulations regarding sexually oriented businesses within
the Borough. The provisions of this chapter have neither the purpose
nor the effect of imposing a limitation or restriction on the content
of any communicative materials, including sexually oriented materials.
Similarly, it is not the intent nor effect of this chapter to restrict
or deny access by adults to sexually oriented materials protected
by the First Amendment, or to deny access by the distributors and
exhibitors of sexually oriented entertainment to their intended market.
Neither is it the intent nor effect of this chapter to condone or
legitimize the distribution of obscene material.
As used in this chapter, the following terms
shall have the meanings indicated:
Any place to which the public is permitted or invited wherein
coin-operated or slug-operated electronically, electrically or mechanically
controlled still or motion machines, projectors, or other image-producing
devices are maintained to show images to five or fewer persons per
machine at any one time where the images so displayed by distinguished
or characterized by the depicting or describing of specified sexual
activities or specified anatomical areas.
A commercial establishment which, as one of
its principal business 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
depict or describe specified sexual activities or specified anatomical
areas.
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
or adult video store. Such other business purposes will not serve
to exempt such commercial establishment from being categorized as
an adult bookstore or adult video store so long as one of its principal
business purposes is the offering for sale or rental for consideration
the specified materials which depict or describe specified sexual
activities or specified anatomical areas.
A nightclub, bar, restaurant or similar commercial establishment
which regularly features:
Persons who appear in the state of nudity; or
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.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any
form of consideration and provides patrons with closed-circuit television
transmissions, films, motion pictures, videocassettes, slides or other
photographic reproductions which are categorized by the depiction
or description of specified sexual activities or specified anatomical
areas; and has a sign visible from the public right-of-way which advertises
the availability of this adult type of photographic reproductions.
Offers any single sleeping room for rent four
or more times in one calendar day during five or more calendar days
in any continuous thirty-day period.
A commercial establishment where, for any form of consideration,
films, motion pictures, 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, concert hall, auditorium or similar commercial
establishment which regularly features persons who appear in a state
of nudity or live performances which are characterized by the exposure
of specified sexual activities or specified anatomical areas.
A person who, for consideration, agrees or offers to act
as a companion, guide or date for another person, or who agrees or
offers to privately model lingerie or to privately perform a striptease
for another person.
A person or business association who furnishes, offers to
furnish or advertises to furnish escorts as one of its primary business
purposes for a fee, tip or other consideration.
The Borough of Emsworth.
Any place where a person who appears in a state of nudity
or displays specified anatomical areas is provided to be observed,
sketched, drawn, painted, sculptured, photographed or similarly depicted
by other persons who pay money or any form of consideration.
The appearance of a human bare buttock, anus, male genitals,
female genitals or female breast.
Any individual, proprietorship, partnership, corporation,
association or other legal entity.
A state of dress in which clothing covers no more than the
genitals, pubic region and areola of the female breast, as well as
portions of the body covered by supporting straps or devices.
A business or commercial enterprise that, as one of its primary
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore or adult video bookstore
or adult video store, adult cabaret, adult motel, adult motion-picture
theater, adult theater, escort agency, nude model studio or sexual
encounter center.
The male genitals in a state of sexual arousal and/or the
vulva or more intimate parts of the female genitals.
Includes any of the following:
The increase in floor areas occupied by the business by more
than 25%, as the floor areas exist on the date of enactment of this
chapter.
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.
The establishment of a trust, gift or other
similar legal device which transfers the ownership or control of the
business, except for transfer by bequest or other operation of law
upon the death of the person possessing the ownership or control.
Sexually oriented businesses are classified
as follows:
A.
Any person who operates a sexually oriented business
without a valid permit issued by the Borough is guilty of a violation
of this chapter.
B.
An application for a permit to operate a sexually
oriented business must be made on a form provided by the Zoning Officer.
The application must be accompanied by a sketch or diagram showing
the floor plan and plot plan configuration of the premises, including
a statement of total floor space occupied by the business. The sketch
or diagram need not be professionally prepared but must be drawn to
a designated scale or drawn with marked dimensions of the interior
of the premises to an accuracy of plus or minus six inches.
C.
The applicant must be qualified according to the provisions
of this chapter and the premises must be inspected and found to be
in compliance with the law by the Zoning Officer and the Fire Marshal.
D.
If a person who wishes to operate a sexually oriented
business is an individual, he must sign the application for a permit
as applicant. If a person who wishes to operate a sexually oriented
business is other than an individual, each individual who has a 10%
or greater interest in the business must sign the application for
a permit as applicant. If a corporation is listed as owner of a sexually
oriented business or as the entity which wishes to operate such a
business, each individual having a direct or indirect interest of
10% or greater in the corporation must sign the application for a
permit as applicant.
E.
The fact that a person possesses other types of Borough
permits does not exempt the person from the requirement of obtaining
a sexually oriented business permit.
A.
The Code Enforcement Officer or other designated officer
of the Borough shall approve the issuance of a permit to an applicant
within 30 days after receipt of an application unless he finds one
or more of the following to be true:
(1)
An applicant is under 18 years of age.
(2)
An applicant or an applicant's spouse is overdue in
his payment to the Borough of taxes, fees, fines or penalties assessed
against him or imposed upon him in relation to a sexually oriented
business.
(3)
An applicant has failed to provide information reasonably
necessary for issuance of the permit or has falsely answered a question
or request for information on the application form.
(4)
An applicant is residing with a person who has been
denied a permit by the Borough to operate a sexually oriented business
within the preceding 12 months, or residing with a person whose license
to operate a sexually oriented business has been revoked within the
preceding 12 months.
(5)
The premises to be used for the sexually oriented
business has been reviewed and has been disapproved by either the
Zoning Officer or the Fire Marshal as not being in compliance with
applicable laws and ordinances.
(6)
The permit fee required by this chapter has not been
paid.
(7)
An applicant of the proposed establishment is in violation
of or is not in compliance with any of the provisions of this chapter.
(8)
An individual applicant or any individual holding
a direct or indirect interest of more than 10% of a corporate applicant,
or any of the officers and directors of a corporate applicant, if
the application is a partnership; or the manager or other person in
charge of the operation of the applicant's business, has or have been
convicted of an offense involving sexual misconduct within the Commonwealth
of Pennsylvania including, but not limited to, prostitution, obscenity
and possession of child pornography, or convicted of any offense in
any jurisdiction other than the Commonwealth of Pennsylvania that
would have constituted an offense involving sexual misconduct if committed
within the Commonwealth of Pennsylvania. In order for approval to
be denied pursuant to this subsection, the person's or persons' conviction
or release in connection with the sexual misconduct offense must have
occurred within two years of the date of application in the event
of a misdemeanor and within five years of the date of application
in the event of a felony.
B.
The permit, if granted, shall state on its face the
name of the person or persons to whom it is granted, the expiration
date, and the address of the sexually oriented business. The permit
shall be posted in a conspicuous place at or near the entrance to
the sexually oriented business so that it may be easily read at any
time.
C.
The Zoning Officer and Fire Marshal shall complete
their certification that the premises is in compliance or not in compliance
within 20 days of receipt of the application by the Zoning Officer.
The certification shall be promptly presented by the Zoning Officer.
The annual fee for a sexually oriented business
permit is $500. Said fee may hereafter be amended by ordinance or
resolution of the Borough Council of the Borough of Emsworth.
A.
An applicant, or permittee, shall permit representatives
of the Police Department, Fire Marshal, Zoning Officer or other municipal
departments or agencies to inspect the premises of a sexually oriented
business for the purpose of insuring compliance with the law, at any
time that the sexually oriented business is occupied or open for business.
B.
A person who operates a sexually oriented business,
or his agent or employee, violates this chapter if he refuses to permit
such lawful inspection of the premises at any time it is occupied
or open or business.
A.
Each permit shall expire one year from the date of issuance and may be renewed only by making application as provided in § 54-5 hereof. Application for renewal should be made at least 30 days before the expiration date and, when made fewer than 30 days before the expiration date, the pendency of the application will not prevent the expiration of the permit.
B.
If the Zoning Officer denies renewal of a license,
the applicant shall not be issued a permit for one year from the date
of denial, except that, after 90 days have elapsed since the date
of denial, the applicant may be granted a permit if the Zoning Officer
finds that the basis for denial of the renewal permit has been corrected
or abated.
The Zoning Officer shall suspend a permit for
a period not to exceed 30 days if he determines that a permittee or
an employee of a permittee has:
A.
Violated or is not in compliance with any section
of this chapter.
B.
Engaged in excessive use of alcoholic beverages while
on the sexually oriented business premises (or engaged in the use
of illegal narcotics).
C.
Refused to allow an inspection of the sexually oriented
business premises as authorized by this chapter.
D.
Knowingly permitted gambling by any person on the
sexually oriented business premises.
E.
Failed to man managers' stations and/or maintain viewing
rooms as set forth hereinafter.
A.
The Zoning Officer shall revoke a permit if a cause of suspension set forth in § 54-9 occurs and the permit has been suspended within the preceding 12 months.
B.
The Zoning Officer shall revoke a permit if he determines
that:
(2)
A permittee gave false or misleading information in
the material submitted to the Borough during the application process.
(3)
A permittee or an employee of a permittee has knowingly
allowed possession, use or sale of controlled substances on the premises.
(4)
A permittee or an employee of a permittee has knowingly
allowed prostitution on the premises.
(5)
A permittee or an employee of a permittee knowingly
operated the sexually oriented business during a period of time when
the permittee's permit was suspended.
(6)
A permittee or an employee of a permittee has knowingly
allowed any act of sexual intercourse, sodomy, oral copulation, masturbation
or other explicit sexual conduct to occur in or on the permitted premises.
(7)
A permittee is delinquent in payment to the Borough
or state of any taxes or fees relating to sexually oriented business.
C.
When the Zoning Officer revokes a permit, the revocation shall continue for one year, and the permittee shall not be issued a sexually oriented business permit for one year from the date revocation became effective, except that if the revocation is pursuant to Subsection B(1) above, the revocation shall be effective for two years in the event of a misdemeanor or five years in the case of a felony.
D.
After denial of an application or denial of a renewal
of an application, or suspension or revocation of a permit, the applicant
or licensee or permittee shall have the right to appeal said action
and to seek prompt judicial review of such administrative action in
any court of competent jurisdiction.
A permittee shall not transfer his permit to
another person. A permittee shall not operate a sexually oriented
business under the authority of a permit at any place other than the
address designated in the application.
A.
A person is guilty of a violation of this chapter
if he operates a sexually oriented business outside of the district
in which a sexually oriented business shall be a permitted use. Sexually
oriented businesses as defined herein shall be permitted in the L-I
District (Light Industrial District), exclusively, between Memorial
Drive and Atlantic Avenue.
[Amended 5-8-2002 by Ord. No. 926; 7-14-2010 by Ord. No.
975]
B.
A person is guilty of a violation of this chapter
if he operates or causes to be operated a sexually oriented business
within 1,500 feet of:
C.
A person is guilty of a violation of this chapter
if he causes or permits the operation, establishment, substantial
enlargement or transfer of ownership or control of a sexually oriented
business within 5,000 feet of another sexually oriented business.
D.
A person is guilty of a violation of this chapter
if he causes or permits the operation, establishment or maintenance
or more than one sexually oriented business in the same building,
structure or portion thereof; or the increase of floor areas of any
sexually oriented business in any building, structure or portion thereof
containing another sexually oriented business.
E.
For the purposes of this chapter, measurement shall
be made in a straight line, without regard to intervening structures
or objects, from the nearest portion of the building or structure
used as a part of the premises where a sexually oriented business
is conducted, to the nearest property line of the premises of a church,
public or private pre-elementary, elementary or secondary school,
public library, child-care facility or nursery school; or to the nearest
boundary of an affected public park.
F.
For purposes of Subsection C of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
G.
Any sexually oriented business lawfully operating on the date of enactment of this chapter that is in violation of Subsections A through F of this section shall be deemed a nonconforming use. Such nonconforming use shall not be increased, enlarged, extended or altered, except that the use may be changed to a conforming use. In the event that two or more sexually oriented businesses are within 5,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later-established business is nonconforming.
H.
A sexually oriented business lawfully operating as
a conforming use is not rendered a nonconforming use by the location,
subsequent to the grant or renewal of the sexually oriented business
permit, of a church, public or private pre-elementary, elementary
or secondary school, public library, child-care facility, nursery
school or other child-oriented business, or public park within 1,000
feet of the sexually oriented business. This provision applies only
to the renewal of a valid permit and does not apply when an application
for a permit is submitted after a permit has expired or has been revoked.
It is a defense to prosecution under § 54-5 that a person appearing in a state of nudity did so in a modeling class operated:
A.
By a proprietary school, licensed by the Commonwealth
of Pennsylvania, or a college, junior college or university supported
entirely or partly by taxation.
B.
By a private college or university which maintains
and operates educational programs in which credits are transferable
to a college, junior college or university supported entirely or partly
by taxation.
C.
In a structure:
(1)
Which has no sign visible from the exterior of the
structure and no other advertising that indicates a nude person is
available for viewing.
(2)
Where, in order to participate in a class, a student
must enroll at least three days in advance of the class.
(3)
Where no more than one nude model is on the premises
at any one time.
A person, corporation or other entity who operates
or causes to be operated a sexually oriented business without a valid
permit or in violation of this chapter is subject to an action in
equity or a suit for injunction as well as citations for violations
of this chapter pursuant hereto. Upon conviction thereof by any District
Justice or other court of competent jurisdiction, he shall be sentenced
to pay a fine of not more than $1,000, plus costs of prosecution,
and, in default of payment of such fine and costs, to imprisonment
not to exceed 30 days; and whoever fails to correct any violation
within 90 days from the date of said conviction shall be subject to
revocation of any and all applicable permits and approvals issued
by the Borough.
Any existing business that would qualify under
this chapter shall have one month from the time of enactment to come
into compliance with this chapter.
Any sexually oriented business may only conduct
operations between the hours of 8:00 a.m. to 1:00 a.m. on Mondays
through Saturdays, and between the hours of 12:00 noon to 1:00 a.m.
on Sundays, and at no other times.
