[HISTORY: Adopted by the Board of Supervisors of the Township of Hempfield 1-29-2001 by Ord. No. 2001-4. Amendments noted where applicable.]
Pursuant to the authority granted in the Second Class Township Code to promote and secure the health, cleanliness, comfort and safety of the citizens of Hempfield Township, to regulate and inspect the use and occupancy of public buildings, to regulate places of public entertainment, amusement and recreation and to prevent and prohibit public nuisances due to adverse secondary effects, the Township of Hempfield (hereinafter "Township") 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.
The Board of Supervisors 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.
The Board of Supervisors 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 Board 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 Board 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 Board 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.
Legislative findings. The Board of Supervisors finds:
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.
Based on evidence concerning the adverse secondary effects of adult uses on the community presented in depositions and hearings conducted by the United States District Court for the Middle District of Pennsylvania, Case No. 3:CV99-1801 (Judge Munley), and by the United States District Court for the Western District of Pennsylvania, Case No. 98-1140 (Judge Lancaster); and in reports made available to the Township 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 Township finds:
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.
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.
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.
Offering and providing such space encourages such activities, which creates unhealthy conditions.
Persons frequent certain adult theaters, adult arcades and other sexually oriented businesses for the purpose of engaging in sex within the premises of such sexually oriented businesses.
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.
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.
According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.
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.
Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view adult-oriented films.
Numerous studies have indicated that sexually oriented businesses have a substantial negative impact on property values and cause neighborhood blight.
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.
Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns.
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 Township. 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.
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.
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.
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.
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.
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.
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.
The general welfare, health and safety of the citizens of the Township will be promoted by the enactment of this chapter.
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.
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.
The continued unregulated operation of such sexually oriented businesses would be detrimental to the general health, safety and welfare of citizens of Hempfield Township.
As used in this chapter the following words and phrases shall have the meanings indicated unless the context clearly indicates a different meaning:
- ADULT ARCADE
- 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. 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:
- (1) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes 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
- (2) Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities.
- B. 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.
- ADULT CABARET
- A nightclub, bar, restaurant or similar commercial establishment which regularly features:
- A. Persons who appear in a state of nudity or seminudity; or
- B. Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
- C. Films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- A. 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; or
- B. A live performance, display or dance of any type, which has, as 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
- C. Films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT MOTION-PICTURE THEATER
- A commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- A. The term includes, without limitations, the following establishments when operated for profit, whether direct or indirect:
- (1) Adult bookstores;
- (2) Adult motion-picture theaters;
- (3) Adult mini-motion-picture theaters;
- (4) Any premises to which the public, patrons. or members are invited or admitted and which are so physically arranged as to provide booths, cubicles, rooms, studios, compartments or stalls separate from the common areas of the premises for the purpose of viewing sexually oriented motion pictures, or where an entertainer provides adult entertainment to a member of the public, a patron, or a member; and
- (5) An adult entertainment studio or any premises that are physically arranged and used as such, whether advertised or represented as an adult entertainment studio, rap studio, exotic dance studio, encounter studio, sensitivity studio, modeling studio, or any other term of like import.
- B. The terms "booths, cubicles, rooms, studios, compartments or stalls," for purposes of defining sexually oriented establishments, does not mean enclosures which are private offices used by the owner, manager, or persons employed on the premises for attending to the tasks of their employment and which are not held out to the public for the purpose of viewing motion pictures or other entertainment for a fee and which are not open to any persons other than employees.
- ADULT THEATER
- 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.
- ESCORT AGENCY
- 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.
- ESTABLISHMENT or ESTABLISH
- Includes any of the following:
- A. The opening or commencement of any sexually oriented business as a new business;
- B. The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
- C. The addition of any sexually oriented business or sexually oriented use to any other existing sexually oriented business or sexually oriented use; or
- D. The relocation of any 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:
- A. The character and content of any material or performance described herein which is reasonably susceptible of examination by a licensee or persons;
- B. 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.
- 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.
- Any method of pressure or friction against, or stroking, kneading,
rubbing, tapping, pounding, vibrating, or stimulating of the external parts
of the human body with hands or with the aid of any mechanical or electrical
apparatus or appliance with or without such supplementary aides as rubbing
alcohol, liniments, antiseptics, oils, powder, creams, lotions, ointments,
or such other similar preparations commonly used in the practice of massage,
under such circumstances that it is reasonably expected that the person to
whom the treatment is provided or some third person on his or her behalf will
pay money or give any other consideration or gratuity therefor.[Amended 6-28-2004 by Ord. No. 2004-14]
- MASSAGE PARLOR
- A commercial enterprise whose primary business emphasis is the administration
of sexually oriented massages to patrons by employees. Where is exempt from
this definition hospitals, nursing homes, sanitariums, or persons holding
an unrevoked certificate to practice the healing arts under the laws of the
Commonwealth of Pennsylvania, licensed physical therapists of the Commonwealth
of Pennsylvania, chiropractors licensed in the Commonwealth of Pennsylvania,
physicians, osteopaths, chiropodists, or podiatrists, registered nurses and
licensed practical nurses who are licensed to practice in the Commonwealth
of Pennsylvania.[Added 6-28-2004 by Ord. No. 2004-14]
- NUDE MODEL STUDIO
- Any place where a person appears seminude, in a state of nudity or 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 Commonwealth 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:
- A. That has no sign visible from the exterior of the structure and no other advertising that indicates a nude or seminude person is available for viewing; and
- 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 or seminude model is on the premises at one time.
- NUDITY or A STATE OF NUDITY
- 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.
- SEMINUDE or IN A SEMINUDE CONDITION
- The state of dress in which clothing partially or opaquely covers specified anatomical areas.
- SEXUAL ENCOUNTER CENTER
- A business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:
- SEXUALLY ORIENTED BUSINESS
- An adult arcade, adult bookstore, adult novelty store, adult video
store, adult cabaret, adult motion-picture theater, adult theater, escort
agency, massage parlor, nude model studio, sexual encounter center, or other
commercial establishment where adult entertainment is presented for money
or other forms of consideration, or where viewing booths as the types specifically
referred to herein are present.[Amended 6-28-2004 by Ord. No. 2004-14]
- SPECIFIED ANATOMICAL AREAS
- 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.
- SPECIFIED CRIMINAL ACTIVITY
- Any of the following offenses:
- A. 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; gaming/gambling; or distribution of a controlled substance; rape, fraud, robbery, perjury, corruption of minors, firearms offenses or any similar offenses to those described above under the criminal or penal code of other states or countries;
- B. 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 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.
- C. 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.
- SPECIFIED SEXUAL ACTIVITIES
- Any of the following:
- SUBSTANTIAL ENLARGEMENT OF A SEXUALLY ORIENTED BUSINESS
- The increase in floor areas occupied by the business by more than 25%, as the floor areas exist on the date of licensing. Undisclosed enlargements or incremental enlargements shall be calculated as cumulative enlargements regardless of the number of license issues.
- TRANSFER OF OWNERSHIP OR CONTROL OF AN ADULT ENTERTAINMENT BUSINESS
- Includes any of the following:
- A. The sale, lease or sublease of the business;
- B. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means; or
- C. 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.
- VIEWING BOOTHS
- Booths, stalls, partitioned portions of a room, rooms or other enclosures which are available for viewing:
- A. Films, movies, videos or visual reproductions of any kind depicting or describing specified sexual activities or specified anatomical areas; or
- B. 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.
It is unlawful:
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 Township pursuant to this chapter;
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 Township pursuant to this chapter;
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;
Beginning on the 180th day after enactment of this chapter, for any person to continue to operate a sexually oriented business already in operation on the effective date of this chapter without a valid sexually oriented business license pursuant to this chapter;
Beginning on the 180th day after the effective date of this chapter, for any person operating a sexually oriented business 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 Township pursuant to this chapter;
Beginning on the 180th day after the effective date of this chapter, for any person working as an employee of a sexually oriented business on the effective date of this chapter to continue such employment without having secured a sexually oriented business employee license pursuant to this chapter.
Application for a business or employee license must be made on a form provided by the Township. 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 Township Code Enforcement Officer and/or his assistant.
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 Township to determine whether the applicant meets the qualifications established in this chapter.
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 ten-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.
The completed application for a sexually oriented business license shall contain the following information and shall be accompanied by the following documents:
If the applicant is:
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.
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.
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.
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, the date, place and jurisdiction of each.
Whether the applicant, or a person residing with the applicant, has had a previous license under this chapter or other similar sexually oriented business ordinance from another municipality, county or jurisdiction; whether said license is or has ever 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 the denial, suspension or revocation, and whether the applicant or a 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 sexually oriented business for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revocation.
Whether the applicant or a person residing with 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.
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.
The location of the proposed sexually oriented business, including a legal description of the property, street address and telephone number(s), if any.
The applicant's mailing address and residential address.
A recent photograph of the applicant(s).
The applicant's driver's permit number, social security number and/or his/her state of federally issued tax identification number.
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.
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 § 68-12 of this chapter.
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 & Health Act) compliant.
Before any applicant may be issued a sexually oriented business employee license, the applicant shall submit on a form to be provided by the Township the following information:
The applicant's name or any other name (including "stage" names) or aliases used by the individual;
Age; date and place of birth;
Height, weight, hair and eye color;
Present residence address and telephone number;
Present business address and telephone number;
Date, issuing state and number of driver's license or other identification card information;
Social security number; and
Proof that the individual is at least 18 years of age.
Attached to the application form for a sexually oriented business employee license as provided above shall be the following:
At the time the application is filed, the Township 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.
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.
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.
A statement acknowledging that the employee has reviewed the infections control plan adopted by the sexually oriented business.
Any and all sexually oriented businesses in operation within the Township, 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.
To the extent permitted by law, all applications for licenses required by this chapter, and materials submitted therewith, shall be maintained by the Township 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.
Upon the filing of a fully completed application form for a sexually oriented business license or employee license, the Township 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 Township 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 Township. 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 Township 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:
The applicant has falsely answered a question or request for information on the application form.
The applicant is under the age of 18 years.
The applicant has been convicted of a specified criminal activity as defined in this chapter.
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.
The applicant has had a sexually oriented business license or sexually oriented business employee license revoked by the Township within one year of the date of the current application.
The required application, investigation and license fees have not been paid.
An applicant's license to operate a sexually oriented business issued by any jurisdiction has been revoked within the preceding 12 months.
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.
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 § 68-9.
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 § 68-5.
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.
Applications for license required by the Township under this chapter shall be processed and either denied or approved within 30 days after a complete application is filed with the Township. A letter notifying the applicant of such denial or approval shall be mailed to the applicant within 30 days of the submittal of a complete application. If the Township 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 Township, 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.
A sexually oriented business license shall be issued for the specific classification of a sexually oriented use permitted by this chapter and applied for.
Every application for a new sexually oriented business license shall be accompanied by a nonrefundable application and investigation fee of $500.
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.
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 nonrefundable application, investigation and license fee of $50.
All license applications and fees shall be submitted to the office of Township Secretary/Treasurer, and, thereafter, the application shall be forwarded to the Township Code Enforcement Officer and/or his assistant designated as licensing administrator for review, investigation and approval or denial.
The schedule of fees set forth in this section may be amended by resolution of the Township.
Subject to the consent of an applicant or licensee, the Township 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 Township 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 Township on January 1, May 1 and October 1 of each year a notarized certification on a form provided by the Township that the business and all of its employees are operating in compliance with this chapter.
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 § 68-3. 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.
When the Township Code Enforcement Officer 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 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.
The Township 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 licensee has violated or is not in compliance with any provision of this chapter.
The Township Code Enforcement Officer shall revoke a license if a cause of suspension in Subsection A(1) occurs and the license has been suspended within the preceding 12 months.
The Township Code Enforcement Officer shall revoke a license if he determines that:
A licensee gave false or misleading information in the material submitted during the application process;
A licensee has knowingly allowed possession, use or sale of controlled substances on the premises;
A licensee has knowingly allowed prostitution on the premises;
A licensee knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended;
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;
A licensee is delinquent in payment to the Township, county or state for any taxes or fees past due;
A licensee has failed to develop and follow an infectious control plan to protect employees and the public; or
A licensee's business is not operating for a period of 45 days or the business location on the license is unoccupied for 45 days.
When the Township Code Enforcement Officer 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 Township 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 the revocation became effective.
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 Township Board of Supervisors, except as modified herein. Any such appeal must be filed, in writing, with the Township 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 Township 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 Township Board of Supervisors 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 and will render a written decision within 10 days from the date such hearing concludes. 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 as immediately prior to the suspension or revocation until the earlier of:
Any person aggrieved by a decision of the Township Board of Supervisors 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 Township 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 Township shall certify any record to the court within 20 days after the appeal is filed. 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 as immediately prior to the suspension or revocation until the earlier of:
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.
Any business regulated by this chapter shall be required to meet the Township's ordinances addressing enlargements; and also required to relicense this business prior to a significant enlargement.
A person who operates or causes to be operated a sexually oriented business, which exhibits on the premises in a viewing room 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:
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 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.
The application shall be sworn to be true and correct by the applicant.
No alteration in the configuration or location of a manager's station may be made without the prior approval of the Township.
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.
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
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.
No viewing room may be occupied by more than one person at any time.
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.
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.
No licensee shall allow openings of any kind to exist between viewing rooms or booths.
No person shall make or attempt to make an opening of any kind between viewing booths or rooms.
The licensee shall, during each business day, regularly inspect the walls between the viewing booths to determine if any openings or holes exist.
The licensee shall cause all floor coverings in viewing booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
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 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.
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 nude model studio shall not employ any person under the age of 18 years.
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.
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.
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.
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. This section shall not apply to:
Any child 10 years of age; or
Any individual exposing a breast in the process of breastfeeding an infant under two years of age; or
The exercise of free speech or free expression in the form of artistic and theatrical performances. It is the intention of the Township 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 Township shall enforce any violation of this chapter through a civil enforcement proceeding before a District Justice. The civil enforcement proceeding shall be initiated by complaint or by such other means as may be provided by the Pennsylvania Rules of Civil Procedure. Any person, partnership or corporation who or which has violated any provision of this chapter shall, upon being found liable therefor in a civil enforcement proceeding commenced by the Township, pay a judgment of not more than $500 for each violation, plus all court costs and reasonable attorneys fees incurred by the Township in the enforcement proceedings. In any case where a penalty for a violation of this chapter has not been timely paid and the person upon whom the penalty was imposed is found to have been liable therefor in civil proceedings, the violator shall be liable for the penalty imposed, including additional daily penalties for continuing violations, plus court costs and reasonable attorneys fees incurred by the Township in the enforcement proceedings. A separate violation shall arise for each day or portion thereof in which a violation is found to exist or for each section of this chapter which is found to have been violated. Additionally, the Township shall be exempt from the payment of costs in any civil case brought to enforce an ordinance in accordance with this section. Further, the Township or any Township resident or Township property owner may enforce any violation of this chapter through an equity action brought in the Court of Common Pleas of the county where the Township is situate. The Court, in its discretion, may mold the appropriate equitable remedy by way of a preliminary or a permanent injunction in order to cause compliance with this chapter, in addition to making appropriate fines, penalties, damages and awarding costs as may be appropriate by this section.