[HISTORY: Adopted by the Board of Commissioners
of the Township of Lower Pottsgrove as indicated in article histories.
Amendments noted where applicable.]
[Adopted 4-20-2000 by Ord. No. 222 (Ch.
6, Part 4, of the 1995 Code)]
Pursuant to the authority granted in the First
Class Township Code of the Commonwealth of Pennsylvania to prohibit
nuisances, to promote the health, cleanliness, comfort and safety
of the citizens of Lower Pottsgrove Township and the authority of
political subdivisions of the Commonwealth of Pennsylvania to enact
local ordinances to regulate, inter alia, the sale, distribution,
display and exhibition of and activities concerning obscene and other
sexual material as provided for in 18 Pa.C.S.A. § 5903(k)
and as upheld by the United States District Court for the Eastern
District of Pennsylvania, in Brown v. Pornography Commission of Lower
Southampton Township, 620 F. Supp. 1199 (1985), the Township of Lower
Pottsgrove enacted the following article.
A.
Offenses defined. No person knowing the obscene character
of the materials or performances involved shall, within the Township
of Lower Pottsgrove:
(1)
Display or cause or permit the display of any explicit sexual materials as defined in Subsection C in or on any window, showcase, newsstand, display rack, billboard, display board, viewing screen, motion picture marquee or similar place in such manner that the display is visible from any public street, highway, sidewalk, transportation facility or other public thoroughfare, or in any business or commercial establishment where minors as a part of the general public or otherwise are or will probably be exposed to view all or any part of such materials.
(2)
Sell, lend, distribute, exhibit, give away or show
any obscene materials to any person 18 years of age or older or offer
to sell, lend, distribute, exhibit or give away or show or have in
his possession with intent to sell, lend, distribute, exhibit or give
away or show any obscene materials to any person 18 years of age or
older or knowingly advertise any obscene materials in any manner.
(3)
Design, copy, draw, photograph, print, utter, publish
or in any manner manufacture or prepare any obscene materials.
(4)
Write, print, publish, utter or cause to be written,
printed, published or uttered any advertisement or notice of any kind
giving information, directly or indirectly, stating or purporting
to state where, how, from whom or by what means any obscene materials
can be purchased, obtained or had.
(5)
Produce, present or direct any obscene performance
or participate in a portion thereof that is obscene or that contributes
to its obscenity.
(6)
Hire, employ, use or permit any minor child to do
or assist in doing any act or thing mentioned in this subsection.
B.
COMMUNITY
KNOWING
MATERIAL
NUDE
OBSCENE
(1)
(2)
(3)
PERFORMANCE
SADOMASOCHISTIC ABUSE
SEXUAL CONDUCT
TRANSPORTATION FACILITY
Definitions. As used in this article, the following
words and phrases shall have the meanings given to them in this subsection:
For the purpose of applying the "contemporary community standards"
in this article, "community" means the state.
Having general knowledge of or reason to know or a belief
or ground for belief which warrants further inspection or inquiry
of the character and content of any material or performance described
therein which is reasonably susceptible of examination by the person
charged with violation of this article.
Any literature, including any book, magazine, pamphlet, newspaper,
story paper, bumper sticker, comic book or writing; any figure, visual
representation or image, including any drawing, photograph, picture,
videotape or motion picture.
The showing of human male or female genitals, pubic area
or buttocks with less than a fully opaque covering or showing the
female breast with less than a fully opaque covering of any portion
thereof below the top of the nipple.
Any material or performance if:
The average person applying contemporary community
standards would find that the subject matter taken as a whole appeals
to the prurient interest.
The subject matter depicts or describes in a
patently offensive way, sexual conduct of a type described in this
article.
The subject matter, taken as a whole, lacks
serious literary, artistic, political, educational or scientific value.
Any play, dance or other live exhibition performed before
an audience.
In a sexual context, flagellation or torture by or upon a
person who is nude or clad in undergarments, a mask or in a bizarre
costume or the condition of being fettered, bound or otherwise physically
restrained on the part of one who is nude or so clothed.
Patently offensive representations or descriptions of ultimate
sexual acts, normal or perverted, actual or simulated, including sexual
intercourse, anal or oral sodomy and sexual bestiality, and patently
offensive representations or descriptions of masturbation, excretory
functions, sadomasochistic abuse and lewd exhibitions of the genitals.
Any conveyance, premises or place used for or in connection
with public passenger transportation, whether by air, rail, motor
vehicle or any other method, including aircraft, watercraft, railroad
cars, buses and air, boat, railroad and bus terminals and stations.
C.
EXPLICIT SEXUAL MATERIAL
(1)
(2)
Dissemination to minors. No person shall knowingly
disseminate, by sale, loan or otherwise, explicit sexual materials
to minors. As used in this article, "explicit sexual materials”
is defined:
Materials which are obscene or:
Any picture, photograph, drawing, sculpture,
motion-picture film, videotape or similar visual representation or
image of a person or portion of the human body which depicts nudity,
sexual conduct or sadomasochistic abuse and which is harmful to minors.
Any book, pamphlet, magazine, printed matter,
however reproduced, or sound recording which contains any matter enumerated
in Subsection A(3) or explicit and detailed verbal descriptions or
narrative accounts of sexual excitement, sexual conduct or sadomasochistic
abuse and which, taken as a whole, is harmful to minors.
D.
Admitting minor to show. It shall be unlawful for
any person knowingly to exhibit for monetary consideration to a minor
or knowingly to sell to a minor an admission ticket or pass or knowingly
to admit a minor for a monetary consideration to premises whereon
there is exhibited a motion-picture show or other presentation or
performance which, in whole or in part, depicts nudity, sexual conduct
or sadomasochistic abuse and which is harmful to minors, except that
the foregoing shall not apply to any minor accompanied by his parent.
E.
HARMFUL TO MINORS
(1)
(2)
(3)
KNOWINGLY
(1)
(2)
MINOR
NUDITY
SADOMASOCHISTIC ABUSE
SEXUAL CONDUCT
SEXUAL EXCITEMENT
Definitions. As used in Subsections C and D of this article, the following words and phrases shall have the meanings indicated:
That quality of any description or representation in whatever
form of nudity, sexual conduct, sexual excitement or sadomasochistic
abuse, when it:
Predominantly appeals to the prurient, shameful
or morbid interest of minors.
Is patently offensive to prevailing standards
in the adult community as a whole with respect to what is suitable
materials for minors.
Taken as a whole, lacks serious literary, artistic,
political, educational or scientific value for minors.
Having 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 to examination
by the person charged with violation of this article.
The age of the minor; provided, however that
an honest mistake shall constitute an excuse from liability hereunder
if the person charged with violation of this article made a reasonable
bona fide attempt to ascertain the true age of such minor.
Any person under age of 18 years.
The showing of the human male or female genitals, pubic area
or buttocks with less than a fully opaque covering, or the showing
of the female breast with less than fully opaque covering of any portion
thereof below the top of the nipple, or the depiction of covered male
genitals in a discernibly turgid state.
Flagellation or torture by or upon a person who is clad in
undergarments, a mask or in bizarre costume or the condition of being
fettered, bound or otherwise physically restrained on the part of
one so clothed.
Acts of masturbation, homosexuality, sexual intercourse,
sexual bestiality or physical contact with a person's clothed or unclothed
genitals, pubic area, buttocks or, if such person is a female, breast.
The condition of human male or female genitals when in a
state of sexual stimulation or arousal.
F.
Requiring sale as a condition of business dealings.
No person shall knowingly require any distributor or retail seller
as a condition to sale or delivery for resale or consignment of any
literature, book, magazine, pamphlet, newspaper, story paper, paper,
comic book, writing, drawing, photograph, videotape, figure or image
or any written or printed matter or any article or instrument to purchase
or take by consignment for purposes of sale, resale or distribution
any obscene literature, book, magazine, pamphlet, newspaper, story
paper, paper, comic book, writing, drawing, photograph, videotape,
figure or image or any written or printed matter of an obscene nature
or any article or instrument of an obscene nature.
Nothing in this article shall apply to any recognized
historical society or museum accorded charitable status by the federal
government, any county, city, borough, township or town library, any
public library, any library of any school, college or university or
any archive or library under the supervision and control of the commonwealth
or a political subdivision.
Any person who shall violate the provisions
of this article shall, upon summary conviction before any Magisterial
District Judge, pay a fine not to exceed $600 and costs of prosecution.
Upon judgment against any person by summary conviction or by proceedings
by summons on default of the payment of the fine or penalty imposed
and the cost, the person who shall have violated this article may
be sentenced and committed to the county jail for a period not exceeding
30 days.
[Adopted 4-20-2000 by Ord. No. 223 (Ch.
13, Part 5, of the 1995 Code)]
A.
Purpose. Pursuant to the authority granted in the
First Class Township Code to prohibit nuisances, to promote the health,
cleanliness, comfort and safety of the citizens of Lower Pottsgrove
Township and to regulate the time of opening and closing, and the
conduct of places of public entertainment, amusement and recreation,
the Township of Lower Pottsgrove enacts this article to minimize and
control the adverse effects of adult entertainment businesses and
thereby protect the health, safety and welfare of its citizens; protect
the citizens from increased crime; preserve the quality of life; preserve
the property values and character of surrounding neighborhoods and
deter the spread of blight. The Board of Commissioners of Lower Pottsgrove
Township has determined that locational criteria alone does not adequately
protect the health, safety and general welfare of the people of the
Township and that licensing is a legitimate and reasonable means of
accountability to ensure that operators of adult entertainment businesses
comply with reasonable regulations and to ensure that operators do
not knowingly allow their establishments to be used as places of illegal
sexual activity or solicitation. The Board of Commissioners of Lower
Pottsgrove Township does not intend this article to suppress any speech
activities protected by the First Amendment but to enact a content-neutral
ordinance which addresses the secondary effects of adult entertainment
businesses.
B.
Findings. The Board of Commissioners of Lower Pottsgrove
Township finds:
(1)
Sexually oriented businesses lend themselves to ancillary
unlawful and unhealthy activities that may go 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.
(2)
Certain employees of sexually oriented businesses
defined in this article as "adult theaters and cabarets" engage in
higher incident of certain types of sexually oriented behavior at
these businesses than employees of other establishments.
(3)
Sexual acts, including masturbation, 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, as defined under this article as adult bookstores,
adult novelty shops, adult video stores, adult motion-picture theaters
or adult arcades.
(4)
Offering and providing such space encourages such
activities which create unhealthy conditions.
(5)
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.
(6)
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 and non-B, amebiases,
salmonella infections and shigella infections.
(7)
As of May 1, 1995, there have been 13,559 reported
cases of AIDS in the State of Pennsylvania.
(8)
Since 1981 and to the present, there have been an
increasing cumulative number of persons testing positive for the HIV
antibody test in Montgomery County, Pennsylvania.
(9)
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.
(10)
According to the best scientific evidence, AIDS and
HIV infection, as well as syphilis and gonorrhea, are principally
transmitted by sexual acts.
(11)
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.
(12)
Numerous studies and reports have determined that
semen is found in the areas of sexually oriented businesses where
persons view adult-oriented films.
(14)
A reasonable licensing procedure is an appropriate
mechanism to place the burden of that reasonable regulation on the
owners and the operators of the adult entertainment businesses. Further,
such a licensing procedure will place a heretofore nonexistent incentive
on the operators to see that the adult entertainment business is run
in a manner consistent with the health, safety and welfare of its
patrons and employees as well as the citizens of the Township. It
is appropriate to require reasonable assurances that the licensee
is the actual operator of the adult entertainment business, fully
in possession and control of the premises and activities occurring
therein.
(15)
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.
(16)
Requiring licensees of adult entertainment businesses
to keep information regarding current employees and certain past employees
will help reduce the incidence of certain types of criminal behavior
by facilitating the identification of potential witnesses or suspects
and by preventing minors from working in such establishments.
(17)
The disclosure of certain information by those persons
ultimately responsible for the day-to-day operation and maintenance
of the adult entertainment 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.
(18)
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 article
is designated to prevent or who are likely to be witnesses to such
activity.
(19)
The fact that an applicant for an adult 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 article.
(20)
The barring of such individuals from the management
of adult uses for a period of years serves as a deterrent to and prevents
conduct which leads to the transmission of sexually transmitted diseases.
(21)
The general welfare, health and safety of the citizens
of the Township will be promoted by the enactment of this article.
A.
The defined terms hereinafter referenced which are
already part of the Lower Pottsgrove Township Code of Ordinances are
hereby adopted by reference and include the definitions of adult arcade,
adult bookstore, adult cabaret/dance hall/private club/bar/tavern/nightclub/restaurant
or other similar establishment, adult motion-picture theater, adult
motel, peep shows, sexual encounter center, nudity or a state of nudity,
seminude or in a seminude condition, specified anatomical areas, specified
sexual activities.
B.
KNOWINGLY
(1)
(2)
LICENSEE
SPECIFIED CRIMINAL ACTIVITY
(1)
(2)
(a)
(b)
(c)
(3)
TRANSFER OF OWNERSHIP OR CONTROL
(1)
(2)
(3)
As used in this article, the following words and phrases
shall have the meanings indicated unless the context clearly indicates
a different meaning.
Having 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 person.
The age of the 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 an adult entertainment
business has been issued, as well as the individual listed as an applicant
on the application for a license and, in the case of an employee,
a person in whose name a license has been issued authorizing employment
in the adult entertainment business.
Any of the following offenses:
Prostitution or promotion of prostitution; dissemination
of obscenity; sale, distribution or display of harmful material to
a minor; 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 offense to those described above under the criminal or
penal code of other states or countries.
For which:
Less than two years have elapsed since the date
of conviction or the date of release from confinement imposed for
the conviction, whichever is the later date, if the conviction is
of a misdemeanor offense.
Less than five years have elapsed since the
date of conviction or the date of release from confinement for the
conviction, whichever is the later date, if the conviction is of a
felony offense.
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.
Of an adult entertainment business, means and includes 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 ownership or control of the business,
except for transfer by bequest or other operation of law upon the
death of the person possessing the ownership or control.
A.
It is unlawful:
(1)
For a person to operate an adult entertainment business
without a valid adult entertainment business license issued by the
Township pursuant to this article.
(2)
For any person who operates an adult entertainment
business to employ a person to work for the adult entertainment business
who is not licensed as an adult entertainment business employee by
the Township pursuant to this article.
(3)
For any person to obtain employment with an adult
entertainment business without having secured an adult entertainment
business employee license pursuant to this article.
B.
An application for a license must be made on a form
provided by the Township.
C.
All applicants must be qualified according to the
provisions of this article. The application may request and the applicant
shall provide such information (including fingerprints) as to enable
the Township to determine whether the applicant meets the qualifications
established in this article.
D.
If a person who wishes to operate an adult entertainment
business is an individual, the person must sign the application for
a license as an applicant. If a person who wishes to operate an adult
entertainment 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 an adult entertainment
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, 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 the address of
the registered office for service of process.
(2)
If the applicant intends to operate the adult entertainment
business under a name other than that of the applicant, he or she
must state the adult entertainment business's fictitious name and
submit the required registration documents.
(3)
Whether the applicant, or a person residing with the
applicant, has been convicted of a specified criminal activity as
defined in this article and, if so, the specified criminal activity
involved, the date, place and jurisdiction of each.
(4)
Whether the applicant, or a person residing with the
applicant, has a previous license under this article or other similar
adult entertainment business ordinance from another municipality or
county denied, suspended or revoked, including the name and location
of the adult entertainment business for which the permit was denied,
suspended or revoked, as well as the date of the denial, suspension
or revocation and whether the applicant or 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
article whose license has previously been denied, suspended or revoked,
including the name and location of the adult entertainment business
for which the permit was denied, suspended or revoked as well as the
date of denial, suspension or revocation.
(5)
Whether the applicant or person residing with the
applicant holds any other licenses under this article or other similar
adult entertainment business ordinances from another municipality
or county and, if so, the names and locations of such other licensed
businesses.
(6)
The specific classification of adult entertainment
use license for which the applicant is filing.
(7)
The location of the proposed adult entertainment business,
including a legal description of the property, street address and
telephone number(s), if any.
(8)
The applicant's mailing address and residential address.
(9)
A recent photograph of the applicant(s).
(10)
The applicant's driver's license permit number, social
security number and/or his/her state or 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)
A current certificate and straight-line drawing prepared
by a registered land surveyor within 30 days prior to application,
depicting the property lines, the property to be certified, any other
adult entertainment use located within 1,000 feet of the property
to be certified and any of the following located within 500 feet of
the property to be certified:[1]
(a)
A church, synagogue, mosque, temple or building
which is used primarily for religious worship and related religious
activities.
(b)
A public or private educational facility, including,
but not limited to, child day-care facilities, nursery schools, preschools,
kindergartens, elementary schools, private schools, intermediate schools,
junior high schools, middle schools, high schools, vocational schools,
secondary schools, continuation schools, special education schools,
junior colleges and universities; "school" includes the school grounds
but does not include the facilities used primarily for another purpose
and only incidentally as a school.
(c)
A licensed premises, licensed pursuant to the
alcoholic beverage control regulations of the Commonwealth of Pennsylvania.
(d)
A boundary of a residential district as defined in the Lower Pottsgrove Township Zoning Ordinance (Chapter 250).
(e)
Any residential use.
(f)
A public park or recreational area which has
been designated for park or recreational activities, including, but
not limited to, park, playground, swimming pool, reservoir, athletic
field, basketball or tennis courts, pedestrian/bicycle paths or other
similar public land within the Township which is under the control,
operation or management of the Township park and recreation authorities.
(13)
If an applicant wishes to operate an adult entertainment 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 Subsection E(12).
F.
Before any applicant may be issued an adult entertainment
business employee license, the applicant shall submit on a form to
be provided by the Township 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.
(8)
Proof that the individual is at least 18 years of
age.
G.
Attached to the application form for an adult entertainment
business employee license, as provided above, shall be the following:
(1)
A color photograph of the applicant clearly showing
the applicant's face and the applicant's fingerprints on a form provided
by any police department. Any fees for the photograph and fingerprints
shall be paid by the applicant.
(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, the name of
the issuing or denying jurisdiction, and describe in full the reason
for the denial, revocation or suspension. A copy of any order or denial,
revocation or suspension shall be attached to the application.
(3)
A statement whether the applicant has been convicted
of a specified criminal activity as defined in this article and, if
so, the specified criminal activity involved, the date, place and
jurisdiction of each.
A.
Upon the filing of said application in a fully completed
form for an adult entertainment business employee license, the Township
shall issue a temporary license to said applicant. The application
shall then be referred to the appropriate Township official and/or
consultant for an investigation to be made on such information as
is contained on the application. The application process shall be
completed within 30 days from the date the completed application is
filed. After the investigation, the Township shall issue a 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 failed to provide information reasonably
necessary for issuance of the license or 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 article.
(4)
The adult entertainment business employee license
is to be used for employment in a business prohibited by local or
state law, statute, rule or regulation or prohibited by a particular
provision of this article.
(5)
The applicant has had an adult entertainment business employee license revoked by the Township within two years of the date of the current application. If the adult entertainment business employee license is denied, the temporary license previously issued is immediately deemed null and void. Denial, suspension or revocation of a license issued pursuant to this subsection shall be subject to appeal as set forth in § 75-13.
B.
A license granted pursuant to this section shall be subject to annual renewal upon the written application of the applicant and a finding by the Township that the applicant has not been convicted of any specified criminal activity as defined in this article 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 § 75-9.
C.
Within 30 days after receipt of a Township complete
adult entertainment business application, the Township shall approve
or deny the issuance of a license to an applicant. The Township shall
approve the issuance of a license to an applicant unless it is determined
by a preponderance of the evidence that one or more of the following
findings is true:
(1)
An applicant is under 18 years of age.
(2)
An applicant or person with whom the applicant is
residing is overdue in payment to the Township of taxes, fees, fines
or penalties assessed against or imposed upon him/her in relation
to any business.
(3)
An applicant has failed to provide information reasonably
necessary for issuance of the license or has falsely answered a question
or request for information on the application form.
(4)
An applicant or a person with whom the applicant is
residing has been denied a license by the Township to operate an adult
entertainment business within the preceding 12 months or whose license
to operate an adult entertainment business has been revoked within
the preceding 12 months.
(5)
An applicant or a person with whom the applicant is
residing has been convicted of a specified criminal activity defined
in this article.
(6)
The premises to be used for the adult entertainment
business has not been approved by the Fire Marshal and the Building
Official as being in compliance with applicable laws and ordinances.
(7)
The license fee required by this article has not been
paid.
(8)
An applicant of the proposed establishment is in violation
of or is not in compliance with any of the provisions of this article.
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 adult entertainment business and the specific
classification of adult entertainment use for which the license is
issued. All licenses shall be posted in a conspicuous place at or
near the entrance to the adult entertainment business so that they
may be easily read at any time.
E.
The Fire Marshal and the Code Enforcement Officer
shall complete their certifications that the premises is in compliance
or not in compliance within 20 days of receipt of the application
by the Township.
F.
An adult entertainment business license shall be issued
for the specific classification of adult entertainment use as permitted
by ordinance and applied for.
A.
Every application for an adult entertainment business
license (whether for a new license or for renewal of an existing license)
shall be accompanied by a nonrefundable application and investigation
fee, which amount shall be set from time to time by the Board of Commissioners
of Lower Pottsgrove Township by resolution.
B.
In addition to the application and investigation fee
required above, every adult entertainment business that is granted
a license (new or renewal) shall pay to the Township an annual nonrefundable
license fee within 30 days of licence issuance or renewal, which amount
shall be set from time to time by the Board of Commissioners of Lower
Pottsgrove Township by resolution.
C.
Every application for an adult entertainment 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, which amount shall be set from time
to time by the Board of Commissioners of Lower Pottsgrove by resolution.
D.
All license applications and fees shall be submitted
to the Township Manager.
A.
An applicant or licensee shall permit representatives
of the Township, including the Fire Marshal, Zoning Officer or other
official and/or consultant, to inspect the premises of an adult entertainment
business for the purpose of ensuring compliance with the law at any
time it is occupied or open for business.
B.
A person who operates an adult entertainment business
or his agent or employee commits a violation of this article if he
refuses to permit such lawful inspection of the premises at any time
it is occupied or open for business.
A.
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in § 75-7. 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 Township denies renewal of a license, the
applicant shall not be issued a license for one year from the date
of denial. If, subsequent to denial, the Township finds that the basis
for denial of the renewal license has been corrected or abated, the
applicant may be granted a license if at least 90 days have elapsed
since the date denial became final.
The Township shall suspend a license for a period
not to exceed 30 days if it determines that a licensee or an employee
of a licensee has:
A.
The Township shall revoke a license if a cause of suspension in § 75-12 occurs and the license has been suspended within the preceding 12 months.
B.
The Township shall revoke a license if it determines
that:
(1)
A license 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 prostitution on the
premises.
(4)
A licensee knowingly operated the adult entertainment
business during a period of time when the licensee's license was suspended.
(5)
A licensee has knowingly allowed any act or sexual
intercourse, sodomy, oral copulation, masturbation or other sex act
to occur in or on the licensed premises.
(6)
A licensee is delinquent in payment to the Township,
county or state for any taxes or fees past due.
C.
When the Township revokes a license, the revocation
shall continue for one year, and the licensee shall not be issued
an adult entertainment business license for one year from the date
the revocation became effective. If, subsequent to the revocation,
the Township finds that the basis for the revocation has been corrected
or abated, the applicant may be granted a license if at least 90 days
have elapsed since the date the revocation became effective.
D.
After denial of an application or denial of a renewal
of an application or suspension or revocation of any license, the
applicant or licensee may seek prompt judicial review of such administrative
action in any court of competent jurisdiction. The administrative
action shall be promptly reviewed by the court.
A licensee shall not transfer his/her license
to another nor shall a licensee operate an adult entertainment business
under the authority of a license at any place other than the address
designated in the application.
A.
A person commits a violation of this article if that person operates or causes to be operated an adult entertainment business in any zoning district other than the district defined in the Township Zoning Ordinance (Chapter 250).
B.
A person commits a violation of this article if the
person operates or causes to be operated an adult entertainment business
within 500 feet of:
(1)
A church, synagogue, mosque, temple or building which
is used primarily for religious worship and related religious activities.
(2)
A public or private educational facility, including,
but not limited to, child day-care facilities, nursery schools, preschools,
kindergartens, elementary schools, private schools, intermediate schools,
junior high schools, middle schools, high schools, vocational schools,
junior colleges and universities. "School" includes the school grounds
but does not include the facilities used primarily for another purpose
and only incidentally as a school.
(3)
Any other adult entertainment use or within 500 feet of a boundary of a residential district as defined in the Township Zoning Code (Chapter 250).
(4)
Any other residential use.
(5)
A public or recreational area which has been designated
for park or recreational activities, including, but not limited to,
a park, playground, swimming pool, reservoir, athletic field, basketball
or tennis courts, pedestrian/bicycle paths or other similar public
land within the Township which is under the control, operation or
management of the Township park and recreation authorities.
C.
A person commits a violation of this article if that
person causes or permits the operation, establishment, substantial
enlargement or transfer of ownership or control of an adult entertainment
business within 1,000 feet of another adult entertainment use.
D.
A person commits a violation of this article if that
person causes or permits the operation, establishment or maintenance
of more than one adult entertainment business in the same building,
structure or portion thereof, or the increase of floor area of any
adult entertainment business in any building, structure or portion
thereof containing another adult entertainment business.
E.
For the purpose of Subsection B of this section, measurement shall be made in a straight line, without regard to the building or structure used as the part of the premises where an adult entertainment business is conducted, to the nearest property line of the premises of a use listed in Subsection B. Presence of a municipal, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section.
A.
A person who operates or causes to be operated an
adult entertainment 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.
(1)
Upon application for an adult entertainment license,
the application shall be accompanied by a diagram of the premises
showing a plan thereof specifying the location of one or more managers'
stations and the location of all overhead lighting fixtures and designating
any portion of the premises in which patrons will not be permitted.
A manager's station may not exceed 32 square feet of floor area. The
diagram shall also designate the place at which the permit will be
conspicuously posted, if granted. A professionally prepared diagram
in the nature of an engineer's or architect's blueprint shall not
be required; however, each diagram should be oriented to the North
or to some designated street or object and should be drawn to a designated
scale or with marked dimensions sufficient to show the various internal
dimensions of all areas of the interior of the premises to an accuracy
of plus or minus six inches. The Township may waive the foregoing
diagram for renewal applications if the applicant adopts a diagram
that was previously submitted and certifies that the configuration
of the premises has not been altered since it was prepared.
(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
Township.
(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 the 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 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 licensee to ensure that
the illumination described above is maintained at all times that any
patron is present in the premises.
(10)
No licensee 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 materials shall be used within 48
inches of the floor.
A.
A nude model studio shall not employ any person under
the age of 18 years.
B.
A person under the age of 18 years commits a violation
of this article if the person appears seminude or in a state of nudity
in or on the premises of a nude model studio. It is a defense to prosecution
under this subsection if the person under 18 years was in a rest room
not open to public view or visible to any other person.
C.
A person commits a violation of this article 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 article for a person
who knowingly and intentionally in an adult entertainment business
appears in a state of nudity or depicts specified sexual activities.
B.
It shall be a violation of this article for a person
who knowingly or intentionally in an adult entertainment business
appears in a seminude condition unless the person is an employee who
while seminude shall be at least 10 feet from any patron or customer
and on a stage at least two feet from the floor.
C.
It shall be a violation of this article for an employee,
while seminude in an adult entertainment business, to solicit any
pay or gratuity from any patron or customer or for any patron or customer
to pay or give any gratuity to any employee while said employee is
seminude in an adult entertainment business.
A person commits a violation of this article
if the person knowingly allows a person under the age of 18 years
on the premises of an adult entertainment business.
No adult entertainment business may remain open
at any time between the hours of 1:00 a.m. and 6:00 a.m. on weekdays
and Saturdays and 1:00 a.m. and 12:00 noon on Sundays.
A.
It is a defense to prosecution under § 75-19 that a person appearing in a state of nudity did so in a modeling class operated:
(1)
By a proprietary school, licensed by the Commonwealth
of Pennsylvania; a college, junior college or university supported
entirely or partly by taxation.
(2)
By a private college or university which maintains
and operates educational programs in which credits are transferable
to a college, junior college or university supported entirely or partly
by taxation.
(3)
In a structure:
(a)
Which has no sign visible from the exterior
of the structure and no other advertising that indicates a nude person
is available for viewing.
(b)
Where, in order to participate in a class, a
student must enroll at least three days in advance of the class.
(c)
Where no more than one nude model is on the
premises at any one time.
Any person, firm or corporation violating any
provisions of this article or the rules and regulations approved and
hereinafter adopted shall, upon summary conviction before any Magisterial
District Judge, pay a fine not exceeding $600 and costs of prosecution
and, in default of payment of the fines and costs, the violator may
be sentenced to the county jail for a term of not more than 30 days.
Whenever such person shall have been officially notified by the Township
or by the service of a summons in a prosecution or in any other official
manner that he is committing a violation of this article or the rules
and regulations approved and hereinafter adopted, each day that he
shall continue such violation after such notification shall constitute
a separate offense punishable by a like fine or penalty. Such fines
or penalties shall be collected as like fines or penalties are now
by law collected.
