[HISTORY: Adopted by the Board of Commissioners of the Township of Rochester as indicated in article histories. Amendments noted where applicable.]
[Adopted 2-18-1999 by Ord. No. 371]
Pursuant to the authority granted in the Township Code to prohibit nuisances; to promote the health, cleanliness, comfort and safety of the citizens of the Township of Rochester; to define and prohibit disorderly practices; to regulate buildings; and to regulate the time of opening and closing and the conduct of places of public entertainment, amusement and recreation, the Township of Rochester enacts this article 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 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 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 sexually oriented 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.
Sexually oriented businesses have adverse secondary effects, 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 and neighborhood deterioration.
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 businesses. 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 viewing booths and requiring sufficient lighting on premises with viewing booths advances a substantial governmental interest in discouraging the illegal and unsanitary sexual activity occurring in adult theaters.
Requiring licensees of sexually oriented businesses to keep information regarding current employees and certain past employees will help reduce the incidents 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 limits the adverse secondary effects of such businesses.
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.
The fact that an applicant for a sexually oriented business 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.
The barring of such individuals from the management of sexually oriented businesses 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 article.
Limitation of operating hours of sexually oriented businesses to 10:00 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.
As used in this article, 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, or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, video or laser disc players, or other image-producing devices are maintained, not located within viewing booths, to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
- ADULT BOOKSTORE, ADULT NOVELTY STORE OR ADULT VIDEO STORE
- A commercial establishment which, as one of its substantial business activities, offers for sale or rental for any form of consideration any one or more of the following:
- A. Books, magazines, periodicals or other printed matter or photographs, films, motion pictures, video cassettes or video reproductions, slides, CD ROM discs or other computer software, or other visual representations which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- B. Instruments, devices or paraphernalia which is designed for use in connection with specified sexual activities.
- ADULT CABARET
- A nightclub, bar, restaurant or other commercial establishment which regularly features:
- A. Persons who appear in a state of nudity or seminudity.
- B. Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
- C. Films, motion pictures, video cassettes, slides or other photographic reproductions or visual presentations of any other kind 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 or visual presentations of any kind are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT THEATER
- A theater, concert hall, auditorium or similar commercial establishment which regularly features persons who appear in a state of nudity or seminudity or live 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 or otherwise and whether or not said person is paid a salary, wage or other 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 person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
- ESCORT AGENCY
- A person or business association who or which furnishes, offers to furnish or advertises to furnish escorts as one of his/her or its primary business purposes for a fee, tip or other consideration.
- 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 to any other existing sexually oriented business or to a non-sexually-oriented business.
- D. The relocation of any sexually oriented business.
- Having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry or both:
- A. The character and content of any material or performance described herein which is reasonably susceptible of examination by a licensee or person.
- B. 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 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.
- NUDE MODEL STUDIO
- Any place where a person appears seminude, or 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 studio" shall not include a proprietary school licensed by the Commonwealth of Pennsylvania or a college, junior 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.
- 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 or seminude model is on the premises at any 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 discernibly turgid state.
- An individual, proprietorship, partnership, corporation, association or other legal entity.
- SEMINUDE OR IN A SEMINUDE CONDITION
- The state of dress in which the clothing partially or non-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, nude model studio or sexual encounter center.
- 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 discernibly 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; gambling; or distribution of a controlled substance; or any similar offenses to those described above under the criminal or penal code of other states or countries;
- B. For which:
- (1) Less than two years has 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 has elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or
- (3) Less than five years has 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:
- TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED 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.
- 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 operate a sexually oriented business without a valid sexually oriented business license issued by the Township pursuant to this article.
For any person who operates a sexually oriented business 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 article.
For any person to obtain employment with a sexually oriented business without having secured a sexually oriented business employee license pursuant to this article.
For any person to continue to operate any sexually oriented business in operation at the time of enactment of this article without a valid sexually oriented business license pursuant to this article.
For any person who operates a sexually oriented business in operation at the time of enactment of this article 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 article.
An application for a license must be made on a form provided by the Township.
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.
If a person who wishes to operate a sexually oriented business is an individual, the person must sign the application for a license as an applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a 20% or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under the following subsection, 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 name 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, 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.
If the applicant intends to operate the sexually oriented business under a name other than that of the applicant, he/she must state the sexually oriented business fictitious name and submit the required registration documents.
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.
Whether the applicant, or a person residing with the applicant, has had a previous license under this article or other similar sexually oriented business ordinance from another municipality, state or County denied, suspended or revoked, including the name and location of the sexually oriented business for which the license 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 sexually oriented business for which the license 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 article or other similar sexually oriented business ordinance from another municipality, state or County 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.
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 his/her state or 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.
A current certificate and straight-line drawing prepared within 30 days prior to application by a registered land surveyor depicting the property lines of the property to be certified.
If an applicant wishes to operate a sexually oriented business which includes viewing booths, then the applicant shall also comply with the application requirements set forth in § 122-11 and shall separately apply for and obtain a building and occupancy permit for the installation of the viewing booths.
The application form shall inform the applicant that:
Separate applications are required for any necessary zoning permits, subdivision and land development approvals or building and occupancy permits and that the applicant may apply for such permits by contacting the Township Code Enforcement Officer; and
Department of Labor and Industry approval is required.
Before the 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 and 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.
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:
A color photograph of the applicant clearly showing the applicant's face, and the applicant's fingerprints on a form provided by any police department. Any fees for the photographs and fingerprints shall be paid by the applicant.
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.
A statement as to 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.
Upon the filing of said application in a fully completed form for a sexually oriented business license or for a sexually oriented business employee license, the application shall then be referred to the Township Chief of Police for review and investigation. Reference to the Township Chief of Police herein shall include any designee of the Chief of Police. The Township Chief of Police shall utilize any available resources through the Pennsylvania State Police, the Commonwealth of Pennsylvania and/or other law enforcement agencies as may be necessary to complete the review and investigation required by this article. Within 30 days from the date the completed application is filed, the Chief of Police shall issue a license, unless it is determined by the Chief of Police that one or more of the following findings is true:
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.
The applicant is under the age of 18 years.
The applicant has been convicted of a specified criminal activity as defined in this article.
The sexually oriented 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.
The applicant has had a sexually oriented business employee license revoked by the Township within two years of the date of the current application. If the sexually oriented 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 § 122-9.
The required application, investigation and license fee 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 proposed sexually oriented business is in violation of or is not in compliance with any of the provisions of this article.
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 Chief of Police 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 § 122-5.
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 and the specific classification of sexually oriented use for which the license is issued. Licenses for sexually oriented businesses shall state that the sexually oriented business shall not commence until all necessary zoning, subdivision and land development and/or building code approvals and Department of Labor and Industry approvals are obtained. All licenses shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that they may be easily read at any time.
Applications for building and occupancy permits shall be processed and either denied or approved within 30 days of a complete application by the Township.
A sexually oriented business license shall issue for the specific classification of sexually oriented use as permitted by ordinance and applied for.
Any person aggrieved by the grant of a license may appeal, in writing, within 10 days from the date of issuance of the license, to the Board of Commissioners. The Board of Commissioners then holds a Local Agency Law hearing within 20 days of the date of filing of the appeal and renders a decision within 10 days from the end of the hearing. Appeals from a decision of the Board of Commissioners may be taken to court subject to § 122-9E of this article.
Every application for a sexually oriented business license (whether for a new license or for renewal of an existing license) shall be accompanied by a nonrefundable application and investigation fee in an amount set by resolution of the Board of Commissioners.
In addition to the application and investigation fee required above, every sexually oriented business that is granted a license (new or renewal) shall pay to the Township an annual nonrefundable license fee in an amount set by resolution of the Board of Commissioners within 30 days of license issuance or 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 in an amount set by resolution of the Board of Commissioners.
All license applications and fees shall be submitted to the office of the Township Secretary, and thereafter the application shall be forwarded to the Township Chief of Police for review and investigation and approval or denial.
An applicant or licensee shall permit authorized Township officials and their agents or consultants to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law at any time it is occupied or open for business.
A person who operates a sexually oriented business or his/her agent or employee commits a violation of this article if he/she refuses to permit such lawful inspection of a premises at any time it is occupied or open for business.
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in § 122-3. 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 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 Chief of Police shall suspend a license for a period not to exceed 30 days if he/she determines that a licensee or an employee of a licensee has:
The Township Chief of Police shall revoke a license if a cause of suspension in § 122-8 occurs and the license has been suspended within the preceding 12 months.
The Township Chief of Police shall revoke a license if he or she determines that a licensee:
Gave false or misleading information in the material submitted during the application process.
Has knowingly allowed possession, use or sale of controlled substances on the premises.
Has knowingly allowed prostitution on the premises.
Knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended.
Has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or other sex act to occur in or on the licensed premises.
Is delinquent in payment to the Township for any licensing fees past due.
When the Township revokes a 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, subsequent to revocation, the Township finds that the basis for the revocation has been corrected or abated, the revocation may be dissolved if at least 90 days have elapsed since the date the revocation became effective and the basis for the revocation was not a basis set forth in Subsection B.
All license application, renewal, suspension or revocation decisions shall be sent in writing to the applicant or licensee. All such decisions which deny, 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 the Local Agency Law to the Board of Commissioners. Any such appeal must be filed, in writing, with the Township Secretary within 10 days from the date of mailing of the decision appealed from. Failure to file said appeal with the Township Secretary within 10 days from the date of the mailing of the decision appealed from shall be deemed a conclusive determination as to the issues or matters addressed by the written decision. The Board of Commissioners will then hold a Local Agency Law hearing 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 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 Board of Commissioners may appeal to a court of competent jurisdiction. 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 to such appeal. The Township shall certify any record to the court within 20 days of any request by the court to do so.
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 who operates viewing booths or causes them to be operated 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 license 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.
The application shall be sworn to be true and correct by the applicant.
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 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 by direct line of sight from the manager's station. In addition, all viewing booths shall have at least one side fully open so that all of the area inside the booth is open to the view of persons in the public area of the establishment.
It shall be the duty of the licensees to ensure that the viewing area specified in Subsection D 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 pursuant to Subsection A 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 licensee 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 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 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 was in a rest room not open to public view or visible to any other person.
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.
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.
It shall be a violation of this article for a person to knowingly and intentionally, in a public place:
For purposes of this article, "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 such places of entertainment, taverns, restaurants, clubs, theaters, dance halls, banquet halls, party rooms or halls limited to specific members, restricted to adults or to patrons invited to attend, whether or not an admission charge is levied. This subsection shall not apply to:
Any child under 10 years of age.
Any individual exposing a breast in the process of breast-feeding an infant under two years of age.
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 subsection 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.
It shall be a violation of this article for a person to knowingly or intentionally in a sexually oriented business appear 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.
It shall be a violation of this article for any employee, while seminude in a sexually oriented 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 a sexually oriented 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 a sexually oriented business.
No sexually oriented business shall be open for business before 10:00 a.m., Monday through Saturday, or after 10:00 p.m., Monday through Saturday. Sexually oriented businesses shall be closed at all times on Sundays and legal holidays.
It is a defense to prosecution under § 122-14 that a person appearing in a state of nudity did so in a modeling class operated:
By a proprietary school, licensed by the Commonwealth of Pennsylvania, a college, junior college or university supported entirely or partly by taxation.
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.
In a structure:
Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing.
Where, in order to participate in a class, a student must enroll at least three days in advance of the class.
Where no more than one nude model is on the premises at any one time.
Any person, firm or corporation who or which violates or permits the violation of any provision of this article, or the rules and regulations approved and hereinafter adopted, shall pay fine not exceeding $1,000 for each violation. Whenever such person shall have been officially notified by the Township that he/she is committing a violation of this article, or the rules and regulations approved and hereinafter adopted, each day that he/she shall continue such violation after such notification shall constitute a separate violation punishable by a like fine. Any person who violates or permits the violation of this article shall pay, in addition to the fine set forth above, all court costs and reasonable attorney's fees incurred by the Township in connection with any civil enforcement proceedings brought to enforce this article and, in default of payment of such fine and costs, shall be imprisoned for a term not exceeding 30 days.
The Township may commence civil enforcement proceedings to assess fines for violations of this article. In addition to such civil enforcement proceedings, the Township may commence, at any time, appropriate actions in equity or otherwise to prevent, restrain, correct, enjoin or abate violations of this article.
[Adopted 5-28-1985 by Ord. No. 307; amended in its entirety at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
As used in this article, the following terms shall have the meanings indicated:
- One or more persons who are permitted to view a performance for valuable consideration or in or from a public place.
- DISPLAY PUBLICLY
- Exposing, placing, posting, exhibiting, or in any other fashion displaying in any location, whether public or private, material or a performance in such a manner that it may be readily seen and its content or character distinguished by viewing it in or from a public place or vehicle.
- To manufacture, issue, publish, sell, lend, distribute, transmit, broadcast, exhibit or present material or to offer or agree to do the same, or to have in one's possession with intent to do the same.
- LEWD MATERIAL
- Any material or performance in which all of the following elements are present:
- (1) Considered as a whole, by the average person, applying the contemporary community standards of the Township of Rochester, it appeals to the prurient interest in sex;
- (2) It depicts, describes or represents, in a patently offensive way, sexual conduct, as hereinafter defined; and
- (3) Taken as a whole, it lacks serious literary, artistic, political, educational or scientific values.
- Any printed matter, visual representation, or sound recording, including but not limited to books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, drawings, three-dimensional forms, sculptures, and photograph, tape or wire recordings.
- Uncovered, or less than opaquely covered, post-pubertal human genitals or pubic area, the post-pubertal human female breast below a point immediately above the top of the areola or the covered human male genitals in a discernibly turgid state. For the purpose of this definition, a female breast is considered uncovered if the nipple only or the nipple and the areola only are covered.
- Advertising or propagandizing in connection with the sale of material, the offering of a service, or the presentation or exhibition of a performance by appealing to the prurient interest of potential customers.
- Any live or reproduced exhibition, including but not limited to any play, motion picture film, dance or appearance presented to or performed before an audience.
- Any individual, partnership, firm, association, corporation or other legal entity.
- PRURIENT INTEREST
- Desire or craving for sexual stimulation or gratification. In determining prurient interest, the material or performance shall be judged with reference to average persons, unless it appears from the character of the material or performance that it is designed to appeal to the prurient interest of a particular group of persons, including but not limited to homosexuals or sadomasochists. In that case, it shall be judged with reference to the particular group for which it was designed.
- (1) Any street, alley, park, boulevard, school or other public property or any dance hall, rental hall, theater, amusement park, liquor establishment, store, depot, place of public accommodation, or other private property in the Township of Rochester generally frequented by the public for the purposes of education, recreation, amusement, entertainment, sport, shopping or travel; or
- (2) Any vehicle for public transportation, owned or operated by the government, either directly or through a public corporation or authority, or owned or operated by any nongovernmental agency for the use, enjoyment or transportation of the general public.
- SADOMASOCHISTIC ABUSE
- Flagellation or torture by or upon a person who is nude or clad in undergarments or in a sexually revealing or bizarre costume, or in the condition of such person being fettered, bound or otherwise physically restrained, in an apparent act of sexual stimulation or gratification.
- (1) Masturbation;
- (2) Sexual intercourse, whether genital-genital, oral-genital, oral-anal, or anal-genital;
- (3) Any erotic fondling or touching or the covered or uncovered genitals, buttocks, pubic area, or any part of the breasts of the female, whether the conduct described in Subsections (1) through (3) is engaged in alone or between members of the same or opposite sex, or between humans and animals or humans and inanimate objects;
- (4) Actual or simulated display or exhibition of the human pubic area or genitals or any part thereof;
- (5) Sexual excitement, as hereinafter defined; or
- (6) Sadomasochistic abuse as herein defined.
- SEXUAL EXCITEMENT
- The facial expressions, movements, utterances or any other physical responses of a human male or female, whether alone or with others, whether clothed or not, who is in an apparent state of sexual stimulation or arousal, or experiencing the physical or sensual reactions of humans engaging in or witnessing sexual conduct.
As used in this article, the masculine shall include the feminine and neuter.
It shall be unlawful for any person to disseminate and/or promote and/or display publicly lewd material in the Township of Rochester. A person shall be guilty of the offense of disseminating and/or promoting and/or displaying publicly lewd material if, knowing its content and character, he or she:
Disseminates or causes to be disseminated any lewd material in or from a public place or vehicle, or for valuable consideration; or has in his/her possession any lewd material with intent to so disseminate; or knowingly allows the use of any business, building, vehicle or place owned, leased, conducted or managed by him/her for such dissemination of lewd material;
Sells an admission ticket or pass to premises where there is being exhibited or is about to be exhibited lewd material or a performance which contains lewd material;
Admits, by accepting a ticket or pass, a person to premises where there is being exhibited or is about to be exhibited material or a performance which contains lewd material;
Produces, presents, directs, or knowingly allows the use of any business, building, vehicle or place owned, leased, conducted or managed by him/her to be used for a performance which contains lewd material;
Participates in the portion of a live performance before an audience which makes the performance contain lewd material; or
Panders, displays publicly, or disseminates door to door any lewd material, or causes such pandering, public display or door-to-door dissemination.
Any person who shall violate this article shall, upon conviction thereof, be sentenced to pay a fine of not more than $600 plus costs and, in default of payment, to imprisonment for a term not to exceed 30 days. Each day a violation of this article continues shall constitute a separate offense.
The Solicitor of the Township of Rochester may institute proceedings in equity in the Court of Common Pleas of Beaver County for the purpose of enjoining any violation or potential violation of this article.