[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]
A.Â
Purpose.
(1)Â
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.
(2)Â
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.
B.Â
Legislative findings.
(1)Â
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.
(2)Â
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.
(3)Â
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.
(4)Â
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.
(5)Â
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.
(6)Â
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.
(7)Â
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.
(8)Â
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.
(9)Â
The general welfare, health and safety of the citizens of the Township
will be promoted by the enactment of this article.
(10)Â
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:
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.
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:
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.
Instruments, devices or paraphernalia which is designed for
use in connection with specified sexual activities.
A nightclub, bar, restaurant or other commercial establishment
which regularly features:
Persons who appear in a state of nudity or seminudity.
Live performances which are characterized by the exposure of
specified anatomical areas or by specified sexual activities.
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.
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.
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.
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:
The opening or commencement of any sexually oriented business
as a new business.
The conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business.
The addition of any sexually oriented business to any other
existing sexually oriented business or to a non-sexually-oriented
business.
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:
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 a sexually oriented
business has been issued, as well as the individual listed as an applicant
on the application for a license and, in the case of an employee,
a person in whose name a license has been issued authorizing employment
in a sexually oriented business.
Any 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:
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.
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 or seminude model is on the premises
at any one time.
The showing of the human male or female genitals, pubic area,
vulva, anus, anal cleft or cleavage with less than a fully opaque
covering, the showing of the female breast with less than a fully
opaque covering of any part of the nipple, or the showing of the covered
male genitals in a discernibly turgid state.
An individual, proprietorship, partnership, corporation,
association or other legal entity.
The state of dress in which the clothing partially or non-opaquely
covers specified anatomical areas.
A business or commercial enterprise that, as one of its principal
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore, adult novelty store, adult
video store, adult cabaret, adult motion-picture theater, adult theater,
escort agency, nude model studio or sexual encounter center.
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.
Any of the following offenses:
Prostitution or promotion of prostitution; dissemination of
obscenity; sale, distribution or display of harmful material to a
minor; sexual performance by a child; possession or distribution of
child pornography; public lewdness; indecent exposure; indecency with
a child; engaging in organized criminal activity; sexual assault;
molestation of a child; gambling; or distribution of a controlled
substance; or any similar offenses to those described above under
the criminal or penal code of other states or countries;
For which:
Less than two years 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;
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
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.
The fact that a conviction is being appealed shall have no effect
on the disqualification of the applicant or a person residing with
the applicant.
Any of the following:
Includes any of the following:
The sale, lease or sublease of the business.
The transfer of securities which constitute a controlling interest
in the business, whether by sale, exchange or similar means.
The establishment of a trust, gift or other similar legal device
which transfers the ownership or control of the business, except for
transfer by bequest or other operation of law upon the death of the
person possessing the ownership or control.
Booths, stalls, partitioned portions of a room, rooms or
other enclosures which are available for viewing:
Films, movies, videos, or visual reproductions of any kind depicting
or describing specified sexual activities or specified anatomical
areas; or
Persons who appear in a state of nudity or seminudity or who
offer performances or presentations characterized by the exposure
of specified anatomical areas or by specified sexual activities.
A.Â
It is unlawful:
(1)Â
For any person to operate a sexually oriented business without a
valid sexually oriented business license issued by the Township pursuant
to this article.
(2)Â
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.
(3)Â
For any person to obtain employment with a sexually oriented business
without having secured a sexually oriented business employee license
pursuant to this article.
(4)Â
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.
(5)Â
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.
B.Â
An application for a license must be made on a form provided by the
Township.
C.Â
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.Â
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.
E.Â
The completed application for a sexually oriented business license
shall contain the following information and shall be accompanied by
the following documents:
(1)Â
If the applicant is:
(a)Â
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)Â
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.
(c)Â
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)Â
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.
(3)Â
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)Â
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.
(5)Â
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.
(6)Â
The specific classification of sexually oriented use for which the
applicant is filing.
(7)Â
The location of the proposed sexually oriented business, including
a legal description of the property, street address and telephone
number(s), if any.
(8)Â
The applicant's mailing address and residential address.
(9)Â
A recent photograph of the applicant(s).
(10)Â
The applicant's driver's permit number, Social Security
number, and his/her state or federally issued tax identification number.
(11)Â
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)Â
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.
(13)Â
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.
(14)Â
The application form shall inform the applicant that:
(a)Â
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
(b)Â
Department of Labor and Industry approval is required.
F.Â
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:
(1)Â
The applicant's name or any other name, including stage names,
or aliases used by the individual.
(2)Â
Age, date and place of birth.
(3)Â
Height, weight and hair and eye color.
(4)Â
Present residence address and telephone number.
(5)Â
Present business address and telephone number.
(6)Â
Date, issuing state and number of driver's license or other
identification card information.
(7)Â
Social Security number.
(8)Â
Proof that the individual is at least 18 years of age.
G.Â
Attached to the application form for a sexually oriented business
employee license, as provided above, shall be the following:
(1)Â
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.
(2)Â
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)Â
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.
A.Â
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:
(1)Â
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.
(2)Â
The applicant is under the age of 18 years.
(3)Â
The applicant has been convicted of a specified criminal activity
as defined in this article.
(4)Â
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.
(5)Â
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.
(6)Â
The required application, investigation and license fee have not
been paid.
(7)Â
An applicant's license to operate a sexually oriented business,
issued by any jurisdiction, has been revoked within the preceding
12 months.
(8)Â
The proposed sexually oriented business is in violation of or is
not in compliance with any of the provisions of this article.
B.Â
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.
C.Â
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.
D.Â
Applications for building and occupancy permits shall be processed
and either denied or approved within 30 days of a complete application
by the Township.
E.Â
A sexually oriented business license shall issue for the specific
classification of sexually oriented use as permitted by ordinance
and applied for.
G.Â
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[1] 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.
[1]
Editor's Note: See 2 Pa.C.S.A. § 551 et seq.
A.Â
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.
B.Â
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.
C.Â
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.
D.Â
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.
A.Â
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.
B.Â
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.
A.Â
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.
B.Â
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:
A.Â
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.
B.Â
The Township Chief of Police shall revoke a license if he or she
determines that a licensee:
(1)Â
Gave false or misleading information in the material submitted during
the application process.
(2)Â
Has knowingly allowed possession, use or sale of controlled substances
on the premises.
(3)Â
Has knowingly allowed prostitution on the premises.
(4)Â
Knowingly operated the sexually oriented business during a period
of time when the licensee's license was suspended.
(5)Â
Has knowingly allowed any act of sexual intercourse, sodomy, oral
copulation, masturbation or other sex act to occur in or on the licensed
premises.
(6)Â
Is delinquent in payment to the Township for any licensing fees past
due.
C.Â
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.
D.Â
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.
E.Â
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[1] 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.
[1]
Editor's Note: See 2 Pa.C.S.A. § 551 et seq.
F.Â
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:
G.Â
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:
A.Â
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.
B.Â
The application shall be sworn to be true and correct by the applicant.
C.Â
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.
D.Â
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.
E.Â
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.
F.Â
No viewing room may be occupied by more than one person at any time.
G.Â
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.
H.Â
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.
I.Â
No licensee shall allow openings of any kind to exist between viewing
rooms or booths.
J.Â
No person shall make or attempt to make an opening of any kind between
viewing booths or rooms.
K.Â
The licensee shall, during each business day, regularly inspect the
walls between the viewing booths to determine if any openings or holes
exist.
L.Â
The licensee shall cause all floor coverings in viewing booths to
be nonporous, easily cleanable surfaces, with no rugs or carpeting.
M.Â
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.Â
A nude model studio shall not employ any person under the age of
18 years.
B.Â
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.
C.Â
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.Â
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.Â
It shall be a violation of this article for a person to knowingly
and intentionally, in a public place:
B.Â
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:
(1)Â
Any child under 10 years of age.
(2)Â
Any individual exposing a breast in the process of breast-feeding
an infant under two years of age.
(3)Â
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.
C.Â
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.
D.Â
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:
A.Â
By a proprietary school, licensed by the Commonwealth of Pennsylvania,
a college, junior college or university supported entirely or partly
by taxation.
B.Â
By a private college or university which maintains and operates educational
programs in which credits are transferable to a college, junior college
or university supported entirely or partly by taxation.
C.Â
In a structure:
(1)Â
Which has no sign visible from the exterior of the structure and
no other advertising that indicates a nude person is available for
viewing.
(2)Â
Where, in order to participate in a class, a student must enroll
at least three days in advance of the class.
(3)Â
Where no more than one nude model is on the premises at any one time.
A.Â
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.[1]
B.Â
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)]
A.Â
AUDIENCE
DISPLAY PUBLICLY
DISSEMINATE
LEWD MATERIAL
(1)Â
(2)Â
(3)Â
MATERIAL
NUDITY
PANDER
PERFORMANCE
PERSON
PRURIENT INTEREST
PUBLIC PLACE OR VEHICLE
(1)Â
(2)Â
SADOMASOCHISTIC ABUSE
SEXUAL CONDUCT
(1)Â
(2)Â
(3)Â
(4)Â
(5)Â
(6)Â
SEXUAL EXCITEMENT
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.
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.
Any material or performance in which all of the following
elements are present:
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;
It depicts, describes or represents, in a patently offensive
way, sexual conduct, as hereinafter defined; and
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.
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.
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
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.
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.
Masturbation;
Sexual intercourse, whether genital-genital, oral-genital, oral-anal,
or anal-genital;
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;
Actual or simulated display or exhibition of the human pubic
area or genitals or any part thereof;
Sexual excitement, as hereinafter defined; or
Sadomasochistic abuse as herein defined.
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.
B.Â
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:
A.Â
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;
B.Â
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;
C.Â
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;
D.Â
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;
E.Â
Participates in the portion of a live performance before an audience
which makes the performance contain lewd material; or
F.Â
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.
