A.
Purpose.
(1)
Pursuant to the authority granted in the Municipalities Planning
Code, 53 P.S. § 10101 et seq., to promote and secure the
health, cleanliness, comfort and safety of the citizens, to regulate
places of public entertainment, amusement and recreation, and to prevent
and prohibit public nuisances due to adverse secondary effects, the
Borough of Mars (hereinafter "Borough") 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' property values and character of surrounding
neighborhoods, and deter the spread of blight.
(2)
The Borough of Mars Council has determined that zoning regulation
and permitting is a legitimate and reasonable means of accountability
to insure that operators of sexually oriented businesses comply with
reasonable regulations and to insure that operators do not knowingly
allow their establishments to be used as places of illegal sexual
activity or solicitation.
(3)
The Borough does not intend this article to suppress any speech
activities protected by the First Amendment, but enacts a content-neutral
ordinance which addresses the secondary effects of sexually oriented
businesses. It is not the intent of the Borough in enacting this legislation
to deny any person rights of speech protected by the Constitution
of the United States or the Constitution of Pennsylvania, or both,
nor is it the intent of the Borough to impose by this article any
additional limitations or restrictions on the contents of any communicative
materials, including sexually oriented films, videotapes, books and
other materials. Further, by enacting this legislation, the Borough
does not intend to deny or restrict the rights of any adult to obtain
or view, or both, any sexually oriented materials or conduct protected
by the Constitution of the United States or the Constitution of Pennsylvania,
or both, nor does it intend to restrict or deny any constitutionally
protected rights that distributors or exhibitors of sexually oriented
materials may have to sell, distribute, or exhibit these materials.
B.
Legislative findings. The Borough of Mars Council finds:
(1)
Law enforcement personnel have determined, and statistics and
studies performed in a substantial number of communities in this Commonwealth
and in the United States indicate, that sexually oriented businesses
have adverse secondary effects, including those specified and recognized
at 68 Pa.C.S.A. § 5501(a), which secondary effects should
be regulated to protect the public health, safety and welfare. These
secondary effects include, but are not limited to, the spread of communicable
diseases, performance of sexual acts in public places, presence of
discarded sexually oriented materials on public and private property,
sexual harassment, obscenity, prostitution and other illegal sexual
activities, crime and neighborhood deterioration.
(2)
Based on evidence concerning the adverse secondary effects of
adult uses on the community presented in depositions and hearings
conducted by the United States District Court for the Middle District
of Pennsylvania, Case No. 3:CV99-1801 (Judge Munley); and by the United
States District Court for the Western District of Pennsylvania, Case
No. 98-1140 (Judge Lancaster); and in reports made available to the
Borough and on findings incorporated in the cases of City of Renton
v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American
Mini Theatres, 426 U.S. 50 (1976), and Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991); and on studies in other communities, including,
but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston,
Texas; Indianapolis, Indiana; Amarillo, Texas; Biloxi, Mississippi;
Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and
Beaumont, Texas; and also on findings from the Report of the Attorney
General's Working Group on the Regulation of Sexually Oriented
Businesses (June 6, 1989, State of Minnesota), the Borough finds:
(a)
Sexually oriented businesses lend themselves to ancillary unlawful
and unhealthy activities that are presently uncontrolled by the operators
of the establishments. Further, there is presently no mechanism to
make the owners of these establishments responsible for the activities
that occur on their premises.
(b)
Certain employees of sexually oriented businesses defined in
this article as "adult theatres" and "cabarets" engage in higher incidences
of certain types of illicit sexual behavior than employees of other
establishments.
(c)
Sexual acts, including masturbation and oral and anal sex, occur
at sexually oriented businesses, especially those which provide private
or semiprivate booths or cubicles for viewing films, videos, or live
sex shows. Furthermore, adult bookstores tend to attract homosexual
men who engage in unprotected, high-risk sexual activities.
(d)
Offering and providing such space encourages such activities,
which creates unhealthy conditions.
(e)
Persons frequent certain adult theatres, adult arcades, and
other sexually oriented businesses for the purpose of engaging in
sex within the premises of such sexually oriented businesses.
(f)
At least 50 communicable diseases may be spread by activities
occurring in sexually oriented businesses, including, but not limited
to, syphilis, gonorrhea, human immune deficiency virus infection (HIV-AIDS),
genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections
and shigella infections.
(g)
The surgeon general of the United States in his report of October
22, 1986, has advised the American public that AIDS and HIV infection
may be transmitted through sexual contact, intravenous drug abuse,
exposure to infected blood and blood components, and from an infected
mother to her newborn.
(h)
According to the best scientific evidence, AIDS and HIV infection,
as well as syphilis and gonorrhea, are principally transmitted by
sexual acts.
(i)
Sanitary conditions in some sexually oriented businesses are
unhealthy, in part, because the activities conducted there are unhealthy
and, in part, because of the unregulated nature of the activities
and the failure of the owners and the operators of the facilities
to self-regulate those activities and maintain those facilities.
(j)
Numerous studies and reports have determined that semen is found
in the areas of sexually oriented businesses where persons view adult-oriented
films.
(k)
Numerous studies have indicated that sexually oriented business
have a substantial negative impact on property values and cause neighborhood
blight, and the appropriate zoning regulations will help prevent the
negative impact of these secondary effects on the community.
(3)
Sexually oriented businesses have adverse secondary effects
in the nature of a public nuisance, which secondary effects should
be regulated to protect the public health, safety and welfare.
(4)
Sexually oriented businesses have operational characteristics,
which should be reasonably regulated in order to protect those substantial
governmental concerns.
(5)
A reasonable zoning regulation and permitting procedure is an
appropriate mechanism to place the burden of that reasonable regulation
on the owners and the operators of the sexually oriented business.
Further, such a regulatory 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 Borough.
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.
(6)
Removal of doors on adult booths and requiring sufficient lighting
on premises with adult booths advances a substantial governmental
interest in curbing the illegal and unsanitary sexual activity occurring
in adult theaters and bookstore.
(7)
Requiring licensees of sexually oriented businesses to keep
information regarding current employees and certain past employees
will help reduce the incidence of certain types of criminal behavior
by facilitating the identification of potential witnesses or suspects
and by preventing minors from working in such establishments.
(8)
The disclosure of certain information by those persons ultimately
responsible for the day-to-day operation and maintenance of the sexually
oriented business, where such information is substantially related
to the significant governmental interest in the operation of such
uses, will aid in preventing the spread of sexually transmitted diseases.
(9)
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 designed
to prevent or who are likely to be witnesses to such activity.
(10)
The fact that an applicant for an adult or sexually oriented
use license has been convicted of a sexually related crime leads to
the rational assumption that the applicant is likely to engage in
that conduct in contravention of this article.
(11)
The barring of such individuals from the management of sexually
oriented uses for a period of years serves as a deterrent to and prevents
conduct which leads to the transmission of sexually transmitted diseases.
(12)
The general welfare, health and safety of the citizens of the
Borough will be promoted by the enactment of this article.
(13)
The limitation of operating hours of sexually oriented businesses
from 8:00 a.m. to 10:00 p.m., Mondays through Saturdays, and closure
of such businesses on Sundays and Christmas 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.
(14)
The reasonable regulation and supervision of sexually oriented
businesses tends to discourage sexual acts and prostitution and thereby
promotes the health, safety and welfare of patrons, clients and customers
of these businesses.
(15)
The continued unregulated operation of such sexually oriented
businesses would be detrimental to the general health, safety and
welfare of citizens of the Borough of Mars.
As used in this article, the following terms shall have the
meanings indicated:
- ADULT ARCADE
- Any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion-picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
- A. A commercial establishment, which, as one of its principal business purposes, offers for sale or rental, for any form of consideration, any one or more of the following:
- (1) Books, magazines, periodicals or other printed matter or photographs, films, motion pictures, videocassettes or video reproductions, slides, or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or
- (2) Instruments, devices, or paraphernalia which is designed for use in connection with specified sexual activities.
- (1)
- B. A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing specified sexual activities or specified anatomical areas and still be categorized as an adult bookstore or adult video store. Such other business purposes will not serve to exempt such commercial establishment from being categorized as an adult bookstore or adult video store, so long as one of its principal business purposes is the offering for sale or rental for consideration of the specified materials which depict or describe specified sexual activities or specified anatomical areas.
- ADULT CABARET
- A nightclub, bar, restaurant, or similar commercial establishment which regularly features:
- A. Persons who appear in the state of nudity;
- B. Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
- C. Films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT MOTEL
- A hotel, motel or similar commercial establishment which:
- A. Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproduction; or
- B. Offers sleeping rooms for rent four or more times in one calendar day during five or more calendar days in any continuous thirty-day period.
- ADULT MOTION-PICTURE THEATER
- A commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT THEATER
- A theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or specified sexual activities.
- CHILD-ORIENTED BUSINESS
- A commercial establishment which, as one of its principal business purposes, serves and/or sells children and their families food, apparel, goods, services, play and/or entertainment.
- ESCORT
- 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 furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip, or other consideration.
- MUNICIPALITY
- Borough of Mars.
- NUDE MODEL STUDIO
- Any place where a person who appears in a state of nudity or displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculpted, photographed, or similarly depicted by other persons who pay money or any form of consideration.
- NUDITY or A STATE OF NUDITY
- The appearance of a human bare buttock, anus, male genitals, female genitals, or female breast.
- PERMITTEE and/or LICENSEE
- A person in whose name a permit and/or license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit and/or license.
- PERSON
- An individual, proprietorship, partnership, corporation, association, or other legal entity.
- SEMINUDE
- A state of dress in which clothing covers no more than the genitals, pubic region, and areola of the female breast, as well as portions of the body covered by supporting straps or devices.
- SEXUAL ENCOUNTER CENTER
- A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
- SEXUALLY ORIENTED BUSINESS
- An adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion-picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.
- SPECIFIED ANATOMICAL AREAS
- The male genitals in a state of sexual arousal and/or the vulva or more intimate parts of the female genitals.
- SPECIFIED SEXUAL ACTIVITIES
- Includes any of the following:
- A. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
- B. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;
- C. Masturbation, actual or simulated; or
- D. Excretory functions as part of or in connection with any of the activities set forth in Subsections A through C above.
- SUBSTANTIAL ENLARGEMENT (OF A SEXUALLY ORIENTED BUSINESS)
- The increase in floor areas occupied by the business by more than 25%, as the floor areas exist on the date of enactment of this article.
- 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; or
- C. The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
Sexually oriented businesses are classified as follows:
A.
Any person who operates a sexually oriented business without a valid
permit issued by the municipality is guilty of a violation of this
chapter.
B.
An application for a permit to operate a sexually oriented business
must be made on a form provided by the Zoning Officer. The application
must be accompanied by a sketch or diagram showing the floor plan
and plot plan configuration of the premises, including a statement
of total floor space occupied by the business. The sketch or diagram
need not be professionally prepared but must be drawn to a designated
scale or drawn with marked dimensions of the interior of the premises
to an accuracy of plus or minus six inches.
C.
The applicant must be qualified according to the provisions of this
article, and the premises must be inspected and found to be in compliance
with the law by the Zoning Officer and the Fire Marshal.
D.
If a person who wishes to operate a sexually oriented business is
an individual, he must sign the application for a permit as an applicant.
If a person who wishes to operate a sexually oriented business is
other than an individual, each individual who has a 10% or greater
interest in the business must sign the application for a permit as
an applicant. If a corporation is listed as an owner of a sexually
oriented business or as the entity which wishes to operate such a
business, each individual having a direct or indirect interest of
10% or greater in the corporation must sign the application for a
permit as an applicant.
E.
The fact that a person possesses other types of municipal permits
does not exempt the person from the requirement of obtaining a sexually
oriented business permit.
A.
The Zoning Officer shall approve the issuance of a permit to an applicant
within 30 days after receipt of an application unless he finds one
or more of the following to be true:
(1)
An applicant is under 18 years of age.
(2)
An applicant or an applicant's spouse is overdue in his
payment to the municipality of taxes, fees, fines, or penalties assessed
against him or imposed upon him in relation to a sexually oriented
business.
(3)
An applicant has failed to provide all information required
for issuance of the permit or has falsely answered a question or request
for information on the application form.
(4)
An applicant is residing with a person who has been denied a
permit by the municipality to operate a sexually oriented business
within the preceding 12 months or residing with a person whose license
to operate a sexually oriented business has been revoked within the
preceding 12 months.
(5)
The premises to be used for the sexually oriented business have
been reviewed and have been disapproved by either the Zoning Officer
or the Fire Marshal as not being in compliance with applicable laws
and ordinances.
(6)
The permit fee required by this article has not been paid.
(7)
An applicant of the proposed establishment is in violation of
or is not in compliance with any of the provisions of this article.
(8)
An individual applicant or any individual holding a direct or
indirect interest of more than 10% of a corporate applicant, or any
of the officers and directors of a corporate applicant, if the applicant
is a corporation, or any of the partners, including limited partners,
if the applicant is a partnership, or the manager or other person
in charge of the operation of the applicant's business has or
have been convicted of an offense involving sexual misconduct within
the Commonwealth of Pennsylvania, including, but not limited to, prostitution,
obscenity and possession of child pornography, or convicted of any
offense in any jurisdiction other than the Commonwealth of Pennsylvania
that would have constituted an offense involving sexual misconduct
if committed within the Commonwealth of Pennsylvania. In order for
approval to be denied pursuant to this subsection, the person's conviction
or release in connection with the sexual misconduct offense must have
occurred within two years of the date of application in the event
of a misdemeanor and within five years of the date of application
in the event of a felony.
B.
The permit, if granted, shall state on its face the name of the person
or persons to whom it is granted, the expiration date, and the address
of the sexually oriented business. The permit shall be posted in a
conspicuous place at or near the entrance to the sexually oriented
business so that it may be easily read at any time.
C.
The Zoning Officer and Fire Marshal shall complete their certification
that the premises are in compliance or not in compliance within 20
days of receipt of the application by the Zoning Officer. The certification
shall be promptly presented to the Zoning Officer.
The annual fee for a sexually oriented business permit is $500.
A.
An applicant or permittee shall permit representatives of the Police
Department, Fire Marshal, Zoning Officer, or other municipal departments
or agencies to inspect the premises of a sexually oriented business,
for the purpose of insuring compliance with the law, at any time that
the sexually oriented business is occupied or open for business.
B.
A person who operates a sexually oriented business, or his agent
or employee, violates this chapter if he refuses to permit such lawful
inspection of the premises at any time it is occupied or open for
business.
A.
Each permit shall expire one year from the date of issuance and may
be renewed only by making application as provided in § 270-121.
Application for renewal should be made at least 30 days before the
expiration date, and, when made fewer than 30 days before the expiration
date, the pendency of the application will not prevent the expiration
of the permit.
B.
If the Zoning Officer denies renewal of a license, the applicant
shall not be issued a permit for one year from the date of denial,
except that after 90 days have elapsed since the date of denial, the
applicant may be granted a permit if the Zoning Officer finds that
the basis for denial of the renewal permit has been corrected or abated.
The Zoning Officer shall suspend a permit for a period not to
exceed 30 days if he determines that a permittee or an employee of
a permittee has:
A.
A person is guilty of a violation of this chapter if he operates
or causes to be operated a sexually oriented business outside of the
district in which a sexually oriented business is a permitted use.
No sexually oriented businesses shall be located outside a district
in which a sexually oriented business is a permitted use. Sexually
oriented businesses as defined herein shall be permitted in the Heavy
Industrial (H-I) District as a special exception.
B.
A person is guilty of a violation of this chapter if he operates
or causes to be operated a sexually oriented business within 500 feet
of:
C.
A person is guilty of a violation of this chapter if he causes or
permits the operation, establishment, substantial enlargement, or
transfer of ownership or control of a sexually oriented business within
600 feet of another sexually oriented business.
D.
A person is guilty of a violation of this chapter if he causes or
permits the operation, establishment, or maintenance of more than
one sexually oriented business in the same building, structure, or
portion thereof or the increase of floor areas of any sexually oriented
business in any building, structure, or portion thereof containing
another sexually oriented business.
E.
For the purpose of this article, measurement shall be made in a straight
line, without regard to intervening structures or objects, from the
nearest portion of the building or structure used as a part of the
premises where a sexually oriented business is conducted to the nearest
property line of the premises of a church, public or private pre-elementary,
elementary, or secondary school, public library, child-care facility,
child-oriented business, or nursery school.
F.
For purposes of Subsection C of this section, the distance between
any two sexually oriented businesses shall be measured in a straight
line, without regard to intervening structures or objects, from the
closest exterior wall of the structure in which each business is located.
G.
Any sexually oriented business lawfully operating on the date of
enactment of this article that is in violation of any part of Subsections
A through F of this section shall be deemed a nonconforming use. Any
preexisting nonconforming use sexually oriented business that is abandoned
or is not used as such for a period of at least six months loses its
preexisting nonconforming status and must thereafter comply with all
provisions of this article to reopen. At the time of the writing of
this article, there are no such preexisting uses in the Borough. If,
in the event that two or more sexually oriented businesses are within
600 feet of one another and otherwise in a permissible location, the
sexually oriented business which was first established and continually
operating at a particular location is the conforming use and the later-established
business is nonconforming.
H.
A sexually oriented business lawfully operating as a conforming use
is not rendered a nonconforming use by the location, subsequent to
the grant or renewal of the sexually oriented business permit, of
a church, public or private pre-elementary, elementary, or secondary
school, public library, child-care facility, child-oriented business,
or nursery school within 500 feet of the sexually oriented business.
This provision applies only to the renewal of a valid permit and does
not apply when an application for a permit is submitted after a permit
has expired or has been revoked.
It is a defense to prosecution under §§ 270-121
and 270-126 that a person appearing in a state of nudity did so in
a modeling class operated:
A.
By a proprietary school, licensed by the Commonwealth of Pennsylvania,
or a college, junior college, or university supported entirely or
partly by taxation;
B.
By a private college or university, which maintains and operates
educational programs in which credits are transferable to a college,
junior college, or university supported entirely or partly by taxation;
or
C.
In a structure:
(1)
Which has no sign visible from the exterior of the structure
and no other advertising that indicates a nude person is available
for viewing;
(2)
Where, in order to participate in a class, a student must enroll
at least three days in advance of the class; and
(3)
Where no more than one nude model is on the premises at any
one time.
A person who operates or causes to be operated a sexually oriented
business without a valid permit or in violation of this article is
subject to an action in equity or a suit for injunction, as well as
citations for violations of this chapter.
A person who operates or causes to be operated a sexually oriented
business without a valid permit is in violation of this article and
shall pay to the Borough fines and penalties as set forth in Article
XVIII of this chapter.
