[HISTORY: Adopted by the Borough Council of the Borough of
Millvale 10-14-1997 by Ord. No. 2080. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 312.
A.
The purpose and intent of this chapter is to regulate sexually oriented
businesses to promote the health, safety, and general welfare of the
citizens of the Borough of Millvale. Establish reasonable and uniform
regulations to prevent the continued deleterious location and concentration
of sexually oriented businesses within the Borough of Millvale.
B.
The provisions of this chapter have neither the purpose nor effect
of imposing a limitation or restriction on the content of any communicative
materials, including sexually oriented materials. It is not the intent
nor effect of this chapter to restrict or deny access by adults to
sexually oriented materials protected by the First Amendment or to
deny access by the distributors and exhibitors of sexually oriented
entertainment to their intended market; neither is it the intent nor
effect of this chapter to condone or legitimize the distribution of
obscene material.
The Millvale Borough Council finds:
A.
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.
B.
A reasonable licensing procedure is an appropriate mechanism to place
the burden of that reasonable regulation on the owners and the operators
of the sexually oriented business. Further, such a licensing procedure
will place a heretofore nonexistent incentive on the operators to
see 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.
C.
Removal of doors on viewing booths and requiring sufficient lighting
on premises with viewing booths advances a substantial governmental
interest in discouraging the advances a substantial governmental interest
in discouraging the illegal and unsanitary sexual activity occurring
in adult theaters and establishments.
D.
Requiring licensees of sexually oriented business to keep information
regarding current employees and certain past employees will help reduce
the incident of certain types of criminal behavior by facilitating
the identification of potential witnesses or suspects and by preventing
minors from working in such establishments.
E.
The disclosure of certain information by those persons ultimately
responsible for the day-to-day operation and maintenance of the sexually
oriented business, limiting the adverse secondary effects of such
businesses.
F.
It is desirable in the prevention of the spread of communicable diseases
to obtain a limited amount of information regarding certain employees
who may engage in the conduct which this chapter is designed to prevent
or who are likely to be witnesses to such activity.
G.
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 chapter.
H.
The barring of such individuals from the management of sexually oriented
business for a period of years serves as a deterrent to and prevents
conduct which leads to the transmission of sexually transmitted diseases.
Sexually oriented businesses are classified as follows:
As used in this chapter, the following terms, 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 an invitee
wherein coin-operated, slug-operated, or electronically; electrically
or mechanically controlled still or motion-picture machines, projectors,
computers/Internet, or other images to five or fewer persons per machine
at any one time and where the images so displayed and distinguished
or characterized by the depicting or describing of specified sexual
activities; or specified anatomical areas: the male genitals in a
state or sexual arousal and/or vulva or more intimate parts of the
female genitals and/or anus.
A commercial establishment which, as one of the its principal
purposes, 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, videocassettes or video reproductions, slides,
CD-ROM discs or other computer software, or other visual representations
which depict or describe specified sexual activities or specified
anatomical areas;
Instruments, devices or paraphernalia which are designed for
use in connection with specified sexual activities.
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," so long as one of its principal business purposes is the offering
for sale or rental for consideration and specified materials which
depict or described specified sexual activities or specified anatomical
areas.
A nightclub, bar, restaurant, or other commercial establishment
which regularly features:
Persons who appear in a state of nudity or semi-nudity;
Live performances which are characterized by the exposure of
specified anatomical areas or by specified sexual activities;
Films, motion pictures, videocassettes, slides, or other photographic
reproductions which are characterized by the depiction of description
of specified sexual activities of specified anatomical areas.
A hotel, motel or similar commercial establishments which:
Offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films,
motion pictures, videocassettes, slides or similar 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 reproductions;
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.
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.
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.
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 privately perform a striptease
for another person.
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.
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; or
The relocation of any sexually oriented business.
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, sculptured, photographed or similarly depicted
by other persons who pay money or any form of consideration.
The appearance of a human bare buttock, anus, male genitals,
female genitals, or female breast.
A place where the principal and substantial activity is the
sale of food and the incidental sale of nonintoxicating beverages
or intoxicating beverages if licensed by the Pennsylvania Liquor Control
Board.
A state of dress in which clothing covers no more than genitals,
pubic region and areola of the female breast, as well as portions
of the body covered by supporting straps or devises.
A business or commercial enterprise that, as one of its primary
business purposes, offers for any form of consideration:
Includes any of the following:
B.
An application for a permit to operate a sexually oriented business must be made on a form provided by the Zoning Officer of the Borough. The application must be accompanied by a sketch or diagram showing the floor plan and plat plan configuration of the premises, including a statement of the 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. Parking facilities must be specifically identified and shall meet all requirements of Chapter 312, Zoning. Nonconforming structures and those structures not having the required parking sites shall not be issued permits unless the sexually oriented business was in existence as a lawful use prior to date of this chapter.
C.
The applicant must be qualified according to the provisions of this
chapter, 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/she must sign the application for a permit as 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
applicant. If a corporation is listed as 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 applicant.
E.
The fact that a person possesses other types of Borough permits does
not exempt the person from the requirement of obtaining a sexually
oriented business permit.
A.
The Zoning Officer of the Borough of Millvale 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 Borough of taxes, fees, fines or penalties assessed against
him/her or imposed upon him/her in relation to a sexually oriented
business.
(3)
An applicant has failed to provide information reasonably necessary
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 Borough to operate a sexually oriented business within the
preceding 12 months or residing with a person whose license to operate
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 chapter 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 chapter.
(8)
An individual applicant or any individual holding a direct or indirect
interest of more than 10% of a corporate applicant if the applicant
is a corporation or any of the offices 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 of 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, 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
or persons' conviction or release in connection with the sexual
misconduct offense must have occurred within two years of the date
of the 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 Office.
The annual fee for a sexually oriented occupancy permit shall
be as set by resolution of the Borough Council.
A.
An applicant or permittee shall permit representatives of the Police
Department, Fire Marshal, the Zoning Officer or other Borough departments
or agencies to inspect the premises or a sexually oriented business
for the purpose of ensuring 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/her agent
or employee violates this chapter if he/she refuses to permit such
lawful inspection of the premises at any time it occupied or open
for business.
The Zoning Officer shall suspend a permit for a period not to
exceed 30 days if he/she determines that a permittee or an employee
of a permittee has:
A.
Violated or is not in compliance with any section of this chapter;
B.
Engaged in excessive use of alcoholic beverages while on the sexually
oriented business premises;
C.
Refused to allow an inspection of the sexually oriented business
premises as authorized by this chapter;
D.
Knowingly permitted gambling by any person in or on the sexually
oriented business premises;
E.
Failed to man managers' station and/or maintain viewing room
as set forth herein.
B.
The Zoning Officer shall revoke a permit if he determines that:
(2)
A permittee gave false or misleading information in the material
submitted to the Borough during the application process.
(3)
A permittee or an employee of a permittee has knowingly allowed possession,
use or sale of controlled substance of the premises.
(4)
A permittee or an employee of a permittee has knowingly allowed prostitution
on the premises.
(5)
A permittee or an employee of a permittee knowingly operated the
sexually oriented business during a period of time when the permittee's
permit was suspended.
(6)
A permittee or an employee of a permittee has knowingly allowed any
act of sexual intercourse, sodomy, oral copulation, masturbation or
other explicit sexual conduct to occur in or on the permitted premises.
(7)
A permittee is delinquent in payment to the Borough or state of any
taxes or fees relating to sexually oriented business.
C.
When the Zoning Officer revokes a permit, the revocation shall continue for one year, and the permittee shall not be issued a sexually oriented business permit for one year from the date revocation became effective, except that if the revocation is pursuant to Subsection B(1) above, the revocation shall be effective for two years in the event of a misdemeanor or five years in case of a felony.
D.
After denial or an application or denial of a renewal of an application
or suspension or revocation of a permit, the applicant or licensee
or permittee shall have the right to appeal said action and to seek
prompt judicial review of such administrative action in any court
of competent jurisdiction.
A permittee shall not transfer his permit to another person.
A permittee shall not operate a sexually oriented business under the
authority of a permit at any place other than the address designated
in the application.
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 business shall be located outside a district
in which a sexually oriented business is a permitted use. A sexually
oriented business, as defined herein, shall be permitted in I Industrial
District as a special exception.[1]
B.
A person is guilty of a violation of this chapter if he operates
or causes to be operated a sexually oriented business within the below-listed
distances of the following institutions or residences, and no permit
will be issued for any such sexually oriented business which intends
to be located within the below-listed distances of such institutions
or residences:
(1)
A church: 500 feet.
(2)
A public or private pre-elementary, elementary or secondary school:
1,000 feet.
(3)
A public library: 500 feet.
(4)
A child-care facility or nursery school: 500 feet.
(5)
A public park adjacent to any residential district; 1,000 feet.
(6)
A child-oriented business: 500 feet.
(7)
A residence: 200 feet.
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, and no permit
shall be issued for any such sexually oriented business intended to
be located within 5,000 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 chapter, 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;
or nursery school or to the nearest boundary of an affected public
park or residence.
F.
For the purpose of this section of this chapter, 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 date of enactment of this chapter that is in violation of Subsections A through F of this section shall be deemed a nonconforming use. Such nonconforming uses shall not be increased, enlarged, extended or altered, except that the use may be changed to a conforming use. In the event that two or more sexually oriented businesses are within 5,000 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 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; nursery school; public park; or residence within those distances set forth in Subsection B 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.
A.
A person who operates or causes to be operated a sexually oriented
business, other than an adult motel, which exhibits on the premises
a viewing room of less than 150 square feet of floor space a film
or videocassette or other video or other image production or reproduction
which depicts specified sexually activities or specified anatomical
areas, shall comply with the following requirements:
(1)
The application for a permit to operate a sexually oriented business
shall be accompanied by a floor plan and plot plan diagram of the
premises, showing a plan thereof specifying the location of one or
more manager's stations, the location of all viewing rooms, partitions
and doors and the location of all overhead lighting fixtures and designating
any portion of the premises in which patrons will not be permitted.
A manager's station may not exceed 32 square feet of floor area.
The diagram shall also designate the place at which the permit will
be conspicuously posted, if granted. A professionally prepared diagram
in the nature of an engineer's or architect's blueprint
shall not be required; however, each diagram should be oriented to
the north or to some designated street or object and should be drawn
to a designated scale or with marked dimensions sufficient to show
the various internal dimensions of all areas of the interior of the
premises to an accuracy of plus or minus six inches. The Zoning Officer
may waive the foregoing diagram for renewal application if the applicant
adopts a diagram that was previously submitted and certifies that
the configuration of the premises has not been altered since it was
prepared.
(2)
The application shall be sworn to be true and correct by the applicant.
(3)
No alteration in the configuration or location of a manager's
station may be made without the prior approval Zoning Officer or his
designee.
(4)
It is the duty of the owners of the premises to ensure that at least
one employee is on duty and situated in each manager's station
at all times that any person is present inside the premises.
(5)
The interior of the premises shall be configured in such a manner
that there is an unobstructed view from a manager's station of
every area of the premises to which any patron is permitted access
for any purpose, excluding rest rooms. Rest rooms may not contain
video reproduction or viewing 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 unobstructed
view of each area of the premises to which any patron is permitted
access for any purpose from at least one of the manager's stations.
The view required in this subsection must be direct line of sight
from the manager's station.
(6)
It shall be the duty of the owners and operators, and it shall also be the duty of any agents and employees present on the premises, to ensure that the view area specified in Subsection A(5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection A(1).
(7)
No viewing room may be occupied by more than one person at any time.
No connections or openings to an adjoining viewing room shall be permitted.
(8)
The premises shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place to which patrons are
permitted access at an illumination of not less one footcandle as
measured at the floor level.
(9)
It shall be the duty of the owners and operators and it shall also
be the duty of any agents and employees present in the premises to
ensure that the illumination described above is maintained at all
times that any patron is present in the premises.
It is a defense to prosecution under this chapter 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 chapter is
subject to an action in equity or a suit for injunctions as well as
citations for violations of this chapter.
Upon enactment, existing businesses shall have one year to come into compliance with the regulations contained in this chapter, excluding the location requirements of § 248-12 contained herein.
A person commits a violation of this chapter if the person acts
as an escort or agrees to act as an escort for any person under the
age of 18 years.
A.
A nude model studio shall not employ any person under the age of
18 years;
B.
A person under the age of 18 years commits a violation of this chapter
if the person appears seminude or in a state of nudity in or on the
premises of a nude model studio. It is a defense to prosecution under
this subsection if the person under 18 years was in a rest room not
open to public view or visible to any other person;
C.
A person commits a violation of this chapter if the person appears
in a state of nudity, or knowingly allows another to appear in a state
of nudity in an area of a nude model studio premises which can be
viewed from the public right-of-way;
D.
A nude model studio shall not place or permit a bed, sofa or mattress
in any room on the premises, except that a sofa may be placed in a
reception room open to the public.
A.
It shall be a violation of this chapter for a person to knowingly
and intentionally, in a public place:
B.
For purposes of this chapter, "public place" includes all outdoor
area 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 section shall not apply to:
(1)
Any child under 10 years of age;
(2)
Any individual exposing a breast in the process of breastfeeding
an infant under two years of age; or
(3)
The exercise of free speech or free expression in the form of artistic
and theatrical performances. It is the intention of the Borough that
this section be construed, enforced and interpreted in such a manner
as will cause the least possible infringement of the constitutional
rights of free speech, free expression, due process, equal protection
or other fundamental rights.
(4)
It shall be a violation of this chapter for a person who knowingly
or intentionally in a sexually oriented business appears in a seminude
condition unless the person is an employee who, while seminude, shall
be at least 10 feet from any patron or customer and on a stage at
least two feet from the floor.
C.
It shall be a violation of this chapter for an employee, while seminude
in a sexually oriented business, to solicit any pay or gratuity from
any patron or customer for any patron or customer to pay or give any
gratuity to an employee, while said employee is seminude in a sexually
oriented business.
A person commits a violation of this chapter if the person knowingly
allows a person under the age of 18 years on the premises of a sexually
oriented business.
A.
Any person who violates or permits a violation of this chapter shall,
upon conviction in a summary proceeding brought before a Magisterial
District Judge under the Pennsylvania Rules of Criminal Procedure,
be guilty of a summary offense and shall be punishable by a fine of
not more than $1,000, plus court costs and reasonable attorneys' fees
incurred by the Borough in the enforcement proceedings. Upon judgment
against any person by summary conviction, or by proceedings by summons
on default of the payment of the fine or penalty imposed and the costs,
the defendant may be sentenced and committed to the Borough lockup
for a period not exceeding 10 days or to the county jail for a period
not exceeding 30 days. Each day or portion thereof that such violation
continues or is permitted to continue shall constitute a separate
offense, and each section of this chapter that is violated shall also
constitute a separate offense.[1]
B.
The Borough may commence civil enforcement proceedings to assess
fines for violations of this chapter. In addition to such civil enforcement
proceedings the Borough may commence, at any time, appropriate actions
in equity or otherwise to prevent, restrain, correct, enjoin or abate
violations of this chapter.
