[Ord. 885, 6/9/1994, § 1]
It is the purpose of this Part to regulate sexually oriented
businesses to promote the health, safety, and general welfare of the
citizens of the Borough and to establish reasonable and uniform regulations
to prevent the continued deleterious location and concentration of
sexually oriented businesses within the Borough. The provisions of
this Part have neither the purpose nor effect of imposing a limitation
or restriction on the content of any communicative materials, including
sexually oriented materials. Similarly, it is not the intent nor effect
of this Part 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
Part to condone or legitimize the distribution of obscene material.
[Ord. 885, 6/9/1994, § 2]
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."
ADULT BOOKSTORE OR ADULT VIDEO STORE
A commercial establishment which has a substantial or significant
portion of its stock-in-trade, and offers for sale or rent for any
form of consideration, any one or more of the following:
A.
Books, magazines, periodicals or other printed, matter, or photographs,
films, motion pictures, video cassettes or video reproductions, slides,
or other visual representations distinguished or characterized by
their emphasis on matters depicting, describing or relating to "specified
sexual activities" or "specified anatomical areas."
B.
Instruments, devices, or paraphernalia which are designed for
use in connection with "specified sexual activities."
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A commercial establishment may have substantial or significant
portions of its stock-in-trade in other goods and/or services that
do not involve the offering for sale or rental of material distinguished
or characterized by its emphasis on matters depicting, describing
or relating to "specified sexual activities" or "specified anatomical
areas" and still be categorized as "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
meets the definition of an "adult bookstore" or "adult video store"
set forth above.
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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."
C.
Films, motion pictures, video cassettes, 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 type of photographic reproductions.
D.
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, video cassettes, 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."
BOROUGH
The Borough of Shillington.
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.
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.
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.
SEMI-NUDE
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 on of its primary
business purposes, offers for any of consideration:
A.
Physical contact in the form of wrestling or tumbling between
persons of the opposite sex.
B.
Activities between male and female persons and/or persons of
the same sex when one or more of the persons is in a state of nudity
or semi-nude.
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 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.
D.
Excretory functions as part of or in connection with any of
the activities set forth herein.
TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS
Includes any of the following:
A.
The sale, lease, or sublease of the business.
B.
The transfer of securities which constitute a controlling interest
in the business, whether by sale, exchange, or similar means.
C.
The establishment of a trust, gift, or other similar legal device
which transfers the ownership or control of the business, except for
transfer by bequest or other operation of law upon the death of the
person possessing the ownership or control.
[Ord. 885, 6/9/1994, § 3]
1. Sexually oriented businesses are classified as follows:
B. Adult bookstores or adult video stores.
E. Adult motion picture theaters.
I. Sexual encounter centers.
[Ord. 885, 6/9/1994, § 5]
1. Any person who operates a sexually oriented business without a valid
permit issued by the Borough is guilty of a violation of this Part.
2. An application for a permit to operate a sexually oriented business
must be made on a form provided by the Code Enforcement Officer of
the Borough. 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.
3. The applicant must be qualified according to the provisions of this
Part and the premises must be in compliance with this and all other
applicable Borough ordinances.
4. If a person who wished to operate a sexually oriented business is
an individual, he 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 10% or greater interest
in the business must sign the application for permit as applicant.
If a corporation is listed as the owner of a sexually oriented 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.
5. 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.
[Ord. 885, 6/9/1994, § 5]
1. The Borough Code Enforcement Officer shall issue 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, in which event he shall deny
the permit within said thirty-day period.
A. An applicant is under 18 years of age.
B. 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.
C. The premises to be used for the sexually oriented business do not
meet the requirements of the Borough Code and ordinances.
D. The permit fee required by this Part has not been paid.
E. An applicant of the proposed establishment is in violation of or
is not in compliance with any of the provisions of this Part.
2. 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.
[Ord. 885, 6/9/1994, § 6; as amended by Ord. 1025,
10/14/2004]
The annual fee for a sexually oriented business permit is in
an amount as established from time to time by resolution of Borough
Council.
[Ord. 885, 6/9/1994, § 7]
1. An applicant, or permittee, shall permit representatives of the Police
Department, Fire Marshall, Health Officer, Code Enforcement Officer,
or other Borough 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.
2. A person who operates a sexually oriented business or his agent or
employee violates this Part if he refuses to permit such lawful inspection
of the premises at any time it is occupied or open for business.
[Ord. 885, 6/9/1994, § 8]
1. Each permit shall expire one year from the date of issuance and may be renewed only by making application as provided in §
13-805. Application for renewal should be made at least 30 days before the expiration date, the pendency of the application will not prevent the expiration of the permit. A decision to renew or deny shall be made within 30 days of receipt of the application by the Borough.
2. Where the applicant certifies, under penalty of perjury, that no
change has occurred in the use, possession and/or physical structure
of the premises since the date of the issuance of the last permit,
the applicant shall be permitted to continue the operation of its
business under the exact provisions of said permit pending a decision
by the Borough Code Enforcement Officer on the renewal application.
In the event the renewal application is denied, applicant may continue
to operate its business under the exact conditions of the expired
permit until said denial is reviewed and determined by the Court of
Common Please of Berks County, Pennsylvania, provided applicant appeals
said denial within 30 days of the decision of the Borough.
[Ord. 885, 6/9/1994, § 9]
1. The Code Enforcement 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. Violated or is not in compliance with any section of this Part.
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 Part.
D. Knowingly permitted gambling by any person on the sexually oriented
business premises.
E. Failed to man managers' stations and/or maintain viewing rooms as set forth in §
13-813.
[Ord. 885, 6/9/1994, § 10]
1. The Code Enforcement Officer shall revoke a permit if a cause of suspension set forth in §
13-809 occurs and the permit has been suspended within the preceding 12 months.
2. The Code Enforcement Officer shall revoke a permit if:
A. A permittee gave false or misleading information in the material
submitted to the Borough during the application process.
B. A permittee or an employee of a permittee has knowingly allowed possession,
use, or sale of controlled substances on the premises.
C. A permittee or an employee of a permittee has knowingly allowed prostitution
on the premises.
D. 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.
E. 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.
3. When the Code Enforcement 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.
4. After denial of 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 to the Borough
Council of the Borough of Shillington and, subsequently, to the Court
of Common Pleas of Berks County if not satisfied with the decision
of Borough Council.
[Ord. 885, 6/9/1994, § 11]
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 designate
in the application.
[Ord. 885, 6/9/1994, § 12]
1. A person is guilty of a violation of this Part 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.
2. A person is guilty of a violation of this Part if he operates or
causes to be operated a sexually oriented business within 100 feet
of the boundary of a residential district or within 1,000 feet of:
B. A public or private pre-elementary, elementary or secondary school.
D. A child care facility or nursery school.
E. A public park adjacent to any residential district.
3. A person is guilty of a violation of this Part if he causes or permits
the operation, establishment, substantial enlargement or transfer
of ownership or control of a sexually oriented business within 1,000
feet of another sexually oriented business.
4. A person is guilty of a violation of this Part 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.
5. For the purpose of this Part, 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
part.
6. For purposes of Subsection
3 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.
7. Any sexually oriented business lawfully operating on date of enactment of this Part that is in violation of Subsections
1 through
6 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 1,000 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 the conforming use and the later-established business is nonconforming.
[Ord. 885, 6/9/1994, § 13]
1. A person who operates or causes to be operated a sexually oriented
business other than an adult motel, which exhibits on the premises
in a viewing room of less than 150 square feet of floor space, a film
or video cassette, or other video or other image production or reproduction
which is distinguished or characterized by its emphasis on matters
depicting, describing or relating to "specified sexual activities"
or "specified anatomical areas," shall comply with the following requirements:
A. All viewing rooms shall be open to an adjacent public area of the
premises.
B. 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 and
adjacent open public areas, partitions and doors and the location
of all viewing rooms and adjacent open public areas, 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 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 Code Enforcement Officer
may waive the foregoing diagram adopts a diagram that was previously
submitted and certifies that the configuration of the premises has
not been altered since it was prepared.
C. The application shall be sworn to be true and correct by the applicant.
D. No alteration in the configuration or location of a manager's
station may be made without the prior approval of the Code Enforcement
Officer or his designee.
E. It is the duty of the owners and operators 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 patron is present inside the premises.
F. The interior of the premises shall be configured in such a manner
that there is an unobstructed view from the public area adjacent to
the viewing room and from the manager's station in every area
of the premises to which any patron is permitted access for any purpose,
excluding restrooms. Restrooms may not contain video reproduction
or viewing equipment. If the premises has two or more manager's
stations designated, 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 patrons permitted access for any purpose, other
than restrooms, from each of the manager's stations. The view
required in this subsection must be direct line of sight from the
manager's station and the public areas adjacent to viewing rooms.
G. 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 1E 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 not been designated as an area in which
patrons will not be permitted in the application filed pursuant to
Subsection 1A of this section.
H. 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.
I. 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 one footcandle
as measured at the floor level.
J. 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.
2. A person having a duty under Subsection 1A through D of this section
is guilty of a violation of this Part if he knowingly fails to fulfill
that duty.
[Ord. 885, 6/9/1994, § 14]
1. It is a defense to prosecution under §§
13-805 and
13-812 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.
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.
(3)
Where no more than one nude model is one the premises at any
one time.
[Ord. 885, 6/9/1994, § 15]
A person who operates or causes to be operated a sexually oriented
business without a valid permit or in violation of this Part is subject
to an action in equity or a suit for injunction as well as citations
for violations of this Part.