Brookville City Zoning Code
ARTICLE VII
Sexually Oriented Businesses
§ 230-69 Purpose and intent.
A.
Whereas the Act of 1996, October 16, P.L. 696, No. 120, 68 Pa.C.S.A. § 5501, contains various findings of the General Assembly of the Commonwealth of Pennsylvania, which findings are hereby adopted by the Brookville Borough Council;
B.
Whereas it is not the intent of this article to suppress any freedom of speech or freedom of expression activities protected by the First Amendment of the United States Constitution or Article I, § 7 of the Pennsylvania Constitution;
C.
Whereas it is not the intent of the Brookville Borough Council to condone or to legitimize the distribution of obscene materials;
D.
Whereas the stated findings, purposes and intent of the Brookville Borough Council in adopting this sexually oriented business article shall be interpreted consistently with the decision of the Pennsylvania Supreme Court, Pap's A.M. t/d/b/a Kandyland v. City of Erie, Pa., LEXIS 2806, Nos. 16 and 17 WAP 1997, filed December 19, 2002.
E.
Whereas it is a stated purpose of this article to comply with the Pennsylvania Supreme Court decision of Pap's A.M. t/d/b/a Kandyland v. City of Erie, supra, and it is specifically not a stated purpose of this article to combat any secondary effects of adult businesses that may infringe upon any citizen's freedom of expression.
§ 230-70 Definitions.
As used in this article, the following terms shall have the meanings indicated:
Any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically 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.
An establishment having a substantial or significant portion of its stock and trade in, or an establishment which as one of its principal business purposes offers for sale, books, films, videocassettes or magazines and other periodicals which are distinguishable or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities and, in conjunction therewith, has facilities for the presentation of adult entertainment for observation by patrons.
An exhibition of any adult-oriented motion pictures, meaning those distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas.
A live performance, display or dance of any type which has as a significant or substantial portion of the performance any actual or simulated performance of specified sexual activities or exhibition and viewing of specified anatomical areas, removal of articles of clothing or appearing unclothed, pantomiming, modeling or any other personal services offered customers.
An enclosed building with a capacity of less than 50 persons which has a principal business purpose of exhibiting, presenting or selling material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons.
A hotel, motel or similar commercial establishment which.
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 rights-of-way which advertises the availability of this adult type of photographic reproductions; or
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.
An enclosed building with a capacity of 50 or more persons which has a principal business purpose of exhibiting, presenting or selling material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons.
Includes, without limitation, the following establishments when operated for profit, whether direct or indirect.
Adult bookstores.
Adult motion-picture theaters.
Adult minimotion-picture theaters.
Any premises to which the public, patrons or members are invited or admitted and which are so physically arranged as to provide booths, cubicles, rooms, studios, compartments or stalls separate from the common areas of the premises for the purpose of viewing adult-oriented motion pictures or where an entertainer provides adult entertainment to a member of the public, patron or a member.
An adult entertainment studio or any premises that are physically arranged and used as such, whether advertised or represented as an adult entertainment studio, rap studio, exotic dance studio, encounter studio, sensitivity studio, modeling studio or any other term of like import.
The term "booths, cubicles, rooms, studios, compartments or stalls" for purposes of defining adult-oriented establishments does not mean enclosures which are private offices used by the owner, manager or persons employed on the premises for attending to the tasks of their employment, and which are not held out to the public for the purpose of viewing motions pictures or other entertainment for a fee, and which are not open to any persons other than employees.
The Borough of Brookville.
A commercial establishment, which as one of its principal business purposes serves, sells and/or caters food, apparels, goods, services, play and/or entertainment to children and their families.
Any and all persons, including independent contractors, who work in or at or render any services directly related to the operation of an adult-oriented establishment.
A person who provides entertainment within an adult-oriented establishment, whether or not a fee is charged or accepted for entertainment and whether or not entertainment is provided as an employee or an independent contractor.
A person who, for consideration, agrees or offers to act as a companion, guide, or date for another person and who agrees or offers to privately model lingerie or to 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.
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 person, partnership, or corporation operating, conducting, or maintaining an adult-oriented establishment.
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.
An individual proprietorship, partnership, corporation, association, or other legal entity.
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 the genitals, pubic region, and areola of the female breast, as well as portions of the body covered by supporting straps or devices.
Does not include any of the following:
Medical publications or films or bona fide educational publications or films.
Any art or photography publications which devote at least 25% of the lineage of each issue to articles and advertisements dealing with subjects of art or photography.
Any news periodical which reports or describes current events and which from time to time publishes photographs of nude or seminude persons in connection with the dissemination of the news.
Any publications or films which describe and report different cultures and which from time to time publish or show photographs of depictions of nude or seminude persons when describing cultures in which nudity is indigenous to the populations.
A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration.
An adult arcade, adult bookstore or adult video store, adult motel, adult minimotion-picture theater, adult motion-picture theater, escort agency, nude model studio, or sexual encounter center or any other adult-oriented establishment.
Includes any of the following:
Of a sexually oriented business, means the increase in floor areas occupied by the business by more than 25%, as the floor areas exist on date of enactment of this article.
Of a sexually oriented business, means and 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; or
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.
The Zoning Officer and/or Building Inspector of the Borough of Brookville.
§ 230-71 Classifications.
Sexually oriented businesses are classified as follows:
§ 230-72 Permit required.
A.
Any person who operates a sexually oriented business without a valid permit issued by the Zoning Hearing Board granting such use as a special exception is guilty of a violation of the Zoning Ordinance of the Borough.
B.
An application for a permit to operate a sexually oriented business must be made on a form provided by the Zoning Officer or Building Inspector of the Brookville 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 the total floor space occupied by the business. The sketch or diagram need not be professionally prepared and sealed by a registered professional licensed in the commonwealth 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 Zoning Ordinance requirements. 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 the date of this article.
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 or Building Inspector.
D.
If a person who wishes 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 a ten-percent 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.
§ 230-73 Special exceptions and issuance of permit.
A.
The Zoning Hearing Board of the Borough of Brookville shall hear and decide requests for a special exception to operate a sexually oriented business and shall approve the issuance of a permit to an applicant within 30 days after receipt of an application and permit fee, unless it 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 or imposed upon him in relation to a sexually oriented business.
(3)
An applicant has failed to provide information reasonably necessary for issuance of the special exception and 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 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 Building Inspector as not being in compliance with applicable laws and ordinances and the Zoning Hearing Board affirms such determination.
(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 or persons' conviction or release in connection with the sexual misconduct offense must have occurred within three 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.
If the special exception is granted, the permit 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 an open 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 or Building Inspector shall complete his certification that the premises are in compliance or not in compliance within 20 days of receipt of the application by the Zoning Officer or Building Inspector. The certification shall be promptly presented to the Zoning Hearing Board.
§ 230-74 Fees.
The annual fee for a sexually oriented occupancy permit is $3,000 or such other fee as the Borough Council may establish.
§ 230-75 Inspections.
A.
An applicant or permittee shall permit representatives of the Police Department, Fire Marshal, the Zoning Officer/Building Inspector or other Borough departments or agencies to inspect the premises of 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 agent or employee violates the Zoning Ordinance of the Borough if he refuses to permit such lawful inspection of the premises at any time it is occupied or open for business.
§ 230-76 Expiration of permit.
A.
Each permit shall expire one year from the date of issuance and may be renewed only by making application to the Zoning Hearing Board. Applications for renewal shall be made at least 45 days before the expiration date and, when made fewer than 45 days before the expiration date, the pendency of the application will not prevent the expiration of the permit.
B.
If the Zoning Hearing Board 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 Hearing Board finds that the basis for the denial of the renewal permit has been corrected or abated.
§ 230-77 Suspension of permit.
The Zoning Officer/Building Inspector 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 article.
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 article.
D.
Knowingly permitted gambling by any person on the sexually oriented business premises.
E.
Failed to staff managers' stations and/or maintain viewing rooms as set forth in § 230-81A(4).
§ 230-78 Revocation of permit.
A.
The Zoning Officer or Building Inspector shall revoke a permit if a cause of suspension set forth in § 230-77 occurs and the permit has been suspended within the preceding 12 months.
B.
The Zoning Officer or Building Inspector shall revoke a permit if he determines that.
(1)
A permittee, or any of the persons specified in § 230-73A(8), is or has been convicted of the offenses specified in § 230-73A(8).
(2)
A permittee gave false or misleading information in the material submitted to the Borough or the Zoning Hearing Board during the application process.
(3)
A permittee or an employee of a permittee has knowingly allowed possession, use, or sale of controlled substances on 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 businesses.
C.
When the Zoning Officer/Building Inspector 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 the case of a felony.
D.
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 and to seek prompt judicial review of such administrative action in any court of competent jurisdiction.
§ 230-79 Transfer of permit.
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.
§ 230-80 Locations of sexually oriented businesses.
A.
A person is guilty of a violation of the Zoning Ordinance if he operates or causes to be operated a sexually oriented business in any location in which a sexually oriented business is not a permitted use. No sexually oriented businesses shall be located outside a location in which a sexually oriented business is a permitted use. Sexually oriented businesses as defined herein shall be permitted only as a special exception in a LI-2 Light Industrial Zoning District.
B.
A person is guilty of a violation of the Zoning Ordinance if he operates or causes to be operated a sexually oriented business within the below listed distances of the following institutions or residences, and a special exception shall not be granted 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: 2,500 feet.
(2)
A public or private pre-elementary, elementary, or secondary school: 2,500 feet.
(3)
A public library: 2,500 feet.
(4)
A child-care facility or nursery school: 2,500 feet.
(5)
A public park adjacent to any residential district: 2,500 feet.
(6)
A child-oriented business: 2,500 feet.
(7)
A residence: 300 feet.
C.
A person is guilty of a violation of the Zoning Ordinance if he causes or permits the operation, establishment, substantial enlargement, or transfer of ownership of control of a sexually oriented business, and no special exception shall be granted and no permit shall be issued for any such sexually oriented business intended to be located within 2,500 feet of another sexually oriented business.
D.
A person is guilty of a violation of the Zoning Ordinance 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, or nursery school; or to the nearest boundary of an affected public park or residence.
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 date of enactment of this article 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 2,500 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, 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 special exception and a permit is submitted after a permit has expired or has been revoked.
§ 230-81 Regulations pertaining to exhibition of sexually explicit films or videos.
A.
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 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 be required; however, each diagram shall be oriented to the north or to some designated street or object and shall 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 Hearing Board 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.
(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 of the Zoning Hearing Board.
(4)
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.
(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 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.
(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 this section 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 this section.
(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 than 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.
B.
No sexually oriented business, other than an adult motel, shall open to do business before 10:00 a.m., Monday through Saturday, prevailing time; and no sexually oriented business, other than an adult motel, shall remain open after 10:00 p.m., Monday through Saturday, prevailing time. No sexually oriented business, other than an adult motel, shall be open for business on any Sunday or on a legal holiday as set forth in the Act of May 31, 1893, P.L. 188, § 1, as amended, 44 P.S. § 11.
§ 230-82 Exemptions.
A.
It is a defense to prosecution under §§ 230-73 and 230-80 that a person appearing in a state of nudity did so in a modeling class operated:
(1)
By a proprietary school, licensed by the Commonwealth of Pennsylvania, or a college, junior college, or university supported entirely or partly by taxation.
(2)
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
(3)
In a structure:
(a)
Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing.
(b)
Where, in order to participate in a class, a student must enroll at least three days in advance of the class; and
(c)
Where no more than one nude model is on the premises at any one time.
§ 230-83 Injunction.
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 the Zoning Ordinance.
§ 230-84 Severability.
The provisions of this article are severable and, if any court of competent jurisdiction hereof shall hold any section, sentence, clause, part, or provision illegal, invalid, or unconstitutional, such decision of the court shall not affect the remaining sections, sentences, clauses, parts, or provisions of this article. It is hereby declared the intent of Brookville Borough that this article would have been adopted if such illegal, invalid, or unconstitutional section, sentence, clause, part, or provision had not been included herein.
§ 230-85 Effective date.
Upon enactment, existing businesses as defined in this article, shall have one year to come into compliance with the regulations contained in this article, excluding location requirements of § 230-80 contained herein.