Article 325
SEXUALLY ORIENTED BUSINESS REGULATIONS
Sections:
325.07 Application for license for sexually oriented business.
325.10 Additional licensing regulations.
325.11 Regulations on operation and conduct of adult/sexually oriented establishments.
325.12 License suspensions and revocations.
325.01 Findings.
City council makes the following findings:
(A) Sexually oriented businesses have adverse secondary effects which are detrimental to the public health, safety and welfare. Such adverse secondary effects include, but are not limited to, increased incidence of sexual harassment, obscenity, prostitution and other illegal sexual activities, spread of communicable diseases, public exposure to sexual acts in public places, crime, and decreased property values and neighborhood deterioration. These findings are supported by numerous studies performed by many cities throughout the United States, some of which are referenced in:
(1) Report to American Center for Law and Justice on the Secondary Impacts of Sex Oriented Businesses – 1996.
(2) Adult Business Study for Town of Ellicottville, New York – 1998.
(3) Adult Entertainment Study prepared by the Department of City Planning for the City of New York – 1994.
(4) An Analysis of the Effects of Sexually Oriented Businesses on the Surrounding Neighborhoods in Dallas, Texas – 1997.
(B) Based on similar findings, the Pennsylvania legislature enacted legislation at 68 PA C.S. Section 5501, et seq., that regulates certain activities of sexually oriented and adult entertainment establishments.
(C) The Pennsylvania Commonwealth Court in the case of Piatek v. Pulaski Twp., 828 A.2d 1164 (2003), appeal denied by the Pennsylvania Supreme Court, 857 A.2d 681 (2005), determined that regulations similar to the ones hereby adopted are lawful.
(D) The city council recognizes and respects the fundamental constitutional guarantees of free speech and free expression and recognizes that restrictions on sexually oriented businesses cannot be imposed without due regard for the protection of these rights. (Ord. 3629 § 1, 2005)
325.02 Purposes.
The city council of the City of Meadville enacts this article to place certain controls and restrictions on the conduct of sexually oriented business activities solely for purposes of minimizing the adverse secondary effects created by such conduct and thereby to protect and preserve the neighborhood character of the city and deter deterioration of the city neighborhoods, and to protect the health, safety and welfare of the citizens of the City of Meadville, in a manner consistent with the laws and constitutions of this commonwealth and the United States.
It is the express intent of the city council that the restrictions and regulations included within this code conform with restrictions and regulations which are and have been found lawful and not contrary to the protections afforded under the Pennsylvania and United States Constitutions and laws. (Ord. 3629 § 1, 2005)
325.03 Authority.
This article is enacted pursuant to the general powers and authority set forth in the Home Rule Charter for the City of Meadville; general powers provided under the applicable provisions of the Optional Third Class City Charter Law, Act of July 15, 1957, P.L. 901, as amended, 53 P.S. Section 41201, et seq.; and general powers found in Section 2403 of the Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. Section 37403. (Ord. 3629 § 1, 2005)
325.04 Definitions.
(A) Terms used in this article shall be given their general and customary meaning and, where such terms are defined in statutes of the commonwealth of Pennsylvania or ordinances of the City of Meadville, such definitions shall control.
To the extent applicable, the definitions set forth in 68 PA C.S. Section 5502 (Pennsylvania laws governing adult-oriented establishments) and 18 PA C.S. Section 5903 (Pennsylvania laws relating to crimes involving obscenity) as these laws may be amended, are hereby incorporated by reference.
Specifically, the following definitions set forth in 68 PA C.S. Section 5502, as same may be amended from time to time, are hereby incorporated by reference – definitions of:
adult bookstore;
adult motion picture theater;
adult mini-motion picture theater;
entertainer;
employee;
operator.
(B) When used in this article, the following terms shall be defined as follows:
“City” means the City of Meadville, its governing council referred to as city council, and its duly appointed and authorized representatives.
“Code enforcement officer” means the person or persons appointed by the city manager of the City of Meadville to administer and enforce the provisions of this article.
“Licensee” means a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license.
“Motion pictures” shall include films and videotapes, DVDs, streaming video, whether available on site or through cable, satellite, closed-circuit television, or on computers or through chat rooms or any Internet connection.
“Nude” or “nudity” means the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state.
“Person” means any individual, proprietorship, partnership, corporation, association, or other legal entity. In any provision prescribing a penalty or fine, the term “person” shall include the officers, directors and any persons in charge of the entity or organization as well as partners and persons with a 20 percent ownership interest in the entity or organization.
“Sexually oriented or adult entertainment” means:
(1) An exhibition of any sexually oriented books, motion pictures or other media, meaning those distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas as these terms are defined.
(2) 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, or removal of articles of clothing or appearing nude, or which includes providing any sexually oriented personal services to customers.
“Sexually oriented bookstore, novelty store or video store” means 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, games, 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 are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas,” or
(2) Instruments, devices or paraphernalia which are designed for use in connection with “specified sexual activities.”
“Sexually oriented business or establishment” means any business, activity, club, establishment or premises operated for profit, whether direct or indirect, where the exhibition, showing, rental, or sale of materials distinguished or characterized by an emphasis on material depicting, describing, or exhibiting specified anatomical areas or relating to specified sexual activities is regularly permitted and is a principal part of the activity of the business or establishment. Sexually oriented businesses shall include, but are not limited to the following:
(1) Sexually oriented or adult bookstores, arcades, novelty stores or video stores.
(2) Sexually oriented or adult motion picture or mini-motion picture theaters.
(3) 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 sexually oriented motion pictures or where an entertainer provides adult entertainment to a member of the public, a patron or a member.
The terms “booths,” “cubicles,” “rooms,” “studios,” “compartments” or “stalls,” for purposes of defining sexually oriented establishments, do 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 motion pictures or other entertainment for a fee, and which are not open to any persons other than employees.
(4) Any premises to which the public, patrons or members are invited or admitted and which are used for sexually oriented entertainment, whether advertised or represented as such or not, which may include but is not limited to studios, exotic dance studios, rap studios, encounter studios, sensitivity studios, modeling studios, massage studios, or any other term of like import.
“Specified anatomical areas” means:
(1) Less than completely and opaquely covered:
(a) Human genitals or pubic region;
(b) Buttocks; or
(c) Female breasts below a point immediately above the top of the areola.
(2) Human male genitalia in a discernible turgid state, even if completely opaquely covered.
“Specified criminal activity” means prostitution or promotion of prostitution, dissemination of obscene material, sexual performance by a child, possession or distribution of child pornography, public lewdness, indecent exposure, indecency with a child, engaging in organized criminal activity, sexual assault, molestation of a child, unlawful distribution of a controlled substance or any similar offenses to those described above under the criminal or penal code of the commonwealth of Pennsylvania.
“Specified sexual activities” includes any of the following:
(1) Human genitals in a state of sexual stimulation or arousal.
(2) Acts of human masturbation, sexual intercourse or sodomy.
(3) Fondling or erotic touching of human genitals, pubic region, buttocks or female breasts. (Ord. 3629 § 1, 2005)
325.05 Prohibited conduct.
It is unlawful:
(A) To operate or permit the operation of a sexually oriented business without a valid sexually oriented business license issued by the city pursuant to this code;
(B) To operate or permit the operation of a sexually oriented business in a manner contrary to the requirements of this code;
(C) To allow a person under the age of 18 years on the premises of a sexually oriented business or where sexually oriented entertainment takes place;
(D) To refuse or interfere with the lawful inspection of the premises of a sexually oriented business at any time it is occupied or open for business. (Ord. 3629 § 1, 2005)
325.06 Administration.
This article shall be administered by the code enforcement officer, the city police, or other persons specially designated by the city. (Ord. 3629 § 1, 2005)
325.07 Application for license for sexually oriented business.
(A) An application, on a form provided by the city, shall be submitted to the code enforcement officer together with all required fees. The applicant shall provide such information as necessary to determine whether the applicant meets the qualifications established in this code.
(B) Premises where a sexually oriented business is proposed must meet all the requirements set forth in this code to qualify for a license.
(C) For purposes of a sexually oriented business license, the term “applicant” shall include the following:
(1) If a partnership – all partners;
(2) If a corporation – all persons with a 25 percent or greater ownership interest in the business and the officers and directors;
(3) If an entity other than a partnership or corporation, all persons with a 25 percent or greater ownership interest in the business and persons exercising control over the entity.
(D) If a person who wishes to operate a sexually oriented business is an individual, the person must sign the application for a license as an applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a 25 percent or greater interest in the business must sign the application for a license as an applicant. Each applicant must be qualified under the following section and each applicant shall be considered a licensee if a license is granted.
(E) The completed application for a sexually oriented business license shall contain the following information and shall be accompanied by the following documents:
(1) If the applicant is an individual, the individual shall state his/her legal name and any aliases and submit proof that he/she is at least 18 years of age;
(2) If the applicant is a partnership, the partnership shall state its complete name and the name of all partners, whether the partnership is general or limited, and a copy of the partnership agreement, if any;
(3) If the applicant is a corporation, the corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of its state of incorporation and qualified and authorized to conduct business in Pennsylvania, the names and capacity of all officers, directors and principal stockholders, and the names of the registered corporate agent and the address of the registered office for service of process;
(4) If the applicant is any entity other than a partnership or corporation, information about the entity including the type of entity or organization; any documents which establish its organization including such things as charter, constitution, bylaws, et seq.; the persons who exercise control over the entity’s affairs and documents establishing their control shall be provided;
(5) If the applicant intends to operate the sexually oriented business under a name other than that of the applicant, he, she or it must:
(a) State the sexually oriented business’s fictitious name; and
(b) Submit the required registration documents;
(6) Whether the applicant(s) has been convicted of a specified criminal activity as defined in this code and, if so, the specified criminal activity involved, and the date, place and jurisdiction of each conviction;
(7) Whether the applicant(s) holds any other licenses under this code or other similar sexually oriented business ordinance from another municipality, state or county and, if so, the names and locations of such other licensed business;
(8) Whether the applicant(s) has had a previous license under this code or any similar sexually oriented business ordinance from another municipality, state or county denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked, and the date and circumstances of the denial, suspension or revocation;
(9) The specific classification of sexually oriented use for which the applicant is filing along with a detailed description of each and every activity encompassed by the proposed sexually oriented business, which description shall thoroughly demonstrate compliance and/or intended compliance with all provisions of this code;
(10) The location of the proposed sexually oriented business, including a legal description of the property, street address and telephone number(s), if any, and the location of the building on the premises with reference to the property lines;
(11) A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but it must be drawn to a designated scale;
(12) The mailing address and an address where applicant(s) may be served with notice;
(13) A recent photograph of the applicant(s);
(14) The applicant’s date of birth and social security number;
(15) Any other information required to demonstrate compliance with all other applicable laws including, but not limited to, zoning, subdivision and land development regulations, and building code regulations. (Ord. 3629 § 1, 2005)
325.08 Issuance of license.
(A) Upon the filing of said application in a fully completed form for a sexually oriented business license, the application shall then be referred to the code enforcement officer for review and investigation. The code enforcement officer shall utilize any available resources including the city police and other law enforcement agencies as may be necessary to complete the review and investigation required by this code. Within 30 days from the date the completed application is filed, the code enforcement officer shall issue a license, unless it is determined by the code enforcement officer that one or more of the following findings is true:
(1) An applicant has failed to provide all information required for issuance of the license or has falsely answered a question or request for information on the application form;
(2) An applicant is under the age of 18 years;
(3) An applicant has been convicted of “specified criminal activity” as defined in this code;
(4) The required application, investigation and license fees have not been paid;
(5) An applicant’s license to operate a sexually oriented business, issued by any jurisdiction, has been revoked within the preceding 12 months;
(6) The proposed sexually oriented business is in violation of, or is not in compliance with, any of the provisions of this code.
(B) The sexually oriented business license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, the address of the business and the specific classification of use for which the license is issued.
(C) A sexually oriented business license shall be issued only for the specific classification of sexually oriented use indicated.
(D) If denied, the decision to deny shall be in writing and state the reasons for denial with references to the provisions of the code. (Ord. 3629 § 1, 2005)
325.09 Fees.
(A) Every application for sexually oriented business license (whether for a new license or for renewal of an existing license) shall be accompanied by a nonrefundable application and investigation fee of $150.00.
(B) In addition to the application and investigation fee required above, every sexually oriented business that is granted a license (new or renewal) shall pay to the city an annual nonrefundable license fee of $300.00 within 30 days of license issuance or renewal. (Ord. 3629 § 1, 2005)
325.10 Additional licensing regulations.
(A) An activity which meets the definition of a sexually oriented business, on the date the ordinance codified in this article becomes effective, must make application for, must meet the requirements for a license and must obtain a license in accordance with the provisions of this code within one year of the effective date of the ordinance codified in this article.
(B) Each license shall expire one year from the date of issuance. A license shall be subject to annual renewal upon the written application of the applicant and a finding that the applicant has not been convicted of any specified criminal activity as defined in this code or committed any act during the existence of the previous license, which would be grounds to deny the initial license application. The renewal of the license shall be subject to the payment of the fees required by this code. Application for renewal shall be made at least 30 days before the expiration date. To the extent the information on the previous application remains the same, that information can be incorporated into the renewal application.
(C) When the city denies renewal of a license for noncompliance of this code, the applicant shall not be issued a license for one year from the date of denial unless subsequent to denial the city finds that the basis for the nonrenewal has been corrected or abated, in which case the applicant may be granted a license if at least 90 days have elapsed since the date the renewal application was denied.
(D) No sexually oriented establishment shall be situated or located nearer than 500 feet from the nearest property line of any other sexually oriented establishment, bottle club, church, school or other institution of learning or education, park or playground, or licensed day care center.
(E) No sexually oriented establishment shall be situated or located nearer than 500 feet from any land zoned residential, and no sexually oriented establishment shall be situated or located nearer than 500 feet from any property line of any single-family or multifamily dwelling.
(F) If, on the effective date of the ordinance codified in this article, a sexually oriented business is operating from a location which does not meet the location requirements set forth in subsections (D) and (E) of this section, it shall be exempt from these requirements under the following conditions:
(1) It is registered as an adult/sexually oriented business with the code enforcement officer within 30 days of the effective date of the ordinance codified in this article;
(2) An application for a license is submitted and obtained within one year of the effective date of the ordinance codified in this article; and
(3) If the sexually oriented business ceases operation for any reason for more than one year, the exemption from the location requirements shall end. (Ord. 3629 § 1, 2005)
325.11 Regulations on operation and conduct of adult/sexually oriented establishments.
From and after the effective date of the ordinance codified in this article, a sexually oriented business shall comply with the following regulations:
(A) Each adult or sexually oriented business shall be required to prominently post a sign or signs conforming to the city’s sign regulations, which shall be visible from each entrance and inform the public that adult and/or sexually oriented activities occur within and that minors are prohibited from entering.
(B) No sexually oriented business shall be open for business earlier than 3:00 p.m. and no such business shall be open for business later that 3:00 a.m. on any day of the week.
(C) No activities of a sexually oriented establishment shall be visible from any public street.
(D) No sexually oriented business shall be operated in any facility or building unless all necessary zoning, subdivision and land development, building/construction code, and all other required governmental permits and approvals have been obtained and evidence of same have been provided to the code enforcement officer; and unless the facility and building meet all current governmental regulations and requirements.
(E) No sexually oriented business shall permit any sexually oriented activity except as specifically indicated on the license.
(F) At least one employee must be on duty on the premises at all times the business is open. There must be an employee’s station with full view of the interior premises.
(G) At all times, the business operation must comply with all applicable laws including but not limited to all regulations set forth in the laws of Pennsylvania pertaining to adult-oriented establishments, and all criminal laws relating to obscenity.
(H) An applicant or licensee shall permit the code enforcement officer and other designated representatives to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law, at any time it is occupied or open for business. (Ord. 3629 § 1, 2005)
325.12 License suspensions and revocations.
(A) Suspension. The code enforcement officer shall suspend a license for a period not to exceed 30 days if he determines that a licensee of a licensed sexually oriented business has:
(1) Violated or is not in compliance with any provision of this code;
(2) Refused to allow an inspection of the sexually oriented business premises as authorized by this code;
(3) Knowingly permitted gambling by any person on the sexually oriented business premises.
(B) Revocation. The code enforcement officer shall revoke a license if a cause of suspension occurs and the license had been suspended within the preceding 12 months.
(C) Revocation. The code enforcement officer shall revoke a license if it is determined that:
(1) A licensee gave false or misleading information in the application process;
(2) A licensee has knowingly allowed unlawful possession, use or sale of controlled substances on the premises;
(3) A licensee has knowingly allowed prostitution on the premises;
(4) A licensee has knowingly operated the sexually oriented business during a period of time when the licensee’s license was suspended;
(5) A licensee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or other sex acts to occur in or on the licensed premises.
(D) When a license is revoked, the license revocation will be for one year, and the licensee shall not be issued a sexually oriented business license for one year from the date the revocation became effective with the following exception. If, subsequent to revocation, the code enforcement officer finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license. (Ord. 3629 § 1, 2005)
325.13 Notice of violation.
Whenever a condition constituting a violation of this article is found to exist, the code enforcement officer shall cause written notice to be served upon the licensees of the subject premises and any other responsible party in the following manner:
(A) Notice. The written notice of violation shall include the following information:
(1) Identity and description of the premises in violation, including location and identity of licensees or other persons responsible for premises.
(2) A statement of the specific conditions which cause the premises to be in violation with references to the sections of the code being violated.
(3) A statement of the action required to correct the violation.
(4) A notice of license suspension or revocation and any other penalties that may be imposed due to the violation or failure to correct the violation.
(5) Person(s) to contact concerning remedial action or other concerns.
(B) Service of Notice. Notices shall be deemed to be properly served if a copy thereof is (1) delivered to the licensees personally; or (2) sent by certified or registered mail addressed to the licensees and persons responsible at the last known address with return receipt requested. If the certified or registered notice is returned showing that the notice was not delivered, a copy thereof shall be posted in a conspicuous place in or about the property affected by such notice, and mailed by regular mail. A record of the means of serving the notice should be maintained by the code enforcement officer. (Ord. 3629 § 1, 2005)
325.14 Appeals.
(A) Any person aggrieved by a decision of the code enforcement officer may appeal pursuant to procedures of the Local Agency Law (2 PA C.S. Section 101, et seq.) to the city council. Any such appeal must be in writing and filed with the code enforcement officer within 20 days from the date of the mailing or delivery of the decision appealed from and shall specify, in detail, the basis for the appeal. If an appeal is timely filed, the city council will hold a hearing pursuant to the provisions of the Local Agency Law within 30 days from the date the appeal is filed and will render a written decision within 10 days from the date such hearing concludes. In the case of a denial of license renewal, or in the case of a permit suspension or revocation, the permittee may continue to operate to the same extent as immediately prior to the suspension or revocation until the earlier of the expiration of the 20-day appeal period without filing an appeal; or the date of the final decision dismissing an appeal.
(B) Any person aggrieved by a decision of the city council may appeal to a court of competent jurisdiction pursuant to the applicable provisions of the Pennsylvania Local Agency Law. In the case of a denial of a license renewal, a suspension, or a revocation, the licensee may continue to operate to the same extent as immediately prior to the denial, suspension or revocation until the earlier of the expiration of the 30-day appeal period without filing an appeal; or the date of a decision dismissing an appeal by a court of competent jurisdiction. (Ord. 3629 § 1, 2005)
325.15 Penalty.
Any person or entity committing any act(s) prohibited by this code shall violate this code. Any person who violates this code, either by commission of a prohibited act, or as a property owner, proprietor, manager of a business or similar establishment who permits, promotes or allows the violation of this code, shall be guilty of a summary offense, and upon conviction, shall be sentenced to pay a fine of not more than $1,000, and in default of payment of such fine, to be imprisoned for a period not to exceed 90 days. In any enforcement action, a person or entity found to have violated this code shall also be obligated within the judgment to pay all costs and attorney’s fees incurred by the city in the enforcement action. Each day a violation of this code continues shall constitute a separate offense. Each violation of this code shall constitute a separate offense, subject to the prescribed penalty for each violation. (Ord. 3629 § 1, 2005)
325.16 Other remedies.
In addition to the penalty provided above, the city shall have and may pursue the following enforcement remedies, all of which may be pursued simultaneously or in the alternative, as deemed appropriate:
(A) An action in a court of appropriate jurisdiction for an order to restrain, correct or remove the violation, or to refrain from further violations;
(B) An action in a court of appropriate jurisdiction to abate a nuisance or other health or safety hazard to the public created by a violation of this code;
(C) An action in a court of appropriate jurisdiction to secure compliance with an order or orders of the code enforcement officer;
(D) An action in a court of appropriate jurisdiction to obtain any other remedy permitted by law. (Ord. 3629 § 1, 2005)