It is the purpose and intent of this section 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 section 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 section 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 section to condone or legitimize the distribution of obscene material.
(a) Definitions.
(1) “Adult arcade” means 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 machine, 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."
(2) “Adult bookstore” or “adult 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:
A. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe "specified sexual activities" or "specified anatomical areas"; or
B. 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 adult bookstore or adult video store. Such other business purposes will not serve to exempt such commercial establishment from being categorized as an adult bookstore or adult video store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials which depict or describe "specified activities" or "specified anatomical areas."
(3) “Adult cabaret” means a nightclub, or bar, or similar commercial establishment which regularly features:
A. Persons who appear in the state of nudity; or
B. Live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or
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".
(4) “Adult motel” means a hotel, motel or similar commercial establishment which:
A. Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas"; and which advertises the availability of this adult type of photographic reproductions; or
B. Offers sleeping rooms for rent four (4) or more times in one calendar day during five (5) or more calendar days in any continuous 30-day period.
(5) “Adult motion picture theater” means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or other photographic reproduction are regularly shown which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."
(6) “Adult theater” means 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."
(7) “Escort” means 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.
(8) “Escort agency” means 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.
(9) “Permittee” and/or “licensee” means a person in whose name a permit and/or license or 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.
(10) “Nude model studio” means 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.
(11) “Nudity” or “state of nudity” means the appearance of a human bare buttock, anus, male genitals, female genitals, or female breast.
(12) “Person” means an individual proprietorship, partnership, corporation, association, or other legal entity.
(13) “Restaurant” means 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.
(14) “Semi-nude” means 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.
(15) “Sexual encounter center” means a business or commercial enterprise that, as one if its primary business purposes, offers for any form of consideration:
A. Physical contact in the form of wrestling or tumbling between persons of the opposite sex; and
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.
(16) “Sexually oriented business” means 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.
(17) “Specified anatomical areas” means the male genitals and/or the vulva or more intimate parts of the female genitals.
(18) “Specified sexual activities” means and includes any of the following:
A. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
B. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;
C. Masturbation, actual or simulated; or
D. Excretory functions as part of or in connection with any of the activities set forth subsection (a)(18)A. through C. above.
(19) Substantial enlargement of a sexually oriented business means the increase in floor areas occupied by the business by more than twenty-five percent (25%), as the floor areas exist on date of enactment of this section.
(20) “Borough” means Borough of White Oak.
(21) “Transfer of ownership or control of a sexually oriented business means and includes any of the following:
A. The sale, lease, or sublease of the business;
B. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
C. The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
(b) Classification. Sexually oriented businesses are classified as follows:
(1) Adult arcades;
(2) Adult bookstores or adult video stores;
(3) Adult cabarets;
(4) Adult motels;
(5) Adult motion picture theaters;
(6) Adult theaters;
(7) Escort agencies;
(8) Nude model studios; and
(9) Sexual encounter centers.
(c) Special Exception Permit Required.
(1) Any person who intends to operate a sexually oriented business must first obtain a special exception permit to do so from the White Oak Zoning Hearing Board. The Zoning Hearing Board shall process an application for such a special exception in accordance with the requirements and standards and guidelines of the White Oak Zoning Ordinance and this amendment thereto, and the general zoning law.
(2) Any person who operates a sexually oriented business without a valid special exception permit issued by the Borough is guilty of a violation of the Zoning Ordinance of the Borough.
(3) An application for a special exception 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 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 (6"). Parking facilities must be specifically identified and meet Zoning Ordinance requirements. Nonconforming structures and those 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 section.
(4) The applicant must be qualified according to the provisions of this section and the premises must be inspected and found to be in compliance with the law by the Code Enforcement Officer and the Fire Marshall.
(5) If a person who wishes to operate a sexually oriented business is an individual, he must sign the application for a special exception 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 (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 ten percent (10%) or greater in the corporation must sign the application for a permit as applicant.
(6) 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.
(d) Issuance of Special Exception Permit.
(1) The White Oak Zoning Hearing Board shall approve the issuance of a special exception permit to an applicant unless it finds one or more of the following to be true:
A. An applicant is under eighteen (18) years of age or any person performing, acting or depicted in any manner in the performance of such activity, may or will be under the age of 18.
B. 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.
C. 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.
D. 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 twelve (12) months, or residing with a person whose license to operate a sexually oriented business has been revoked within the preceding twelve (12) months.
E. The premises to be used for the sexually oriented business have been reviewed and have been disapproved by either the Code Enforcement Officer or the Fire Marshall as not being in compliance with applicable state and federal laws and local ordinances, including, but not limited to, the Americans With Disabilities Act and the Pennsylvania Labor and Industry regulations.
F. The application fee required by this section has not been paid and any other fees required by the Borough.
G. An applicant of the proposed establishment is in violation of or is not in compliance with any of the provisions of this section.
H. An individual applicant or any individual holding a direct or indirect interest of more than ten (10%) percent 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 or persons' conviction or release in connection with the sexual misconduct offense must have occurred within two (2) years of the date of application in the event of a misdemeanor and within five (5) years of the date of application in the event of a felony.
I. If live performances are to be given, that the premises in which such live performances are to be offered do not contain a stage separated from the viewing area or that the viewing area is accessible to the performances, or that the performers may readily access the viewers present.
J. Liquor or intoxicating beverages are to be sold or consumed on the premises for which a permit is sought.
(2) If the White Oak Zoning Hearing Board approves the application for a special exception, the White Oak Borough Code Enforcement Officer shall issue a special exception permit to the applicant.
(3) 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.
(4) The Code Enforcement Officer and Fire Marshall shall complete their certification that the premises are in compliance or not in compliance within twenty (20) days of receipt of the application by the Code Enforcement Officer. The certification shall be promptly presented to the White Oak Zoning Hearing Board.
(e) Fees. The application fee for a sexually oriented special exception permit shall initially be one thousand dollars ($1,000) and may be changed by Council from time to time by Resolution under the provisions of the Zoning Ordinance of the Borough of White Oak. Such other fees as may be required under this section and under other ordinances of the Borough, such as the Mechanical Amusement Device Permit Fee, shall also be required.
(f) Inspection.
(1) An applicant, or permitted, shall permit representatives of the Police Department, Fire Marshall, 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 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.
(g) Expiration of Permit.
(1) The special exception permit shall expire in the event of the nonpayment of any applicable fees of the Borough, and in the event of such expiration, application for renewal shall be the same as provided in subsection (d) hereof.
(2) If the permit is revoked by the Code Enforcement Officer for reasons specified in subsection (g)(1) hereof, the applicant shall not be issued a permit for one year from the date of revocation, except that after ninety (90) days have elapsed since the date of revocation, the applicant may be granted a permit if the Code Enforcement Officer finds that the basis for revocation of the permit has been corrected or abated.
(h) Suspension of Permit. The Code Enforcement Officer shall suspend a permit for a period not to exceed thirty (30) days if he determines that a permittee or an employee of a permittee or an occupant of the premises has:
(1) Violated or is not in compliance with any section of this section;
(2) Engaged in use of alcoholic beverages while on the sexually oriented business premises;
(3) Refused to allow an inspection of the sexually oriented business premises as authorized by this Ordinance;
(4) Knowingly permitted gambling by any person on the sexually oriented business premises;
(5) Failed to man managers' stations and/or maintain viewing rooms as set forth in Section 1371.23(l).
(i) Revocation of Permit.
(1) The Code Enforcement Officer shall revoke a permit if a cause of suspension set forth in Section 1371.23(h) occurs and the permit has been suspended within the preceding twelve (12) months.
(2) The Code Enforcement Officer shall revoke a permit if he determines that:
B. A permittee gave false or misleading information in the material submitted to the Borough during the application process;
C. A permittee or an employee of a permittee has knowingly allowed possession, use, or sale of controlled substances on the premises;
D. A permittee or an employee of a permittee has knowingly allowed prostitution on the premises;
E. 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;
F. 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;
G. A permittee is delinquent in payment to the Borough or State of any taxes or fees relating to sexually oriented businesses;
H. Any person performing, acting or depicted in the activity is under the age of 18, or any person viewing such activity or allowed admittance is under the age of 18.
(3) When the Code Enforcement Officer revokes a permit, the revocation shall continue for one (1) year, and the permittee shall not be issued a sexually oriented business permit for one (1) year from the date revocation became effective, except that if the revocation is pursuant to subsection (i)(1) above, the revocation shall be effective for two (2) years in the event misdemeanor or five (5) years in the case of a felony.
(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 and to seek prompt judicial review of such administrative action in any court of competent jurisdiction.
(j) 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.
(k) Location of Sexually Oriented Businesses.
(1) A person is guilty of a violation of the Zoning Ordinance if he operates or causes to be operated a sexually oriented business outside of the district in which a sexually oriented business is a permitted use. No sexually oriented businesses shall be located outside a district in which a sexually oriented business is a permitted use. Sexually oriented businesses as defined herein shall be permitted in C-2 Commercial Zoning District as a Special Exception.
(2) A person is guilty of a violation of the Zoning Ordinance if he operates or causes to be operated a sexually oriented business within five hundred (500') feet of the nearest property line of the following institutions, nor will any permits be issued for any such business which shall be located within five hundred (500') feet of the nearest property line of the following:
A. A church, synagogue or other religious facility;
B. A public or private pre-elementary, elementary, or secondary school, college, university or any institution of higher learning;
C. A public library;
D. A child care facility, nursery school, a pre-school for exceptional children or similar facility;
E. A group home or residence facility for minor children;
F. A public park, playground or other recreational facility.
(3) 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 without the necessary Borough permits. Nor will any permits be issued for any such business which shall be located within one thousand feet (1,000') of another sexually oriented business, either a conforming or nonconforming business.
(4) 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.
(5) For the purposes of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest property line of the premises on which the building or structure used as a part of the premises where a sexually oriented business is located, 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 to any of the other institutions or facilities listed hereinabove in subsection (k)(2) hereof.
(6) For purposes of subsection (k)(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 property line of the premises on which each business is located.
(7) Any sexually oriented business lawfully operating on date of enactment of this section that is in violation of subsection (k)(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 one thousand (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.
(8) 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 or public park or any of the other institutions or facilities listed hereinabove in subsection (k)(2) hereof within five hundred (500') feet of the sexually oriented business. This provision applies only to the renewal of a valid permit, and does not apply when an application for a permit is submitted after a permit has expired or has been revoked.
(l) Regulation Pertaining to Exhibition of Sexually Explicit Films or Video.
(1) A person who operates or causes to be operated a sexually oriented business which exhibits on the premises in a viewing room (a separate compartment or cubicle) of less than one hundred fifty (150) square feet of floor space, a film or video cassette, or other video or other image production or reproduction which depicts "specified sexual activities" or "specified anatomical areas", shall comply with the following requirements:
A. 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 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 thirty-two (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 (6") inches. The Code Enforcement Officer may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certified that the configuration of the premises has not been altered since it was prepared.
B. The application shall be sworn to be true and correct by the application.
C. 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.
D. It is the duty of the owners and operators of the premises to ensure that at least one (1) employee is on duty and situated in each manager's station at all times that any patron is present inside the premises.
E. 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 restrooms. Restrooms 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.
F. 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 (l)(1)E. remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted any 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 (l)(1)A.
G. No viewing room may be occupied by more than one (1) person at any time. No connections or openings to an adjoining viewing room shall be permitted.
H. 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 (1) foot candle as measured at the floor level.
I. 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 subsections (l)(1)A. through I., is guilty of a violation of the Zoning Ordinance if he knowingly fails to fulfill that duty:
(m) Exemptions.
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; and
2. Where, in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and
3. Where no more than one (1) nude model is on the premises at any one time.
(n) Injunction. A person who operates or causes to be operated a sexually oriented business without a valid permit or in violation of this section is subject to an action in equity or a suit for injunction as well as citations for violations of the Zoning Ordinance.
(o) Severability. The provisions of this section are severable and, if any section, sentence, clause, part or provision hereof shall be held illegal, invalid or unconstitutional by any court of competent jurisdiction, such decision of the court shall not affect the remaining sections, sentences, clauses, parts or provisions of this section. It is hereby declared to be the intent of the Council that this section would have been adopted if such illegal, invalid or unconstitutional section, sentence, clause, part or provision had not been included herein.
(Ord. 3007. Passed 7-17-95.)