HOME RULE BOROUGH OF EDINBORO
COUNCIL MEETING MINUTES
February 28, 2005
Call to Order:
The following Council members were present: Clifford Allen, Bob Cogan, Christopher Gillette, Mary Ann Horne, Greg Lucas, Jean Davis, and Mayor H. Robert Cannell. Also in attendance were Dave Zamierowski, Code Enforcement Administrator; Police Chief Jeff Craft and Marie Lander, Assistant to the Manager. Guests included Arthur Wright.
Mayor Cannell introduced the minutes from the regular Council meeting held February 14, 2005. Jean Davis moved for approval of the minutes, and Mary Ann Horne seconded. The minutes were approved by a voice vote of 7-0.
Because no one requested time to speak, the Mayor moved on to committee reports.
Robert Cogan asked to have two items added to new business: 1) Borough Hall Cleaning Schedule and 2) the format of executive sessions. Because there were no objections, the agenda was amended to include Mr. Cogan’s two items under New Business.
Committee Reports:
Finance Committee: Mary Ann Horne reported that they met today to review invoices and purchases orders. The committee saw no problems with those invoices and purchase orders reviewed.
Ms. Lander reported and gave the committee materials received from the Erie County Local Government Secretaries’ Association (ECLGSA) dinner meeting.
The Liquid fuels audit for 2002 and 2003 would take place march 14, 2005.
A review of the Digital Subscriber Line (DSL) line and possible savings using Coaxial Cable seemed to be around $20.00, but Coaxial was changing its Internet Service Provider (ISP) to Velocity.net and would get back to us to discuss costs and the procedure to change over, if beneficial.
It was time to renew the contract for the Pitney Bowes postage machine, and Mary Ann Horne stated they authorized Ms. Lander to continue with the process. Information regarding the conference by the Pennsylvania Employer Labor Relations Advisory Service (PELRAS) was discussed and to have someone attend would cost $500.00. The staff would see if we could purchase handouts.
A review of administration fees for lifeguard contracts was currently underway before meeting with the Young Men’s Christian Association (YMCA).
Greg Lucas explained that he had attended the pool meeting and that twenty-five (25) people attended. They heard that the Culbertson Pool was in good enough shape to continue with their efforts. To build a new pool it would be 1.3 to 3 million dollars and the study showed that $750,000.00 would bring it up to the condition needed and that they possibly could get a grant for half of that. This was a figure without the cost of purchasing the pool from the Orr brothers. At the meeting they stated they needed to get cooperation between the Borough, Washington Township, and Franklin Township to get grants and funding. Mary Ann Horne informed Mr. Lucas that if the municipalities went together on this, they would own the physical liability for the pool. Clifford Allen informed the new members of the history of transition of the pool from the Borough to the YMCA and the use of our labor to open and close the pool as well as the rewiring and the annual cleaning of the pool. When the YMCA was asked about building a pool at its site, it said it was not in the plans for the next five years. Mr. Allen reminded everyone that we had the Lake, and everyone could utilize it for free. Mayor Cannell asked if the Joint Municipal Planning Commission (JMPC) could be the umbrella organization for the grant funds. Chris Gillette informed him that the JMPC would be dissolved at the end of its task and that might be in six months. The JMPC had prepared a draft comprehensive plan, which would be advertised and hopefully adopted. Greg Lucas stated the Orrs had not pinned down a price for the pool yet. The study on the pool stated that it was worth buying and maintaining, but no one was sure if there was an agreement with the Orrs for this year or if they were planning to sell it. He asked who donated toward the pool and what support the Borough and Township gave. It was noted that Washington Township made donations to the pool and contributed 20% of the lifeguard fees for the beach. Mayor Cannell noted that the study showed the Township residents used it more than the Borough residents.
Clifford Allen also noted that the Borough kept up the basketball courts behind Pizza Hut, which was used by General McLane School District students as well as college students.
Mary Ann Horne moved to instruct Marie Lander, Assistant to the Manager, to complete the needed paperwork to start a Certificate of Deposit (CD) Program through the Pennsylvania Local Government Investment Trust (PLGIT). Greg Lucas seconded the motion, and it passed by a 7-0 voice vote.
Mary Ann Horne presented Resolution 8-2005 to Council regarding an amendment to the Pension Investment Policy as follows:
Home Rule Borough of Edinboro
RESOLUTION No. 8-2005
WHEREAS, Council of the Home Rule Borough of Edinboro is responsible through the Pension Board Subcommittee for establishing investment policy for the Funds and for implementing approved policies and guidelines; and
WHEREAS, the Pension Board Subcommittee has met with the investment consultant, Dennis Ranalli of Merrill Lynch who recommends that Council adopt the attached amended Investment Policy Statement.
1. Replace “15% of the market value of the equity portion of the investment
manager’s portfolio” on page 12 under Large/Medium Capitalization U.S. Stock
Portfolio(s) item 3, with the following: “30% at cost of the equity portion of the
investment manager’s portfolio”
2. Replace “Investments in any one individual equity security should not exceed 5%
of the market value of the equity portion” on page 12 under Large/Medium
Capitalization U.S. Stock Portfolio(s) item 1, with the following: “Investments in
any one individual equity security should not exceed 5% at cost of the equity
portion.”
NOW, THEREFORE, BE IT RESOLVED by Borough Council assembled this 28th day of February, 2005 that the attached Amended Section of the Investment Policy Statement hereby is adopted.
Robert Cogan seconded the motion and it passed by the following 7-0 roll call vote: Jean Davis, yes; Christopher Gillette, yes; Mary Ann Horne, yes; Gregory Lucas, yes; Clifford Allen, yes; Robert Cogan, yes; and Mayor H. Robert Cannell, yes.
Christopher Gillette moved to authorize the Mayor to sign a letter of understanding with Fayez Sarofim & Company as presented by Merrill Lynch.
Jean Davis seconded the motion and it passed by a 7-0 voice vote.
Police negotiations were nearing an end. The Committee was waiting for a language change from the Attorney. They would meet Thursday night with the Police Bargaining Unit to review.
Ordinance Review Committee: Jean Davis reported that the Public Indecency Ordinance No. 502 was before them as well as a memo from the Assistant to the Manager on past history of publishing ordinances. It was noted that they had several readings prior to this meeting and had had a hearing to take comments. Robert Cogan suggested a public notice incorporating the first paragraph of the ordinance with captions from the ordinance, especially from the penalties section. Jean Davis moved to adopt Ordinance 502 as amended in a prior meeting and to advertise the synopsis and penalty. Robert Cogan seconded the motion.
BOROUGH OF EDINBORO
ERIE COUNTY, PENNSYLVANIA
ORDINANCE NO. 502
AN ORDINANCE
The within Ordinance shall be known as the “Public Indecency and Sexually-Oriented Business Ordinance.” The within Act and Ordinance shall prohibit certain acts in public places, shall provide definitions relative to said unlawful acts, provide for the licensing of sexually-oriented businesses and/or adult-oriented businesses and provide penalties for the violations thereof, including fines, imprisonment and the declaration of a public nuisance, as appropriate.
WHEREAS, the Borough of Edinboro, (the “Borough”) at various times, expressed its findings that certain lewd, immoral and indecent activities, carried on in public places for profit, are highly detrimental to the public health, safety and welfare, and lead to the debasement of both women and men, the exposure of minors to indecent activity, the promotion of violence, public intoxication, prostitution, and other serious criminal activity; and
WHEREAS, the Council of the Borough of Edinboro (“Council”), by enactment of this Ordinance has expressed its intention to limit or restrict such lewd, immoral and indecent activities, to provide penalties for violations thereof and, in appropriate cases, to declare the locations of such activities to be a public nuisance subject to abatement; and
WHEREAS, the Council is fully aware of and fully respects the fundamental constitutional guarantees of free speech and free expression and realizes that restrictions of such freedoms must be carefully drafted and enforced so that speech and expression are not curtailed beyond the point at which it is essential to further the Borough's interest to promote and protect the public health, safety and welfare; and
WHEREAS, over the years various statutes and court interpretations have been enacted and decided, which compel periodic re-evaluation and revision of Borough ordinances and regulations; and
WHEREAS, the Borough has no present Ordinance which regulates and/or restricts the conduct and activities as outlined herein (including language) which is consistent and in conformity with current state and federal law and the Borough therefore wishes to create such an ordinance; and
WHEREAS, the Council specifically wishes to adopt the concept of Public Indecency prohibited by the laws of the State of Indiana, which was approved by the U.S. Supreme Court in Barnes vs. Glen Theatre, Inc. et al 111 S.Ct. 2456 (1991), for the purpose of limiting unlawful acts within the Borough; and
WHEREAS, the Council specifically wishes to adopt a similar, but revised, concept of Public Indecency prohibited by the ordinance of the neighboring City of Erie; and
WHEREAS, the Borough recognizes, finds and adopts the following studies which have found that sexually-oriented businesses and certain lewd and immoral and indecent activities generate secondary effects which are detrimental to the public health, safety, and welfare:
1. Report prepared by city of Las Vegas - 1978
2. Adult Business Study of the City of Phoenix Planning Department of 1979
3. Adult Entertainment Business in Indianapolis Report of 1984 (removed)
4. Regulation of Adult entertainment Establishments in St. Croix County, Wisconsin, 1993
5. Effects of Adult Entertainment Businesses on Residential Neighborhoods, City of El Paso, 1986
6. Report on Zoning and Other Methods of Regulating Adult Entertainment in Amarillo, Texas, 1977 (removed)
7. Adams County Nude Entertainment Study, 1991.(removed)
8. Report on Adult Oriented Businesses in Austin, Texas, 1986.
9. Report on the Secondary Effects of the Concentration of Adult Use Establishments in the Times Square Area, April 1994
10. Adult Entertainment Study, City of New York, 1994;
11. The Negative Secondary Effects of Adult Businesses, The Pittsburgh Coalition Against Pornography; and (removed)
WHEREAS, the Council recognizes, finds and asserts that sexually-oriented
business are frequently used for unlawful sexual activities including public sexual indecency, prostitution and other sexual encounters; and
WHEREAS, the Council is aware that the General Assembly of the Commonwealth of Pennsylvania has enacted legislation at 68 Pa C.S.A. §§ 5501, et seq., which imposes regulations upon the activities of sexually-oriented and adult entertainment establishments, which regulations exist independently of any action by this Borough; and
WHEREAS, the Borough’s concern over sexually transmitted diseases is a legitimate health concern of the Borough which demands reasonable regulation of public indecency to facilitate and combat these secondary effects to the public health, safety and welfare.
NOW, THEREFORE, BE IT ORDAINED AND ENACTED BY THE COUNCIL OF THE BOROUGH OF EDINBORO, ERIE COUNTY, PENNSYLVANIA, AS FOLLOWS:
Section 1. Ordinance No. 502 of the Home Rule Borough of Edinboro is hereby enacted, entitled Public
Indecency and Sexually-Oriented Businesses.
1.01 Definitions
1.01.1 Terms used in this ordinance 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 Home Rule Borough of Edinboro, such definitions shall control.
1.01.2 When used in this ordinance, the following terms shall be defined as follows:
A. Adult Arcade
Any place to which the public is permitted or invited wherein coin-operated, slug- operated, or for any form of consideration, or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, video or laser disc players, or other image-producing devices are maintained, not located within viewing booths, to show images to five (5) 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.”
B. Licensee
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.
C. Massage Parlor
An establishment or business which provides the services of massage and body manipulation, including exercises, heat and light treatments of the body and all forms of physiotherapy, unless operated by a medical practitioner, professional physical therapist or chiropractor licensed by the Commonwealth of Pennsylvania. This definition does not include an athletic club, health club, school, gymnasium, reducing salon, spa or similar establishment where massage or similar manipulation of the human body is offered as an incidental or accessory service.
D. Nude
The showing of:
(1) human male or female genitals or pubic area with less than a fully opaque covering; or
(2) any portion of the anal cleft or cleavage of the male or female buttocks. Attire that is insufficient to comply with the requirement to cover all portions of the anal cleft or cleavage of the male or female buttocks is insufficient. Attire that is insufficient to meet this requirement includes, but is not limited to, G-strings, T-backs, thongs and any other clothing or covering that does not completely and opaquely cover the anal cleft or cleavage of the male or female buttocks; or
(3) the portion of the human female breast directly or laterally below a
point immediately above the top of the areola with less than a fully opaque covering; this definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other clothing, provided the areola is not exposed; or
(4) human male genitals in a discernibly turgid state, even if completely and opaquely covered.
E. Nudity
The state of being nude.
F. Public Indecency
Public Indecency shall be deemed to include all actions declared in this Ordinance to constitute public indecency, including, but not limited to, those actions set forth in Section 1.02 and all subparts. The term shall not include and shall not apply to:
(1) the act of performing or dancing in the nude in a sexually-oriented establishment or in a play or performance open to the general public where the fact that and the existence of the nude performance is made known to patrons prior to their entry to the premises and this ordinance is not otherwise violated; or
(2) any child under ten (10) years of age; or
(3) any individual exposing a breast in the process of breastfeeding an infant under two (2) years of age; or
4) any person being in a state of nudity other than in a public place or in circumstances of emergency or which are not within the reasonable control of that person.
G. Public Place
All outdoor areas owned by or open to the general public, and all buildings or enclosed places owned by or open to the general public, except sexually-oriented establishments. Public areas shall include, but are not limited to, places of entertainment, bars, taverns, restaurants, clubs, theaters, dance halls, etc.
H. Sexual Entertainment
(1) An exhibition in an sexually-oriented establishment 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 at 68 C.S.A. § 5502, as may in the future be amended.
(2) A live performance, display or dance of any type in a sexually-oriented establishment 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.
I. Sexually-Oriented Bookstore, Novelty Store or Video Store
A commercial establishment which, as one of its principal business purposes, offers for sale or rental for any form of consideration any one (1) or more of the following:
(1) books, games, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes 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.”
J. Sexually-Oriented Business
Any business activity, club , or other establishment, within which 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 permitted. Sexually-oriented businesses shall include, but are not limited to: adult arcades, adult bookstores, adult motion picture theaters, adult theaters and massage parlors as defined by this section.
K. Sexually-Oriented Establishment
The term includes, without limitation, the following establishments when operated for profit:
(1) sexually-oriented bookstores;
(2) sexually-oriented motion picture theaters;
(3) sexually-oriented mini-motion picture theaters;
(4) massage parlors;
(5) 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. “Motion pictures” shall include films and video tapes, DVD’s, streaming video, whether available on site or through cable, satellite, closed-circuit television, or on computers or through chat rooms or any internet connection.
(6) Any sexually-oriented entertainment studio or any premises that are physically arranged and used as such, whether advertised or represented as an sexually- oriented entertainment studio, rap studio, exotic dance studio, encounter studio, sensitivity studio, modeling studio or any other term of like import.
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.
L. Specified Criminal Activity
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.
1.02 Public Indecency Prohibited
No person shall commit an act of public indecency in the Borough of Edinboro or maintain or allow acts of public indecency when said person is a property owner, lessee, proprietor or manager of a business or other establishment, and it shall be unlawful for any such person to commit, maintain or allow any act(s) of public indecency. An act of public indecency occurs when a person knowingly, intentionally or recklessly, in a public place:
1.02.1 engages in sexual intercourse.
1.02.2 engages in deviant sexual intercourse as defined by the Pennsylvania Crimes code, as may in the future be amended.
1.02.3 engages in any specified sexual activity as defined at 68 Pa C.S.A. § 5502, as may in the future be amended, this including:
A. causing one’s own or another person’s human genitals to be in a state of sexual stimulation or arousal;
B. acts of human masturbation, sexual intercourse or sodomy;
C. fondling or erotic touching of human genitals, pubic region, buttocks or female breasts of oneself or any other person in a public place not constituting an adult entertainment for which such activity as to oneself may be an element of the performance;
D. in sexually-oriented entertainment, plays or performances, the fondling or erotic touching of human genitals, pubic region, buttocks or female breasts of another person by a performer, patron or other person, and/or of a performer by any patron or person not involved in the play or performance.
1.02.4 Appears in a state of nudity, other than as a performer in a dance, play or performance for which nudity constitutes an aspect of the performance or in a modeling class as defined in Section 11.
1.02.5 Brings, allows or condones entry of a minor to a sexually-oriented establishment.
1.02.6 Brings, allows or condones entry of or access by a minor to sexually-oriented entertainment or sexually-oriented materials in any establishment, whether or not a sexually-oriented establishment as defined herein or in the Borough of Edinboro Zoning Ordinance.
1.03 Regulations on Operation and Conduct of Adult/Sexually-Oriented Establishments
1.03.1 Each adult or sexually-oriented business shall be required to prominently post a sign or signs conforming to the Edinboro sign ordinance. A sign shall be visible from each entrance, informing the public that adult and/or sexually-oriented activities occur within and that minors are prohibited from entering.
1.03.2 No establishment constituting sexually-oriented entertainment or sexually-oriented establishment shall be open for business earlier than 10:00 A.M. on Mondays through Saturdays or 12:00 P.M. on Sundays, and no such establishment shall be open for business later than 12:00 A.M. on any day of the week.
1.03.3 No establishment constituting sexually-oriented entertainment or sexually-oriented establishment shall be situated or located nearer than one thousand (1,000) feet from the nearest property line of any other sexually-oriented entertainment or sexually-oriented establishment, bottle club, church, school or other institution of learning or education, hospital, library, park or playground. Furthermore, no establishment constituting sexually-oriented entertainment or a sexually-oriented establishment shall be situated or located nearer than five hundred (500) feet from any land zoned residential, and no establishment constituting sexually-oriented entertainment or sexually-oriented establishment shall be situated or located nearer than five hundred (500) feet from any property line of any single or multi-family dwelling.
1.03.4 The Borough of Edinboro’s Code Enforcement Official and his or her designees are authorized to inspect sexually-oriented establishments at reasonable times for purposes of enforcing the regulations of State law and this ordinance.
1.03.5 Council and the Code Enforcement Officer, through the Solicitor, shall be authorized to commence by the Borough actions at law or in equity to enjoin violations of this ordinance or of 68 Pa C.S.A. §§ 5501, et. seq.
1.04 Declaration of a Public Nuisance
In addition to the specific penalties provided in this ordinance for violations, it is hereby declared that any building, structure or portion thereof used for acts of public indecency in violation of this ordinance is a public nuisance, subjecting the owner, lessee, proprietor or other operator thereof to any and all actions authorized by the Commonwealth of Pennsylvania or the Borough of Edinboro Nuisance Ordinance for the abatement of public nuisances. In the event of any action by the Borough to abate a public nuisance, the owner of the subject property shall further be liable for payment to the Borough of all costs, attorney’s fees and other related expenses incurred by the Borough in such action.
Section 2. License Required
2.01.1 It is unlawful:
A. for any person to operate a sexually-oriented business without a valid sexually-oriented business license issued by the Borough pursuant to this Ordinance.
B. beginning on the sixtieth (60th) day after enactment of this Ordinance for any person to continue to operate any sexually-oriented business in operation at the time of enactment of this Ordinance without a valid sexually-oriented business license pursuant to this Ordinance.
2.01.2 An application for a license must be made on a form provided by the Borough.
2.01.3 All applicants must be qualified according to the provisions of this Ordinance. The application may request, and the applicant shall provide such information (including fingerprints) as to enable the Borough to determine whether the applicant meets the qualifications established in this Ordinance.
2.01.4 If a person who wishes to operate a sexually-oriented business is an individual, the person must sign the application for a license as applicant. If a person who wishes to operate a sexually-oriented business is other than an individual, each individual who has a twenty percent (20%) or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under the following section and each applicant shall be considered a licensee if a
license is granted.
2.01.5 The completed application for a sexually-oriented business license shall contain the following information and shall be accompanied by the following documents:
A. If the applicant is:
(1) an individual, the individual shall state his/her legal name and any aliases and submit proof that he/she is at least eighteen (18) years of age;
(2) 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) 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.
B. If the applicant intends to operate the sexually-oriented business under a name other than that of the applicant, he, she or it must:
(1) state the sexually-oriented business’ fictitious name; and
(2) submit the required registration documents.
C. Whether the applicant, individuals, owners or officers of the corporation, or a person residing with the applicant has been convicted of a specified criminal activity as defined in this Ordinance, and, if so, the specified criminal activity involved, the date, place and jurisdiction of each conviction.
D. Whether the applicant or a person residing with the applicant has had a previous license under this Ordinance or other 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, as well as the date of denial, suspension or revocation, and whether the applicant or a person residing with the applicant has been a partner in a partnership or an officer, director or principal stockholder of a corporation that is licensed under this Ordinance whose license has previously been denied, suspended or revoked, including the name and location of the sexually-oriented business for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revocation.
E. Whether the applicant or a person residing with the applicant holds any other licenses under this Ordinance or other similar sexually-oriented business ordinance from another municipality, state or county, and, if so, the names and locations of such other licensed businesses.
F. 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 Ordinance.
G. The location of the proposed sexually-oriented business, including a legal description of the property, street address and telephone number(s), if any.
H. The applicant’s mailing address and residential address.
I. A recent photograph of the applicant(s).
J. The applicant’s driver’s license number, social security number and his/her state or federally issued tax identification number.
K. 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 or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches.
L. A current certificate and straight-line drawing prepared within thirty (30) days prior to application by a registered land surveyor depicting the property lines and the property to be certified in conformity 1.03.2, and;
M. If an applicant wishes to operate a sexually-oriented business, which includes viewing booths, then the applicant shall also comply with the application requirements set forth in Section 9 and shall separately apply for and obtain a building and occupancy permit for the installation of the viewing booths.
N. The application form shall inform the applicant that:
(1) separate applications are required for any necessary zoning permits, subdivision and land development approvals and building and occupancy permits and that the applicant may apply for such permits by contacting the Borough Code Enforcement Officer and the Erie County Planning Commission; and
(2) Department of Labor and Industry approval is required.
Section 3. Issuance of License
3.01.1 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 Borough Code Enforcement Officer for review and investigation. The Borough Code Enforcement Officer shall utilize any available resources through the Pennsylvania State Police, the Erie County Sheriff, the Commonwealth of Pennsylvania and/or other law enforcement agencies as may be necessary to complete the review and investigation required by this Ordinance. Within thirty (30) days from the date the completed application is filed, the Borough Code Enforcement Officer shall issue a license, unless it is determined by the Borough Code Enforcement Officer that one (1) or more of the following findings is true:
A. the 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;
B. the applicant is under the age of eighteen (18) years;
C. the applicant has been convicted of “specified criminal activity” as defined in this Ordinance;
D. the required application, investigation and license fees have not been paid.
E. an applicant’s license to operate a sexually-oriented business, issued by any jurisdiction, has been revoked within the preceding twelve (12) months;
F. the proposed sexually-oriented business is in violation of, or is not in compliance with, any of the provisions of this Ordinance.
3.01.2 A license granted pursuant to this Section shall be subject to annual renewal upon the written application of the applicant and a finding by the Borough that the applicant has not been convicted of any specified criminal activity as defined in this Ordinance 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 fee as set forth in Section 4.
3.01.3 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. Licenses for businesses shall state that the business shall not commence until all necessary zoning, subdivision and land development, and/or building code approvals and Department of Labor and Industry approvals are obtained. All licenses shall be posted in a conspicuous place at or near the entrance to the business so that they may be easily read at any time.
3.01.4 Applications for building and occupancy permits shall be processed and either denied or approved according to Section 503.2 of the Borough of Edinboro Zoning Ordinance.
3.01.5 A sexually-oriented business license shall be issued for the specific classification of sexually- oriented use as permitted by ordinance and applied for.
3.01.6 A license denial shall conform to the provisions of Section 8.
3.01.7 Any person aggrieved by the license may appeal, in writing, within thirty (30) days from the date of issuance of the license to the Zoning Hearing Board. The Zoning Hearing Board shall then hold a local agency law hearing within twenty (20) days from the date of filing of the appeal and render a decision within ten (10) days from the end of the hearing. Appeals from a decision of the Zoning Hearing Board may be taken to court subject to Section 8.01.5 of this Ordinance.
Section 4. Fees
4.01.1 Every application for a sexually-oriented business license (whether for a new license or for renewal of an existing license) shall be accompanied by a non-refundable application and investigation fee of one hundred fifty dollars ($150.00).
4.01.2 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 Borough and annual non-refundable license fee of fifty dollars ($50.00) within thirty (30) days of license issuance or renewal.
4.01.3 All license applications and fees shall be submitted to the office of the Borough Manager, and, thereafter, the applications shall be forwarded to the Code Enforcement Officer of the Borough of Edinboro for review and investigation and approval or denial.
Section 5. Inspection
5.01.1. An applicant or licensee shall permit authorized Borough officials and their agents or consultants to inspect the premises of a sexually-oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business.
5.01.2 A person who operates a sexually-oriented business commits a violation of this Ordinance if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or open for business.
Section 6. Expiration of License
6.01.1 Each license shall expire one (1) year from the date of issuance and may be renewed only by making application as provided for in Section 2. Application for renewal shall be made at least thirty (30) days before the expiration date, and, when made less than thirty (30) days before the expiration date, the date of expiration of the license will not be extended.
6.01.2 When the Borough denies renewal of a license for noncompliance of this Ordinance or violation of Section 3.01.2, or if the establishment becomes a Public Nuisance as defined in BOCA P.M. 300, the applicant shall not be issued a license for one (1) year from the date of denial. If, subsequent to denial, the Borough finds that the basis for denial of the renewal license has been corrected or abated, the applicant may be granted a license according to Section 3.01.2 if at least ninety (90) days have elapsed since the date denial became final.
Section 7. Suspension
7.01.1 The Borough Code Enforcement Officer shall suspend a license for a period not to exceed thirty (30) days if he determines that a licensee of a licensed sexually-oriented business has:
A. violated or is not in compliance with any provision of this Ordinance;
B. refused to allow an inspection of the sexually-oriented business premises as authorized by this Ordinance; or
C. knowingly permitted gambling by any person on the sexually-oriented business premises.
Section 8. Revocations and Appeals of Denials, Suspensions or Revocations
8.01.1 The Borough of Edinboro Code Enforcement Official shall revoke a license if a cause of suspension in Section 8 occurs and the license has been suspended within the preceding twelve (12) months.
8.01.2 The Borough of Edinboro Code Enforcement Official shall revoke a license if he determines that:
A. a licensee gave false or misleading information in the material submitted during the application process;
B. a licensee has knowingly allowed possession, use or sale of controlled substances on the premises;
C. a licensee has knowingly allowed prostitution on the premises;
D. a licensee has knowingly operated the sexually-oriented business during a period of time when the licensee’s license was suspended;
E. a licensee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or other sex acts to occur in or on the license premises; or
F. a licensee is delinquent in payment to the Borough for any licensing fee or fees.
8.01.3 When the Borough Code Enforcement Officer revokes a license, the revocation normally will continue for one (1) year, and the licensee shall not be issued a sexually-oriented business license for one (1) year from the date the revocation became effective. If, subsequent to revocation, the Borough Code Enforcement Officer finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license by the Borough Code Enforcement Officer upon his finding that the condition leading to the revocation has been corrected or abated if at least ninety (90) days have elapsed since the date the revocation became effective.
8.01.4 All permit denial, renewal, suspension or revocation decisions shall be sent in writing to the applicant or licensee. All such decisions which deny, refuse to renew, suspend or revoke a permit shall state specifically the ordinance requirement not met and any other basis for the decision. After denial of an application or denial of a renewal of an application or after suspension or revocation of any permit, the applicant or permittee may appeal pursuant to procedures of the Local Agency Law (2 Pa. C.S. Sec. 101, et seq.) to the Zoning Hearing Board, except as modified herein. Any such appeal must be filed in writing, with the Borough Code Enforcement Officer within ten (10) days from the date of the mailing of the decision appealed from and shall specify, in detail, the basis for the appeal. Failure or refusal to file said appeal or specify the basis of said appeal with the Borough Code Enforcement Officer shall be deemed a conclusive determination as to the issues or matters addressed by the written decision. If an appeal is timely filed, the Zoning Hearing Board will then hold a zoning hearing pursuant to 2 Pa. C.S. Sec. 101, et seq. within thirty (30) days from the date the appeal is filed and will render a written decision within ten (10) days from the date such hearing concludes. In the case of a denial of 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 :
A. the expiration of the ten (10) day appeal period without filing of an appeal; or
B. the date of final decision dismissing any appeal.
8.01.5 Any person aggrieved by a decision of the Zoning Hearing Board may appeal to a court of competent jurisdiction pursuant to the Local Agency Law (2 Pa. C.S. Sec 101, et seq.) and 42 Pa C.S. Sec. 933(a)(2). The Zoning Hearing Board shall, upon filing of such appeal, consent to any/all request(s) by an appellant to the Court to give expedited review of such appeal. The Borough Council shall certify any record to the court within twenty (20) days after the appeal is filed. In the case of a denial of a permit 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 denial, suspension or revocation until the earlier of:
A. the expiration of the thirty (30) day appeal period without filing an appeal; or
B. the date of a decision dismissing an appeal by a court of competent jurisdiction,
Section 9. Regulations Pertaining to Exhibition of Sexually Explicit Films, Videos or Live Entertainment
Viewing Rooms
9.01.1 A person who operates viewing booths shall comply with the following:
A. The person’s application must show a diagram of business layout. The diagram should be well constructed, sufficiently detailed and drawn to scale and demonstrate conformity to all sections D through L below.
B. The applicant shall be sworn to be true, and all drawings shall be notarized and sworn.
C. It is the duty of licensee to ensure that at least one (1) employee is on duty on the premises at all hours the business is open.
D. The Employee’s station must have full view of the interior premises.
E. Only one (1) person at a time is permitted in each viewing room.
F. The premises must be well lit.
G. All lighting must be maintained.
H. There shall be no opening between viewing rooms or booths, and no opening shall be allowed to be made between booths or viewing rooms.
I. The licensee shall inspect walls each day for openings and seal any openings found.
J. &nbs