IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fred Heffelfinger, Jr. a/k/a Fred Brown, :
Appellant :
:
v. : No. 144 C.D. 2020
: Submitted: December 7, 2020
Tioga Township Zoning Hearing Board :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE J. ANDREW CROMPTON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: January 12, 2021
Before this Court is the appeal of Fred Heffelfinger, Jr. a/k/a Fred
Brown (Brown) from a January 6, 2020 order (Order) of the Court of Common Pleas
of Tioga County (trial court), affirming a decision of the Tioga Township
(Township) Zoning Hearing Board (Board) that Brown was operating an adult
cabaret in violation of the Township Zoning Ordinance.2
1
The decision in this case was reached prior to January 4, 2021, when Judge Brobson
became President Judge.
2
Tioga Township Zoning Ordinance, §§100-1500, adopted by the Board of Supervisors of
Tioga Township, Tioga County, Pennsylvania, on May 10, 2005.
I. Background
On December 11, 2017, the Solicitor for the Township issued an
Enforcement Notice to Brown regarding his property at 17795 Route 287, Tioga,
Tioga Township, Tioga County, Pennsylvania (Property).3 Reproduced Record
(R.R.) at 1a. The Enforcement Notice states, in pertinent part, as follows:
Violations: Owning and operating an adult entertainment
establishment in a Commercial/Industrial District in violation of the
uses provided for in Article V of the [Township] Zoning Ordinance[4]
and the [trial court] [o]rder of August 9, 2017;[5] Owning and operating
an adult entertainment establishment without appropriate conditional
use approval, in violation of Article V and §706[6] of the [Township]
Zoning Ordinance and the above-referenced [trial court] [o]rder of
August 9, 2017 . . . .
You have the right to appeal to the [Board] within ten (10) days of your
receipt of this Notice. Your appeal must comply with Article XI[7] of
3
The Record reveals that Brown operates a business on the Property known as “Fred’s
Gentlemen’s Club” and that the establishment was apparently also known at one time as “Fred’s
Woodshed,” among other names. R.R. at 52a-53a.
4
Tioga Township Zoning Ordinance, Article V, is a chart that, in pertinent part, indicates
that an “Adult Entertainment Establishment” is considered a “conditional use” in the Township’s
“Special Agricultural/Industrial” zone only. R.R. at 147a.
5
In its August 9, 2017 order, the trial court denied Brown’s appeal of an October 13, 2016
notice from the Board that he was operating his Property in violation of the Township Zoning
Ordinance. Brown had earlier applied (on November 2, 2015) for a variance, which was denied
by the Board. R.R. at 83a-88a.
6
Section 706 of the Township Zoning Ordinance explains the process by which the
Township considers an application for a conditional use, and also notes that “[t]he [Board] shall
render a decision on the application and any conditions to be required as part of an approved
application within 45 days of receipt of the application.” R.R. at 165a.
7
Article XI of the Township Zoning Ordinance is titled “Zoning Hearing Board” and
addresses the “[c]reation, membership and organization” of the Board as well as the Board’s
(Footnote continued on next page…)
2
the [Township] Zoning Ordinance and all other relevant provisions of
the [Township] Zoning Ordinance and the [Pennsylvania]
Municipalities Planning Code [(MPC)[8]] . . . .
R.R. at 1a.
On January 3, 2018, Brown filed a “Response to Enforcement Notice”
asserting, among other things, that he was in full compliance with the Township
Zoning Ordinance. R.R. at 4a. On May 3, 2018, a hearing was held before the
Board. R.R. at 8a. At the hearing, the Township presented three witnesses, who
testified to what they observed while at the Property on various occasions. Id.
Brown describes the Property at issue as being “used as a ‘club’ type activity with
patrons being charged an admission fee, giving them the right to listen to DJs,
observe women dancing, play pool, darts or electronic games of all types.” Brown’s
Br. at 7.
The Board issued a decision on June 8, 2018. R.R. at 77a-82a. In its
decision, the Board found
[a]ll three witnesses for the [Township] Supervisors testified
consistently that they were familiar with what is known as Fred’s a/k/a/
Fred’s Gentlemen’s Club . . . . They agreed that there was a $15.00
cover charge for admission. They all saw that there were female
dancers wearing bikinis [who] danced on stage providing entertainment
to the customers. The witnesses all agreed that the dancing was done
on a pole and that after the dancing was concluded on stage, that the
“[j]urisdiction and functions,” “[h]earings,” “[t]ermination and modification of permit,” “[p]arties
appellant before the board,” “[a]pplication and fees,” and “[s]pecial exceptions.” In regard to the
Board’s jurisdiction, Section 1101 of Article XI states: “[t]he [Board] shall have exclusive
jurisdiction to hear and render decisions of applications for variances and special exceptions, and
certain challenges and appeals in accordance with applicable requirements of Article IX of the
Pennsylvania Municipalities Planning Code (Act 247 of 1968, as amended).” R.R. at 179a-80a.
8
Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as
amended, 53 P.S. §§10101-11202.
3
dancers interacted with the patrons in the seating area. The witnesses
were also able to recall that upon the payment of an additional $40.00
that the customer would be able to go back into one of the private rooms
with a dancer. [One of the witnesses] saw maybe six (6) girls working
as dancers in February and March of 2017.[9] The dancers would hang
and spin around a pole. Dancers would take tips from customers with
their mouths.
R.R. at 78a.
The Board noted that another witness described the entertainment as
“sexy dancing, and then the dancers would do sexy moves to get tips.” Id. In regard
to the third witness, the Board stated:
The third witness for the [Township] Supervisors . . . who was last at
Fred’s on February 17, 2018, . . . observed the female dancers going up
and dancing on stage for the patrons. [He] testified that the dancers
used brass poles to dance around and then the dancers would lie on the
dance floor making sexually provocative-type moves . . . . He saw the
dancers on their hands and knees putting their butts up in the air and
lying down. [His] best description was that it was just sexual-type
dancing.
[The witness] further testified that there were interactions between the
customers and the dancers in the customary practice of tipping the
dancers. [The witness testified he] was on the dance floor giving tips
to the dancers when one of the dancers asked him to put a dollar bill up
in his collar and she bent over putting her breasts towards the front of
his face and reaching in with her mouth and pulling the dollar bill out.
[The witness] explained there was contact with her breasts touching his
face when she was removing the dollar bill.
[The witness] also observed some of the customers going back to [a]
private room area for private one-on-one dances, which were sold to
the customers at $40.00 each.
R.R. at 78a-79a.
9
This witness testified that he was present at Brown’s establishment in February and March
of 2018, not 2017, as stated in the Board’s decision. See R.R. at 19a.
4
The Board further stated:
Article III, Section 301B of the [Township] Zoning Ordinance defines
an [A]dult [C]abaret as a club which features live entertainment
distinguished or characterized by an emphasis on sexual conduct. The
regulations of Section 704.2 of the [Township Zoning] Ordinance also
define Adult Cabaret as . . . [a] cabaret that features topless dancers, go-
go dancers, strippers, male or female impersonators or similar
entertainers for observation by patrons. The Board is of the opinion
that [Brown’s] use of the dancers is consistent with this definition and
he is operating an adult cabaret in the Commercial/Industrial District of
[the Township] in violation of the [Township Zoning] Ordinance.
Our conclusion is in favor of the [Board] and against [Brown], since the
supervisors have met their requirement of proof with regard to the Adult
Cabaret section of the [Township] Zoning Ordinance.
R.R. at 81a.
On June 21, 2018, Brown appealed the Board’s decision to the trial
court, asserting that the evidence presented to the Board did not “support a finding
that the activities occurring on [the Property] constitute the operation of an adult
cabaret” because it did not establish that the permitted entertainment was
“characterized by an emphasis on sexy dancing, sexual moves, and/or conduct.”
R.R. at 74a-75a. Brown further asserted that the Board’s decision was not “rendered
in a timely fashion.” R.R. at 75a.
Following its receipt of briefs from the parties, the trial court issued a
decision and Order dated January 6, 2020. In its decision, the trial court stated:
Reference is made to the [MPC] and in particular 53 P.S.
[§]10909(3),[10] which provides [in] pertinent part for a Zoning Hearing
10
This is a reference to Section 909.1(a)(3) of the MPC, which reads: “The zoning hearing
board shall have exclusive jurisdiction to hear and render final adjudications in the following
matters: . . . (3) [a]ppeals from the determination of the [Z]oning [O]fficer, including, but not
(Footnote continued on next page…)
5
Board to hear “appeals from the determination of the zoning officer
including, but not limited to . . . .”
The enforcement action in this case was commenced by the
[T]ownship [S]olicitor and thereafter the initial appeal to the [Board]
was appropriate. The issue then becomes one of the proper procedure
to follow from an adverse decision of that [B]oard. Section 11001[-]A
[of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53
P.S. §11001-A,] makes it clear that the procedure[s] of the [MPC] are
the . . . “exclusive mode for securing review of any decision rendered
pursuant to Article [IX of the MPC] [(relating to land use appeals)] or
deemed to have been made under [the MPC].” The following [Section
1002-A of the MPC, added by the Act of December 21, 1988, P.L.
1329, 53 P.S. §11002-A,] specifies that all appeals under Article [IX]
[of the MPC] shall be taken to [a court of common pleas] within 30
days.
By contrast the [Township] Zoning Ordinance provides in
section 1006[11] for enforcement by the Township Solicitor if there is
not compliance with an enforcement notice. Here, however, [Brown]
filed the appeal to [the trial court] from the [Board]. He is now in the
peculiar position of arguing a lack of court jurisdiction for a matter
which he himself appealed. He cannot have it both way [sic]. In
addition, the state law cited above trumps the local ordinance that is the
proper procedure. Of note is that this entire procedure was in fact done
through the [T]ownship [S]olicitor.
R.R. at 108a-09a.
As to the substance of Brown’s argument, the trial court noted that the
Township presented several witnesses who testified to “pole dancing” by women
wearing bikinis, “sexy” dancing for tips, and a customer laying on the stage and a
limited to, the granting or denial of any permit, or failure to act on the application therefore, the
issuance of any cease and desist order or the registration or refusal to register any nonconforming
use, structure or lot.” Section 909.1(a)(3) was added by the Act of December 21, 1988, P.L. 1329,
53 P.S. §10909.1(a)(3).
11
This Section of the Township Zoning Ordinance is titled “Prosecution of violation” and
reads, in pertinent part: “If the enforcement notice is not complied with, the Zoning Officer shall
request the Township Board of Supervisors to authorize the Township Solicitor to institute
appropriate proceedings to prosecute such violations . . . .” See R.R. at 178a.
6
dancer removing money from his mouth, as well as from his “fly-area.” R.R. at 109a.
The trial court further noted that testimony revealed that patrons of Fred’s
Gentlemen’s Club are allowed on stage and that a dancer was observed rubbing a
female customer’s clothed breasts.12 R.R. at 29a, 109a. In addition, testimony
revealed that the establishment “offers private dances where the customer is alone
with a dancer in a private booth,” although the customer who testified to this also
acknowledged that touching the dancers was not permitted. R.R. at 109a-10a. In
regard to the testimony of one of the Township’s witnesses, the trial court stated that
“[a] situation was also described where a dancer put money in his collar, after which
a dancer bent in front of his face to remove the money with her mouth. In the process,
her breasts were place[d] directly in the patron’s face.” R.R. at 110a.
The trial court determined:
Here there is a clear sexual orientation to the activities of the dancers,
in violation of the Adult Cabaret section of the [Township Zoning]
[O]rdinance, section B.4.,[13] as detailed on pages 3 and 4 of the
[Board’s] decision. The [Township Zoning] [O]rdinance specifically
mentions go-go dancers, strippers and impersonators in Section [704.2]
12
We note that the witness who specifically testified to this latter point also testified that
he was present at Fred’s Gentlemen’s Club on December 1, 2017. R.R. at 27a.
13
The Township Zoning Ordinance follows a somewhat unorthodox numbering scheme.
Section 704.2 is the “Definitions” subsection of “Section 704: Adult entertainment establishment
regulations.” Under Section 704.2, number 3 is the definition of “Adult bookstore.” Under
number 3, there is a number 1 and then a “B,” with no preceding letter “A,” followed by number
4, which is the definition of “Adult Cabaret” referenced throughout our Opinion. However, the
“B” that precedes the definition of “Adult Cabaret” appears to be further description of the kinds
of items in the stock of an “Adult bookstore,” rather than anything related to the definition of
“Adult Cabaret.” Thus, we note that any references to Section 704.2 or its subsections, however
denoted by the parties, the trial court, or this Court, herein, are intended to be references to the
definition of “Adult Cabaret” in Section 704 of the Township Zoning Ordinance. See R.R. at 158a-
59a.
7
B.4. There is clearly an emphasis on sexual conduct, reinforced by the
available private dancers for extra money. Here there is a clear
violation of the [Township Zoning] [O]rdinance based on the record of
proceedings submitted to this court.
R.R. at 109a-10a.
A timely appeal was filed to this Court on February 6, 2020.14 R.R. at
119a.
II. Arguments
A. Brown’s Arguments
Section 1005 of the Township Zoning Ordinance states:
Where the Zoning Officer finds that any provisions of the
[Township Zoning] Ordinance are being violated, he shall initiate
enforcement proceedings by sending an enforcement notice to
appropriate parties in accordance with Article VI of the [MPC] . . . . As
specified in the [MPC], the enforcement notice shall state the nature of
the violation, the actions and deadline dates for achieving compliance,
possible enforcement proceedings, and other information.
Township Zoning Ordinance, §1005 titled “Enforcement notice”; R.R. at 178a.
Section 1006 of the Township Zoning Ordinance states:
If the enforcement notice is not complied with, the Zoning
Officer shall request the Township Board of Supervisors to authorize
the Township Solicitor to institute appropriate proceedings to prosecute
such violations. Such proceedings are provided for and shall be in
accordance with . . . the [MPC] . . . .
Township Zoning Ordinance, §1006 titled “Prosecution of violation”; R.R. at 178a.
14
The Commonwealth Court’s scope of review in zoning cases where, as here, the trial
court did not take any additional evidence, is limited to determining whether the Board committed
an error of law or manifest abuse of discretion. De Cray v. Zoning Hearing Bd. of Upper Saucon
Tp., 599 A.2d 286 (Pa. Cmwlth. 1991). The Board abuses its discretion if its findings are not
supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462
A.2d 637 (Pa. 1983).
8
Brown argues that, in the present matter, there is no evidence that the
Township’s Zoning Officer “requested the Township Board of Supervisors to
authorize the Township Solicitor to institute appropriate proceedings to prosecute
the alleged violation of the [Township Zoning] Ordinance.” Brown’s Br. at 22.
Brown asserts that the proceeding before the Board was initiated by his filing of an
appeal from the Enforcement Notice “out of an excess of caution,” but that he was
“not conceding that the procedure was proper.” Id.
Brown acknowledges that the MPC, at 53 P.S. §10616.1(d), Section
616.1(d) of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S.
§10616.1(d), grants zoning hearing boards jurisdiction to entertain enforcement
notice appeals, but he argues that this section does not specify how a property owner
“gets to the zoning hearing board.” Brown’s Br. at 22. Brown asserts that, here the
Township Zoning Ordinance is specific that it is the responsibility of the Zoning
Officer to request that the Township’s Solicitor initiate the action to prosecute
violations and that this did not occur in the present matter. Citing Bernhard v.
Bernhard, 668 A.2d 546 (Pa. Super. 1995), Brown argues, “the [Board] was without
proper subject matter jurisdiction which, of course, may be raised at any time in any
manner and even sua sponte by the Court.” Brown’s Br. at 22-23.
In addition, Brown argues that the Township Zoning Ordinance
contains conflicting definitions of the term “Adult Cabaret.” Brown’s Br. at 9.
Brown notes that the [Township Zoning] Ordinance defines an “Adult Cabaret” as
“an establishment, club, tavern, restaurant, theater or hall which features live
entertainment distinguished or characterized by an emphasis on sexual conduct or
sexually explicit nudity.” Brown’s Br. at 9 (quoting Section 301B of the Township
Zoning Ordinance; R.R. at 135a). Brown also notes that Section 704 of the
9
Township Zoning Ordinance, titled “Adult entertainment establishment
regulations,” defines “Adult Cabaret” at Section 704.2.4. as:
(1) [a]n establishment devoted to adult entertainment, either with or
without a liquor license, presenting material distinguished or
characterized by an emphasis on matter depicting, describing, or
relating to sexual activities or anatomical genital areas; (2) a cabaret
that features topless dancers, go-go dancers, strippers, male or
female impersonators, or similar entertainers for observation by
patrons.
Township Zoning Ordinance §704.2.4.; R.R. at 159a.
Brown argues that the above-referenced regulation is “ultra vires in that
it goes beyond the definition set forth in the legislative portion of the [Township
Zoning] Ordinance and purports to ban activity which would have no relationship to
sexual activity or nudity.” Brown’s Br. at 10. Brown contends that, “in order to
qualify as an Adult Cabaret, there must be an emphasis on sexual conduct or sexually
explicit nudity” and that a club featuring go-go dancers who are fully clothed, and
merely dancing, does not meet the definition of Adult Cabaret. Brown’s Br. at 15-
16 (emphasis in original).
Brown further argues that one of the witnesses before the Board
testified that the dancers wore shirts when offstage, that the dancers wore “regular
bikinis,” rather than thongs, and that he was not allowed to touch the dancer with
whom he went into a “private room.” Brown’s Br. at 16. In addition, Brown argues
that this witness’s testimony related to events which he observed after the date of the
Enforcement Notice and, thus, it is not relevant to the current matter. Brown’s Br.
at 17. Brown also contends that “[t]here was no evidence presented to indicate that
sexy dancing was emphasized or occurred on a regular basis,” adding “[t]here [was]
10
a disc jockey, pool tables and other activities available from 11:00 at night until 3:00
in the morning.” Brown’s Br. at 19.
In sum, Brown states: “three witnesses testified that they were on the
premises a total of four times, observed no nudity but, rather sexy-type dancing . . .
. There was no evidence . . . to indicate that sexy dancing was emphasized or
occurred on a regular basis. . . .” Brown’s Br. at 19. Brown emphasizes that two of
the three witnesses were on the Property after the date of the Enforcement Notice,
i.e., December 11, 2017, stating “[t]he burden is on the Township to show that adult
entertainment was being carried on or about December 11, 2017.” Id. at 19.
Brown argues that “the quantum of proof in the instant case falls far
short of the clear and convincing proof required to end or limit [Brown’s] use of his
property.” Id. at 20. Querying as to whether the Radio City Rockettes, as an
example, would be considered adult entertainment, Brown asserts that “[c]ertainly,
fully clothed young ladies engaged in pole or other dancing are not engaged in
conduct which emphasizes sexual activity. Further, there is no evidence whatsoever
of nudity.” Id. In addition, Brown argues that the Township was required to show
that “the majority of time in the establishment is devoted to what the [O]rdinance
describes as adult entertainment and the emphasis is on sexual activity or nudity,”
but that “[t]he testimony completely [failed] to rise to that level.” Id. at 20-21.
B. The Board’s Arguments
The Board argues that the Township Zoning Ordinance, and/or its
action, is not ultra vires as asserted by Brown. Citing City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986), the Board states “[r]egulations limiting [a]dult
[e]ntertainment to certain zoned areas are permissible content-neutral, time, place,
11
and manner restrictions.” Board’s Br. at 6. Further, “[i]n properly exercising their
police powers in managing local areas, these state and local restrictions ‘are
acceptable so long as they are designed to serve a substantial government interest
and do not unreasonably limit alternative avenues of communication.’” Board’s Br.
at 7 (quoting Renton, 475 U.S. at 47). The Board argues that, in the matter sub
judice, the Township Zoning Ordinance does not completely ban adult entertainment
establishments, but merely limits them to operation in Special
Agricultural/Industrial zones. “Some concerns include the adverse effect on
children who may live or go to school in an area, the spread of diseases, probable
illegal sexual activities and crime increase nearby, and the general neighborhood
deterioration.” Board’s Br. at 8. Quoting London v. Zoning Board of Philadelphia,
173 A.3d 847 (Pa. Cmwlth. 2017), the Board notes that this Court has stated that the
definition of an adult cabaret is not overbroad if it: “‘[i]s read in its entirety, and the
challenged words and phrases (‘male or female impersonators or similar
entertainers,’ who act, dance, or perform in an ‘exciting’ or ‘stimulating’ manner)
are read in context, it is reasonable to interpret an ‘adult cabaret’ as being limited to
sexually oriented entertainment.’” Board’s Br. at 9 (quoting London, 173 A.3d at
853). The Board notes that, in London, we added that, “‘[a]s such, the . . . definition
of ‘adult cabaret’ [did] not adversely affect a ‘substantial’ amount of protected
speech relative to its ‘plainly legitimate sweep’ of imposing a ‘time, manner, place’
regulation on sexually oriented businesses within the City.’” Id.
The Board asserts that the Township’s definition of “Adult Cabaret” in
Article VII, 704.2. “falls within the scope of the definition under [the Township]
Zoning Ordinance Article III, 301[B] regulating entertainment characterized by an
emphasis on sexual conduct.” Board’s Br. at 9. Section 301[B] of the Township
12
Zoning Ordinance reads: “ADULT CABARET – An establishment, club, tavern,
restaurant, theater or hall which features live entertainment distinguished or
characterized by an emphasis on sexual conduct or sexually explicit nudity.” R.R.
at 135a. The Board further argues that even if the Board or the trial court had
determined that Section 704.2.4. was overbroad, the definition of “Adult Cabaret”
in Article III of the Township Zoning Ordinance, as noted above, would control, and
Brown’s use of the Property “would still be in violation.” Board’s Br. at 9-10.
The Board asserts that the Township’s regulations “are within its
powers enumerated under the [Township] Zoning Ordinance and are not overbroad
under federal, state, or local law.” Board’s Br. at 10. In addition, the Board asserts
that “topless dancers, go-go dancers, strippers, male or female impersonators, or
similar entertainers for observation by patrons,” referenced in Section 704.2.4.(2) of
the Township Zoning Ordinance, are merely examples of titles of employees at an
adult cabaret and relates to the first part of the definition of “Adult Cabaret,” which
refers to an establishment characterized “by an emphasis on matter depicting,
describing, or relating to sexual activities or anatomical genital areas.” Board’s Br.
at 8-9 (quoting Section 704.2.4.(2) of the Township Zoning Ordinance).
As to Brown’s contention that the Board did not have jurisdiction over
his appeal because the Zoning Officer or Township failed to follow the prosecution
procedures in Article X of the Township Zoning Ordinance, the Board notes that the
Township’s Solicitor began the enforcement action with the Board at the same time
Brown appealed the Enforcement Notice. Board’s Br. at 10-11. The Board states
that, “[e]ven if [the Township’s] Solicitor had not commenced an enforcement
proceeding, [the Board] still had jurisdiction.” Board’s Br. at 11. The Board adds
that the Enforcement Notice, here, “included required information like the nature of
13
the specific violation, [Brown’s] right to appeal to the [Board] within a certain
amount of time, and that continued nonconforming use of the property could result
in sanctions” and that in these kinds of situations where a landowner appeals,
pursuant to the MPC, “‘[t]he zoning hearing board shall have exclusive jurisdiction
to hear and render final adjudications in . . . [a]ppeals from the determination of the
zoning officer, including, but not limited to, the issuance of any cease and desist
order.’” Board’s Br. at 11 (quoting 53 P.S. §10909.1(a)(3)). The Board adds that
when it renders “an adverse decision, the landowner appeals to the [common pleas
court] pursuant to . . . the MPC and . . . the [Township Zoning Ordinance],” and
Brown “correctly appealed to [the trial court] within 30 days of [the Board’s]
decision.” Board’s Br. at 12-13.
As to the substance of Brown’s appeal, the Board argues that the
Township Zoning Ordinance does not require nudity to determine the existence of
adult entertainment, and the three witnesses, whose testimony was unrebutted,
“emphasized sexual conduct or activities” were ongoing at the Property. Board’s
Br. at 14. Further, Brown’s business was named “Fred’s Gentlemen’s Club,” and
the witnesses provided consistent testimony such that it is apparent the entertainment
at the Club was “conducted to emphasize sexual activity.” Id. Accordingly, the
Board argues that Brown’s establishment would need to operate in a “Special
Agricultural/Industrial” zone in order to continue to operate as is and otherwise,
Brown is subject to fines for operating outside of such a zone. Board’s Br. at 16.
III. Discussion
Initially, we address Brown’s contention that the Township Zoning
Ordinance is “ultra vires,” in that it goes beyond the definition set forth in the
14
legislative portion of the Township Zoning Ordinance and seemingly bans activity
which would have no relationship to sexual activity or nudity. See Brown’s Br. at
10. At the outset, we reiterate that “[i]n properly exercising their police powers in
managing local areas, these state and local restrictions ‘are acceptable so long as
they are designed to serve a substantial government interest and do not unreasonably
limit alternative avenues of communication.’” Board’s Br. at 7 (quoting Renton, 475
U.S. at 47). As noted by the Board in the present matter, the Township Zoning
Ordinance does not completely ban Adult Entertainment establishments but merely
limits them to operation in Special Agricultural/Industrial zones. We concur with
the Board that the reference to “topless dancers, go-go dancers, strippers, male or
female impersonators, or similar entertainers for observation by patrons” in Section
704.2.4(2) of the Township Zoning Ordinance, provides examples of types of
performers at an Adult Cabaret. This, in turn, offers elucidation to the first part of
the definition relative to “an emphasis on matter depicting, describing, or relating to
sexual activities or anatomical genital areas.” See the Board’s Br. at 8-9 (quoting
Section 704.2.4(1) of the Township Zoning Ordinance). As we stated in London,
“[t]he canon of noscitur a sociis ‘counsels that a word is given more precise content
by the neighboring words with which it is associated.’” London, 173 A.3d at 852
(quoting U.S. v. Williams, 553 U.S. 285, 294 (2008)). Further, Section 704.2 of the
Township Zoning Ordinance specifically states: “[t]he following definitions are
intended to supplement the definitions contained in Article III.” R.R. at 159a.
In London, we stated that “[a] law is void on its face if it is so vague
that persons of common intelligence must necessarily guess at its meaning and differ
as to its application.” London at 853 (quoting Fabio v. Civil Serv. Comm’n of City
of Phila., 414 A.2d 82, 84 (Pa. 1980)). Here, there is no such vagueness. Further,
15
“perfect clarity and precise guidance have never been required even of regulations
that restrict expressive activity.” London, 173 A.3d at 853 (quoting Williams, 553
U.S. at 304).
As to Brown’s contention that the Board did not have jurisdiction over
his appeal because the Zoning Officer or Township failed to follow the prosecution
procedures in Article X of the Township Zoning Ordinance, we are unconvinced.
The Enforcement Notice in the present matter included the nature of the violation,
information about Brown’s right to appeal to the Board, and a warning that continued
nonconforming use of the Property could result in sanctions. Further, when a
property owner appeals in such situations, “[t]he zoning hearing board shall have
exclusive jurisdiction to hear and render final adjudications in . . . [a]ppeals from the
determination of the zoning officer, including, but not limited to, . . . the issuance of
any cease and desist order or the registration or refusal to register any nonconforming
use . . . .” 53 P.S. §10909.1(a)(3). Here, Brown admittedly appealed the
Enforcement Notice directly to the Board. The fact that this appeal may have
preceded the action by the Township’s Solicitor is of little consequence because,
either way, the Board had exclusive jurisdiction to hear Brown’s appeal, which it
did. Subsequently, the Board issued a decision, and Brown appealed that decision
to the trial court, per the MPC and the Township Zoning Ordinance. Accordingly,
we see no material error in the appeal process followed in the present matter,
especially in light of the Board’s exclusive jurisdiction over such matters, the fact
that Brown, himself, took his appeal to the Board, and that Brown received the due
process to which he was entitled by law.
We next address whether Brown was operating an “Adult Cabaret” in
violation of the Township Zoning Ordinance. The three witnesses who testified in
16
this matter each provided corroborating testimony that the dancers at Brown’s
Property were dressed in bikinis and were engaged in what each generally described
as “sexy” dancing. The specific and unrefuted testimony of the witnesses leaves
little room for doubt as to the nature of the performances or their provocative nature.
We see no reason to recount the testimony summarized earlier in this Opinion. We
reject Brown’s contention that only one of the witnesses was a patron of his
establishment around the time of the Enforcement Notice. Each testified to being
present on the premises at various times in and around December 2017, and each
one offered testimony that was in accord with the observations of the other. The
three witnesses provided credible snapshots, over time, of the activities occurring on
Brown’s Property. It is unreasonable for Brown to suggest that somehow the
Township was required to provide witnesses who could account for every minute of
every day at the Property.
The testimony presented in this matter provides ample evidence of
activities that emphasized and expressed sexual conduct. The Board is correct that
nudity is not required, and we acknowledge there was no testimony that nudity was
involved here. That said, we find Brown’s comparison of the performers at his
establishment to the Radio City Rockettes to be disingenuous in light of the fact that
the Rockettes’ performances are generally considered to be family-friendly
entertainment, and the Rockettes do not offer dances in private rooms or perform
acts such as rubbing a female customer’s clothed breasts.
As this Court stated in London: “[w]hen interpreting an ordinance,
undefined words and phrases are to be construed according to their common and
approved usage.” London, 173 A.3d at 851. The term “go-go dancer” is used
specifically in Section 704.2.4.(2) of the Township Zoning Ordinance as one
17
example of a type of Adult Cabaret entertainer. A go-go dancer is defined as “a
dancer who performs in places such as bars, dancing energetically in a sexually
exciting manner while wearing very little clothing.”15 The dancers described by the
witnesses in the current matter seem, to us, most likely to be examples of go-go
dancers or, in the alternative, “similar entertainers for observation by patrons.”
Thus, the evidence leads us to conclude that dancing at the Property was
“characterized by an emphasis on sexual conduct,” and, thus, the trial court did not
err in affirming the Board’s determination that Brown is operating an adult cabaret
in violation of the Township Zoning Ordinance.
IV. Conclusion
Upon review of the evidence of record and the relevant statutory and
case law, we see no error of law or abuse of discretion, and thus, the Order of the
trial court is affirmed.
______________________________
J. ANDREW CROMPTON, Judge
15
https://dictionary.cambridge.org/us/dictionary/english/go-go-dancer (last visited Jan. 11,
2021).
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fred Heffelfinger, Jr. a/k/a Fred Brown, :
Appellant :
:
v. : No. 144 C.D. 2020
:
Tioga Township Zoning Hearing Board :
ORDER
AND NOW, this 12th day of January 2021, the January 6, 2020 Order
of the Court of Common Pleas of Tioga County is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge