[HISTORY: Adopted by the Borough Council of the Borough of Marcus
Hook as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 196.
[Adopted 10-7-1996 by Ord. No. O-96-5,
approved 10-7-1996]
A person who knowingly or intentionally, in a public place, A. engages
in sexual intercourse; B. engages in deviate sexual intercourse as defined
by the Pennsylvania Crimes Code; C. appears in a state of nudity; or D. fondles
the genitals of himself, herself or another person commits public indecency,
a summary offense.
As used in this article, the following terms shall have the meanings
indicated:
The showing of the human male or female genital, pubic area or buttocks
with less than a fully opaque covering; the showing of the female breast with
less than a fully opaque covering of any part of the nipple; the exposure
of any device, costume or covering which gives the appearance of or simulates
the genitals, pubic hair, natal cleft, perineum anal region or pubic hair
region; or the exposure of any device worn as a cover over the nipples and/or
areola of the female breast, which device simulates and gives the realistic
appearance of nipples and/or areola.
Includes all outdoor places owned by or open to the general public
and all buildings and enclosed places owned by or open to the general public,
including such places of entertainment, taverns, restaurants, clubs, theaters,
dance halls, banquet halls, party rooms or halls limited to specific members
restricted to adults or to patrons invited to attend, whether or not an admission
charge is levied.
The prohibition set forth in § 62-1C shall not apply to:
In addition to the specific penalties provided in this article, it is
hereby decided that any building, portion of a building or enclosed place
regularly used for the prohibited display of public nudity is a public nuisance,
subjecting the owner, proprietor or other operator thereof to any and all
actions authorized by the Commonwealth of Pennsylvania for the abatement of
pubic nuisances, including but not limited to the procedures set forth in
the Codified Ordinances.
It is the intention of the Borough of Marcus Hook that the provisions
of this article be construed, enforced and interpreted in such a manner as
will cause the least possible infringement of the constitutional rights of
free speech, free expression, due process, equal protection or other fundamental
rights consistent with the purposes of this article. Should a court of competent
jurisdiction determine that any part of this article, or any application or
enforcement of it, is excessively restrictive of such rights or liberties,
then such portion of the article, or specific application of the article,
shall be severed from the remainder, which shall continue in full force and
effect.
Any person violating the provisions of this article either by commission
of a public indecency or by the promotion or maintenance of a public indecency
shall, upon conviction thereof, be punishable for each offense by a fine of
up to the maximum amount provided from time to time by state statute.
[Adopted 10-7-1996 by Ord. No. O-96-6,
approved 10-7-1996]
Pursuant to the authority granted in the Borough Code to prohibit nuisances;
to promote the health, cleanliness, comfort and safety of the citizens of
the Borough of Marcus Hook and the authority of political subdivisions of
the Commonwealth of Pennsylvania to enact local ordinances to regulate, inter
alia, the sale, distribution, display and exhibition of and activities concerning
obscene and other sexual material as provided for in 18 Pa.C.S.A. § 5903(k)
and as upheld by the United States District Court for the Eastern District
of Pennsylvania, in Brown v. Pornography Commission of Lower Southampton
Township, 620 F. Supp 1199 (1985), the Borough of Marcus Hook enacts the following
article.
A.
Offenses defined. No person, knowing the obscene character
of the material or performances involved, shall, within the Borough of Marcus
Hook:
(1)
Display or cause or permit the display of any explicit, sexual materials as defined in Subsection C in or on any window, showcase, newsstand, display rack, billboard, display board, viewing screen, motion-picture screen, marquee or similar place in such a manner that the display is visible from any public street, highway, sidewalk, transportation facility or other public thoroughfare, or in any business or commercial establishment where minors, as a part of the general public or otherwise, are or will probably be exposed to view all or any part of such materials;
(2)
Sell, lend, distribute, exhibit, give away or show any
obscene materials to any person 18 years of age or older or offer to sell,
lend, distribute, exhibit or give away or show, or have in his possession
with intent to sell, lend, distribute, exhibit or give away or show, any obscene
materials to any person 18 years of age or older, or knowingly advertise any
obscene materials in any manner;
(3)
Design, copy, draw, photograph, print, utter, publish
or in any manner manufacture or prepare any obscene materials;
(4)
Write, print, publish, utter or cause to be written,
printed, published or uttered any advertisement or notice of any kind giving
information, directly or indirectly, stating or purporting to state where,
how, from whom or by what means any obscene materials can be purchased, obtained
or had;
(5)
Produce, present or direct any obscene performance or
participate in a portion thereof that is obscene or that contributes to its
obscenity; or
(6)
Hire, employ, use or permit any minor child to do or
assist in doing any act or thing mentioned in this subsection.
B.
COMMUNITY
KNOWING
MATERIAL
NUDE
OBSCENE
(1)
(2)
(3)
PERFORMANCE
SADOMASOCHISTIC ABUSE
SEXUAL CONDUCT
TRANSPORTATION FACILITY
Definitions. As used in this article, the following words
and phrases shall have the meanings given to them in this subsection:
For the purpose of applying the contemporary community standards
in this article, "community" means the state.
As used in Subsection A, having general knowledge of or reason to know or a belief or ground for belief which warrants further inspection or inquiry of the character and content of any material or performance described therein which is reasonably susceptible of examination by the person charged with violation of this article.
Any literature, including any book, magazine, pamphlet, newspaper,
storypaper, bumper sticker, comic book or writing; any figure, visual representation
or image, including any drawing, photograph, picture, videotape or motion
picture.
The showing of the human male or female genitals, pubic area or buttocks
with less than a full opaque covering, or showing the female breast with less
than a fully opaque covering of any portion thereof below the top of the nipple.
Any material or performance, if:
The average person applying contemporary standards would find that the
subject matter taken as a whole appeals to the prurient interest;
The subject matter depicts or describes in a patently offensive way
sexual conduct of a type described in this article; and
The subject matter taken as a whole lacks serious literary, artistic,
political, educational or scientific value.
Any play, dance or other live exhibition performed before an audience.
In a sexual context, flagellation or torture by or upon a person
who is nude or clad in undergarments, a mask or in a bizarre costume, or the
condition of being fettered, bound or otherwise physically restrained on the
part of one who is nude or so clothed.
Patently offensive representations or descriptions of ultimate sexual
acts, normal or perverted, actual or simulated, including sexual intercourse,
anal or oral sodomy and sexual bestiality; and patently offensive representations
or descriptions of masturbation, excretory functions, sadomasochistic abuse
and lewd exhibition of the genitals.
Any conveyance, premises or place used for or in connection with
public passenger transportation, whether by air, rail, motor vehicle or any
other method, including aircraft, railroad cars, buses and air, boat, railroad
and bus terminals and stations.
C.
Dissemination to minors. No person shall knowingly disseminate
by sale, loan or otherwise explicit sexual materials to a minor. "Explicit
sexual materials," as used in this subsection, means materials which are obscene
or:
(1)
Any picture, photograph, drawing, sculpture, motion-picture
film, videotape or similar visual representation or image of a person or portion
of the human body which depicts nudity, sexual conduct or sadomasochistic
abuse and which is harmful to minors; or
(2)
Any book, pamphlet, magazine, printed matter, however
reproduced, or sound recording which contains any matter enumerated in this
section, or explicit and detailed verbal descriptions or narrative accounts
of sexual excitement, sexual conduct or sadomasochistic abuse and which, taken
as a whole, is harmful to minors.
D.
Admitting minor to show. It shall be unlawful for any
person knowingly to exhibit for monetary consideration to a minor or knowingly
to sell to a minor an admission ticket or pass or knowingly to admit a minor
for a monetary consideration to premises whereon there is exhibited a motion-picture
show or other presentation or performance which, in whole or in part, depicts
nudity, sexual conduct or sadomasochistic abuse and which is harmful to minors,
except that the foregoing shall not apply to any minor accompanied by his
parent.
E.
HARMFUL TO MINORS
(1)
(2)
(3)
KNOWINGLY
(1)
(2)
MINOR
NUDITY
SADOMASOCHISTIC ABUSE
SEXUAL CONDUCT
SEXUAL EXCITEMENT
That quality of any description or representation, in whatever form
of nudity, sexual conduct, sexual excitement or sadomasochistic abuse, when
it:
Predominantly appeals to the prurient, shameful or morbid interest of
minors;
Is patently offensive to prevailing standards in the adult community
as a whole with respect to what is suitable materials for minors; and
Taken as a whole lacks serious literary, artistic, political, educational
or scientific value for minors.
Having general knowledge of, or reason to know, or a belief or ground
for belief which warrants further inspection or inquiry of both:
The character and content of any material or performance described herein
which is reasonably susceptible of examination by the person charged with
violation of this article; and
The age of the minor; provided, however, that an honest mistake shall
constitute an excuse from liability hereunder if the person charged with violation
of this article made a reasonable bona fide attempt to ascertain the true
age of such minor.
Any person under the age of 18 years.
The showing of the human male or female genitals, pubic area or buttocks
with less than a full opaque covering, or the showing of the female breast
with less than a fully opaque covering of any portion thereof below the top
of the nipple or the depiction of covered male genitals in a discernibly turgid
state.
Flagellation or torture by or upon a person who is clad in undergarments,
a mask or in bizarre costume or the condition of being fettered, bound or
otherwise physically restrained on the part of one so clothed.
Acts of masturbation, homosexuality, sexual intercourse, sexual bestiality
or physical contact with a person's clothed or unclothed genitals, pubic area,
buttocks or, if such person be a female, breast.
The condition of human male or female genitals when in a state of
sexual stimulation or arousal.
F.
Requiring sale as a condition of business dealings. No
person shall knowingly require any distributor or retail seller as a condition
to sale or delivery for resale or consignment of any literature, book, magazine,
pamphlet, newspaper, storypaper, paper, comic book, writing, drawing, photograph,
videotape, figure or image, or any written or printed matter, or any article
or instrument to purchase or take by consignment for purposes of sale, resale
or distribution any obscene literature, book, magazine, pamphlet, newspaper,
storypaper, paper, comic book, writing, drawing, photograph, videotape, figure
of image or any written or printed matter of an obscene nature or any article
or instrument of an obscene nature.
Nothing in this article shall apply to any recognized historical society
or museum accorded charitable status by the federal government, any county,
city, borough, township or town library, any public library, any library of
any school, college or university or any archive or library under the supervision
and control of the Commonwealth or a political subdivision.
Any person violating the provisions of this article shall, upon conviction
thereof, be punishable for each offense by a fine of up to the maximum amount
provided from time to time by state statute.
