The Council finds that the crass commercial exploitation of
explicit sexual conduct through the public exhibition of lewd films,
and the display and/or sale of lewd publications, and the use of so-called
massage parlors and model studios for purposes of lewdness, assignation,
or prostitution, constitutes a debasement and distortion of a sensitive
key relationship of human existence, central to family life, community
welfare and the development of human personality; is indecent and
offensive to the senses and to public morals and interferes with the
comfortable enjoyment of life and property in that such interferes
with the interest of the public in the quality of life and total community
environment, the tone of commerce in the Borough, property values,
and the public safety; and that the continued operation of such activities
is detrimental to the best health, safety, convenience, good morals
and general welfare of the Borough, and of the residents, citizens,
inhabitants and businesses thereof. The Council hereby declares such
activities to be a public nuisance, and herein establishes procedures
for the abatement thereof. This chapter shall apply to existing establishments
which are presently engaged in the type of activity herein declared
to be a public nuisance.
[Added 1-27-1987 by Ord. No. 376]
No person, knowing the obscene character of the material involved
shall:
A. Display or cause or permit the display of any explicit sexual materials as defined in §
88-3 or
88-4 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 part of the general public or otherwise, are or will probably be exposed to view all or any part of such material;
B. 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 any 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;
C. Design, copy, draw, photograph, print, utter, publish or in any manner
manufacture or prepare any obscene materials;
D. 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 the obscene materials can be purchased,
obtained or had;
E. Hire, employ, use or permit any minor child to do or assist in doing
any act or thing mentioned in this section.
[Amended 1-27-1987 by Ord. No. 376]
As used in this chapter, the following words and phrases shall
have the meanings and explanations given to them in this section:
ACTS OF LEWDNESS, ASSIGNATIONS, OR PROSTITUTION
Includes acts of masturbation, homosexual or heterosexual
intercourse; direct or indirect physical contact with a person's
unclothed genitals or pubic area, or with a female's unclothed
breasts; whipping, kicking, punching, or otherwise striking another
person; or excretion or urination in the presence of a person of the
opposite sex.
COMMUNITY
For the purpose of applying the contemporary community standards
in this chapter, "community" means the Borough, township or city.
KNOWING
Having general knowledge of, or reason to know or a belief
or grounds for belief, which warrants further inspection or inquiry
of, the character and content of any material described therein which
is reasonably susceptible of examination by the defendant.
KNOWLEDGE or KNOWLEDGE OF SUCH NUISANCE
Having knowledge of the contents and character of the patently
offensive sexual conduct or demonstration which appears in the film,
publication, or knowledge of the acts of lewdness, assignation, or
prostitution which occur on the premises.
LEWD MATTER
A.
Any matter:
(1)
Which the average person, applying contemporary community standards,
would find, when considered as a whole, appeals primarily to the prurient
interest; and
(2)
Which depicts or describes patently offensive representations
or descriptions of:
(a)
Ultimate sexual acts; normal or perverted, actual or simulated;
or
(b)
Masturbation, excretory functions, or exhibition of the genitals
or genital area.
B.
Nothing herein contained is intended to include or prescribe
any matter which, when considered as a whole, and in the context in
which it is used, possesses serious literary, artistic, political
or scientific value.
MASSAGE
Any method of treating the superficial soft parts of the
human body, for remedial, hygienic or other purposes, consisting of
rubbing, stroking, kneading, or any similar treatment, accomplished
by hand or by the use of any instrument.
MASSAGE PARLOR
Any building or structure or portion thereof, located within
the municipality, which is open to members of the general public,
with or without the payment of a fee, at which massage services are
offered.
MATTER
A motion picture film or a publication, or both.
MODEL STUDIO
A.
Any premises on which there is conducted the business of furnishing
figure models who pose in the nude for the purpose of being observed
or viewed by any person or of being sketched, painted, drawn sculptured,
photographed or otherwise similarly depicted for persons who pay a
fee, or other consideration or compensation, or a gratuity, for the
right or opportunity so to depict the figure model, or for admission
to, or for permission to remain upon, or as a condition for remaining
upon the premises; or
B.
Any premises where there is conducted the business of furnishing
or providing or procuring, for a fee or other consideration or compensation
or gratuity, figure models, who pose in the nude to be observed or
viewed by any person or to be sketched, painted, drawn, sculptured,
photographed or otherwise similarly depicted.
C.
Exception. The words "model studio" do not include:
(1)
Any studio which is operated by any college, private or public
school, or any governmental agency wherein the person, firm, association,
partnership or corporation operating it has met the requirements established
by the Commonwealth of Pennsylvania for the issuance or conferring
of, and is in fact authorized thereunder to issue and confer, a diploma
or honorary diploma; or
(2)
Any premises where there is conducted the business of furnishing, providing or procuring figure models solely for any studio described in Subsection
C(1) of this definition.
(3)
Any studio operated by a tax-exempt, nonprofit corporation devoted
to the development of art and its appreciation.
MOTION PICTURE FILM
Any:
C.
Film designed to be projected on a screen for exhibition;
D.
Films, glass slides or transparencies, either in negative or
positive form, designed for exhibition by projection on a screen.
E.
Videotape or any other medium used to electronically reproduce
images on a screen.
NUDE
A.
Completely without clothing; or
B.
With the human male or female genitals or pubic area with less
than a fully opaque covering.
OBSCENE MATERIALS
Any literature, including any book, magazine, pamphlet, newspaper,
story paper, comic book or writing, and any figure, visual representation,
or image including any drawing, photograph, picture, video cassette
or motion picture, if:
A.
The average person applying contemporary community standards
would find that the subject matter taken as a whole appeals to the
prurient interest;
B.
The subject matter depicts or describes in a patently offensive
way, sexual conduct of a type described in this section; and
C.
The subject matter, taken as a whole, lacks serious literary,
artistic, political or scientific value.
PERSON
Any individual, partnership, firm, association, corporation,
or other legal entity.
PLACE
Any building, structure or space, or any separate part or
portion thereof, whether permanent or not, or the ground itself.
PUBLICATION
Any book, magazine, article, pamphlet, writing, printing,
illustration, picture, sound recording, or a motion picture film which
is displayed in any area open to the public offered for sale or exhibition
in a coin-operated machine.
SALE
A passing of title or right of possession from a seller to
a buyer for valuable consideration, and shall include, but is not
limited to, any lease or rental arrangement or other transaction wherein
or whereby any valuable consideration is received for the use of,
or transfer, or possession of, lewd matter.
SEXUAL CONDUCT
Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of genitals as well as nudity, showing any front views of the genital organs, the pubic area with or without contact of the hands of the nude person or the hands or portion of the body of another person. (See also definitions under §
88-4.)
[Added 1-27-1987 by Ord. No. 376]
A. 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 section, means materials which
are obscene or showing sexual conduct as described below or:
(1) Any picture, photograph, drawing, sculpture, motion picture film,
videocassette, 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 chapter,
or explicit in detailed verbal descriptions or narrative accounts
of sexual excitement, sexual conduct, or sadomasochistic abuse and
which, taken as a whole, is harmful to minors.
B. 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 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 minors accompanied by parents.
C. Definitions. As used in subsections listed above, the following terms
have the meaning indicated:
HARMFUL TO MINORS
That quality of any description or representation, in whatever
form, of nudity, sexual conduct, sexual excitement, or sadomasochistic
abuse, when it:
(1)
Predominantly appeals to the prurient, shameful or morbid interest
of minors; and
(2)
Is patently offensive to prevailing standards in the adult community
as a whole with respect to what is suitable materials for minors;
and
(3)
Is utterly without redeeming social importance for minors.
KNOWINGLY
Having general knowledge of, or reason to know, or a belief
or ground for belief, which warrants further inspection or inquiry
or both:
(1)
The character and content of any material described herein which
is reasonably susceptible of examination by the defendant; and
(2)
The age of the minor; provided, however, that an honest mistake
shall constitute an excuse from liability hereunder if the defendant
made a reasonable bona fide attempt to ascertain the true age of the
minor.
MINOR
Any person under the age of 18 years.
NUDITY
The showing of the human male or female genitals, pubic area,
or buttocks with less than a fully opaque covering, or the showing
of the female breast with less than 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.
SADOMASOCHISTIC ABUSE
Flagellation or torture by or upon a person clad in undergarments,
a mask or bizarre costume, or the condition of being fettered, bound
or otherwise physically restrained on the part of one so clothed.
SEXUAL CONDUCT
Acts of masturbation, homosexuality, sexual intercourse or
physical contact with a person's clothed or unclothed genitals,
pubic area, buttocks or if such person be a female, breast.
SEXUAL EXCITEMENT
The condition of human male or female genitals when in a
state of sexual stimulation or arousal.
[Amended 1-27-1987 by Ord. No. 376]
A. Any and every place in the Borough of Port Vue in which lewd publications
constitute a part of the stock-in-trade is a public nuisance.
B. Any and every lewd publication possessed at a place which is a public nuisance under Subsection
A above, is a public nuisance per se.
C. From and after service on the owner or its manager, or acting manager, or person then in charge of such place, of a true and correct copy of this chapter and a true and correct copy of the resolution and order of summary abatement provided for in §
88-9 hereof, all valuable consideration received for the sale of such lewd publications is also declared to be a public nuisance as personal property used in conducting and maintaining a declared public nuisance.
D. No person shall knowingly require any distributor or retail seller
as a condition of sale or delivery for resale or consignment of any
literature, book, magazine, pamphlet, newspaper, story paper, paper,
comic book, writing, drawing, photograph, figure or image, or any
written or printed matter, or any article or instrument to purchase
or take by consignment for purpose of sale, resale or distribution
any obscene literature, book, magazine, pamphlet, newspaper, story
paper, paper, comic book, writing, drawing, photograph, figure or
image, or any written or printed matter of an obscene nature or any
article or instrument of an obscene nature.
Upon a specific finding that a public nuisance, as defined in §§
88-4 through
88-7 of this chapter, exists in the Borough of Port Vue, the Council, in applying the provisions of this chapter to such nuisance, shall provide the following by resolution:
A. Declare the fact that such nuisance exists;
B. Set forth the description or legal description and street address
of the place which constitutes the nuisance;
C. Set forth the evidentiary facts considered by the Council in arriving
at its factual determination.
(1) In the case of a motion picture film or films, such shall include
a recitation of: the contents of the film which are found to be lewd;
and of the basis for the finding that such film is publicly exhibited,
or held for such exhibition at the place declared to be a nuisance.
(2) In the case of a publication or publications, such shall include
a recitation of: the particular publications or types of publications
considered by the Council, and those which the Borough Council finds
to be patently offensive; and the basis of the finding by the Borough
Council that such publications constitute a part of the stock-in-trade
of such place of business or other place.
(3) In the case of a massage parlor or model studio, such shall include
a recitation of the particular acts of lewdness, assignation, or prostitution
which have occurred.
D. Order all persons described in §
88-8A hereof to summarily abate such public nuisance within 24 hours of service of such order on any persons, by terminating the exhibition, sale or possession for sale of such lewd subject matter or by ceasing to use the place where the nuisance is declared to exist or by terminating the use of said premises for the purposes of lewdness, assignation, or prostitution, or causing the same to be terminated, and notifying the Council of compliance therewith by sworn affidavit as ordered by the action of the Council in such resolution.
E. Order the Borough Solicitor to proceed as directed in §
88-11 of this chapter and do all things necessary to abate such public nuisance through judicial proceedings.
F. Inform and give notice to persons designated in §
88-8A that:
(1) The Council has determined that a public nuisance presently exists at such place and address, and that, under §
88-8A, they are deemed to have knowledge thereof and are responsible therefor;
(2) In the event the order of the Borough is not complied with, the Council has ordered the Borough Solicitor, as provided for under §
88-11 hereof, to commence necessary legal proceedings naming such persons as defendants in civil action to abate the same judicially under §
88-9 of this chapter, and that under §
88-10A and
B, the costs of abatement of such civil abatement action filed including investigative costs, court costs, attorney's fees, and other expenses, are made a special assessment against the parcel of land upon which such nuisance is being maintained and, upon their determination in such court action, will, by separate legal procedure, be made a lien against such property and a personal obligation against any person, persons, firm, association, partnership, corporation or other entity deemed to be in violation of this chapter;
(3) All lewd motion picture films or lewd publications being used in
conducting and maintaining such public nuisance are contraband and
the subject of forfeiture; and
(4) From and after service on the place, or its manager, or acting manager,
or person then in charge of such place, of a true and correct copy
of this chapter and a true and correct copy of such resolution, any
and all monies paid as admission price to or for the exhibition or
exhibitions of such lewd motion picture films, and valuable consideration
received for the sale of such lewd publications, and all monies or
other valuable consideration received for services rendered in such
massage parlors or model studios are a public nuisance, as personal
property used in conducting and maintaining such nuisance and, as
such, are the subject of forfeiture.
G. Order that a true and correct copy of said resolution and a true
and correct copy of this chapter be delivered forthwith in any manner
normally used to effectuate personal service of process to all persons
of record having any legal or equitable interest in the real property,
and to the regular or acting manager or persons in charge of the place
therein declared a public nuisance.
Upon a specific finding by resolution of the Council as described in §
88-9 of the fact that a public nuisance exists at a particular location, and failure of the persons served with a copy of the resolution to abate said public nuisance, the Borough Solicitor shall:
A. Commence legal proceedings by the filing of a civil action seeking
the following relief:
(1) A declaratory judgement that the matter named by the Borough Council
is lewd, as defined herein.
(2) A declaratory judgement that the matter found to be lewd is or are
public nuisances per se under this chapter and such resolution.
(3) A declaratory judgment that each place named by the Council is a
public nuisance under this chapter and such resolution.
(4) An accounting of all monies paid as admission price to or for the
exhibitions of such lewd motion picture films, and valuable consideration
received for the sale of such lewd publications, and all monies or
other valuable consideration received for services rendered in such
massage parlors or model studios from and after the time the persons
maintaining said nuisance receive notice of the finding by the Council
by resolution that the public nuisance exists, and a judgement that
such monies or valuable consideration are a public nuisance under
this chapter.
(5) An order that all admission price monies or valuable consideration
received and enumerated in the Court-ordered accounting be forfeited
as contraband to the general fund of the Borough of Port Vue or as
property belonging to the Borough.
(6) An injunction enjoining and restraining all persons responsible for
maintaining said nuisance from possessing or publicly exhibiting said
lewd motion picture films, or from selling or possessing for sale
said lewd publications, or from committing acts of lewdness, assignation,
or prostitution, at any time in the future in the Borough of Port
Vue, and such other injunctive relief as the Court may order.
(7) An order that all positive prints of the named lewd film and all
lewd publications or copies or reproductions thereof be forfeited
as contraband under this chapter.
(8) Judgment for the Borough of Port Vue for all costs therein expended,
including investigative costs, court costs, reasonable attorney's
fees, and such other expenses as are provided for herein.
(9) All other relief as the Court may deem proper.
[Added 1-27-1987 by Ord. No. 376]
The District Attorney for the County where the Borough, city
or township is located or, in the alternative, the Solicitor for the
Borough, city or township, may institute proceedings in equity in
the Court of Common Pleas of the County in which any person violates
or clearly is about to violate this section for the purpose of enjoining
such violation. The Court shall issue an injunction only after written
notice and hearing and only against the defendant to the action. The
Court shall hold a hearing within three days after demand by the District
Attorney of the County or, in the alternative, the Solicitor for the
Borough, Township or City, one of which days must be a business day
for the court. A final decree shall be filed in the office of the
prothonotary within 24 hours after the close of the hearing. A written
memorandum supporting the decree shall be filed within five days of
the filing of the decree. The District Attorney for the County or,
in the alternative, the Solicitor for the Borough, city or township
shall prove the elements of the violation beyond a reasonable doubt.
The defendant shall have the right to a trial by jury at said hearing.
[Added 1-27-1987 by Ord. No. 376]
A. Any person who violates any section herein is guilty of a summary
offense.
B. Any findings made in an equity action shall not be binding in the
criminal proceedings.
[Added 1-27-1987 by Ord. No. 376]
The right to trial by jury shall be preserved in all proceedings
under this chapter.
[Added 1-27-1987 by Ord. No. 376]
The following individuals may testify as witnesses to prove
contemporary community standards:
A. Residents.
(1) Any residents who have resided in the community for five years or
more.
(2) Residents who have resided in the community for five years or more
and are, in addition, employed for pay or by volunteer status including
but not limited to the following: bank employees; clergy persons;
court employees; elected and appointed political officials; firemen;
hospital employees; media employees; officials of churches and temples;
paramedics; policemen; professionals and nonprofessionals in education;
professional persons such as attorneys, CPAs, engineers, physicians,
and the like; real estate employees; store clerks; union executives;
and the like.
B. Professional witnesses. A nonresident professional witness may testify
only if:
(1) They are attached to and teaching in an accredited university.
(2) They have testified on both sides of the issue at least four times.
(3) They have no interest in any business related to pornography and
its distribution or antipornography in or out of the community.
(4) They are sociologists, psychologists, economists, psychiatrists,
or other social specialties involving research, demographics, and
attitudes of residents of a community or in other ways gathering community
attitudes.
(5) They hold a Ph.D. in their specialty as listed in Subsection
B(4) above.
(6) Any testimony, report, exhibit or other written or spoken exhibit
or graph or testimony shall contain a figure showing a minimum survey
of 25% of the residents of the community as listed above.
(7) Upon application to the court, the trial judge in the interest of justice and other good reasons may waive any requirements in Subsection
B(1) through
(6) above.
C. Professional witnesses to be excluded. Any state or Federal Judge
or Magisterial District Judge or other person who is capable of making
a decision covering civil, criminal, bond, guilt, holding for court
and the like shall not be allowed to testify as a professional witness.
[Added 1-27-1987 by Ord. No. 376]
Nothing in this chapter 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 of any archive or
library under the supervision and control of the commonwealth or a
political subdivision thereof.
[Added 1-27-1987 by Ord. No. 376]
Nothing in this chapter shall be construed to invalidate, supersede,
repeal or preempt any ordinance or resolution of any political subdivision
insofar as it is consistent with this chapter, and political subdivisions
further retain the right to regulate any activities, displays, exhibitions
or materials not specifically regulated by this chapter.
[Added 1-27-1987 by Ord. No. 376; amended 9-12-1989 by Ord. No.
401; 5-30-1990 by Ord. No. 412]
Any person, firm or corporation who shall violate any provision
of this chapter shall, upon conviction thereof, be sentenced to pay
a fine of not more than $600; and/or to imprisonment for a term not
to exceed 90 days. Each day that a violation of this chapter continues
shall constitute a separate offense.