[HISTORY: Adopted by the Board of Supervisors of the Township of
Montgomery 9-19-1977 by Ord. No. 59. Amendments
noted where applicable.]
This chapter is titled the "Obscenity Ordinance."
It is the policy and purpose of this chapter to regulate obscene matter
in Montgomery Township and to provide penalties and enforcement methods for
violations of the Obscenity Ordinance. It is expressly stated that the Obscenity
Ordinance strictly applies only to those matters and acts prohibited by it,
and it is not the intention of the Obscenity Ordinance to abridge any right
given or protected by the Constitution of the Commonwealth of Pennsylvania
or the Constitution of the United States of America.
As used in this chapter, the following terms shall have the meanings
indicated:
All persons 18 years of age or older at the time of the alleged dissemination
of obscene matter.
The adult populace in general throughout the Township of Montgomery
on or about the time of the alleged dissemination of the obscene matter.
The general conscience, tolerance, customs, habits, practices, morality
or social mores of the community adult populace as a whole, in existence on
or prior to the time of the alleged dissemination of the obscene matter.
"Dissemination" means any exhibition, sale, delivery, transfer, offer,
agreement or providing to another of or any offering or agreeing to exhibit,
sell, deliver, transfer or provide to another of or having in his possession
with intent to exhibit, sell, deliver, transfer, or provide to another any
representation, portrayal, depiction or embodiment of the obscene matter,
including but not limited to any obscene writing, movie, picture, videotape,
act, dance, show, depiction, performance, device, record, recording tape,
theatrical or other stage play or other obscene material which may be shown,
displayed, exhibited, sold, delivered, transferred or provided to another.
"Dissemination" does not mean possession of obscene material by an individual
for purely private noncommercial use in any private dwelling.
Matter is "obscene" if it meets each of the three following definitions:
A great or consuming interest in nudity, sexual acts, excrement,
violence connected with sexual acts, genitals, sexual devices and other similar
matters or objects.
No person or persons belonging to or employed by an entity or group
may knowingly and intentionally disseminate obscene matter in the Township
of Montgomery.
A.Â
Violation of § 159-4 of the Obscenity Ordinance shall be punishable by a fine of not more than $600 for each count or, in default of payment thereof, imprisonment in the county jail for a term not exceeding 30 days.
[Amended 6-22-1992 by Ord.
No. 92-1]
B.Â
A count shall consist of each separate act of dissemination
and may consist of each separate group of matter identifiable by title, brand
or the like, but shall not consist of separate items therein.
A.Â
In any hearing conducted pursuant to the Obscenity Ordinance,
the prosecution may offer proof of any one or more of the following facts,
circumstances or conditions which will create a rebuttable presumption, if
accepted as testimony or evidence, that the person charged with allegedly
disseminating or participating in disseminating the allegedly obscene matter
knew the nature of its contents.
(1)Â
The matter in question has been determined to be obscene
by any one or more of the following courts: Montgomery County Court, Pennsylvania
Superior Court, United States District Court in and for the Eastern District
of Pennsylvania, any United States Court of Appeals or the United States Supreme
Court.
(2)Â
Any adversary hearing before any District Justice or
Judge of the Court of Common Pleas has determined or decreed the matter in
question is in fact obscene.
(3)Â
Any Montgomery County Court, Pennsylvania State Court
or United States District Court in Pennsylvania has issued a temporary or
permanent injunction against the matter in question, and thereafter, the defendant
or his employee, agent or place of business disseminates the material in question
or material so enjoined.
(4)Â
The Montgomery County District Attorney, the Pennsylvania
Attorney General or their employed lawyer assistants acting in behalf or at
the behest of such District Attorney or Attorney General, having previously
viewed, heard or read the matter in question in its entirety, have determined
the same to be obscene within the meaning of this section and have given oral
notice or served written notice of such determination upon the defendant or
his place of business or his employee or agent, by personal service or certified
or registered mail, or publication for at least three days in a newspaper
or general circulation in the Township of Montgomery or the Commonwealth of
Pennsylvania.
(5)Â
The defendant, his agent or employee or place of business
has advertised or caused to be advertised the matter in question by name,
title, description or in conjunction with other obscene matter, either orally
or in writing or picture, whether locally, nationally or merely on or near
the premises where the matter in question is located, found or disseminated.
(6)Â
The defendant or his agent, employee or place(s) of business
have displayed or directed attention to the matter in question in a manner
whereby such object stands out or apart from other matter within the vicinity
in the place of business or depiction or display. This special display or
direction of attention includes but is not limited to placing such object
on special, isolated from other displays on or in a display case or shelf,
within three feet of any cash register at the premises or in unusually large
volume or in several volumes where fewer roughly similar items are located
or are customarily displayed; or referring to such object in public presence
or view or hearing by any employee or posted notice or review in print or
picture within or in the vicinity of such place of business or similar such
noticeable displays or direction of attention to such object or material in
the premises or vicinity thereof by defendant, his employee, agent or business.
(7)Â
Direct or circumstantial evidence that the defendant
or his agent(s) or employee(s) have read, viewed, listened to or discussed
the contents of or promoted the reading, sale or discussion of the particular
matter in question, whether publicly or privately, within or without the business
context or premises, or orally or in writing or by any other communicative
act.
(8)Â
Exhibition of allegedly obscene films, shows or other
portrayals at the place of business or at any public or private location where
persons other than the defendant in his privacy are allowed, invited or solicited.
B.Â
In any prosecution for a violation of the Obscenity Ordinance, it shall be relevant on the issue of knowledge, in addition to the rebuttable presumptions listed under Subsection A above, to prove the advertising, publicity, promotion, method of handling or labeling of the matter, including but not limited to any statement on the cover or back of any book, magazine, writing, film or other allegedly obscene material or wrapping or packing thereof.
C.Â
Testimony on the question of obscenity need not be that
of expert witnesses.
Every person who is authorized to arrest any person for a violation
of this chapter is equally authorized to seize any obscene matter found in
that person's possession or control and to deliver the same to the court before
whom the person so arrested is required to be taken, or it may be taken upon
order of that court to an appropriate and secure law enforcement evidence
storage room.
A.Â
A person aggrieved of a search and seizure may move for
the return of the property and to suppress its use as evidence.
B.Â
Such motion shall be written and shall be served personally
upon the prosecuting attorney or his authorized representative or assistant.
C.Â
Hearing upon such motion shall be had one working day
after service, Saturday, Sunday or legal holidays excepted, by the court to
which the seized matter had been delivered or to which delivery was tendered.
D.Â
That court shall render its decision within two working
days from the suppression hearing unless it makes specific written findings
that additional time is required for submission and consideration of legal
memoranda, in which instance the court shall render its consideration as soon
as possible.
E.Â
If the motion to suppress is granted, the property shall
be returned unless otherwise subject to lawful detention.
A.Â
Obscene matter and advertisements for matter represented
to be obscene are contraband and lawfully in the possession of a law enforcement
agency or prosecutor and may be destroyed.
B.Â
Obscene matter and advertisements may be destroyed after
meeting all of the following conditions:
(1)Â
Upon final judgment of conviction of the defendant, subject
to the right of appeal and preservation of the evidence during the time allowed
for appeal and final determination thereof; and
(2)Â
Upon five days' written notice personally served upon
the defendant or his attorney or posted at the last known address of the defendant
if personal service cannot be made either.
C.Â
Copies, photographs, reproductions or the like may be
retained by law enforcement agencies for law enforcement purposes or for study
by commissions, agencies or other associations, groups or entities sanctioned,
approved or established by federal, state or local government, court or grand
jury or other such entity.
Hearings under the Obscenity Ordinance shall be held before a District
Justice.
