Borough of Trafford, PA: Adult Entertainment

§ 60-1 Purpose.

Pursuant to the authority granted in the Borough Code[1] to prohibit nuisances; to promote the health, cleanliness, comfort and safety of the citizens of Trafford Borough 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 Trafford enacts the following provisions.

[1]

Editor's Note: See 53 P.S. § 45101 et seq.

§ 60-2 Prohibited acts; definitions.

Offenses defined. No person, knowing the obscene character of the materials or performances involved, shall, within the Borough of Trafford:

(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 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; 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.

Definitions. Except as otherwise provided in Subsection E, the terms used in this article shall have the meanings indicated in this subsection:

COMMUNITY

For the purpose of applying the contemporary community standards in this article, the term "community" means the state.

KNOWING

As used in Subsection A, the term "knowing" means 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 to examination by the person charged with violation of this article.

MATERIAL

Any literature, including any book, magazine, pamphlet, newspaper, storypaper, bumper sticker, comic book or writing; or any figure, visual representation or image, including any drawing, photograph, picture, videotape or motion picture.

NUDE

The showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or showing the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple.

OBSCENE

Any material or performance, if:

(1)

The average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;

(2)

The subject matter depicts or describes, in a patently offensive way, sexual conduct of a type described in this article; and

(3)

The subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.

PERFORMANCE

Any play, dance or other live exhibition performed before an audience.

SADOMASOCHISTIC ABUSE

In a sexual context, flagellation or torture by or upon a person who is nude or clad in undergarments or 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.

SEXUAL CONDUCT

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 exhibitions of the genitals.

TRANSPORTATION FACILITY

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, watercraft, railroad cars, buses and air, boat, railroad and bus terminals and stations.

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:

(1)

Materials which are obscene;

(2)

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

(3)

Any book, pamphlet, magazine, printed matter, however reproduced, or sound recording which contains any matter enumerated in Subsection C(2) 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.

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.

Definitions. As used in Subsections C and D of this section, the following terms shall have the meanings 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;

(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)

Taken as a whole, lacks serious literary, artistic, political, educational or scientific value for minors.

KNOWINGLY

Having general knowledge of or reason to know or a belief or ground for belief which warrants further inspection or inquiry of both:

(1)

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

(2)

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.

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 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.

SADOMASOCHISTIC ABUSE

Flagellation or torture by or upon a person who is clad in undergarments or a mask or in 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, sexual bestiality 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.

Requiring sale as a condition of business dealings. 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, 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 or image or any written or printed matter of an obscene nature or any article or instrument of an obscene nature.

§ 60-3 Exemption.

Nothing in this article shall apply to any recognized historical society or museum accorded charitable status by the federal government, any county, city, borough, borough 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.

§ 60-4 Violations and penalties; enforcement.

[Amended 5-10-2005 by Ord. No. 702]

Any person, firm or corporation who or which shall violate or fail, neglect or refuse to comply with any of the provisions of this article shall, upon conviction thereof, be sentenced to pay a fine of not less than $100 nor more than $1,000, plus the costs of prosecution, and, in default of payment of such fine and/or costs of prosecution, shall be sentenced to imprisonment for a term not exceeding 30 days. Each day of operation after failure to comply with said notice shall be a separate offense and subject to the penalty herein set forth.

Enforcement of this article shall be the responsibility of the Borough Secretary, Code Enforcement Officer, Police Chief or Fire Chief, or any designated agent, who shall follow the enforcement procedure set forth in this article.