Borough of Port Vue, PA Adult Uses

Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals primarily to the prurient interest; and

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.

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.

MINOR

See § 88-4.

MODEL STUDIO

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

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.

Exception. The words "model studio" do not include:

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

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.

Any studio operated by a tax-exempt, nonprofit corporation devoted to the development of art and its appreciation.

MOTION PICTURE FILM

Any:

Film or plate negative;

Film or plate positive;

Film designed to be projected on a screen for exhibition;

Films, glass slides or transparencies, either in negative or positive form, designed for exhibition by projection on a screen.

Videotape or any other medium used to electronically reproduce images on a screen.

NUDE

Completely without clothing; or

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:

The average person applying contemporary community 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 section; and

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.)

§ 88-4 Special restrictions regarding minors.

[Added 1-27-1987 by Ord. No. 376]

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:

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

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.

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.

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:

Predominantly appeals to the prurient, shameful or morbid interest of minors; and

Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable materials for minors; and

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:

The character and content of any material described herein which is reasonably susceptible of examination by the defendant; and

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.

§ 88-5 Lewd films and theaters exhibiting same.

Any and every place in the Borough of Port Vue where lewd films are publicly exhibited or possessed for the purpose of such exhibition is a public nuisance.

Any and every lewd film which is publicly exhibited or possessed for such purpose at a place which is a public nuisance under Subsection A above, is a public nuisance per se.

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 monies paid thereafter as admission price to such exhibitions are also declared to be public nuisance, as personal and property used in conducting and maintaining a declared public nuisance.

§ 88-6 Lewd publications and business.

[Amended 1-27-1987 by Ord. No. 376]

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.

Any and every lewd publication possessed at a place which is a public nuisance under Subsection A above, is a public nuisance per se.

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.

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.

§ 88-7 Massage parlors and model studios.

Every massage parlor or model studio in or upon which acts of lewdness, assignations, or prostitution, are held or occur, is a public nuisance which shall be enjoined, abated and prevented.

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 in § 88-9 hereof, all monies or other valuable consideration paid for services rendered to customers are also declared to be a public nuisance, as personal property used in conducting and maintaining a declared public nuisance.

§ 88-8 Knowledge of nuisance presumed.

Upon and after receiving notice through service of a true and correct copy of the resolution and order of summary abatement provided for in § 88-9 hereof, any and every person who shall own, legally or equitably, lease, maintain, manage, conduct or operate a place in the Borough of Port Vue which is declared to be a public nuisance as set forth and stated in §§ 88-4 through 88-7 of this chapter, is deemed to be a person who has knowledge of such nuisance for the purpose of this chapter, and is, thereafter, responsible for its maintenance, and shall be liable therefor.

The places and subject matter declared to be public nuisances under §§ 88-4 through 88-7 shall be abated as provided for herein.

§ 88-9 Action to be taken by Borough Council.

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:

Declare the fact that such nuisance exists;

Set forth the description or legal description and street address of the place which constitutes the nuisance;

Set forth the evidentiary facts considered by the Council in arriving at its factual determination.

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.

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.

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.

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.

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.

Inform and give notice to persons designated in § 88-8A that:

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;

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;

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

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.

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.

§ 88-10 Forfeiture to the general fund.

Upon judgement for the Borough of Port Vue in legal proceedings brought pursuant to this chapter, an accounting shall be made by such defendant or defendants of all monies or valuable consideration received by them which have been declared to be a public nuisance under § 88-5C, 88-6C, or 88-7B of this chapter. Such monies or their equivalent and any valuable consideration received shall be forfeited to the general fund of the Borough of Port Vue or to the Borough as property of the Borough if any valuable consideration received be not money.

The cost of abatement shall include the following:

Investigative costs.

Court costs.

Reasonable attorney's fees.

Printing costs of trial and appellate briefs, and all other papers filed in such proceeding.

Such cost of abatement is hereby made a special assessment against the parcel of land upon which such nuisance is maintained. Upon its determination in a civil action, such shall, by separate legal proceeding, be made a lien against such property and a personal obligation against any person, persons, firm, association, partnership, corporation or other entity and shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in the case of delinquency as provided for ordinary municipal taxes. All laws, applicable to the levy, collection and enforcement of municipal taxes, shall be applicable to such special assessment.

§ 88-11 Action to be taken by Borough Solicitor.

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:

Commence legal proceedings by the filing of a civil action seeking the following relief:

A declaratory judgement that the matter named by the Borough Council is lewd, as defined herein.

A declaratory judgement that the matter found to be lewd is or are public nuisances per se under this chapter and such resolution.

A declaratory judgment that each place named by the Council is a public nuisance under this chapter and such resolution.

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.

§ 88-12 Injunction.

[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.

§ 88-13 Criminal prosecution.

[Added 1-27-1987 by Ord. No. 376]

Any person who violates any section herein is guilty of a summary offense.

Any findings made in an equity action shall not be binding in the criminal proceedings.

§ 88-14 Right to trial by jury.

[Added 1-27-1987 by Ord. No. 376]

The right to trial by jury shall be preserved in all proceedings under this chapter.

§ 88-15 Witnesses as to applying the contemporary community standards.

[Added 1-27-1987 by Ord. No. 376]

The following individuals may testify as witnesses to prove contemporary community standards:

Residents.

Any residents who have resided in the community for five years or more.

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.

Professional witnesses. A nonresident professional witness may testify only if:

They are attached to and teaching in an accredited university.

They have testified on both sides of the issue at least four times.

They have no interest in any business related to pornography and its distribution or antipornography in or out of the community.