Borough of New Eagle, PA
Washington County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Borough Council of the Borough of New Eagle 10-4-2016. Amendments noted where applicable.]
A. 
The Borough Council finds that the commercial exploitation of explicit sexual conduct through the public exhibition of obscene films and the sale of obscene publications and devices and the use of so-called massage parlors and model studios for the purpose 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 the human personality; is indecent and offensive to the senses and to public morals and interferes with the quality of the enjoyment of life and the public safety; and that the continued operation of such activities is detrimental to the health, safety and general welfare of the Borough and of the residents and businesses thereof. Accordingly, the Borough Council declares such activities illegal, and such activities are hereby declared public nuisances.
B. 
Notwithstanding the above, the provisions of this chapter have neither the purpose nor the effect of imposing a limitation or restriction on the content of any communication materials, including sexually oriented materials. Similarly, it is not the intent nor the effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market; neither is it the intent nor the effect of this chapter to condone or legitimize the distribution of obscene materials.
As used in this chapter, the words and phrases set forth below shall have the meanings respectively ascribed to them in this section.
ADULT ARCADE
Any place to which the public is permitted or invited or in which coin-operated or slug-operated or electronically, electrically or mechanically controlled still- or motion-picture machines, projectors or other image-producing devices are maintained to show images to an audience, and where the image so displayed is distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
ADULT BOOKSTORE
A commercial establishment having a substantial or significant portion of its stock-in-trade, including but not limited to books, magazines, periodicals, visual representations or writings, distinguished or characterized by emphasis on matter depicting, describing or related to specific anatomical areas or to specified sexual activities or an establishment with a segment or section devoted to the sale or display of such materials. A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of materials depicting or describing specified sexual activities or specified anatomical areas and still be characterized as an adult bookstore. Such other business purposes will not serve to exempt such commercial establishment from being characterized as an adult bookstore so long as one of its principal business purposes is the offering for sale or rental for consideration of specified materials which depict or describe specified sexual activities or specified anatomical areas.
ADULT CABARET
A nightclub, bar, restaurant or similar commercial establishment which regularly features:
A. 
Persons who appear in a state of nudity;
B. 
Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
C. 
Films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
ADULT MOTEL
A hotel, motel or similar commercial establishment which:
A. 
Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas and has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic productions;
B. 
Offers a sleeping room for rent for a period of time that is less than 10 hours; or
C. 
Allows a tenant or occupant of the sleeping room to sublet the room for a period of time that is less than 10 hours.
ADULT MOTION-PICTURE THEATER
A commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides or similar graphic reproductions are displayed which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
ADULT THEATER
A theater, concert hall, auditorium or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
AUDIENCE
One or more persons who are permitted to view a performance for valuable consideration or in or from a public place.
COMMUNITY STANDARDS
The standards of the community from which the jury is drawn or would be drawn if it were the trier of the fact.
DISPLAY PUBLICLY
The exposing, placing, posting, exhibiting or in any other fashion displaying in any location, whether public or private, of material or a performance in such a manner that it may be readily seen and its contents or character distinguished by normal unaided vision viewing it from a public place or vehicle.
DISSEMINATE
To manufacture, issue, publish, sell, lend, distribute, transmit, broadcast, exhibit or present materials or to offer or agree to do the same or to have in one's possession with intent to do the same.
ESCORT
A person who, for consideration, agrees or offers to act as a companion, guide or date for any person or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
ESCORT AGENCY
A person or business association who or which furnishes, offers to furnish or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.
ESTABLISHMENT
Includes any of the following:
A. 
The opening or commencement of any sexually oriented business as a new business;
B. 
The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
C. 
The addition of any sexually oriented business to any other existing sexually oriented business; or
D. 
The relocation of any sexually oriented business.
KNOWINGLY
Having knowledge of the character and content of the material involved or failure on notice to exercise reasonable inspection which would disclose the content and character of the same.
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 Borough which is open to members of the general public, with or without the payment of a fee, at which massage services are offered.
A. 
Includes:
(1) 
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
(2) 
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.
B. 
Exception. The words "model studio" do not include:
(1) 
Any studio which is operated by any college or junior college, public school or any governmental agency wherein the person, firm, association, partnership or corporation operating it has met the requirements of 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;
(2) 
Any premises where there is conducted the business of furnishing, providing or procuring figure models solely for any studio described in Subsection B(1) of this definition; or
(3) 
Any studio operated by a tax-exempt, nonprofit corporation devoted to the development of art and its appreciation.
NUDITY
Uncovered or less than opaquely covered postpubertal human genitals or pubic area, the postpubertal human female breast below the point immediately above the top of the areola or the covered human male genitals in a discernibly turgid state. For the purpose of this definition, a female breast is considered uncovered if the nipple only or the nipple and the areola only are covered.
OBSCENE
That which is determined as obscene, applying the following guidelines:
A. 
Whether the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest.
B. 
Whether the subject matter depicts or describes in a patently offensive way sexual conduct of a type hereinafter described.
C. 
Whether the subject matter taken as a whole lacks serious literary, artistic, political or scientific value.
PANDER
Advertising or propagandizing in connection with the sale of material, the offering of a service or the presentation or exhibition of a performance by appealing to the prurient interest of potential customers.
PERFORMANCE
Any live or reproduced exhibition, including but not limited to any play, motion-picture film, dance or appearance presented to or performed before an audience.
PERSON
A natural person, partnership or corporation. Whenever used in a clause describing or imposing a fine or term of imprisonment, or both, the term "person" as applied to partnership shall mean the partners or members thereof, and as applied to corporation, shall mean the officers thereof.
PORNOGRAPHIC
Relating to pornography.
PORNOGRAPHY
Any material or performance is pornography if all of the following elements are present:
A. 
Considered as a whole by the average person applying the contemporary community standards of the Borough, it appeals to the prurient interest.
B. 
It depicts, describes or represents, in a patently offensive way, sexual conduct, as hereinafter defined.
C. 
It lacks serious literary, artistic, political or scientific value.
PORNOGRAPHY FOR MINORS
Any material performance is pornography for minors if all of the following elements are present:
A. 
Considered as a whole by the average person applying the contemporary community standards of the Borough with respect to what is suitable for minors, it is presented in such a way as to appeal to a minor's prurient interest.
B. 
It depicts, describes or represents, in a patently offensive way, nudity or sexual conduct as hereinafter defined.
C. 
It lacks serious literary, artistic, political or scientific value for minors.
PRURIENT INTEREST
Desire or craving for sexual stimulation or gratification. In determining prurient interest, the material or performance shall be judged with reference to average persons, unless it appears from the character of the material or performance that it is designed to appeal to prurient interests of a particular group of persons, including but not limited to homosexuals or sadomasochists. In this case, it shall be judged with reference to the particular group for which it was designed.
PUBLIC PLACE OR VEHICLE
Any of the streets, alleys, parks, boulevards, schools or other public property in the Borough or any dance hall, rental hall, theater, amusement park, liquor establishment or depot, place of public accommodation or other private property generally frequented by the public for the purpose of education, recreation, amusement, entertainment, sport, shopping or travel; or any vehicle for public transportation, owned or operated by government, either directly or through a public corporation or authority, or owned or operated by any nongovernmental agency for the use, enjoyment or transportation of the general public.
SADOMASOCHISTIC ABUSE
Flagellation or torture by or upon a person who is nude or clad in undergarments or in a sexually revealing or bizarre costume; or the condition of such person being fettered, bound or otherwise physically restrained in an apparent act of sexual stimulation or gratification.
A. 
Masturbation.
B. 
Sexual intercourse, whether genital-genital, oral-genital, oral-anal or anal-genital.
C. 
Any erotic fondling or touching of any parts of the covered or uncovered genitals, buttocks, pubic area or breasts of the female.
D. 
Actual or simulated display or exhibition of the human pubic area or genitals or any part thereof.
E. 
Sexual excitement, as hereinafter defined.
F. 
Sadomasochistic abuse, as hereinbefore defined.
G. 
The conduct described in Subsections A through C of this definition, inclusive, is sexual conduct, whether or not it is engaged in alone or between members of the same sex or between members of the opposite sex or between humans and animals or between humans and inanimate objects.
SEXUAL ENCOUNTER CENTER
A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
A. 
Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
B. 
Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity.
SEXUAL EXCITEMENT
The facial expression, movements, utterances or other responses of the human male or female, whether alone or with others, whether clothed or not, who is in an apparent state of sexual stimulation or arousal or who experiences the physical or sensual reactions of humans engaging in or witnessing sexual conduct.
SEXUALLY ORIENTED BUSINESS
An adult arcade, adult bookstore, adult cabaret, adult motel, adult motion-picture theater, adult theater, escort agency, nude model studio or sexual encounter center.
SPECIFIED ANATOMICAL AREAS
Human genitals; pubic region; buttocks; female breasts below a point immediately above the top of the areola.
SPECIFIED SEXUAL ACTIVITIES
Human male genitals in a discernibly turgid state of sexual stimulation or arousal; acts of human masturbation, sexual intercourse or sodomy; fondling or other erotic touching of human genitals, pubic regions, buttocks or female breasts.
Sexually oriented businesses are classified as follows:
A. 
Adult arcades.
B. 
Adult bookstores.
C. 
Adult cabarets.
D. 
Adult motels.
E. 
Adult motion-picture theaters.
F. 
Adult theaters.
G. 
Escort agencies.
H. 
Nude model studios.
I. 
Sexual encounter centers.
It shall be unlawful to establish or maintain any sexually oriented business in or within 1,000 feet of another sexually oriented business, a church, a public or private elementary or secondary school, a public park or the property line of a lot devoted to residential use.
A. 
It shall be unlawful for any person to promote pornography. A person commits the offense of promoting pornography if, knowing its content and character, he:
(1) 
Disseminates or causes to be disseminated any pornographic material in or from a public place or vehicle or for valuable consideration or has in his possession any pornographic material with intent to so disseminate, or knowingly allows the use of any business, building, vehicle or place owned, leased, conducted or managed by him for such dissemination of pornographic material;
(2) 
Sells an admission ticket or pass to premises where there is being exhibited or is about to be exhibited material or a performance which is pornographic;
(3) 
Admits, by accepting a ticket or pass, a person to premises where there is being exhibited or is about to be exhibited material or a performance which is pornographic;
(4) 
Produces, presents, directs or knowingly allows the use of any business, building, vehicle or place owned, leased, conducted or managed by him to be used for a pornographic performance before an audience;
(5) 
Participates in that portion of a live performance before an audience which makes it pornographic; or
(6) 
Panders, displays publicly or disseminates door to door any pornographic material or performance or causes such pandering, public display or door-to-door dissemination.
B. 
For the purposes of this section, possession of two or more identical copies of any pornographic material by any person engaged in the business of disseminating material, as defined above, shall be prima facie evidence of possession with intent to disseminate for valuable consideration.
The following acts shall be punishable as set forth in § 90-10A of this chapter:
A. 
Dissemination of obscene material. Any person who, with knowledge of the character and content, either sells, gives away, lends, distributes, exhibits, shows or offers either to sell, give away, lend, distribute, exhibit or show, or has in his possession or under his control with intent either to sell, give away, lend, distribute, exhibit or show to another, any obscene motion-picture film or any obscene literature, book, magazine, pamphlet, newspaper, paper, comic book, writing, drawing, photograph, figure or any written or printed matter of an obscene nature or any device, article or instrument of an obscene nature.
B. 
Manufacture of obscene materials. Any person who designs, copies, draws, photographs, prints, utters, publishes or in any manner manufactures or prepares any obscene motion-picture film or any obscene book, picture, film, drawing, magazine, pamphlet, newspaper, paper, comic book, writing, figure, matter, device, article or instrument of any obscene nature.
C. 
Obscene performances. Any person who, with knowledge of the character and content, produces, presents or directs any obscene performance or participates in the portion thereof which is obscene.
D. 
Assisting dissemination of obscene material. Any person who knowingly participates in, supports or in any way aids or assists any person in selling, lending, distributing, giving away or showing any obscene motion-picture film or any obscene literature, book, magazine, pamphlet, newspaper, paper, comic book, writing, drawing, photograph, figure or any written or printed matter of an obscene nature or any device, article or instrument of an obscene nature.
E. 
Allowing dissemination of obscene material on premises. Any person, being the owner of any premises or having control thereof, who knowingly permits within or upon said premises the exhibition, projection or showing of any motion-picture film, show, presentation or performance of an obscene nature or permits anyone to sell, lend, distribute, exhibit, give away or show any obscene literature, book, magazine, pamphlet, newspaper, paper, comic book, writing, drawing, photograph, figure or any written or printed matter of an obscene nature or any device, article or instrument of an obscene nature.
F. 
Advertising of obscene materials. Whoever knowingly writes, prints, publishes or utters or causes to be printed, published or uttered any advertisement or notice of any kind giving information directly or indirectly, stating or purporting to state where, how or who or by what means any obscene motion-picture film, book, writing, paper, comic book, figure, image, matter, article or thing of any obscene nature can be seen, purchased, obtained or had.
A. 
No person within the Borough shall display at newsstands or any other commercial business establishment frequented by minors under the age of 17 years, or where said minors are or may be invited as a part of the general public, any obscene motion-picture film or any still picture or photograph or any book, pocket book, pamphlet or magazine, the cover or content of which exploits, is devoted to or is principally made up of descriptions or depictions of illicit sex or sexual immorality, or which is obscene or which consists of pictures of nude or partially denuded figures posed or presented in a manner to provoke or arouse lust or passion or to exploit sex, lust or perversion for commercial gain, or any device, article or instrument of an obscene nature.
B. 
No person within the Borough shall willfully or knowingly engage in the business of selling, lending, giving away, showing, advertising for sale or distributing to any person under the age of 17 years or have in his possession with intent to engage in said business, or to otherwise offer for sale or commercial distribution to any individual under the age of 17 years, any obscene motion-picture film or any still picture or photograph or any book, pocket book, pamphlet or magazine, the cover or content of which exploits, is devoted to or is principally made up of descriptions or depictions of illicit sex or sexual immorality, or which is obscene or which consists of pictures of nude or partially denuded figures posed or presented in a manner to provoke or arouse lust or passion or to exploit sex, lust or perversion for commercial gain, or any device, article or instrument of an obscene nature.
A. 
It shall be unlawful for any person to promote pornography for minors. A person commits the offense of promoting pornography for minors if, knowing its content and character, he:
(1) 
Disseminates or causes to disseminate to a minor material which is pornography for minors or knowingly allows the use of any business, building, vehicle or place owned, leased, conducted or managed by him for the dissemination to a minor of material which is pornography for minors;
(2) 
Exhibits to a minor a motion-picture film or other performance which is pornography for minors;
(3) 
Sells to a minor an admission ticket or pass to any building, vehicle or place where there is being exhibited or is about to be exhibited a motion-picture film or other performance which is pornography for minors;
(4) 
Admits a minor to any building, vehicle or place where there is being exhibited or is about to be exhibited a motion-picture film or other performance which is pornography for minors;
(5) 
Knowingly produces, presents, directs or allows the use of any business, building, vehicle or place owned, leased, conducted or managed by him for the presentation of a performance which is pornography for minors before an audience which includes a minor; or
(6) 
Displays publicly or disseminates door to door any material or performance which is pornography for minors or causes such public display or door-to-door dissemination.
B. 
The provisions of Subsection A(1) through (5) do not apply to a parent, guardian or other persons in loco parentis to the minor.
No person shall own, operate or maintain any massage parlor or model studio in the Borough which, as a regular course of business, is used for the purpose of lewdness, assignation or prostitution, and every such massage parlor or model studio in or upon which acts of lewdness, assignation or prostitution are held or occur is declared to be a public nuisance.
A. 
Fines and imprisonment. Any person who violates or permits a violation of this chapter shall, upon conviction in a summary proceeding under the Pennsylvania Rules of Criminal Procedure, be guilty of a summary offense and shall be punishable by a fine of not more than $1,000, plus court costs and reasonable attorneys' fees incurred by the Borough in the enforcement proceedings. Upon judgment against any person by summary conviction, or by proceedings by summons on default of the payment of the fine or penalty imposed and the costs, the defendant may be sentenced and committed to the county correctional facility for a period not exceeding 30 days. Each day that such violation exists shall constitute a separate offense, and each section of this chapter that is violated shall also constitute a separate offense.
B. 
In addition to or in lieu of enforcement under this section, the Borough Council may institute proceedings in equity in the Court of Common Pleas of Washington County for the purpose of enjoining the sale, resale, lending, distribution, exhibit, gift or show of such pornographic literature, books, magazines, pamphlets, newspapers, storypapers, papers, comic books, writings, drawing, photographs, figures or images or any written or printed matter of an obscene nature of any article or instrument of a pornographic nature contrary to the provisions of this chapter, and for such purposes jurisdiction is hereby conferred upon said Court. A preliminary injunction may issue and a hearing thereafter be held thereon in conformity with the Rules of Civil Procedure upon the averment of the Council that the sale, resale, lending, distribution, exhibit, gift or show of such publications constitutes a danger to the welfare or peace of the community.
It shall be an affirmative defense to a prosecution under this chapter if the pornographic material was disseminated by a person who was acting in his capacity as:
A. 
A teacher of an accredited course of study related to pornography at a state-approved educational institution;
B. 
A licensed medical practitioner or psychologist in the treatment of a patient;
C. 
A participant in the criminal justice system, such as a legislator, judge, prosecutor, law enforcement official or other similar or related position; or
D. 
A supplier to any person described in Subsections A through C above.
This chapter shall become effective immediately and shall apply to existing establishments which are presently engaged in the type of activity herein declared to be illegal and a public nuisance.