[Adopted 11-10-1982 by Ord. No. 945 (Ch.
89, Art. I, of the 1999 Code)]
As used in this article, the following terms
shall have the meanings indicated:
ADULT BOOKSTORE
Is an establishment or place of business having a significant
or substantial portion of its stock-in-trade, including but not limited
to books, magazines, periodicals, visual representations, writings,
records, recordings, photographs, movies and/or films distinguished
or characterized by emphasis on matter depicting, describing or relating
to specified anatomical areas or to specific sexual activities or
sexual conduct or an establishment with a segment or section devoted
to the sale or displaying of such materials.
ADULT MINI MOTION-PICTURE THEATER
An enclosed building used for presenting material distinguished
or characterized by an emphasis on matter depicting, describing or
relating to specific sexual activities or specified anatomical areas
for observation by patrons therein.
ADULT MOTION-PICTURE THEATERS
Establishment which presents adult motion pictures to its
customers, business invitees, patrons (paying customers) in an enclosed
building presenting material distinguished or characterized by an
emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas for observation by
patrons therein.
CABARET
Establishment which presents singing and dancing and showing
specific, sexual activities or sexual conduct to its customers, business
invitees, patrons (paying customers) with emphasis on matter depicting
or describing, specific or relating to specific sexual activities
or specified anatomical areas for observation by patrons therein.
SEXUAL CONDUCT/ACTIVITIES
1.
Acts of human masturbation;
2.
Sexual intercourse, whether genital-genital,
oral-genital, oral-anal, anal-genital or sodomy; human male genitals
in a sexual stimulation or arousal;
3.
Any erotic fondling or touching of covered or
uncovered genitals, buttocks, pubic area or any part thereof, the
breasts of a female. Fondling or other erotic touching of human genitals,
pubic region, buttocks or female breasts;
SPECIFIED ANATOMICAL AREAS
Including but not limited to human genitals, pubic region,
buttocks and female breasts below a point immediately above the top
of the areola.
The Borough of Homestead's business and residential
districts are in serious danger of blight and decay, and concentrations
of adult businesses in the neighborhood discourages people from locating
their homes and businesses nearby. The Borough recognizes and is quite
concerned that there are some business uses, which because of their
very nature and purpose, are recognized as having serious objectionable
operational characteristics, particularly when several of them are
concentrated in certain areas which could have a deleterious effect
upon the adjacent areas. In these instances it becomes quite necessary
that special ordinances and regulations be passed and followed to
ensure that these adverse effects will not contribute to the blighting
or downgrading of the surrounding business and residential neighborhoods.
It is shall be unlawful to establish or maintain
any adult bookstore, adult motion-picture theater, adult mini motion-picture
theater or cabaret within 500 feet of any area zoned for residential
use in the Borough of Homestead.
It shall be unlawful to establish or maintain
any adult bookstore, adult motion-picture theater, adult mini motion-picture
theater or cabaret any closer than 1,000 feet of any of the following
uses:
1. Adult theater,
adult mini motion-picture theater, amusement enterprise, cabaret,
dance hall, hotel or motel, pool hall, licensed liquor establishment,
massage establishment, model studio or sexual encounter or meditation
center.
The Council of the Borough of Homestead, recognizing the above problems as stated in §
6-402 and finding a compelling public interest in the preservation of residential and business areas nevertheless, delegates to its Zoning Hearing Board the authority that these prohibitions in §§
6-403 and
6-404 may be waived upon the determination of the following:
1. That the public
health, safety, welfare, order, comfort, will not be adversely affected
by this type of establishment.
2. That the proposed
use will not be contrary to the public interest or injurious to near
or adjacent properties.
3. That the property
located within the distance sought to be permitted will not be injuriously
affected as to continuing long-term residential occupancy or business
expansion or development, as to value or otherwise, nor contribute,
enlarge or encourage the development of a blighted or downgraded area
surrounding residential neighborhood or business districts.
4. That the additional
regulated use in the area will not be contrary to any program of neighborhood
conservation or business growth or expansion nor interfere with urban
renewal.
5. That such location
will be in conformity with all federal and state laws and applicable
ordinances and regulations.
6. That all applicable regulations of Chapter
27, Zoning, be observed.
7. That the spirit and intent of Chapter
27, Zoning, will be observed.
The proper enforcement of the provisions of
this article shall be controlled/maintained by the Council of the
Borough of Homestead, through its agents, officers, servants and/or
employees. The Borough of Homestead acting through its agents, servants,
officers and employees upon receiving notice of a violation of this
article shall give notice upon the person in charge of the establishment,
including but not limited to owners, tenants, lessees, employees,
occupants of the premises or agent thereof, that such violation shall
cease immediately upon notice.
[Amended at time of adoption of Code (see AO)]
Any person, including but not limited to tenants,
lessees, employees, occupants or agents and any person who knowingly
commits, participates and permits any such violations, after receiving
notice thereof, convicted of violating or failing to comply with the
provisions of this article before any Magisterial District Judge,
may be sentenced to pay a fine of not more than $1,000 for each offense
and, in default of payment of said fine and costs, to be imprisoned
for a period not exceeding 30 days for each offense. In cases of persons,
partnerships, associations, firms or corporations the penalty may
be imposed upon the parties or members thereof, in case of corporations
upon the officers thereof. The continuation of such violation for
each successive day shall constitute a separate offense and the person
or persons allowing or permitting the continuation of a violation
may be punished as provided above for each separate offense.
[Adopted 11-10-1982 by Ord. No. 946 (Ch.
89, Art. II, of the 1999 Code)]
As used in this article, the following words
and phrases shall have the following meanings:
COMMUNITY
For the purpose of applying the contemporary community standards,
means the state.
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
material for minors; and
3.
Is utterly without redeeming social importance
for minors.
KNOWING
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 described therein which
is reasonably susceptible of examination by the defendant.
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 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 such minor.
MINOR
Any person under the age of 18 years.
NUDITY
The showing of 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.
OBSCENE MATERIALS
Any literature, including any book, magazine, pamphlet, newspaper,
storypaper, comic book or writing and any figure, visual representation
or image, including any drawing, photograph, picture or motion picture,
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
section;
3.
The subject matter, taken as a whole, lacks
serious literary, artistic, political, educational or scientific value.
SADOMASOCHISTIC ABUSE
Flagellation or torture by or upon a person clad in undergarments,
a mask of bizarre costume, or the condition of being fettered, bound
or otherwise physically restrained on the part of one so clothed.
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 exhibitions of the genitals, acts of homosexuality
or sexual intercourse or of physical contact with a person's clothed
or unclothed genitals, pubic area, buttocks or breasts if such person
is a female.
SEXUAL EXCITEMENT
The condition of human male or female genitals when in a
state of sexual stimulation or arousal.
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
and bus terminals and stations.
No person, knowing the obscene character of
the materials involved shall:
1. Display or cause
or permit the display of any obscene materials 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.
2. 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 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. Hire, employ,
use or permit any minor child to do or assist in doing any act or
other mentioned in this section.
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:
1. Any picture, photograph,
drawing, sculpture, motion picture film 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.
2. Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in Subsection
1 hereof, 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.
No person shall knowingly exhibit for monetary
consideration to a minor or knowingly sell to a minor an admission
ticket or pass or knowingly 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 any minor accompanied by his parent.
No person shall knowingly require any distributor
or retail seller as a condition to sale or delivery for resale or
consignment of any literature, book, magazine, pamphlet, newspaper,
storypaper, 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 purposes of sale, resale or
distribution any obscene literature, book, magazine, pamphlet, newspaper,
storypaper, 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.
Nothing in this article 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 or
any archive or library under the supervision and control of the commonwealth
or a political subdivision thereof.
[Amended at time of adoption of Code (see AO)]
Any person, including but not limited to tenants,
lessees, employees, occupants or agents, and any person who knowingly
commits, participates and permits any such violations, after receiving
notice thereof, convicted of violating or failing to comply with the
provisions of this article before any Magisterial District Judge,
may be sentenced to pay a fine of not more than $1,000 for each offense
and, in default of payment of said fine and costs, to be imprisoned
for a period not exceeding 30 days for each offense. In cases of persons,
partnerships, associations, firms or corporations, the penalty may
be imposed upon the parties or members thereof, in case of corporations
upon the officers thereof. The continuation of such violation for
each successive day shall constitute a separate offense, and the person
or persons, allowing or permitting the continuation of a violation
may be punished as provided above for each separate offense. The Mayor
or Borough Council may institute proceedings in equity in the Court
of Common Pleas of Allegheny County when any person violates or clearly
is about to violate this article for the purpose of enjoining such
violation.