[Adopted as Sec. 12:11 of the 1975 General
Ordinances; amended 7-17-1984]
The Township of Burlington is attempting to
prevent the deterioration of the various commercial districts within
the Township and is further attempting to preserve real estate values,
reduce the incidence of crime and encourage residents and businesses
to remain in their present neighborhoods and to maintain their properties.
The Township intends to regulate adult uses within the Township in
order to prohibit the display of adult reading material within open
view and reach of children under the age of 18 years. The Township
Council finds that such material is adverse to the public peace, morals
and good order of the Township. The Township Council further finds
it is in the best interest of the Township to restrict the display
of adult reading material and to adopt regulations toward that end.
In addition, the Township wishes to discourage the attraction of transients
into the commercial areas of the Township. The Township further finds
that the location of adult entertainment activities near shopping
centers and public areas which are open to family groups and children
has an adverse effect on such persons and may contribute to increased
crime and juvenile delinquency. The Township further finds that such
activities tend to attract an undesirable quantity and quality of
clientele. For all of the foregoing reasons, the Township of Burlington
hereby regulates obscene conduct and the distribution and promotion
of obscene material.
A.Â
OBSCENE MATERIAL FOR PERSONS 18 YEARS OF AGE OR OLDER
(1)Â
(2)Â
(3)Â
OBSCENE MATERIAL FOR PERSONS UNDER 18
(1)Â
(2)Â
(3)Â
(4)Â
The definitions contained in N.J.S.A. 2C:34-2, 2C:34-3
and 2C:34-4 of the New Jersey Code of Criminal Justice, as presently
stated and as subsequently amended, are incorporated herein as follows:
Any description, narrative account, display or depiction
of sexual activity or anatomical area contained in, or consisting
of, a picture or other representation, publication, sound recording,
live performance or film, which by means of posing, composition, format
or animated sensual details:
Depicts or describes in a patently offensive
way ultimate sexual acts, normal or perverted, actual or simulated,
masturbation, excretory functions, or lewd exhibition of the genitals;
Lacks serious literary, artistic, political
or scientific value when taken as a whole; and
Is a part of a work which to the average person
applying contemporary community standards has a dominant theme taken
as a whole which appeals to the prurient interest.
Any description, narrative account, display or depiction
of sexual activity or anatomical area contained in, or consisting
of, a picture or other representation, publication, sound recording,
live performance, or film, which by means of posing, composition,
format or animated sensual details emits sensuality with sufficient
impact to concentrate prurient interest on the area or activity.
OBSCENE FILMAny motion picture or preview or trailer to a film, not including newsreels portraying actual current events or pictorial news of the day, in which a scene taken by itself:
B.Â
DISTRIBUTE
PERSON
TOWNSHIP
The following words, terms and phrases when used in
this article shall, for the purpose of this article, have the meanings
respectively ascribed to them by this section:
To transfer possession of, whether with or without consideration.
Any individual, partnership, firm, association, corporation
or other legal entity.
The Township of Burlington, New Jersey.
A.Â
It shall be unlawful for any person to:
(1)Â
Knowingly disseminate, distribute or make available
to the public any obscene material.
(2)Â
Knowingly engage or participate in any obscene performance
made available to the public.
(3)Â
Knowingly engage in commerce for commercial gain with
materials depicting and describing explicit sexual conduct, nudity
or excretion, utilizing displays, circulars, advertisements or other
public sales efforts that promote such commerce primarily on the basis
of the prurient appeal.
(4)Â
Provide service to patrons in such a manner as to
expose to public view:
(a)Â
His or her genitals, pubic hair, buttocks, perineum,
anal region or pubic hair region;
(b)Â
Any device, costume or covering which gives
the appearance of or simulates the genitals, pubic hair, buttocks,
perineum, anal region or pubic hair region;
(c)Â
Any portion of the female breast at or below
the areola thereof; or
(d)Â
Knowingly promote the commission of any of the
above-listed unlawful acts.
(5)Â
Send or cause to be sent or to bring or cause to be
brought into this Township for sale or distribution any device designated
or marketed as useful primarily for the stimulation of human genital
organs.
(6)Â
Prepare, sell, exhibit or distribute or give away
or offer to give away, or to have in his possession with intent to
sell, exhibit, distribute, give away or offer to give away any device
designed or marketed as useful primarily for the stimulation of human
genital organs.
B.Â
The possession or exhibition forbidden by this article
shall not apply to a possession or exhibition by a police officer,
sheriff, deputy sheriff or other peace officer, or any person under
their supervision and control, or any judge, jury or attache of a
court, or any attorney, or any member of a legislative body, municipal,
state or federal, when such possession or exhibition thereof is connected
with the prosecution or investigation of a violation or possible violation
of this article or other law.
C.Â
This article shall not apply to the viewing of any
material in the privacy of one's home or to any medium regulated by
any public body.
A.Â
The following are hereby declared to be public nuisances
and are hereby subject to the remaining provisions of this chapter:
(1)Â
Places where obscene films are exhibited are public
nuisances.
(2)Â
Places of business where obscene publications constitute
a principal part of the stock-in-trade are public nuisances.
(3)Â
Massage parlors or model studios used for the purposes
of lewdness, assignations or prostitution are places of public nuisance.
B.Â
In the event that the Township's Director of Public Safety finds that a public nuisance exists with respect to any of the establishments referred to in Subsection A, the Township shall follow the procedures set forth in § 100-5, Notice of obscene material or actions, and § 100-6 of the Code of the Township of Burlington, Types of proceedings.
A.Â
Actual notice of the obscene nature of such material,
performance or activity may be given to a person involved in or responsible
for such from the Director of Public Safety on the basis of information
lawfully gathered and supplied to him by the Department of Public
Safety or citizens.
(1)Â
Such notice shall be in writing and delivered by mail
or in person to the alleged offender.
A.Â
In Rem proceedings.
(1)Â
The Director of Public Safety may apply to the Municipal
Attorney to institute an attachment proceeding against any material
which is alleged to be obscene in a sworn affidavit.
(2)Â
Upon filing of an application for attachment authorized in Subsection A(1) of this section, the Director of Public Safety shall immediately cause notice thereof to be served either personally or by mail upon any person residing or doing business in the Township who is known or believed by the Director of Public Safety to have any of the following interests in the material named in the complaint:
B.Â
Declaratory judgment.
(1)Â
Any person receiving notice in writing from the Director of Public Safety under § 100-5A that a specified activity is obscene may bring action against the Township for a declaratory judgment to determine whether such activity is obscene.
(2)Â
If it is adjudged and declared by the Court that such
activity is obscene, then the Township Clerk may cause the publication
of such judgment in a newspaper of general circulation in the Township
of Burlington, and upon such publication, all persons residing or
doing business in the Township of Burlington will be presumed to have
actual notice of the nature of the activity.
C.Â
Criminal prosecution.
(1)Â
The Municipal Attorney and the Director of Public
Safety may cause charges to be brought against any person presently
engaging in or who has engaged in any prohibited activity in violation
of this article.
D.Â
Injunction.
(1)Â
The Municipal Attorney may seek a temporary restraining
order in Superior Court in order to enjoin any obscene performance
or the service of patrons in violation of this article.
E.Â
Proceedings authorized by this section shall be in
addition to any others provided by law.
It shall be unlawful for any person to appear
or travel on any street, avenue, highway, road, parking area, park
or playground or other public place or to appear in any store or commercial
location in the Township in a state of nudity, other than in a shower
room or changing area. A person shall be found in a state of nudity
when his clothing or absence of clothing completely exposes to the
view of others his or her anus, genitals, pubic area or, in the case
of a female, breasts below the areola.
A.Â
Penalties shall be in accordance with applicable New
Jersey statutes, specifically N.J.S.A. 2C:34-1 et seq.
B.Â
Any person who shall violate any provision of this
article or who shall do any act made unlawful by this article shall,
upon conviction, be punished by a fine not exceeding $2,000, imprisonment
for a term not exceeding 90 days or a period of community service
not exceeding 90 days, or any combination thereof.[1]