Township of Burlington, NJ Article I Adult Entertainment Businesses

[Adopted as Sec. 12:11 of the 1975 General Ordinances; amended 7-17-1984]

§ 100-1 Purpose.

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.

§ 100-2 Definitions.

A. 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:

OBSCENE MATERIAL FOR PERSONS 18 YEARS OF AGE OR OLDER

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:

(1) 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;

(2) Lacks serious literary, artistic, political or scientific value when taken as a whole; and

(3) 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.

OBSCENE MATERIAL FOR PERSONS UNDER 18

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.

(1) OBSCENE FILM Any 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:

(a) Depicts a specified anatomical area or specified sexual activity, or verbalization concerning a specified sexual activity; and

(b) Emits sensuality sufficient, in terms of the duration and impact of the depiction, to appeal to prurient interest.

(2) SPECIFIED ANATOMICAL AREA

(a) Less than completely and opaquely covered human genitals, pubic region, buttock or female breasts below a point immediately above the top of the areola; or

(b) Human male genitals in a discernibly turgid state, even if covered.

(3) SPECIFIED SEXUAL ACTIVITY

(a) Human genitals in a state of sexual stimulation or arousal;

(b) Any act of human masturbation, sexual intercourse or deviate sexual intercourse; or

(c) Fondling or other erotic touching of covered or uncovered human genitals, pubic region, buttock or female breast.

(4) KNOWINGLY

(a) Having knowledge of the character and content of the material or film described herein; or

(b) Having failed to exercise reasonable inspection which would disclose its character and content.

B. 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:

DISTRIBUTE

To transfer possession of, whether with or without consideration.

PERSON

Any individual, partnership, firm, association, corporation or other legal entity.

TOWNSHIP

The Township of Burlington, New Jersey.

§ 100-3 Prohibited conduct.

A. It shall be unlawful for any person to:

(1) Knowingly disseminate, distribute or make available to the public any obscene material.

(2) Knowingly engage or participate in any obscene performance made available to the public.

(3) 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) Provide service to patrons in such a manner as to expose to public view:

(a) His or her genitals, pubic hair, buttocks, perineum, anal region or pubic hair region;

(b) 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) Any portion of the female breast at or below the areola thereof; or

(d) Knowingly promote the commission of any of the above-listed unlawful acts.

(5) 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) 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. 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. 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.

§ 100-4 Public nuisance.

A. The following are hereby declared to be public nuisances and are hereby subject to the remaining provisions of this chapter:

(1) Places where obscene films are exhibited are public nuisances.

(2) Places of business where obscene publications constitute a principal part of the stock-in-trade are public nuisances.

(3) Massage parlors or model studios used for the purposes of lewdness, assignations or prostitution are places of public nuisance.

B. 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.

§ 100-5 Notice of obscene material or actions.

A. 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) Such notice shall be in writing and delivered by mail or in person to the alleged offender.

(2) Such notice shall state that:

(a) In the opinion of the Department of Public Safety, the activity engaged in falls within the prohibition of § 100-4.

(b) If such activity has not ceased within seven judicial days, the Township of Burlington will take appropriate legal action.

(c) A declaratory judgment proceeding as described in § 100-6 is available if a person engaged in the challenged activity wishes to initiate the legal determination of whether the activity is in fact obscene.

B. A person who promotes any obscene activity as prohibited in § 100-4 in the course of his business is presumed to do so with knowledge of its content and character.

§ 100-6 Types of proceedings.

A. In Rem proceedings.

(1) 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) 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:

(a) The publisher;

(b) The wholesaler, distributor, circulator; and

(c) Every retailer or dealer who has, or may have, possession of any material identical to the material named in the complaint.

B. Declaratory judgment.

(1) 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) 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. Criminal prosecution.

(1) 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.

(2) If the Municipal Attorney has given notice pursuant to § 100-5A, then such criminal charges may be brought only after seven judicial days after receipt of said notice.

D. Injunction.

(1) 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. Proceedings authorized by this section shall be in addition to any others provided by law.

§ 100-7 Public indecency and nudity.

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.

§ 100-8 Violations and penalties.

A. Penalties shall be in accordance with applicable New Jersey statutes, specifically N.J.S.A. 2C:34-1 et seq.

B. 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]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).