Chapter 28, Obscenity and Pornography

[HISTORY: Adopted by the Borough Council of the Borough of Harveys Lake 9-20-1983 by Ord. No. 4-83. Amendments noted where applicable.]

GENERAL REFERENCES
Peace and good order -- See Ch. 29.
Zoning -- See Ch. 50.

§ 28-1. Legislative findings and purpose.
The Borough Council finds that the crass 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 human personality; is indecent and offensive to the senses and to public morals; and interferes with the comfortable enjoyment of life and property, in that such interferes with the interest of the public in the quality of life and total community environment, the tone of commerce in the Borough, property values and the public safety; and that the continued operation of such activities is detrimental to the best health, safety, convenience, good morals and general welfare of the Borough of Harveys Lake and of the residents, citizens, inhabitants and businesses thereof. Accordingly, the Borough Council hereby declares such activities to be illegal as hereinafter set forth and, further, that such activities are and are hereby declared to be and constitute a public nuisance and herein establishes penalties for such activities.

§ 28-2. Sale or exhibition of obscene films, books or drawings.
Any person who, with knowledge of the character and content, either sells, gives away, lends, distributes, exhibits, shows, transmutes or offers either to sell, give away, lend, distribute, exhibit, show or transmute or has in his possession or under his control with intent either to sell, give away, lend, distribute, exhibit, show or transmute to another any obscene motion-picture film or any obscene literature, book, magazine, pamphlet, newspaper, storybook, paper, comic book, writing, drawing, photograph, figure, image or any written or printed matter of an obscene nature or any device, article or instrument of an obscene nature shall be guilty of a summary offense and, upon conviction thereof, shall be sentenced to pay a fine not exceeding $300 or undergo imprisonment for a period not exceeding 90 days, or both.

§ 28-3. Publication or preparation 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, storybook, paper, comic book, writing, figure, image, matter, device, article or instrument of an obscene nature shall be guilty of a summary offense and, upon conviction thereof, shall be sentenced to pay a fine not exceeding $300 or undergo imprisonment for a period not exceeding 90 days, or both.

§ 28-4. 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 shall be guilty of a summary offense, and upon conviction thereof, shall be sentenced to pay a fine not exceeding $300 or undergo imprisonment for a period not exceeding 90 days, or both.

§ 28-5. Participation or assisting in sale or showing of obscene materials.
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, storybook, paper, comic book, writing, drawing, photograph, figure or image or any written or printed matter of any obscene nature or any device, article or instrument of an obscene nature shall be guilty of a summary offense and, upon conviction thereof, shall be sentenced to pay a fine not exceeding $300 or undergo imprisonment for a period not exceeding 90 days, or both.

§ 28-6. Use of 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, storybook, paper, comic book, writing, drawing, photograph, figure or image or any written or printed matter of an obscene nature or any device, article or instrument of an obscene nature shall be guilty of a summary offense and, upon conviction thereof, shall be sentenced to pay a fine not exceeding $300 or to undergo imprisonment for a period not exceeding 90 days, or both.

§ 28-7. Advertisements or notices.
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, picture, book, writing, paper, comic book, figure, image, matter, article or thing of an obscene nature can be seen, purchased, obtained or had shall be guilty of a summary offense and, upon conviction thereof, shall be sentenced to pay a fine not exceeding $300 or undergo imprisonment for a period not exceeding 90 days, or both.

§ 28-8. Sale or distribution to minors.
No person within the Borough of Harveys Lake 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 the 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.

§ 28-9. Public display of obscene photographs or covers.
No person within the Borough of Harveys Lake shall display at newsstands or any other 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.

§ 28-10. Definitions.
As used in this chapter, the following terms shall have the meanings indicated:
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.
ILLICIT SEX or SEXUAL IMMORALITY
A. Human genitals in a state of sexual stimulation or arousal.
B. Acts of human masturbation, sexual intercourse or sodomy.
C. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast.
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.
NUDE OR PARTIALLY DENUDED FIGURES
A. Less than completely and opaquely covered human genitals, pubic regions, buttocks and female breasts below a point immediately above the top of the areola.
B. Human male genitals in a discernibly turgid state, even if completely and opaquely 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.
PATENTLY OFFENSIVE -- So offensive on its face as to affront current standards of decency, and shall be deemed to include any of the following described forms of sexual conduct if depicted or described in a patently offensive way:
A. An act of sexual intercourse, normal or perverted, actual or simulated, real or animated, including genital-genital, anal-genital or oral-genital intercourse, whether between human beings or between a human being and an animal.
B. Sadomasochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergarments or in a revealing costume, or the condition of being fettered, bound or otherwise physically restrained on the part of the one so clothed.
C. Masturbation, excretory functions and lewd exhibition of the genitals, including any explicit close up representation of a human genital organ or spread-eagle exposure of female genital organs.
D. Physical contact or simulated physical contact with the clothed or pubic area or buttocks of a human male or female or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.
E. A device designed and marketed as useful primarily for stimulation of the human genital organs.
F. Male or female genitals in a state of sexual stimulation or arousal or covered male genitals in a discernibly turgid state.
G. Fellatio, cunnilingus, anal sodomy, seminal ejaculation or any other excretory function.
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 a partnership shall mean the partners or members thereof and as applied to a corporation shall mean the officers thereof.

§ 28-11. Massage parlors or model studios.
A. No person shall own, operate or maintain any massage parlor or model studio 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. Any such person violating this section shall be guilty of a summary offense and, upon conviction thereof, shall be sentenced to pay a fine not exceeding $300 or undergo imprisonment for a period not exceeding 90 days, or both.
B. As used in this section, the following terms shall have the meanings indicated:
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, and at which massage services are offered.
MODEL STUDIO

(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.
(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.
(3) Exception. The words "model studio" do not include:
(a) Any studio which is operated by any college or junior college, public school or any government agency wherein the person, firm, association, partnership or corporation operating it has met the requirements of the State of Pennsylvania for the issuance or conferring of, and is in fact authorized thereunder to issue and confer, a diploma or honorary diploma.
(b) Any premises where there is conducted the business of furnishing, providing or procuring figure models solely for any studio described in Subsection B(3)(a) of this section.
(c) Any studio operated by a tax exempt, nonprofit corporation devoted to the development of art and its appreciation.

§ 28-12. Severability.
The provisions of this chapter shall be severable. If any court shall determine that any word, clause, phrase, sentence, paragraph or subsection of this chapter is unconstitutional as worded, the court shall first attempt to construe or interpret such unconstitutional provision so as to enable the same to be constitutional as so narrowed or construed. If the court cannot so limit or construe such word or provision narrowly so as to render the same constitutional, it shall strike or modify only the minimum number of words, phrases, clauses, sentences or paragraphs as will be absolutely necessary to render the remainder constitutional. In no case shall a subordinate clause or phrase or word render its attached major section or provision unconstitutional, but instead shall be severed therefrom entirely, unless such severance renders the remainder wholly meaningless or unconstitutional.