An Ordinance Relating to Prohibition of the Promotion of Pornography

Be it ordained and enacted by the Council of the Borough of Bolivar, Westmoreland County, Pennsylvania and it is hereby ordained and enacted by the authority of same as follows:

Section 2100 Definitions For the purpose of this Ordinance, the words and phrases set forth below shall have the meaning respectively ascribed to them:

(a) Audience means one or more persons who are permitted to view a performance for valuable consideration or in or from a public place.

(b) Display Publicly means the exposing, placing, posting, exhibiting, or in any other fashion displaying in any location, whether public or private, material or a performance in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a public place or vehicle.

(c) Disseminate means to manufacture, issue, publish, sell, lend, distribute, transmit, broadcast, exhibit, or present material or to offer or agree to do the same, or to have in one's possession with intent to do the same

(d) Material means any printed matter, visual representation, or sound recording, and includes, but is not limited to, books, magazines, motion picture film, pamphlets, newspapers, pictures, photographs, drawings, three-dimensioned forms, sculptures, and phonograph, tape, or wire recordings.

(e) Minor mean any person under eighteen (18) years of age

(f) Nudity means uncovered, or less then opaquely covered, post- pubertal human genitals or public areas, the post-pubertal human female beast below a 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.

(g) Pander means 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.

(h) Performance means 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.

(i) Pornographic means relating to pornography

(j) Pornography means any material or performance is "pornography" if all the following elements are present

1. Considered as a whole by the average person applying the contemporary community standards of the Borough of Bolivar, it appeals to the prurient interest

2. It depicts, describes, or represents in a patently offensive way, sexual conduct, as hereinafter defined,

3. It lacks serious literary, artistic, political, or scientific value.

(k) Pornography for Minors means any material or performance is "pornography for minors" if all of the following elements are present

1. Considered as a whole by the average person applying the contemporary community standards of the Borough of Bolivar with respect to what is suitable for minors, it is presented in such a manner s to appeal to a minor's prurient interest

2. It depicts, describes, or represents, in a potently offensive way, nudity, or sexual conduct as hereinafter defined 

3. It lacks serious literary, artistic, political, or scientific value for minors.

(l) Prurient Interest means 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 the prurient interest of a particular group of persons including, but not limited to, homosexuals or sadomasochists. In that case, it shall be judged with reference to the particular group for which it was designed.

(m) Public Place or Vehicle means any of the streets, alleys, parks, boulevard, schools, or other public property in the Borough, or any dance hall, rental hall, theater, amusement park, liquor establishment, store, depot, place of public accommodation, or other private property generally frequented by the public for the purposes 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 non- governmental agency for the use, enjoyment , or transportation of the general public.

(n) Sexual Conduct means

1. Masturbation

2. Sexual intercourse whether genital-genital, oral genital, oral- anal, or anal-genital

3. Any erotic fondling or touching of the covered or uncovered genitals, buttocks, public area, or any part of the breasts of the female, whether the conduct described in (1) through (3) is engaged in alone or between members of the same or opposite sex, between humans and animals or between humans and inanimate objects

4. Sctual or simulated display or exhibition of the human public area or genitals or any part thereof

5. Sexual excitement as hereinafter defined

6. Sado-masochistic abuse as hereinafter defined 

(o) Sexual Excitement means the facial expressions, movements, utterance, or other responses of a 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 experienced the physical or sensual reactions of humans engaging in or witnessing sexual conduct.

(p) Sano-masochistic Abuse means 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.

Section 2101 Promoting Pornography

1. It shall be unlawful to any person to promote pornography. A person commits the offense of promoting pornography if, knowing its content and character be:

(a) 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, vehicles, or place owned, leased, conducted, or managed by him for the dissemination of pornographic material

(b) 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

(c) 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

(d) 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

(e) Participates in that portion of a live performance before an audience which makes it pornographic and / or

(f) Panders, displays publicly, or disseminates door- to- door, any pornographic material or performance, or causes such pandering, public display, or door-to- door dissemination

2. For the purpose of this Section, possession of two or more identical copies of pornographic material by any person engaged in the business if disseminating material, as defined above, shall be prima fascia evidence of possession with intent to disseminate for valuable consideration.

Section 2102 Promoting Pornography for Minors

1. 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 contents and character he

(a) Disseminated or causes to be disseminated 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

(b) Exhibits to a minor a motion picture film or other performance which is pornography for minors

(c) Sells to a minor and 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

(d) 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

(e) 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 minor, before an audience which includes a minor

(f) 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.

2. Subparagraphs 1 (a) through (e) do not apply to a parent, guardian, or other persons in loco parentis to the minor.

Section 2103. Defenses It shall be an affirmative defense to a prosecution under Section 2101 or Section 2102 of this Ordinance 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, much as a legislator, judge, prosecutor, law enforcement official, or other similar or related position

(d) A supplier to any person described in (a) through (c) above.

Section 2104 Penalties

1. Fines Any person convicted of violating this Ordinance shall be guilty of a summary offense, and upon conviction before any district Magistrate, be subject to a fine not exceeding three hundred ($300.00) dollars and costs for each offense, and in default of payment thereof, shall be subject to imprisonment in the appropriate jail for a period not exceeding thirty (30) days.

2. Injunction Council may institute proceedings in equity in the Court of common Pleas of Westmoreland County for the purpose of enjoining the sale, resale, lending, distribution, exhibit, gift or show of such pornographic literature, book, magazine, figure, or image, or any written or printed matter of an obscene nature, or any article or instrument of a pornographic nature contrary to the provisions of this section, 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 publication constitutes a danger to the welfare or peace of the community.

Section 2105 Repealer If any Ordinance or a part of an Ordinance is found to be invalid or deemed unenforceable by law then the invalid or unenforceable sentence or word (as the case may be) is hereby repealed to the extent of such conflict. if any one or more sections, subparagraphs, sentences, clauses, or phrases of this Ordinance is for any reason held to be unconstitutional, unlawful, or invalid such decision shall not affect the constitutionality, legality, or validity of the remaining portions of this Ordinance. The Council of the Borough of Bolivar declares that it would have passed this Ordinance and any one or more remaining sections, subparagraphs, sentences, clauses, and phrases thereof, irrespective of the fact that any one or more sections, subparagraphs, sentences, clauses, or phrases be declared unconstitutional 

Ordained and enacted by the Council for the Borough of Bolivar during a duly advertised and convened meeting wherein a quorum was present and this Ordinance was voted upon and enacted on this 3rd day of August 1992.

Patricia Short

Council President

Attest:

Approved:

Florine Bella

Secretary

 John C. Seidell

Mayor

Original Ordinance on file in Vault