Township of Rostraver, PA
Westmoreland County
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[HISTORY: Adopted by the Board of Commissioners of the Township of Rostraver 9-5-1989 as Part 8, Ch. 1, Art. D, of the 1989 Code. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 195.
As used in this chapter, the following terms shall have the meanings indicated:
AVAILABLE TO THE PUBLIC
The matter or performance may be purchased or attended on a subscription basis, on a membership fee arrangement or for a separate fee for each item or performance.
DISSEMINATE
To transfer possession of, with or without consideration.
KNOWINGLY
Being aware of the character and the content of the material.
MATERIAL
Any book, magazine, newspaper or other printed or written material or any picture, drawing, photograph, motion picture or other pictorial representation or any statue or other figure or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment or machines.
NUDITY
The showing of the human male or female genitals or pubic area with less than a fully opaque covering, or the depiction of covered male genitals in a discernibly turgid state.
OBSCENE 
 To the average person applying contemporary community standards:
A. 
The predominant appeal of the matter, taken as a whole, is to prurient interest; i.e., a shameful or morbid interest in sexual conduct, nudity or excretion;
B. 
The matter depicts or describes in a patently offensive manner sexual conduct regulated by the laws of Pennsylvania; and
C. 
The work, taken as a whole, lacks serious literary, artistic, political or scientific value.
PERFORMANCE
Any preview, play, show, skit, film, dance or other exhibition performed before an audience.
PERSON
Any individual, partnership, firm, association, corporation or other legal entity.
PROMOTE
To cause, permit, procure, counsel or assist.
SERVICE TO PATRONS
The provision of services to paying guests in establishments providing food and beverages, including but not limited to hostessing, hat checking, cooking, bartending, serving, table setting and clearing, waiter and waitressing and entertaining.
It shall be unlawful for any person to:
A. 
Knowingly disseminate, distribute or make available to the public any obscene material.
B. 
Knowingly engage in or participate in any obscene performance made available to the public.
C. 
Knowingly engage in commerce for commercial gain with materials depicting and describing explicit sexual conduct, nudity or excretion, utilizing displays, circulars, advertisements and other public sales efforts that promote such commerce primarily on the basis of their prurient appeal.
D. 
Provide services to patrons in such a manner as to expose to public view:
(1) 
His or her genitals, pubic hair, buttocks, perineum, anal region or pubic hair region;
(2) 
Any device, costume or covering which gives the appearance of or simulates the genitals, pubic hair, buttocks, perineum, anal region or pubic hair region; or
(3) 
Any portion of the female breast at or below the areola thereof.
E. 
Knowingly promote the commission of any of the above listed acts.
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 Township Solicitor or by the Chief of Police on the basis of information lawfully gathered and supplied to them by the Township police 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:
(a) 
That in the opinion of the Township Solicitor or Chief of Police, the activity engaged in falls within the prohibitions of § 129-2;
(b) 
That if such activity has not ceased within seven judicial days, the Township will take appropriate legal action; and
(c) 
That a declaratory judgment proceeding as described in § 129-4 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 § 129-2 in the course of his business is presumed to do so with knowledge of its content and character.
A. 
In rem proceedings.
(1) 
The Chief of Police may apply to the Township Solicitor 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 Chief of Police 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 Chief of Police to have any of the following interests in 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 material named in the complaint.
(3) 
Trial shall be held no later than the fourth judicial day following the filing for attachment. No trial under this section shall be continued or otherwise postponed more than one judicial day, but may be conducted by a judge pro tempore in the event of unavailability of the trial judge.
B. 
Declaratory judgment.
(1) 
Any person receiving notice from the Township Solicitor under § 129-3 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 Solicitor may cause the publication of such judgment in a newspaper of general circulation in the Township, and upon such publication, all persons residing or doing business in the Township will be presumed to have actual notice of the nature of the activity.
C. 
Criminal prosecution.
(1) 
The Township Solicitor may cause criminal charges to be brought against any person presently engaging in or who has engaged in any prohibited activity in violation of § 129-2.
(2) 
If the Township Solicitor has given notice pursuant to § 129-3, then such criminal charges may be brought only after seven judicial days after receipt of the notice.
D. 
Injunction.
(1) 
The Township Solicitor may seek a temporary restraining order in the Court of Common Pleas in order to enjoin any obscene performance or the service of patrons in violation of this chapter.
(2) 
If the Township Solicitor has given written notice pursuant to § 129-3, he may, after the passage of seven judicial days, seek a temporary restraining order.
E. 
Proceedings authorized by this section shall be in addition to any others provided by law.
A. 
Expert affirmative evidence that the materials or activities are obscene is not required when the materials or activities themselves are presented as evidence.
B. 
It shall be an affirmative defense in any prosecution under this chapter that allegedly obscene material was disseminated or presented for a bona fide scientific, medical, educational, governmental or judicial purpose by a physician, psychologist, teacher, clergyman, prosecutor or judge.
A. 
In an in rem proceeding against sexually explicit material under § 129-4, the court shall, upon a determination by the trier of fact that the material is obscene, make an order confiscating the obscene material and authorize and direct the Chief of Police to, pending the exhaustion of all appeals, destroy the same.
B. 
Whoever violates this chapter shall, upon conviction thereof, be fined not less than $50 or more than $600 plus costs of prosecution and, in default of payment of fine and costs, be imprisoned for a period not to exceed 30 days.
C. 
After conviction, in addition to any other penalty imposed for a violation of this chapter, the Board of Commissioners may, at its discretion, revoke the business license of the offender, and upon conviction of the offender for the second violation, the Commissioners shall revoke the business license of that person.