[HISTORY: Adopted by the Mayor and Council of the City of Washington 4-11-1996 by Ord. No. 1518 (Ch. 6, Part 7, of the 1986 Code of Ordinances). Amendments noted where applicable.]
Sexually oriented businesses — See Ch. 276.
The City Council of the City of Washington finds that the crass commercial exploitation of explicit sexual conduct through the public exhibition of obscene films and the sale of obscene publication 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 and 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 community, 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 City and of the residents, citizens and businesses thereof. Accordingly, the Council hereby declares such activities to be illegal as hereinafter set forth and, further, that such activities are public nuisances; and herein establishes penalties for such activities.
This chapter shall be known and cited as the "Obscenity Control Ordinance."
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.
- COMMUNITY STANDARDS
- The standards of the community from which the jury is drawn or would be drawn if it were the trier of fact.
- DISPLAYS PUBLICLY
- Exposing, placing, posting, exhibiting or in any fashion displaying in any location, whether public or private, an item in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a street, highway or public sidewalk, or from the property of others.
- To transfer possession of, with or without consideration.
- EXPLICIT SEXUAL MATERIAL
- Any pictorial, two- or three-dimensional material, depicting human masturbation, deviate sexual intercourse, sexual intercourse, direct physical stimulation or unclothed genitals, sadomasochist abuse or emphasizing the depiction of postpubertal human genitals; provided, however, that works of art or of anthropological significance shall not be deemed to be included in the foregoing definition.
- ILLICIT SEX or SEXUAL IMMORALITY
- Any public display of human genitals in a state of sexual stimulation or arousal; acts of human masturbation, sexual intercourse or sodomy; fondling or other erotic touching of human genitals, pubic region, buttocks or female breast.
- KNOWINGLY; KNOWLEDGE
- Being aware of or having knowledge of the contents of character of the patently offensive conduct, demonstration, film, publication or acts of lewdness, assignation or prostitution which occur on the premises, or failure to exercise reasonable inspection which would disclose such character.
- Any process consisting of kneading, rubbing or otherwise manipulating the skin of the body of a human being either with the hand or by means of electrical instruments or apparatus or other special apparatus, where performed on a member of the opposite sex, but shall not include massages by duly licensed physicians, osteopaths, chiropractors, registered nurses and practical nurses operating under a physician's directions, registered speech pathologists, physical or occupational therapists and properly licensed masseur or masseuse; nor shall this definition include any massage of the face or neck practiced by beauticians, cosmetologists and barbers duly licensed.
- MASSAGE ESTABLISHMENT
- Any building, room, place or establishment where, for any form of consideration or gratuity, massage is applied upon the body by anyone not a duly licensed physician, osteopath, chiropractor, registered nurse and practical nurse operating under a physician's directions, registered speech pathologist, physical or occupational therapist and properly licensed masseur or masseuse, whether with or without the use of mechanical, therapeutic or bathing devices, and shall include Turkish bathhouses. The term shall not include a regularly licensed hospital, medical clinic or nursing home, duly licensed beauty parlors or barbershops.
- MATERIAL or MATTER
- Any book, magazine, newspaper or other printed material or any picture, drawing, photograph, motion picture or other pictorial representation or statue or other figure, or any recording, transaction or mechanical, chemical or electrical reproduction, or any other article, equipment or machine.
- Any person 18 years of age or younger.
- MODEL STUDIO
- 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 a 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 to so depict the figure model or for admission to or for permission to remain upon or as a condition for remaining upon the premises; or 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 similarly depicted; provided, however, that the term "model studio" shall not include: (i) any studio which is operated by any college or junior college, public school or any governmental 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; or (ii) any premises where there is conducted the business of furnishing, providing or procuring figure models solely for any studio described in subsection (i) of this definition; or (iii) any studio operated by a tax-exempt nonprofit corporation devoted to the development of art and its appreciation.
- Includes completely without clothing or with the human male or female genitals, pubic area or buttocks with less than full opaque covering or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the covered male genitals in a discernibly turgid state.
- OBJECTIONABLE PUBLICATIONS AND MATERIALS
- Those items which depict illicit sex or sexual immorality or nude or partially denuded figures.
- The average person applying contemporary community standards would find that the predominant appeal of the subject matter taken as a whole is to prurient interest, that is, a shameful or morbid interest in sexual conduct, nudity or excretion; and the subject matter depicts or describes sexual conduct in a patently offensive manner and 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 they are depicted so as to affront current stands of decency:
- 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 or sexual gratification by or upon a person who is nude or clad in undergarments or in 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 human genital organs or spread-eagle exposure of female genital organs.
- D. Physical contact or simulated physical contact with the clothed or naked pubic area or buttocks of a human male or female or the breast of the female, whether alone or between members of the same or opposite sex, 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 discernibly turgid state.
- G. Fellatio, cunnilingus, anal sodomy, seminal ejaculation or any excretory function.
- Any preview, play, show, skit, film, dance or other exhibition performed before an audience.
- Individuals, partnerships, firms, corporation, associations, joint-stock companies, trusts and unincorporated organizations. 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 all the officers thereof; and as applied to a corporation or joint-stock company shall mean the officers thereof; and as applied to a trust shall mean the trustees thereof.
- Includes, but is not limited to, any building, structure or space, or any separate part or portion thereof, whether permanent or not, or the ground itself.
- PORNOGRAPHIC FOR MINORS
- Any material or device or performance is "pornographic for minors" if it is primarily devoted to description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sadomasochistic abuse, and its predominant appeal is to prurient interest in sex, and it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and it lacks serious literary, artistic, political or scientific value for minors.
- To cause, permit, procure, counsel or assist.
- Any book, magazine, article, pamphlet, writing, printing, illustration, picture, sound recording or motion-picture film which is displayed in an area open to the public, offered for sale or exhibited in a coin-operated machine.
- A passing of title or right of possession from a seller to a buyer for consideration and shall include, but is not limited to, any lease or rental arrangement or other transaction wherein or whereby any consideration is received for the use of or transfer of possession of obscene matter.
- 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.
- SEXUAL DEVICE
- Any instrument or appliance primarily designed, promoted or marketed for the purposes of artificially causing, stimulating or enhancing sexual conduct, except that any such device which is sold, distributed or displayed for bona fide medical purposes.
No person shall knowingly either sell, rent, distribute, exhibit, show or transmit or offer either to sell, rent, distribute, exhibit, show or transmit, or have in his possession or under his control with intent either to sell, rent, distribute, exhibit, show or transmit to another, any obscene motion-picture film or any obscene literature, book, magazine, pamphlet, newspaper, story book, 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.
No person shall knowingly participate in, support or in any way aid any person in selling, renting, distributing or showing any obscene motion-picture film or any obscene literature, book, magazine, pamphlet, newspaper, story book, 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.
No person shall knowingly design, draw, photograph, print, utter, publish or in any manner manufacture or prepare any obscene motion-picture film or any obscene book, picture, film, drawing, magazine, pamphlet, newspaper, story book, paper, comic book, writing, figure, image, matter, device, article or instrument of an obscene nature.
No person shall knowingly produce, present or direct any obscene performance or participate in the portion thereof which is obscene.
No person, being the owner or lessee of any premises, or having control thereof, shall knowingly permit within or upon said premises the exhibition, projection or showing of any motion-picture film, show, presentation or performance of an obscene nature, or permit anyone to sell, rent, distribute, exhibit, give away or show any obscene literature, book, magazine, pamphlet, newspaper, story book, paper, comic book, writing, drawing, photograph, figure or image, or any written or printed matter of an obscene nature.
No person shall knowingly write, print, publish or utter or cause 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 by whom or by what means any obscene motion-picture film, book, writing, paper, comic book, figure, image, article or thing of an obscene nature can be seen, purchased, obtained or had.
No person shall knowingly write, print, publish or utter or cause 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 by whom 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, showing, but not limited to, the following:
His or her genitals, pubic hair, buttocks, perineum, anal region or pubic hair region.
Any device, costume or covering which gives the appearance or simulates the genitals, pubic hair, buttocks, perineum, anal region or pubic hair region.
Any portion of the female breast at or below the areola thereof.
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.
No person shall knowingly lease, own or make available for such purposes a massage establishment or engage in or offer to engage in for pecuniary gain or consideration the practice of massage, as such conduct is herein defined.
No person shall knowingly publicly display explicit sexual material or fail to take prompt action to remove the display of explicit sexual material from property in his possession.
No person shall knowingly furnish pornographic material to minors.
No person shall display at newsstands or any other business establishment frequented by minors, or where said minors are or may be invited as part of the general public or where they may view same, any material depicting the acts specified in § 228-2 of this chapter, male or female buttocks or genitals or the female breast below a point immediately above the top of the areola.
In addition to any other violations or penalties prescribed herein, any person in the City who has in his possession or under his control, with intent to sell, rent, distribute, exhibit, show or transmit to another, any obscene motion-picture film or any obscene literature, book, magazine, pamphlet, newspaper, story book, paper, comic book, writing or any other written or printed matter containing photographs or photographic images depicting children under the age of 18 years participating, performing or observing any of the acts defined in § 228-2 of this chapter shall be guilty of a summary offense and, upon conviction thereof, shall be sentenced to pay a fine not exceeding $300 for each offense or undergo imprisonment for a period not exceeding 90 days, or both, in addition to any other penalties imposed. Each and every alleged violation shall constitute a separate offense.
Any obscene literature or film displaying or presenting pictures, photographs or photographic images depicting prepubescent children exhibiting undeveloped genitalia or breast shall be a per se violation of the provisions of this section without further proof of age.
No person shall knowingly promote the commission of any of the above listed acts.
Actual notice of the obscene or pornographic nature of any such material, performance or activity may be given to a person involved in or responsible for such by the City Administrator, Zoning Officer, Code Enforcement Officer or other duly authorized City official, at the City's sole election.
Such notice shall be in writing and delivered by mail or in person to the alleged offender.
Such notice shall state that:
Any person who promotes any activity prohibited in § 228-3 in the course of his business is presumed to do so with knowledge of its content and character.
Provided, however, that this section shall not be construed as a condition precedent to the commencement by the City of criminal and/or civil proceedings hereunder. The City is specifically authorized to institute criminal and/or civil proceedings for violation of this chapter at its sole election without first having to give notice as provided by this section.
Criminal action. Upon observing or receiving notice of a potential violation of this chapter, the Police Department shall conduct an investigation to determine whether legal action shall be taken. If the Department determines that there is reason to believe that a violation of this chapter has or is continuing to occur, the Department shall continue its investigation in order to provide the Court of Common Pleas or a Magisterial District Judge (hereinafter referred to as "Judge") with sufficient facts to establish probable cause that this chapter has been violated and to request the Judge to issue the appropriate process. The facts establishing probable cause shall be assembled according to the following procedures:
Obscene articles for purchase. A police officer shall purchase the allegedly obscene articles, prepare a citation for each article purchased and present the article and the citation to the Judge, requesting the Judge to issue the appropriate process.
Obscene films. If an allegedly obscene film is not available for purchase, a police officer shall prepare a search warrant for the seizure of the film. After the search warrant has been issued, the officer shall confiscate the film described in the search warrant, prepare a citation and present the film and the citation to the Judge, requesting the Judge to issue the appropriate process.
If the film seized is the only copy available, the officer shall request the Judge who issued the search warrant to allow the copying of the film. The original film shall be returned to the owner as soon as possible after review by the Judge and after it has been copied pursuant to the Judge's authorization.
Obscene live performances. An officer shall observe the allegedly obscene performance, prepare a citation and present the citation to the Judge, requesting the Judge to issue the appropriate process.
The City may maintain an action to enjoin any person from operating a facility which is used for prohibited conduct as specified herein.
Preliminary and permanent injunction may be issued to prevent the further continuance of such conduct. The offenders or persons owning, in control or in charge of such facility shall certify that the illegal activity has been abated.
Any individual, person, firm, corporation or other entity who shall violate any provision of this chapter shall, upon being held liable in any civil proceeding or upon conviction thereof, be sentenced to pay a penalty, fine or charge of no less than $100 nor more than the maximum amount permitted by law, but not to exceed $1,000, and in default of payment or any failure to pay any fine or penalty, upon a summary or other criminal conviction, shall be sentenced to imprisonment for a period not to exceed 30 days, or both.
[Amended 12-7-2006 by Ord. No. 1766]
Each day that a violation of this chapter shall continue shall constitute a separate offense, subject to the fines, costs, penalties and charges set forth above for each offense.
[Added 12-7-2006 by Ord. No. 1766]
Nothing herein shall limit, prevent or preclude the City of Washington from taking any and all legal action or exercising any other remedy available to the City by law, including but not limited to the initiation of civil or criminal proceedings or injunctive relief in order to enforce or ensure compliance with this chapter. As an additional remedy, the City of Washington may abate any nuisance, dangerous or hazardous condition by any means permitted by law, which shall include, but not be limited to, an action in the Court of Common Pleas of Washington County, Pennsylvania, for injunctive relief; the use of any City of Washington personnel, equipment and materials or that of an authorized agent or contractor hired by the City to remove or abate any nuisance, dangerous or hazardous condition and with all costs thereof or related thereto to be charged against the property owner(s) and/or person or entity who has violated the chapter or portion thereof; said costs shall include all actual costs and expenses, including all costs of collection and reasonable administrative costs of the City, incurred in enforcing the provisions of the chapter.
[Added 12-7-2006 by Ord. No. 1766]
Such cost of abatement is hereby made a special assessment against the parcel of land upon which such nuisance is maintained. Upon its determination in a civil action, such shall, by legal proceeding, be made a lien against such property and personal obligation against any person and shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same procedure and sale in the case of delinquency as provided for ordinary taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assessment.
The cost of abatement shall include the following: