PRINTER'S NO. 1258
No. 1099 Session of 1983
INTRODUCED BY PERZEL, VROON, MAIALE, GANNON, NOYE, DURHAM,
SALVATORE, OLASZ, KOSINSKI, CIMINI, WESTON AND CLYMER,
MAY 25, 1983
REFERRED TO COMMITTEE ON JUDICIARY, MAY 25, 1983
AN ACT
1 Declaring commercial exploitation of explicit sexual conduct to
2 be a public nuisance; and providing for injunctive relief and
3 other legal remedies.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Short title.
7 This act shall be known and may be cited as the Sexual
8 Conduct Public Nuisance Act.
9 Section 2. Definitions.
10 The following words and phrases when used in this act shall
11 have the meanings given to them in this section unless the
12 context clearly indicates otherwise:
13 "Facility." Includes, but is not limited to, any building,
14 structure, space or ground, or any separate part or portion
15 thereto, whether permanent or not, which is open to admission by
16 the general public or to which membership is available to the
17 general public with the exception of guests' rooms in hotels,
18 inns or motels.
1 "Hotel, inn or motel." Any facility providing temporary
2 overnight accommodations which is licensed for such purpose by
3 the State pursuant to Article II of the act of March 4, 1971
4 (P.L.6, No.2), known as the Tax Reform Code of 1971.
5 "Person." Any individual, partnership, firm, association,
6 corporation or other legal entity.
7 "Sexual device." Any artificial human penis, vagina or anus,
8 or other device primarily designed, promoted or marketed to
9 physically stimulate or manipulate the human genitals, pubic
10 area, perineum or anal area, including, but not limited to,
11 vibrators, dildos, penisators, and penis rings, except that this
12 shall not include any such device which is sold, distributed or
13 displayed for a bona fide medical, psychological, legislative,
14 judicial or law enforcement purpose by a physician,
15 psychologist, pharmacist, legislator, judge, prosecutor or law
16 enforcement officer.
17 Section 3. Declaration of public nuisance.
18 (a) Solicitation.--All facilities are declared to be a
19 public nuisance where activities occur which through action or
20 solicitation result in or are intended to result in:
21 (1) ultimate sexual acts, normal or perverted, actual or
22 simulated; or
23 (2) masturbation, oral, manual or by object, including,
24 but not limited to, cunnilingus or fellatio.
25 (b) Performance.--All facilities are declared to be a
26 public nuisance wherein the acts specified in subsection (a) are
27 performed before a live audience of one or more persons in a
28 patently offensive manner and the acts taken as a whole lack
29 serious literary, artistic, political, educational or scientific
30 value and the average adult person, applying contemporary
19830H1099B1258 - 2 -
1 community standards, would find that the acts, when considered
2 as a whole, appeal to the prurient interest.
3 (c) Sales.--All facilities are declared to be public
4 nuisances in which sexual devices are sold, distributed or
5 displayed.
6 Section 4. Knowledge of nuisance.
7 Upon and after receiving a true and correct copy of a
8 complaint in equity to abate a public nuisance, any and every
9 person duly served pursuant to the Rules of Civil Procedure who
10 shall own, legally or equitably, lease, maintain, manage,
11 conduct or operate a facility which is declared to be a public
12 nuisance as set forth in this act is deemed to be a person who
13 has knowledge of such nuisance for the purpose of this act, and
14 may, thereafter, be held responsible for its maintenance, and
15 liable therefor.
16 Section 5. Enforcement and remedies.
17 (a) Action in equity.--Any municipality may maintain an
18 action in equity to enjoin any person from owning, leasing,
19 maintaining, managing, conducting or operating a facility which
20 is a public nuisance, as specified herein.
21 (b) Forfeiture.--From and after service of a true and
22 correct copy of a complaint in equity as provided for in the
23 Rules of Civil Procedure, all money or other valuable
24 consideration thereafter paid as an admission price or for
25 services rendered or as rent to an owner for the privilege of
26 continuing to operate a public nuisance shall be turned over to
27 the municipality upon the issuance of an order by the local
28 court of common pleas enjoining the operation of the nuisance,
29 and requiring an accounting by the defendant for all of said
30 moneys.
19830H1099B1258 - 3 -
1 (c) Procedure.--Upon the trial on the merits of the
2 permanent injunction, if the court finds a facility to be a
3 public nuisance, the court may issue an order closing the
4 facility to all uses and purposes for the period of one year. If
5 the offenders or persons owning, in control or in charge of the
6 facility certify that the public nuisance has been abated and
7 that the facility will no longer be operated as a public
8 nuisance, and post a bond in an amount not to exceed the value
9 of the personal property possessed or contained at the place for
10 the maintenance of the public nuisance, the court may release
11 the person or persons from the closure order. The bond shall be
12 deposited with the court prior to the release of any closure
13 order and shall be returned to the person posting the bond,
14 without interest, at the expiration of one year, provided that
15 the public nuisance is not maintained or reestablished within
16 that year.
17 (d) Remedies cumulative.--The right to pursue all and any
18 other available remedies shall be reserved by the municipality,
19 and all such remedies shall be cumulative.
20 Section 6. Severability.
21 If any court shall determine that any word, clause, phrase,
22 sentence, paragraph, subsection or section of this ordinance is
23 unconstitutional, the court shall first attempt to construe or
24 interpret such unconstitutional provision so as to enable the
25 same to be constitutional as so narrowed or construed. If the
26 court cannot so limit or construe such word or provision
27 narrowly so as to render the same constitutional, it shall
28 strike or modify only the minimum number or words, phrases,
29 clauses, sentences, paragraphs, subsections or sections as will
30 be absolutely necessary to render the remainder constitutional.
19830H1099B1258 - 4 -
1 In no case shall a clause, phrase, word or other portion hereof
2 render any other word, clause, phrase, sentence, paragraph,
3 subsection or section unconstitutional, but instead shall be
4 severed therefrom entirely, with the balance of this ordinance
5 in its entirety remaining in full force and effect.
6 Section 7. Effective date.
7 This act shall take effect in 60 days.
D26L53DGS/19830H1099B1258 - 5 -