Pennsylvania Act 1996-120 — REAL AND PERSONAL PROPERTY (68 PA.C.S.) - AMEND ADULT-ORIENTED ESTABLISHMENTS

Act text

REAL AND PERSONAL PROPERTY (68 PA.C.S.) - AMEND ADULT-ORIENTED
                              ESTABLISHMENTS
                 Act of Oct. 16, 1996, P.L. 696, No. 120              Cl. 68
                             Session of 1996
                               No. 1996-120

     HB 1053

                                  AN ACT

     Amending Title 68 (Real and Personal Property) of the
        Pennsylvania Consolidated Statutes, adding provisions
        relating to the operation and suspension of adult-oriented
        establishments; and imposing penalties.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Part II of Title 68 of the Pennsylvania
     Consolidated Statutes is amended by adding a subpart to read:
                                 PART II
                              REAL PROPERTY
                                  * * *
                                SUBPART D
                             USES OF PROPERTY
     Chapter
       55.  Adult-Oriented Establishments
                                CHAPTER 55
                      ADULT-ORIENTED ESTABLISHMENTS
     Sec.
     5501.  Legislative findings and intent.
     5502.  Definitions.
     5503.  Requirements for adult-oriented establishments.
     5504.  Liability of operator.
     5505.  Establishments open for inspection.
     5506.  Civil action to enjoin or abate violations.
     5507.  Violation of abatement order or injunction.
     5508.  Penalty.
     5509.  Existing remedies preserved.
      § 5501.  Legislative findings and intent.
        (a)  Findings.--The General Assembly finds as follows:
            (1)  There are within this Commonwealth a number of
        adult-oriented establishments which require special
        regulation by law and supervision by public safety agencies
        in order to protect and preserve the health, safety and
        welfare of patrons of these establishments, as well as the
        health, safety and welfare of the citizens of this
        Commonwealth.
            (2)  Statistics and studies performed in a substantial
        number of communities in this Commonwealth, in the United
        States and by the State of Delaware indicate that:
                (i)  large numbers of persons, primarily male,
            frequent adult-oriented establishments, especially those
            which provide closed booths, cubicles, studios and rooms
            for the private viewing of so-called adult motion
            pictures, videotapes or live entertainment or a
            combination of motion pictures, videotapes and live
            entertainment;
                (ii)  the closed booths, cubicles, studios and rooms
            and holes in partitions between booths, cubicles, studios
            and rooms have been used by patrons, clients or customers
            of adult-oriented establishments for the purpose of
            engaging in sexual acts;
                (iii)  male and female prostitutes have been known to
            frequent the establishments in order to provide sex for
            hire to the patrons, clients or customers within the
            booths, cubicles and rooms;
                (iv)  doors, curtains, blinds and/or other closures
            installed in or on the entrances or exits, or both, of
            the booths, cubicles, studios and rooms which are closed
            while the booths, cubicles, studios and rooms are in use
            encourage patrons using the booths, cubicles, studios and
            rooms to engage in sexual acts in the closures and
            through holes in partitions between the closures with
            prostitutes, patrons, clients or customers, thereby
            promoting and encouraging prostitution and the commission
            of sexual acts which result in the direct exchange of
            bodily fluids which put the participants at high risk for
            contracting communicable diseases, including AIDS, and
            which cause blood, semen and urine to be deposited on the
            floors or walls, or both, of the booths, cubicles,
            studios and rooms, which deposits could prove detrimental
            to the health and safety of other persons who may come in
            contact with such deposits; and
                (v)  the reasonable regulation and supervision of
            such adult-oriented establishments tend to discourage
            sexual acts and prostitution and thereby promote the
            health, safety and welfare of the patrons, clients and
            customers of these establishments.
            (3)  The continued unregulated operation of such adult-
        oriented establishments, including, without limitation, those
        specifically cited in paragraph (1), is and would be
        detrimental to the general health, safety and welfare of the
        citizens of this Commonwealth.
            (4)  The Constitution of Pennsylvania grants to the
        General Assembly power, especially police power, to enact
        reasonable legislation to regulate and supervise adult-
        oriented establishments in order to protect the public
        health, safety and welfare.
        (b)  Intent.--It is not the intent of the General Assembly in
     enacting this legislation to deny to any person rights of speech
     protected by the Constitution of the United States or the
     Constitution of Pennsylvania, or both, nor is it the intent of
     the General Assembly to impose by this chapter any additional
     limitations or restrictions on the contents of any communicative
     materials, including sexually oriented films, videotapes, books
     and other materials. Further, by enacting this legislation, the
     General Assembly does not intend to deny or restrict the rights
     of any adult to obtain or view, or both, any sexually oriented
     materials protected by the Constitution of the United States or
     the Constitution of Pennsylvania, or both, nor does it intend to
     restrict or deny any constitutionally protected rights that
     distributors or exhibitors of sexually oriented materials may
     have to sell, distribute or exhibit these materials.
      § 5502.  Definitions.
        The following words and phrases when used in this chapter
     shall have the meanings given to them in this section unless the
     context clearly indicates otherwise:
        "Adult bookstore."  An establishment having a substantial or
     significant portion of its stock and trade in, or an
     establishment which as one of its principal business purposes
     offers for sale, books, films, video cassettes or magazines and
     other periodicals which are distinguished or characterized by
     their emphasis on matter depicting, describing or relating to
     specified sexual activities or specified anatomical areas and,
     in conjunction therewith, has facilities for the presentation of
     adult entertainment for observation by patrons.
        "Adult entertainment."
            (1)  An exhibition of any adult-oriented motion pictures,
        meaning those distinguished or characterized by an emphasis
        on matter depicting, describing or relating to specified
        sexual activities or specified anatomical areas.
            (2)  A live performance, display or dance of any type
        which has as a significant or substantial portion of the
        performance any actual or simulated performance of specified
        sexual activities or exhibition and viewing of specified
        anatomical areas, removal of articles of clothing or
        appearing unclothed, pantomiming, modeling or any other
        personal services offered customers.
        "Adult mini-motion picture theater."  An enclosed building
     with a capacity of less than 50 persons which has a principal
     business purpose of exhibiting, presenting or selling material
     distinguished or characterized by an emphasis on matter
     depicting, describing or relating to specified sexual activities
     or specified anatomical areas for observation by patrons.
        "Adult motion picture theater."  An enclosed building with a
     capacity of 50 or more persons which has a principal business
     purpose of exhibiting, presenting or selling material
     distinguished or characterized by an emphasis on matter
     depicting, describing or relating to specified sexual activities
     or specified anatomical areas for observation by patrons.
        "Adult-oriented establishment."  The term includes, without
     limitation, the following establishments when operated for
     profit, whether direct or indirect:
            (1)  Adult bookstores.
            (2)  Adult motion picture theaters.
            (3)  Adult mini-motion picture theaters.
            (4)  Any premises to which the public, patrons or members
        are invited or admitted and which are so physically arranged
        as to provide booths, cubicles, rooms, studios, compartments
        or stalls separate from the common areas of the premises for
        the purpose of viewing adult-oriented motion pictures or
        where an entertainer provides adult entertainment to a member
        of the public, a patron or a member.
            (5)  An adult entertainment studio or any premises that
        are physically arranged and used as such, whether advertised
        or represented as an adult entertainment studio, rap studio,
        exotic dance studio, encounter studio, sensitivity studio,
        modeling studio or any other term of like import.
     The term "booths, cubicles, rooms, studios, compartments or
     stalls" for purposes of defining "adult-oriented establishments"
     does not mean enclosures which are private offices used by the
     owner, manager or persons employed on the premises for attending
     to the tasks of their employment, and which are not held out to
     the public for the purpose of viewing motion pictures or other
     entertainment for a fee, and which are not open to any persons
     other than employees.
        "Employee."  Any and all persons, including independent
     contractors, who work in or at or render any service directly
     related to the operation of an adult-oriented establishment.
        "Entertainer."  A person who provides entertainment within an
     adult-oriented establishment, whether or not a fee is charged or
     accepted for entertainment and whether or not entertainment is
     provided as an employee or an independent contractor.
        "Inspector."  An employee of a municipality's public health
     department authorized and designated by the director of the
     department, an employee of a municipality's department of
     inspections and permits authorized and designated by the
     director of the department, an employee of a municipality's
     police department authorized by the commanding officer of the
     police department or other persons designated by the governing
     body of a municipality to inspect premises regulated under this
     act to cooperate in taking the required actions authorized by
     this act where violations are found on a premises and to request
     correction of unsatisfactory conditions found on a premise.
        "Minor."  A person under 18 years of age.
        "Operator."  A person, partnership or corporation operating,
     conducting or maintaining an adult-oriented establishment.
        "Sexual activities."  The term does not include any of the
     following:
            (1)  Medical publications or films or bona fide
        educational publications or films.
            (2)  Any art or photography publications which devote at
        least 25% of the lineage of each issue to articles and
        advertisements dealing with subjects of art or photography.
            (3)  Any news periodical which reports or describes
        current events and which from time to time publishes
        photographs of nude or seminude persons in connection with
        the dissemination of the news.
            (4)  Any publications or films which describe and report
        different cultures and which from time to time publish or
        show photographs or depictions of nude or seminude persons
        when describing cultures in which nudity or seminudity is
        indigenous to the populations.
        "Specified anatomical areas."
            (1)  Less than completely and opaquely covered:
                (i)  human genitals or pubic region;
                (ii)  buttocks; or
                (iii)  female breasts below a point immediately above
            the top of the areola.
            (2)  Human male genitals in a discernible turgid state,
        even if completely opaquely covered.
        "Specified sexual activities."  The term includes any of the
     following:
            (1)  Human genitals in a state of sexual stimulation or
        arousal.
            (2)  Acts of human masturbation, sexual intercourse or
        sodomy.
            (3)  Fondling or erotic touching of human genitals, pubic
        region, buttocks or female breasts.
      § 5503.  Requirements for adult oriented establishments.
        (a)  Loitering by minors prohibited.--No operator or employee
     of an adult-oriented establishment shall permit any minor to
     loiter in any part of the establishment, including parking lots
     immediately adjacent to the establishment used by patrons of an
     adult-oriented establishment.
        (b)  Interior plan.--Every adult-oriented establishment doing
     business in this Commonwealth shall be well lighted at all times
     and be physically arranged in such a manner that the entire
     interior portion of the booths, cubicles, rooms or stalls where
     adult entertainment is provided shall be clearly visible from
     the common areas of the premises. Visibility into such booths,
     cubicles, rooms or stalls shall not be blocked or obscured by
     doors, curtains, partitions, drapes or any other obstruction
     whatsoever. It shall be unlawful to install enclosed booths,
     cubicles, rooms or stalls within adult-oriented establishments
     for whatever purpose, but especially for the purpose of
     providing for the secluded viewing of adult-oriented motion
     pictures or other types of adult-oriented entertainment.
        (c)  Certain apertures prohibited.--No adult-oriented
     establishment shall contain partitions between subdivisions of a
     room or portions or parts of a building, structure or premise
     with an aperture which is designed or constructed to facilitate
     sexual activity between persons on either side of the
     partitions.
        (d)  Illumination and visibility.--The operator of each
     adult-oriented establishment shall be responsible for and shall
     provide that any room or other area used for the purpose of
     viewing adult-oriented motion pictures or other types of live
     adult entertainment shall be well lighted and readily accessible
     at all times and shall be continuously open to view in its
     entirety. The premises shall be equipped with overhead lighting
     fixtures of sufficient intensity to illuminate every place to
     which patrons are permitted access at an illumination of not
     less than one footcandle as measured at the floor level. It
     shall be the duty of the operator and the operator's agents to
     ensure that the illumination required by this subsection is
     maintained at all times that a patron is present in the
     premises.
      § 5504.  Liability of operator.
        Every act or omission by an employee constituting a violation
     of this chapter shall be deemed the act or omission of the
     operator if the act or omission occurs either with the
     authorization, knowledge or approval of the operator or as a
     result of the operator's negligent failure to supervise the
     employee's conduct, and the operator shall be punishable for the
     act or omission in the same manner as if the operator committed
     the act or caused the omission.
      § 5505.  Establishments open for inspection.
        All adult-oriented establishments shall be open to inspection
     at all reasonable times by inspectors.
      § 5506.  Civil action to enjoin or abate violations.
        (a)  Action authorized.--An action to enjoin or abate a
     violation of this chapter may be brought in the name of the
     Commonwealth of Pennsylvania by the Attorney General, the
     district attorney of the county concerned or the solicitor of
     the municipality in which the adult-oriented establishment is
     located. The action shall be brought and tried as an action in
     equity in the court of common pleas of the county in which the
     adult-oriented establishment is located.
        (b)  Procedure.--
            (1)  If it is made to appear, by affidavits or otherwise,
        to the satisfaction of the court that a violation exists, a
        temporary writ of injunction shall forthwith issue, directed
        to the operator of the adult entertainment establishment or
        the owner of the premises, or both, restraining the operator
        or owner from continuing or permitting the continuation of
        any violation or violations of this chapter until the
        conclusion of the hearing and a decision by the court. No
        bond shall be required in instituting such proceedings. This
        chapter, insofar as it provides for methods of service and
        bond, shall not be deemed to be suspended or affected by the
        Pennsylvania Rules of Civil Procedure governing the action in
        equity.
            (2)  It shall not be necessary for the court to find the
        property involved was being unlawfully used at the time of
        the hearing, but, on finding that the material allegations of
        the petition are true, the court shall order that neither the
        premises nor any part of the premises be used in violation of
        this chapter. Upon judgment of the court ordering the
        violations to be abated, the court may order that neither the
        premises nor any part of the premises shall be occupied or
        used for any purpose for up to one year following the date of
        the court's order, but the court may, in its discretion,
        permit the premises to be occupied or used by the operator or
        owner if the operator or owner, or both, posts a bond or a
        joint bond in the discretion of the court with sufficient
        surety to be approved by the court in the penal and
        liquidated sum of not less than $1,000 nor more than $2,500,
        payable to the Commonwealth of Pennsylvania and conditioned
        that neither the building nor a part of the building be used
        in violation of this chapter and that the operator will pay
        all fines, costs and damages that may be assessed for any
        violation of this chapter upon the premises.
            (3)  Service of any preliminary or permanent injunction
        shall be made personally upon the operator and owner of the
        premises if such persons can be found in the county. If the
        operator or owner cannot be found, a copy of the order shall
        be delivered to any employee of the operator on the
        establishment premises or, in the case of the owner, upon an
        agent, if any. If no employee or agent can be found or
        service cannot be made on an employee or agent of the owner,
        then service shall be made as the court may direct. Any
        person other than the operator or owner who shall be served
        with any notice of an injunction shall within 24 hours
        thereafter deliver the notice to the operator or owner, as
        the case may be, or mail it to the operator or owner by
        registered mail if the address of the operator or owner, as
        the case may be, is known to the person served.
      § 5507.  Violation of abatement order or injunction.
        An operator or owner of an adult entertainment establishment
     or any agent of the operator or owner who after any injunction
     has been granted uses the premises or any part of the premises,
     or knowingly permits the premises or any part of the premises to
     be used in violation of an order of abatement or injunction,
     shall be subject to summary punishment as for contempt of court,
     in the manner now provided by law.
      § 5508.  Penalty.
        A person violating any provision of this chapter commits a
     summary offense and shall, upon conviction, be sentenced to pay
     a fine of not more than $300 or to imprisonment for not more
     than 90 days, or both.
      § 5509.  Existing remedies preserved.
        This chapter shall not be deemed to affect any remedy
     available against an adult entertainment establishment or adult
     book store.
        Section 2.  This act shall take effect in 60 days.

     APPROVED--The 16th day of October, A. D. 1996.

     THOMAS J. RIDGE