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Boron v. Pulaski Township Board of Supervisors

November 19, 2008

ERIC BORON AND ADULTLAND XXX, APPELLANTS
v.
THE PULASKI TOWNSHIP BOARD OF SUPERVISORS AND CHIEF OF POLICE OF NORTHWEST LAWRENCE COUNTY REGIONAL POLICE DEPARTMENT



The opinion of the court was delivered by: Judge Leavitt

Argued: October 15, 2008

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

Eric Boron, the owner of Adultland XXX, a sexually oriented business, appeals an order of the Court of Common Pleas of Lawrence County (trial court) suspending Adultland's business license for one year. The trial court affirmed the decision of the Pulaski Township Board of Supervisors (Township Supervisors) that Adultland violated a township ordinance that forbids sexually oriented businesses from conducting business on a state recognized holiday. In this case, we consider whether this ordinance is unconstitutionally vague because it does not identify what constitutes a "state recognized holiday."

The relevant and undisputed facts are as follows. Adultland, which is located in Pulaski Township, sells both sexually themed materials as well as materials without any sexual content. The Township has adopted legislation to regulate businesses such as Adultland, which, inter alia, prescribes the days and hours a sexually oriented business may operate. It states as follows:

Section 18. Hours of Operation:

No sexually oriented business shall be open for business before eight o'clock (8:00) a.m., Monday-Saturday or after ten o'clock (10:00) p.m., Monday-Saturday. A sexually oriented business shall be closed at all times on Sundays and legal federal or state recognized holidays.

PULASKI TOWNSHIP, PA. ORDINANCE, Ordinance No. 2000-5-22 (2000), Section 18 (ORDINANCE).

On June 14, 2006, also known as Flag Day, Adultland was open for business. Two days later, Police Chief James B. Morris, Jr., suspended Adultland's business license for being open on Flag Day, a "state recognized holiday," in violation of Section 18. Because it was Adultland's second violation of Section 18, its license was revoked for twelve months.*fn1 Adultland appealed the revocation.*fn2

The Township Supervisors conducted a hearing on May 29, 2007. At the hearing, the parties stipulated to the pertinent facts and submitted written summaries of the evidence in lieu of testimony. The evidence established, inter alia, that Boron had requested his attorney to provide him with a list of "legal federal or state recognized holidays," which was posted at Adultland so that patrons and employees knew when it had to be closed. Flag Day was not on the list, and Boron did not know it was a "state recognized holiday."

The Township asserted that Adultland violated Section 18 because Flag Day is a "state recognized holiday." In support, it pointed to the Act of May 31, 1893, P.L. 188 (The 1893 Act), as amended, 44 P. S. §11, which provides, in relevant part, as follows:

The following days and half days, namely: the first day of January, commonly called New Year's Day, the third Monday of January, known as Dr. Martin Luther King, Jr. Day, the third Monday of February, known as Presidents' Day, Good Friday, the last Monday in May, known as Memorial Day, the fourteenth day of June, known as Flag Day, the fourth of July, called Independence Day, the first Monday of September, known as Labor Day, the second Monday in October, known as Columbus Day, the first Tuesday after the first Monday of November, Election Day, the eleventh day of November, known as Veterans' Day, the fourth Thursday in November, known as Thanksgiving Day, the twenty-fifth day of December, known as Christmas Day; and every Saturday, after twelve o'clock noon until twelve o'clock midnight, each of which Saturdays is hereby designated a half holiday; and any day appointed or recommended by the Governor of this State or the President of the United States as a day of thanksgiving or fasting and prayer, or other religious observance; . shall be considered as public holidays and half holidays for all purposes whatsoever as regards the transaction of business.

44 P.S. §11 (emphasis added).*fn3 In response, Adultland asserted that Section 18 of the Ordinance was unconstitutionally vague. It pointed out that The 1893 Act does not regulate sexually oriented businesses but, rather, establishes bank holidays.*fn4 Further, Section 18 does not mention The 1893 Act.

At the conclusion of the hearing, the Township Supervisors affirmed the Police Chief's one-year revocation of Adultland's business license. Adultland appealed to the trial court.

With its appeal, Adultland filed a motion with the trial court to present additional evidence, namely the settlement agreement between Adultland and the Township arising out of Adultland's 2005 Columbus Day violation. The trial court denied the motion. On the merits of the appeal, the trial court found in favor of the Township, reasoning that Section 18 of the Ordinance was not vague in violation of due process ...


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