Sec. 36-92. - Certain motion picture advertising restricted.

(a)

The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

(1)

Sadomasochistic abuse means flagellation or torture practiced by or upon a person clad in undergarments, a mask or bizarre costume or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.

(2)

Sexual conduct means acts of masturbation, homosexuality, sexual intercourse or physical contact with a person's unclothed genitals or pubic area or a female person's breasts.

(b)

The theater owner or operator shall confine to an area of the theater which is only accessible to that class of people who have purchased admission to the theater any promotional advertising material used in the advertisement of a motion picture which is sexually explicit, or sadomasochistic. Sexually explicit material includes photographs, paintings, drawings, artwork and graphics which display sadomasochistic abuse and sexual conduct.

(c)

A violation shall be deemed to have occurred for each individual article displayed. An article is one photograph, poster or sheet or board. A fine of $50.00 shall be levied for each article found in violation on each calendar day displayed.

(Code 1968, § 39-49.1)

State law reference— Obscenity, 11 Del. C. § 1361 et seq.

Sec. 36-93. - Solicitation for prostitution.

(a)

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

(1)

Known prostitute or panderer means a person who within one year previous to the date of an arrest or issuance of a citation for violation of this section, has been, to the knowledge of the arresting officer, convicted of a violation of an ordinance of the city or statute of the state defining and punishing acts of prostitution, patronizing a prostitute or promoting prostitution.

(2)

Loitering means remaining idle in essentially one place and shall include the concepts of spending time idly, loafing or walking about aimlessly.

(3)

Public place means an area generally visible to public view and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles, while moving or not, and buildings open to the general public including those which serve food or drink or provide entertainment, and the doorway and entrances to buildings or dwellings and the grounds enclosing them or any other area either publicly owned or to which the public has access.

(4)

Sexual activity or sexual conduct means acts of prostitution, patronizing a prostitute, or promoting prostitution as such acts are proscribed and defined in this Code and in the state criminal code.

(b)

Prohibited behavior. It shall be unlawful for any person to loiter or remain in a public place in a manner and under circumstances manifesting the purpose of engaging, inducing, enticing or soliciting another person to engage in sexual activity. The circumstances which may be considered in determining whether such purposes are manifested are that such person repeatedly beckons to, stops or attempts to stop passersby, or engages passersby in conversation, or repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or any other bodily gestures. Other circumstances which may also be considered are whether such person is a known prostitute and/or whether the arresting officer knows such person's actions occur in an area of the city which has a high incidence of prostitution and related activities.

(1)

No arrest shall be made, or no citation shall be issued, for a violation of this section unless the arresting officer, by direct demand, first affords such person an opportunity to explain such conduct.

(2)

No person shall be convicted of a violation of this section if the arresting officer does not comply with subsection (a)(1) of this section or if it appears at trial that the explanation offered was true and disclosed a lawful purpose.

(c)

Penalties. Any person who violates this section shall be fined $250.00 for his first offense. This fine shall not be subject to suspension or reduction for any reason. In cases where the person convicted has one or more convictions for the same violation, the sentence shall be a fine of $500.00. This fine shall not be subject to suspension or reduction for any reason.

(Code 1968, § 39-45.1)

State law reference— Prostitution, 11 Del. C. § 1342 et seq.

Sec. 36-94. - Drug-related activity.

(a)

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

(1)

Conviction includes a plea of guilty, nolo contendre, adjudication pursuant to order of the family court, and any participation in a diversionary program established pursuant to the provisions of 16 Del. C. ch. 47 (§ 4701 et seq.).

(2)

Known drug user, possessor or seller means a person who has, within the knowledge of the investigating officer, or the arresting officer, or both, previously been convicted in any court within the state of any violation of the Uniform Controlled Substances Act (16 Del. C. § 4701 et seq.); or a person who has been convicted of any violation of substantially similar laws of any political subdivision of this state or such laws of any other state or of the United States; or a person who displays physical characteristics of drug intoxication or usage, including, by way of example only, but not limited to, needle tracks; or a person who uses or possesses drug paraphernalia as defined and provided in 16 Del. C. ch. 47, subch. I (§ 4701 et seq.) and subch. V (§ 4771 et seq.).

(3)

Loiter means to remain idle in essentially one place, including, but not limited to, loafing, spending time idly, or walking around aimlessly, except to engage in drug-related activity.

(4)

Public place means an area generally visible to public view and including any streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles, while moving or not, and buildings open to the general public including those which serve food or drink or provide entertainment, and the doorways and entrances to buildings or dwellings and the grounds enclosing them, or any other area either publicly or privately owned, to which the public has access.

(b)

Prohibited activity. It shall be unlawful for any person to loiter in, on or upon any public place, street, road, lane, sidewalk or alley whether public or private, or in, on or upon any private property without the express permission of the owner or individual in control of such private property and its premises, in a manner and under circumstances manifesting the purpose of engaging in drug-related activity in violation of the Uniform Controlled Substances Act (16 Del. C. § 4701 et seq.).

(1)

Among the circumstances which may be considered in determining whether such purpose is manifested are the following:

a.

Such person behaves in such a manner as to raise a reasonable suspicion that he is about to engage in, or is then engaged in an unlawful drug-related activity, including by way of example only, such person acting as a lookout.

b.

Such person passes to or receives from passersby, whether on foot or in a motor vehicle, small objects, packages, written material, or legal tender or currency in a furtive fashion.

c.

Such person takes flight upon the appearance of a police officer.

d.

Such person manifestly endeavors to conceal himself or any object which reasonably could be involved in an unlawful drug activity.

(2)

In conjunction with the circumstances set forth in subsection (1) of this subsection, the following additional circumstances may also be considered in determining whether such purpose is manifested:

a.

Such person is a known unlawful drug user, possessor, or seller.

b.

Such person is currently subject to a court order prohibiting his presence in the geographic area because it has been identified as an area in which there is a high degree or amount of unlawful drug activity.

c.

Such person is physically identified by, or is known by, or is both identified and known by the investigating officer as a member of an illegal drug organization, gang, or association which has as its purpose illegal drug activity.

d.

Any vehicle involved is registered to, or is operated or occupied by a known unlawful drug user, possessor, or seller, or by a person for whom there is an outstanding warrant for a crime involving drug-related activity.

(c)

Opportunity for explanation. No arrest shall be made for a violation of subsection (a) of this section unless the arresting officer first affords the person an opportunity to explain his conduct. No person shall be convicted of a violation of subsection (a) of this section if it is determined at trial that the explanation so given was true and disclosed a lawful purpose.

(d)

Enforcement. The police department may promulgate regulations deemed necessary to the enforcement of the provisions of this section, subject to the approval of the administrative board.

(e)

Penalties. Any person convicted of any violation of the provisions of this section shall be subject to a penalty of a minimum fine of not less than $150.00 up to a maximum fine of not more than $2,500.00, or imprisonment for not more than 90 days, or both such fine and imprisonment.

(Ord. No. 91-047(sub 1), § 1(39-45.3), 8-1-91)

Sec. 36-95. - Possession or consumption of alcoholic beverages by minors.

(a)

Whoever, being then under the age of 21 years, shall have upon or about his person or shall have in his possession any alcoholic, malt or spirituous beverage, upon the sidewalks, streets and other public places within the city, shall be guilty of a misdemeanor and shall be fined, for the first offense, not less than $25.00 nor more than $100.00, and for each subsequent like offense shall be fined not less than $50.00 nor more than $200.00.

(b)

Whoever, being then under the age of 21 years, shall consume any alcoholic, malt or spirituous beverage upon the sidewalks, streets or any other public place within the city shall be guilty of a misdemeanor and shall be fined, for the first offense, not less than $25.00 nor more than $100.00, and for each subsequent like offense shall be fined not less than $50.00 nor more than $200.00.

(Code 1968, § 39-48)

State law reference— Possession or consumption of alcoholic liquors by minors, 4 Del. C. § 904(f).

Sec. 36-96. - "B" girls.

(a)

It shall be unlawful for any woman to frequent or loiter in any tavern, cabaret or night club for the purpose of soliciting men to purchase drinks.

(b)

It shall likewise be unlawful for the proprietor or operator of any such establishment to allow the presence in such establishment of any woman who violates the provisions of subsection (a) of this section.

(Code 1968, § 39-6)

Sec. 36-97. - Curfew for minors.

(a)

Definitions. For the purposes of this section the following words and phrases shall be defined as follows:

(1)

Establishment means any privately owned place of business carried on for a profit or any place of amusement or entertainment to which the public is invited.

(2)

Minor means any person under the age of 18 years.

(3)

Official city time means Eastern Standard Time except from the first Sunday in April to the last Sunday in October when it means Eastern Daylight Saving Time.

(4)

Operator means any individual, firm, association, partnership or corporation, or other entity operating, managing or conducting any establishment. When used in any clause prescribing a penalty, the term "operator" as applied to an association or partnership includes the members or partners thereof and as applied to a corporation, includes the officers thereof.

(5)

Parent means any natural or adoptive parent of a minor, a guardian of a minor, or any adult person who is responsible for the care and custody of a minor.

(6)

Public place means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of school, hospitals, apartment houses, office buildings, transport facilities and shops, but does not include a lot containing and used with a residential dwelling if the minor is there with the consent of his or her parent and the owner or tenant who occupies the residential premise.

(7)

Remain means to loiter, idle, wander, stroll or play in or upon.

(b)

Curfew hours; exceptions.

(1)

Nighttime curfew. No minor shall remain in or upon any public place or any establishment between the hours of 10:00 p.m. and 6:00 a.m. of the following day, official city time, except that on Fridays and Saturdays, the hours shall be from 12:00 midnight to 6:00 a.m. No person under the age of 13 years shall remain in or upon any public place or any establishment between the hours of 9:00 p.m. and 6:00 a.m. of the following day, official city time, except that on Fridays and Saturdays, the hours shall be from 10:00 p.m. to 6:00 a.m.

(2)

Daytime curfew. No child between five years of age and 16 years of age shall remain in or upon any public place or any establishment on a Monday, Tuesday, Wednesday, Thursday, or Friday between the hours of 9:00 a.m. and 2:00 p.m. pursuant to 14 Del. C. § 2702.

(3)

The provisions of this section shall not apply to any minor who is accompanied by a parent, or to a minor who is upon an errand or other legitimate business directed by such minor's parent or to any minor who is engaged in gainful, lawful employment during the curfew hours.

(4)

This section shall not apply when a minor is returning home by way of a direct route from any activity that is sponsored by an educational, religious or nonprofit organization when such returning is within 60 minutes following the termination of the activity.

(c)

Duty of parents.

(1)

A natural or adoptive parent, a legal guardian, person in loco parentis, or other person with legal custody or control of a minor commits an offense if he knowingly permits, or by criminally negligent control allows, the minor to appear in a public place in violation of Sec. 36-97 of this Code.

(2)

Notice to parent. Whenever a minor commits a curfew violation, notice shall be given to the parent of such minor by telephone or in person.

(3)

The provisions of this section shall not apply to any parent who accompanies a minor, or to a parent who directs a minor upon an errand or other legitimate business, or to any parent of a minor who is engaged in gainful, lawful employment during the curfew hours.

(d)

Duty of establishment owners; Shopkeeper's Law; defenses.

(1)

The owner, operator, or any employee of an establishment commits an offense if he knowingly allows a minor to enter or remain upon the premises of the establishment in violation of section 36-97 of this Code. It is the duty of the establishment owner to use all reasonable means to ascertain whether any person who enters or remains on the premises is in fact 18 years of age or older.

(2)

The presence of one or more minor(s) on the premises of an establishment in violation of subsection (d)(1) of this section shall, upon conviction thereof, be deemed to be an offense for purposes of an "event," as defined, that may cause an establishment to be deemed to be a "disorderly establishment" pursuant to the provisions of section 5-58 of this Code.

(3)

It shall be an affirmative defense that the minor, who has violated this section, presented to the establishment owner identification, with a photograph of such individual affixed thereon, which identification sets forth information which would lead a reasonable person to believe such individual was not a minor. Further, it shall be an affirmative defense to prosecution under subsection (d)(1) that the owner, operator, or employee of an establishment promptly notified the police department that a minor was present on the premises of the establishment during curfew hours and the minor refused to leave.

(e)

Violations, referrals, opportunity to explain conduct and penalties.

(1)

Procedures.

a.

Nighttime curfew. Any police officer who finds a minor violating subsection (b)(1) of this section shall obtain such information from such minor as to his name and address, age and the name of his parent or parents. The minor shall thereupon be instructed to proceed to his home forthwith. A police officer shall release the person detained or may thereafter in accordance with the provisions of this section, charge the minor with a curfew violation, and may charge the minor's parent(s), or the operator(s), or both the parent(s) and the operator(s), as the case may be, with violation(s) of the provisions of this section.

i.

Any such minor shall first be issued a written warning that he or she is in violation of the curfew and if not proceeding home forthwith may be arrested for a curfew violation. The minor shall sign the warning acknowledging receipt of the warning. The police officer shall report the name, age, and address of the minor to the police department's computer-assisted dispatch data base and shall forthwith file a copy of the warning with the police department records.

ii.

If such minor is again observed, within 90 days of the date of issuance of a warning, in apparent violation of the curfew, the arresting officer may take the minor to his or her home to be given over to the custody of his or her parent and the police officer shall issue to the minor a summons to appear in court for a curfew violation.

iii.

If, at the minor's home, the parent is not present or is not able to take custody of the minor, the police officer may consider the child to be dependent, neglected or delinquent and shall follow procedures set forth in 10 Del. C. § 1004 regarding the duties of an officer having a child in custody. The police officer may thereafter issue to the minor a summons to appear in court for a curfew violation.

b.

Daytime curfew. A peace officer who reasonably believes that a minor is violating (b)(2) of this section may inquire of the apparent offender his or her age and reason for being in the public place. Any person so questioned who fails to give identification or explain one of the defenses in (2)(b) of this section may be taken into custody by the peace officer and may be taken to the truancy/curfew center where the person will be further questioned and investigated, returned to school and/or custody of parent or guardian. The total period for investigation shall not exceed two hours pursuant to 11 Del.C. § 1902. A police officer shall release the minor to the minor's parent or may thereafter in accordance with the provisions of this section, charge the minor with a curfew violation, and may charge the minor's parent(s) or the operator(s), or both the parent(s) and the operator(s), as the case may be, with violation(s) of the provisions of this section.

c.

In addition to the procedures set forth in subsection (e)(1)a. and (e)(1)b. of this subsection, if the parent refused to accept custody of the minor rising to the level of abandonment as defined in 11 Del.C. § 1101, the division of family services may be notified for recommendation.

(2)

Penalties.

a.

Minor child. Any minor child who violates any provision of this section shall be fined in an amount not to exceed $500.00, or be sentenced to a period of probation up to an indefinite commitment, or both such fine and sentencing.

b.

Parents. Any parent who violates any provisions of this section after having received notice of a prior violation shall be fined in an amount not to exceed $600.00 and costs for each violation, and in default of payment thereof, shall be imprisoned for not more than 90 days.

c.

Operator of establishment. Any operator of an establishment or any agent or employee thereof who violates any provisions of this section shall be fined in an amount not to exceed $600.00 and costs for each violation and, in default of payment thereof, shall be imprisoned for not more than 90 days.

(3)

Separate offense. Any violation of any provisions of this section shall constitute a separate offense.

(4)

Explanation; defenses. No arrest of any minor, or parent, or operator shall be made for a violation of this section unless the arresting officer first affords the person an opportunity to explain his or her conduct and no person shall be convicted of a violation of this section if it is determined at trial that the explanation so given was true and disclosed a lawful purpose. More specifically, it is a defense to prosecution under subsection (e)(1) that the minor was:

a.

Accompanied by the minor's parent or guardian;

b.

On an errand at the direction of the minor's parent or guardian, without any detour or stop;

c.

In a motor vehicle involved in interstate travel;

d.

Engaged in an employment activity, or going to or returning home from an employment activity, without any detour or stop;

e.

Involved in an emergency;

f.

On the sidewalk abutting the minor's residence or abutting the residence of a next door neighbor if the neighbor did not complain to the police department about the minor's presence;

g.

Attending an official school, religious, or other recreational activity supervised by adults and sponsored by the city, a civic organization, or another similar entity that takes responsibility for the minor, or going to or returning home from, without any detour or stop, an official school, religious, or other recreational activity supervised by adults and sponsored by the city, a civic organization, or another similar entity that takes responsibility for the minor;

h.

Exercising First Amendment rights protected by the United States Constitution, such as the free exercise of religion, freedom of speech, and the right of assembly; or

i.

Married or had been married or had disabilities of minority removed in accordance with state law.

j.

With respect to the hours between 9:00 a.m. and 3:00 p.m. only, that the offense occurred during the scheduled vacation of or on a holiday observed by the school in which the minor is enrolled; or that the minor has graduated from high school equivalency certificate; or that the minor had permission to be absent from school or be in the public place from an authorized school official (suspension or expulsion shall not constitute permission). In case of a child being educated in a home school, a parent shall be deemed a school official.

(f)

Severability. The provisions of this section are specifically made severable in accordance with the general severability provisions of section 1-9 of the City Code.

(Ord. No. 93-062(sub 1), § 1, 9-16-93; Ord. No. 94-025(sub 1), § 1, 5-12-94; Ord. No. 98-150(sub 1), § 1, 2-8-99; Ord. NO. 99-095, § 1, 9-30-99; Ord. No. 01-064, § 1, 9-6-01)

Editor's note—

Ord. No. 93-062(sub 1), § 1, adopted Sept. 16, 1993, repealed former §§ 36-97 and 36-98, which pertained to similar subject matter, and added a new § 36-97 to read as herein set out.

Sec. 36-98. - Publishing photographs and information of those arrested for the purchase and sale of illegal drugs.

(a)

The city police department is authorized to publish information and photo identification of those adult persons arrested for the purchase and/or sale of illegal drugs within the city;

(b)

Upon each arrest of any adult person arrested within the city upon any violation of 16 Del. C. §§ 4751, 4752, 4753, 4753A, 4754, 4767, 4768, and/or City Code section 36-94, the city shall authorize or otherwise release for publication in any newspaper of general circulation, or display on the internet, the cable television station or any other media deemed appropriate, the photograph, name and city or county of residence of the individual so arrested;

(c)

The city police department may withhold access to the photograph and related information if the agency determines that access will adversely affect an active investigation;

(d)

The city police department shall issue weekly press releases of the photograph, name and city or county of residence of each adult individual arrested, for publication, and shall provide the public safety chair with a monthly report containing the information provided pursuant to this section; and

(e)

The city police department shall catalog the number of arrests within a 12-month period, identifying the specific number of purchasers and sellers and whether the person arrested was a first time or subsequent offender. The catalog shall be kept for 12 months from the effective date of this section.

(Ord. No. 04-059(sub 1), § 1, 11-4-04)

Sec. 36-99. - Operation of amusement devices by minors.

(a)

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

(1)

Amusement device means a coin-operated machine or device such as a pinball machine or a video game or any machine or device which operates or may be operated by insertion of a coin, token or similar object for the purpose of use as a game, contest or amusement of any description, or which may be used for any such game, contest or amusement for which a fee is charged, whether coin-operated or not; provided, however, that mechanical music devices, state lottery ticket dispensing machines, and vending machines which do not incorporate gaming or amusement features are excluded from this definition.

(2)

Minor means a minor is a person who is between six years of age and 16 years of age.

(b)

Unlawful acts. It shall be unlawful for any person acting as the proprietor of any business establishment to permit any minor to operate an amusement device between the hours of 7:00 a.m. and 3:00 p.m. of any day which is an official school day.

(c)

Penalties. Any person violating the provisions of this section shall upon conviction thereof in the municipal court be fined not less than $25.00 for each conviction thereof.

(Code 1968, § 39-17)

Sec. 36-100. - Publishing photographs and information of those arrested for soliciting and or hiring an adult person to engage in acts of prostitution.

(a)

The city police department is authorized and shall publish information and photo identification of those adult persons arrested for soliciting, offering for hire or hiring persons to engage in acts of prostitution and/or those persons caught engaging in acts of prostitution within the city.

(b)

Upon each arrest of any adult person arrested within the city for any violation of 11 Del. C. §§ 1343, 1344, 1351, 1352, 1353, 1354, 1355, 1356 and/or City Code section 36-93, the city shall authorize or otherwise release for publication in any newspaper of general circulation, or display on the internet, the cable television station or any other media deemed appropriate, the photograph, name and city or county of residence of each individual so arrested.

(c)

The city police department may withhold access to the photograph and related information if the agency determines that access will adversely affect an active investigation.

(d)

The city police department shall issue weekly press releases of the photograph, name and city or county of residence of each adult individual arrested, for publication, and shall provide the city council's public safety chair with a monthly report containing the information provided pursuant to this section.

(e)

The city police department shall catalog the number of arrests within a 12-month period, identifying the specific number of "johns" and "prostitutes" and whether each person arrested was a first time or subsequent offender. The catalog shall be kept for 12-months from the effective date of the ordinance from which this section derives.

(Ord. No. 05-043, § 1, 7-14-05)

Secs. 36-101—36-130. - Reserved.