[Amended 12-15-2009 by Ord. No. 586]
The Borough Council finds that the crass commercial
exploitation of explicit sexual conduct through the public exhibition
of lewd films and the display and/or sale of lewd publications and
the use of so-called massage parlors and model studios for purposes
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; 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 Borough, 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
Borough of Heidelberg and of the residents, citizens, inhabitants
and businesses thereof. This chapter shall apply to existing establishments
which are presently engaged in the type of activity herein declared
to be a public nuisance.
A. Should any of the activities, products or uses that are classified as adult uses be determined to be legal and/or allowable under Chapter
31 and/or existing law file, then any application filed with the Borough of Heidelberg to operate a legally authorized adult use facility shall be allowed only in and is restricted to a location or district of the Borough of Heidelberg zoned as M - Manufacturing District of the Borough of Heidelberg.
B. Any adult use or business to be determined as legal under this section
or under the existing law shall not be permitted to operate within
the R-1, R-2 or C Districts of the Borough of Heidelberg.
As used in this chapter, the following terms
shall have the meanings indicated:
KNOWLEDGE OR KNOWLEDGE OF SUCH NUISANCE
Having knowledge of the contents and character of the patently
offensive sexual conduct or demonstration which appears in the film
or publication, or knowledge of the acts, lewdness, assignation or
prostitution which occurs on the premises.
LEWD MATTER
Any matter:
A.
Which the average person, applying contemporary
community standards, would find, when considered as a whole, appeals
to the prurient interest; and
B.
Which depicts or describes patently offensive
representations or descriptions of:
(1)
Ultimate sexual acts, normal or perverted, actual
or simulated; or
(2)
Masturbation, excretory functions or exhibition
of the genitals or genital area.
C.
Nothing herein contained is intended to include
or prescribe any matter which, when considered as a whole and in the
context in which it is used, possesses serious literary, artistic,
political or scientific value.
MASSAGE
Any method of treating the superficial soft parts of the
human body for remedial, hygienic or other purposes, consisting of
rubbing, stroking, kneading or any similar treatment accomplished
by hand or by the use of any instrument.
MASSAGE PARLOR
Any building or structure or portion thereof located within
the Borough, which is open to members of the general public, with
or without the payment of a fee, at which massage services are offered.
MATTER
A motion-picture film or a publication, or both.
MODEL STUDIO
A.
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 any 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
gratuity for the right or opportunity so to depict the figure model,
or for admission to the premises, or for permission to remain upon
or as a condition for remaining upon the premises; or
B.
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 sketched, painted, drawn,
sculptured, photographed or otherwise similarly depicted.
C.
The words "model studio" do not include any
of the following:
(1)
Any studio which is operated by any state college
or junior college, public school or any governmental agency wherein
the person, firm, association, partnership or corporation operating
it has met the requirements established by the Commonwealth of Pennsylvania
for the issuance or conferring of, and is in fact authorized thereunder
to issue and confer, a diploma or honorary diploma.
(2)
Any premises where there is conducted the business or furnishing, providing or procuring figure models solely for any studio described in Subsection
C(1) of this definition.
(3)
Any studio operated by a tax exempt, nonprofit
corporation devoted to the development of art and its appreciation.
MOTION-PICTURE FILM
A.
Any film or plate negative.
B.
Any film or plate positive.
C.
Any film designed to be projected on a screen
for exhibition.
D.
Any films, glass slides or transparencies, either
in negative or positive form, designed for exhibition by projection
on a screen.
E.
Any video tape or any other medium used to electronically
reproduce images on a screen.
NUDE
A.
Completely without clothing; or
B.
The human male or female genitals, pubic area
or buttocks exposed with less than a 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.
PERSON
Any individual, partnership, firm, association, corporation
or other legal entity.
PLACE
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.
PUBLICATIONS
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.
SALE
A passing of title or right of possession from a seller to
a buyer for valuable consideration, and shall include but is not limited
to any lease or rental arrangement or other transaction wherein or
whereby any valuable consideration is received for the use of or transfer
of possession of lewd matter.
Upon a specific finding that a public nuisance, as defined in §
31-3,
31-4 or
31-5 of this chapter, exists in the Borough of Heidelberg, the Borough Council, in applying the provisions of this chapter to such nuisance, shall provide for the following by resolution:
A. Declare the fact that such nuisance exists.
B. Set forth the description or legal description and
street address of the place which constitutes the nuisance.
C. Set forth the evidentiary facts considered by the
Borough Council in arriving at its factual determination.
(1) In the case of a motion-picture film or films, such
shall include a recitation of the particular sexual conduct and acts
which the Borough Council finds are patently offensive and the basis
for the finding by the Borough Council that:
(a)
Such films are publicly exhibited in the course
of business.
(b)
Such films are publicly or repeatedly exhibited
or held for such exhibition at the place declared to be a nuisance.
(2) In the case of a publication or publications, such
shall include a recitation of:
(a)
The particular publications considered by the
Borough Council and those which the Borough Council finds to be patently
offensive.
(b)
The basis for the finding by the Borough Council
that such publications are displayed, sold or held for sale at any
place found by the Borough Council to be a public nuisance.
(c)
The basis of the finding by the Borough Council
that such publications constitute a part of the stock in trade of
such place of business or other place.
(3) In the case of a massage parlor or model studio, such
shall include a recitation of:
(a)
The particular acts of lewdness, assignation
or prostitution which have occurred.
(b)
The basis for the finding by the Borough Council
that such acts occur in the course of business.
D. Order all persons described in §
31-6A hereof to summarily abate such public nuisance within 24 hours of service of such order on any such persons by terminating the exhibition, sale or possession for sale of such lewd subject matter or by ceasing to use the place where the nuisance is declared to exist or by terminating the use of said premises for the purposes of lewdness, assignation or prostitution or causing the same to be terminated and notifying the Chief of Police of the Borough of compliance therewith by sworn affidavit as ordered by the action of the Borough Council in such resolution.
E. Order the Solicitor for the Borough to proceed as directed in §
31-9 of this chapter and do all things necessary to abate such public nuisance through judicial proceedings and to conclude such proceedings as expeditiously as is permissible under the law, including requesting the court to advance such proceedings on the calendar of the court.
F. Inform and give notice to persons designated in §
31-6A that:
(1) The Borough Council has determined that a public nuisance presently exists at such place and address, and that, under §
31-6A of this chapter, they are deemed to have knowledge thereof and are responsible therefor.
(2) In the event the order of the Borough is not complied with within 24 hours, the Borough Council has ordered the Solicitor, as provided for under §
31-9 hereof, to commence necessary legal proceedings, naming such persons as defendants in a civil action to abate the same judicially under §
31-7 of this chapter, and that, under §
31-8 of this chapter, the costs of abatement of such civil abatement action filed, including investigative costs, court costs, attorney's fees and other expenses, are made a special assessment against the parcel of land upon which such nuisance is being maintained and, upon their determination in such court action, will, by separate legal procedure, be made a lien against such property and a personal obligation against any person or persons, firm, association, partnership, corporation or other entity deemed to be in violation of this chapter.
(3) All lewd motion-picture films or lewd publications
being used in conducting and maintaining such public nuisance are
contraband and the subject of forfeiture.
(4) From and after service on the place, its manager,
acting manager or person then in charge of such place of a true and
correct copy of this chapter and a true and correct copy of such resolution,
any and all moneys paid as admission price to or for the exhibition
or exhibitions of such lewd motion-picture films and valuable consideration
received for the sale of such lewd publications and all moneys or
other valuable consideration received for services rendered in such
massage parlors or model studios are a public nuisance as personal
property used in conducting and maintaining such nuisance and, as
such, are the subject of forfeiture.
G. Order that a true and correct copy of said resolution
and a true and correct copy of this chapter be delivered forthwith
in any manner normally used to effectuate personal service of process
to all persons of record having any legal or equitable interest in
the real property and to the regular or acting manager or persons
in charge of the place therein declared a public nuisance.
Upon a specific finding by resolution of the
Borough of Heidelberg of the fact that a public nuisance exists at
a particular location, the Solicitor shall not later than three days
after passage of said resolution, commence legal proceedings by the
filing of a civil action seeking the following relief:
A. A declaratory judgment that the matter named by the
Borough Council is lewd as defined herein.
B. A declaratory judgment that the matter found to be
lewd is or are public nuisances per se under this chapter and such
resolution.
C. A declaratory judgment that each place named by the
Borough Council is a public nuisance under this chapter and such resolution.
D. An accounting of all moneys paid as admission price
to or for the exhibition or exhibitions of such lewd motion-picture
films and valuable consideration received for the sale of such lewd
publications and all moneys or other valuable consideration received
for services rendered in such massage parlors or model studios from
and after the time the persons maintaining said nuisance receive notice
of the finding by the Borough Council by resolution that the public
nuisance exists and a judgment that such moneys or valuable consideration
are a public nuisance under this chapter.
E. An order that all admission-price moneys or valuable
consideration received and enumerated in the court-ordered accounting
be forfeited as contraband to the general fund of the Borough of Heidelberg
or as property belonging to the Borough of Heidelberg.
F. An injunction enjoining and restraining all persons
responsible for maintaining said nuisance from possessing or publicly
exhibiting said lewd motion-picture films or from selling or possessing
for sale said lewd publications or from committing acts of lewdness,
assignation or prostitution at any time in the future in the Borough
of Heidelberg and such other injunctive relief as the court may order.
G. An order that all positive prints of the named lewd
film and all lewd publications or copies or reproductions thereof
be forfeited as contraband under this chapter.
H. Judgment for the Borough of Heidelberg for all costs
therein expended, including investigative costs, court costs, reasonable
attorney's fees and such other expenses as are provided for herein.
I. All other relief as the court may deem proper.
[Added 11-21-2000 by Ord. No. 539]
Any person who shall violate any provision of
this chapter shall, upon conviction thereof, be sentenced to pay a
fine of not more than $600 plus costs of prosecution, and, in default
of payment of such fine and costs, by imprisonment for not more than
30 days.