[Adopted 6-14-1982 by Ord. No. 453]
The following words, as used in this article, shall have the meanings
hereby ascribed to them, unless the context clearly indicates a different
meaning:
Having knowledge of the contents and character of the patently offensive
sexual conduct or other content which appears in the motion-picture film,
publication or live theater production or knowledge of the acts of obscenity,
assignation or prostitution which occur in or at any place within the Borough
of Freedom.
Any dramatic, musical or comedic production performed in the presence
of a live audience.
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.
Any building or structure or portion thereof, located within the
Borough of Freedom, which is open to members of the general public, with or
without the payment of a fee, at which massage services are offered.
A motion-picture film, live theater production or publication, or
all three.
Any place where 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 a gratuity for the right or opportunity so to depict the
figure model or for admission to, or for permission to remain upon, or as
a condition for remaining in or upon, the place; or
Any place 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.
Exception. The words "model studio" do not include:
Any studio which is operated by any state college or junior college,
public or private school or any governmental agency wherein the person, firm,
association, partnership or corporation so operating 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; or
Any place wherein there is conducted the business of furnishing, providing or procuring figure models solely for any studio described in Subsection C(1) of this definition.
Includes any:
Film or plate negative.
Film or plate positive.
Film designed to be projected on a screen for exhibition.
Films, glass slides or transparencies, either in negative or positive
form, designed for exhibition by projection on a screen or wall.
Videotape or any other medium used to electronically reproduce images
on a screen or wall.
Includes:
Completely without clothing; or
With the human male or female genitals, pubic area or buttocks covered
or clothed 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 covered male genitals in a discernibly turgid state.
Any matter which the average adult person, applying contemporary
community standards, would find, when considered as a whole, appeals to the
prurient interest and which depicts or describes patently offensive representations
or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,
or masturbation, excretory functions or exhibition of the genitals or genital
area; and the matter, taken as a whole, lacks serious literary, artistic,
political, educational or scientific value.
Any individual, partnership, firm, association, corporation or other
legal entity.
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.
Includes any book, magazine, article, pamphlet, writing, printing,
illustration, picture, sound recording or a motion-picture film which is displayed
in an area open to the public, offered for sale or exhibited in a coin-operated
machine.
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 the transfer of possession of
obscene matter.
A.
Any and every place in the Borough of Freedom where obscene
motion-picture films or live theater productions are publicly exhibited or
possessed for the purpose of such exhibition and any and every place in the
Borough of Freedom where obscene publications are publicly disseminated or
sold or possessed for the purpose of such dissemination is a public nuisance.
B.
Any and every obscene motion-picture film or live theater
production which is publicly exhibited and any and every obscene publication
which is publicly displayed, disseminated or sold or possessed for such purpose
is a public nuisance per se.
C.
From and after service on the place or its manager or
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 the summons and complaint
to abate a nuisance, all moneys paid thereafter as admission price to such
exhibitions or productions or purchase price of such publications are also
declared to be a public nuisance in that such is personal property used in
conducting and maintaining a declared public nuisance.
A.
Every massage parlor or model studio which, as a regular
course of business, is used for the purposes of obscenity, assignation or
prostitution and every such massage parlor or model studio in or upon which
acts of obscenity, assignation or prostitution are held or occur is a public
nuisance which shall be enjoined, abated and prevented.
B.
From and after service on the place or its manager or
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 the summons and complaint
to abate a nuisance, all moneys or other valuable consideration paid for services
rendered to customers are also declared to be a public nuisance in that such
is personal property used in conducting and maintaining a declared public
nuisance.
A.
Upon and after receiving notice through service of a true and correct copy of this chapter and a true and correct copy of the summons and complaint to abate a nuisance or notice by the Borough Solicitor of the character of the obscene film, production or publication, any and every person who shall own, legally or equitably, lease, maintain, manage, conduct or operate a place in the Borough of Freedom which is declared to be a public nuisance as set forth and stated in §§ 140-2 and 140-3 of this chapter is deemed to be a person who has knowledge of such nuisance for the purpose of this chapter and may, thereafter, be responsible for its maintenance and liable therefor.
A.
The Freedom Borough Solicitor, any member of the Freedom
Borough Police Department, the Manager of the Borough of Freedom, the Freedom
Borough Secretary or any citizen of the Commonwealth of Pennsylvania residing
within or being a resident of the Borough of Freedom may maintain an action
of an equitable nature in the name of the Borough of Freedom to abate any
public nuisance existing, established or conducted in violation of the terms
and provisions of this chapter.
B.
No bond shall be required of the Borough Solicitor, any
member of the Borough of Freedom Police Department, the Freedom Borough Manager
or the Freedom Borough Secretary. If such action is instituted by a private
citizen, a bond shall be required in the amount of not less than $500 to secure
to the defendant or defendants the proximate damages which may be sustained,
including attorney's fees, if any court finds that there were no reasonable
grounds for said action.
C.
The Borough Solicitor shall have the right to present
arguments and authorities on behalf of either party in any such action of
an equitable nature.
A.
Money damages may be recovered as follows:
(1)
For compensation for loss or harm suffered in person
or property by the Borough of Freedom or private citizen flowing from such
nuisance; and
(2)
An exemplary or punitive damages for the sake of example
or to punish the offender, where it is shown that the offender has been guilty
of malice. "Malice" means an intent to do a wrongful act, that is, an intent
to maintain, permit or allow a nuisance to exist.
B.
Injunctions.
(1)
Preliminary and permanent injunctions may be issued to
prevent the further maintenance of a nuisance and to prevent the further sale
or exhibition of obscene motion-picture films, live theater productions and
publications. The procedures for obtaining such injunctions shall be governed
by the rules of civil procedure, preserving the right of trial by jury upon
the application for permanent injunction.
(2)
Upon the application for preliminary injunction, the
court shall set the matter for a hearing no earlier than two days and no later
than five days from the date of service of the summons and complaint.
(3)
Upon the trial on the merits of the permanent injunction,
if the court finds a place to be a nuisance, the court may issue an order
closing the place to all uses and purposes for the period of one year. If
the offenders or persons owning, in control of or in charge of such place
certify that the nuisance has been abated and that the films, productions
or publications found to be obscene will not be exhibited, sold or otherwise
disseminated and, at the discretion of the court, shall post a bond in an
amount not to exceed the value of the personal property possessed, contained
or used at such place for the maintenance of the nuisance, the court may release
such person or persons from the closure order. The release shall remain in
effect for one year from the date thereof or until the nuisance is found to
exist or to have been reestablished at the place before the expiration of
one year. The bond shall be deposited with the court prior to the release
of any closure order and shall be returned to the person posting said bond,
without interest, at the expiration of one year, provided that the nuisance
is not maintained or reestablished within that year.
A.
If the existence of the nuisance is established at the
trial, a judgment shall be entered which shall permanently enjoin the defendant
or defendants and any other person or persons with notice or knowledge of
the action and judgment from maintaining the nuisance at said place and the
defendant or defendants from maintaining such nuisance elsewhere, and the
entire expenses of such abatement action shall be recovered by the plaintiff
as part of his costs.
B.
Cost of abatement.
(1)
The cost of abatement shall include the following:
(2)
The cost of abatement may be made a special assessment
against the place or the parcel of land upon which such place is located.
Upon its determination in a civil action, such cost of abatement shall, by
separate legal proceeding, be made a lien against such property and a personal
obligation against any person and shall be collected at the same time and
in the same manner as ordinary municipal taxes are collected and shall be
subject to the same penalties and the same procedure and sale, in the case
of delinquency, as provided for ordinary municipal taxes. All laws applicable
to the levy, collection and enforcement of municipal taxes shall be applicable
to such special assessment.
C.
Upon judgment for the plaintiff in legal proceedings brought pursuant to this chapter, an accounting shall be made by the defendant or defendants of all moneys or valuable consideration received by them which have been declared to be a public nuisance under §§ 140-2 or 140-3 of this article. Such moneys or their equivalent and any valuable consideration received shall be forfeited to the general fund of the Borough of Freedom or to the Borough of Freedom as property of the borough if any valuable consideration received be not money.
[Added 4-13-1994 by Ord. No. 492]
Any person who shall violate any part of this article shall, upon conviction
thereof, be sentenced to pay a fine of not more than $600, plus costs of prosecution,
or to imprisonment for no more than 30 days, or both. Each day's continuance
of violation shall constitute a separate offense.
