[HISTORY: Adopted by the Borough Council of the Borough of Irwin as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 260.
[Adopted 3-28-1977 by Ord. No. 665 (Ch. 6, Part 1, of the 1993 Code)]
The Borough finds that a sensitive, key relationship of human existence, central to family life, community welfare and the development of human personality, is debased and distorted by crass commercial exploitation of sex and that the regulation of crass commercial exploitation of sex is necessary for the safety, morals and general welfare of the Borough.
It shall be unlawful and a violation of this article for any person to knowingly sell or exhibit for monetary or other valuable consideration any obscene matter or any obscene motion-picture film in any place within the Borough.
As used in this article, the following terms shall have the meanings indicated:
EXHIBIT
To offer or expose to view, present for inspection, display, to place on show, to cause or allow to be seen, to present as a public entertainment for valuable consideration.
KNOWINGLY
Having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection of the character and content of any material described herein which is reasonably susceptible of examination.
MATTER
A motion-picture film as herein defined, book, magazine, pamphlet, newspaper, story paper, paper, comic book, writing, drawing, photograph, figure or image or any written or printed matter of an obscene nature.
MOTION-PICTURE FILM
Includes any:
A. 
Film or plate negative.
B. 
Film or plate positive.
C. 
Film designed to be projected on a screen for exhibition.
D. 
Films, glass slides, or transparencies either in negative or positive form designed for exhibition by projection on a screen.
E. 
Videotape or any other medium used to electronically reproduce images on a screen.
OBSCENE MATTER
Any matter which:
A. 
The average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest.
B. 
Depicts or describes patently offensive representations or descriptions of:
(1) 
Ultimate sexual acts, normal or perverted, actual or simulated.
(2) 
Masturbation, excretory functions, or exhibition of the genitals or genital area.
C. 
Nothing herein contained is intended to include or describe any matter which, when taken as a whole, possesses serious literary, artistic, political or scientific value.
OBSCENE MOTION-PICTURE FILM
Any motion-picture film which:
A. 
The average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest.
B. 
Depicts or describes patently offensive representations or descriptions of:
(1) 
Ultimate sexual acts, normal or perverted, actual or simulated.
(2) 
Masturbation, excretory functions, or exhibition of the genitals or genital area.
C. 
Nothing herein contained is intended to include or describe any motion-picture film which, when taken as a whole, possesses serious literary, artistic, political or scientific value.
PERSON
Any individual, partnership, firm, association, corporation or other 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.
SELL
To pass 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, obscene matter or an obscene motion-picture film.
[Amended 7-7-1993 by Ord. No. 791]
Any person who shall violate any provision of this article shall, upon conviction thereof, be sentenced to pay a fine not exceeding $600 and costs and, in default of payment thereof, shall be subject to imprisonment for a term not to exceed 30 days. Each day that a violation of this article continues shall constitute a separate offense.
A. 
Each and every place in the Borough where the sale or exhibition of obscene matter or obscene motion-picture films occurs is hereby declared to be a public nuisance.
B. 
The sale or exhibition of obscene matter or obscene motion-picture films is hereby declared to be a public nuisance.
C. 
Any obscene matter and any obscene motion-picture film sold or exhibited in the Borough is hereby declared to be a public nuisance.
The owner, owners, tenants, lessees, occupants, and/or any other person in charge of, or in control of, any place within the limits of the Borough upon which a public nuisance, as hereinabove defined, exists shall jointly and severally be responsible for the abatement of the nuisance and shall, upon notification by the Borough as herein provided, promptly abate such nuisance. Provided, however, that the failure to abate the nuisance shall not subject the owner, owners, tenants, lessees, occupants and any other person in charge of or in control of any place where the nuisance exists to any fine, forfeiture or penalty until such time as a judicial determination of the obscenity of the obscene matter or obscene motion-picture film is made in any action commenced pursuant to § 204-7 of this article.
A. 
Whenever a public nuisance exists in the Borough as herein defined, the Borough shall, by resolution, declare:
(1) 
Such public nuisance exists, setting forth the legal description or street address of the place which constitutes the public nuisance.
(2) 
The evidentiary facts considered by the Borough Council in determining that a public nuisance exists as herein described, including:
(a) 
When said declaration of public nuisance is based upon the exhibition of an obscene motion-picture film or films, a recitation of the particular sexual conduct and acts which the Borough Council finds patently offensive and the basis for finding that such film is publicly held for exhibition at the place declared to be a public nuisance.
(b) 
When said declaration of public nuisance is based upon the sale of obscene matter, a recitation of the particular publications or types of publications considered by the Borough Council and which the Borough Council finds to be obscene, as described in § 204-3 of this article, and the basis for finding that such publications are sold at such place.
B. 
Upon enactment of the resolution declaring the existence of a public nuisance as aforesaid, the Borough Council shall order the owner, owners, tenants, lessees and/or other persons in charge of the place where the public nuisance exists to abate such public nuisance within 24 hours of service of such order of abatement as hereinafter provided.
C. 
A true and correct copy of the resolution as aforesaid and the order of abatement shall be personally served upon the owner, owners, tenants, lessees, occupants and/or persons in charge of the place where such public nuisance exists within 48 hours of the passage of such resolution by the Borough Council. If service as hereinabove described cannot be effectuated within 48 hours as aforesaid, it shall be sufficient notice hereunder to post the premises where such public nuisance exists by affixing a true and correct copy of said resolution and order of abatement to a conspicuous part of the place.
Upon a specific finding by resolution of the Borough of the existence of a public nuisance at a particular place, the Borough Solicitor shall, within 48 hours of service of said resolution and order of abatement upon the persons hereinabove described, commence legal proceedings by the filing of a civil action seeking the following relief:
A. 
A declaratory judgment that the matter or motion-picture film named or described by the Borough Council is obscene as defined in § 204-3 of this article.
B. 
A declaratory judgment that the place named by the Borough Council is a public nuisance under this article and such resolution.
C. 
A declaratory judgment that the obscene matter or obscene motion-picture film named or described by the Borough Council is a public nuisance.
D. 
A mandatory injunction ordering abatement of said public nuisance.
E. 
All such other relief as the court may deem just and proper.
A. 
The cost of abatement upon judgment for the Borough in legal proceedings commenced by the Borough Solicitor pursuant to this article shall include investigative costs, court costs, reasonable attorney's fees arising out of the preparation for and trial of the case and appeals therefrom, and other costs allowed on appeal, and printing costs of trial and appellate briefs and all other papers filed in such proceeding.
B. 
Upon judgment for the Borough, costs of abatement are hereby made a special assessment against the parcel of land upon which such public nuisance is maintained and a personal obligation against any person, persons, firm, association, partnership, corporation or other entity having a duty to abate such nuisance. Upon its determination in a civil action, such costs of abatement shall, by separate legal proceeding, be made a lien against such property and a personal obligation against any person, persons, firm, association, partnership, corporation or other entity having a duty to abate such nuisance, 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.
[Adopted 10-18-1977 by Ord. No. 669 (Ch. 6, Part 2, of the 1993 Code)]
The Borough Council finds that a sensitive key relationship of human existence, central to family life, community welfare and the development of human personality, is debased and distorted by crass commercial exploitation of sex when a massage parlor is used for the purpose of lewdness, assignation, illicit sexual conduct or prostitution, and that the regulation of said crass commercial exploitation of sex is necessary for the safety, morals and general welfare of the Borough.
It shall be unlawful for any person to knowingly establish, own, lease, manage, operate or work in a massage parlor which is used for the purposes of lewdness, assignation, illicit sexual conduct or prostitution within the Borough.
As used in this article, the following terms shall have the meanings indicated:
ILLICIT SEXUAL CONDUCT
1) Masturbation; 2) sexual intercourse, whether genital-genital, oral-genital, oral-anal, or anal-genital; 3) any erotic fondling or touching of the covered or uncovered genitals, buttocks, pubic area, or any part thereof, the breasts of the female, whether the conduct described in (1) through (3) is engaged in alone or between members of the same or opposite sex.
KNOWINGLY
Having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection of the character and content of any fact described herein which is reasonably susceptible of examination.
LEWDNESS
Behavior, conduct or activity which falls within one of the following characterizations:
A. 
Masturbation administered for the purposes of sexual arousal or gratification.
B. 
Stimulation of the genital organs.
C. 
Sexual-oriented massage.
MASSAGE
Any method of treating the superficial soft parts of the human body for remedial, hygienic or other purposes, consisting of rubbing, stroking, kneading, tapping, pounding, vibrating or stimulating with the hands or any instrument, or by the application of air, liquid or vapor baths of any kind whatever.
MASSAGE PARLOR
Any building, structure or place or any portion thereof located within the Borough and regardless of whether the place is called a "sensitivity center," "bathhouse" or any other name where the purpose of said place is to administer massages for the purpose of providing sexual arousal or sexual gratification to its customers, clients or members, with or without the payment of a fee.
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.
PROSTITUTION
Engaging in sexual or deviate sexual intercourse for compensation.
[Amended 7-7-1993 by Ord. No. 791]
Any person who shall violate any provision of this article shall, upon conviction thereof, be sentenced to pay a fine not exceeding $600 and costs and, in default of payment thereof, shall be subject to imprisonment for a term not to exceed 30 days. Each day that a violation of this article continues shall constitute a separate offense.
Each and every place in the Borough where a massage parlor is used for the purposes of lewdness, assignation, illicit sexual conduct or prostitution or upon which acts of lewdness, assignation, illicit sexual conduct or prostitution are held or occur is hereby declared to be a public nuisance.
The owner, owners, tenants, lessees, occupants and/or any person in charge of, or in control of, any place within the limits of the Borough upon which a public nuisance as defined in § 204-14 of this article exists shall jointly and severally be responsible for the abatement of the nuisance and shall, upon notification by the Borough as provided in § 204-16 of this article, promptly abate such nuisance. Provided, however, that the failure to abate the nuisance shall not subject the owner, owners, tenants, lessees, occupants and any other person in charge of or in control of any place where the nuisance exists to any fine, forfeiture or penalty until such time as a judicial determination of the lewdness, assignation, illicit sexual conduct or prostitution is made in any action commenced pursuant to § 204-16 of this article.
A. 
Whenever a public nuisance exists in the Borough, as defined in § 204-12 of this article, the Borough Council shall, by resolution, declare:
(1) 
Such public nuisance exists, setting forth the legal description or street address of the place which constitutes the public nuisance.
(2) 
The evidentiary facts considered by the Borough Council in determining that a public nuisance exists as herein described, including a recitation of:
(a) 
The particular acts of lewdness, assignation, illicit sexual conduct or prostitution which have occurred.
(b) 
The basis for the finding by the Borough Council that such acts occur.
B. 
Upon enactment of the resolution declaring the existence of a public nuisance as aforesaid, the Borough Council shall order the owner, owners, tenants, lessees and/or other persons in charge of the place where the public nuisance exists to abate such public nuisance within 24 hours of service of such order of abatement as hereinafter provided.
C. 
A true and correct copy of the resolution as aforesaid and the order of abatement shall be personally served upon the owner, owners, tenants, lessees, occupants and/or persons in charge of the place where such public nuisance exists within 48 hours of the passage of such resolution by the Borough Council. If service as hereinabove described cannot be effectuated within 48 hours as aforesaid, it shall be sufficient notice hereunder to post the place where such public nuisance exists by affixing a true and correct copy of said resolution and order of abatement to a conspicuous part of the place.
Upon a specific finding by resolution by the Borough of the existence of a public nuisance at a particular place, the Borough Solicitor shall, within 48 hours of service of said resolution and order of abatement upon persons described in § 204-16 of this article, commence legal proceedings by the filing of a civil action seeking the following relief:
A. 
A declaratory judgment that the use of a place is for purposes of lewdness, assignation, illicit sexual conduct or prostitution, as defined by § 204-12 of this article.
B. 
A declaratory judgment that the place named by the Borough Council is a public nuisance under this article and such resolution.
C. 
A mandatory injunction ordering abatement of said public nuisance.
D. 
All such other relief as the court may deem just and proper.
A. 
The cost of abatement upon judgment for the Borough in legal proceedings commenced by the Borough Solicitor pursuant to § 204-17 of this article shall include investigative costs, court costs, reasonable attorney's fees arising out of the preparation for and trial of the case and appeals therefrom and other costs allowed on appeal, printing costs of trial and appellate briefs, and all other papers filed in such proceedings.
B. 
Upon judgment for the Borough, costs of abatement are hereby made a special assessment against the parcel of land upon which such public nuisance is maintained. Upon its determination in a civil action, such shall, by separate legal proceeding, be made a lien against such property and a personal obligation against any person, persons, firm, association, partnership, corporation or other entity 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 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.