As used in this chapter, the following terms shall have the
meaning indicated:
CONTROLLED SUBSTANCE
A drug, substance or immediate precursor as defined in Schedules
I through V of the Pennsylvania Controlled Substance, Drug Device
and Cosmetic Act, 35 P.S. § 780-104, or any amendments thereto.
DRUG PARAPHERNALIA
Any objects, devices, instruments, apparatus or contrivances,
whose primary and traditionally exclusive use is involved with the
illegal use of any and all controlled substances under the laws of
Pennsylvania.
HEAD SHOP
Any business, the operation of which involves the sale, lease,
trade, gift or display for sale, of any and all types of drug paraphernalia.
IMMEDIATE PRECURSOR
A substance which under the regulations of the Pennsylvania
Department of Health is a principal compound commonly used or produced
primarily for use, and which is an immediate chemical intermediary
used or likely to be used, in the manufacture of a controlled substance.
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 having knowledge of the acts of lewdness, assignation
or prostitution which occur on the premises.
LEWD MATTER
Any matter which the average 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. 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, educational 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
Prospect 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 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, compensation or 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 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, 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.
Exception. The term "model studio" does not include:
(1)
Any studio which is operated by any state university or 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 of furnishing, providing or procuring figure models solely for any studio described in Subsection
A 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
Includes any film or plate negative; film or plate positive;
film designated to be projected on a screen or other surface for exhibition;
films, glass slides or transparencies, either in negative or positive
form, designed for exhibition by projection on a screen or other surface,
and video tape or any other medium used to electronically reproduce
images on a screen or other surface.
NUDE
Completely without clothing, or showing the human male or
female genitals, pubic area or buttocks with less than a fully opaque
covering or showing the female breast with less than a fully opaque
covering or any portion thereof below the top of the nipple or showing
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.
PUBLICATION
Includes any book, magazine, article, pamphlet, writing,
printing, illustration, picture, sound recording or motion picture
film which is displayed or contained in an area open to the public
or is offered for sale or exhibition in a coin-operated machine.
SALE
A passing of title or right of possession from a seller to
a buyer for valuable consideration and includes, 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.
TRADITIONALLY EXCLUSIVE USE
A use which is primary and inherent as opposed to secondary
and incidental, and is associated with certain knowledge or beliefs
derived from statements of contemporary persons and handed down through
a considerable period of time.
Upon specific finding that a public nuisance, as defined in §
103-3 through
103-5 of this chapter, exists in Prospect Borough, the Police Department in applying the provisions of this chapter to such nuisance, shall:
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 Police Department in arriving at its factual determination.
(1) In the case of a motion picture
film or films, such facts shall include a recitation of the particular
sexual conduct and acts which the Police Department finds are patently
offensive; the basis for the finding by the Police Department that
such film or films are displayed, sold or held for sale at any place
found by the Police Department to be a public nuisance; and the basis
of the finding by the Police Department that such film or films constitute
a part of the stock in trade of such place of business or other place.
(2) In the case of a publication
or publications, such facts shall include a recitation of the particular
publications or types of publications considered by the Police Department
and those which the Police Department finds to be patently offensive;
the basis for the finding by the Police Department that such publications
are displayed, sold or held for sale at any place found by the Police
Department to be a public nuisance; and the basis of the finding by
the Police Department 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 facts shall include a recitation of the particular
acts of lewdness, assignation or prostitution which have occurred
and the basis for the finding by the Police Department that such acts
occurred in the course of business.
(4) In the case of drug paraphernalia,
such facts shall include a recitation of the particular drug paraphernalia
or types of drug paraphernalia considered by the Police Department,
and those which the Police Department finds to be patently offensive.
The basis for the finding by the Police Department that such drug
paraphernalia is displayed, sold or held for sale at any place found
by the Police Department to be a public nuisance and the basis of
the finding by the Police Department that such drug paraphernalia
constitutes a part of the stock in trade of such place or business
or other place.
D. Order all persons described in §
103-6A hereof to summarily abate such public nuisance within 24 hours of service of such order on any such subject matter or to cease to use the place where the public nuisance is declared to exist or to terminate the use of said premises for the purpose of lewdness, assignation or prostitution or to cause the same to be terminated.
E. Order the Solicitor to proceed
to 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 §
103-6A that:
(1) The Police Department has determined that a public nuisance presently exists at such place and address and that, under §
103-6A of this chapter, they are deemed to have knowledge thereof and are responsible therefor.
(2) In the event that the order of Prospect Borough has not been complied with within 24 hours, the Police Department has ordered the Solicitor, as provided for under §
103-9 hereof, to commence necessary legal proceedings naming such persons as defendants in a civil action to abate the same judicially under §
103-7 of this chapter and, under §§
103-6A and
B 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 a nuisance is being maintained and, upon their determination in such court action, will be a separate legal procedure and will be made a lien against such property and a personal obligation against any person, 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 or drug paraphernalia being used in conducting
and maintaining such public nuisance are contraband, and the subject
of forfeiture.
(4) 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 any and
all moneys paid as an admission price to or for the exhibition of
such lewd motion picture film and valuable consideration received
for the sale of such lewd publications and drug paraphernalia and
all moneys or other valuable consideration received for services in
such massage parlors or model studios are a public nuisance as personal
property use in conducting and maintaining such nuisance and, as such,
are the subject of forfeiture.
G. Order that 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 the Police Department of the fact
that a public nuisance exists at a particular location, the Solicitor,
with the approval of the Borough Council, is authorized to take whatever
action is appropriate.