[Adopted 5-17-1978 by Ord. No. 1110 (Ch. XVII, Part 2, of the 1974 Code
of Ordinances)]
The Borough Council find that the crass commercial exploitation
of explicit sexual conduct through the public exhibition of lewd films,
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 Etna and of the residents, citizens,
inhabitants and businesses thereof. The Borough Council hereby declares
such activities to be a public nuisance and herein establishes procedures
for the abatement thereof. This article shall apply to existing establishments
which are presently engaged in the type of activity herein declared
to be a public nuisance.
As used in this article, the following terms shall have the
meanings indicated:
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 of lewdness, assignation,
or prostitution which occur on the premises.
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.
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Nothing herein contained is intended to include or proscribe
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.
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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 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 or a publication, or both.
Any premises on which there is conducted the
business of furnishing 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 as a condition for remaining upon the premises;
or
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, sculptures, 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 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;
or
Any business where there is conducted the business of furnishing, providing or procuring figure models solely for any studio described in Subsection C(1) of this definition; or
Any studio operated by a tax-exempt, nonprofit
corporation devoted to the development of art and its appreciation.
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;
Videotape or any other medium used to electronically
reproduce images on a screen.
Includes:
Completely without clothing; or
With the human male or female genitals, pubic
area or buttocks 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.
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 transfer
of possession of lewd matter.
A.
Any and every place in the Borough of Etna where
lewd films are publicly exhibited or possessed for the purpose of
such exhibitions, and any and every place in the Borough of Etna where
a lewd film is publicly or repeatedly exhibited or possessed for the
purpose of such exhibitions, is a public nuisance.
B.
Any and every lewd film which is publicly exhibited or possessed for such purpose at a place which is a public nuisance under § 396-9A above is a public nuisance per se.
C.
From and after service on the theater or its manager or acting manager, or person then in charge of such place, of a true and correct copy of this article and a true and correct copy of the resolution and order of summary abatement provided for in § 396-13 hereof, all monies paid thereafter as admission price to such exhibitions are also declared to be a public nuisance as personal property used in conducting and maintaining a declared public nuisance.
A.
Any and every place in the Borough of Etna in which
lewd publications constitute a part of the stock-in-trade is a public
nuisance.
B.
Any and every lewd publication possessed at a place which is a public nuisance under Subsection A above 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 article and a true and correct copy of the resolution and order of summary abatement provided for in § 396-13 hereof, all valuable consideration received for the sale of such lewd publications is also declared to be a public nuisance as 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 purpose of lewdness,
assignation or prostitution, and every such massage parlor or model
studio in or upon which acts of lewdness, assignations or prostitution,
are held or occur, or every massage parlor where any employee operates
or performs any service in the nude 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 article and a true and correct copy of the resolution and order of summary abatement provided for in § 396-13 hereof, all monies or other valuable consideration paid for services rendered to customers are also declared to be a public nuisance, as 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 article and of a true and correct copy of the resolution and order of summary abatement provided for in 396-13 hereof, any and every person who shall own, legally or equitably, lease, maintain, manage, conduct or operate a place in the Borough of Etna which is declared to be a public nuisance as set forth and stated in § 396-9, 396-10 or 396-11 of this article, is deemed to be a person who has knowledge of such nuisance for the purpose of this article and is, thereafter, responsible for its maintenance and shall be liable therefor.
Upon a specific finding that a public nuisance, as defined in § 396-9, 396-10 or 396-11, exists in the Borough of Etna, the Borough Council, in applying the provisions of this article 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; or that (b) such film is 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 or
types of publications considered by the Borough Council, and those
which the Borough Council finds to be patently offensive; and (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; and (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; and (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 396-12A 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 Borough Secretary and Borough Council of compliance therewith
by sworn affidavit as ordered by the action of the Borough Council
in such resolution.
E.
Order the Borough Solicitor to proceed as directed in § 396-15 of this article 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 § 396-12A that:
(1)
The Borough Council has determined that a public nuisance presently exists at such place and address, and that, under § 396-12A of this article, 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 Borough Solicitor, as provided for under § 396-15 hereof, to commence necessary legal proceedings naming such persons as defendants in a civil action to abate the same judicially under § 396-13 of this article, and that under § 396-14A and B of this article, the costs of abatement of such civil abatement action filed, including investigative costs, court costs, attorneys' 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, persons, firm, association, partnership, corporation or other entity deemed to be in violation of this article.
(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 or its manager
or acting manager, or person then in charge of such place, of a true
and correct copy of this article and a true and correct copy of such
resolution, any and all monies 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 monies 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 article 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.
A.
Upon judgment for the Borough of Etna in legal proceedings brought pursuant to this article, an accounting shall be made by such defendant or defendants of all monies or valuable consideration received by them which have been declared to be a public nuisance under § 396-9C, 396-10C or 396-11B of this article. Such monies or their equivalent and any valuation considerations received shall be forfeited to the general fund of the Borough of Etna, or to the Borough of Etna as property of the Borough of Etna if any valuable consideration received be not money.
B.
The cost of abatement shall include the following:
C.
Such cost of abatement is hereby made a special assessment
against the parcel of land upon which such 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 borough 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 borough taxes. All laws
applicable to the levy, collection and enforcement of borough taxes
shall be applicable to such special assessment.
Upon specific finding by resolution of the Borough Council of
the fact that a public nuisance exists at a particular location, the
Borough Solicitor shall:
A.
Not later than three days after passage of said
resolution, commence legal proceedings by the filing of a civil action
seeking the following relief:
(1)
A declaratory judgment that the matter named by the
Borough Council is lewd, as defined herein.
(2)
A declaratory judgment that the matter found to be
lewd is or are public nuisances per se under this article and such
resolution.
(3)
A declaratory judgment that such place named by the
Borough Council is a public nuisance under this article and such resolution.
(4)
An accounting of all monies 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 monies or other valuable considerations 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 monies or valuable consideration
are a public nuisance under this article.
(5)
An order that all admission price monies or valuable
consideration received and enumerated in the court-ordered accounting
be forfeited as contraband to the general fund of the Borough of Etna
or as property belonging to the Borough of Etna.
(6)
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 Etna and such other injunctive relief as the court may order.
(7)
An order that all positive prints of the named lewd
films and all lewd publications or copies or reproductions thereof
be forfeited as contraband under this article.
(8)
Judgment for the Borough of Etna that all costs therein
expended, including investigative costs, court costs, reasonable attorney's
fees, and such other expenses as provided for herein.
(9)
All other relief as that court may deem proper.
If any court shall determine that any word, clause, phrase,
sentence, paragraph or subsection of this article is unconstitutional
as worded, the court shall first attempt to construe or interpret
such unconstitutional provisions so as to enable the same to be constitutional
as so narrowed or construed. If the court cannot so limit or construe
such word or provision narrowly so as to render the same unconstitutional,
it shall strike or modify only the minimum number of words, phrases,
clauses, sentences or paragraphs as will be absolutely necessary to
render the remainder constitutional. In no case shall a clause or
phrase or word or other portion hereof render any other word, clause,
phrase, sentence, paragraph or section unconstitutional, but instead
shall be severed therefrom entirely, with the balance of this article
in its entirety remaining in full force and effect.
