Town of McCandless, PA
Allegheny County
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Table of Contents
Table of Contents
[Ord. 724, passed 7-25-1977]
Council finds 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 Town, 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 Town and of the residents, citizens, inhabitants and businesses thereof. Council hereby declares such activities to be a public nuisance, and herein establishes procedures for the abatement thereof. This article shall apply to all existing establishments which are presently engaged in the type of activity herein declared to be a public nuisance and all of those commenced hereafter.
[Ord. 724, passed 7-25-1977]
COMMUNITY STANDARDS
The standards of the community from which the jury is drawn or would be drawn if it were the trier of the fact.
KNOWLEDGE or KNOWLEDGE OF SUCH NUISANCE
Having actual or constructive knowledge of the contents and character of the patently offensive sexual conduct or demonstration which appears in the film, publication or actual or constructive knowledge of the acts of lewdness, assignation or prostitution which occur on the premises. A person shall be deemed to have constructive knowledge of the character of the subject matter or live conduct if he has knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the matter.
LEWD MATTER
Any matter which taken as a whole appeals to the prurient interest in sex, which portrays sexual conduct in a patently offensive way, and which, taken as a whole, does not have serious value. In determining whether or not a matter is lewd the trier of the fact must find:
(a) 
That the average person, applying contemporary community standards would find that the matter, taken as a whole appeals to the prurient interest; and
(b) 
That the matter depicts or describes, in a patently offensive way, sexual conduct specifically defined by this article or authoritatively construed by the courts of this Commonwealth as being a portrayal of patently offensive sexual conduct as that phrase is used in the definition of lewd matter; and
(c) 
That the matter, taken as a whole, lacks serious value.
MASSAGE
Any method of treating the superficial soft parts of the human body, for remedial, hygenic 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 Town, 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.
(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 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 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) 
Exception. The words "model studio" do not include:
(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; or
(2) 
Any premises where there is conducted the business of furnishing, providing or procuring figure models solely for any studio described in subsection (3)A. hereof.
(3) 
Any studio operated by a tax exempt, non-profit corporation devoted to the development of art and its appreciation.
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) 
Video tape or any other medium used to electronically reproduce images on a screen.
PATENTLY OFFENSIVE
So offensive on its face as to affront current standards of decency.
PATENTLY OFFENSIVE SEXUAL CONDUCT
Includes any of the following described sexual conduct if depicted or described in a patently offensive way:
(a) 
An act of sexual intercourse, normal or perverted, actual or simulated, including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal.
(b) 
Sado-masochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in under garments or in a revealing costume or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
(c) 
Masturbation, excretory functions and lewd exhibition of the genitals including any explicit, close-up representation of a human genital organ or spread-eagle exposure of female genital organs.
(d) 
Physical contact or simulated physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparant sexual stimulation or gratification.
(e) 
A device designed and marketed as useful primarily for stimulation of the human genital organs.
(f) 
Male or female genitals in a state of sexual stimulation or arousal.
(g) 
Covered male genitals in a discernibly turgid state.
PRURIENT INTEREST
A shameful or morbid interest in nudity, sex or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is designed for an especially susceptible audience or clearly defined deviant sexual group, the appeal of the subject matter shall be judged with reference to such audience or group.
PUBLICATION
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.
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.
SERIOUS VALUE
Serious literary or artistic or political or scientific value.
STANDARDS OF DECENCY
Community standards of decency.
[Ord. 724, passed 7-25-1977]
(a) 
Any and every place in the Town where lewd films are publicly exhibited or possessed for the purpose of such exhibition; and any and every place in the Town 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 subsection (a) hereof 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 Section 713.07 hereof, all moneys 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.
[Ord. 724, passed 7-25-1977]
(a) 
Any and every place in the Town 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) hereof 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 Section 713.07, 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.
[Ord. 724, passed 7-25-1977]
(a) 
Every massage parlor or model studio, which, as a regular course of business, is used for the purposes 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, 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 Section 713.07 hereof, all moneys 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.
[Ord. 724, passed 7-25-1977]
(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 Section 713.07, any and every person who owns, legally or equitably, leases, maintains, manages, conducts or operates a place in the Town which is declared to be a public nuisance as set forth and stated in any provision of Sections 713.03 to 713.05, 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.
(b) 
The places and subject matter declared to be public nuisances under any provision of Sections 713.03 to 713.05 shall be abated as provided for herein.
[Ord. 724, passed 7-25-1977]
Upon a specific finding that a public nuisance, as defined in any provision of Sections 713.03 to 713.05 exists in the Town, 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 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 Council finds are lewd, and the basis for the finding by Council that:
A. 
Such film is publicly or repeatedly exhibited in the course of business; or
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 Council, and those which Council finds to be lewd;
B. 
The basis for the finding by Council that such publications are displayed, sold or held for sale at any place found by Council to be a public nuisance; and
C. 
The basis of the finding by 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 Council that such acts occur in the course of business.
(d) 
Order all persons described in Section 713.06(a) hereof to summarily abate such public nuisance within 24 hours of service of an 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 such premises for the purposes of lewdness, assignation or prostitution, or causing the same to be terminated, and notifying the Manager and Council of compliance therewith by sworn affidavit as ordered by the action of Council in such resolution.
(e) 
Order the Town Attorney to proceed as directed in Section 713.09 hereof 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 Section 713.06(a) hereof that:
(1) 
Council has determined that a public nuisance presently exists at such place and address, and that, under Section 713.06(a) hereof they are deemed to have knowledge thereof and are responsible therefor;
(2) 
In the event the order of the Town is not complied with within 24 hours, Council shall order the Town Attorney, as provided for in Section 713.09 hereof, to commence necessary legal proceedings naming such persons as defendants in a civil action to abate the same judicially under Section 713.07 hereof, and that under Sections 713.08(a) and (b) hereof, 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, 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; and
(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 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 such 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.
[Ord. 724, passed 7-25-1977]
(a) 
Upon judgment for the Town in legal proceedings brought pursuant to this article, an accounting shall be made by such defendant or defendants of all moneys or valuable consideration received by them from activities which have been declared to be a public nuisance under Sections 713.03(c), 713.04(c) or 713.05(b) hereof. Such moneys or their equivalent and any valuable consideration received shall be forfeited to the General Fund of the Town or to the Town as property of the Town if any valuable consideration received is not money.
(b) 
The cost of abatement shall include the following:
(1) 
Investigative costs;
(2) 
Court costs;
(3) 
Reasonable attorney's fees arising out of the preparation for, and trial of the cause and appeals therefrom and other costs allowed on appeal; and
(4) 
Printing costs of trial and appellate briefs and all other papers filed in such proceeding.
(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 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.
[Ord. 724, passed 7-25-1977]
Upon a specific finding by resolution of Council of the fact that a public nuisance exists at a particular location, the Town Attorney shall not later than three days after passage of such resolution, commence legal proceedings by the filing of a civil action seeking the following relief:
(a) 
A declaratory judgment that the matter named by 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 article and such resolution.
(c) 
A declaratory judgment that each place named by Council is a public nuisance under this article 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 such nuisance receive notice of the finding by Council by resolution that the public nuisance exists, and a judgment that such moneys or valuable consideration are a public nuisance under this article.
(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 Town or as property belonging to the Town.
(f) 
An injunction enjoining and restraining all persons responsible for maintaining such nuisance from possessing or publicly exhibiting such lewd motion picture films, or from selling or possessing for sale such lewd publications, or from committing acts of lewdness, assignation or prostitution, at any time in the future in the Town and such other injunctive relief as the court may order.
(g) 
An order that the named lewd film and all lewd publications or copies or reproductions thereof be forfeited as contraband under this article.
(h) 
Judgment for the Town 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.
[Ord. 724, passed 7-25-1977]
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 provision narrowly so as to enable the same to be constitutional. If the court cannot so limit or construe such word or provision narrowly so as to render the same constitutional, 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, phrase, 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.