The Borough Council finds that the crass commercial exploitation
of explicit sexual conduct through the public exhibition of lewd films,
and 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 East Pittsburgh, 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:
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,
publication, or knowledge of the acts, lewdness, assignation, or prostitution
which occurs on the premises.
LEWD
Any matter:
A.
Which the average person applying contemporary community standards
would find, when considered as a whole, appeals to the prurient interest;
and
B.
Which depicts or describes patently offensive representations
or descriptions of:
(1)
Ultimate sexual acts, normal or perverted, actual or simulated;
or
(2)
Masturbation, excretory functions, or exhibition of the genitals
or genital area.
C.
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
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
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.
MATTER
A motion-picture film or a 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 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
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
Any:
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.
NUDE
Shall include:
A.
Completely without clothing; or
B.
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.
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 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.
Upon a specific finding that a public nuisance, as defined in §
278-3, §
278-4 or §
278-5 of this chapter, exists in the Borough of East Pittsburgh, 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 §
278-6A of this chapter 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 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 §
278-9 of this chapter 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 §
278-6A of this chapter that:
(1) The Borough Council has determined that a public nuisance presently exists at such place and address, and that, under §
278-6A of this chapter, 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 §
278-9 hereof, to commence necessary legal proceedings naming such persons as defendants in a civil action to abate the same judicially under this section and that under §
278-8A and
B of this chapter, 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; 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 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.
[Amended 4-14-1980 by Ord. No. 753]
A. Upon judgment for the Borough of East Pittsburgh 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 §§
278-3C,
278-4C or
278-5B of this article. Such monies or their equivalent and any valuable consideration received shall be forfeited to the general fund of the Borough of East Pittsburgh or to the Borough of East Pittsburgh as property of the Borough of East Pittsburgh if any valuable consideration received be not money.
B. The cost of abatement shall include the following:
(3) Reasonable attorneys' fees arising out of the preparation for and
trial of the case, and appeals therefrom, and other costs allowed
on appeal.
(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 person's 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.
[Amended 4-14-1980 by Ord. No. 753]
Upon a specific finding by resolution of the Borough Council
of the fact that a public nuisance exists at a particular location,
the Borough Solicitor shall, not later than three days after passage
of said resolution, commence legal proceedings by the filing of a
civil action seeking the following relief:
A. A declaratory judgment that the matter named by the Borough 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 the Borough Council
is a public nuisance under this article and such resolution.
D. 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 consideration 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.
E. 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 East Pittsburgh
or as property belonging to the Borough of East Pittsburgh.
F. 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 East Pittsburgh,
and such other injunctive relief as the court may order.
G. An order that all positive prints of the named lewd film and all
lewd publications or copies or reproductions thereof be forfeited
as contraband under this article.
H. Judgment for the Borough of East Pittsburgh for all costs therein
expended, including investigative costs, court costs, reasonable attorneys'
fees, and such other expenses as are provided for herein.
I. All other relief as the 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 provision 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.