[HISTORY: Adopted by the Borough Council of the Borough of Brentwood 3-2-1982
as Ch. VI, Part 4, of the 1982 Code of Ordinances. Amendments noted where
applicable.]
The Borough Council finds that the crass commercial exploitation of
explicit sexual conduct through the public exhibition of lewd films, lewd
live theater productions 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
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 chapter 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 chapter, 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, production or publication
or knowledge of the acts of lewdness, assignation or prostitution which occur
on the premises.
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, educational or scientific
value.
Any dramatic, musical or comedic production performed in the presence
of a live audience.
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, live theater production or a publication or
all three or any combination thereof.
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 observe,
view or depict the figure model or for admission to or for permission to remain
upon or as a condition for remaining upon the premises.
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.
Exception. The term "model studio" does not include:
Any studio which is operated by any state college or junior college,
public or licensed private 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.
Any premises 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.
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 projections on a screen.
Video tape or any other medium used to electronically reproduce images
on a screen.
Includes:
Completely without clothing.
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 full 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 or possession of lewd
matter.
A.
Any and every place in the borough where lewd films or
lewd live theater productions are publicly exhibited or possessed for the
purpose of such exhibitions; and any and every place in the borough where
a lewd film or lewd live theater production 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 above is a public nuisance per se.
C.
All advertising materials, documents, scripts, transcripts and other writings and materials, which relate to said lewd films or to said lewd live theater productions, which are possessed for purposes of publicizing, advertising, presenting or exhibiting such films or productions and which are possessed at a place which is a public nuisance under Subsection A above is a public nuisance per se.
D.
From and after service on the theater, or place or its manager or acting manager or person then in charge of such place, of a true and correct copy of this chapter and a true and correct copy of the resolution and order of summary abatement provided for in § 64-7 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.
A.
Any and every place in the borough 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 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 chapter and a true and correct copy of the resolution and order of summary abatement provided for in § 64-7 hereof, all money or other valuable consideration paid or received for admission to such place and 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 purposes of lewdness, assignation or prostitution
and every such massage parlor or model studio in or which acts of lewdness,
assignations or prostitution are held or occur and 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 chapter and a true and correct copy of the resolution and order of summary abatement provided for in § 64-7 hereof, all moneys or other valuable consideration paid or received for admission to such place or 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.
After service of notice as required in this chapter, including service of a true and correct copy of this chapter and of a true and correct copy of the resolution and order of summary abatement provided for in § 64-7 hereof, any and every person who shall own, legally or equitably, lease, maintain, manage, conduct or operate a place in the borough which is declared to be a public nuisance as set forth and stated in §§ 64-3, 64-4 and/or 64-5 of this chapter, is deemed to be a person who has knowledge of such nuisance for the purpose of this chapter and is thereafter responsible for its maintenance and shall be liable therefor.
Upon a specific finding that a public nuisance, as defined in §§ 64-3, 64-4 and/or 64-5 of this chapter, exists in the borough, Council, in applying the provisions of this chapter to such nuisance, shall provide for the following by resolution:
A.
Declaring the fact that such nuisance exists.
B.
Setting forth the description or legal description and
street address of the place which constitutes the nuisance or at which the
nuisance exists.
C.
Setting forth the evidentiary facts considered by the
Municipal Council in arriving at its factual determination.
(1)
In the case of a motion picture film or films or live
theater production, such shall include a recitation of the particular sexual
conduct and acts which Council finds are patently offensive and the basis
for the finding by Council that such films or live theater production are
publicly exhibited in the course of business or that such film or live theater
production 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 the particular publications or types of publications
considered by Council and those which Council finds to be patently offensive
and 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 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 the particular acts of lewdness, assignation
or prostitution which have occurred and the basis for the finding by Council
that such acts occur in the course of business.
D.
Ordering all persons described in § 64-6A hereof to abate summarily such public nuisance within 24 hours of service of such order on any such persons, by terminating the exhibition, sale, display or possession for sale of such lewd subject matter and/or by ceasing to use the place where the nuisance is declared to exist and/or by terminating the use of said premises for the purposes of lewdness, assignation or prostitution and/or causing the same to be terminated and notifying Borough Council of compliance therewith by sworn affidavit as ordered by the action of Council in such resolution.
E.
Ordering the Borough Solicitor to proceed as directed in § 64-9 of this chapter and to do all things necessary to abate such public nuisance through judicial proceedings or otherwise 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.
Informing and giving notice to persons designated in § 64-6A that:
(1)
The Council has determined that a public nuisance presently exists at such place and address and that, under § 64-6A of this chapter, they are deemed to have knowledge thereof and are responsible therefor.
(2)
In the event that the order of the borough is not complied with within 24 hours, Council has ordered the Borough Solicitor, as provided for under § 64-9 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 § 64-8A 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, buildings, structures and improvements thereon, 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 chapter.
(3)
All lewd motion picture films or lewd publications or
other lewd matter or objects 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 or other person or entity identified in § 64-6A of this chapter, of a true and correct copy of this chapter and a true and correct copy of such resolution, any and all moneys or other valuable consideration paid to or received by any of the persons or entities identified in § 64-6A of this chapter, including any and all moneys paid as admission price to or for the exhibition or exhibitions of such lewd motion picture films or production of such lewd live theater productions 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.
Ordering that a true and correct copy of said resolution and 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 and to other persons or entities identified in § 64-6A of this chapter.
A.
Upon judgment for the Borough of Brentwood in legal proceedings brought pursuant to this chapter, an accounting shall be made by such defendant or defendants of all moneys or valuable consideration received by them which have been declared to be a public nuisance under §§ 64-3D, 64-4C or 64-5B of this chapter. Such moneys or their equivalent and any valuable considerations received shall be forfeited to the general fund of the borough or to the borough as property of the borough if any valuable consideration received be not money.
B.
Cost of abatement.
(1)
The cost of abatement shall include the following:
(a)
Investigative costs.
(b)
Court costs.
(c)
Reasonable attorney's fees arising out of the preparation
for and trial of the cause and appeals therefrom and other costs allowed on
appeal.
(d)
Printing costs of pretrial, trial, posttrial and appellate
briefs and pleadings and all other papers filed in such proceedings.
(2)
Such cost of abatement is hereby made a special assessment
against the parcel of land and all improvements thereon 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 improvements thereon
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 or liens 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 or liens.
All laws, applicable to the levy, collection and enforcement of municipal
taxes or liens, shall be applicable to such special assessment.
Upon a specific finding by resolution of Council of the fact that a
public nuisance exists at a particular location, the Borough Solicitor shall
take all appropriate action to achieve the purposes of this chapter, including
commencement of legal proceedings by the filing of a civil action seeking
the following relief:
A.
A declaratory judgment that the matter identified 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 chapter and such resolution.
C.
A declaratory judgment that each place named by Council
is a public nuisance under this chapter and such resolution.
D.
An accounting of all moneys or other valuable consideration
paid for admission to any place or establishment identified as a nuisance
under this chapter, all moneys or other valuable consideration paid for the
exhibition or exhibitions of such lewd motion picture films and lewd live
theater productions, all moneys and valuable consideration received for the
sale of such lewd publications and all moneys 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 Council by resolution that the public nuisance exists, and
a judgment that such moneys or valuable consideration are a public nuisance
under this chapter.
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 Borough of Brentwood or as property
belonging to the Borough of Brentwood.
F.
An injunction enjoining and restraining all persons responsible
for maintaining said nuisance from possessing or publicly exhibiting said
lewd motion picture films or lewd live theater productions 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 Brentwood
and such other injunctive relief as the court may order.
G.
An order that all positive prints of the named lewd films,
all lewd publications or copies or reproductions thereof and all other lewd
matter, be forfeited as contraband under this chapter.
H.
Judgment for the Borough of Brentwood for all costs therein
expended, including investigative costs, court costs, reasonable attorney's
fees and such other expenses as are provided for herein or otherwise in law
or equity.
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 chapter 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 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
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 chapter in its entirely remaining
in full force and effect.
Any person, firm or corporation who or which shall violate any provision
of this chapter shall, upon conviction thereof, be sentenced to pay a fine
of not more than $600, plus costs of prosecution, and in default of payment
thereof, shall be imprisoned for a term not to exceed 30 days. Every day that
a violation of this chapter continues shall constitute a separate offense.
