[HISTORY: Adopted by the Borough Council of the Borough of Baldwin 1-21-1980 by Ord. No. 505. Amendments noted where applicable.]
Massage parlors — See Ch. 116.
As used in this chapter, 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 other content which appears in the motion-picture film, publication or live theater production, or knowledge of the acts of lewdness, assignation or prostitution which occur in any place.
- 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 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.
- LIVE THEATER PRODUCTION
- Any dramatic, musical or comedic production performed in the presence of a live audience.
- A motion-picture film, live theater production, publication, or all three.
- A. Any place where 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 place.
- B. Any place 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 or private school or any governmental agency wherein the person, firm, association, partnership or corporation or operation 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 place 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.
- MOTION-PICTURE FILM
- 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 or videotape or any other medium used to electronically reproduce images on a screen.
- Completely without clothing or with the human male or female genitals, pubic area or buttocks with less than a fully 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.
Any and every place in the Borough where lewd motion-picture films or live theater productions are publicly exhibited or possessed for the purpose of such exhibition and any and every place in the Borough where a lewd motion-picture film or live theater production is publicly or repeatedly exhibited or possessed for the purpose of such exhibitions is a public nuisance.
Any and every lewd motion-picture 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.
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 § 130-8 hereof, all moneys paid thereafter as admission price to such exhibitions or productions are also declared to be a public nuisance as personal property used in conducting and maintaining a declared public nuisance.
Any and every place in the Borough where lewd publications constitute a part of the stock-in-trade is a public nuisance.
Any and every lewd publication possessed at a place which is a public nuisance under Subsection A above is a public nuisance per se.
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 § 130-8 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.
Every model studio which, as a regular course of business, is used for the purposes of lewdness, assignation or prostitution and every such 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.
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 § 130-8 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.
Upon and after receiving notice through service 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 § 130-8 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 § 130-2, 130-3 or 130-4 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.
The Council shall appoint a Community Standards Board consisting of up to seven adult residents at large of the Borough of Baldwin. Members of said Board shall be laypersons. Members of Council or other elected or appointed Borough officials serving their current terms of office shall not be eligible to serve on the Community Standards Board.
[Amended 3-17-2003 by Ord. No. 777]
Two of the initially appointed Board members shall serve for a term of three years, and two of the initially appointed members shall serve for a period of four years. All other appointees and all subsequent appointees shall serve for a term of five years.
The Baldwin Borough Community Standards Board shall investigate all complaints that activity constituting a public nuisance, as defined in §§ 130-2, 130-3 and 130-4 of this chapter, exists in the municipality and make recommendations to the Council as to the application of this chapter to such activity.
Upon the recommendation of the Community Standards Board and upon the Council's specific finding that a public nuisance exists in the municipality, the Council in applying the provisions of this chapter to such nuisance shall provide for the following by resolution:
Declare the fact that such nuisance exists.
Set forth the description or legal description and street address of the place which constitutes the nuisance.
Set forth the evidentiary facts considered by the Council in arriving at its factual determination.
In the case of a motion-picture film or live theater production, such shall include a recitation of the particular sexual conduct and acts which the Council finds are patently offensive, and the basis for the finding by the Council that such motion-picture film or live theater production is publicly exhibited or produced in the course of business or that such motion-picture film or live theater production is publicly or repeatedly exhibited or produced or held for such exhibition or production at the place declared to be a nuisance.
In the case of a publication, such shall include a recitation of the particular publications or types of publications considered by the Council and those which the Council finds to be patently offensive, and the basis for the finding by the Council that such publications are displayed, sold or held for sale at any place found by the Council to be a public nuisance, and the basis of the finding by the Council that such publications constitute a part of the stock-in-trade of such place of business or other place.
In the case of a 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 the Council that such acts occur in the course of business.
Order all persons described in § 130-5A 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 matter or by ceasing to use the place where the nuisance is declared to exist or by terminating the use of said place for the purposes of lewdness, assignation or prostitution or causing the same to be terminated, and notifying the Council of compliance therewith by sworn affidavit as ordered by the action of the Council in such resolution.
Order the Borough Solicitor to proceed to do all of the 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.
Inform and give notice to persons designated in § 130-5A:
That the Council has determined that a public nuisance presently exists at such place and address and that, under § 130-5A of this chapter, they are deemed to have knowledge thereof and are responsible therefor.
That in the event that the order of the municipality is not complied with within 24 hours the Council has ordered the Borough Solicitor, as provided for under § 130-10 hereof, to commence necessary legal proceedings naming such persons as defendants in a civil action to abate the public nuisance judicially under § 130-8 of this chapter and that, under § 130-9 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 be separate legal procedure and will be made a lien against such property and a personal obligation against any person deemed to be in violation of this chapter.
All lewd motion-picture films or lewd publications being used in conducting and maintaining such public nuisance are contraband and the subject of forfeiture.
From and after service on the place or its manager or acting manager or person then in charge of such a place of a true and correct copy of this chapter 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 of production of such lewd live theater productions and valuable consideration received for services rendered in such model studios are a public nuisance as personal property used in conducting and maintaining such nuisance and, as such, are the subject of forfeiture.
Order 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.
Upon judgment for the Borough 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 § 130-2C, 130-3C or 130-4B of this chapter. Such moneys or their equivalent and any valuable consideration 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 is not money.
The cost of abatement shall include the following:
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, it shall, by separate legal proceeding, be made a lien against such property and a personal obligation against any person and shall be collected at the 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.
Upon a specific finding by resolution of the Council that a public nuisance exists at a particular location, the Borough Solicitor, with the approval of the Council, is authorized to take whatever action is appropriate to carry out this chapter.
If any court shall determine that any word, clause, phrase, sentence, paragraph or subsection of this chapter is unconstitutional, 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 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 entirety remaining in full force and effect.