[HISTORY: Adopted by the Borough Council of the Borough of Mount
Oliver 4-17-1978 as Ord. No. 660. Amendments noted where applicable.]
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, essential to family life, community welfare and the development
of human personalities; 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 public safety; and that the operation of such activities
is detrimental to the best health, safety, convenience, good morals and general
welfare of the Borough of Mount Oliver, 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.
As used in this chapter, the following terms shall have the meanings
indicated:
The standards of the community from which the jury is drawn or could
be drawn if it were the trier of the facts.
Having actual or constructive knowledge of the contents and character
of the patently offensive sexual conduct or demonstration which appears in
the film or 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 person on notice.
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 social value. In determining whether
or not a matter is "lewd," the trier of the facts must find that:
The average person, applying contemporary community standards, would
find that the matter, taken as a whole, appeals to the prurient interest;
The matter depicts or describes, in a patently offensive way, sexual
conduct specifically defined by this chapter or is 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
The matter, taken as a whole, lacks serious social value.
Any method of treating 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 of Mount Oliver, 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
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
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 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;
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 subsection; 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 or glass slides or transparencies, either in negative or positive
form, designed for exhibition by projection on a screen.
Video tape 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 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 areola, or the covered male genitals in a discernibly turgid state.
So offensive on its face as to affront current standards of decency.
Includes any of the following described sexual conduct if depicted
or described in a patently offensive way:
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.
Sadomasochistic abuse, meaning flagellation or torture by or upon a
person who is nude or clad in undergarments or in a revealing costume or the
condition of being fettered, bound or otherwise physically restrained on the
one so clothed.
Masturbation, excretory functions and lewd exhibition of the genitals.
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 apparent sexual stimulation or gratification.
Male or female genitals in a state of sexual stimulation or arousal.
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.
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 a specially susceptible
audience or clearly defined deviant sexual group, the appeal of the subject
matter shall be judged with reference to such audience or group.
Includes any book, magazine, article, pamphlet, writing, printing,
illustration, picture, sound recording, video tape 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.
Serious literary, artistic, political or scientific value.
Community standards of decency.
A.
Any and every place in the Borough of Mount Oliver where
lewd motion-picture films are publicly exhibited or possessed for the purpose
of such exhibition; and any and every place in the Borough of Mount Oliver
where a lewd motion-picture film is publicly or repeatedly exhibited, or possessed
for the purpose of such exhibitions, is a public nuisance.
B.
Any and every lewd motion-picture film which is publicly exhibited or possessed for such purposes 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 theater 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 § 55-7 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 of Mount Oliver 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 chapter and a true and correct copy of the resolution and order of summary abatement provided for in § 55-7 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,
assignation 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 chapter and a true and correct copy of the resolution and order of summary abatement provided for in § 55-7 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.
A.
Upon and after receiving notice through 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 § 55-7 hereof, any and every person who shall own legal or equitable title to the real estate or who shall own legal or equitable title to the lease either as lessor or lessee or own, maintain, manage or conduct a place in the Borough of Mount Oliver which is declared to be a public nuisance as set forth and stated in § 55-3, 55-4 or 55-5 of this chapter is deemed to be a person who has knowledge of such nuisance for the purpose of this chapter, and is, therefore, responsible for its maintenance and shall be liable therefor.
Upon a specific finding that a public nuisance as defined in § 55-3, 55-4 or 55-5 of this chapter exists in the Borough of Mount Oliver, the Borough Council, in applying the provisions of this chapter 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 lewd, and the basis for the finding by the Borough Council
that:
(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 lewd;
(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 for 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.
D.
Order all persons described in § 55-6A hereof to summarily abate such public nuisance within twenty-four (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 said premises for the purposes of lewdness, assignation or prostitution, or causing the same to be terminated, and notifying the Borough Secretary 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 § 55-9 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 § 55-6A that:
(1)
The Borough Council has determined that a public nuisance presently exists at such place and address and that, under § 55-6A 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 twenty-four (24) hours, the Borough Council shall order the Borough Solicitor as provided for under § 55-9 hereof, to commence necessary legal proceedings naming such persons as defendants in a civil action to abate the same judicially under § 55-7 of this chapter and that under § 55-8A 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 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 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 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 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 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.
A.
Upon judgment for the Borough of Mount Oliver 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 from activities which have been declared to be a public nuisance under § 55-3C, 55-4C or 55-5B of this chapter. Such moneys or their equivalent and any valuable consideration received shall be forfeited to the general fund of the Borough of Mount Oliver or to the Borough of Mount Oliver as property of the Borough of Mount Oliver 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
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.
If the nuisance as determined by § 55-7 of this chapter has not been abated in accordance therewith, the Borough Solicitor shall, not later than seven (7) days after service of such notice as required in § 55-7 hereof, commence an action in the Court of Common Pleas of Allegheny County seeking the following relief:
A.
An order of court declaring:
B.
An order of court for 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 said nuisance receive notice of the finding by the Borough Council
by resolution that the public nuisance exists, and a judgment that such moneys
or valuable consideration are a public nuisance under this chapter.
C.
An order of court directing 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 Mount Oliver
or as property belonging to the Borough of Mount Oliver.
D.
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 Mount Oliver and such other injunctive
relief as the court may order.
E.
An order of court directing that all the named lewd publications
or copies or reproductions thereof be forfeited as contraband under this chapter.
F.
A judgment in favor of the Borough of Mount Oliver for
all costs therein expended, including investigative costs, court costs, reasonable
attorney's fees and such other expenses as are provided for herein.
G.
Such other relief as the court shall deem proper.
Any person, firm or corporation who or which shall violate any of the
provisions of this chapter shall be punished by a fine not exceeding one thousand
dollars ($1,000.), plus costs of prosecution, and in default of payment of
said fine or costs, shall be subject to a term of imprisonment not exceeding
thirty (30) days.
