[HISTORY: Adopted by the Borough Council of the Borough of Oakmont 2-9-1981
by Ord. No. 06-81. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 205.
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 Oakmont 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 or publication or
knowledge of the acts of lewdness, assignation or prostitution which occur
on the premises.
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 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.
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
municipality, 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.
Includes:
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 the following:
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 B(1)
of this definition; or
Any studio operated by a tax exempt, nonprofit corporation devoted to
the development of art and its appreciation.
Includes any of the following:
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.
Videotape 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 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 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.
A.
Any and every place in the Borough of Oakmont where lewd
films are publicly exhibited or possessed for the purpose of such exhibition
and any and every place in the Borough of Oakmont 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 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 § 136-7 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 Oakmont 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 § 136-7 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 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 chapter and a true and correct copy of the resolution and order of summary abatement provided for in § 136-7 hereof, all moneys or other valuable consideration paid for services rendered to customers is 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 § 136-7 hereof, any and every person who shall own, legally or equitably, lease, maintain, manage, conduct or operate a place in the Borough of Oakmont which is declared to be a public nuisance as set forth and stated in § 136-3, 136-4 or 136-5 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 § 136-3, 136-4 or 136-5 of this chapter, exists in the Borough of Oakmont, 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 patently offensive and the basis for the finding by the
Borough Council that such films are publicly exhibited in the course of business
or that 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 the particular publications or types of publications
considered by the Borough Council and those which the Borough Council finds
to be patently offensive and 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 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 the particular acts of lewdness, assignation
or prostitution which have occurred and the basis for the finding by the Borough
Council that such acts occur in the course of business.
D.
Order all persons described in § 136-6A 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 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 Manager 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
§ 136-34 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 § 136-6A that:
(1)
The Borough Council has determined that a public nuisance presently exists at such place and address and that, under § 136-6A of said ordinance, 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, the Borough Council has ordered the Borough Solicitor, as provided for under § 136-9 hereof, to commence necessary legal proceedings naming such persons as defendants in a civil action to abate the same judicially under § 136-7 of this chapter and that, under § 136-8A 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 Oakmont 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 § 136-3C, 136-4C or 136-5B of this chapter. Such moneys or their equivalent and any valuable consideration received shall be forfeited to the general fund of the Borough of Oakmont or to the Borough of Oakmont as property of the Borough of Oakmont if any valuable consideration received is 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.
Upon a specific finding by resolution of the Municipal 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 chapter and such resolution.
C.
A declaratory judgment that each place named by the Borough
Council is a public nuisance under this chapter 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 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.
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 Oakmont or as property
belonging to the Borough of Oakmont.
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 Oakmont, 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 chapter.
H.
Judgment for the Borough of Oakmont 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.
Any person violating any of the provisions of this chapter shall, upon
conviction thereof, be punishable by a fine of not more than $600, plus costs
of prosecution, and in default of payment of such fine and costs by imprisonment
for not more than 30 days.
