[HISTORY: Adopted by the Borough Council of the Borough of
Irwin as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 260.
[Adopted 3-28-1977 by Ord. No. 665 (Ch. 6, Part 1, of the
1993 Code)]
The Borough finds that a sensitive, key relationship of human
existence, central to family life, community welfare and the development
of human personality, is debased and distorted by crass commercial
exploitation of sex and that the regulation of crass commercial exploitation
of sex is necessary for the safety, morals and general welfare of
the Borough.
It shall be unlawful and a violation of this article for any
person to knowingly sell or exhibit for monetary or other valuable
consideration any obscene matter or any obscene motion-picture film
in any place within the Borough.
As used in this article, the following terms shall have the
meanings indicated:
To offer or expose to view, present for inspection, display,
to place on show, to cause or allow to be seen, to present as a public
entertainment for valuable consideration.
Having general knowledge of, or reason to know, or a belief
or ground for belief which warrants further inspection of the character
and content of any material described herein which is reasonably susceptible
of examination.
A motion-picture film as herein defined, book, magazine,
pamphlet, newspaper, story paper, paper, comic book, writing, drawing,
photograph, figure or image or any written or printed matter of an
obscene nature.
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.
Videotape or any other medium used to electronically reproduce
images on a screen.
Any matter which:
The average person, applying contemporary community standards,
would find, when considered as a whole, appeals to the prurient interest.
Nothing herein contained is intended to include or describe
any matter which, when taken as a whole, possesses serious literary,
artistic, political or scientific value.
Any motion-picture film which:
The average person, applying contemporary community standards,
would find, when considered as a whole, appeals to the prurient interest.
Nothing herein contained is intended to include or describe
any motion-picture film which, when taken as a whole, possesses serious
literary, artistic, political or scientific value.
Any individual, partnership, firm, association, corporation
or other 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.
To pass 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, obscene matter or an obscene motion-picture film.
[Amended 7-7-1993 by Ord. No. 791]
Any person who shall violate any provision of this article shall,
upon conviction thereof, be sentenced to pay a fine not exceeding
$600 and costs and, in default of payment thereof, shall be subject
to imprisonment for a term not to exceed 30 days. Each day that a
violation of this article continues shall constitute a separate offense.
A.
Each and every place in the Borough where the sale or exhibition
of obscene matter or obscene motion-picture films occurs is hereby
declared to be a public nuisance.
B.
The sale or exhibition of obscene matter or obscene motion-picture
films is hereby declared to be a public nuisance.
C.
Any obscene matter and any obscene motion-picture film sold or exhibited
in the Borough is hereby declared to be a public nuisance.
The owner, owners, tenants, lessees, occupants, and/or any other person in charge of, or in control of, any place within the limits of the Borough upon which a public nuisance, as hereinabove defined, exists shall jointly and severally be responsible for the abatement of the nuisance and shall, upon notification by the Borough as herein provided, promptly abate such nuisance. Provided, however, that the failure to abate the nuisance shall not subject the owner, owners, tenants, lessees, occupants and any other person in charge of or in control of any place where the nuisance exists to any fine, forfeiture or penalty until such time as a judicial determination of the obscenity of the obscene matter or obscene motion-picture film is made in any action commenced pursuant to § 204-7 of this article.
A.
Whenever a public nuisance exists in the Borough as herein defined,
the Borough shall, by resolution, declare:
(1)
Such public nuisance exists, setting forth the legal description
or street address of the place which constitutes the public nuisance.
(2)
The evidentiary facts considered by the Borough Council in determining
that a public nuisance exists as herein described, including:
(a)
When said declaration of public nuisance is based upon the exhibition
of an obscene motion-picture film or films, a recitation of the particular
sexual conduct and acts which the Borough Council finds patently offensive
and the basis for finding that such film is publicly held for exhibition
at the place declared to be a public nuisance.
(b)
When said declaration of public nuisance is based upon the sale of obscene matter, a recitation of the particular publications or types of publications considered by the Borough Council and which the Borough Council finds to be obscene, as described in § 204-3 of this article, and the basis for finding that such publications are sold at such place.
B.
Upon enactment of the resolution declaring the existence of a public
nuisance as aforesaid, the Borough Council shall order the owner,
owners, tenants, lessees and/or other persons in charge of the place
where the public nuisance exists to abate such public nuisance within
24 hours of service of such order of abatement as hereinafter provided.
C.
A true and correct copy of the resolution as aforesaid and the order
of abatement shall be personally served upon the owner, owners, tenants,
lessees, occupants and/or persons in charge of the place where such
public nuisance exists within 48 hours of the passage of such resolution
by the Borough Council. If service as hereinabove described cannot
be effectuated within 48 hours as aforesaid, it shall be sufficient
notice hereunder to post the premises where such public nuisance exists
by affixing a true and correct copy of said resolution and order of
abatement to a conspicuous part of the place.
Upon a specific finding by resolution of the Borough of the
existence of a public nuisance at a particular place, the Borough
Solicitor shall, within 48 hours of service of said resolution and
order of abatement upon the persons hereinabove described, commence
legal proceedings by the filing of a civil action seeking the following
relief:
A.
A declaratory judgment that the matter or motion-picture film named or described by the Borough Council is obscene as defined in § 204-3 of this article.
B.
A declaratory judgment that the place named by the Borough Council
is a public nuisance under this article and such resolution.
C.
A declaratory judgment that the obscene matter or obscene motion-picture
film named or described by the Borough Council is a public nuisance.
D.
A mandatory injunction ordering abatement of said public nuisance.
E.
All such other relief as the court may deem just and proper.
A.
The cost of abatement upon judgment for the Borough in legal proceedings
commenced by the Borough Solicitor pursuant to this article shall
include investigative costs, court costs, reasonable attorney's
fees arising out of the preparation for and trial of the case and
appeals therefrom, and other costs allowed on appeal, and printing
costs of trial and appellate briefs and all other papers filed in
such proceeding.
B.
Upon judgment for the Borough, costs of abatement are hereby made
a special assessment against the parcel of land upon which such public
nuisance is maintained and a personal obligation against any person,
persons, firm, association, partnership, corporation or other entity
having a duty to abate such nuisance. Upon its determination in a
civil action, such costs of abatement 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 having a duty to abate such nuisance, 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.
[Adopted 10-18-1977 by Ord. No. 669 (Ch. 6, Part 2, of the
1993 Code)]
The Borough Council finds that a sensitive key relationship
of human existence, central to family life, community welfare and
the development of human personality, is debased and distorted by
crass commercial exploitation of sex when a massage parlor is used
for the purpose of lewdness, assignation, illicit sexual conduct or
prostitution, and that the regulation of said crass commercial exploitation
of sex is necessary for the safety, morals and general welfare of
the Borough.
It shall be unlawful for any person to knowingly establish,
own, lease, manage, operate or work in a massage parlor which is used
for the purposes of lewdness, assignation, illicit sexual conduct
or prostitution within the Borough.
As used in this article, the following terms shall have the
meanings indicated:
1) Masturbation; 2) sexual intercourse, whether genital-genital,
oral-genital, oral-anal, or anal-genital; 3) any erotic fondling or
touching of the covered or uncovered genitals, buttocks, pubic area,
or any part thereof, the breasts of the female, whether the conduct
described in (1) through (3) is engaged in alone or between members
of the same or opposite sex.
Having general knowledge of, or reason to know, or a belief
or ground for belief which warrants further inspection of the character
and content of any fact described herein which is reasonably susceptible
of examination.
Behavior, conduct or activity which falls within one of the
following characterizations:
Any method of treating the superficial soft parts of the
human body for remedial, hygienic or other purposes, consisting of
rubbing, stroking, kneading, tapping, pounding, vibrating or stimulating
with the hands or any instrument, or by the application of air, liquid
or vapor baths of any kind whatever.
Any building, structure or place or any portion thereof located
within the Borough and regardless of whether the place is called a
"sensitivity center," "bathhouse" or any other name where the purpose
of said place is to administer massages for the purpose of providing
sexual arousal or sexual gratification to its customers, clients or
members, with or without the payment of a fee.
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.
Engaging in sexual or deviate sexual intercourse for compensation.
[Amended 7-7-1993 by Ord. No. 791]
Any person who shall violate any provision of this article shall,
upon conviction thereof, be sentenced to pay a fine not exceeding
$600 and costs and, in default of payment thereof, shall be subject
to imprisonment for a term not to exceed 30 days. Each day that a
violation of this article continues shall constitute a separate offense.
Each and every place in the Borough where a massage parlor is
used for the purposes of lewdness, assignation, illicit sexual conduct
or prostitution or upon which acts of lewdness, assignation, illicit
sexual conduct or prostitution are held or occur is hereby declared
to be a public nuisance.
The owner, owners, tenants, lessees, occupants and/or any person in charge of, or in control of, any place within the limits of the Borough upon which a public nuisance as defined in § 204-14 of this article exists shall jointly and severally be responsible for the abatement of the nuisance and shall, upon notification by the Borough as provided in § 204-16 of this article, promptly abate such nuisance. Provided, however, that the failure to abate the nuisance shall not subject the owner, owners, tenants, lessees, occupants and any other person in charge of or in control of any place where the nuisance exists to any fine, forfeiture or penalty until such time as a judicial determination of the lewdness, assignation, illicit sexual conduct or prostitution is made in any action commenced pursuant to § 204-16 of this article.
A.
Whenever a public nuisance exists in the Borough, as defined in § 204-12 of this article, the Borough Council shall, by resolution, declare:
B.
Upon enactment of the resolution declaring the existence of a public
nuisance as aforesaid, the Borough Council shall order the owner,
owners, tenants, lessees and/or other persons in charge of the place
where the public nuisance exists to abate such public nuisance within
24 hours of service of such order of abatement as hereinafter provided.
C.
A true and correct copy of the resolution as aforesaid and the order
of abatement shall be personally served upon the owner, owners, tenants,
lessees, occupants and/or persons in charge of the place where such
public nuisance exists within 48 hours of the passage of such resolution
by the Borough Council. If service as hereinabove described cannot
be effectuated within 48 hours as aforesaid, it shall be sufficient
notice hereunder to post the place where such public nuisance exists
by affixing a true and correct copy of said resolution and order of
abatement to a conspicuous part of the place.
Upon a specific finding by resolution by the Borough of the existence of a public nuisance at a particular place, the Borough Solicitor shall, within 48 hours of service of said resolution and order of abatement upon persons described in § 204-16 of this article, commence legal proceedings by the filing of a civil action seeking the following relief:
A.
A declaratory judgment that the use of a place is for purposes of lewdness, assignation, illicit sexual conduct or prostitution, as defined by § 204-12 of this article.
B.
A declaratory judgment that the place named by the Borough Council
is a public nuisance under this article and such resolution.
C.
A mandatory injunction ordering abatement of said public nuisance.
D.
All such other relief as the court may deem just and proper.
A.
The cost of abatement upon judgment for the Borough in legal proceedings commenced by the Borough Solicitor pursuant to § 204-17 of this article shall include investigative costs, court costs, reasonable attorney's fees arising out of the preparation for and trial of the case and appeals therefrom and other costs allowed on appeal, printing costs of trial and appellate briefs, and all other papers filed in such proceedings.
B.
Upon judgment for the Borough, costs of abatement are hereby made
a special assessment against the parcel of land upon which such public
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 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.
