Borough of Mount Oliver, PA
Allegheny County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Borough Council of the Borough of Mount Oliver 4-17-1978 as Ord. No. 660. Amendments noted where applicable.]
GENERAL REFERENCES
Health clubs and massage technicians — See Ch. 132.
Zoning-- See Ch. 260.

§ 55-1 Purpose; declaration of nuisance.

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.

§ 55-2 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:
COMMUNITY STANDARDS
The standards of the community from which the jury is drawn or could be drawn if it were the trier of the facts.
KNOWLEDGE or KNOWLEDGE OF SUCH NUISANCE
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.
LEWD
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:
A. 
The average person, applying contemporary community standards, would find that the matter, taken as a whole, appeals to the prurient interest;
B. 
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
C. 
The matter, taken as a whole, lacks serious social value.
MASSAGE
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.
MASSAGE PARLOR
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.
MATTER
A motion-picture film or a publication, or both.
A. 
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
B. 
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.
C. 
Exception. The words "model studio" do not include:
(1) 
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;
(2) 
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
(3) 
Any studio operated by a tax-exempt nonprofit corporation devoted to the development of art and its appreciation.
MOTION-PICTURE FILM
Includes any:
A. 
Film or plate negative.
B. 
Film or plate positive.
C. 
Film designed to be projected on a screen for exhibition.
D. 
Films or glass slides or transparencies, either in negative or positive form, designed for exhibition by projection on a screen.
E. 
Video tape or any other medium used to electronically reproduce images on a screen.
NUDE
Includes:
A. 
Completely without clothing; or
B. 
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.
PATENTLY OFFENSIVE
So offensive on its face as to affront current standards of decency.
PATENTLY OFFENSIVE SEXUAL CONDUCT
Includes any of the following described sexual conduct if depicted or described in a patently offensive way:
A. 
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.
B. 
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.
C. 
Masturbation, excretory functions and lewd exhibition of the genitals.
D. 
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.
E. 
Male or female genitals in a state of sexual stimulation or arousal.
PERSON
Any individual, partnership, firm, association, corporation or other legal entity.
PLACE
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.
PRURIENT INTEREST
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.
PUBLICATION
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.
SALE
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 SOCIAL VALUE
Serious literary, artistic, political or scientific value.
STANDARDS OF DECENCY
Community standards of decency.

§ 55-3 Motion-picture films and theaters.

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.

§ 55-4 Sale of publications.

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.

§ 55-5 Massage parlors or model studios.

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.

§ 55-6 Presumption of knowledge of nuisance; responsibility for abatement.

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.
B. 
The places and subject matter declared to be public nuisances under § 55-3, 55-4 or 55-5 shall be abated as provided for herein.

§ 55-7 Action to be taken by the Borough Council.

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:
(a) 
Such film is publicly or repeatedly exhibited in the course of business; or
(b) 
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:
(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.
(3) 
In the case of a massage parlor or model studio, such shall include a recitation of:
(a) 
The particular acts of lewdness, assignation or prostitution which have occurred; and
(b) 
The basis for the finding by the Borough Council that such acts occur in the course of business.
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.

§ 55-8 Forfeiture to the general fund of the municipality; cost of abatement; manner of collection.

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:
(1) 
Investigative costs.
(2) 
Court costs.
(3) 
Reasonable attorney's fees arising out of the preparation for and trial of the case, and appeals therefrom, and other costs allowed on appeal.
(4) 
Printing costs of trial and appellate briefs and all other papers filed in such proceeding.
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.

§ 55-9 Action to be taken by Borough Solicitor.

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:
(1) 
That the matter named by the Borough Council is lewd as defined herein.
(2) 
That the matter found to be lewd is or are a public nuisance per se under this chapter and such resolution.
(3) 
That such place named by the Borough Council is a public nuisance under this chapter and such resolution.
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.

§ 55-10 Violations and penalties. [1]

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.
[1]
Editor's Note: Added at time of adoption of Code; see Ch. 1, General Provisions, Art. I.