[HISTORY: Adopted by the Borough Council of the Borough of Wilkinsburg
12-10-1979 as Ord. No. 2150. Amendments noted where applicable.]
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 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.
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.
Any dramatic, musical or comedic production performed in the presence
of a live audience.
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, live theater production, publication or all
three (3).
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.
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.
Exception. The words "model studio" do not include:
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 so operating 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; or
Any place where there is conducted the business of furnishing, providing or procuring figure models solely for any studio described in Subsection (1) of this subsection.
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; video tape; or any other medium used to electronically
reproduce images on a screen.
The Borough of Wilkinsburg.
Includes the following:
Completely without clothing; or
With the human male or female genitals, pubic area or buttocks with
less than a full opaque covering or the showing of the female breast 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 considerations, 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.Â
Any and every place in the municipality 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 municipality
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.
B.Â
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.
C.Â
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 § 103-7 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.
A.Â
Any and every place in the municipality where lewd publications
constitute a part of the stock-in-trade is a public nuisance.
B.Â
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.Â
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 § 103-7 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.Â
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.Â
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 § 103-7 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.Â
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 § 103-7 hereof, any and every person who shall own, legally or equitably, lease, maintain, manage, conduct or operate a place in the municipality which is declared to be a public nuisance as set forth and stated in § 103-2, 103-3 or 103-4 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 of the Borough of Wilkinsburg, or such other agency as may be designated by resolution of Council, shall investigate all complaints that activity constituting a public nuisance, as defined in § 103-2, 103-3 or 103-4 of this chapter, exists in the municipality and make recommendations as to the application of this chapter to such activity.
Upon the recommendation of the designated agency and/or 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:
A.Â
Declare the fact that such nuisance exists.
B.Â
Set forth the description or legal description and street
address of the place which constitutes the nuisance.
C.Â
Set forth the evidentiary facts considered by the Council
in arriving at its factual determination.
(1)Â
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.
(2)Â
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.
(3)Â
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
Council that such acts occur in the course of business.
D.Â
Order all persons described in § 103-5A hereof to summarily abate such public nuisance within twenty-four (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.
E.Â
Order the Municipal Solicitor to proceed to 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.Â
Inform and give notice to persons designated in § 103-5A that:
(1)Â
The Council has determined that a public nuisance presently exists at such place and address, and that, under § 103-5A of said chapter, they are deemed to have knowledge thereof and are responsible therefor.
(2)Â
In the event the order of the municipality is not complied with within twenty-four (24) hours, the Council has ordered the Municipal Solicitor, as provided for under § 103-9 hereof, to commence necessary legal proceedings naming such persons as defendants in a civil action to abate the public nuisance judicially under § 103-7 of this chapter, and that, under § 103-8A 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 that, 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 deemed to be in violation of this chapter.
(3)Â
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)Â
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 or production of such lewd live theater
productions, 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.Â
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.Â
Upon judgment for the municipality 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 § 103-2C, 103-3C or 103-4B of this chapter. Such moneys or their equivalent and any valuable consideration received shall be forfeited to the general fund of the municipality or to the municipality as property of the municipality if any valuable consideration received is not money.
B.Â
The cost of abatement shall include the following:
C.Â
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, 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 Council that a public nuisance
exists at a particular location, the Municipal Solicitor, with the approval
of the Council, is authorized to take whatever action is appropriate to carry
out this chapter.
Any person, firm or corporation who or which shall violate any of the
provisions of this chapter shall, upon conviction thereof, be subject to a
fine not exceeding six hundred dollars ($600.) plus costs of prosecution and,
in default of payment thereof, shall be sentenced to a term of imprisonment
not exceeding thirty (30) days.
