[HISTORY: Adopted by the Council of the Borough of Baden 12-16-1981 by Ord. No. 734. Amendments noted where applicable.]
Zoning — See Ch. 193.
As used in this chapter, the following terms shall have the meanings indicated:
- KNOWLEDGE or KNOWLEDGE OF SUCH NUISANCE
- 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 obscenity, assignation or prostitution which occur in any place.
- LIVE THEATER PRODUCTION
- 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.
- MASSAGE PARLOR
- Any building or structure or portion thereof located within the Borough, 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.
- A. 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; or
- B. 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.
- C. Exception. The words "model studio" do not include:
- (1) 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
- (2) Any place where there is conducted the business of furnishing, providing or procuring figure models solely for any studio described in Subsection C(1) of this definition.
- 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, glass slides or transparencies, either in negative or positive form, designed for exhibition by projection on a screen; or
- E. Video tape or any other medium used to electronically reproduce images on a screen.
- A. Completely without clothing; or
- B. 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 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.
- OBSCENE MATTER
- Any matter which:
- 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 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.
Any and every place in the Borough where obscene 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 Borough where obscene publications are publicly disseminated or sold or possessed for the purpose of such dissemination, is a public nuisance.
Any and every obscene motion-picture film or live theater production which is publicly exhibited, and any and every obscene publication which is publicly displayed, disseminated or sold or possessed for such purpose, is a public nuisance per se.
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 summons and complaint to abate a nuisance, all moneys paid thereafter as admission price to such exhibitions or productions, or purchase price of such publications, are also declared to be a public nuisance, as personal property used in conducting and maintaining a declared public nuisance.
Every massage parlor or model studio which, as a regular course of business, is used for the purposes of obscenity, assignation or prostitution, and every such massage parlor or model studio in or upon which acts of obscenity, assignation or prostitution, are held or occur, is a public nuisance which shall be enjoined, abated and prevented.
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 summons and complaint to abate a nuisance, 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.
Upon and after receiving notice through service of a true and correct copy of this chapter and a true and correct copy of the summons and complaint to abate a nuisance or notice by the Borough Solicitor of the character of the obscene film, production, publication or place, any and every person who shall own, legally or equitably, lease, maintain, manage, conduct or operate a place in the Borough which is declared to be a public nuisance as set forth and stated in §§ 129-2 or 129-3 of this chapter is deemed to be a person who has knowledge of such nuisance for the purpose of this chapter and may, thereafter, be responsible for its maintenance and liable therefor.
The Borough Solicitor or any citizen of the Commonwealth of Pennsylvania resident within the Borough may maintain an action of an equitable nature in the name of the Borough upon the relation of such Borough Solicitor or citizen to abate a nuisance.
No bond shall be required of the Borough Solicitor. If such action is instituted by a private citizen, a bond shall be required in the amount of not less than $500 to secure to the defendants the proximate damages which may be sustained, including attorney's fees, if any court finds that there were no reasonable grounds for said action.
The Borough Solicitor shall have the right to present arguments and authorities on behalf of either party.
Money damages may be recovered:
For compensation for loss or harm suffered to person or property by the Borough or private citizen flowing from such nuisance.
As exemplary or punitive damages for the sake of example or to punish the offender, where it is shown that the offender has been guilty of malice. "Malice" means an intent to do a wrongful act, that is, an intent to maintain, permit or allow a nuisance to exist.
Preliminary and permanent injunctions.
Preliminary and permanent injunctions may be issued to prevent the further maintenance of a nuisance and to prevent the further sale or exhibition of obscene motion-picture films, live theater productions and publications. The procedure for obtaining such injunctions shall be governed by the rules of civil procedure, preserving the right of trial by jury upon the application for permanent injunction.
Upon the application for preliminary injunction, the court shall set the matter for a hearing no earlier than two days and not later than five days from the date of service of the summons and complaint.
Upon the trial on the merits of the permanent injunction, if the court finds a place to be a nuisance, the court may issue an order closing the place to all uses and purposes for the period of one year. If the offenders or persons owning, in control or in charge of such place certify that the nuisance has been abated and that the films, productions or publications found to be obscene shall not be exhibited, sold or otherwise disseminated and, at the discretion of the court, post a bond in an amount not to exceed the value of the personal property possessed or contained at such place for the maintenance of the nuisance, the court may release such person or persons from the closure order. The release shall remain in effect for one year or until the nuisance is found to exist at the place before the expiration of one year. The bond shall be deposited with the court prior to the release of any closure order and shall be returned to the person posting said bond, without interest, at the expiration of one year, provided that the nuisance is not maintained or reestablished within that year.
If the existence of the nuisance is established on the trial, a judgment shall be entered which shall permanently enjoin the defendants, and any other person with notice or knowledge of the action and judgment, from maintaining the nuisance at said place and the defendants from maintaining such nuisance elsewhere, and the entire expenses of such abatement action shall be recovered by the plaintiff as part of his costs.
Cost of abatement.
The cost of abatement shall include the following:
Such cost of abatement may be made a special assessment against the place or the parcel of land upon which such place is located. 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 judgment for the plaintiff 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 § 129-2 or 129-3 of this chapter. Such moneys or their equivalent and any valuable consideration received shall be forfeited to the general fund of the Borough or to the Borough as property of the Borough if any valuable consideration received is not money.
[Added 5-15-1985 by Ord. No. 759]
Any person who shall violate any provision of this chapter shall, upon conviction thereof, be punishable by a fine of not more than $300 and costs of such proceedings or, upon default of payment of such fine and costs, by imprisonment in the county jail for a term of not more than 30 days.