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HomeMy WebLinkAboutNS-1287 ORDINANCE NO. NS-1287 ~TE: AN ORDINANCE OF THE CITY OF SANTA ANA ADDING SECTIONS 12-100 THROUGH 12-105 TO THE SANTA ANA MUNICIPAL CODE DECLAR- ING THE COMMERCIAL EXPLOITATION OF PATENTLY OFFENSIVE SEXUAL CONDUCT IN LEWD FILMS AND THEATRES EXHIBITING THE SAME TO BE A PUBLIC NUISANCE AND ORDER- ING THEIR ABATE~IENT KLG: rs 12-31-75 REPEALED BY: ORDIB Ns 5- I-7- 1 THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: SECTION 1: That the Santa Ana Municipal Code is hereby amended by adding a section, to be numbered 12-100, which said section reads as follows: Sec.12-100. Purpose and Effect. The City Council finds that the crass commercial exploitation of explicit sexual conduct through the public exhibition of lewd films constitutes a debasement and distortion of a sensitive key relationship of human existence, central to family life, community welfare and the develop- ment of human personality; is indecent and offensive to the senses and interferes with the comfortable enjoyment of life and property, in that such interferes with the inter- est of the public in the quality of life and total community environment, the tone of commerce in the City, property values, and the public safety; and that the continued opera- tion of such activities is detrimental to the best health, safety, convenience, good morals and general welfare of the City of Santa Ana, and of the residents, citizens, inhabi- tants and businesses thereof. Pursuant to ~§ 38771, 38773 and 38773.5 of the Government Code, ~ 731 of the Code of Civil Procedure, and ~ 3479, 3480, 3491 and 3494 of the Civil Code, the City Council hereby declares such activi- ties to be a public nuisance, and herein establishes pro- cedures for the abatement thereof. This ordinance shall apply to existing establishments which are presently engaged in the type of activity herein declared to be a public nuisance. SECTION 2: That the Santa Ana Municipal Code is hereby amended by adding a section, to be numbered 12-101, which said section reads as follows: Sec. 12-101. Definitions. (A) "Lewd Film" means any motion picture film: (1) which the average person, applying contem- porary community standards, would find, when considered as a whole, appeals to the prurient interest; and (2) which depicts or describes patently offen- sive representations or descriptions of: (a) ultimate sexual acts, normal or per- verted, actual or simulated; or (b) masturbation, excretory functions, or lewd exhibition of the genitals or genital area. Ordinance No. NS-1287 Page Two Nothing herein contained is intended to include or pro- scribe any film which, when considered as a whole, and in the context in which it is used, possesses serious literary, artistic, political or scientific value. (B) "Place" includes, but is not limited to, any building, structure or place, or any separate part or portion thereof, whether permanent or not, or the ground itself. (C) "Motion picture film" shall include any: (1) film or plate negative; (2) film or plate positive; (3) film designed to be projected on a screen for exhibition; (4) films, glass slides or transparencies, in negative or positive form designed for exhibition by projection on a screen. either (D) "Person" means any individual, partnership, firm, association, corporation, or other legal entity. (E) "Knowledge" means having knowledge of the con- tents and character of the patently offensive sexual con- duct which appears in such lewd film. SECTION 3: That the Santa Ana Municipal Code is hereby amended by adding a section, to be numbered 12-102, which said section reads as follows: Sec. 12-102. Lewd Films and Theatres Exhibiting the Same Declared a Public Nuisance; Abatement Thereof. (A) Any and every place in the City of Santa Ana where: (1) lewd films are publicly exhibited as a regular course of business, or possessed for the purpose of such exhibition; or (2) a lewd film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibitions, is a public nuisance. (B) Any and every lewd film which is publicly exhi- bited or possessed for such purpose in the City of Santa Ana is a public nuisance per se. (C) From and after service on the theatre, or its manager, or acting manager, or person then in charge of such place, of a certified copy of this ordinance and a certified copy of the Resolution and order of summary abatement pro- vided for in Section 12-103 hereof, all moneys paid there- after as admission price to such exhibitions are also de- clared to be a public nuisance, as personal property used in conducting and maintaining a declared public nuisance. (D) Upon receiving notice through service of a certified copy of this ordinance and of a certified copy of the Resolution and order of summary abatement provided for in Section 12-103 hereof, any and every person who shall own, Ordinance NO. NS-1287 Page Three legally or equitably, lease, maintain, manage, conduct, or operate a place in the City of Santa Ana which is declared to be a public nuisance as set forth and stated in Sub- section (A) of this Section 12-102 is deemed to be a person who has knowledge of such nuisance for the purpose of this ordinance and is, thereafter, responsible for its mainte- nance, and shall be liable therefor. (E) The places and subject matter declared to be public nuisances under Subsections (A) through (C) of this section shall be abated pursuant to Government Code ~S 38773 and 38773.5, Code of Civil Procedure S731, and Civil Code ~§ 3491 and 3494, as provided for herein. SECTION 4: That the Santa Ana Municipal Code is hereby amended by adding a section, to be numbered 12-103, which said section reads as follows: Sec. 12-103. Action to be Taken by City Council. Upon a specific finding that a public nuisance, as defined in Section 12-102 hereof, exists in the City of Santa Aha, the City Council, in applying the provisions of this ordinance 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 real property which constitutes the nuisance. (C) Set forth the evidentiary facts considered by the City Council in arriving at its factual determination that a lewd film or films, as defined in Section 12-101(A) hereof, are publicly exhibited or possessed for exhibition at such real property and are public nuisances as declared herein, including a recitation of the particular sexual conduct and acts which the City Council finds are patently offensive. (D) Order all persons named in Section 12-102 (D) hereof to summarily abate such public nuisances immediately, by terminating the exhibitions of such lewd film or films, or causing the same to be terminated, and voluntarily sur- rendering possession of the same to the court having juris- diction of the legal proceedings brought by the City Attorney, pursuant to Sections 12-103 (E) and 12-105 of this ordi- nance, and notifying the City Clerk and City Council of compliance therewith by sworn affidavit, as authorized by Government Code ~ 38773, and as ordered by the action of the City Council in such resolution. (E) Order the City Attorney to proceed as directed in Section 12-105 hereof and do all the things directed therein 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 named in Section 12-102(D) that: (1) The City Council has determined that a public nuisance presently exists at such place and address, and that, under Section 12-102 (D) hereof, they are deemed to have knowledge thereof and are responsible therefor. ordinance No. NS-1287 Page Four (2) The City Council has ordered the City Attorney, as provided for under Section 12-105 hereof, to commence legal proceedings naming such persons as defendants in a civil action to abate the same judicially under Civil Code § 3494 and Code of Civil Procedure ~ 731, as a supplemental remedy to the summary abatement process, authorized by Govern- ment Code ~ 38773 and ordered by the City Council in Section 12-103 hereof and that under subsections (A) and (B) of Sec. 12-104, the costs of abatement of such civil abatement action filed under Civil Code ~ 3494 and Code of Civil Procedure ~731, 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 ordinance, be made a lien against such property and a personal obligation against the theatre operator and property owner. (3) Ail films being used in conducting and maintaining such public nuisance are contraband and the subject of forfeiture. (4) From and after service on the theatre or its manager or acting manager, or person then in charge of such place, of a certified copy of this ordinance and a certi- fied copy of such Resolution any and all moneys paid as admis- sion price to such exhibitions 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 certified copy of said Resolution and a certified copy of this ordinance be delivered in any manner normally used to effectuate personal service of process as directed in Code of civil Procedure §§ 415.10 through 416.90, 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. SECTION 5: That the Santa Ana Municipal Code, is hereby amended by adding a section, to be numbered 12-104, which said section reads as follows: Sec. 12-104. Action brought Pursuant to Civil Code ~§3494, et al.; Forfeiture to the Gen- eral Fund of the City, Cost of Abate- ment; Manner of Collection. (A) Upon judgment against the operators of the theatre in legal proceedings brought pursuant to Civil Code ~§ 3491 and 3494, and Code of Civil Procedure ~731, an accoun- ting shall be made by such defendant or defendants of all moneys received by them which have been declared to be a public nuis- ance under Section 12-102 (C) of this ordinance. Such moneys or their equivalent shall be forfeited to the general fund of the City of Santa Aha. lowing: (B) The cost of abatement shall include the fol- (1) investigative costs. (2) court costs. Ordinance No. NS-1287 Page Five (3) reasonable attorney's fees arising out of the preparation for, and trial of the cause, and appeals therefrom. (4) printing costs of trial and appellate briefs, and all other papers filed in such proceedings. 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 under Civil Code ~3494 and Code of Civil Procedure ~ 731, such shall, by special ordinance, be made a lien against such property and a personal obligation against the theatre operator and property owner 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. SECTION 6: That the Santa Ana Municipal Code, is hereby amended by adding a section, to be numbered 12-105, which said section reads as follows: Sec. 12-105. Action to be Taken by City Attorney. Upon a specific finding by Resolution of the City Council of the fact that a public nuisance exists at a particular location, the City Attorney shall: (A) Not later than ten days after passage of said resolution, commence legal proceedings under Civil Code ~ 3491 and 3494 and Code of Civil Procedure §731, by the filing of a civil action seeking the following relief: (1) A Declaratory Judgment that the motion picture or pictures named by the City Council are lewd films. (2) A Declaratory Judgment that the films found to be lewd are public nuisances under this ordinace and such Resolution. (3) A Declaratory Judgment that the place named by the City Council where the film or films are being exhibited is a public nuisance under this ordinance and such Resolution. (4) An accounting of all moneys paid as admis- sion price to the operators of the theatre from and after the time the persons maintaining said nuisance receive notice of the finding by the City Council that the public nuisance exists, and a Declaratory Judgment that such moneys are a public nuisance under this ordinance. (5) An Order that all admission price moneys derived from the showing of the named lewd film or films and enumerated in the Court ordered accounting be forfeited to the general fund of the City of Santa Ana as contraband. Ordinance No. NS-1287 Page Six (6) An injunction enjoining and restraining all persons guilty of maintaining said nuisance from exhibiting in public the named lewd films at any time in the future in the City of Santa Ana. (7) An Order that all positive prints of the named lewd films be forfeited as contraband under this ordinance. (8) Judgment for the City of Santa Ana for all costs therein expended, including investigative costs, court costs, reasonable attorney's fees, and such other expenses as are provided for herein. (9) Ail other relief as the Court may deem proper. (B) File a notice of the pendency of the action in the office of the County Recorder of the County of Orange, pursuant to Code of Civil Procedure § 409, giving the names of the parties, the object of the action, and a description of the property thereby affected. SECTION 7: If any section, subsection, sentence, clause, phras~ or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordi- nance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, clauses, phrases or portions be declared invalid or unconstitutional. SECTION 8: Neither the adoption of this ordinance nor the repeal hereby of any ordinance shall in any manner affect the prosecution for violation of ordinances, which vio- lations were committed prior to the effective date hereof, nor be construed as affecting any of the provisions of such ordinance relating to the collection of any such license or penalty or the penal provisions applicable to any violation thereof, nor to affect the validity of any bond or case depo- sit in lieu thereof, required to be posted, filed or deposited pursuant to any ordinance and all rights and obligations there- under appertaining shall continue in full force and effect. SECTION 9: The Clerk of the Council shall certify to the passage and adoption of this ordinance and shall cause the same to be published in the official newspaper of the City of Santa Ana within fifteen (15) days after its adoption. SECTION 10: This ordinance shall take effect upon posting or publication, whichever is earlier. Ordinance No. NS-1287 Page Seven PASSED AND ADOPTED by the City Council of the City of Santa Ana at its re§ular meeting held on the 19th day of January , 1976. ATTEST: ~O~NCEI. MALONI~ STATE OF CALIFORNIA )i COUNTY OF ORANGE ) ss. CITY OF SANTA ANA ) I, FLORENCE I. MALONE, do hereby certify that I am the Clerk of the Council of the City of Santa Ana; that the foregoing Ordinance was introduced to said Council at its regular meeting held on the 5~h day of 3anuary , 1976, and was again considered by said Council at its regular meeting held on the =~.gJLb_ day of January , 1976, and was at said meetzng passed and adopted by the following vote, to wit: AYES, NOES, COUNCILMEN: Yamamoto, Evans, Bricken, Garthe, Brandt, Ward COUNCILMEN: None 0rtiz, ABSENT, COUNCILMEN: None ~ORENCEI. MALONE APPROVED AS TO FORM: KEITH L. GOW, CITY ATTORNEY