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HomeMy WebLinkAbout79-098KLG/fm 6/1/79 RESOLUTION NO. 79-98 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA DETERMINING THAT THE REAL PROPERTY AND ACTIVITY KNOWN AS THE MITCHELL BROTHERS' SANTA ANA THEATER, LOCATED AT 1565 WEST 17th STREET, SANTA ANA, CALIFORNIA, IS IN VIOLATION OF ORDINANCE NS 1325 OF THE CITY OF SANTA ANA; DECLARING SUCH ACTIVITY TO BE A PUBLIC NUISANCE, REVOKING ALL LICENSES AND PERMITS, AND ORDERING ABATEMENT; AND ORDERING THE CITY ATTORNEY TO TAKE ALL STEPS NECESSARY TO COMPLY WITH SECTION 12-105 OF THE SANTA ANA 5~NICIPAL CODE. BE IT RESOLVED by the City Council of the City of Santa Ana: Section 1. Pursuant to Section 38771 of the Government Code which authorizes the City Legislative Body to declare by ordinance what constitutes a nuisance, the City Council of Santa Ana did, on the 5th day of January, 1976, adopt Ordinance No. NS-1287 which became effective on the 18th day of February, 1976, and did supersede the same with Ordinance No. NS-1325, adopted as an urgency Ordinance on the 4th day of October, 1976, to become effective immediately upon adoption and as amended by Ordinance No. NS-1452, adopted September 18, 1978. Said Ordinance declares: 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 exhibition, to be a public nuisance. B. Any and every lewd film which is publicly exhibited or possessed for such purpose at a place which is a public nuisance under (A) above, to be 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 certified copy of Ordinance No. NS 1325, as amended, and a certified copy of the Resolution authorized by said Ordinance, all moneys paid thereafter as admission price to such exhibitions are also 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 Ordinance NS 1325, as amended, and of a certified copy of the Resolution authorized by said Ordinance, any and every person who shall own, legally or equitably, lease, maintain, manage, conduct, or operate a place in the City of Santa Aha where lewd films are publicly exhibited, or possessed for the purpose of such exhibition in the regular course of business, or where a single lewd film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition, is deemed to be a person who has knowledge of such nuisance for purposes of said Ordinance and this Resolution and is, thereafter, responsible for its maintenance, and shall be liable therefor. RESOLUTION NO. 79- 98 PAGE TWO Section 2. Pursuant to the provisions of Ordinance NS 1325, as amended, the City Council of Santa Ana makes the following findings of fact concerning the motion picture films which have been and are being exhibited at the "Mitchell Brothers' Santa Ana Theater" and the course of business at said theater: A. Upon the instructions of the Santa Ana City Attorney, a continuous surveillance of the films which were exhibited at the "Mitchell Brothers Santa Ana Theater" was maintained. 1. During the period from November 28, 1975 through April 12, 1977, approximately 25 programs were surveilled at the Mitchell Brothers Santa Ana Theater, with each program containing one or more motion picture films. Such motion picture films were made the subject of a Complaint in Equity for an Injunction, and to Abate a Public Nuisance, filed in the Orange County Superior Court pursuant to Santa Ana Council Resolution No. 76-134, passed and adopted on October 26, 1976. Said law suit resulted in Findings of Fact and Conclu- sions of Law and a Judgment filed June 6, 1978, that 11 films viewed by the court during such law suit were obscene beyond a reasonable doubt as that term is defined in Penal Code Section 311(a) and that the defendants were engaged in the commercial exhibition of obscene motion picture films. 2. During the period from July 16, 1978 through November 2, 1978, 26 additional motion pictures were sur- veilled at the "Mitchell Brothers Santa Ana Theater." Said motion pictures were made the subject of a Complaint in Equity for an Injunction and to Abate a Public Nuisance, filed in the Orange County Superior Court, pursuant to Santa Ana City Council Resolution No. 78-131, passed and adopted on October 2, 1978. On October 23, 24, 25, and 26, 1978, court trial was continued on a Motion for a Preliminary Injunction, and on November 2, 1978, Orange County Superior Court Judge, Richard D. Hamilton found the 26 films to be obscene as defined in Penal Code Section 311, and entered a Preliminary Inunction against the exhibition. 3. On October 12, 1976, a copyright infringement law suit was filed in federal court against four members of the Santa Ana City Council and the City's special counsel, arising out of surveillances at the Mitchell Brothers Santa Ana Theater, conducted by the City's agents pursuant to Council Resolution No. 76-134. The copyright law suit was tried in December, 1978, and on December 14, 1978, the federal jury returned its verdicts in favor of the city, holding that there was no copyright infringement and that the films "Behind the Green Door," "Resurrection of Eve," "Inside Marilyn Chambers," "The Autobiography of a Flea," and "Sodom and Gomorrah-The Last Seven Day," were obscene under federal standard. B. Upon instructions to the Santa Ana City Attorney, surveillance of the films being exhibited at the "Mitchell Brothers' Santa Ana Theater" has been continued, and photographic time-motion studies and continuities of additional films exhibited at the "Mitchell Brothers' Santa Ana Theater" have been prepared for submission to the City Council. C. Photographic time-motion studies and con- tinuities of the motion picture films which were exhibited at the "Mitchell Brothers' Santa Ana Theater" on the following RESOLUTION NO. 79-98 PAGE THREE dates have been prepared and filed with the City Council, and the members of the City Council have examined the con- tent of such time-motion studies and continuities: PROGRAM FILMS DATE EXHIBITED One of a Kind My Erotic Fantasies 11/06/78 e Slave of Pleasure Mash'd 11/13/78 Dear Para It Happened in Hollywood 11/21/78 e Born Erect Abduction of Lorelei 11/29/78 Honey Buns Happy Holiday 12/05/78 t Diversions Another Love - Another Place 12/11/78 e Made in France Prisoner of Love 12/18/78 ® Unwilling Lovers Come With Me My Love 12/26/78 Hot Cookies Sweet Wet Lips 01/02/79 10. Souperman Vixens of Kung Fu 01/09/79 11. Dear Pam Preview: "Salon D'Amour" Barbies Fantasy 04/18/79 12. Love Play Preview: "Lure of the Triangle" 04/26/79 13. Lure of the Triangle The Incredible Sex Ray Machine 05/03/79 14. V-The Hot One Sex Wish Eruption C B Mamas Resurrection of Eve 05/10/79 Section 3. Pursuant to the provisions of Ordinance NS 1325, and based upon the evidentiary facts referred to in Section 2 above, the City Council of Santa Aha makes the following findings of fact concerning the character and nature of the aforementioned motion picture films which have been, and/or are being, exhibited at the "Mitchell Brothers' Santa Ana Theater": A. Each of the motion picture films and previews which have been exhibited at the "Mitchell Brothers' Santa Ana Theater" listed in Section 2(C), is a lewd film as defined in Section 12-101 of the Santa Aha Municipal Code, RESOLUTION NO. 79-98 PAGE FOUR in that: (1) the average person, applying contemporary community standards, would find that, when considered as a whole, said film appeals to the prurient interest, and (2) said film depicts and describes patently offensive represen- tations and descriptions of ultimate sexual acts, and (3) said film possesses no serious literary, artistic, political, or scientific value. The patently offensive representations and descriptions which are referred to are depicted on the individual photographs of the above described time-motion studies which have been examined by the City Council, and such studies are incorporated herein by reference. Section 4. Ail licenses and permits which have been issued as a part of the operation of the "Mitchell Brothers' Santa Ana Theater" are hereby revolked, subject to confirmation by the Court, in judicial proceedings required herein. Criminal proceedings for transacting business without a license at the "Mitchell Brothers' Santa Ana Theater" shall not be filed until the order of license revocation by the City Council has been confirmed by judicial order or finding. Section 5. Pursuant to state law and the provisions of Ordinance NS 1325, as amended, and based upon evidentiary facts contained in the business records of the City of Santa Ana and other evidence on file with the City Council in matters pertaining to the "Mitchell Brothers' Santa Ana Theater," which are incorporated herein by reference as though set forth herein in full, the City Council of Santa Ana makes the following findings of fact with respect to the place commonly known as the "Mitchell Brothers' Santa Ana Theater": A. There is presently located in the City of santa Ana a motion picture business commonly known as the "Mitchell Brothers' Santa Ana Theater" which engages in conduct involving the production of images on a motion picture screen and the broadcasting of sound recordings at the real property known as 1565 West 17th Street, Santa Ana, County of Orange, California, being: That portion of Lot 3 of the Mabury Tract, in the City of Santa Ana, County of Orange, State of California, as per map recorded in Book 165, Page 301 of Deeds, Records of Los Angeles County, California, described as follows: Beginning at a point North 0° 48' 00" East 367.72 feet from the Southwest corner of that certain parcel of land described in Parcel 1 of the Deed recorded May 7, 1953, in Book 2499, Page 293 of Official Records, records of said Orange County, said point of beginning being on the Westerly line of above mentioned parcel of land; thence North 0° 48' 00" East 250.00 feet continuing along said Westerly line; thence North 89° 49' 00" East 90.00 feet, leaving said Westerly line; thence South 0" 48' 00" 250.00 feet; thence South 89~ 49' 00" West 90.00 feet to the point of beginning. B. The motion picture business commonly known as the "Mitchell Brothers' Santa Ana Theater" located at 1565 West 17th Street, Santa Ana, California, is a public nuisance, being a place where lewd films are publicly exhibited, and possessed for the purpose of such exhibition, as a regular course of business. RESOLUTION NO. 79-98 PAGE FIVE C. United Artists Theatres, Inc., 172 Golden Gate Avenue, San Francisco, California 94102, is the Lessee of the real property commonly known as "Mitchell Brothers' Santa Ana Theater." D. Cinema 7, Inc., is the sub-lessee or assignee of the principle lease of the real property commonly known as the "Mitchell Brothers' Santa Aha Theater," 1565 West 17th Street, Santa Ana, California. E. Allison Honer Co., a Partnership, P. O. Box 84, Santa Ana, California 92702, is the owner of the real property commonly known as "Mitchell Brothers' Santa Ana Theater," located at 1565 West 17th Street, Santa Ana, California. F. Bank of America National Trust and Savings Association, a National Banking Association, is the owner of a security interest in such real property, as shown on the Trust Deed recorded on September 10, 1965, in Book 7660, Page 155, Official Records. G. M.B.F.G. Theatre Circuit, Inc., claims to be the holder of a business license issued by the City of Santa Ana, for the operation of the business conducted upon the real property commonly known as the "Mitchell Brothers' Santa Ana Theater," 1565 West 17th Street, Santa Ana, California. Said business license has been revoked by Santa Ana City Council Resolutions No. 76-134, 77-144 and, 78-131. H. Wayne Babiash is the manager, and John Doe 1 is the acting manager or person in charge of the establishment commonly known as the "Mitchell Brothers' Santa Ana Theater," located at 1565 West 17th Street, Santa Ana, California. Section 6. Mitchell Brothers' Santa Ana Theater; James Lloyd Mitchell; Artie Mitchell; Mitchell Brothers Film Group, a Partnership; Cinema 7, Inc., a California corpora- tion; M.B.F.G. Theatre Circuit, Inc.; Jim Gish; Wayne Babiash; Allison Honer Co., a Partnership; Continental Auxiliary Company, a California corporation; Bank of America National Trust and Savings Association; United Artists Theatre Circuit, Inc., a corporation; Does 1 through 100, inclusive; and all other persons of record, having legal or equitable title in the real property known as 1565 West 17th Street, Santa Ana, California, on which is located the motion picture business commonly known as the "Mitchell Brothers' Santa Ana Theater" are: A. hereby informed and given notice that: (1) the City Council has determined that a public nuisance exists on the property located at 1565 West 17th Street, Santa Ana, California; namely, the "Mitchell Brothers' Santa Ana Theater" and that, under Section 12-103 of the Santa Ana Municipal Code, they are responsible therefor upon receiving notice through service of a certified copy of the Ordinance and a certified copy of this Resolution, and (2) any and all licenses and permits heretofore issued for the premises known as 1565 West 17th Street, Santa Aha, California, are hereby revoked under the provisions set forth in Section 12- 104(D) of the Santa Ana Municipal Code; B. hereby given notice pursuant to Penal Code Section 373(a) that a public nuisance exists on the above described property, and further are hereby ordered, under Government Code Section 38773 and Section 12-104(E) of the RESOLUTION NO. 79-98 PAGE SIX Santa Ana Municipal Code, to summarily abate the above mentioned public nuisances immediately, by terminating, or causing to be terminated the exhibition of the above des- cribed lewd films and to voluntarily surrender possession of the same to the Court having jurisdiction of the legal proceedings which the City Attorney has been ordered to institute under Section 12-105 of the Santa Ana Municipal Code; and C. hereby given notice, pursuant to the require- ments of Section 1503 of the California Evidence Code, that the motion picture films and previews listed in Section 2(C) above will be required as evidence in the action to be brought by the City Attorney. Section 7. Mitchell Brothers' Santa Ana Theater; James Lloyd Mitchell; Artie Mitchell; Mitchell Brothers Film Group, a Partnership; Cinema 7, Inc., a California corpora- tion; M.B.F.G. Theatre Circuit, Inc.; Jim Gish; Wayne Babiash; Allison Honer Co., a Partnership; Continental Auxiliary Company, a California corporation; Bank of America National Trust and Savings Association; United Artists Theatre Circuit, Inc., a corporation; Does 1 through 100, inclusive; and all other persons of record having legal or equitable title in the real property known as 1565 West 17th Street, Santa Ana, California, on which is located the motion picture business commonly known as the "Mitchell Brothers' Santa Ana Theater," are hereby informed and given notice that: A. under Sections 12-104(F) and 12-105 of the Santa Aha Municipal Code, the City Attorney has been ordered to institute legal proceedings under Civil Code Sections 3491 and 3494, and Civil Procedure Section 731, naming them as defendants in an action to abate the same, and to seek reformation of the real property and restitution for the costs of abatement and reformation including: (1) investigative costs; (2) court costs; (3) reasonable attorney's fees arising out of preparations for and trial of the cause, and appeals therefrom; and (4) printing costs of trial and appellate briefs and all other papers filed in such proceedings. (5) all other relief as the court may deem proper. B. Ail positive prints of the films and previews listed in Section 2(C) are considered to be contraband and the subject of forfeitures as provided for in Section 12- 104(G) (3) of the Santa Ana Municipal Code. C. From and after service on the place or its manager, or acting manager, or person then in charge of such place, of a certified copy of Ordinance NS 1325, as amended, and a certified copy of this Resolution, any and all moneys paid therafter as admission price to the exhibition of such lewd films are considered to be a public nuisance as personal property used in conducting and maintaining such nuisances, and that a forfeiture of the same and other admission fees will be requested in the judicial proceedings required by Ordinance No. NS 1325, as amended. RESOLUTION NO. 79-98 PAGE SEVEN Section 8. A. The City Attorney is hereby ordered to provide for delivery of a certified copy of this Resolution and a certified copy of Ordinance NS 1325, as amended, in any manner normally used to effectuate personal service of process as directed in Code of Civil Procedure Sections 415.10 through 416.90 to United A3ctists Theatres, Inc., Allison Honer Co., a Partnership, Cinema 7, Inc., and JOHN DOES 1 through 3, and to all other persons of record having any legal or equitable interest in the real property known as 1565 West 17th Street, Santa Ana, California, on which is located the motion piture business commonly known as the "Mitchell Brothers' Santa Ana Theater," and to the manager or acting manager or persons in charge of said establishment. B. The City Attorney is hereby ordered to proceed as directed in Section 12-105 of the Santa Ana Municipal Code, and to take all steps and do all things necessary to abate such nuisances and obtain the relief designated therein, through the judicial proceedings specified therein. ADOPTED this 18th day of the following vote: June , 1979, by AYES: COUNCILMEN: Bricken, Griset, Serrato~ Ward~ NOES: COUNCILMEN: None Luxembourger, Markel, Yamamoto ABSENT: COUNCILMEN: None ATTEST: APPROVED AS TO FORM: KEITH L. GOW, City Attorney