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HomeMy WebLinkAboutNS-1325KLG: nr 10-5-76 ORDINANCE NO. NS-132S AN EMERGENCY ORDINANCE OF THE CITY OF SANTA ANA AMENDING SECTIONS 12-101 THROUGH 12-105 OF THE SANTA ANA MUNICIPAL CODE DECLARING THE COMMERCIAL EXPLOITATION OF PATENTLY OFFEN- SIVE SEXUAL CONDUCT IN LEWD FILMS AND THEATRES EXHIBITING THE SAME TO BE A PUBLIC NUISANCE AND ORDERING THEIR ABATEMENT. THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: SECTION 1: That section 12-101 of the Santa Ana Muni- cipal Code is hereby amended to read 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 prqrient interest; and (2) which depicts or describe~ patently offensive 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. Nothing herein contained is film which, when considered which it is used, possesses or scientific value. intended to include or proscribe any as a whole, and in the context in serious literary, artistic, political (B) "Place" includes, but is not limited to, any build- ing, 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; film or plate positive; film designed to be projected on a screen (2) (3) for exhibition; (4) films, glass slides or transparencies, either in negative or positive form designed for exhibition by projection on a screen. (5) video tape or any other medium used to elec- tronically reproduce images on a screen. (D) "Person" means any individual, partnership, firm, association, corporation, or other legal entity. ORDINANCE NO. NS-1325 PAGE TWO tents which cipal (E) "Knowledge" means having knowledge of the con- and character of the patently offensive sexual conduct appears in such lewd film. SECTION 2: That section 12-I02 of the Santa Ana Muni- Code is hereby amended to read as follows: Sec. 12-102. Lewd Films and Theatres Exhibitin9 the Same Declared a Public Nuisance; Abate- ment Thereof. lar course exhibition; bited, public (A) Any and every place in the City of Santa Ana where: (1) lewd films are publicly exhibited as a regu- of business, or possessed for the purposes of such or (2) a lewd film is publicly and repeatedly exhi- or possessed for the purpose of such exhibition, is a nuisance. (B) Any and every lewd film which is publicly exhibited or possessed for such purpose at a place which is a public nui- sance under this section, is a public nuisance per se. SECTION 3: That section 12-103 of the Santa Ana pal Code is hereby amended to read as follows: Sec. 12-103. Munici- Knowledge of Nuisance Presumed From Ser- vice of Cops of Resolution; Responsibility of Parties Therefor; Abatement of Such Nuisance. (A) Upon receiving notice through service of a certified copy of this ordinance and of a certified copy of the Resolution provided for herein, any and every person who shall own, 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 Subsection (A) of 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 maintenance, and shall be liable therefor. (B) The places and subject matter declared to be pub- lic nuisances under section 12-102 hereof shall be abated pur- suant to Government Code sections 38773 and 38773.5, Code of Civil Procedure section 731, and Civil Code sections 3491 and 3494, as provided for herein. SECTION 4: That section 12-104 of the Santa Ana Munici- pal Code is hereby amended to read as follows: Sec. 12-104. Action to be Taken b~ City Council. Upon a specific finding that a public nuisance, as de- fined in Section 1£-102 hereof, exists in the City of Santa Ana, 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; ORDINANCE NO. NS-1325 PAGE THREE (C) Set forth a statement of facts upon which the City Council declaration of nuisance is based; (D) O~der the revocation of all licenses and permits which have been issued as a part of the operation of such busi- ness, subject to confirmation by the Court in the judicial pro- ceedings required herein. Criminal proceedings for transacting business without a license at such address shall not be filed un- til the order of license revocation by the City Council has been confirmed by judicial order; (E) Order all persons named in Section 12-103 (A) 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 surrendering possession of the same to the court having jurisdiction of the legal proceed- ings brought by the City Attorney, pursuant to the provisions of this ordinance, and notifying the City Clerk and City Council of compliance therewith by sworn affidavit; (F) Order the City Attorney to proceed as directed in Section 12-105 hereof 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; (G) Inform and give notice to persons named in Section 12-103 (A) that: (1) The City Council has determined that a public nuisance presently exists at such place and address, and has re- voked the licenses and permits at that place, subject to Court confirmation, and that, under Section 12-103 (A) hereof, they are deemed to have knowledge thereof and are responsible therefor; (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 section 3494 and Code of Civil Procedure section 731, and to seek recovery in said action of the costs of abatement, including investigative costs, Court costs, attorney's fees, and other expenses; (3) All lewd motion picture films being used in con- ducting and maintaining such public nuisances are considered to be contraband and the subject of forfeiture; and (4) 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 this ordinance and a certified 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 are considered to be a public nuisance, as personal property used in conducting and maintaining such nuisance and, that a forfeiture of the same will be requested in the judicial proceedings required herein. (H) Order that a certified copy of said Resolution and a certified copy of this ordinance be delivered forthwith 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 all persons of record having any legal or equitable interest in the real property, and to the regular or acting mana- ger or persons in charge of the place therein declared a public nuisance. ORDINANCE NO. NS- 1325 PAGE FOUR SECTION 5: That section 12-105 of the Santa Ana Muni- c±pal Code is hereby amended to read as follows: Sec. 12-105. Action to be Taken by City Attorney. Upon a specific finding by Resolution of cil of the fact that a public nuisance exists at a tion, the City Attorney shall: the City Coun- particular loca- LA) Forthwith, but not later than five working days after passage of said Resolution, commence legal proceedings under Civil Code sections 3491 and 3494 and Code of Civil Procedure sec- tion 731, by the filing of a civil action seeking the following relief: (1) named by the City An Order that the motion picture or pictures Council are lewd, as defined herein; (2) An Order that the place named by the City Council where the film or films are being exhibited is a public nuisance and that the action taken by the City Council to revoke the licenses issued to that place of business was lawful; (3) persons maintaining named lewd films at Ana; An injunction enjoining and restraining all said nuisance from exhibiting in public the any time in the future in the City of Santa (4) An Order that all positive prints of the named lewed films be forfeited as contraband; (5) An accounting of all moneys paid as admission price to or for the exhibition or exhibitions of such lewd motion picture films, from and after the time the persons maintaining said nuisance receive a copy of the Resolution of the City Coun- cil finding that a public nuisance exists, and a judgment that such moneys are a public nuisance; (6) An Order that all admission price moneys or valuable consideration received and enumerated in the Court ordered accounting be forfeited to the general fund of the City of Sa~taAaa as contraband, or as property belonging to the City of Santa Ana; (7) Judgment for the City of Santa Ana for all costs expended in abating the public nuisance, including inves- tigative costs, Court costs, reasonable attorney's fees, and such other expenses as are provided for herein; and (8) All 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, pur- suant to Code of Civil Procedure section 409, giving the names of the parties, the object of the action, and a description of the property thereby affected. SECTION 5: If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of ORDINANCE NO. NS- 1325 PAGE FIVE competent jurisdiction, such decision shall not affect the vali- dity of the remaining portions of this ordinance. The City Coun- cil 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 6: This Ordinance amends those sections of the Santa Ana Municipal Code which were established by Ordinance No. NS-1287, adopted on January 5, 1976. The adoption of this Ordi- nance shall not in any manner affect the prosecution for violations of Ordinance No. NS-1287, which violations were committed prior to the effective date of this Ordinance. SECTION 7: URGENCY CLAUSE. Pursuant to the provisions of Subsection (b) of section 36937 of the Government Code of the State of California, this Ordinance is for the immediate preservation of the public peace, health, and safety and shall take effect immediately. The facts constituting the urgency are as follows: the The purpose of this Ordinance, as is evident from its content, is to enable the City of Santa Ana to abate the type of public nuisance being committed within the City. The City Council deems the showing of lewd films, as defined herein, as being a public nuisance contrary to the public peace, health and safety of the City and its residents. This Ordinance makes certain changes in previously adopted and effective Ordinance NS-1287 required by the decision of the California Court of Appeal in People ex rel. Camil v. Buena Vista Cinema, 129 Cal. Rptr. 315. The City Council deems it necessary for the immediate preservation of the public peace, health and safety that immediate action be taken to abate said public nuisance pursaant to the terms of this Ordinance. Adopted this following vote: AYES, NOES, 4th day of October , 1976, by COUNCILMEN:Yamamoto, Bricken, Ortiz, Garthe, Evans, Brandt, Ward COUNCILMEN:None ABSENT, COUNCILMEN:None ORDINANCE NO. NS-1325 PAGE SIX ATTEST: Adopted as a regular ordinance the 26th day of October , 1976, by the following vote: AYES, COUNCILMEN: Yamamoto, Ward, Ortiz, NOES, COUNCILMEN: Brandt ABSENT, COUNCILMEN: Bricken, £¥ans Garthe CLERK OF THE COUN'CIL APPROVED AS TO FORM: KEITH L. GOW, CITY ATTORNEY