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Home My WebLink AboutNS-1452EJC:adg 8/21/78 ORDINANCE NO. NS- 1452 ORDAIN AS Municipal AN ORDINANCE OF THE CITY OF SANTA ANA AMENDING SECTIONS 12-104 and 12-105 OF THE SANTA ANA MUNICIPAL CODE RELATING TO ACTION BY THE CITY COUNCIL AND CITY ATTORNEY UPON FINDING LEWD FILMS AND THEATERS AS CONSTITUTING A PUBLIC NUISANCE AND ADDING SECTION 12-106 RELATING TO ASSESSMENT FOR CQSTS OF ABATEMENT. THE CITY COUNCIL OF THE CITY OF SANTA ~qA DOES FOLLOWS: SECTION 1: That Section 12-104 of the Santa Ana Code, is hereby amended to read as follows: Sec. 12-104. 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 Ana, the city council, in applying the provisions of this article 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 a statement of facts upon which the city council declaration of nuisance is based; (d) Order 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 proceedings re- quired herein. Criminal proceedings for transacting business without a license at such address shall not be filed until the order of license revo- cation by the city council has been confirmed by judicial order; (e) Order the city attorney to give written notice under Penal Code section 373a to all persons named in section 12-103(a) hereof to abate such public nuisances immediately, by terminating the exhibi- tions of such lewd film or films, or causing the same to be terminated; (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 pro- ceedings and to conclude such proceed- ings as expeditiously as is permissible under the law; ORDINANCE NO. NS- 1452 PAGE TWO (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 revoked the licenses and permits at that place, subject to court confirmation, and that, un- der section 12-103(a) hereof, they are deemed to have knowledge there- of 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 compen- satory and punitive damages, and recovery in said action of the costs of abatement, including in- vestigative costs, court costs, attorney fees, and other expenses; (3) Ail lewd motion picture films being used in conducting and maintaining such public nuisances are considered to be contraband and the subject of forfeiture; (4) The lewd motion picture film or films which are being used in con- ducting and maintaining such public nuisance will be needed at the hear- ing in court having jurisdiction of the legal proceedings brought by the city attorney, pursuant to Evidence Code section 1503; and (5) 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 ordin- ance 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 con- sidered to be a public nuisance, as personal property used in conducting and maintaining such nuisance and as gain derived from a wrongful act, contrary to the provisions of Civil Code section 2224, and that forfeiture of the same will be requested in the judicial proceedings required herein. ORDINANCE NO. NS- 1452 PAGE THREE , (h) Order that a certified copy of said reso- lution and a certified copy of this ordinance be delivered forthwith in any manner normally used to effectuate per- sonal 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 manager or per- sons in charge of the place therein declared a public nuisance. SECTION 2: That section 12-105 of the Santa Ana Municipal 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 the city council of the fact that a public nuisance exists at a particular location, the city attorney shall: (a) Forthwith, but not later than five (5) working days after passage of said resolution, commence legal proceedings under Civil Code Sections 3491 and 3494 and Code of Civil Procedure Section 731, by the filing of a civil action seeking the following relief: (1) An order that the motion picture or pictures named by the city council are lewd, as defined herein; (2) An order that the place named by the city council where the film or films are 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) An injunction enjoining and restrain- ing all persons maintaining said nuisance from exhibiting in public the named lewd films at any time in the future in the City of Santa Ana; (4) An order that all positive prints of the named lewd films be forfeited as contraband; (5) An accounting of all moneys paid as admission price to or for the ex- hibition or exhibitions of such lewd motion picture films from and after the time the persons maintain- ing said nuisance receive a copy of the resolution of the city council finding that a public nuisance exists, and a judgment that such moneys are gain derived from a wrongful act under Civil Code section 2224, and a public nuisance; ORDINANCE NO. NS-1452 PAGE FOUR (6) An order that all admission price moneys or valuable consideration received and enumerated in the court ordered accounting be forfeited as required by law; (7) Judgment for the City of Santa Aha for compensatory and punitive damages and for all costs expended in abating the public nuisance, including investigative costs, court costs, reasonable attorney fees, and such other expenses as are provided for herein; and 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 Section 409, giving the names of the parties, the object of the action, and a description of the property thereby affected. SECTION 3: That the Santa Ana Municipal Code, is hereby amended by adding a section, to be numbered 12-106, which said section reads as follows: Sec. 12-106. Action; Cost of Abatement; Collection (a) The cost of abatement is hereby declared a special assessment against the parcel of land upon which the public nuisance is maintained, but only against the interest of the person or persons determined in the action to be re- sponsible for maintaining such nuisance. As used herein, the term "cost of abatement" shall include, but is not limited to, the following: (1) Investigative costs; (2) Court costs; (3) Reasonable attorney fees; and (4) Printing costs for any trial and appeal. (b) Upon a judgment declaring a public nuisance in any proceedings instituted pursuant to this article, the cost of abatement shall be collected pursuant to the assessment proceed- ings as provided in Article III of Chapter 17 of this code, commencing with Sections 17-40 through 17-43 as the same now reads or as may hereafter be amended. SECTION 4: 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 competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordin- ance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each ORDINANCE NO. NS-1452 PAGE FIVE section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional. SECTION 5: 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 violations 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 cash deposit in lieu thereof, required to be posted, filed or deposited pursuant to any ordinance and all rights ana obligations thereunder appertaining shall c6ntinue ih ~utl force and effect. ADOPTED, this 18th day of by the following vote: AYES: COUNCILMEN: September , 1978, Brandt, Garthe, 0rtiz, Yamamoto, Ward NOES: COUNCILMEN: None ATTEST: ABSENT: COUNCIL~IEN: Bricken, Evans APPROVED AS TO FORM: KEITH L. GOW, CITY ATTORNEY MAYOR