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HomeMy WebLinkAbout78-131RESOLUTION NO. 78-131 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 ORDIN- ANCE 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 MUNICIPAL CODE. BE IT RESOLVED by the City Council of the City of Santa Aha: Section 1. Pursuant to Section 38771 of the Govern- ment 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-i452, 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 ex- hibition; or (2) a lewd film is publicly and repeatedly ex- hibited, or possessed for the purpose of such exhibition, to be a public nuisance. Bo Any and every lewd film which is publicly exhi- bited or possessed for such purpose at a place which is a public nuisance under (A) above, to be a public nuisance per se. Co 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 cer- tified copy of Ordinance NS 1325, as amended, and of a certi- fied 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 Ana where lewd films are publicly exhibited, or posses- sed for the purpose of such exhibition in the regular course of business, or where a single lewd film is publicly and re- peatedly exhibited, or possessed for the purpose of such ex- hibition, 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. 78-131 PAGE 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 Bro- thers' Santa Ana Theater": A. Dpon 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. Said surveillance showed that during the period from November 28, 1975, through April 12, 1977, approximately 25 programs were exhibited at said theater with each program containing one or more motion picture films. Said motion pic- ture films were the subject of a complaint in equity for an injunction and to abate a public nuisance, filed in Superior Court of the State of California for the County of Orange on November 2, 1976. Said lawsuit resulted in Findings of Fact and Conclusions of Law and a Judgment filed June 6, 1978, that 11 films viewed by the Court during such lawsuit were obscene beyond a reasonable doubt and that the defendants are engaged in the commercial exploitation of obscene motion picture films. B. Upon instructions to the Santa Aha City Attorney, surveillance of the films being exhibited at the "Mitchell Brothers' Santa Ana Theater" has been continued, and photographic time-motion studies of additional films exhibited at the "Mit- chell Brothers' Santa Ana Theater" have been prepared for sub- mission to the City Council. C. Photographic time-motion studies of the motion picture films which were exhibited at the "Mitchell Brothers' Santa Ana Theater" on the following dates have been prepared and filed with the City Council, and the members of the City Council have examined the photographic content of such time- motion studies: PROGRAM FILMS 1) Previews: "Journey of O" "Opening of Misty Beethoven" "Les Nympho Teens" 2) ~'Count the Ways" DATE E~HIBITED,, July 16, 1978 July 16, 1978 July 16, 1978 July 16, 1978 3) "Star Babe" July 16, 1978 2 1) Previews: 2) 3) 4) "Les Nympho Teens~" "Sleepy Head," '~Airport Girls~~'' "Come Fly With US," "Through the Looking Glass" "Journey of O" "Previews: "S.O.S." "The Opening of Misty Beethoven" 1) "Les Nympho Teens 2) "Sleepy Head" August 3, 1978 August 3, 1978 August 3, 1978 August 3, 1978 Augusti0, 2978 Augustl0, !978 4 1) 2) 3) "Previews: "The Farmer's Daughters" "Airport Girls" Previews: "S.O.S.'~ "Through the Looking Glass" "The Private Afternoons of Pamela Mann" "The 9 Lives of a Wet Pussy" "Odyssey" Augus t20, 1978 August20, 1978 August 20, 1978 RESOLUTION NO. 78-131 PAGE THREE 4) :'Come Fly with Us" August 20, 1978 5 1) "Through the Looking Glass" 2) "S.O.S." August 24, 1978 August 24, 1978 6 1) Previews: "9 Lives of a Wet Pussy" "Odyssey" "The Farmer's Daughters" 2) "Teddy Bare" 3) "Expose Me Lovely" August 31, 1978 August 31, 1978 August 31, 1978 August 31, 1978 August 31, 1978 Section 3. Pursuant to the provisions of Ordinance NS 1325, as amended, and based upon the evidentiary facts referred to in Section 2 above, the City Council of Santa Ana makes the following findings of fact concerning the character and nature of the aforementioned motion picture films which have been, and are being, exhibited a~ 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 Ana Municipal Code, 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 representations and descriptions of ultimate sexual acts, and (3) said film possesses no serious literary, artistic, political, or scientific value. The patently offen- sive 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 Aha Theater" are hereby revoked, 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. Section 5. Pursuant to 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 evi- dence on file with the City Council in matters pertaining to the "Mitchell Brothers' Santa Aha Theater," which are incorpor- ated 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 Aha Theater": A. There is presently located in the City of Santa Ana a motion picture business commonly known as the "Mitchell Brothers~ Santa Aha Theater" doing business upon real property known as 1565 West 17th Street, Santa Ana, County of Orange, California, being: RESOLUTION NO. 78-131 PAGE FOUR That portion of Lot 3 of the Mabury Tract, in the City of Santa Aha, 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 OR 48' 00" East 367.72 feet from the Southwest corner of that certain parcel of land described in Parcel i 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 O© 48' O0" East 250.00 feet continuing along said Westerly line; thence North 89© 49' O0" East 90.00 feet, leaving said Westerly line; thence South O© 48' OO" 250.00 feet; thence South 89© 49' O0"~ West 90.00 feet to the point of beginning. B. The motion picture business commonly known as the "Mitchell Brothers' Santa Aha Theater" located at 1565 West 17th Street, Santa Ana, California, is a public nuisance, being a place where lewd films are publicly ex- hibited, and possessed for the purpose of such exhibition, as a regular course of business. 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 Ana Theater," 1565 West 17th Street, Santa Aha, 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., is 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. H. JOHN DOE 1 is the operato~ JOHN DOE 2 is the manager, and JOHN DOE 3 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 RESOLUTION NO. 78-131 PAGE FIVE Street, Santa Ana, California. Section 6. United Artists Theatres, Inc., Al- lison Honer Co., a Partnership, Bank of America National Trust and SavingsAssociatio~, ~B~.~G. 'Thaat~e Circ~it, Inc., Cinema 7, Inc., and JOHN DOES 1 through 3, 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 Aha 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 Aha Theater" and that, under Section 12-103 of the Santa Aha 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 Ana, California, are hereby revoked under the provisions set forth in Section 12-104(D) of the Santa Ana Municipal Code; and 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 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 described 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 re- quirements of Section 1503 of the California Evidence Code, that the motion picture films and previews listed in Sec- tion 7(B) above will be required as evidence in the action to be brought by the City Attorney. Section 7. United Artists Theatres, Inc., Al- lison Honer Co., a Partnership, Bank of America National Trust and Savings Association, M.B.F.G. Theatre Circuit, Inc., Cinema 7, Inc., and JOHN DOES i through 3, and all other persons of record having legal or equitable title in the real property known as 1565 West 17th Street, Santa Aha, 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 i2-104(F) and 12-105 of the Santa Ana 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 RESOLUTION NO. 78-131 PAGE SIX as defendants in an action to abate the same, and to seek restitution for the costs of abatement, 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. B. Ail positive prints of the films and pre- views 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 thereafter 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. 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 Artists 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 picture 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 speci- fied therein. RESOLUTION NO. 78-131 PAGE SEVEN ADOPTED this by the following vote: AYES: NOES; 2nd day of October , 1978, Yamamoto, Bricken, COUNCILMEN: Brandt, Ward COUNCILMEN: None Ortiz, ABSENT~ COUNCILMEN: Evans, Garthe ATTEST: ABSTAINED~ COUNCILMEN: ~/ . ~ MAYOR APPROVED AS TO FORM: KEITH L. GOW CITY ATTORNEY