Alhambra Municipal Code Ch. 9.94 Business Constituting Public Nuisances

The City Council finds that the commercial exploitation of explicit sexual conduct through the public exhibition of lewd films, and the sale of obscene publications, constitutes a debasement and distortion of a sensitive key relationship of human existence, central to family life, community welfare and the development of human personality; that such exploitation is indecent and offensive to the senses and to public morals and interferes with the interest of the public in the quality of life and debases total community environment, the commerce in the city, property values, and the public safety; and that the continuation of such activities is detrimental to the public peace, health, safety, good morals and general welfare of the city, and of the residents, citizens, inhabitants and business thereof. Pursuant to Cal. Gov't Code §§ 38771, 38773 and 38773.5, Cal. Civ. Proc. Code § 731, and Cal. Civ. Code §§ 3479, 3480, 3491 and 3494, the Council hereby declares such activities to be public nuisances, and herein establishes procedures for abatement thereof. This chapter shall apply to existing establishments which are presently engaged in the activities herein declared to be public nuisances as well as those which may be commenced in the future.

('86 Code, § 9.94.010) (Ord. 3656, passed - - )

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

KNOWLEDGE or KNOWLEDGE OF SUCH NUISANCE. Having knowledge of the contents and character of the patently offensive sexual conduct which appears in or is depicted in the lewd matter.

LEWD MATTER. Any matter:

(1) Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and

(2) Which depicts or describes patently offensive representations or descriptions of:

(a) Ultimate sexual acts, normal or perverted, actual or simulated; or

(b) Masturbation, excretory functions, or exhibition of the genitals or genital area.

LEWD MATTER does not include or proscribe any matter which, when considered as a whole, and in the context in which it is used, possesses serious literary, artistic, political or scientific value.

MATTER. A motion picture film or a publication, or both.

MOTION PICTURE FILM Includes any:

(1) Film or plate negative; or

(2) Film or plate positive; or

(3) Film designed to be projected on a screen for exhibition; or

(4) Films, glass slides or transparencies, either in negative or positive form, designed for exhibition by projection on a screen; or

(5) Video tape or any other medium used to electronically reproduce images on a screen.

NUDE. Includes:

(1) Completely without clothing; or

(2) The human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a full opaque covering of any portion thereof below the top of the nipple, or the covered male genitals in a discernibly turgid state.

PERSON. Any individual, partnership, firm, association, corporation, or other legal entity.

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.

PUBLICATION. Includes any book, magazine, article, pamphlet, writing, printing, illustration, picture, sound recording, or a motion picture film which is offered for sale or exhibited in a projector or other viewing machine.

SALE. A passing of title or right of possession from a seller to a buyer for valuable consideration, and shall include, but is not limited to, any lease or rental arrangement or other transaction wherein or whereby any valuable consideration is received for the use of, or transfer of possession of, lewd matter.

('86 Code, § 9.94.020) (Ord. 3656, passed - - )

(A) Any and every place in the city where lewd films are publicly exhibited as a regular course of business, or possessed for the purpose of such exhibition; and any and every place in the city where a lewd film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition, is 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 division (A) above, is 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 copy of this chapter, and a certified copy of the resolution and order of summary abatement provided for in § 9.94.060, all moneys paid thereafter as admission price to such exhibitions are also declared to be a public nuisance, as personal property used in conducting and maintaining a declared public nuisance.

('86 Code, § 9.94.030) (Ord. 3656, passed - - )

(A) Any and every place of business in the city in which lewd publications constitute a principal part of the stock in trade is a public nuisance.

(B) Any and every lewd publication possessed at a place which is a public nuisance under division (A) above is 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 copy of this chapter and a certified copy of the resolution and order of summary abatement provided for in § 9.94.060 hereof, all valuable consideration received for the sale of such lewd publications is also declared to be a public nuisance as personal property used in conducting and maintaining a declared public nuisance.

('86 Code, § 9.94.040) (Ord. 3656, passed - - ) Penalty, see § 1.12.010

(A) Upon and after receiving notice through service of a copy of this chapter and of a certified copy of the resolution and order of summary abatement provided for herein, any and every person who shall own, legally or equitably, lease, maintain manage, conduct or operate a place in the city which is declared to be a public nuisance as set forth and stated in §§ 9.94.030 or 9.94.040, is deemed to be a person who has knowledge of such nuisance and is, thereafter, responsible for its maintenance, and shall be liable therefor.

(B) The places and subject matter declared to be public nuisances under §§ 9.94.030 or 9.94.040 shall be abated pursuant to Cal. Gov't Code §§ 38773 and 38773.5, Cal. Civ. Proc. Code § 731, and Cal. Civ. Code §§ 3491 and 3494, as provided for herein.

('86 Code, § 9.94.050) (Ord. 3656, passed - - )

Upon a determination that a public nuisance, as defined in §§ 9.94.030 or 9.94.040, exists in the city, the Council, in applying the provisions of this chapter to such nuisance, shall provide for the following by resolution:

(A) Declare the fact that such nuisance exists; and

(B) Set forth the legal description or street address of the place which constitutes the nuisance; and

(C) Set forth a statement of the facts upon which the Council declaration of nuisance is based; and

(D) Order all persons described in § 9.94.050 division (A) hereof to summarily abate such public nuisance, by immediately terminating the exhibition, sale or possession for sale of such lewd subject matter or causing the same to be terminated, and voluntarily surrendering possession of such matter to the court having jurisdiction of the legal proceedings brought by the City Attorney, pursuant to the provisions of this chapter, and notifying the City Clerk and Council of compliance therewith by sworn affidavit, as authorized by Cal. Gov't Code § 38773, and as ordered by the action of the Council in such resolution.

(E) Inform and give notice to persons designated in § 9.94.050 division (A) that:

(1) The Council has determined that a public nuisance presently exists at such place and address, and that they are deemed to have knowledge thereof and are responsible therefor.

(2) The Council has ordered the City Attorney to commence legal proceedings naming such persons as defendants, in a civil action to abate the same under Cal. Civ. Code § 3494 and Cal. Civ. Proc. Code § 731, as a supplemental remedy to the summary abatement process, authorized by Cal. Gov't Code § 38773 and ordered by the Council and that under § 9.94.080 the costs of such abatement, including investigative costs, court costs, attorney's fees, and other expenses, will be made a special assessment against the parcel of land upon which such nuisance is being maintained and, upon their deter-mination in such court action, will, be made a lien against such property and a personal obligation against the operator of the place and the property owner.

(3) All lewd motion picture films or lewd publications being used in conducting and maintaining such public nuisance are 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 copy of this chapter 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, and valuable consideration received for the sale of such lewd publications are a public nuisance, as personal property used in conducting and maintaining such nuisance and, as such, are the subject of forfeiture.

(F) Order that a certified copy of the resolution and a copy of this chapter be delivered forthwith in any manner normally used to effectuate personal service of process as directed in Cal. Civ. Proc. Code §§ 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 person in charge of the place therein declared a public nuisance.

('86 Code, § 9.94.060) (Ord. 3656, passed - - )

(A) Upon judgment for the city of Alhambra in legal proceedings brought pursuant to Cal. Civ. Code §§ 3491 and 3949, and Cal. Civ. Proc. Code § 731, an accounting shall be made by the defendant or defendants of all moneys or valuable consideration received by them which have been declared to be a public nuisance. Such moneys or their equivalent and any valuable consideration received shall be forfeited to the city.

(B) The cost of abatement shall include the following:

(1) Investigative costs;

(2) Court costs;

(3) Reasonable attorney's fees arising out of the preparation for, and trial of the cause, and appeals therefrom, and other costs allowed on appeal.

(C) Such cost of abatement is a special assess-ment against and a lien upon the parcel of land upon which such nuisance is maintained, and shall be collected at the same time and in the same manner as city property 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 city property taxes. All laws, applicable to the levy, collection and enforcement of city taxes, shall be applicable to such special assessment.

('86 Code, § 9.94.070) (Ord. 3656, passed - - )

Upon a finding by resolution of the Council of the fact that a public nuisance exists at a particular place, the City Attorney shall:

(A) Forthwith, but not later than 30 days after adoption of the resolution, commence legal proceedings under Cal. Civ. Code §§ 3491 and 3494 and Cal. Civ. Proc. Code § 731, by the filing of a civil action seeking the following relief:

(1) A declaratory judgment that the matter found to be lewd is a public nuisance per se;

(2) A declaratory judgment that the matter found by the Council is lewd, as defined herein;

(3) A declaratory judgment that such place is a public nuisance under this chapter and such resolution;

(4) An accounting of all moneys paid as consideration for, or as admission to, or for the exhibition or exhibitions of such lewd motion picture films, or valuable consideration received for the sale of such lewd publications from and after the time the persons maintaining said nuisance received a copy of the resolution of the Council determining that the public nuisance exists, and a judgment that such moneys or valuable consideration are a public nuisance under this chapter;

(5) An order that all admission price moneys or valuable consideration received and enumerated in the court ordered accounting be forfeited as contraband to the city or as property belonging to the city;

(6) An injunction enjoining and restraining all persons responsible for maintaining the nuisance from possessing or publicly exhibiting the lewd motion picture films, or from selling or possessing for sale the lewd publications, and such other injunctive relief as the court may order;

(7) An order that all positive prints of the named lewd film and all lewd publications or copies or reproductions thereof be forfeited as contraband;

(8) Judgment for the city for all costs therein expended, including investigative costs, court costs, reasonable attorney's fees, and such other expenses as are provided for herein;

(9) 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, pursuant to Cal. Civ. Proc. Code §§ 405.20 et seq., giving the names of the parties, the object of the action, and a description of the property thereby affected.

('86 Code, § 9.94.070) (Ord. 3656, passed - - )