Arcadia Municipal Code Div. 4 Lewd Matter, Public Nuisance

The City Council finds that the crass commercial exploitation of explicit sexual conduct through the public exhibition of lewd films and sale of lewd 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 total community environment, the tone of commerce in the city, property values, and the public safety; and that the continuation of such activities is detrimental to the best health, safety, convenience, good morals and general welfare of the City of Arcadia, and of the residents, citizens, inhabitants and business thereof and is unlawful and may not be made the subject of a lawful license. Pursuant to Sections 38771, 38773 and 38773.5 of the Government Code, Section 731 of the Code of Civil Procedure, and Sections 3479, 3480, 3491 and 3494 of the Civil Code the City Council hereby declares such activities to be public nuisances and herein establishes procedures for the abatement thereof and for the assessment and collection of costs of abatement which may be incurred by the City incident to such abatement. This ordinance shall apply to existing establishments which are presently engaged in the activities herein declared to be public nuisances.

(Added by Ord. 1712 adopted 10-21-80)

(A) "Knowledge" or "knowledge of such nuisance" means having knowledge of the contents and character of the patently offensive sexual conduct which appears in the lewd matter;

(B) "Lewd" matter means 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 lewd exhibition of the genitals or genital area.

Nothing herein contained is intended to 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.

(C) "Matter" shall mean a motion picture film or a publication, or both;

(D) "Motion picture film" shall include any:

(1) film or plate negative;

(2) film or plate positive;

(3) film designed to be projected on a screen 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 electronically reproduce images on a screen;

(E) "Person" means any individual, partnership, firm, association, corporation or other legal entity;

(F) "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. "Place" also includes any money, slug or coin-operated vending machine or mechanical or electronically controlled vending machine, which is located upon or is accessible from a public sidewalk or thoroughfare;

(G) "Publication" shall include any book, magazine, newspaper article, pamphlet, writing, printing, illustration, picture, sound recording, or a motion picture film when such film is offered for sale or exhibited in a coin operated machine;

(H) "Sale" means 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.

(Added by Ord. 1712 adopted 10-21-80)

• LEWD FILMS AND THEATERS EXHIBITING THE SAME DECLARED A PUBLIC NUISANCE PER SE; ADMISSION PRICE RECEIVED AFTER SERVICE OF RESOLUTION TO BE REGARDED AS A PUBLIC NUISANCE PER ACCIDENS.

The following are declared to be public nuisances per se:

(A) Any and every place in the City of Arcadia where lewd films are publicly exhibited as a regular course of business, or possessed for the purpose of such exhibition;

(B) Any and every place in the City of Arcadia where a lewd film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition; and

(C) Any and every lewd film which is publicly exhibited or possessed for such purpose at a place which is a public nuisance under this Section.

From and after service on the theater, 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 the resolution provided for herein, all monies paid thereafter as admission price to such exhibitions shall be regarded as being a public nuisance per accidens, as personal property used in conducting and maintaining a declared public nuisance as to which forfeiture will be requested in the judicial proceedings required herein.

(Added by Ord. 1712 adopted 10-21-80)

• PLACE OF BUSINESS IN WHICH LEWD PUBLICATIONS CONSTITUTE A PRINCIPAL PART OF THE STOCK IN TRADE AND LEWD PUBLICATIONS POSSESSED THEREIN DECLARED A PUBLIC NUISANCE PER SE; VALUABLE CONSIDERATION RECEIVED FOR SALE AFTER SERVICE OF RESOLUTION TO BE REGARDED AS A PUBLIC NUISANCE PER ACCIDENS.

The following are declared to be public nuisances per se:

(A) Any and every place of business in the City of Arcadia in which lewd publications constitute all of the stock in trade, or a principal part thereof. Where such lewd publications constitute only a part of the stock in trade and are located in a place or places within such business which are capable of demarcation, such place or places constitute the public nuisance which requires abatement;

(B) Any and every lewd publication possessed at a place which is a public nuisance under this Section;

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 the resolution provided for herein, all valuable consideration received for the sale of such lewd publications shall be regarded as being a public nuisance per accidens, as personal property used in conducting and maintaining a declared public nuisance, as to which forfeiture will be requested in the judicial proceedings required herein. (Added by Ord. 1712 adopted 10-21-80)

• KNOWLEDGE OF NUISANCE PRESUMED FROM SERVICE OF COPY OF RESOLUTION; RESPONSIBILITY OF PARTIES THEREFOR; ABATEMENT OF SUCH NUISANCES.

(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 Arcadia which is declared to be a public nuisance as set forth and stated in Section 4234.2 or Section 4234.3 of the Arcadia Municipal Code, 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 public nuisances under Section 4234.2 or Section 4234.3 of the Arcadia Municipal Code shall be abated pursuant 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.

(Added by Ord 1712 adopted 10-21-80)

Upon a specific finding that a public nuisance, as defined in Section 4234.2 or Section 4234.3 of the Arcadia Municipal Code, exists in the City of Arcadia, 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;

(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 business, subject to confirmation by the court in the judicial proceedings required herein. Criminal proceedings for transacting business without a license at such address shall not be filed until the order of license revocation 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 4234.4(A) of the Arcadia Municipal Code to abate such public nuisances immediately, by terminating the exhibitions of such lewd film or films and sale or offering for sale of such publications, or causing the same to be terminated;

(F) Order the City Attorney to proceed as directed in Section 4234.6 of the Arcadia Municipal Code 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 4234.4(A) of the Arcadia Municipal Code 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, under Section 4234.4 of the Arcadia Municipal Code, 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 4234.6 of the Arcadia Municipal Code, 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 compensatory and punitive damages, and recovery in said action of the costs of abatement, including investigative costs, court costs, attorney fees, and other expenses and that under Section 4234.7 of the Arcadia Municipal Code, the costs of abatement are made a special assessment against the parcel of land upon which the nuisance is maintained, but only against the interest, if any therein, of the person responsible for maintaining such nuisance, and upon their determination by the City Council, will, by separate resolution, be made a lien against the real property interest of the person responsible for maintaining such nuisance;

(3) All lewd motion picture films or lewd publications 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 or lewd publications which are being used in conducting and maintaining such public nuisance will be needed at the hearing in the 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 ordinance and a certified copy of such resolution, any and all monies paid as admission price to the exhibition or exhibitions of such lewd motion picture films, and valuable consideration received for the sale of such lewd publications, shall be regarded as being a public nuisance per accidens, 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.

(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 manager or persons in charge of the place therein declared a public nuisance. (Added by Ord. 1712 adopted 10-21-80)

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 subject matter identified by the City Council in said resolution is lewd, as defined herein;

(2) An order that each place named by the City Council 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 restraining all persons maintaining said nuisance from possessing or publicly exhibiting said lewd motion picture films, or from selling or possessing for sale said lewd publications at any time in the future in the City of Arcadia, and such other injunctive relief as the court may order;

(4) An order that all positive prints of such lewd films and all such lewd publications or copies or reproductions thereof be forfeited as contraband;

(5) An accounting of all monies paid as admission price to the exhibition or exhibitions of such lewd motion picture films and valuable consideration received for the sale of such lewd publications from and after the time the person or persons maintaining said nuisance receive a copy of the resolution of the City Council finding that a public nuisance exists, and a judgment that such monies are gain derived from a wrongful act under Civil Code Section 2224, and a public nuisance;

(6) An order that all admission price monies or valuable consideration received and enumerated in the court-ordered accounting be forfeited as required by law;

(7) Judgment for the City of Arcadia for compensatory and punitive damages and for all costs expended in abating the public nuisance, including investigative costs, court costs, reasonable attorney fees, and 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 Los Angeles, 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.

(Added by Ord. 1712 adopted 10-21-80)

• COST OF ABATEMENT; ASSESSMENT; ASSESSMENT REPORT; HEARING ON ASSESSMENT REPORT; ASSESSMENT RESOLUTION; 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 if any therein, of the person or persons determined in the action to be responsible 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;

(4) Printing costs for any trial and appeal.

(B) Upon the filing of a Los Angeles County Superior Court judgment adjudicating the existence of a public nuisance in any proceedings instituted pursuant to these sections, the City Attorney shall file with the Clerk of the Council a written report containing his account of the expenses of abatement, the person or persons determined in the action to be responsible for maintaining such nuisance, a description of the premises on which such abatement occurred, and the assessment against each lot or parcel of land proposed to be levied to pay the cost thereof. The Clerk shall then set the report for hearing by the City Council and shall, not less than ten (10) days prior to the date set for such hearing, serve notice of assessment upon the owners, which notice shall specify the day, hour and place when the City Council shall hear and pass upon the assessment report together with any objections or protests thereto.

(C) Upon the date and hour fixed for the hearing, the City Council shall hear and pass upon the assessment report together with any objections or protests which may be raised by any of the owners of any property liable to be assessed for the costs of abatement or any other interested persons. The City Council may make such revision, correction or modifications in the report as it may deem just, after which the report as submitted, or as revised, corrected or modified, shall be confirmed. The City Council may adjourn the hearings from time to time. The decisions of the City Council on all protests and objections which may be made shall be final and conclusive.

(D) Upon confirmation of the assessment report, the City Council shall adopt a resolution specifying the amount assessed against each respective parcel as shown on the last available assessment roll in accordance with the assessment report. Unless otherwise provided in such resolution, any such assessment shall become due thirty (30) days after adoption of such resolution and shall thereafter bear interest at the rate of seven percent (7%) per year. The City Council may provide in the resolution for payment to become due at any later date, in total sum or in installments.

(E) All assessments may be paid by tender of the amount due to the City Controller. The City Controller, prior to August 10 of each year, shall determine if any assessment or portion thereof, is due and unpaid, and if he so determines, he shall file with the County Auditor his statement of the amount due, specifying the parcel on which such amount is assessed, together with a certified copy of the assessment resolution. Pursuant to Section 38773.5 of the Government Code of the State of California, such assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assessment.

(Added by Ord. 1712 adopted 10-21-80)

(Division 4 added by Ord. 1712 adopted 10-21-80)