Chino Municipal Code Ch. 9.28 Obscene Conduct/Material

The ordinance codified in this chapter shall be known as the "Obscene Conduct/Material Ordinance."

(Ord. 77-8, 1977.)

For the purpose of this chapter, the words and phrases set out in this section shall have the following meanings:

A. "Available to the public" means that the matter or performance may be purchased or attended on a subscription basis, or a membership fee arrangement, or for a separate fee for each item or performance.

B. "Disseminate" means to transfer possession of, with, or without consideration.

C. "Material" means any book, magazine, newspaper or other printed or written material or any picture, drawing, photograph, motion picture or other pictorial representation, or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction, or any other articles, equipment, or machines.

D. "Knowingly" means being aware of the character and the content of the material.

E. "Nudity" means the showing of the human male or female genitals or pubic area with less than a fully opaque covering, or the depiction of covered male genitals in a discemibly turgid state.

F. "Obscene" means that to the average person applying contemporary community standards:

1. The predominant appeal of the matter taken as a whole is to prurient interest; i.e. a shameful or morbid interest in sexual conduct, nudity, or excretion; and

2. The matter depicts or describes in a patently offensive manner sexual conduct regulated by Penal Code Sections 311.2, 311.4, 311.5, 311.6, 311.8, 313.1, 314, 315, 316, 318, 318.5, 318.6, 647, 650½, 11225, et seq.; and

3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

G. "Performance" means any preview, play, show, skit, film, dance, or other exhibition performed before an audience.

H. "Person" means any individual, partnership, firm, association, corporation, or other legal entity.

I. "Promote" means to cause, permit, procure, counsel, or assist.

J. "Service to patrons" means the provision of services to paying guests in establishments providing food and beverages; including but not limited to hostessing, hat checking, cooking, bartending, serving, table setting and clearing, waiter and waitressing, and entertaining.

(Ord. 77-8 § 2. 1977.)

It is unlawful for any person to:

A. Knowingly disseminate, distribute, or make available to the public any obscene material; or

B. Knowingly engage or participate in any obscene performance made available to the public; or

C. Knowingly engage in commerce for commercial gain with materials depicting and describing explicit sexual conduct, nudity, or excretion utilizing displays, circulars, advertisements and other public sales efforts that promote such, commerce primarily on the basis of their prurient appeal; or

D. Provide service to patrons in such a manner as to expose to public view:

1. His or her genitals, pubic hair, buttocks, perineum, anal region, or pubic hair region,

2. Any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, buttocks, perineum, anal region, or pubic hair region, or

3. Any portion of the female breast at or below the areola thereof; or

E. Knowingly promote the commission of any of the unlawful acts as set out in this section.

(Ord. 77-8 § 2, 1977.)

A. Actual notice of the obscene nature of such material, performance, or activity may be given to a person involved in or responsible for such from the city attorney, or the city prosecutor in the case of a criminal action, on the basis of information lawfully gathered and supplied to him by the police department or citizens.

B. Such notice shall be in writing and delivered by mall or in person to the alleged offender, shall state that:

1. In the opinion of the city attorney, the activity engaged in falls within the prohibitions of Section 9.28.030 of this chapter;

2. If such activity has not ceased within seven judicial days, the city will take appropriate legal action: and

3. A declaratory judgment proceeding as described in Section 9.28.050(B) is available if a person engaged in the challenged activity wishes to initiate the legal determination of whether the activity is in fact obscene.

C. A person who promotes any obscene activity as prohibited in Section 9.28.030 in the course of his business is presumed to do so with knowledge of its content and character.

(Ord. 77-8 § 3, 1977.)

A. In Rem Proceedings.

1. The chief of police may apply to the city attorney to institute an attachment proceeding against any material which is alleged to be obscene in a sworn affidavit.

2. Upon filing of an application for attachment authorized in subsection (A)( 1) of this section, the chief of police shall immediately cause notice thereof to be served either personally or by mail upon any person residing or doing business in the city who is known or believed by the chief of police to have any of the following interests in material named in the complaint:

a. The publisher; and

b. The wholesaler, distributor, circulator; and

c. Every retailer or dealer who has, or may have, possession of any material identical to material named in the complaint.

B. Declaratory Judgment.

1. Any person receiving notice in writing from the city attorney under Section 9.28.040, that a specified activity is obscene, may bring action against the city for a declaratory judgment to determine whether such activity is obscene.

2. If it is adjudged and declared by the court that such activity is obscene, then the city attorney may cause the publication of such judgment in a newspaper of general circulation in the city, and upon such publication all persons residing or doing business in the city will be presumed to have actual notice of the nature of the activity.

C. Criminal Prosecution.

1. The city prosecutor may cause criminal charges to be brought against any person presently engaging in or who has engaged in any prohibited activity in violation of Sections 9.28.030(A), (C), and (E).

2. If the city prosecutor has given notice pursuant to Section 9.28.040, then such criminal charges may be brought only after seven judicial days after receipt of the notice.

D. Injunction.

1. The city attorney may seek an injunction, preliminary injunction, or a temporary restraining order in a court of competent jurisdiction in order to enjoin any obscene performance or the service of patrons in violation of Section 9.28.040(B).

2. If the city attorney has given written notice pursuant to Section 9.28.040, he may after the passage of seven judicial days seek a temporary restraining order.

3. A judicial hearing on a request for such order must be granted within three judicial days; and if the temporary restraining order is issued, a trial on the issue of the obscenity of the activity must be commenced within ten judicial days of the issuance of the temporary restraining order.

(Ord. 77-8 § 4, 1977.)

A. Expert affirmative evidence that the materials or activities are obscene is not required when the materials or activities themselves are presented as evidence.

B. It shall be an affirmative defense in any prosecution under this chapter that allegedly obscene material was disseminated or presented for a bona fide scientific, medical, educational, governmental, or judicial purpose by a physician, psychologist, teacher, clergyman, prosecutor, or judge.

(Ord. 77-8 § 5, 1977.)

A. In an in rem proceeding against sexually explicit material under Section 9.28.050(A), the court shall, upon a determination by the trier of fact that the material is obscene, make an order confiscating the obscene material and authorize and direct the chief of police to, pending the exhaustion of all appeals, destroy the same.

B. A violation of this chapter shall, upon conviction thereof, constitute a misdemeanor.

C. After conviction, in addition to any other penalty imposed for a violation of this chapter, the court may, in its discretion, revoke the business license of the offender and upon conviction of the offender for a second violation, the court shall revoke the business license of such person.

(Ord. 77-8 § 6, 1977.)