Duarte Municipal Code Ch. 9.64 Lewd Films

The city council finds that the crass commercial exploitation of explicit sexual conduct through the public exhibition of lewd films 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; is indecent and offensive to the senses and interferes with the comfortable enjoyment of life and property, in that such 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 continued operation of such activities is detrimental to the best health, safety, convenience, good morals and general welfare of the city, and of the residents, citizens, inhabitants and businesses thereof. Pursuant to §§ 38771, 38773, and 38773.5 of the Government Code, § 731 of the Code of Civil Procedure, and §§ 3479, 3480, 3491 and 3494 of the Civil Code, the city council declares such activities to be a public nuisance, and establishes in this chapter procedures for the abatement thereof. This chapter shall apply to existing establishments which are presently engaged in the type of activity declared in this chapter to be a public nuisance.

(Ord. 398 § 1, 1976)

(a) "Lewd film" means any motion picture film:

(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 the following:

(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 contained in this section is intended to include or proscribe any film which, when considered as a whole, and in the context in which it is used, possesses serious literary, artistic, political or scientific value.

(b) "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.

(c) "Motion picture film" includes 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; and

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

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

(e) "Knowledge" means having knowledge of the contents and character of the patently offensive sexual conduct which appears in such lewd film.

(Ord. 398 § 2, 1976)

(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 exhibitions, 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 subsection (a) of this section is a public nuisance per se.

(Ord. 398 § 3, 1976)

(a) Upon receiving notice through service of a certified copy of the ordinance codified in this chapter and of a certified copy of the resolution provided for in this chapter, any and every person who owns, legally or equitably, leases, maintains, manages, conducts, or operates a place in the city which is declared to be a public nuisance as set forth and stated in subsection (a) of Section 9.64.030 is deemed to be a person who has knowledge of such nuisance for the purpose of this chapter 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 9.64.030 shall be abated pursuant to Government Code §§ 38773 and 38773.5, Code of Civil Procedure § 731, and Civil Code §§ 3491 and 3494, as provided for in this chapter.

(Ord. 398 § 4, 1976)

Upon a specific finding that a public nuisance, as defined in Section 9.64.030 of this chapter exists in the city, the city council, in applying the provisions of this chapter to such nuisance, shall provide for the following by resolution:

(1) Declare the fact that such nuisance exists;

(2) Set forth the description or legal description and street address of the real property which constitutes the nuisance;

(3) Set forth a statement of facts upon which the city council declaration of nuisance is based;

(4) 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 in this chapter. 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;

(5) Order all persons named in Section 9.64.040(a) to summarily abate such public nuisances immediately, by terminating the exhibitions of such lewd film or films, or causing the same to be terminated, and voluntarily surrendering possession of the same to the court having jurisdiction of the legal proceedings brought to the city attorney pursuant to the provisions of this chapter, and notifying the city clerk and city council of compliance therewith by sworn affidavit;

(6) Order the city attorney to proceed as directed in Section 9.64.060 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;

(7) Inform and give notice to persons named in Section 9.64.040(a) that:

(A) 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 9.64.040(a) of said chapter, they are deemed to have knowledge thereof and are responsible therefor,

(B) The city council has ordered the city attorney, as provided for under Section 9.64.060, to commence legal proceedings naming such persons as defendants in a civil action to abate the same judicially under Civil Code § 3494 and Code of Civil Procedure § 731, and to seek recovery in said action of the costs of abatement, including investigative costs, court costs, attorney's fees, and other expenses,

(C) All lewd motion picture films being used in conducting and maintaining such public nuisance are considered to be contraband and the subject of forfeiture, and

(D) 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 the ordinance codified in 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 are considered to be a public nuisance, as personal property used in conducting and maintaining such nuisance and, that a forfeiture of the same will be requested in the judicial proceedings required in this chapter;

(8) Order that a certified copy of said resolution and a certified copy of the ordinance codified in this chapter be delivered forthwith in any manner normally used to effectuate personal service of process as directed in Code of Civil Procedure §§ 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.

(Ord. 398 § 5, 1976)

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:

(1) Forthwith, but not later than four working days after passage of said resolution, commence legal proceedings under Civil Code §§ 3491 and 3494 and Code of Civil Procedure § 731, by the filing of a civil action seeking the following relief:

(A) An order that the motion picture or pictures named by the city council are lewd, as defined in this chapter,

(B) An order that the place named by the city council where the film or films are being 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,

(C) An injunction enjoining and restraining all persons maintaining said nuisance from exhibiting in public the named lewd films at any time in the future in the city,

(D) An order that all positive prints of the named lewd films be forfeited as contraband,

(E) An accounting of all moneys paid as admission price to or for the exhibition or exhibitions of such lewd motion picture films, from and after the time the persons maintaining said nuisance receive a copy of the resolution of the city council that the public nuisance exists, and a judgment that such moneys are a public nuisance,

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

(G) Judgment for the city for all costs expended in abating the public nuisance, including investigative costs, court costs, reasonable attorney's fees, and such other expenses as are provided for in this chapter, and

(H) All other relief as the court may deem proper;

(2) 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 § 409, giving the names of the parties, the object of the action, and a description of the property thereby affected.

(Ord. 398 § 6, 1976)