Pismo Beach Municipal Code Ch. 9.08 Lewd Films

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

"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:

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 subsection 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.

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

"Place" means and 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.

"Motion picture film" means and 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;

5. Video tape or any other medium used to electronically reproduce images on a screen. (Prior code § 9.32.010)

A. Any and every place in the city where:

1. Lewd films are publicly exhibited as a regular course of business, or possessed for the purposes of such exhibition; or

2. 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 this section, is a public nuisance per se. (Prior code § 9.32.020)

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 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 subsection A of Section 9.08.020 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 nuisance under Section 9.08.020 hereof 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 in this chapter. (Prior code § 9.32.030)

Upon a specific finding that a public nuisance, as defined in Section 9.08.020 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:

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 373(a) to abate such public nuisances immediately, by terminating the exhibition of such lewd film or films, or causing the same to be terminated;

F. Order the city attorney to proceed as directed in Section 9.08.050 of this chapter, 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 subsection A of Section 9.08.030 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 subsection A of Section 9.08.030, 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 9.08.050, 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 such action of the costs of abatement, including investigative costs, court costs, attorney's fees and other expenses,

3. All lewd motion picture films being used in conducting and maintaining such public nuisances are considered to be contraband and the subject of forfeiture,

4. The lewd motion picture films 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 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 as gain derived from an unlawful act, contrary to the provision of Civil Code Section 2224, and that a forfeiture of the same will be requested in the judicial proceedings required in this chapter;

H. 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 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. (Prior code § 9.32.040)

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 working days after passage of such 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 motion picture or pictures named by the city council are lewd, as defined in this chapter,

2. 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,

3. An injunction enjoining and restraining all persons maintaining such nuisance from exhibiting in public the named lewd films at any time in the future in the city,

4. An order that all positive prints of the named lewd films be forfeited as contraband,

5. 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 such nuisance receive a copy of the resolution of the city council finding that a public nuisance exists, and a judgment that such moneys are gain derived from a wrongful act, contrary to the provisions of Civil Code Section 2224, and a public nuisance,

6. An order that all admission price moneys or valuable consideration received and enumerated in the court-ordered accounting be forfeited as required by law,

7. Judgment for the city for compensatory and punitive damages and 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

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, 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. (Prior code § 9.32.050)