Wasco Municipal Code Ch. 9.16 Commercial Exploitation of Obscene Materials

Sections: 9.16.010 Purpose--Policy and authority. 9.16.020 Definitions. 9.16.030 Obscene motion picture films and theaters. 9.16.040 Obscene publications. 9.16.050 Exhibition of obscene motion picture films on television screens. 9.16.060 Abatement of nuisances. 9.16.070 Action to be taken by city council. 9.16.080 Action to be taken by city attorney. 9.16.090 Cost of abatement--Assessment report.

The city council finds that the crass commercial exploitation of explicit sexual conduct through the public exhibition of obscene 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 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 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, 3494 and 3496 of the Civil Code, the city council declares such activities to be public nuisances, and 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 chapter shall apply to existing establishments which are presently engaged in the activities in this chapter declared to be public nuisances. (Ord. 299 §1, 1984).

For the purposes of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:

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 obscene matter.

B. "Matter" means a motion picture film or a publication, or both.

C. "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. Videocassette tape or any other medium used to electronically reproduce images on a screen.

D. "Obscene matter" means matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.

1. The predominant appeal to prurient interest of the matter is judged with reference to average adults
unless it appears from the nature of the matter or the circumstances of its dissemination, distribution or
exhibition, that it is designed for clearly defined deviant sexual groups, in which case the predominant appeal
of the matter shall be judged with reference to its intended recipient group.

2. Where circumstances of production, presentation, sale, dissemination, distribution or publicity indicate
that matter is being commercially exploited for the sake of its prurient appeal, such evidence is probative with
respect to the nature of the matter and can justify the conclusion that the matter is utterly without redeeming
social importance.

3. In determining whether the matter taken as a whole goes substantially beyond customary limits of
candor in description or representation of such matters the fact that the exhibitor or vendor knew that the
matter depicts persons under the age of sixteen years engaged in sexual conduct, as defined in subdivision (c)
of Penal Code Section 311.4, is a factor which can be considered in making such a determination.

Nothing contained in this chapter 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.

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" means and includes 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, obscene matter. (Ord. 299 §2, 1984).

The following are declared to be public nuisances per se:

A. Any and every place in the city where obscene motion picture films are publicly exhibited or sold as a regular course of business, or possessed for the purpose of such exhibition or sale;

B. Any and every place in the city where an obscene motion picture film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition; and

C. Any and every obscene motion picture film which is publicly exhibited or possessed for such purpose or for sale 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 the ordinance codified in this chapter and a certified copy of the resolution provided for in this chapter all moneys paid thereafter as admission price to such exhibitions and all valuable consideration received for the sale of such obscene motion picture films shall be regarded as being a public nuisance per accidents as personal property used in conducting and maintaining a declared public nuisance as to which forfeiture will be requested in the judicial proceedings required in this chapter. (Ord. 299 §3, 1984).

The following are declared to be public nuisances per Se:

A. Any and every place of business in the city in which obscene publications constitute all of the stock in trade, or a principal part thereof. Where such obscene 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; and

B. Any and every obscene 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 the ordinance codified in this chapter and a certified copy of the resolution provided for in this chapter, all valuable consideration received for the sale of such obscene publications shall be regarded as being a public nuisance per accidents, as personal property used in conducting and maintaining a declared public nuisance as to which forfeiture will be requested in the judicial proceedings required in this chapter. (Ord. 299 §4, 1984).

The following are declared to be public nuisances per se:

A. The projection of an obscene motion picture film from any place within or without the city or the United States of America for reception and exhibition upon a television screen at any place within the city.

B. The exhibition of an obscene motion picture film upon a television screen at any place within the city. (Ord. 299 §5, 1984).

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 Sections 9.16.030, 9.16.040 and 9.16.050 of this chapter 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; except that, nothing in this chapter is intended to make any person responsible for the obscene exhibitions which are received and appear upon the screen of any television set which is possessed by such person for his own personal noncommercial use.

B. The places and subject matter declared to be public nuisances under Sections 9.16.030, 9.16.040 and 9.16.050 of this chapter shall be abated pursuant to Government Code Sections 38773 and 38773.5, Code of Civil Procedure Section 731 and Civil Code Sections 3491, 3494 and 3496 as provided for in this chapter. (Ord. 299 §6, 1984).

Upon a specific finding that a public nuisance, as defined in Sections 9.16.030, 9.16.040 and 9.16.050 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’s 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 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.

E. Order the city attorney to give written notice under Penal Code Section 373a to all persons named in Section 9.16.060(A) to abate such public nuisances immediately, by terminating the exhibitions of such obscene motion picture film or films and sale or offering for sale of such obscene motion picture films or publications, or causing the same to be terminated.

F. Order the city attorney to proceed as directed in Section 9.16.080 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 9.16.060 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
9.16.060, 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 9.16.080 to commence legal
proceedings naming such persons as defendants in a civil action to abate the same judicially under Civil Code
Sections 3494 and 3496 and Code of Civil Procedure Section 731, and to seek recovery in said action of the
costs of abatement, including investigative costs, court costs, attorney fees and other expenses and that
under Section 9.16.090, 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 obscene motion picture film or films or obscene publications being used in conducting and
maintaining such public nuisances are considered to be contraband and the subject of forfeiture;

4. The obscene motion picture film or films or obscene 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 the ordinance codified in this chapter and a certified copy of such resolution, any
and all moneys paid as admission price to the exhibition or exhibitions or such obscene motion picture films,
and valuable consideration received for the sale of such obscene motion picture films or publications, shall be
regarded as being a public nuisance per accidents, 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 as derivative contraband will be requested in the judicial proceedings
required herein.

H. Order that a certified copy of the 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. (Ord. 299 §7, 1984).

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 the resolution, commence legal proceedings under Civil Code Sections 3491, 3494 and 3496 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 the resolution is obscene as defined in
this chapter;

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 the nuisance from possession or publicly
exhibiting the obscene motion picture films, or from selling or possession for sale the obscene motion picture
films or publications at any time in the future in the city and such other injunctive relief as the court may
order;

4. An order that all positive prints of such obscene motion picture films and obscene publications or copies
or reproductions thereof be forfeited as derivative contraband;

5. An accounting of all moneys paid as admission price to the exhibition or exhibitions of such obscene
motion picture films and valuable consideration received for the sale of such obscene motion picture films or
obscene publications from and after the time the person or persons maintaining the nuisance receive a copy
of the resolution of the city council’s finding that a public nuisance exists, and a judgment that such moneys
are derivative contraband and gain derived from a wrongful act under Civil Code Section 2224, and a public
nuisance;

6. An order that all admission price moneys are valuable consideration received and enumerated in the
court ordered accounting be declared to be derivative contraband, and forfeited as required by law;

7. Judgment for the city for all costs expended in abating the public nuisance, including investigative costs,
court costs, reasonable attorney 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. (Ord. 299 §8, 1984).

A. The cost of abatement is 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 in this chapter, the term "cost of abatement" shall include, but is not limited to, the following:

1. Investigative costs;

2. Court costs;

3. Reasonable attorney fees; and

4. Printing costs for any trial and appeal.

B. Upon the filing of a 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 days prior to the date set for such hearing, serve notice of assessment upon 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 the 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 hearing 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 days after adoption of such resolution and shall thereafter bear interest at the rate of seven percent 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 county controller. The county controller, prior to August 10th 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 county 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 county taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assessment. (Ord. 299 §9, 1984).