Chapter 9.04


9.04.010    Legislative findings and determination.

9.04.020    Legislative purpose and intent.

9.04.030    Definitions.

9.04.040    Prohibition of certain motion pictures.

9.04.050    Exemptions and exclusions.

9.04.060    Penalty for violation.

9.04.010 Legislative findings and determination.

The city council finds and determines that:

A.    The presentation and exhibition of X-rated movies or motion pictures depicting offensive nudity or sexually explicit conduct, which are objectionable for persons under the age of eighteen years and to which such persons should not be admitted to premises for the viewing of same, can in fact be seen and viewed by minors from public and private property outside the premises of drive-in theaters located within the city.

B.    Because of the tremendous size of the drive-in theater screens upon which movies are projected for viewing, and because of the nearby location of single-family residences, the presentation of such offensive motion pictures are so visually apparent and obtrusive as to make it virtually impossible for an unwilling individual, adult or minor, to avoid exposure to such movies.

C.    Such exposure to these X-rated or otherwise offensive movies is even thrust and forced upon persons while they are inside their private residences or in the yards outside their homes, and such visibility and exposure can and does constitute an unreasonable interference with the right of privacy of the residents of Marina inhabiting such private property.

D.    Regardless of whether public presentations or exhibitions of such movies are “obscene” or constitute “pornography” within the meaning of the penal law or constitutional law, they are not constitutionally protected to an unlimited degree because, as in the present circumstances, they are thrust indiscriminately upon audiences of minors and unwilling adults and therefore constitute assaults upon individual privacy.

E.    The visible presence of these offensive motion pictures can impair the value and enjoyment of public and private property in this city which is adjacent to such theaters.

F.    Existing legal remedies are inadequate to correct this situation so as to prevent the exhibition of such movies from being indiscriminately forced upon unwilling and captive audiences of adults and children, so as to constitute an assault upon the individual privacy of such persons, and therefore the provisions of this chapter relating to the regulation of motion pictures shown at drive-in theaters are necessary to secure and promote the public health, morals and general welfare of persons in the city. (Ord. 77-3 § 1, 1977)

9.04.020 Legislative purpose and intent.

The city council declares that the purpose and intent of this chapter is to exercise the general police power in order to protect the enjoyment of public and private property, to protect the right of individual privacy, to preserve and protect property values, and to protect the morals of minors, all in the best interests of the public peace, safety, morals, welfare, convenience and good order of the city and its residents. This chapter is intended to regulate and restrict only the exhibition and presentation of X-rated movies or motion pictures depicting offensive nudity or sexually explicit acts so that same may only be viewed by those persons who desire to see such movies and have actually paid for and been admitted to the drive-in theater premises for such purpose, and to prevent the visibility of such motion pictures from public and private property outside the premises upon which the theater is located. (Ord. 77-3 § 2, 1977)

9.04.030 Definitions.

The following words and phrases shall be defined as follows in connection with the interpretation and construction of this chapter:

A.    “Drive-in theater” means a place where motion pictures or movies are presented outdoors to an audience which may and is intended to view the motion picture while in their automobile or other motor vehicle.

B.    “Nudity” means the showing with less than a fully opaque covering of the genitals, pubic hair, buttocks, natal cleft, perineum, or anus of the person, other than a child under the age of puberty, or any portion of the breast at or below the areola thereof of any female person, other than a child under the age of puberty, or the showing of covered male genitals in a discernibly aroused or turgid state.

C.    “Offensive” means that the motion picture or movie in which the nudity or sexually explicit act appears or is shown, taken as a whole, appeals to the prurient interest and patently depicts or shows such nudity or sexually explicit act in a manner which, taken as a whole, lacks serious literary, artistic, political or scientific value.

D.    “Screen” means any surface in a drive-in theater whereon a picture or other medium of expression is projected for the viewing of an audience.

E.    “Sexually explicit acts” means acts or simulated acts of sexual intercourse, masturbation, oral copulation, anal or rectal intercourse, fellatio, cunnilingus, annilingus, sodomy, bestiality, direct physical stimulation, fondling or touching of uncovered or unclothed genitals or pubic regions of a male or female person, and flagellation or torture by or upon a person in the context of a sexual relationship or sexual stimulation.

F.    “X-rated motion picture” means motion picture or movie which has received and had imposed upon it a rating or designation of “X” by the Motion Picture Association of America, Inc., or any similar successor organization; or which has had a rating or designation of “X” or “for adults only” imposed upon it by the producer, distributor or exhibitor of such motion picture or movie; or which is advertised by the exhibitor or operator of a theater showing such movie as being “X-rated,” “for adults only” or any other designation or rating of a like nature. (Ord. 77-3 § 3, 1977)

9.04.040 Prohibition of certain motion pictures.

It is unlawful and is declared to be a public nuisance for any owner, operator, lessee, tenant, manager or any other person possessing or occupying a drive-in theater in the city to present, project, exhibit or show either an X-rated motion picture or a motion picture or movie which contains, depicts or portrays offensive nudity or offensive sexually explicit acts, if the screen upon which such motion picture or movie is projected is visible and can be viewed in whole or in part from any private residential real property (that is, which is zoned R-1, for single-family residences) or from any other private property or public property, including public streets and highways, within one thousand yards of the screen of said drive-in theater. (Ord. 77-3 § 4, 1977)

9.04.050 Exemptions and exclusions.

Nothing in this chapter shall be construed as limiting the right of an owner, operator, lessee, tenant, manager or other person possessing or occupying a drive-in theater in the city to show otherwise lawful presentations in such a manner as not to conflict with the provisions of this chapter. Specifically, this chapter shall not be construed or interpreted to apply to the following:

A.    Motion pictures which have been submitted to the Motion Picture Association of America, Inc., and which have received a rating or designation of “G,” “PG” (formerly “GP”), or “R” by the Code and Rating Administration of that organization, and which have thus received and are entitled to exhibit the Seal of the Motion Picture Code of Self Regulation;

B.    Motion pictures or movies in which the nudity or sexually explicit acts are not offensive, as defined hereinabove, but are innocent and nonerotic, such as, for example (and not by way of limitation), works of art or anthropological significance, scenes from a culture in which nudity is indigenous, or newsreel scenes of the opening of an art exhibit, or bathers on a beach, or the nude body of a war victim. (Ord. 77-3 § 5, 1977)

9.04.060 Penalty for violation.

A public nuisance maintained or existing in violation of this chapter may be enjoined, abated and prevented by action of the city attorney in the manner provided for the abatement of a public nuisance by the applicable laws of the state. (Ord. 77-3 § 6, 1977)