Chapter 8.18
MORAL NUISANCES
Sections:
8.18.030 Designated—Additional.
8.18.040 Abatement, enjoinment—Additional to other remedies.
8.18.050 Temporary injunction—Application—Restraining order issuance and effect.
8.18.060 Temporary injunction—Application—Hearing.
8.18.070 Temporary injunction—Issuance—Closure when.
8.18.080 Restraining, closure order—Nonissuance, cancellation when—Effect.
8.18.090 Admission or finding of guilt—Admissibility.
8.18.100 Reputation of inmates or building—Admissibility.
8.18.110 Abatement order, sale of property—Procedure—Penalty for violation of section.
8.18.120 Perpetual enjoinment when.
8.18.140 Lewd matter declared contraband—Effect on property rights.
8.18.150 Projectionist, usher, ticket taker—Nonapplicability of criminal statutes when.
8.18.010 Definitions.
The definitions set forth in this section shall apply throughout this chapter as they relate to moral nuisances.
(1) “Knowledge” or “knowledge of such nuisance” means having knowledge of the contents and character of the patently offensive sexual conduct which appears in the lewd matter, or knowledge of the acts of lewdness, assignation or prostitution which occur on the premises.
(2) “Lewd matter” is synonymous with “obscene matter” and means any matter:
(a) Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and
(b) Which depicts or describes patently offensive representations or descriptions of
(i) Ultimate sexual acts, normal or perverted, actual or simulated; or
(ii) Masturbation, excretory functions, or lewd exhibition of the genitals or genital area.
Nothing contained in this definition is intended to include or prescribe 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.
(3) “Lewdness” has and includes all those meanings which are assigned to it under the common law.
(4) “Matter” means a motion picture film or a publication or both.
(5) “Moral nuisance” means a nuisance which is injurious to public morals.
(6) “Motion picture film” includes any:
(a) Film or plate negative;
(b) Film or plate positive;
(c) Films designed to be projected on a screen for exhibition;
(d) Films, glass slides, or transparencies, either in negative or positive form, designed for exhibition by projection on a screen;
(e) Video tape or any other medium used to electronically reproduce images on a screen.
(7) “Person” means any individual, partnership, firm, association, corporation, or other legal entity.
(8) “Place” includes, but is not limited to, any building, structure, or places, or any separate part or portion thereof, whether permanent or not, or the ground itself.
(9) “Publication” includes any book, magazine, article, pamphlet, writing, printing, illustration, picture, sound recording, or a motion picture film which is offered for sale or exhibited in a coin-operated machine.
(10) “Sale” means a passing of title or right of possession from a seller to a buyer for valuable consideration, and includes, but is not limited to, any lease or rental arrangement or other transaction wherein or whereby any valuable consideration is received for the use or transfer of possession of lewd matter.
(11) “Court” means the Sumas municipal court. (Ord. 768 § 1, 1978; Ord. 736 § 1, 1976)
8.18.020 Designated.
The following are declared to be moral nuisances:
(1) 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;
(2) Any and every place in the city where a lewd film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition;
(3) Any and every lewd film which is publicly exhibited, or possessed for such purpose at a place which is a moral nuisance under this chapter;
(4) Any and every place of business in the city in which lewd publications constitute a principal part of the stock in trade;
(5) Any and every lewd publication possessed at a place which is a moral nuisance under this chapter;
(6) Every place which, as a regular course of business, is used for the purpose of lewdness, assignation, or prostitution, and every such place in or upon which acts of lewdness, assignation, or prostitution are conducted, permitted, carried on, continued or exist;
(7) All public houses or places of resort where illegal gambling is carried on or permitted; all houses or places within the city or upon any public road, or highway where drunkenness, illegal gambling, fighting, or breaches of the peace are carried on or permitted; all opium dens, or houses, or places of resort where opium smoking is permitted. (Ord. 736 § 2, 1976)
8.18.030 Designated—Additional.
The following are also declared to be moral nuisances, as personal property used in conducting and maintaining a moral nuisance:
(1) All moneys paid as admission price to the exhibition of any lewd film found to be a moral nuisance;
(2) All valuable consideration received for the sale of any lewd publication which is found to be a moral nuisance;
(3) The furniture, fixtures, and contents of a place which is a moral nuisance.
From and after service of a copy of the notice of hearing of the application for a preliminary injunction, provided for in Section 8.18.060 upon the place or its manager, acting manager, or person then in charge, all such persons are deemed to have knowledge of the acts, conditions, or things which make such place a moral nuisance. Where the circumstantial proof warrants a determination that a person had knowledge of the moral nuisance prior to such service of process, the court shall make such finding. (Ord. 736 § 3, 1976)
8.18.040 Abatement, enjoinment—Additional to other remedies.
In addition to any other remedy provided by law, any act, occupation, structure, or thing which is a moral nuisance may be abated, and the person doing such act or engaged in such occupation, and the owner and agent or the owner of any such structure or thing, may be enjoined as provided in Sections 8.18.050 through 8.18.080. (Ord. 736 § 4, 1976)
8.18.050 Temporary injunction—Application—Restraining order issuance and effect.
(a) Where such application for a temporary injunction is made, the court or judge thereof may, on application of the complainant showing good cause, issue an ex parte restraining order, restraining the defendant and all other persons from removing or in any manner interfering with the personal property and contents of the place where such nuisance is alleged to exist, until the decision of the court or judge granting or refusing such temporary injunction and until the further order of the court thereon, except that pending such decision, the stock in trade may not be so restrained, but an inventory and full accounting of all business transactions may be required.
(b) The restraining order may be served by handing to and leaving a copy of such order with any person in charge of such place or residing therein, or by posting a copy thereof in a conspicuous place at or upon one or more of the principal doors or entrances to such place, or by both such delivery and posting. The officer serving such restraining order shall forthwith make and return into court an inventory of the personal property and contents situated in and used in conducting or maintaining such nuisance.
(c) Any violation of such restraining order is a con tempt of court and where such order is posted, mutilation or removal thereof while the same remains in force is a contempt of court if such posted order contains therein a notice to that effect. (Ord. 736 § 5, 1976)
8.18.060 Temporary injunction—Application—Hearing.
(a) A copy of the complaint, together with a notice of the time and place of the hearing of the application for a temporary injunction, shall be served upon the defendant at least three days before such hearing. The place may also be served by posting such papers in the same manner as is provided for in Section 8.18.050 in the case of a restraining order. If the hearing is then continued at the instance of any defendant, the temporary writ as prayed shall be granted as a matter of course.
(b) Before or after the commencement of the hearing of an application for a temporary injunction, the court, on application of either of the parties or on its own motion, may order the trail of the action of the merits to be advanced and consolidated with the hearing on the application for the temporary injunction. Any evidence received upon an application for a temporary injunction which would be admissible in the trail on the merits becomes a part of the record of the trial and need not be repeated as to such parties at the trial on the merits. (Ord. 736 § 6, 1976)
8.18.070 Temporary injunction—Issuance—Closure when.
(a) If upon hearing, the allegations of the complaint are sustained to the satisfaction of the court or judge, the court or judge shall issue a temporary injunction without additional bond, restraining the defendant and any other person from continuing the nuisance.
(b) If at the time the temporary injunction is granted, it further appears that the person owning, in control of, or in charge of the nuisance so enjoined had received three days’ notice of the hearing, then the court shall declare a temporary forfeiture of the use of the real property upon which such public nuisance is located and the personal property located therein, and shall forthwith issue an order closing such place against its use for any purpose until a final decision is rendered on the application for a permanent injunction, unless:
(1) The person owning, in control of, or in charge of such nuisance shows to the satisfaction of the court or judge, by competent and admissible evidence which is subject to cross-examination that the nuisance complained of has been abated by such person; or
(2) The owner of such property, as “good faith” lessor, has taken action to void said lease as is authorized by Section 8.18.130.
(c) Such order shall also continue in effect for such further period as the order authorized in Section 8.18.050 provides. If no order has been issued pursuant to Section 8.18.050, then an order restraining the removal or interference with the personal property and contents located therein shall be issued. Such restraining order shall be served and the inventory of such property shall be made and filed as provided for in Section 8.18.050.
Such order shall also require such persons to show cause within thirty days why such closing order should not be made permanent as provided for in Section 8.18.110. (Ord. 736 § 7, 1976)
8.18.080 Restraining, closure order Nonissuance, cancellation when Effect.
The owner of any real or personal property to be closed or restrained, or which has been closed or re strained, may appear after the filing of the complaint and before the hearing on the application for a permanent in junction.
The court, if satisfied of the good faith of the owner of the real property and of the innocence on the part of any owner of the personal property of any knowledge of its use as a nuisance, and that with reasonable care and diligence such owner could not have known thereof, shall, at the time of the hearing on the application for the temporary injunction and upon payment of all costs incurred and upon the filing of a bond by the owner of the real property with sureties to be approved by the clerk in the full value of the property to be ascertained by the court, conditioned that such owner will immediately abate the nuisance and prevent the same from being established or kept, refrain from issuing any order closing such real property or restraining the removal or interference with such personal property, and, if such temporary injunction has already been issued, shall cancel the order and shall deliver such real or personal property, or both, to the respective owners thereof. The release of any real or personal property under this section shall not release it from any judgment, lien, penalty, or liability to which it may be subjected by law. (Ord. 736 § 8, 1976)
8.18.090 Admission or finding of guilt Admissibility.
In such action, an admission or finding of guilt of any person under the criminal laws against lewdness, prostitution, or assignation at any such place is admissible for the purpose of proving the existence of such nuisance, and is prima facie evidence of such nuisance and of knowledge of, and of acquiescence and participation therein, on the part of the person charged with maintaining such nuisance. (Ord. 736 § 9, 1976)
8.18.100 Reputation of inmates or building Admissibility.
At all hearings upon the merits, evidence of the general reputation of the building or place constituting the alleged nuisance, or the inmates thereof, and of those resorting thereto, is admissible for the purpose of proving the existence of such nuisance. (Ord. 736 § 10, 1976)
8.18.110 Abatement order, sale of property—Procedure—Penalty for violation of section.
(a) If the existence of a nuisance is admitted or established in an action as provided for in Section 8.18.120 or in a criminal proceeding, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the place of all personal property and contents used in conducting the nuisance and not already released under authority of the court as provided for in Sections 8.18.070 and 8.18.080 and shall direct the sale of such thereof as belong to the defendants notified or appearing, in the manner provided for the sale of chattels under execution.
Lewd matter shall be destroyed and shall not be sold.
(b) Such judgment shall impose a penalty of two hundred fifty dollars for the maintenance of such nuisance, which penalty shall be imposed against the person or persons found to have maintained the nuisance, and, in case any owner or agent of the building found to have had actual or constructive notice of the maintenance of such nuisance, against such owner or agent, and against the building kept or used for the purposes of maintaining a moral nuisance, which penalty shall be collected by execution as a civil action, and when collected, shall be paid into the current expense fund of the city.
(c) Such order shall also require the renewal for one year of any bond furnished by the owner of the real property, as provided in Section 8.18.080 or, if not so furnished, shall continue for one year any closing order issued at the time of granting the temporary injunction, or, if no such closing order was then issued shall include an order directing the effectual closing of the place against its use for any purpose and keeping it closed for a period of one year unless sooner released.
(d) The owner of any place closed and not released under bond may then appear and obtain such release in the manner and upon fulfilling the requirements provided in Section 8.18.080.
(e) Owners of unsold personal property and contents so seized must appear and claim the same within ten days after such order of abatement is made, and prove innocence to the satisfaction of the court of any knowledge of such use thereof, and that with reasonable care and diligence they could not have known thereof. If such innocence is established, such unsold personal property and contents shall be delivered to the owner, otherwise it shall be sold as provided in this section. For removing and selling the personal property and contents, the officer shall be entitled to charge and receive the same fees as he would for levying upon the selling like property on execution; and for closing the place and keeping it closed, a reasonable sum shall be allowed by the court.
(f) A party found guilty of contempt under the pro visions of this section shall be punished by a fine of not less than two hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than three nor more than six months, or by both fine and imprisonment. (Ord. 736 § 11, 1976)
8.18.120 Perpetual enjoinment when.
The city attorney or city prosecutor may maintain an action of an equitable nature in the name of the city upon the relation of such city attorney or city prosecutor to abate a moral nuisance, to perpetually enjoin all persons from maintaining the same, and to enjoin the use of any structure or thing adjudged to be a moral nuisance. (Ord. 736 § 12, 1976)
8.18.130 Lease—Void when.
If a tenant or occupant of a building or tenement, under a lawful title, uses such place for the purposes of maintaining a moral nuisance, such use makes void at the option of the owner the lease or other title under which he holds, and without any act of the owner causes the right of possession to revert and vest in such owner, who may without process of law make immediate entry upon the premises. (Ord. 736 § 13, 1976)
8.18.140 Lewd matter declared contraband—Effect on property rights.
Lewd matter is contraband, and there are no property rights therein. All personal property declared to be a moral nuisance in Sections 8.18.020 and 8.18.030 and all moneys and other consideration declared to be a moral nuisance under Section 8.18.040 are the subject of forfeiture to the local government and are recoverable as damages in the city wherein such matter is sold, exhibit ed, or otherwise used. Such moneys may be traced to and shall be recoverable from persons who, under Section 8.18.060, have knowledge of the nuisance at the time such moneys are received by them. (Ord. 736 § 14, 1976)
8.18.150 Projectionist, usher, ticket taker Nonapplicability of criminal statutes when.
The provisions of any criminal statutes with respect to the exhibition of, or the possession with the intent to exhibit, any obscene film shall not apply to a motion picture projectionist, usher, or ticket taker acting within the scope of his employment if such projectionist, usher or ticket take (1) has no financial interest in the place wherein he is so employed, other than his salary, and (2) freely and willingly gives testimony regarding such employment in any judicial proceedings brought under RCW 7.48.050 through 7.48. 100 as now or hereafter amended, including pretrial discovery proceedings incident thereto, when and if such is requested, and upon being granted immunity by the trial judge sitting in such matters. (Ord. 736 § 15, 1976)