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Home My WebLink AboutNB 16 HOME VIDEO STR 04-06-81Apr~1 1~ t981 MAYOR ~ ~-~U3ERS O? ~E CI~ CO, OIL C O N P I D E N T I A L Tustln City Co~e Section 3253 provides that the sale or lease of lewd films in Tustin is a nuisance and may be a~a~ed way 'obscene" is defined in the Caii~o~a Penal C~ Sectio~ 31i. (Copies of ~stim~s provisions and ~e California ~utions are attached.) Th~ sa~e or lease of obscene matter is a ~i~ in the State of Califo~ia: Tustin's nuisa~c~ p~visioa me~y sets out an addition~ ~y to initiating c~tmina! proceedings. Mr. Fe~er~en has failed to rza!ize that t~e s~le or lease of lewd films is ili ga%; he has therefore proposed that he be aliow~d to sell and lease them in Tustln so long as bis ~nvento~-y i~ ma~e u? of no more than 10% lewd ~il~s. Enactin~ in9 ~im a b%:siness license, ~en, wo~ld e~ait ~ittin~ illegal __~ ~ of ~stia. This r~est mu~t be denied. Mr. Pe=ersen'~ admissiom that he will be_ selling and leasin~ lewd fi!~s is possibly the result of erroneous legal ad, ice. W-bile we have mo way of prt~dicting what, if any, addi- tional steps Mr. Petersen ~a~ take, it is certainly possible that he will attempt to retract his state~ent that he will be selling and leasing lewd films. In that event,, he must apply to the Pl~nnin~ Cor~mission for a dete~-mlnatioB o~ whether or not his C~e Sections 9297 and 9611~ and, if so, whaler a conditi~al use pe~it may ~ granted. We are ~repar~ng aD additioD~] legal sbDDi~ a deracination as to the ~adult" character you sborthly. L.~L:kg:D:4/!/8I Dan Bl=nker~hip, City Administrator M.~ke Brote~arkle. Co~-~m.anity Development Director Char!~s T~ay~r, Chief of Police Attachments will follow in a supplemental packet. § 310 Pr:N^L CODE any snch minor n tleket or ether p,pcr by which suel~ m~nor may t~e admitted to ~ place where a prizefight or cockfight is adverIi~('d to ;eke place, }~ guilty of ~ misdemeanor, and i~ In~nishal~le by a fine nf not exc(,~.di~g fifty dollars ($501 or by iml)risonmont in the county jail for not Inore tbllll 25 {lliy~ (AIncndcd by Stats.1972, e. 579, p. 10(~, ~ 36.) 1972 Amendment. Deleted the words "under the age of 18 year~" 8fret the .~ word~ "admlt~ ~ny minor". CHAPTER 7.5 ~JBSCENE MATTER Adult theater or bookstore: Public nul- P~estrlcting public ~li.qplay of offenslv~ sance? (1975) 10 U.S.F.L.P. ev. 115. materials: Public and private nuisance ac* Crusading trial court judge. 31arc Gal* tions. (1975} lO U.S.F.L. Re¥. 232, artier. Frank S. Palen. and John M. Thom* Social importance Of prurient Interest: as 0979) 52 SO,CaI.L.R. 699. Obscenity regulation v. Tbought-prtv&ey. .Mr. Justice Douglas on sex censorship. Leonard O. P. atner (1969) 42 So. CaI.L. tC Stanley Fleishman (1976) 51 Los Angeles 587. Bar J. 560. ' States maw not prohibit mere possession Obscenity and the Miller test. (1974) 2 of obscene n~,ateria~ (1970) 7 San Diego L. %Vest. St.L.R. 139. l~ev. 111. Obscenity--right to protection under the First Amendment. (1970) 10 Santa Clara L. 288. ~ 311. Definitions As nsed in this chapter: ia) "Obscene matter" means matter, taken as a whole, the predominant appeal of which to the average person, al)plying cnntemporary standards,' is to prurient i,nterest, i. e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary lboits of candor in description or representation of sneh matters; and is matter which taken as a whole is utterly without redeeming social importance. · I1) The predmntnant appeal to prurient interest of ti~e ~natter is lndged with reference to average adults nnless it appears from thc nature of the mutter or the circumstances of its dissemination, distribution or exhibitio~, that it is designed for clearly defined deviant sexual groups, in which ca~e the predominant appeal of the matter shall be judged with reference to its intended recipient gronp. (2) In prosecutions under this chaplet, where circumstances of production, pre- seatation, sale, dissemination, distribution, or publicity indicate that matter is being commercially explOited by the defendant for the sake of its prorient appeal, such evidence is probative with respect to the nature of the matter and elm jnstify the c'.mclusion that the matter is utterly without redeeming social importance. 13) In determining whether the nmttcr taken as a whole goes suhstantially be- yond cnstomary limits of candor itl description or representation of such mutters the fact that the defendant knew timt the matter dr, picts persons nnder the pge of I~ years engaged in sexual conduct, as defined in subdivision (e) of Section~ii.4~ is a factor which eau be considered itl male, ins such a dctermhmtion. (b) "Matter". means nny book, magazine, newspaper or other printed or .written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, 'or soy recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials. · · (e) "Person" means any Individual, partnership, firm, ~ssoeiation, corporation or other legal entity. id) "Distribute" means to transfer possession of, whether with or without eon- . sideratlon. (e) "Knowingly" means being aware of the character of the matter or live eon- duet. (fl "Exhibit" means to show. (g) "Obscene live conduct" mmms any physical haman body hctivity, whether performed or engaged in alone or with other persons, including but not limited to singing, speaking, dancing, acting, simnlating, or panto~nlming, where, taken as a Underline Indicates changes or additions by amendment 170 VgNaL COVS § 311 Note I whole, the predomhmnt oppea] of such conduct to the average person, applying ~n- temporary s[and, rds Is to prurient interest, i. o., a shameful or morbid tnteres~ ~n nudity, sex. or excretion; and is c~nduct which taken as a whole goes substan- tally beyond costonmry llm[~ of candor In description or representation of such .antters; and is eoodue[ which taken as a whole is atterly without redeeming s~lal Important. -- 11) ~he predomhmn~ appeal to prurient interest of the conduct is Judged with 'Ofel'onco to ~vo~a~P adnlt~ unless it appears from the nnture o{ the conduct or he cirennmtances of its produ~t[o~h prespntation or exhihitiou, that it is designed for clearly defincd ~vi~t ~xual groups, iu which case the predominant appeal _pr the ~nduct shall ~ ludg~ with referen~ to its intended r~ipieot group. (2) In prosecutions under this chapter, where circumstances o~ production, pr~ ,entation, advertising, or exhibition intNcato that live conduct ts being commercially exploited by the defend,tnt for the saki. of its prurient appeal, mmh evidence la pro- bative with respect to the nature of the conduct and eau Justify the conclusion ~.h:~t the conduct is ut~z!y withoat red*..r~dn~ social Jmportanco.. {3) In determining wh~:ther the live co*.]uc-t'tak~n as a whole goes substantially ~yond customary l~mi:s of candor in d.s,:r;ptien or rvpresentation of such mat- ~ors the fact that the 6ofendant km.w thor }in-, l[ve corlthlc: depicts person~ nndev th~ age of 16 years o::4a~d in sexual c~ (Amended by 8tats.13?.L :. 107g, p. lg0s, ] i: SDirAT~97g, e. 715, p. 2243, ~ 1.) rr'--+Ave Petition (1312). was rejected by' :1 tern at the general election held Nov. · -~d3ed subd. (g), (1), ~nr2 (1~7:)) I P~clfic L.J. __ Attempt to define ac:enter. (197'5> Pac. L.J. $~4. 1 P~p~tdln~ L. Rev. Df,interring of Roth. (1992) $ U.S.F.L. Rev..~9. ~I0 U.D.C.L~w Rev. Obscene but not h~rd. Howard Schwab (Oct. 1~71) {~ ~s ~n~el,a ~r Bull. Obscenity 8hal the l~w. (I9~D Z8 ...~ Obscenlt~ qus~ire. Burl P~nes Panderln~ of obscenity. (1970) 1 (1~70) I Pacific L.J. 371. It when I selz~ lt. ~chard O. Hirach and John ~. Ryam (1971} 4 ~yola 9. Determlmttlon that matlahIe matter ney v. Alabama, 1976. ~6 S.CL 11~9. ~24 U. S. ~9, 47 L. Ed.2d ~t7. - i a, t977, 97 S.Ct. t$~7, 431 U.S. 595. U. 293, 5g L.Ed.2d 293, 52 L.Ed.2d 43! U S. 29I, 52 L.Ed.2d 32t. 57 S.C:. 2635, 431 U.S. 767, 52 L,Ed.2d v. Sale.~, Inn, Inc., 1975, 95 S.Ct. 2561, ~-~_ne?-i public not attending drive-In :~ezters, see Erznoznlk v. City of Jack~ovsviHe. 1975. ~5 S. Ct. 22~5. 422 U.S. 205.45 L, Ed.2d 125. Supplementary Index to Notes Inlun¢tion~ 2.9 I. aw governing 2.5 Pa~les 6.5 Prior restraint 2.2 1. Validity Section 311.2 and this section setting forth definitions of obscenity and orohiblt- lng the printing, exhibiting, distributing such sections. Sandqulst v. Pltchesa (D.C. 1971) 332 F. gupp. 171. denied 97 S.Ct. 293~, 431 U.S. 973, 53 L.Ed. 2d 107t, Asterisks * * * Indicate deletions by amendment 171 § 311.2 Sending or bringing Into state for sale or distribution; printing, exhibit- lng, distributing or possessing within state; exemptions (al E'very person who knowingly sends or causes to he ~ent, or brln~ or cause~ to ~ brought, into this ~tate for mile or 'distribution, or in this slate prepares, lmbli~hes, or prints, wRh intent to distribute or to exhibit to others, or who offers to d~stribute, d~siributes, or exhH}Jts to others, nn~ obscene matter is guilts of a mi~dc, nwnnor. {b) ~vers person who knowingly sends or causes to be sen~ or brings or causes to ~ brought. ~nto this state 'for sale or distribution, or in this state pos~sses, pre, ares, pnblishes, or prints, with intent to distribu~ or to exhibit to others for commercial eonsifiera~ion, or who offers to distrilmte, distribntes, .or exhibi~ others for commercial consideration, an~ obs(~ne matter, knowing that such mat- ~r depicts a person m~der the age of iS yea~ l~rsonall~' engagh:g in or perso;mlly $~nLllatillg sexual il:terco.r~e, mastm'hation, sodomy, I~.~tiality, Or ora} copulation Is guilts of n felony and ~hall ~ pmfished by imprisonment in state l~rison for t~o, ehree, or four yi,::~, or by a fh]e :lot exc~ding filly thousand dolla~ tn the rtb~en~ of a fi::di::a that the dpfell(I:tnt would ~ incal.ahle of lrayin~ such a f~ne, ,)r by l-~th s;~,h f!:.~ and imprisomnent. (el The provi~ic:s of ~3is s,~cHon with respect to the exhibition of. or the pos- 7, ict~:re operator or ~r,,;-:t:~ ;,. t who Is t.llltl]oyed bi' a ~rson lic'e~sed b~ Cit~ or cotlnty ~d who ia aellng within ~e scope of his employmen~ pro~'ided ~_~ such operator or 970~ecConist has no ~naneial Interest tn the pla~ wherein i,~; }1~:'~9~ as o~L~r:vi~ proviaed in suMivlsion * * (e), the provisions ~:t ~o exLi~it. :~2 ~ ~: ~ matter shall not apPI~ to any ~rson who Is employed ~y a person.,,:-~--~,.....:, bv a:~v. city or co,tory and who is acting within the s~pe of ~e pla~ whets:/7: he :.s ~ employed and has no o)ntrol,, directly or indirectly, over the exhibition cf ~e obs..ne matter. : (Amended by Srars,1975, e. 793, p. 1817, ] 1; Stats.1977, e. 1~1, p. 3~01, ~ 1, urgency, eft. Sept. ~4, 19773 · '' ~2~1 PC~RPOSE Part 5 Lewd Films ha City Council finds that the commerciat exploitation of explicit sexual --onduct through the public sale or exhibition of lewd films constitutes a debasement of family life' the community and the public health and velfare; is offensive to the senses and interferes with the quality of life ~n the community and the total com,,-nunity environment; is detrimental to City commerce, property values and to th~ public safety; and that the operation of such activities is d~tv~mental to the health, safety, good con~e..~ ..... and gena~a~ ~..'_~a of the City of Tustin and of i~s tes;d~nts, citizens and ~s ...... s. The City Council daclar~s such -- ~=~ivities to b~ r ..... :~c nu:s ~-? herein establishes procedures for the aba~ernent Ih:.: cu, . a) Lewd ~'~ 3253 EXHIBITION AND SALE OF LEWD FILMS - PUBLIC NUISANCE a) ' Any and every place in the City of Tustin where lewd films are publieally exhibited, rented, leased or sold or is possessed for such purposes is a public nuisance per se. 3254 KNOWLEDGE OF NUISANCE PRESUMED FROM SERVICE OF RESOLUTION; ABATEMENT a) Upon receiving notice through service of a certified copy of this Part and a certified copy of the resolution provided for herein, any and every person who shall own, legally or equitably, lease, main- tain, manage, conduct or operate a place in the City of Tustin which is d~clared to be a public nuisance as set forLh and stated in Section 3253 hereof is deem, ed to be a person who has knowledge of such' r, ui:~nce for the p?;D~se of this Part and is, th~rea,~.r, responsible ~--,._,~ ;ts mainten~ace, snd shall be liable therefor. Ti~ p!aces and s~bj.ect matter declared to be public nuisances under ~:tie,'~ 3253,,:.~__:, ~ "~-~ s~=h be abated pursuant to Covernment Code b) E~:t;ons 38773 zn~ 3~773.5, Code of Civil Procedure Section a:;J Civil Co~e :~.::~crs 3491 and 349/~, as p~oVided fo~ herein. 3255 ACTION BY CiTY COUNCIL Upon a specific finding that a public nuisance, as defined in Section 3253 he~eof, exists in ~he ~i~y of Tustin, the ~ity ~ouncil, in applying the p~ov~s~ons of this Pare to such nuisance, shall pmvid9 for ~he following by · Declare the fact that su'eh nuisance exists; b) Set forth the description or legal description and street address of the real property which constitutes the nuisance; Set forth a statement of facts upon which the City Council declaration of nuisance is based..' Order the revocation of alt licenses and permits which have been resolution: a) c) issued as a part of the operation of such busin~ss¢ subject tO i 24 --25 ........ ~[ ........ "Knowledge" 1) the average person, epplying contemporary community stanol- ards, would find~ when considered as a whole, eppea~s to [he prurient interest; and 2) depicts or describes patently offensive representations or descriptions of: a) Ultimate sexual acts, normal or perverted, actual or simulated; or b) masturbatlon~ excretory functions~ or lewd exhibition of the genitals or genital area. Nothing herein contained is intended to include or proscribe any film which, when considered as a whole, a0d. in the con[e~ in ~hiCh it is used~ possesses ser]~s literary, a~[ist~c~ political or scientific value. b) Piace "~lace" inc'.~,~e~, 5'Jr is not Hm[ted to, any building, structure or p~c~, o~ azy sep~rat~ part or portion thereof, whether permanent 2) fi?:~ c,~ plate positive; 3) fi~m d~s]gn~d to be projected on a screen for exhibition; 4) films, glass slides o~ transparencies, either in negative o~ pos~.tiva form desigr,ed for exhibition by projection on a scCeen; 5) video tape or any-other medium used to electronically repro- duce images on a screen. d) Person "Person" m~ans any individual, partnership, firm, a~ocia[ion, corp- oration or other legal entity. e) Kno'.vIedge means having knowledge of the contents and character DATE: April 1, 1981 Inter - C om TO: FROM: SUBJECT: MR. & MRS. LARRY PETERSEN - PROPOSED HOME VIDEO STORE CONFIDENTIAL ADULT BUSINESSES HONORABLE MAYOR & MEMBERS OF THE CITY COUNCIL JAMES G. ROURKE, CITY ATTORNEY, THOMAS L. WOODRUFF, ASSISTANT CITY ATTORNEY AND LYDIA S. LEVIN, DEPUTY CITY ATTORNEY Speech (including video tapes) which is not obscene but which is sexually explicit may be regulated to a certain extent. In Young v. American Mini Theatres, 427 U.S. 50 (1976), the U.S. Supreme Court upheld Detroit's ordinance requiring that adult businesses be dispersed, and that they nc5 be locate~ w±thin prescribed distances of churches, schools, etc. Tustin's ordinance is virtually identical tc the Detroit ordinance upheld in Younq. Therefore, adaL~ businesses in the City of Tustin must be located in C-l, C-2, or C-3 districts, and may not be located: 1) ~±thin t,000 feet of a lot zoned for residential use or Dccupied as a residential use; 2) within 1,000 feet of a church or school for minors; 3) within 1,000 feet of a public park or playground; or 4) within 1,000 feet of another adult buslness. As noted ±n the Police Department's report, tko location s~lected by Mr. Petersen violates several of these requirements. "Adult Bookstore" is defined in Tustin Ordinance No. 819 (and in Detroit's ordinance) as "an establishment having as a substantial or significant portion of its stock in trade, material which is distinguished or character- ized by its emphasis on matter depicting, describing, or related to specified sexual activity or specified anatomical areas, or an establishment with a segment or section thereof devoted to the sale or display of such material." (Again, even if the material is not obscene, if it emphasizes specified sexual activ--~ies or areas, it may be regulated under the sorts of zoning requirements contained in Tustin's Code). -1- PAGE 2 MR. & MRS. LARRY PETERSEN - PROPOSED HOME VIDEO STORE "Adult Businesses" encompasses "Adult Bookstores", and "material" sold, leased, or exhibited at Adult Bookstores includes video tapes. The question, then, is whether or not Mr. Petersen's proposed business falls within the definition of "Adult Bookstore." The problem is as follows: Mr. Petersen is going to stock, at most, 10% adult films. All these films (see attached diagrams) are going to be contained in a locked cabinet. There is, then, no "segment or section" of the establishment "devoted to the sale or display of such material (adult films)," so as to bring the business within the latter portion of the definition of "Adult Bookstore." Therefore, in order to come within the definition of "Adult Bookstore" and to be subject to the zoning requirements of Tustin Code Section 9612, Mr. Petersen's proposed business must have, as a "substantial or significant portion of its stock in trade (adult materials)." In legal ~arlance, this question involves a serious vagueness problem. Statutes are struck down as un- co~saitutionall/ vague if persons of "common intelligence mus~ necessar~ly ~uess at its meaning." Mc~urtv v. State Board cf ~4edical Examiners, 180 ~.A.2d, 760 766 (1960). The Supreme Cour5 in Young noted the potential vagueness prckle~, but 5i~ non have to address it because the businessmen i~¥~alred in tket case admitted that they fell within the statume's ieflnitions. T~e Youn~ Court did state tka5 the va~2eness problem could be eliminated by the state courts imposzn? a narrowing construction. At least one federal court, examining a Young-type ordinance (an5 thus an ordinance virtually identical to Tustin's), has held that ordinance unconstitutionally vague as applied to a situation much like Mr. Petersen's (i.e. where the individual does not admit that he is or will be running an adult business, and where the adult-type material constitutes a small fraction of total inventory). See Entertainment Concepts, Inc., III v. Magiejewski, 631 ~'['2d 497, 503 (7~h Cir. 1980). In another case, Prin~le v~ City of Covina, 115 C.A. 3d 151 (1981), the City of Covina's ordinance, a California court interpreted the section of that city's ordinance defining adult theaters as theaters "used" for presenting material "distinguished or characterized by an emphasis on depicting or describing specified sexual activities. ." The Court ruled that the word "used" had to be interpreted to mean that those sorts of films -2- PAGE 3 MR. & MRS. LARRY PETERSEN - PROPOSED HOME VIDEO STORE constitute a preponderance of the films offered. The Pringle Court stressed that the occasional showing of an x-rated film was not enough to allow the City to regulate the theater as an Adult theater and to zone it accordingly. Several cities have, in fact, used "preponderance" in place of "substantial or significant" in defining "Adult Bookstore." Doing so clearly eliminates the vagueness problem but, of course, does not take care of the Petersen-type situation. However, as the Pringle Court makes clear, a city cannot regulate every business which sells any amount of "adult" material', for the simple reason that the city cannot rationally (and legally) conclude that a bookstore offering, for example, one "adult" book out of thousands constitutes a threat to a neighborhood. In sum~ary, then, were this ordinance taken to ccurc by Mr. Petersen, the court might well conclude either that the ordinance, as applied to Mr. Petersen, is unccnstituticna!iy vague, or that, in order to be con- stitutional, uhe words "substantial or significant" mus5 be construed as meaning a "preponderance", and that, therefore, he ?nust be allowed to operate his business as 3roposed. ~?herefore, assuming Mr. Petersen at some point retracts hie 555nement that he will be selling lewd fil~s, the C~uncli may: Grant him a business license, but caution him that the City will be viligant in seeking an a~judication of apparently lewd films and in moving for abatement Of the activity should he sell lewd films; or Deny the license by concluding that the proposed business does fall within the "Adult Business" definition, and that, since the Newforth Center location fails to comply with the zoning regulations provided in Tustin's ordinance, Mr. Petersen may not operate the proposed business out of that location. (Note that he may operate it, assuming he will not be selling lewd films, from a location which meets the zoning requirements of Tustin City Code Section 9612.) Should the City choose the latter alternative, and Mr. Petersen institutes litigation, he may choose to file for damages based on an alleged violation of his constitutional rights. Note that both the City and -3- PAGE 4~ MR.& MRS. LARRY PETERSEN - PROPOSED HOME VIDEO STORE those individuals involved in the decision, including Council members, may be held liable should Mr. Petersen prevail. In addition, one California court recently threatened to impose sanctions against a City which appealed a ruling that its licensing scheme was unconstitutional. The threat was made because the same issues had been'recently decided in another California case, and the court stated that the appeal was, therefore, marginally frivolous. In the alternative, he may file for a writ of mandamus. In view of that eventuality, should Mr. Petersen retract his statement and ask for a new hearing, the City should notice and hold a formal hearing. Sec CoC.P. Section 1094.5. CONCLUSiOi[ Assuminc that Mr. Petersen retracts his statement that he will be selling and leasing lewd films, he should apply to uhe Planning Co~ission for a Conditional Use Permit which necessa~'i!y includes a determination as to whether cr not the buszness will constitute an "Adult Business", a~_c. [ f so, 7~kether it complies with the zoning require- menus for those businesses. The Commission may, after hea~-inq, determine that the business is not an "Adult Business". i~% Uks% event it may nevertheless require thau a con~!iulcnal use permit be obtained to insure that no more than i9% cf the films stocked are "adult", that they will not be displayed, etc. We believe a valid and reasonable factual basis exists to require this procedure and as such would constitute a formidable defense to any action for damages brought by the applicant. LSL:kg:K:4/1/81 cc: Dan Blankenship, City Administrator Mike Brotemarkle, Community Development Director Charles Thayer, Chief of Police -4-