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HomeMy WebLinkAbout83-6-2388611 ORDINANCE NO. 83-6-2388 AN ORDINANCE OF THE CITY OF PADUCAH DECLARING THE COMMERCIAL EXPLOITATION OF OBSCENE MOTION PICTURE FILMS AND OBSCENE PUBLICATIONS TO BE CONTRARY TO PUBLIC HEALTH, SAFETY, AND GENERAL WELFARE, AND A PUBLIC NUISANCE; DECLARING ANY PLACE DISPLAYING OR EXHIBITING SUCH OBSCENE MOTION PICTURE FILMS OR PUBLICATIONS TO BE A PUBLIC NUISANCE PER SE; MAKING ALL OBSCENE MATTER AND PUBLICATIONS POSSESSED IN SUCH PLACES A PUBLIC NUISANCE PER SE; PROVIDING FOR NOTICE AND LEGAL PROCEEDINGS TO ABATE THE SAME; AND PROVIDING A PROCEDURE FOR ASSESSMENT AND COLLECTION OF COSTS OF ABATEMENT. BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF THE CITY OF PADUCAH, KENTUCKY: SECTION 1. That the Board of Commissioners create Article VII of Chapter 19 of the Code of Ordinances of the City of Paducah" by adopting Sections 19-150, 19-151, 19-152, 19-153, 19-154, 19-155, 19-156, and 19-157 to read as follows: "SECTION 19-150. PURPOSE; POLICY; AUTHORITY; APPLICATION. The Board of Commissioners find 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 of Paducah 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 Section 82.082 of the Kentucky Revised Statutes, the Board of Commissioners hereby 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 ordinance shall apply to existing establishments which are presently engaged in the activities herein declared to be public nuisances. "SECTION 19-151. DEFINITIONS. (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) "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, d-istribution 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, dis- tribution, or publicity indicate that matter is being commercially exploited by the defendant 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. 612 Nothing herein contained 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. (C) "Matter" shall mean a motion picture film or a publication, or both; (D) "Motion picture film" shall include 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. (E) "Person" means any individual, partnership, firm, association, cor- poration, 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" shall include 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. SECTION 19-152. OBSCENE FILMS AND THEATERS EXHIBITING THE SAME DECLARED A PUBLIC NUISANCE PER SE; ADMISSION PRICE RECEIVED AFTER SERVICE OF RESOLUTION TO BE REGARDED AS A PUBLIC NUISANCE PER ACCIDENS. The following are declared to be public nuisances per se: (A) Any and every place in the City of. Paducah where obscene films are publicly exhibited as a regular course of business, or possessed for the purpose of such exhibition; (B) Any and every place in the City of Paducah where an obscene film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition; and (C) Any and every obscene film which is publicly exhibited or possessed for such purpose 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 this ordinance and a certified copy of the resolution provided for herein, all monies paid thereafter as admission price to such exhibitons shall be regarded as being a public nuisance per accidens, as personal property used in conducting and maintaining a declared public nuisance as to which forfeiture will be requested in the judicial proceedings required herein. "SECTION 19-153. PLACE OF BUSINESS IN WHICH OBSCENE PUBLICATIONS CONSTITUTE A PRINCIPAL PART OF THE STOCK IN TRADE AND 'OBSCENE PUBLICATIONS POSSESSED THEREIN DECLARED A PUBLIC NUISANCE PER SE; VALUABLE CONSIDERATION RECEIVED FOR SALE AFTER SERVICE OF RESOLUTION TO BE REGARDED AS A PUBLIC NUISANCE PER ACCIDENS. The following are declared to be public nuisances per se: 613 (A) Any and every place of business in the City of Paducah 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 this ordinance and a certified copy of the resolution provided for herein, all valuable consideration received for the sale of such obscene publications shall be regarded as being a public nuisance per accidens, as personal property used in conducting and maintaining a declared public nuisance, as to which for- feiture will be requested in the judicial proceedings required herein. "SECTION 19-154. KNOWLEDGE OF NUISANCE PRESUMED FROM SERVICE OF COPY OF RESO- LUTION; RESPONSIBILITY OF PARTIES THEREFOR; ABATEMENT" OF SUCH NUISANCES. (A) Upon receiving notice through service of a certified copy of this ordinance and of a certified copy of the 'resolution provided for herein, any and every person who shall own, legally or equitably, lease, maintain, manage, conduct, or operate a place in the City of Paducah which is declared to be a public nuisance as set forth and stated in Section 19-152 or Section 19--153 of the Code of Ordinances of the City of Paducah, is deemed to be a person who has knowledge of such nuisance for the purpose of this ordinance and is, there- after, responsible for its maintenance, and shall be liable therefor. (B) The places and subject matter declared to be public nuisances under Section 19-152 or Section 19-153 of the Code of Ordinances of the City of Paducah shall be abated, as provided for herein. "SECTION 19-155. ACTION TO BE TAKEN BY BOARD OF COMMISSIONERS. Upon a specific finding that -a public nuisance, as defined in Section 19-152 or Section 19-153 of the Code of Ordinances of the City of Paducah, exists in the City of Paducah, the Board of Commissioners, in applying the provisions of this ordinance 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 Board of Commissioners' de- claration 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 proceedingsl 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 Board o Commissioners has been confirmed by judicial order; pe (E) Order the- Corporation Counsel to give written notice to all ersoonss named in Section 19-154(a) of the Code of Ordinance of the City of Paducah, public nuisances im- mediately, by terminating the exhibitions of such obscene film or films and sale or offering for sale of such publications, or causing the same to be terminated; (F) Order the Corporaton-Counsel-to proceed as directed in Section 19-156 of the Code of Ordinances of the City of Paducah 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 19-154(A) of the Code of Ordinances of the City of "Paducah that: (1) The Board of Commissioners has determined that a public nuisance pre- sently exists at such place and address, and has revoked the licenses and permits at that -place, subject- to court confirmation, and that, under Section 19-154 of the "Code of Ordinances of the City of Paducah they are deemed to have knowledge thereof and are responsible therefor; 614 (2) The Board of Commissioners has ordered the Corporation Counsel, as provided for under Section 19-156 of the Code of Ordinances of the City of Paducah, to com- mence legal proceedings naming such persons as defendants in a civil action to abate the same judicially, 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 19-157 of the Code of Ordinances of the City of Paducah, 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 Board of Commissioners, 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 Corporation Counsel. (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 this ordinance and a certi- fied copy of such resolution, any and all monies 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 publications, shall. be regarded as being a public nuisance per accidens, as personal property used in conducting and maintaining such nuisance, and as gain derived from a wrongful act, and that forfeiture of the same will be requested in the judicial pro- ceedings required herein; (H) Order that a certified copy of said resolution and a certified copy of this ordinance be delivered forthwith in any manner normally used to effectuate personal service of process as 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. "SECTION 19-156. ACTION TO BE TAKEN BY DISTRICT ATTORNEY. Upon a specific finding by resolution of the Board of Commissioners of the fact that a public nuisance exists at a particular location, the Corporation Counsel shall: (A) Forthwith, but not later than five (5) working days after passage of said reso- lution, commence legal proceedings by the filing of a civil action seeking the following relief: (1) an order that the subject matter identified by the Board of Commissioners in said resolution is obscene as defined herein; (2) an order that each place named by the Board of Commissioners is a public nuisance and that the action taken by the Board of Commissioners to revoke the licenses issued to that place of business was lawful; (3) an injunction enjoining and restraining all persons maintaining said nuisance from possessing or publicly exhibiting said obscene motion picture films, or from selling or possessing for sale said obscene publications at any time in the future in the City of Paducah,, and such _other injunctive relief as the court may order; (4) an order that all positive prints of such obscene films and all such obscene publications or copies or reproductions thereof be forfeited as contraband;' (5) an accounting of all monies 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 publications from and after the time the person or persons maintaining said nuisance received a copy of the 615 resolution of the Board of Commissioners' finding that a public nuisance and a judilment that such monies are gain derived from a wrongful act and a -public nuisance; (6) an order that all admission price monies or valuable consideration received and enumerated in the court ordered accounting be forfeited as required by law; (7) judgment of the City of Paducah 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 herein; 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 McCracken County Clerk, giving the names of the parties, the object of the action, and a description of the property thereby affected. "SECTION 19-157. COST OF ABATEMENT; ASSESSMENT; ASSESSMENT REPORT; HEARING ON ASSESSMENT REPORT; ASSESSMENT RESOLUTION; COLLECTION. (A) The cost of abatement is hereby 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 herein, 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 Court judgment adjudicating the existence of a public nuisance in any proceedings instituted pursuant to these sections, the Corporation Counsel shall file with the City Clerk 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 Board of Commissioners and shall, not less than ten (10) days prior to the date set for such hearing, serve notice of assessment upon the owners, which notice shall specify the day, hour and place when the Board of Commissioners 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 Board of Commissioners shall hear and pass upon the assessment report together with any objections or protests which may be raised by any of the owners of any property liable to be assessed for the costs of abatement of any other interested persons. The Board of Commissioners 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 Board of Commissioners may adjourn the hearings from time to time. The decisions of the Board of Commissioners on all protests and objections which may be made shall be final and con- clusive. (D) Upon confirmation of the assessment report, the Board of Commissioners 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 other- wise provided in such resolution, any such assessment shall become due thirty (30) days after adoption of such resolution and shall thereafter bear interest at the rate of fifteen per cent (15%) per year. The Board of Commissioners 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 City Treasurer. The City Treasurer, prior to August 10 of each year, shall determine if any assessment, or portion thereof, is due and unpaid, and if he so determines, such assessment shall be collected at the same time and in the same manner as ordinary City 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 City taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assess - went. 616 SECTION 2. If any section, subsection, sentence, clause, phrase or portion of this ord' reason held to be invalid or unconstitutional by the decision of any court of competent jurisdicti shall not affect the. validity of the remaining portions of this ordinance. The Board of Commission Paducah hereby declares that it would, have adopted this ordinance and each section, subsection, s phrase or portion thereof irrespective of the fact that any one or more sections, subsections, se phrases or portions be declared.invalid or unconstitutional.. SECTION 3. This ordinance shall be read on two separate days and will be effective upon certified summary thereof. Joe V_iterisi Mayor Protem Introduced by the Board of Commissioners May 31,.1983 Passed by the Board of Commissioners June 14, 1983 Recorded by Louise McKinney, City Clerk, June 14, 1983 Published by The Paducah Sun June 20, 1983. ante is for a a, such decisf rs of the Cita atence, clause :ences, clause publication of