Chapter 9.12
MORAL NUISANCES
Sections:
9.12.020 Moral nuisances declared – Places, films, and publications.
9.12.040 Abatement authorized.
9.12.070 Temporary injunction – Issuance – Closing orders.
9.12.080 Response of owner – Conditions for not issuing restraining and closing orders.
9.12.090 Admissible evidence – Admission or finding of guilt.
9.12.100 Admissible evidence – General reputation.
9.12.110 Permanent injunction issued – Expenses recoverable by county.
9.12.130 Action by prosecuting attorney.
9.12.140 Leases, titles and rights become void.
9.12.150 Personal property subject to forfeiture.
9.12.010 Definitions.
The definitions set forth in this section shall apply throughout this chapter as they relate to moral nuisances.
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 lewd matter, or knowledge of the acts of lewdness, assignation or prostitution which occur on the premises.
B. “Lewd matter” is synonymous with “obscene matter” and means any matter:
1. Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and
2. Which depicts or describes patently offensive representations or descriptions of:
a. Ultimate sexual acts, normal or perverted, actual or simulated, or
b. Masturbation, excretory functions, or lewd exhibition of the genitals or genital area. Nothing contained in this subsection 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. “Lewdness” has and includes all those meanings which are assigned to it under the common law.
D. “Matter” means a motion picture film or a publication or both.
E. “Moral nuisance” means a nuisance which is injurious to public morals.
F. “Motion picture film” includes any of the following:
1. Film or plate negative;
2. Film or plate positive;
3. Films 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.
G. “Person” means any individual, partnership, firm, association, corporation, or other legal entity.
H. “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.
I. “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.
J. “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 of, or transfer of possession of, lewd matter. (Undated Ord. of 1977 § 1).
9.12.020 Moral nuisances declared – Places, films, and publications.
The following are declared to be moral nuisances:
A. Any and every place in the county where lewd 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 county where a lewd film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition;
C. Any and every lewd film which is publicly exhibited, or possessed for such purpose, at a place which is a moral nuisance under this section;
D. Any and every place of business in the county in which lewd publications constitute a principal part of the stock in trade;
E. Any and every lewd publication possessed at a place which is a moral nuisance under this section;
F. 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. (Undated Ord. of 1977 § 2).
9.12.030 Moral nuisances declared – Personal property used in conducting and maintaining moral nuisances.
A. 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.
B. From and after service of a copy of the notice of hearing of the application for a preliminary injunction, provided for in Section 9.12.060 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. (Undated Ord. of 1977 § 3).
9.12.040 Abatement authorized.
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 this chapter. (Undated Ord. of 1977 § 4).
9.12.050 Temporary injunction – Issuance of restraining order – Service – Violation a contempt of court.
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 contempt 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. (Undated Ord. of 1977 § 5).
9.12.060 Temporary injunction – Service of notice of time and place of hearing – Consolidation of hearing and trial.
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 9.12.050 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 trial of the action on 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 trial 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. (Undated Ord. of 1977 § 6).
9.12.070 Temporary injunction – Issuance – Closing orders.
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 such lease as is authorized by Section 9.12.140.
C. Such order shall also continue in effect for such further period as the order authorized in Section 9.12.050 provides. If no order has been issued pursuant to Section 9.12.050, 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 9.12.050.
D. Such order shall also require such persons to show cause within 30 days why such closing order should not be made permanent as provided for in Section 9.12.120. (Undated Ord. of 1977 § 7).
9.12.080 Response of owner – Conditions for not issuing restraining and closing orders.
A. The owner of any real or personal property to be closed or restrained, or which has been closed or restrained, may appear after the filing of the complaint and before the hearing on the application for a permanent injunction.
B. 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 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 said 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. (Undated Ord. of 1977 § 8).
9.12.090 Admissible evidence – Admission or finding of guilt.
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. (Undated Ord. of 1977 § 9).
9.12.100 Admissible evidence – General reputation.
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 providing the existence of such nuisance. (Undated Ord. of 1977 § 10).
9.12.110 Permanent injunction issued – Expenses recoverable by county.
A. If the existence of the nuisance is established upon the trial, a judgment shall be entered which shall perpetually enjoin the defendant and any other person from further maintaining the nuisance at the place complained of, and the defendant from maintaining such nuisance elsewhere.
B. The entire expenses of such abatement shall be recoverable by the county as a part of the costs of the lawsuit. (Undated Ord. of 1977 § 11).
9.12.120 Abatement procedure.
A. If the existence of a nuisance is admitted or established in an action as provided for in Section 9.12.110 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 9.12.070 and 9.12.080, 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 manner shall be destroyed and shall not be sold.
B. Such judgment shall impose a penalty of $300.00 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 in civil actions, and when collected, shall be paid into the current expense fund of the county in which the judgment is had.
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 9.12.080 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 9.12.080.
E. Owners of unsold personal property and contents so seized must appear and claim the same within 10 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 subsection A of 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 and selling like property on execution; and for closing the place, and keeping it closed, a reasonable sum shall be allowed by the court. (Undated Ord. of 1977 § 12).
9.12.130 Action by prosecuting attorney.
Whenever a moral nuisance exists, as defined in Sections 9.12.020 and 9.12.030, the prosecuting attorney of Whatcom County may maintain an action of an equitable nature in the name of Whatcom County, upon the relation of such prosecuting attorney 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. (Undated Ord. of 1977 § 13).
9.12.140 Leases, titles and rights become void.
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. (Undated Ord. of 1977 § 14).
9.12.150 Personal property subject to forfeiture.
Lewd matter is contraband and there are no property rights therein. All personal property and all moneys and other consideration declared to be a moral nuisance in Sections 9.12.020 and 9.12.030 are the subject of forfeiture to Whatcom County. Such moneys may be traced to and shall be recoverable from persons who, under Section 9.12.030, have knowledge of the nuisance at the time such moneys are received by them. (Undated Ord. of 1977 § 15).