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For the purpose of §§ 133.02 through 133.07 the following definitions shall apply unless the context clearly indicates or requires a different meaning.
“KNOWLEDGE” or “KNOWLEDGE OF SUCH NUISANCE.” Having knowledge of the contents and character of the patently offensive sexual conduct which appears in the lewd matter.
“LEWD MATTER.”
(1) Any matter which:
(a) The average person, applying contemporary community standards, finds, when considered as a whole, appeals to the prurient interest; and
(b) Depicts or describes patently offensive represen- tations or descriptions of:
l. Ultimate sexual acts, normal or perverted, actual or simulated; or
2. Masturbation, excretory functions, or exhibi-tion of the genitals or genital area.
(2) Nothing herein contained is intended to include or proscribe any matter which, when considered as a whole, and in the context of which it is used, possesses serious literary, artistic, political, or scientific value.
“MATTER.” A motion picture film or a publication or both.
“MOTION PICTURE FILM.” 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; or
(5) Videotape or any other medium used to electronically reproduce images on a screen.
“PERSON.” Any individual, partnership, firm, association, corporation, or other legal entity.
“PLACE.” Any building, structure, or place, or any separate part or portion thereof whether permanent or not, or the ground itself.
“PUBLICATION.” Any books, magazine, article, pamphlet, writing, painting, illustration, picture, sound recording, or a motion picture film which is offered for sale or exhibited in a coin- operated machine.
“SALE.” 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, and whereby any valuable consideration is received for the use of, or transfer of possession of, lewd matter.
(‘82 Code, § 21-100(1)-(8))
(A) Any and every place in the town where:
(1) Lewd films are publicly exhibited as a regular course of business, or possessed for the purpose of such exhibition, or
(2) A lewd film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition, is a public nuisance.
(B) Any and every lewd film which is publicly exhibited or possessed for such purpose at a place which is a public nuisance under division (A) above, is a public nuisance per se.
(‘82 Code, § 21-200)
(A) Any and every place of business in the town in which lewd publications constitute all or a principal part of the stock in trade is a public nuisance.
(B) Any and every lewd publication possessed at a place which is a public nuisance under division (A) above, is a public nuisance per se.
(‘82 Code, § 21-210)
Upon and after receiving notice through service of a certified copy hereof and certified copy of the resolution and order of summary abatement provided for herein, any and every person who shall own, legally or equitably, lease, maintain, manage, conduct, or operate a place in the town which is declared to be a public nuisance as set forth and stated in §§ 133.02 and 133.03 of this chapter, is deemed to be a person who has knowledge of such nuisance for the purpose of this code, and is, thereafter, responsible for its maintenance and shall be liable thereafter.
(‘82 Code, § 21-220)
(A) Upon investigation by the Board of Trustees or upon receipt of information from any other person as to possible violations of this chapter, the Board of Trustees shall refer the matter to the Town Attorney, who shall investigate and report back to the Board as to whether it is his opinion that a violation of this chapter has occurred. Upon receipt of this report, the Board of Trustees shall make any independent investigation it deems necessary and appropriate.
(1) Declare the fact that such a nuisance exists;
(2) Set forth the description or legal description of the street address of the place which constitutes the nuisance;
(3) Set forth a statement of facts upon which the Board of Trustees’ declaration of nuisance is based;
(4) Order all persons described in § 133.04 hereof to voluntarily abate such nuisance immediately, by terminating the exhibition, sale, or possession for sale of such lewd subject matter or by terminating the use of the premises for lewdness, and to supply the persons with a certified copy of the resolution.
(5) Order the Town Attorney to commence suit forthwith in a court of competent jurisdiction to abate the nuisance.
(‘82 Code, § 21-230)
Upon a specific finding by the Board of Trustees of the fact that a public nuisance exists at a particular location, the Town Attorney shall:
(A) Serve a certified copy hereof, and the resolution, as provided in § 133.05 above; and
(B) Forthwith commence legal proceedings by filing a civil action seeking the following relief:
(1) A declaratory judgment that the matter found to be lewd is or are public nuisances per se under this subchapter and such resolution;
(2) A declaratory judgment that the matter named by the Board of Trustees is lewd as defined herein;
(3) A declaratory judgment that each place named by the Board of Trustees is a public nuisance under this subchapter and such resolution;
(4) An accounting of all moneys paid as admission price to or for the exhibition or exhibitions of such lewd motion picture films, and valuable consideration received for the sale of lewd publications from and after the time the persons maintaining the nuisance received a copy of the resolution of the Board of Trustees that the public nuisance exists, and a judgment that such moneys or valuable consideration are a public nuisance under this subchapter;
(5) An order that all admission price moneys or valuable consideration received and enumerated in the court-ordered accounting be forfeited as contraband to the general fund of the town or as property belonging to the town;
(6) An injunction enjoining and restraining all persons responsible for maintaining the nuisance from possessing or publicly exhibiting the lewd motion picture films, or from selling and for sale the lewd publications at any time in the future in the town, and such other injunctive relief as the court may order;
(7) An order that all positive prints of the named lewd film and all lewd publications or copies or reproductions thereof be forfeited as contraband under this subchapter;
(8) Judgment for the town for all costs therein expended, including investigative costs, court costs, reasonable attorney’s fees, and such other expenses as are provided for herein;
(9) All other relief as the court may deem proper.
(‘82 Code, § 21-240)
(A) Upon judgment for the town in legal proceedings brought pursuant to this subchapter, an accounting shall be made by such defendant of all moneys or valuable consideration received by them which have been declared to be a public nuisance under this subchapter. Such moneys or their equivalent and any other valuable consideration received shall be forfeited to the general fund of the town or to the town as property of the town if any valuable consideration received not be money.
(B) The cost of abatement shall include the following:
(1) Investigative costs;
(2) Court costs;
(3) Reasonable attorney’s fees arising out of the preparation for, and trial of the cause, and appeals therefrom, and other costs allowed on appeal.
(C) Upon obtaining judgment in a civil action pursuant to this subchapter, the costs of abatement shall, by special ordinance, be made a lien against such property and a personal obligation against the theater operator and property owner and shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in the case of delinquency as provided for ordinary municipal taxes. All laws, applicable to the levy, collection, and enforcement of municipal taxes, shall be applicable to such special assessment.
(‘82 Code, § 21-250)
EDITOR’S NOTE:
This chapter contains references to those sections of state law which prohibit the most common offenses against public morals. These citations are intended only as convenient references. It is not the intention of the municipality to incorporate such statutory provisions in this code of ordinances, and such provisions are specifically not incorporated by reference.
OFFENSE | IC SECTION |
OFFENSE | IC SECTION |
ACTIVITIES RELATED TO OBSCENE PERFORMANCE | 35-49-3-2 |
IMPORTATION OR DISTRIBUTION OF OBSCENE MATTER | 35-49-3-1 |
PROVIDING OBSCENE MATTER AND PERFORMANCES BEFORE MINORS | 35-49-3-3 |
PROSTITUTION OFFENSES | |
Patronizing prostitute | 35-45-4-3 |
Promoting prostitution | 35-45-4-4 |
Prostitution | 35-45-4-2 |
VOYEURISM | 35-45-4-5 |