CHAPTER 257

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR HOUSE BILL NO. 70

AS AMENDED BY HOUSE AMENDMENT NO. 1 AND

SENATE AMENDMENT NO. 2

AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE, AND PROVIDING CIVIL REMEDIES FOR PUBLIC NUISANCES AND ANNOYANCES CONSTITUTING OBSCENITY AND LEWDNESS.

Be it enacted by the General Assembly of the State of Delaware:

WHEREAS, while obscenity and pornography are nuisances and annoyances to individual members of the public, they also represent a threat to the very foundation of the public's health, safety and welfare; and

WHEREAS, it is the intention of this legislation to afford civil remedies to the public in addition to the criminal procedures already available.

NOW THEREFORE:

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Title 10 of the Delaware Code, by adding thereto a new Chapter 72 which shall read as follows:

"CHAPTER 72. OBSCENITY AND LEWDNESS

§7201. Definitions

As used in this Chapter —

(a) 'Place' includes any building, structure, or place or any separate part or portion thereof or the ground itself;

(b) Person' includes any individual, corporation, association, partnership, trustee, lessee, agent, or assignee;

(c) 'Nuisance' means that which is defined and declared by statutes to be such and also means any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists, and the personal property and contents used in conducting and maintaining any such place for any such purpose. The term 'lewdness' includes all manner of lewd sexual conduct or live exhibition and shall include, but is not limited to, any place, in or upon which obscene films or plate negatives, film or plate positives, films designed to be projected on a screen for exhibition, films, or glass slides either in negative or positive form designed for exhibition by projection on a screen, are photographed, manufactured, developed, screened, exhibited, or otherwise prepared or shown, and any place where obscene books, magazines or articles are the principal part of the stock in trade.

(d) Material is obscene if:

(1) The average person applying contemporary community standards would find that the material, taken as a whole, appeals to the prurient interest; and

(2) The material depicts or describes:

(A) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; or

(B) patently offensive representations or descriptions of masturbation, excretory functions, and/or lewd exhibitions of the genitals ; and

(3) The work taken as a whole lacks serious literary, artistic, political or scientific value.

§7202. Nuisance

Any person who uses, occupies, establishes, or conducts a nuisance, or aids or abets therein, and the owner, agent, or lessee of any interest in any such nuisance together with the persons employed in or in control of any such nuisance by any such owner, agent, or lessee is guilty of maintaining a nuisance shall be enjoined as provided in §7203 through §7206 inclusive, of this Chapter.

§7203. Abatement of nuisance; bond

Whenever a nuisance exists, the attorney general or the prosecuting attorney of the county in which such nuisance exists, or the chief executive or legal officer of a municipal corporation (within such county), may bring an action in equity in the name of the State, upon the relation of such attorney general, prosecuting attorney, or the municipal corporation, to abate such nuisance and to perpetually enjoin the person maintaining the same from further maintenance thereof.

§7204. Procedure in injunction action

The action provided in §7203 of this Chapter shall be brought in the Court of Chancery of the county in which the property is located. At the commencement of the action a verified complaint alleging the facts constituting the nuisance shall be filed in the Office of the Register in Chancery. After the filing of the complaint under this Chapter, application for a temporary injunction may be made to the Court of Chancery which shall grant a hearing thereon within ten days thereafter.

Where such application for a temporary injunction is made, the Court, on application of the complainant, may 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 granting or refusing such temporary injunction and until the further order of the Court thereon. 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. 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, provided such posted order contains therein a notice to that effect.

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 five days before such hearing. 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. If upon hearing the allegations of the complaint are sustained to the satisfaction of the Court, the Court shall issue a temporary injunction without additional bond restraining the defendant and any other person from continuing the nuisance. If at the time of granting a temporary injunction, it further appears that the person owning, in control, or in charge of the nuisance so enjoined had received five days' notice of the hearing and unless such person shows to the satisfaction of the court or judge that the nuisance complained of is abated, or that such person proceeded forthwith to enforce his rights, the court or judge shall forthwith issue an order closing the place against its use for any purpose of lewdness, assignation, or prostitution until final decision is rendered on the application for a permanent injunction. Such order shall also continue in effect for such further period the restraining order above provided if already issued, or, if not so issued, shall include such an order restraining for such period the removal or interference with the personal property and contents, located therein. Such restraining order shall be served and the inventory of such property shall be made and filed as provided in this section. The owner of any real or personal property closed or restrained or to be closed or restrained may appear between the filing of the complaint and the hearing on the application for a permanent 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 until the decision of the court is rendered on the application for a permanent injunction, the Court, if satisfied of the good faith of the owner of the real property and of innocence on the part of any owner of the personal property of any knowledge of the use of such personal property as a nuisance and that, with reasonable care and diligence, such owner could not have known thereof, shall deliver such real or personal property, or both, to the respective owners thereof, and discharge or refrain from issuing at the time of the hearing on the application for the temporary injunction any order closing such real property or restraining the removal or interference with such personal property. 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.

7205. Precedence of action; evidence; costs

The Court shall have the final authority to decided precedence of the actions provided for in §7203 and §7204 of this Chapter over other matters pending before said Court but always using the basic principle that it is the Courts' responsibility to insure positive benefits to the most citizens by its actions. In such action, evidence of the general reputation of the place or an admission or finding of guilty of any person under the criminal laws against prostitution, lewdness, or assignation at any such place is admissible for the purpose of proving the existence of said 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 said nuisance. 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.

7206. Content of judgment and order

If the existence of a nuisance is admitted or established in an action as provided is §7206 through §7207, inclusive, of this Chapter, and 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 in §7204 of this Chapter, 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. Such order shall also require the renewal for one year of any bond furnished by the owner of the real property, as provided in §7204 of this Chapter; 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. 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 §7204 of this Chapter. The release of the property under this section shall not release it from any judgment, lien, penalty, or liability to which it may be subject. 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 proved innocence, to the satisfaction of the court, of any knowledge of said use thereof and that with reasonable care and diligence they could not have known thereof. Every defendant in the action is presumed to have had knowledge of the general reputation of the place. 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 and selling like property on execution; and for closing the place and keeping it closed, a reasonable sum shall be allowed by the court.

§7207. Court shall punish offender for violation of injunction or order

In case of the violation of any injunction or closing order, granted under §7201 through §7210, inclusive, of this Chapter, or of a restraining order or the commission of any contempt of court in proceedings under such sections, the court may summarily try and punish the offender. The trial may be had upon affidavits or either party may demand the production and oral examination of the witnesses.

§7208. Lease void if building used for lewd purposes

If a tenant or occupant of a building or tenement, under a lawful title, uses such place for the purposes of lewdness, assignation, or prostitution, such use makes void the lease or other title under which he holds, at the option of the owner, and, without any act of the owner, causes the right of possession to revert to vest in such owner, who may without process of law make immediate entry upon the premises.

§7209. Civil penalty

Obscene matter is contraband and there are no property rights therein. All monetary consideration received in exchange therefor, or as admission price to exhibitions thereof, and the subject matter itself, are the subject of forfeiture to the county government and are recoverable as damages in the county wherein such matter is sold or exhibited.

§7210. Immunity

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, provided that such projectionist, usher, or ticket taker has no financial interest in the place wherein he is so employed. Such person shall be required to give testimony regarding such employment in all judicial proceedings brought under this Chapter when granted immunity by the Court. The procedure for determining granting of immunity shall be the same procedure used by the Superior Court in criminal actions pursuant to §3508 of Title 11 of the Delaware Code."

Section 2. If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect any other provision or application of the Act which can be given effect without the invalid provision or application, and to that end each provision of this Act is declared to be severable.

Approved February 5, 1974.