People ex rel. Hicks v. Sarong Gals

CourtCalifornia Court of Appeals
Writing for the CourtGARDNER
Citation103 Cal.Rptr. 414,27 Cal.App.3d 46
PartiesPEOPLE ex rel. Cecil HICKS, District Attorney of Orange County, Plaintiff and Respondent, v. 'SARONG GALS', Seemaygro, Inc., etc., et al., Defendants and Appellants. Civ. 11982.
Decision Date03 August 1972

Page 414

103 Cal.Rptr. 414
27 Cal.App.3d 46
PEOPLE ex rel. Cecil HICKS, District Attorney of Orange County, Plaintiff and Respondent,
v.
'SARONG GALS', Seemaygro, Inc., etc., et al., Defendants and Appellants.
Civ. 11982.
Court of Appeal, Fourth District, Division 2, California.
Aug. 3, 1972.
Hearing Denied Nov. 9, 1972.

Page 415

[27 Cal.App.3d 47] Hecht & Diamond, by Roger Jon Diamond, Pacific Palisades, for defendants and appellants.

Cecil Hicks, Dist. Atty. of Orange County, Michael R. Capizzi, Asst. Dist. Atty., and Oretta D. Sears, Deputy Dist. Atty., for plaintiff and respondent.

27 Cal.App.3d 48

OPINION

GARDNER, Presiding Justice.

The 'Sarong Gals' is a bar featuring live entertainment. For several months it was rather obviously under police surveillance and among the hilarious highlights of the 'entertainment' observed by the police were:

(1) A naked female dancer masturbating on the stage.

(2) A male customer openly masturbating while watching a naked dancer simulating sexual intercourse.

(3) A naked dancer squatting down in front of and close to a customer and opening the lips of her vagina with her fingers.

(4) A naked dancer rubbing a customer's sunglasses on her breast, vagina and anus before returning them to the customer.

(5) A naked female sancer turning her rear to the customers, spreading her legs wide and using her fingers to spread the vaginal opening wide for the customer's edification.

(6) A naked female entertainer simulating sexual intercourse by pushing her pelvis to within inches of the customers' faces.

(7) A naked female dancer leaning over and wiggling her breasts in the faces of the customers.

(8) While simulating intercourse, a naked female dancer vigorously rubbing nylon straps between her legs and over the public area.

There were forty-six such incidents 1 covering a period of several months almost all of which resulted in arrests of the 'dancers' for violation of Penal Code, § 647(a) or Penal Code, § 314, subd. 1. 2

Page 416

Plaintiff filed a complaint pursuant to Penal Code, §§ 11225--11235 (the Red Light Abatement Law) and secured from the court a preliminary injunction. This preliminary injunction enjoined the defendants from (a) using the premises for the purpose of lewdness; (b) from permitting performances[27 Cal.App.3d 49] graphically depicting sexual intercourse, masturbation, fellation, cunnilingus, bestiality, buggery or masochism; and (c) from conducting any performance whereby the person's genitalia or anus was visible to any other person. This appeal is from an order denying the defendants' motion to dissolve the preliminary injunction.

The defendants contend the Red Light Abatement Law may not be applied to bars in which entertainment in the form of nude dancing is presented and the court may not enjoin the presentation of nude entertainment.

A.

THE LAW.

The Red Light Abatement Law declares to be a public nuisance any place which is used for the purpose of lewdness, assignation or prostitution.

Defendants contend that when the Red Light Abatement Law was enacted (1913), the Legislature did not have in mind the type of activity described above. 3

This is apparently true. History does not record the existence of any topless-bottomless bars offering the type of entertainment described herein in 1913. Western folklore has it that prostitutes were goodhearted wenches who bedded their customers with no shilly-shallying around, nursed the sick in times of emergency, eventually married homesteaders and became pillars of the community. However, even prior to 1913, the exploitation of sexual desires for profit was apparently recognized as a social problem. Thus the Legislature specifically included lewdness[27 Cal.App.3d 50] as one of the grounds of the court's power to curb a public nuisance. In People v. Bayside Land Co., 48 Cal.App. 257, 191 P. 994, the court held that lewdness--even though no incidents of prostitution or assignation had occurred--came within the Red Light Abatement Law. A recent opinion of the Court of Appeal held

Page 417

that the Red Light Abatement Law was inapplicable to allegedly obscene films. (Harmer v. Tonylyn Productions, Inc., 23 Cal.App.3d 941, 100 Cal.Rptr. 576.) By dictum, the Harmer court stated that the law would apply to lewd, live stage shows. (Harmer, supra, pp. 943--944, 100 Cal.Rptr. 576.) While we might question Harmer's statement that the law Cannot apply to films, the case is unquestionably correct on its facts. A theater is not 'used for the purpose' of lewdness if one obscene film is shown there, or one obscene stage show presented. It cannot be presumed from a single incident that the place will continue to be used to present the obscene material. (See Perrine v. Municipal Court, 5 Cal.3d 656, 97 Cal.Rptr. 320, 488 P.2d 648.) A single incident of prostitution is insufficient to bring a building under the Red Light Abatement Law. However, in the instant case the record shows a continuing course of conduct.

We hold that the Red Light Abatement Law may be used to abate continuing acts of lewdness sans evidence of prostitution.

B.

THE 'ENTERTAINMENT.'

Nevertheless, the defendants argue that the act was not intended to apply to 'entertainment,' lewd or otherwise. We cannot agree.

It is true that nude dancing is, according to In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535, protected by the First Amendment. From this fact, the defendants make the illogical leap to the conclusion that Lewd, nude entertainment ('dancing') receives the same protection. Hardly. Lewdness is lewdness and covering it with a patina of 'free expression' is a...

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22 practice notes
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • June 1, 1976
    ...lewd entertainment, such as stage shows or other exhibitions featuring obscene performances. (People ex rel. Hicks v. Sarong Gals (1972) 27 Cal.App.3d 46, 50, 103 Cal.Rptr. 414, subsequent opn., Supra, 42 Cal.App.3d 556, 559, 117 Cal.Rptr. 24; Harmer v. Tonylyn Productions, Inc., supra, 23 ......
  • Miranda v. Hicks, Civ. No. 73-2775-F.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 30, 1974
    ...250, 254, 72 S.Ct. 725, 96 L.Ed. 919 (1952). In addition to those cases cited by the Court of Appeal in Enskat, People v. Sarong Gals, 27 Cal.App.3d 46, 103 Cal. Rptr. 414 (1972); People v. Adler, 25 Cal.App.3d Supp. 24, 101 Cal.Rptr. 726 (1972) and Dixon v. Municipal Court, 267 Cal.App.2d ......
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • March 4, 1976
    ...lewd entertainment, such as stage shows or other exhibitions featuring obscene performances. (People ex rel. Hicks v. Sarong Gals (1972) 27 Cal.App.3d 46, 50, 103 Cal.Rptr. 414, subsequent opn., supra, 42 Cal.App.3d 556, 559, 117 Cal.Rptr. 24; Harmer v. Tonylyn Productions, Inc., supra, 23 ......
  • Mitchell v. Superior Court (People), S.F. 24790
    • United States
    • United States State Supreme Court (California)
    • January 2, 1987
    ...conduct that had occurred was not a theatrical performance. It adopted the reasoning of People ex rel. Hicks v. Sarong Gals (1972) 27 Cal.App.3d 46, 103 Cal.Rptr. 414, that an exhibition calculated to arouse latent sexual desires and release inhibitions rather than to express emotion and dr......
  • Request a trial to view additional results
22 cases
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • June 1, 1976
    ...lewd entertainment, such as stage shows or other exhibitions featuring obscene performances. (People ex rel. Hicks v. Sarong Gals (1972) 27 Cal.App.3d 46, 50, 103 Cal.Rptr. 414, subsequent opn., Supra, 42 Cal.App.3d 556, 559, 117 Cal.Rptr. 24; Harmer v. Tonylyn Productions, Inc., supra, 23 ......
  • Miranda v. Hicks, Civ. No. 73-2775-F.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 30, 1974
    ...250, 254, 72 S.Ct. 725, 96 L.Ed. 919 (1952). In addition to those cases cited by the Court of Appeal in Enskat, People v. Sarong Gals, 27 Cal.App.3d 46, 103 Cal. Rptr. 414 (1972); People v. Adler, 25 Cal.App.3d Supp. 24, 101 Cal.Rptr. 726 (1972) and Dixon v. Municipal Court, 267 Cal.App.2d ......
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • March 4, 1976
    ...lewd entertainment, such as stage shows or other exhibitions featuring obscene performances. (People ex rel. Hicks v. Sarong Gals (1972) 27 Cal.App.3d 46, 50, 103 Cal.Rptr. 414, subsequent opn., supra, 42 Cal.App.3d 556, 559, 117 Cal.Rptr. 24; Harmer v. Tonylyn Productions, Inc., supra, 23 ......
  • Mitchell v. Superior Court (People), S.F. 24790
    • United States
    • United States State Supreme Court (California)
    • January 2, 1987
    ...conduct that had occurred was not a theatrical performance. It adopted the reasoning of People ex rel. Hicks v. Sarong Gals (1972) 27 Cal.App.3d 46, 103 Cal.Rptr. 414, that an exhibition calculated to arouse latent sexual desires and release inhibitions rather than to express emotion and dr......
  • Request a trial to view additional results

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