[Derived from Sec. 35 of Ch. IX of the Charter and Ordinances, 1974]
The Common Council hereby declares the possession, sale or exchange of obscene materials or items within the City of Buffalo to be injurious to public health, safety and morals and a nuisance. The Council further declares the sale, loan, gift or display at newsstands or any other business establishment within the City of Buffalo frequented by minors of any material describing or depicting illicit sex or sexual immorality to be injurious to public health, safety and morals and a nuisance.
As used in this article, the following terms shall have the meanings indicated:
COMMUNITY STANDARDS
The standards of the community from which the jury is drawn or would be drawn if it were the trier of the fact.
MATERIAL
Anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or in any other manner.
OBSCENE
Any material or performance is "obscene" if it is an obscene work.
OBSCENE WORK
A work which, when taken as a whole, appeals to the prurient interest in sex, which portrays sexual conduct in a patently offensive way and which, taken as a whole, does not have serious value. In determining whether or not a work is an "obscene work," the trier of fact must find:
A. 
That the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
B. 
That the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by this Article or authoritatively construed by the courts of this jurisdiction as being a portrayal of patently offensive sexual conduct as that phrase is used in the definition of an "obscene work"; and
C. 
That the work, taken as a whole, lacks serious value.
PATENTLY OFFENSIVE
So offensive on its face to affront current standards of decency.
PATENTLY OFFENSIVE SEXUAL CONDUCT
Includes any of the following described forms of sexual conduct if depicted or described in a patently offensive way:
A. 
An act of sexual intercourse, normal or perverted, actual or simulated, including genital-genital, anal-genital or oral-genital intercourse, whether between human beings or between a human being and an animal.
B. 
Sadomasochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergarments or in a revealing costume or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
C. 
Masturbation, excretory functions and lewd exhibitions of the genitals, including any explicit, close-up representation of a human genital organ or spread-eagle exposure of female genital organs.
D. 
Physical contact or simulated physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.
E. 
A device designed and marketed as useful primarily for stimulation of the human genital organs.
F. 
Male or female genitals in a state of sexual stimulation or arousal.
G. 
Covered male genitals in a discernibly turgid state.
PERFORMANCE
Any play, motion picture, dance or other exhibition performed before an audience.
PROMOTE
Manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise or to offer or agree to do the same.
SERIOUS VALUE
Serious literary or artistic or political or scientific value.
STANDARDS OF DECENCY
Community standards of decency.
WHOLESALE PROMOTE
To manufacture, issue, sell, provide, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate or to offer or agree to do the same for purposes of resale.
If any of the depictions or descriptions of sexual conduct described in § 299-2 are declared by a court of competent jurisdiction to be unlawfully included therein because such depictions or descriptions are constitutionally protected or for any other reason, such declaration shall not invalidate this Article to other patently offensive sexual conduct included herein.
No person, within the City of Buffalo, when knowing its content and character, shall wholesale promote or possess with intent to wholesale promote any obscene material.
No person shall within the City of Buffalo, knowing its content and character:
A. 
Promote or possess with intent to promote any obscene material.
B. 
Produce, present or direct an obscene performance or participate in the portion thereof which is obscene or which contributes to its obscenity.
A. 
A person, within the City of Buffalo, who promotes or wholesale promotes obscene material or possesses the same with intent to promote or wholesale promote it in the course of the business is presumed to do so with knowledge of its content and character.
B. 
A person within the City of Buffalo who possesses six or more identical or similar obscene articles is presumed to possess them with intent to promote the same.
A. 
Definitions. As used in this section, the following terms shall have the meanings indicated:
HARMFUL TO MINORS
That quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sadomasochistic abuse, when it:
(1) 
Predominantly appeals to the prurient, shameful or morbid interest of minors;
(2) 
Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(3) 
Is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for minors.
KNOWINGLY
Having general knowledge of or reason to know or a belief or ground for belief which warrants further inspection or inquiry, or both, of:
(1) 
The character and content of any material described herein which is reasonably susceptible to examination by the defendant; and
(2) 
The age of the minor; provided, however, that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.
MINOR
A person less than 17 years of age.
SADOMASOCHISTIC ABUSE
Actual or explicitly simulated flagellation or torture by or upon a person who is nude or clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
SEXUAL CONDUCT
Actual or explicitly simulated acts of masturbation, homosexuality, sexual intercourse or physical contact in an act of apparent sexual stimulation or gratification with a person's clothed or unclothed genitals, pubic area, buttocks or, if such be female, breast.
SEXUAL EXCITEMENT
The condition of human male or female genitals when in a state of sexual stimulation or arousal.
SEXUALLY EXPLICIT NUDITY
A state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple or the depiction of covered or uncovered male genitals in a discernibly turgid state.
B. 
Unlawful acts.
(1) 
It shall be unlawful for any person knowingly to sell or loan for monetary consideration to a minor:
(a) 
Any picture, photograph, drawing, sculpture, motion-picture film or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to minors.
(b) 
Any book, pamphlet, magazine, printed matter, however reproduced, or sound recording which contains any matter enumerated in Subsection B(1)(a) of this section or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to minors.
(2) 
It shall be unlawful for any person knowingly to sell to a minor an admission ticket or pass or knowingly to admit a minor to premises whereon there is exhibited a motion picture, show or other presentation which, in whole or in part, depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to minors or to exhibit any such motion picture at any such premises which are not designed to prevent viewing from any public way of such motion picture by minors not admitted to any such premises.
(3) 
It shall be unlawful for any minor falsely to represent to any person mentioned in Subsection B(1) or (2) hereof or to his agent that such minor is 17 years of age or older with the intent to procure any material set forth in Subsection B(1) or with the intent to procure such minor's admission to any motion picture, show or other presentation, as set forth in Subsection B(2).
(4) 
It shall be unlawful for any person knowingly to make a false representation to any person mentioned in Subsection B(1) or (2) hereof or to his agent that he is the parent or guardian of any minor or that any minor is 17 years of age or older with the intent to procure any material set forth in Subsection B(1) or with the intent to procure such minor's admission to any motion picture, show or other presentation, as set forth in Subsection B(2).
(5) 
It shall be unlawful for any person knowingly to exhibit, expose or display in public at newsstands or any other business or commercial establishment frequented by minors or where minors are or may be invited as part of the general public:
(a) 
Any picture, photograph, drawing, sculpture, motion-picture film or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to minors.
(b) 
Any book, pamphlet, magazine, printed matter, however reproduced, or sound recording which contains any matter enumerated in Subsection B(5)(a) of this section or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to minors.
Nothing contained in this Article shall be construed to apply to:
A. 
The purchase, distribution, exhibition or loan of any work of art, book, magazine or other printed or manuscript material by any accredited museum, library, school or institution of higher learning.
B. 
The exhibition or performance of any play, drama, tableau or motion picture by any theater, museum, school or institution of higher learning, either supported by public appropriation or which is an accredited institution supported by private funds.
C. 
Persons who may possess or distribute obscene matter or participate in conduct otherwise proscribed by this Article when such possession, participation, distribution or conduct occurs in the course of law enforcement activities or in the course of bona fide scientific, educational or comparable research or study or like circumstances of justification.