In the development and execution of this chapter, it is recognized that
adult bookstores, because of their very nature, are recognized as having serious
objectionable operational characteristics, particularly when several of them
are concentrated under certain circumstances, thereby having a deleterious
effect upon the adjacent area. Special regulation of such uses is necessary
to ensure that these adverse effects will not contribute to the blighting
or downgrading of the surrounding neighborhood or pose a threat to the welfare
and safety of the public.
As used in this chapter, the following terms shall have the meanings
indicated:
ADULT BOOKSTORE
An establishment having, as a substantial or significant portion
of its stock-in-trade, books, magazines and other periodicals which are distinguished
or characterized by their emphasis on matter depicting or relating to specified
sexual activity or specific anatomical areas, as defined below, for observation
by patrons therein.
HARMFUL TO MINORS
That quality of any description or representation, in whatever form,
of nudity, sexual conduct, sexual excitement or sadomasochistic abuse when
it;
A.
Predominantly appeals to the prurient, shameful or morbid interest of
minors.
B.
Is patently offensive to prevailing standards in the adult community
as a whole with respect to what is suitable material for minors.
C.
Is, when taken as a whole, lacking in serious literary, artistic, political
or scientific value for minors.
KNOWINGLY
Having a general knowledge of or reason to know or a belief or grounds
for belief which warrants further inspection or inquiry or both:
A.
The character and content of any material described herein which is
reasonably susceptible to examination by the defendant; and
B.
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.
MATERIAL
Anything tangible, capable of being used or adapted to arouse interest,
whether through the medium of reading, observation, sound or in any other
manner.
MINOR
A person less than 18 years of age.
OBSCENE
Any material or performance is obscene if the average person, applying
contemporary community standards, would find that, considered as a whole,
its predominant appeal is to the prurient interest in sex and depicts or describes,
in a patently offensive manner, actual or simulated sexual intercourse, sodomy,
sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition
of the genitals and, as considered as a whole, it lacks serious literary,
artistic, political and scientific value. Predominant appeal shall be judged
with reference to ordinary adults, unless it appears from the character of
the material or the circumstances of its dissemination to be designed for
children or other specially susceptible audiences.
PROMOTE
To manufacture, issue, sell, give, provide, lend, mail, deliver transmute,
publish, distribute, circulate, disseminate, present, exhibit or advertise
or to offer or agree to do the same.
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 the 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 fully 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.
SPECIFIED ANATOMICAL AREAS
A.
Less than completely and opaquely covered human genitals, pubic region,
buttock and female breast below a point immediately above the top of the areola.
B.
Human male genitals in a discernibly turgid state, even if completely
and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES
A.
Human genitals in a state of sexual stimulation or arousal.
B.
Acts of human masturbation, sexual intercourse or sodomy.
C.
Fondling or other erotic touching of human genitals, pubic region, buttock
or female breast.
It shall be unlawful to hereafter establish any adult bookstore within
500 feet of any building containing a residential dwelling or rooming unit
or to establish any adult bookstore within 500 feet of any other adult bookstore.
It shall be unlawful to hereafter establish any adult bookstore within
500 feet of the real property line of any public, private or parochial school
or within 500 feet of a bus stop for the picking up and dropping off of school
children.
It shall be unlawful to hereafter establish any adult bookstore within
1,000 feet of the nearest property line of any public or private library,
park or playground and at least 1,000 feet from the nearest property line
of any church, convent, monastery, synagogue or other place of worship.
It shall be unlawful and a misdemeanor, punishable as authorized by
state law, for any person to promote or possess with intent to promote any
obscene material when knowing of its content and character. Each day that
said violation continues may be treated as a separate offense.
A. Presumptive evidence. A person who promotes obscene material
or possesses the same with intent to promote it, in the course of his business,
is presumed to do so with knowledge of its content and character.
B. Presumptions.
(1) A person who promotes or wholesale promotes obscene material
or possesses the same with intent to promote or wholesale promote it, in the
course of his business, is presumed to do so with knowledge of its content
and character.
(2) A person who possesses six or more identical or similar
obscene articles is presumed to possess them with intent to promote the same.
Nothing contained in this chapter 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 prescribed by this chapter 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.
Any person who violates any of the provisions of this chapter shall
be guilty of a violation and subject to a fine not to exceed $250 or imprisonment
not to exceed 15 days, or both. Each day during any portion in which any violation
of this chapter is committed, permitted or continued shall constitute a separate
offense.