[HISTORY: Adopted by the Board of Trustees of the Village of Fultonville 10-2-1989
by L.L. No. 4-1989; amended in its entirety at time of adoption
of Code (see Ch. 1, General Provisions, Art. I). Subsequent amendments noted
where applicable.]
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:
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.
That quality of any description or representation, in whatever form,
of nudity, sexual conduct, sexual excitement or sadomasochistic abuse when
it;
Predominantly appeals to the prurient, shameful or morbid interest of
minors.
Is patently offensive to prevailing standards in the adult community
as a whole with respect to what is suitable material for minors.
Is, when taken as a whole, lacking in serious literary, artistic, political
or scientific value for minors.
Having a general knowledge of or reason to know or a belief or grounds
for belief which warrants further inspection or inquiry or both:
The character and content of any material described herein which is
reasonably susceptible to examination by the defendant; and
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.
Anything tangible, capable of being used or adapted to arouse interest,
whether through the medium of reading, observation, sound or in any other
manner.
A person less than 18 years of age.
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.
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.
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.
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.
The condition of human male or female genitals when in a state of
sexual stimulation or arousal.
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.
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.
A.
It shall be unlawful for any person knowingly to sell
or loan for monetary consideration to a minor:
(1)
Any picture, photograph, drawing, sculpture, video cassette,
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; or
(2)
Any book, pamphlet, magazine or printed matter, however reproduced, or sound recording which contains any manner enumerated in Subsection A(1) 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.
B.
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 any
area of 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 area of premises which is not
designated to prevent viewing from any public way of such motion picture by
minors not admitted to any such area of premises.
C.
It shall be unlawful for any minor falsely to represent to any person mentioned in Subsection A or B 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 A or with the intent to procure such minor's admission to any motion picture, show or other presentation, as set forth in Subsection B.
D.
It shall be unlawful for any person knowingly to make a false representation to any person mentioned in Subsection A or B 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 A or with the intent to procure such minor's admission to any motion picture, show or other presentation, as set forth in Subsection B.
E.
It shall be unlawful for any person knowingly to exhibit,
expose or display in public, at newsstands or at any other area of a public
or commercial establishment frequented by minors or where minors are or may
be invited as part of the general public:
(1)
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 which is harmful to minors; or
(2)
Any book, pamphlet, magazine or printed matter, however reproduced, or sound recording which contains any matter enumerated in Subsection E(1) of this section or explicit or 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 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.
