§ 30-183. - Material harmful to minors.
(a) Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
(1) Minor means any unmarried person under the age of 18 years.
(2) Harmful to minors means that quality of any description, exhibition, presentation or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when the material or performance, taken as a whole, has the following characteristics:
a. the average adult person applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest in sex to minors; and
b. the average adult person applying contemporary community standards would find that the material or performance depicts or describes nudity, sexual conduct, sexual excitement or sadomasochistic abuse in a manner that is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors; and
c. the material or performance lacks serious literary, scientific, artistic, or political value for minors.
(3) Nudity means the showing of the human male or female genitals, pubic area, or buttocks with less than a full opaque covering; the showing of the female breast with less than a full opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state.
(4) Sexual conduct means acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person be a female, breast.
(5) Sadomasochistic abuse means flagellation or torture by or upon a person 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.
(6) Sexual excitement means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
(7) Material means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture, film, record, recording tape, videotape or any other visual media.
(8) Performance means any motion picture, film, videotape, played record, phonograph or tape, preview, trailer, play, show, skit, dance, or other exhibition performed or presented to or before an audience of one or more, with or without consideration.
(9) Knowingly means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection on inquiry of both:
a. the character and content of any material or performance which is reasonably susceptible of examination by the defendant; and
b. the age of the minor; however, 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.
(10) A reasonable bona fide attempt means an attempt to ascertain the true age of the minor by requiring production of a driver's license, marriage license, birth certificate or other governmental or educational identification card or paper and not relying solely on the oral allegations or apparent age of the minor.
(11) Person means any individual, partnership, association, corporation, or other legal entity of any kind.
(b) Offenses. No person having custody, control or supervision of any commercial establishment shall knowingly:
(1) display material which is harmful to minors in such a way that minors, as a part of the invited general public, will be exposed to view such material; provided, however, a person shall be deemed not to have "displayed" material harmful to minors if the material is kept behind devices commonly known as "blinder racks" so that the lower 2/3 of the material is not exposed to view;
(2) sell, furnish, present, distribute, allow to view, or otherwise disseminate to a minor, with or without consideration, any material which is harmful to minors; or
(3) present to a minor or participate in presenting to a minor, with or without consideration, any performance which is harmful to a minor.
(c) Defenses. It shall be an affirmative defense to any prosecution under this section that: The material or performance involved was displayed, presented or disseminated to a minor at a recognized and established school, church, museum, medical clinic, hospital, public library, governmental agency, quasi-governmental agency and persons acting in their capacity as employees or agents of such persons or organizations, and which institution displays, presents or disseminates such material or performance for a bona fide governmental, educational or scientific purpose.
(d) Penalties. Any person convicted of violating any of the provisions of this section shall be guilty of a Class "a" offense. Each day that any violation of this section occurs or continues shall constitute a separate offense and shall be punishable as a separate violation. Every act, thing, or transaction prohibited by this section shall constitute a separate offense as to each item, issue or title involved and shall be punishable as such. For the purposes of this section, multiple copies of the same identical title, monthly issue, volume and number issue or other such identical material shall constitute a single offense.
(Code 1980, § 30-183; Ord. No. 20511, § 1, 1-16-96; Ord. No. 21835, § 1, 10-16-01)
