11.16.040 - Lewd conduct in commercial establishments.
A. It is unlawful for any person in any commercial establishment knowingly to commit the following acts:
1. To expose to public view that portion of the breast which is defined to be the areola, the pubic hair, the cleft of the buttocks, or the genitals, when such exposure is patently offensive within contemporary community standards, has no serious scientific, literary, political or artistic merit, and such conduct appeals to the prurient interest of the average person; or
2. To perform acts of sexual intercourse, masturbation, sodomy, flagellation, or the fondling of the breasts, buttocks or genitals, when such acts are patently offensive within contemporary community standards, have no serious scientific, literary, political or artistic merit, and such conduct appeals to the prurient interest of the average person.
B. It is unlawful for the owner of a commercial establishment, or his agent or employee, knowingly to employ any person or to permit any person in any commercial establishment:
1. To expose to public view that portion of the breast which is defined to be the areola, the pubic hair, the cleft of the buttocks, or the genitals, when such exposure is patently offensive within contemporary community standards, has no serious scientific, literary, political or artistic merit, and such conduct is calculated to appeal to the prurient interest of the viewing audience; or
2. To perform acts of sexual intercourse, masturbation, sodomy, flagellation, or the fondling of the breasts, buttocks or genitals, when such acts are patently offensive within contemporary community standards, have no serious scientific, literary, political or artistic merit, and such conduct is calculated to appeal to the prurient interest of the viewing audience.
C. Definitions.
1. "Areola" means that portion of the breast to include the nipple and the red pigmented area surrounding it.
2. "Commercial establishment" means any club, theater, hotel, motel, tavern, restaurant, or other place where live entertainment is performed before paying customers.
3. "Patently offensive" means that which goes substantially beyond customary levels of explicitness in the portrayal of sexual conduct.
4. "Prurient interest" means a shameful or morbid interest in sex.
D. Nothing contained in this section shall be construed to apply to exhibition, presentation, or performance of any play, ballet, drama, tableau, production or motion picture in any theater, concert hall, museum of fine arts, school, institution of higher learning, or other similar establishment which is primarily devoted to such exhibitions, presentations, shows or performances as a form of expression of opinion, communication, speech, ideas, information, art or drama as differentiated from commercial business promotion or exploitation of the sexual nature of the human body for the purposes of advancing the economic welfare of a commercial enterprise.
(Prior code § 29-1-34)
