(A) For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
HARMFUL TO MINORS. The quality of any description, exhibition, presentation or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sado-masochistic 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;
(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 sado-masochistic 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.
KNOWINGLY. Having general knowledge of, reason to know or a belief or ground for belief which warrants further inspection or inquiry of both:
(a) The character and content of any material or performance which is reasonable susceptible of examination by the accused; and
(b) The age of the minor. However, an honest mistake shall constitute an excuse from liability hereunder if the accused made a reasonable bona fide attempt to ascertain the true age of the minor.
MATERIAL. Any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, record, recording tape or video tape.
NUDITY. 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, or any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernible turgid state.
PERFORMANCE. Any motion picture, film, video tape, 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.
PERSON. Any individual, partnership, association, corporation or other legal entity of any kind.
REASONABLE BONA FIDE ATTEMPT. 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.
SADO-MASOCHISTIC ABUSE. 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.
SEXUAL CONDUCT. Acts of masturbation, homosexuality, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if the person be a female, the breasts.
SEXUAL EXCITEMENT. The condition of human male or female genitals when in a state of sexual stimulation or arousal.
(B) No person having custody, control or supervision of any commercial establishment shall knowingly:
(1) Display material which is harmful to minors in a way that minors, as a part of the invited general public, will be exposed, to view the 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 two-thirds of the materials 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) 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 the persons or organizations, and which institution displays, presents or disseminates the material or performance for a bona fide governmental, educational or scientific purpose.
(Prior Code, § 11-430) (Ord. 1355, passed 10-15-85) Penalty, see § 10.99