(A) For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
DISTRIBUTE. To transfer possession of matter, for a consideration.
KNOWINGLY. Knowing or having good reason to know the character of the matter or performance.
MATTER. Any book, magazine, newspaper or printed or written material; or any picture, drawing, photograph, motion picture or other pictorial representation; or any state or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction; or any other articles, equipment, machines or materials.
MINOR. Any person under the age of 18 years.
OBSCENE MATTER OR PERFORMANCE. Any matter or performance is obscene if:
(a) The average person, applying contemporary community standards, finds that the matter or performance taken as a whole, appeals to the prurient interest in sex;
(b) The matter or performance depicts or describes, in a patently offensive way sexual conduct; or
(c) The matter or performance, taken as a whole, lacks serious literary, artistic, political or scientific value.
OWNER. Any person who owns or has a legal right to possession of any matter.
PERFORMANCE. Any play, motion picture, dance or other exhibition or presentation, whether pictured, animated or live, performed before an audience of one or more persons.
SADOMASOCHISTIC ABUSE. Flagellation or torture by or upon a person as an act of sexual stimulation or gratification.
SEXUAL CONDUCT.
(a) Sexual intercourse or deviate sexual conduct;
(b) Exhibition of the uncovered genitals in the context of masturbation or other sexual activity;
(c) Exhibition of the uncovered genitals of a person under 16 years of age;
(d) Sadomasochistic abuse; or
(e) Sexual intercourse or deviate sexual conduct with an animal.
(B) It shall be unlawful for any person knowingly to:
(1) Distribute obscene matter to minors;
(2) Display obscene matter in an area to which minors have access; or
(3) Misrepresent his or her age for the purpose of obtaining admission to an area where minors are being restricted.
(C) It shall be an affirmative defense to a prosecution under this section for the defendant to show:
(1) The dissemination was made to the recipient by a bona fide school, museum, public institution or by an employee of such organization, or of a retail outlet, affiliated with and serving the educational purpose of such organization, so long as said employee is acting in the course of his or her employment;
(2) The defendant made a reasonable bona fide attempt, to ascertain the true age of the minor;
(3) The act was done for legitimate scientific or educational purposes; or
(4) The act was done by a salesclerk, motion picture projectionist, usher or ticket taker acting within the scope of his or her employment; provided, that such salesclerk, motion picture projectionist, usher or ticket taker has no financial interest in the place where he or she is employed.
(D) Where the subject matter is offered for distribution to the public as stock in trade of a lawful business or activity or, as in the case of films, is exhibited at a commercial theater showing regularly scheduled performances to the general public, no person shall be arrested for a violation of any of the provisions of this section unless the arresting officer shall have first obtained an arrest warrant, and no property shall be seized as evidence unless a search warrant shall have first been obtained pursuant to the provisions of this section; provided, that the quantity of matter seized shall encompass no more than is reasonable and necessary for the purpose of obtaining evidence and, provided further, that no warrant for arrest shall issue upon probable cause for any salesclerk, motion picture projectionist, usher or ticket taker, unless it shall be shown that the salesclerk, projectionist, usher or ticket taker has a financial interest in the act complained of other than that interest normally within the scope of his or her employment.
(E) At any time after seizure or the obtaining of evidence by purchase, prior to arrest, the town, defendant, owner or other party in interest of any matter seized or purchased may apply for and obtain a prompt adversary hearing for the purpose of obtaining a preliminary determination of obscenity. If evidence has been obtained by purchase, the court shall direct the clerk of the court to issue notice to the defendant informing the person of the availability of a prompt adversary hearing prior to the issuance of a warrant of arrest. At any time after seizure, the town, owner or other party in interest of the matter seized, may apply for and obtain a prompt adversary hearing for the purpose of obtaining a determination of obscenity. If the court determines at the hearing that the matter is obscene, the matter shall be held as evidence and a warrant of arrest may be issued for the arrest of the defendant; provided, that if the defendant, owner or other party in interest of any matter seized or purchased shall not apply for a prompt adversary hearing within five days after the seizure occurs or within seven days after notice is issued by the court, an arrest warrant may be issued for the arrest of the defendant. In the case of films or motion pictures, at any time after arrest and prior to a trial or any adversary hearing for the purpose of obtaining a preliminary determination of obscenity, the defendant or owner of any matter seized, upon showing that other copies of the film or motion picture are not available to be exhibited, may apply to the court, and, upon such application, the court shall order that the applicant be permitted to copy the film or motion picture, at his or her own expense without violating any copyright or other intellectual property law, so that the showing can be continued pending a judicial determination of obscenity in an adversary hearing.
(Am. Ord. 3, 1998, passed - -) Penalty, see § 131.99