(A) For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
(1)
OBSCENE. Any material or performance is OBSCENE if considered as a whole, applying community standards, its predominant appeal is to the prurient interests of the average adult, and it is patently offensive because it goes substantially beyond the customary limits of candor in its description of sex, nudity, or excretion, and it is utterly without redeeming social value.
(2)
MATERIAL. Anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or in any other manner.
(3)
PERFORMANCE. Any play, motion picture, dance or other exhibition performed before an audience, or displayed to the general public, whether for consideration or not.
(4)
PROMOTE. To manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, produce, present, direct, exhibit or advertise or to offer or to agree to do the same.
(5)
WHOLESALE PROMOTE. To manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, produce, present, direct, exhibit or advertise, or to offer or agree to do the same for purposes of resale.
(B) It shall be unlawful for any person, knowing its content and character:
(1) To promote or wholesale promote, or to possess with intent to promote or wholesale promote, any material which is obscene; or
(2) To promote or wholesale promote, any performance which is obscene or to participate in any portion thereof which is obscene or which contributes to its obscenity.
(C) No material or performance which is conceived to be obscene as defined by this section shall be seized before a prior, judicially supervised, adversary proceeding is held on the question of the obscenity to such material or performance.
(D) A person who promotes or wholesale promotes any obscene material or performance, or possesses the same with intent to promote or wholesale promote it, is presumed to do so with knowledge of its content and character.
(E) Defenses.
(1) In any prosecution for obscenity, it is an affirmative defense that the person to whom allegedly obscene material was promoted, or the audience to which an allegedly obscene performance was portrayed, consisted of persons or institutions having scientific, educational, governmental or other similar justification for possessing or viewing the same.
(2) In any prosecution for obscenity, it is an affirmative defense that the person so charged was a motion picture projectionist, stage employee or spotlight operator, cashier, doorman, usher, candy stand attendant, porter or functioned solely in any other nonmanagerial or nonsupervisory capacity in any promotion of obscene material or performance; provided that the person had no financial interest, other than the person's employment, which employment does not encompass compensation based upon any proportion of the net or gross receipts, in the promotion of any obscene material or performance, and that the person did not personally participate in or contribute to the obscene performance as defined by this section, or promote, wholesale promote or possess for such purposes any obscene material as defined by this section.
(F) Any person who shall erect, establish, continue, maintain, own or lease any building, booth, tent or other place, or otherwise has any legal or equitable estate in any premises, whether alone or jointly with others, and whether in possession or not, where any obscene material or obscene performance is promoted in violation of this section, or where any materials or performance have been declared obscene by any court having competent jurisdiction to provide a prior, judicially supervised adversary proceeding as required by this section shall be deemed to be doing so against the public peace, health, welfare, prosperity and morals of the city, and such conduct shall be declared a public nuisance. Such conduct and persons responsible for same shall be abated or enjoined as provided by law.
(G) There shall be no right of property in any obscene material or obscene performance, and upon the seizure of any such obscene material or obscene performance by any authorized law enforcement officer or upon the surrender of such material or performance, the same shall be delivered to and held by the clerk of the court having jurisdiction. When the same is no longer required as evidence, the prosecuting officer or any claimant may move the court in writing for the disposition of the same and after notice of hearing, the court, if it finds the same to be obscene or otherwise in violation of this section, shall order the material or performance destroyed in the presence of the clerk; otherwise, the court shall order the same returned to the claimant if he shows that he is entitled to possession. If destruction is ordered, the clerk shall file a certificate of compliance.
('72 Code, § 21-27(1) - (7)) (Ord. O-70-91, passed 9-16-70; Am. Ord. O-73-36, passed 5-16-73) Penalty, see § 10.99