(A) What constitutes obscenity. Material under this section shall be considered obscene and unlawful if:
(1) The average person applying contemporary community standards would find that the material, taken as a whole, appeals to the prurient interests;
(2) The material depicts or describes patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated, or patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals; and
(3) The material, taken as a whole, lacks serious literary, artistic, political or scientific value.
(B) Dealing in, sale, loan, rent or lease of obscene film and material is unlawful. It shall be unlawful for any person, corporation or officer, agent, director or employee of a corporation, knowingly to deal in, sell, loan, rent or lease any material in the form of a motion picture film, or other material defined by this section to be obscene.
(C) Public possession, exhibition and performance of obscene film and live material is unlawful. It shall be unlawful for any person, corporation, or officer, agent, director or employee of a corporation, knowingly to possess in public or exhibit or perform in any public place a motion picture film, stage show, live act or production defined in this section to be obscene.
(D) Sale, loan, exhibition or public possession of obscene literature is unlawful. It shall be unlawful for any person, corporation or officer, agent, director or employee of a corporation, knowingly to sell, loan, exhibit or possess in public any book, magazine, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, instrument, statue, drawing or other similar material defined by this section to be obscene.
(E) Judicial determination before seizure of obscene material and provision for adversary proceedings available after seizure.
(1) Upon request from the City Attorney, or the City Attorney’s designee, a circuit or superior court judge may view the film, movie, motion picture, videocassette, digital video disc, slides or other photographic reproductions and focus searchingly on the question of obscenity.
(a) If the judge views the material and determines that probable cause exists that the material is obscene, the judge shall issue a warrant to seize the material.
(b) After the seizure warrants are executed, all material and necessary equipment housing the material, if the material cannot be segregated, shall be preserved as evidence.
(2) After seizure of the material, but before a requested adversary proceeding, upon a showing to the trial court that other copies of the material are not available to the exhibitor, the trial court shall permit the seized material to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding.
(a) The trial court shall, upon granting a request to so copy, permit the seized material to be copied, under circumstances which assure that there will be no tampering with the material.
(b) The trial court shall order the original material to be returned within 24 hours after the granting of the request to copy.
(c) The copy shall be preserved by the city as evidence.
(3) After seizure of the material, a prompt judicial determination of the obscenity issue shall be available in an adversary proceeding, before a trial court, at the request of an interested party. Adversary proceedings shall also be available at the request of an interested party, where there has been no seizure of the material, pursuant to a prior judicial determination.
(a) The adversary proceeding shall occur within 20 days after request.
(b) All parties may subpoena witnesses and present evidence.
(c) If the trial court finds the material obscene at the adversary proceeding, the cause shall proceed on the court docket to trial, and he or she shall issue a warrant to seize the original material and any copies not being preserved by the city as evidence.
(d) If the trial court finds the material not to be obscene at the adversary proceeding, all charges pending against any party for violation of this section shall be dismissed, and he or she shall order the return of the original material being preserved by the city as evidence.
(F) Adversary proceedings available before seizure of any book, magazine, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, instrument, statue, drawing or other similar material. An adversary proceeding for judicial determination of obscenity shall be conducted by the trial court before seizure of any book, magazine, pamphlet, writing, card, advertisement, circular, print, picture, photograph, instrument, statue, drawing or other similar material, at the request of an interested party.
(1) The adversary proceeding shall occur within ten days after request.
(2) All parties may subpoena witnesses and present evidence.
(3) If the trial court finds the book, magazine, pamphlet, writing, card, advertisement, circular, print, picture, photograph, instrument, statue, drawing or other similar material to be obscene, the cause shall proceed on the court docket to trial and the trial court shall issue a warrant for the seizure of such material found to be obscene and any copy thereof. All of such material seized shall be preserved by the city as evidence and disposed of in accordance with the provisions of this section.
(4) If the trial court finds such material not to be obscene at the adversary proceeding, all charges pending against any party for violation of this section shall be dismissed.
(G) Destruction of obscene material. After a trial and a finding that any material enumerated under this section is obscene and after exhaustion of appellate remedies, if such finding of obscenity is unchanged, the trial court may order the material destroyed upon petition of the City Attorney or his or her designee.
(H) Preemption by state law as to minors. This section shall be inapplicable to the exhibition of obscenity in the form of a motion picture film or sale or loan for monetary consideration of obscenity in the form of a picture, photograph, drawing, sculpture, book, pamphlet, magazine, sound recording or similar material to minors 17 years of age or younger, as this is made unlawful by state law.
(Ord. 50-2006, passed 11-6-2006) Penalty, see § 118.999