19891114 1989-45ORDINANCE NO. 1989- 45
AN ORDINANCE AMENDING CHAPTER 14 OF THE
CODE OF THE CITY OF FAIRFAX, VIRGINIA BY
DESIGNATING SECTIONS 14-1 THROUGH 14-30
AS ARTICLE I, AND BY ENACTING ARTICLE II
SECTIONS 14-31 THROUGH 14-48 CONCERNING
OBSCENITY.
BE IT ORDAINED by the City Council of the City of
Fairfax that Chapter 14 of the Code of the City of Fairfax,
Virginia is amended by designating Sections 14-1 through 14-
30 thereof as Article I, the title thereof to read as
follows:
ARTICLE I.
IN GENERAL
BE IT FURTHER ORDAINED by the City Council of the City
of Fairfax, that Chapter 14 of the Code of the City of
Fairfax, Virginia is amended by adding a new Article II to
read in its entirety as follows:
ARTICLE II.
Division 1.
OBSCENITY
Generally
Section 14-31. "Obscene" Defined.
The word "obscene" where it appears in this division
shall mean that which, considered as a whole, has as its
dominant theme or purpose an appeal to the prurient interest
in sex, that is, a shameful or morbid interest in nudity,
sexual conduct, sexual excitement, excretory functions or
products thereof or sadomasochistic abuse, and which goes
substantially beyond customary limits of candor in
description or representation of such matters and which,
taken as a whole, does not have serious literary, artistic,
political or scientific value.
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Section 14-32. Obscene items enumerated.
Obscene items shall include:
(a) Any obscene book; or
(b) Any obscene leaflet, pamphlet, magazine, booklet,
picture, painting, bumper sticker, drawing,
photograph, film, negative, slide, motion picture,
videotape recording; or
(c) Any obscene figure, object, article, instrument,
novelty device, or recording or transcription used
or intended to be used in disseminating any
obscene song, ballad, words, or sounds.
Section 14-33. Production, publication, sale,
possession, etc., of obscene items.
It shall be unlawful for any person knowingly to:
(a) Prepare any obscene item for the purposes of sale
or distribution; or
(b) Print, copy, manufacture, produce or reproduce any
obscene item for purposes of sale or distribution;
or
(c) Publish, sell, rent, lend, transport in intrastate
commerce, or distribute or exhibit any obscene
item, or offer to do any of these things; or
(d) Have in his possession with intent to sell, rent,
lend, transport, or distribute any obscene item.
Possession in public or in a public place of any
obscene item as defined in this division shall be
deemed prima facie evidence of a violation of this
section.
For the purposes of this section, "distribute" shall
mean delivery in person, by mail, messenger or by any other
means by which obscene items as defined in this division may
pass from one person, firm or corporation to another.
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Section 14-34. Obscene exhibitions and performances.
It shall be unlawful for any person knowingly to:
(a) Produce, promote, prepare, present, manage,
direct, carry on or participate in, any obscene
exhibitions or performances, including the
exhibition or performance of any obscene motion
picture, play, drama, show, entertainment,
exposition, tableau or scene; provided, that no
employee of any person or legal entity operating a
theatre, garden, building, structure, room or
place which presents such obscene exhibition or
performance shall be subject to prosecution under
this section if the employee is not the manager of
the theatre or an officer of such entity, and has
no financial interest in such theatre other than
receiving salary and wages; or
(b) Own, lease or manage any theatre, garden,
building, structure, room or place and lease, let,
lend or permit such theatre, garden, building,
structure, room or place to be used for the
purpose of presenting such obscene exhibition or
performance or to fail to post prominently therein
the name and address of a person resident in the
locality who is the manager of such theatre,
garden, building, structure, room or place.
Section 14-35. Advertising, etc., obscene items,
exhibitions or performances.
It shall be unlawful for any person knowingly to
prepare, print, publish, or circulate, or cause to be
prepared, printed, published or circulated, any notice or
advertisement of any obscene item proscribed in Section 14-
32, or of any obscene performance or exhibition proscribed
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in Section 14-34, stating or indicating where such obscene
item, exhibition, or performance may be purchased, obtained,
seen or heard.
Section 14-36. Placards, posters, bills, etc.
It shall be unlawful for any person knowingly to
expose, place, display, post up, exhibit, paint, print, or
mark, or cause to be exposed, placed, displayed, posted,
exhibited, painted, printed or marked, in or on any
building, structure, billboard, wall or fence, or on any
street, or in upon any public place, any placard, poster
banner, bill, writing, or picture which is obscene, or which
advertises or promotes any obscene item proscribed in
Section 14-32 or any obscene exhibition or performance
proscribed in Section 14-34 or knowingly to permit the same
to be displayed on property belonging to or controlled by
him.
Section 14-37. Coercing acceptance of obscene articles
or publications.
It should be unlawful for any person, firm, association
or corporation, as a condition to any sale, allocation,
consignment or delivery for resale of any paper, magazine,
book, periodical or publication to require that the
purchaser or consignee receive for resale any other article,
book, or other publication which is obscene; nor shall any
person, firm, association or corporation deny or threaten to
deny any franchise or impose or threaten to impose any
penalty, financial or otherwise, by reason of the failure or
refusal of any person to accept such articles, books, or
publications, or by reason of the return thereof.
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Section 14-38. Employing or permitting minor to assist
in offense under division.
It shall be unlawful for any person knowingly to hire,
employ, use or permit any minor to do or assist in doing any
act or thing constituting an offense under this division.
Section 14-39. Punishment for first offense.
Any person, firm, association or corporation convicted
for the first time of an offense under Sections 14-33
through 14-38 shall be guilty of a Class 1 misdemeanor.
Section 14-40. Photographs, slides and motion pictures.
Every person who knowingly:
(a) Photographs himself or any other person, for
purposes of preparing an obscene film, photograph,
negative, slide or motion picture for purposes of
sale or distribution; or
(b) Models, poses, acts or otherwise assists in the
preparation of any obscene film, photograph,
negative, slide or motion picture for purposes of
sale or distribution;
shall be guilty of a Class 3 misdemeanor.
Section 14-41. Exceptions to application of division.
Nothing contained in this division shall be construed
to apply to:
(a) The purchase, distribution, exhibition, or loan of
any book, magazine, or of the printed or
manuscript material by any library, school, or
institution of higher learning, supported by
public appropriation;
(b) The purchase, distribution, exhibition, or loan of
any work of art by any museum of fine arts,
school, or institution of higher learning,
supported by public appropriation.
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(c)
The exhibition or performance of any play, drama,
tableau, or motion picture of any theatre, museum
of fine arts, school or institution of higher
learning supported by public appropriation.
Section 14-42.
Proceeding against book alleged to be
obscene.
(a) Whenever he has reasonable cause to believe that
any person is engaged in the sale or commercial
distribution of any obscene book, any citizen or
the attorney for the County of Fairfax or the
Fairfax City Attorney, may institute a proceeding
in the Fairfax County Circuit Court for
adjudication of the obscenity of the book.
(b) The proceeding shall be instituted by filing with
the court a petition:
(1) Directed against the book by name or
description;
(2) Alleging the obscene nature of the book; and
(3) Listing the names and addresses, if known, of
the author, publisher, and all other persons
interested in its sale or commercial
distribution.
(c) Upon the filing of a petition pursuant to this
division, the court in term or in vacation shall
forthwith examine the book alleged to be obscene.
If the court find no probable cause to believe the
book obscene, the judge thereof shall dismiss the
petition; but if the court find probable cause to
believe the book obscene, the judge thereof shall
issue an order to show cause why the book should
not be adjudicated obscene.
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(d) The order to show cause shall be:
(1) Directed against the book by name or
description;
(2) Published once a week for two successive
weeks in a newspaper of general circulation
within Fairfax County;
(3) If their names and addresses are known,
served by registered mail upon the author,
publisher, and all other persons interested
in the sale or commercial distribution of the
book; and
(4) Returnable twenty-one days after its service
by registered mail or the commencement of its
publication, whichever is later.
(e) When an order to show cause is issued pursuant to
this division and upon four days' notice to be
given to the persons and in the manner prescribed
by the court, the court may issue a temporary
restraining order against the sale or distribution
of the book alleged to be obscene.
(f) On or before the return date specified in the
order to show cause, the author, publisher, and
any person interested in the sale or commercial
distribution of the book may appear and file an
answer. The court may by order permit any other
person to appear and file an answer amicus
curiae.
(g) If no one appears and files an answer on or before
the return date specified in the order to show
cause, the court, upon being satisfied that the
book is obscene, shall order the clerk of court to
enter judgment that the book is obscene, but the
court in its discretion may except from its
judgment a restricted category of persons to whom
the book is not obscene.
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(h) If an appearance is entered and an answer filed,
the court shall order the proceeding set on the
calendar for a prompt hearing. The court shall
conduct the hearing in accordance with the rules
of civil procedure applicable to the trial of
cases by the court without a jury. At the hearing,
the court shall receive evidence, including the
testimony of experts, if such evidence be offered,
pertaining to:
(1) The artistic, literary, medical, scientific,
cultural and educational values, if any, of
the book considered as a whole;
(2) The degree of public acceptance of the book,
or books of similar character, within Fairfax
County;
(3) The intent of the author and publisher of the
book;
(4) The reputation of the author and publisher;
(5) The advertising, promotion, and other
circumstances relating to the sale of the
book;
(6) The nature of classes of persons, including
scholars, scientists, and physicians, for
whom the book may not have prurient appeal,
and who may be subject to exception pursuant
to subsection (g).
(i) In making a decision on the obscenity of the book,
the court shall consider, among other things, the
evidence offered pursuant to subjection (h), if
any, and shall make a written determination upon
every such consideration relied upon in the
proceeding in his findings of fact and conclusions
of law or in a memorandum accompanying them.
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(j) If he finds the book not obscene, the court shall
order the clerk of court to enter judgment
accordingly. If he finds the book obscene, the
court shall order the clerk of court to enter
judgment that the book is obscene, but the court,
in its discretion, may except from its judgment a
restricted category of persons to whom the book is
not obscene.
(k) While a temporary restraining order made pursuant
to subjection (e) is in effect, or after the entry
of a judgment pursuant to subjection (g), or after
the entry of judgment pursuant to subject (j), any
person who publishes, sells, rents, lends,
transports in intrastate commerce, or commercially
distribute or exhibit the book, is presumed to
have knowledge that the book is obscene under
Sections 14-31 through 14-37 of this division.
(1) Any party to the proceedings, including the
petitioner, may appeal from the judgment of the
court to the Supreme Court of Virginia, as
otherwise provided by law.
(m) It is expressly provided that the petition and
proceeding authorized under this division,
relating to books alleged to be obscene, shall be
intended only to establish scienter in cases where
the establishment of such scienter is thought to
be useful or desirable by the petitioner; and the
provisions of this section shall in nowise be
construed to be necessary prerequisite to the
filing of criminal charges under this division.
Section 14-43. Applicable to motion picture films.
The provisions of Section 14-42 shall apply mutatis
mutandis in the case of motion picture film.
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Section 14-44. Showinq previews of certain motion
pictures.
It shall be unlawful for any person to exhibit any
trailer or preview of any motion picture which has a motion
picture industry rating which would not permit persons in
the audience viewing the feature motion picture to see the
complete motion picture from which the trailer or preview is
taken. Persons violating the provisions of this section
shall be guilty of a Class 1 misdemeanor.
Section 14-45. Violations, penalties.
Unless otherwise provided, any person violating the
provisions of this division shall be guilty of a Class 1
misdemeanor.
Division 2. Prohibited Sales and Loans to Juveniles.
Section 14-46. Definitions.
As used in this division:
(a) "Juvenile" means a person less than eighteen years
of age.
(b) "Nudity" means a state of undress so as to expose
the human male or female genitals, pubic area or
buttocks with less than a full opaque covering or
the showing of the female breast with less than a
fully opaque covering of any portion thereof below
the top of the nipple, or the depiction of covered
or uncovered male genitals in a discernibly turgid
state.
(c) "Sexual conduct" means actual or explicitly
simulated acts of masturbation, homosexuality,
sexual intercourse, or physical contact in an act
of apparent sexual stimulation or gratification
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with a person's clothed or unclothed genitals,
pubic area, buttocks or, if such be female,
breast.
(d) "Sexual excitement" means the condition of human
male or female genitals when in a state of sexual
stimulation or arousal.
(e) "Sadomasochistic abuse" means actual or explicitly
simulated flagellation or torture by or upon a
person who is nude or 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.
(f) "Harmful to juveniles" means that quality of any
description or representation, in whatever form,
of nudity, sexual conduct, sexual excitement, or
sadomasochistic abuse, when it
(1) predominantly appeals to the prurient,
shameful or morbid interest of juveniles,
(2) is patently offensive to prevailing standards
in the adult community as a whole with
respect to what is suitable material for
juveniles, and
(3) is, when taken as a whole, lacking in serious
literary, artistic, political or scientific
value for juveniles.
(g) "Knowingly" means having general knowledge of, or
reason to know, or a belief or ground for belief
which warrants further inspection or inquiry of
both
(1) the character and content of any material
described herein which is reasonably
susceptible of examination by the defendant,
and
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(2)
the age of the juvenile, provided however,
that an honest mistake shall constitute an
excuse from liability hereunder if the
defendant made reasonable bona fide attempt
to ascertain the true age of such juvenile.
Section 14-47. Unlawful acts.
(a) It shall be unlawful for any person knowingly to
sell, rent or loan to a juvenile, or to knowingly
display for commercial purpose in a manner whereby
juveniles may examine and peruse:
(1) Any picture, photography, drawing, sculpture,
motion picture film, or similar visual
representation or image of a person or
portion of the human body which depicts
sexually explicit nudity, sexual conduct or
sadomasochistic abuse and which is harmful to
juveniles, or
(2) Any book, pamphlet, magazine, printed matter
however reproduced, or sound recording which
contains any matter enumerated in subsection
(1) of this section, or explicit and detailed
verbal descriptions or narrative accounts of
sexual excitement, sexual conduct or
sadomasochistic abuse and which, taken as a
whole, is harmful to juveniles.
(b) It shall be unlawful for any person knowingly to
sell to a juvenile an admission ticket or pass, or
knowingly to admit a juvenile to premises whereon
there is exhibited a motion picture, show or other
presentation which, in whole or in part, depicts
sexually explicit nudity, sexual conduct or
sadomasochistic abuse and which is harmful to
juveniles or to exhibit any such motion picture at
any such premises which are not designed to
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prevent viewing from any public way of such motion
picture by juveniles not admitted to any such
premises.
(c) It shall be unlawful for any juvenile falsely to
represent to any person mentioned in subsection
(a) or subject (b) of this section, or to his
agent, that such juvenile is eighteen years of age
or older, with the intent to procure any material
set forth in subsection (a), or with the intent to
procure such juvenile's admission to any motion
picture, show or other presentation, as set forth
in subsection (b).
(d) It shall be unlawful for any person knowingly to
make a false representation to any person
mentioned in subsection (a) or subsection (b)
hereof or to his agent, that he is the parent or
guardian of any juvenile, or that any juvenile is
eighteen years of age, with the intent to procure
any material set forth in subsection (a), or with
the intent to procure such juvenile's admission to
any motion picture, show or other presentation, as
set forth in subjection (b).
(e) Violation of any provision hereof shall constitute
a Class 1 misdemeanor.
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Section 14-48. Exceptions to application of division.
Nothing contained in this division shall be construed
to apply to:
(a) The purchase, distribution, exhibition, or loan of
any work of art, book, magazine, or other printed
or manuscript material by any accredited museum,
library, school, or institution of higher
learning.
(b) The exhibition or performance of any play, drama,
tableau, or motion picture by any theatre, museum,
school or institution of higher learning, either
supported by public appropriation or which is an
accredited institution supported by private funds.
This ordinance shall become effective as provided by
law.
ADOPTED
INTRODUCED : October 24, 1989
PUBLIC HEARING : November 14, 1989
: November 14, 1989
ATTEST:
citY Clerk -
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