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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. 1989 -45 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. 2 1989-45 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 1989-45 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. 4 1989-45 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. 1989-45 (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. 6 1989-45 (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. 7 1989-45 (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. 1989 -45 (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. 1989-45 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 10 1989-45 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 11 1989-45 (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 12 1989-45 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. 13 1989-45 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 - 14