ARTICLE II. ADULT ENTERTAINMENT1
DIVISION 1. GENERALLY
14-36 Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Abnormal sexual acts means anything done or performed by any person to attain sexual gratification in an unnatural manner or at variance with or contrary to nature, which shall include, but not be limited to, homosexuality, sadomasochism, lesbianism, masturbation, or any form of sodomy.
Advertisement means any commercial promotional material initiated by or on behalf of an exhibitor designed to bring any public entertainment to the public attention or to increase the attendance of the public at such public entertainment, whether by newspaper, billboard, motion picture, television, radio, or other media within or originating within the city.
Exhibit means to project or perform any public entertainment at any public place to which an admission charge is made or where the public is invited free of charge.
Extramarital sexual relations means sexual conduct, as defined in this section, by a married person with a person other than such married person’s spouse.
Nudity means the showing or exhibiting of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breasts with less than a full opaque covering of any portion thereof below the upper portion of the nipple, or the depiction of covered male genitals in a discernibly turgid state.
Public entertainment means and includes all or any of the following types and places of entertainment open to the public generally: Traveling shows, carnivals, circuses, motion pictures, theatrical or variety performances, plays, concerts, exhibitions of any nature, theaters, tent shows, nightclubs or any other place where live entertainment is given.
Public entertainment not suitable for minors means:
(1) Any public entertainment which describes, depicts, represents or portrays either nudity, sexual promiscuity, sexual conduct, extramarital sexual relations or abnormal sexual acts, when such public entertainment:
a. Predominantly appeals to the prurient, shameful or morbid interest of minors;
b. Is patently offensive to the prevailing standards in the adult community as a whole with respect to what is suitable to be shown to minors; and
c. Has no serious literary, social, artistic or scientific value for minors.
(2) Any public entertainment which, in whole or in part, describes, depicts, represents or portrays brutality, violence, criminality or sadism, and when such public entertainment:
a. Glorifies such actions;
b. Is patently offensive to the prevailing standards in the adult community as a whole with respect to what is harmful to minors; and
c. Has no serious literary, social, artistic or scientific value for minors.
(3) Any public entertainment which, in whole or in part, uses obscene language, and when such public entertainment:
a. Is patently offensive to the prevailing standards in the adult community as a whole with respect to what is suitable to be shown to, or heard by, minors; and
b. Has no serious literary, social, artistic or scientific value for minors.
(4) Any public entertainment which, in whole or in part, would lead the average viewer to no other logical conclusion than that the acts enumerated in subsections (1), (2) and (3) of this definition are being performed.
Public entertainment not suitable for public viewing means any obscene motion picture entertainment and all other forms of public entertainment as defined in this section that actually describes, depicts, represents or portrays abnormal sexual acts or other sexual conduct when such public entertainment:
(1) Appeals to the prurient, shameful or morbid interests as a whole;
(2) Is patently offensive to the prevailing community standards as a whole; and
(3) Has no serious literary, social, artistic or scientific value.
Sexual conduct means sexual intercourse and/or lewd, lascivious physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, her breasts.
(Code 1985, § 5-55)
Cross reference—Definitions generally, § 1-2.
14-37—14-60 Reserved.
DIVISION 2. CLASSIFICATION BOARD2
14-61 Created; composition; quorum.
(a) There is hereby created a classification board.
(b) The classification board shall be composed of seven members. The membership shall elect from among its members a chairman and vice-chairman.
(c) The city clerk and treasurer shall act as the secretary of the classification board. The clerk need not be a member of the board.
(d) A quorum of the classification board shall consist of four members.
(e) A majority of the entire classification board shall be required for any action by the board.
(Code 1985, § 5-56)
14-62 Membership; qualifications; term; vacancies; compensation.
(a) Members of the classification board shall be residents of the city, and shall be chosen so far as reasonably practicable in such a manner as to represent a cross-section of the community.
(b) Members of the classification board shall be appointed by the mayor to serve at the pleasure of the mayor for a term of four years. Reappointment of a member to serve an additional consecutive term is subject to council approval.
(c) If a vacancy occurs on the classification board, the mayor shall appoint a new member to fill the vacancy.
(d) Members of the classification board shall serve without pay.
(Code 1985, § 5-57)
14-63 Powers and duties.
The board of classification shall, upon receipt of an application for classification, either:
(1) Approve the classification as requested;
(2) Classify it as “not suitable for minors”; or
(3) Classify it as “not suitable for public viewing.”
(Code 1985, § 5-58)
14-64 Rules and regulations.
(a) The classification board shall adopt such rules and regulations as it deems necessary to govern its proceedings and deliberations.
(b) The rules and regulations adopted by the classification board shall be subject to approval by the council.
(Code 1985, § 5-59)
14-65—14-80 Reserved.
DIVISION 3. CLASSIFICATION PROCEDURES3
14-81 Application for classification; contents.
(a) Before any initial exhibition of a public entertainment, the exhibitor shall file an application with the classification board for the classification of the public entertainment to be exhibited. The application shall be submitted 15 days in advance of this exhibition, and shall contain the following:
(1) The classification requested;
(2) The exhibitor’s name and address;
(3) The name and address of the theater or other place in which the public entertainment is to be exhibited;
(4) The title of the public entertainment, if any;
(5) The date the public entertainment is to be first shown;
(6) A summary of the plot of the performance, if any;
(7) A list of names of the main actors appearing in the show; and
(8) Such other reasonable information as the classification board may require.
(b) Before any initial exhibition of a motion picture, the exhibitor shall be required to file an application for classification.
(Code 1985, § 5-60)
14-82 Classification procedure.
(a) The classification board shall examine the applications filed under section 14-81. If the board fails to hold a hearing and take action on an application within seven days after such application is filed or additional information requested by the board, the proposed classification shall be considered approved.
(b) Any action by the classification board, as required in this section, shall include the following:
(1) If the board approves the application submitted by the exhibitor, it shall be marked “approved” and filed as the board’s own classification order.
(2) If upon examination of the application submitted by the exhibitor a majority of the board finds the information, as furnished by such exhibitor, inadequate or insufficient, and the board is not satisfied that it can make a proper determination based on such inadequate or insufficient information, the board may direct the exhibitor to furnish additional information deemed necessary by the board. After such additional information has been filed, the board may approve the application, or, if a majority of the board is not satisfied that the proposed classification is proper, it shall order the exhibitor to project or perform the film or public entertainment before any four or more members of the board.
(3) If upon examination of the application a majority of the board is not satisfied that the proposed classification is proper, the board shall order the exhibitor to project or perform the film or public entertainment before any four or more members of the board at a suitably equipped place and at the earliest time practicable with due regard to the availability of the necessary facilities and personnel which are to be provided by the exhibitor. Such exhibition shall be at such exhibitor’s expense, and the exhibitor, or his designated representative, may at such time make such statement to the board in support of his proposed classification and present such testimony as he may desire. Within two days from the date of this hearing, the board shall make and file its classification of the film or public entertainment in question.
(4) If the board approves a proposed classification of a motion picture or other public entertainment without viewing it, classifying it primarily on the basis of the information furnished by the exhibitor, and a subsequent investigation or viewing of such film or public entertainment indicates that the information furnished was misleading and has led to a possible erroneous classification, the board may direct the exhibitor to project or perform the film or public entertainment before any four or more members of the board. Within two days from the date of this hearing, the board shall make and file its classification or reclassification of the film or public entertainment in question. If the film or public entertainment is reclassified, the exhibitor shall have seven days in which to alter his advertising and audience policy to comply with the classification.
(Code 1985, § 5-61)
14-83 Reclassification procedure.
(a) Any exhibitor may file an application for a change in classification of any film or public entertainment previously classified. No exhibitor shall be allowed to file more than one application for change of classification of the same film or public entertainment. Such application shall contain a sworn statement of the grounds upon which the application for reclassification is based. The classification board shall hold a hearing and take action on such application within seven days from the date of its filing. If the board fails to do so, the proposed reclassification shall be considered approved.
(b) If the classification board is not satisfied that the film or public entertainment should be reclassified, it may direct the exhibitor to project or perform the film or public entertainment before any four or more members of the board, at a suitably equipped place and at the earliest time practicable with due regard to the availability of the film and the necessary facilities and personnel which are to be provided by the exhibitor. Such projection of the film shall be at the expense of the exhibitor. The exhibitor, including all exhibitors who may be exhibiting or preparing to exhibit the film or public entertainment or designated representatives of such exhibitor, may at such time make such statement to the board and present such testimony in support of his application for reclassification as he may desire, and the board shall within two days thereafter make and file its order approving or denying the application for reclassification.
(Code 1985, § 5-62)
14-84 Effects on subsequent exhibitors.
A classification shall be binding upon any subsequent exhibitor unless a change of classification is obtained.
(Code 1985, § 5-63)
14-85 Notification of classification.
(a) Upon the filing by the classification board of any classification order or any board order or official board action, the secretary of the board shall immediately issue and mail a notice of such order or such action to the exhibitor involved, and to any other exhibitor or other interested party who shall request such notice and who has in writing designated a local agent to receive such notice.
(b) If the classification board enters a classification order as “not suitable for minors” or “not suitable for public viewing” contrary to the requested classification, the classification order filed by the board shall state the following:
(1) The classification by the board for such film or public entertainment;
(2) The portion of the classification standard that represents the basis for the film’s classification;
(3) Any findings used by the board as a basis for its classification;
(4) Any other information which the board considers helpful to the exhibitor with respect to the reasons the particular film or public entertainment was classified as not suitable for minors or not suitable for public viewing.
(Code 1985, § 5-64)
14-86 Judicial review.
(a) Within five days after the filing of any classification order by the classification board, the exhibitor may file an exception to the board’s classification. If the exhibitor states his intention or gives any indication of his intent to exhibit the film or public entertainment in question in violation of the board’s order, the board shall immediately make application to a court of competent jurisdiction for a temporary and/or permanent injunction to enjoin the defendant-exhibitor, being the exhibitor who contests the classification, from advertising or exhibiting the film or public entertainment in question contrary to the board’s classification.
(b) There shall be a judicial determination as to whether the film or public entertainment in question is “not suitable for minors” or “not suitable for public viewing.” The classification board shall have the burden of proving the film or public entertainment is one that is “not suitable for minors” or “not suitable for viewing,” and shall request the court to make and file findings of fact and conclusions of law regarding the trial.
(c) The filing of an exception by the exhibitor shall not suspend nor set aside the classification board’s order.
(Code 1985, § 5-65)
14-87—14-110 Reserved.
DIVISION 4. MINORS4
14-111 Definitions.
The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Knowingly means having general knowledge of or reason to know, or belief or grounds for belief which warrants further inspection or inquiry of:
(1) The character and content of any materials described in this division which are reasonably susceptible of examination by the defendant; and
(2) The age of the minor; provided, that an honest mistake shall constitute and excuse from liability under this division if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.
Minor means any person who has not attained the age of 18 years.
(Code 1985, § 5-66)
Cross reference—Definitions generally, § 1-2.
14-112 Prohibitions.
No person shall knowingly:
(1) Exhibit any motion picture or public entertainment classified “not suitable for minors” if any current advertisement of such public entertainment by such exhibitor fails to state clearly the classification of such public entertainment.
(2) Exhibit any public entertainment classified “not suitable for minors” without keeping such classification posted prominently in front of the theater or other place in which such public entertainment is being exhibited.
(3) Sell or give to any minor a ticket to any public entertainment classified “not suitable for minors,” which ticket is used by such minor to gain admittance to or view such public entertainment.
(4) Permit any minor to view the exhibition of any public entertainment classified “not suitable for minors.”
(5) Exhibit any public entertainment classified “not suitable for minors” or any scene or scenes from any film or other public entertainment, or from an unclassified film or public entertainment, whether moving or still, in the same theater or other public place and on the same program with a film or other public entertainment classified “suitable for minors”; provided, that any advertising preview containing a scene or scenes from an unclassified public entertainment or a film or other public entertainment classified “not suitable for minors” may be shown at any time if the same has been separately classified as “suitable for minors.”
(6) Make any false or misleading statement in any application for classification, application for change of classification, or any other proceedings before the classification board.
(Code 1985, § 5-67)
14-113 Offenses by minors.
No minor shall:
(1) Give his age falsely as 18 years or over for the purpose of gaining admittance to an exhibition of any public entertainment classified “not suitable for minors.”
(2) Enter or remain in the viewing room of any theater where a film or public entertainment classified “not suitable for minors” is being exhibited.
(3) State falsely that the adult accompanying him is his parent, legally appointed guardian or spouse for the purpose of gaining admittance to the exhibition of any public entertainment classified as “not suitable for minors.”
(Code 1985, § 5-68)
14-114 Injunctions.
Whenever the classification board has probable cause to believe that any exhibitor has committed any of the acts in section 14-112, the board shall have the duty to make application to a court of competent jurisdiction for an injunction restraining the commission of such acts.
(Code 1985, § 5-69)
14-115 Exception to division.
The provisions of this division shall not apply to any minor attending any film or public entertainment classified “not suitable for minors” when such minor is accompanied by his parent or legally appointed guardian or adult husband or wife throughout the viewing of the film or public entertainment.
(Code 1985, § 5-70)
14-116—14-130 Reserved.
DIVISION 5. ADULT STANDARDS
14-131 Definitions.
The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Obscene means any abnormal sexual acts as defined in section 14-36 when the:
(1) Dominant theme appeals to prurient interest;
(2) Is without serious literary, artistic, political or social value; and
(3) Is patently offensive to the prevailing standards of the community as a whole.
(Code 1985, § 5-71)
Cross reference—Definitions generally, § 1-2.
14-132 Obscene motion pictures or public entertainments.
No person shall show for profit, charge admission to, or otherwise exhibit in any place where the public is invited any obscene motion picture or other public entertainment classified “not suitable for public viewing.”
(Code 1985, § 5-72)
14-133 Participating in obscene performances.
No person shall publicly engage or participate in any obscene, lewd or lascivious scene, act, posture or performance.
(Code 1985, § 5-73)
14-134 Obscene advertising.
No person shall advertise any motion picture, show or performance or other public entertainment by any means which show or depict any obscene picture, posture, representation, thing or any like matter.
(Code 1985, § 5-74)
14-135—14-155 Reserved.
Cross reference—Prostitution, § 86-76 et seq.
Decisional law references—Obscene materials generally, Ginsburg v. N.Y., 383 U.S. 463(1967); Miller v. Calif., 93 S. Ct. 2607(1973). Regarding what constitutes community standards, Jenkins v. Georgia, 94 S. Ct. 2750(1974).
State law reference—Obscene materials generally, MCL 600.2938, MSA 27A.2938.
Decisional law reference—Constitutionality of a censorship board, Grover Press Inc. v. Maryland State Board of Censors, 258 A2d 240, aff’d per curiam 401 U.S. 480(1971).
Decisional law references—Requirement of promptness of review, Freeman v. Maryland, 380 U.S. 51(1965); Tietel Film Corp. v. Cusack, 390 U.S. 139(1968). See also Grove Press v. Flask, 326 F. Supp. 574(Ohio 1970).
State law reference—Obscenity with respect to minors, MCL 750.140, 750.142, 750.143, 750.145a, 750.145b, MSA 28.335, 28.337, 28.338, 28.341, 28.342.