Chapter 9.25 OFFENSES AGAINST PUBLIC MORALS

(ii) The exposed female genital or female breasts which are not covered with an opaque covering below a point immediately above the top of the nipple (or the breast with only the nipple covered).

(b) “Public” means any place open to or frequented by the public or which may be seen from any place open to or frequented by the public and includes private clubs, associations, or other places where the public frequents. [Ord. 87-34 § 13-03-205, 1987.]

9.25.020 Offensive, indecent entertainment.

It shall be unlawful for any person to hold, conduct or carry on in a public place, or cause or permit to be held, conducted or caused any motion pictures, exhibition, or entertainment of any sort which is offensive to decency, or which is of an obscene, indecent or immoral nature, or so suggestive as to be offensive to the moral sense. [Ord. 87-34 § 13-03-206, 1987.]

9.25.030 Window peeping.

It shall be unlawful for any person to look, peer, or peep into or be found loitering around or within view of any window within a building occupied as a residence of another with the intent of watching or looking through the window to observe any person undressed, or in the act of dressing or undressing. [Ord. 87-34 § 13-03-207, 1987.]

9.25.040 Lookouts for illegal acts.

It shall be a class C misdemeanor for any person to act as a guard or lookout for any building, premises, or establishment used for gambling, for illegal sale or purchase of intoxicating liquors, or for any person soliciting, offering or engaging in prostitution or gambling on any street or sidewalk. Nor shall any person give any signal intended to or calculated to warn or give warning of the approach of any peace officer to any person in or about such building or premises or place mentioned herein. [Ord. 87-34 § 13-03-208, 1987.]

9.25.050 Unlawful use of restrooms.

No person over the age of five years shall use the restroom and washrooms designated for the opposite sex. [Ord. 87-34 § 13-03-209, 1987.]

9.25.060 Lewdness.

(1) A person is guilty of lewdness if he fornicates, exposes his genitals or private parts, or performs any other act of gross lewdness under circumstances which he should know will likely cause affront or alarm or does any such act in a public place.

(2) Lewdness is a class B misdemeanor. [Ord. 87-34 § 13-07-102, 1987.]

Article II. Pornographic and Harmful Materials and Performances

9.25.070 Definitions.

For the purpose of this article:

“Contemporary community standards” means those current standards in the vicinage where an offense alleged under this article has occurred, is occurring, or will occur.

“Distribute” means to transfer possession of materials whether with or without consideration.

“Exhibit” means to show.

“Harmful to minors” means that quality of any description or representation, in whatsoever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse when it:

(a) Taken as a whole, appeals to the prurient interest in sex of minors;

(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(c) Taken as a whole, does not have serious value for minors. Serious value includes only serious literary, artistic, political, or scientific value for minors.

“Knowingly” means an awareness, whether actual or constructive, of the character of material or of a performance. A person has constructive knowledge if a reasonable inspection or observation under the circumstances would have disclosed the nature of the subject matter and if a failure to inspect or observe is for the purpose of avoiding the disclosure or is criminally negligent.

“Material” means anything printed or written or any picture, drawing, photograph, motion picture, or pictorial representation, or any statue or other figure, or any recording or transcription, or any mechanical, chemical or electrical reproduction, or anything which is or may be used as a means of communication. “Material” includes undeveloped photographs, molds, printing plates, and other latent representational objects.

“Minor” means any person less than 18 years of age.

“Nudity” means the showing of the human male or female genitals, pubic area, or buttocks, with less than a full, opaque covering, or the showing of a female breast with less than a full, opaque covering, or any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.

“Performance” means any physical human bodily activity, whether engaged in alone or with other persons, including, but not limited to, singing, speaking, dancing, acting, simulating, or pantomiming.

“Public place” includes a place to which admission is gained by payment of a membership or admission fee, however designated, notwithstanding its being designated a private club or by words of like import.

“Sado-masochistic abuse” means flagellation or torture by or upon a person clad in undergarments, a mask, or in a revealing or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed.

“Sexual conduct” means acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if the person is a female, breast, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent or actual sexual stimulation or gratification.

“Sexual excitement” means a condition of human male or female genitals when in a state of sexual stimulation or arousal, or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity. [Ord. 87-34 § 13-09-001, 1987.]

9.25.080 Material harmful to minors – No expert witness required.

(1) In any prosecution dealing with an offense relating to harmful material to minors, the question whether the predominant appeal of the material is to the prurient interest shall be determined with reference to average minors.

(2) Neither the prosecution nor the defense shall be required to introduce expert witness testimony concerning the harmful character of the material or performance which is the subject of a prosecution. [Ord. 87-34 § 13-09-002, 1987.]

9.25.090 Pornographic material or performance – Determination of predominant appeal to prurient interest – Expert testimony not required.

(1) Any material or performance is pornographic if:

(a) The average person applying contemporary community standards finds that, taken as a whole, it appeals to prurient interest in sex;

(b) It is patently offensive in the description or depiction of nudity, sexual contact, sexual excitement, sado-masochistic abuse, or excretion; and

(2) In prosecutions under this article, where circumstances of production, presentation, sale, dissemination, distribution, exhibition, or publicity indicate that the matter is being commercially exploited by the defendant for the sake of its prurient appeal, this evidence is probative with respect to the nature of the matter and can justify the conclusion that, in the context in which it is used, the matter has no serious literary, artistic, political, or scientific value.

(3) Neither the prosecution nor the defense shall be required to introduce expert witness testimony as to whether the material or performance is or is not harmful to adults or minors or is not pornographic, or as to any element of the definition of “pornographic,” including contemporary community standards. [Ord. 87-34 § 13-09-003, 1987.]

9.25.100 Distributing pornographic material.

(1) A person is guilty of distributing pornographic material when he knowingly:

(a) Sends or brings any pornographic material into this municipality with intent to distribute or exhibit it to others; or

(b) Prepares, publishes, prints, or possesses any pornographic material with intent to distribute or exhibit it to others; or

(d) Writes, creates, or solicits the publication or advertising of pornographic material; or

(e) Promotes the distribution or exhibition of material which he represents to be pornographic; or

(f) Presents or directs a pornographic performance in any public place or any place exposed to public view or participates in that portion thereof which makes it pornographic.

Each distribution of pornographic material, as defined in this subsection, is a separate offense under this section. A separate offense shall be regarded as having been committed for each day’s exhibition of any pornographic motion picture film and for each day in which any pornographic publication is displayed or exhibited in a public place with intent to distribute or exhibit it to others.

(2) Each separate offense under this section is a class B misdemeanor punishable by a minimum mandatory fine of not less than $100.00 plus $10.00 for each article exhibited up to a maximum of $11,000. [Ord. 87-34 § 13-09-004, 1987.]

9.25.110 Inducing acceptance of pornographic material.

(1) A person is guilty of inducing acceptance of pornographic material when he knowingly requires or demands as a condition to a sale, allocation, consignment, or delivery for resale of any newspaper, magazine, periodical, book, publication, or other merchandise that the purchaser or consignee receive any pornographic material or material reasonably believed by the purchaser or consignee to be pornographic material or material reasonably believed by the purchaser or consignee to be pornographic.

(2) A violation of this section is a class B misdemeanor punishable by a fine of not less than $1,000 and by incarceration, without suspension of sentence in any way, for a term of not less than 14 days. [Ord. 87-34 § 13-09-005, 1987.]

9.25.120 Dealing in harmful material to a minor.

(1) A person is guilty of dealing in harmful material when, knowing that a person is a minor, or having failed to exercise reasonable care in ascertaining the proper age of a minor, he:

(a) Knowingly distributes or offers to distribute, exhibits, or offers to exhibit, any harmful material to a minor; or

(b) Produces, presents, or directs any performance before a minor, harmful to minors, or participates in any performance before a minor, harmful to minors; or

(c) Falsely pretends to be the parent or legal guardian of a minor and thereby causes the minor to be admitted to an exhibition of any harmful material.

(2) This section does not prohibit any parent or legal guardian from distributing any harmful material to his minor child or ward or for permitting his minor child or ward to attend an exhibition of any harmful material if the minor child or ward is accompanied by him. This section does not prohibit a person from exhibiting any harmful material to a minor child who is accompanied by his parent or legal guardian or by any person whom he reasonably believes to be the parent or legal guardian of that child.

(3) Each separate offense under this section is a class B misdemeanor punishable by a minimum mandatory fine of not less than $100.00 plus $10.00 for each article exhibited up to a maximum $299.00 and by incarceration, without suspension of sentence in any way, for a term of not less than 14 days. [Ord. 87-34 § 13-09-006, 1987.]

9.25.130 Allowing property or land to be used for lewdness or obscenity.

It shall be unlawful for a landlord or landowner to willfully or knowingly allow his property or land to be used for the commercial exploitation of lewdness or obscenity.

(1) If a tenant or occupant of real property uses this property for an activity for which he or his employee is convicted under any provision of this article, the conviction makes void the lease or other title under which he holds at the option of the fee owner or any intermediate lessor; and 10 days after the fee owner or any intermediate lessor gives notice in writing to the tenant or occupant that he is exercising the option, the right of possession to the property reverts to the person exercising the option. This option does not arise until all avenues of direct appeal from the conviction have been exhausted or abandoned by the tenant or occupant or his employee.

(2) It shall be unlawful for a fee owner or intermediate lessor of real property to knowingly allow this property to be used for the purpose of distributing or exhibiting pornographic materials, or for pornographic performances, by a tenant, occupants and/or employees.

(a) “Allow” under this subsection means a failure to exercise the option arising under subsection (1) of this section within 10 days after the fee owner or lessor receives notice in writing from the county attorney of the county where the property is situated, or if situated in a city of the first or second class, from the city attorney of that city, that the property is being used for a purpose prohibited by this subsection.

(b) A willful violation of this subsection is a class B misdemeanor and any fine assessed, if not paid within 30 days after judgment, shall become a lien upon the property.

(3) Any tenant or occupant who receives a notice in writing that the fee owner or intermediate lessor is exercising the option provided by subsection (1) of this section and who does not quit the premises within 10 days after the giving of that notice is guilty of a class B misdemeanor. [Amended during 2013 codification; Ord. 87-34 § 13-09-007, 1987.]

9.25.140 Affirmative defenses.

The following shall be affirmative defenses to prosecution under this article:

(1) It is an affirmative defense to prosecution under this article that the distribution of pornographic material was restricted to institutions or persons having scientific, educational, governmental, or other similar justification for possessing pornographic material.

(2) It is not a defense to prosecution under this article that the actor was a motion picture projectionist, usher, ticket-taker, bookstore employee, or otherwise was required to violate any provision of this article incident to his employment. [Ord. 87-34 § 13-09-008, 1987.]

Article III. Prostitution

9.25.150 Definitions.

For the purposes of this article:

“House of prostitution” means a place where prostitution or promotion of prostitution is regularly carried on by one or more persons under the control, management, or supervision of another.

“Inmate” means a person who engages in prostitution in or through the agency of a house of prostitution.

“Public place” means any place to which the public or any substantial group thereof has access.

“Sexual activity” means intercourse or any sexual act involving the genitals of one person and the mouth or anus of another person, regardless of the sex of either participant. [Ord. 87-34 § 13-10-001, 1987.]

9.25.160 Prostitution.

(1) A person is guilty of prostitution when he:

(a) Engages or offers or agrees to engage in any sexual activity with another person for a fee; or

(b) Is an inmate of a house of prostitution; or

(2) Prostitution is a class B misdemeanor. [Ord. 87-34 § 13-10-002, 1987.]

9.25.170 Patronizing a prostitute.

(1) A person is guilty of patronizing a prostitute when:

(a) He pays or offers or agrees to pay another person a fee for the purpose of engaging in an act of sexual activity; or

(b) He enters or remains in a house of prostitution for the purpose of engaging in sexual activity.

(2) Patronizing a prostitute is a class B misdemeanor. [Ord. 87-34 § 13-10-003, 1987.]

9.25.180 Exploiting prostitution.

(1) A person is guilty of exploiting prostitution if he:

(a) Procures an inmate for a house of prostitution or a place in a house of prostitution for one who would be an inmate; or

(b) Encourages, induces, or otherwise purposely causes another to become or remain a prostitute; or

(c) Transports a person into or within this municipality with a purpose to promote that person’s engaging in prostitution or procuring or paying for transportation with that purpose; or

(d) Not being a child or legal dependent of a prostitute, shares the proceeds of prostitution with a prostitute pursuant to their understanding that he is to share therein; or

(e) Owns, controls, manages, supervises, or otherwise keeps alone or in association with another a house of prostitution or a prostitute business.

(2) Exploiting prostitution is a class B misdemeanor. [Ord. 87-34 § 13-10-004, 1987.]

9.25.190 Perversion.

It shall be a class B misdemeanor for any person to:

(1) Commit or offer or agree to commit a lewd act or an act of moral perversion.

(2) Secure or offer another for the purpose of committing a lewd act or an act of moral perversion.

(3) Be in or near any place frequented by the public, or any public place, for the purpose of inducing, enticing, or procuring another to commit a lewd act or an act of prostitution or moral perversion.

(4) Make a meretricious display in or near any public place, any place frequented by the public, or any place open to the public view.

(5) Knowingly transport any person to any place for the purpose of committing a lewd act or an act of moral perversion.

(6) Knowingly receive or offer to agree to receive any person into any place or building for the purpose of performing a lewd act or an act of moral perversion, or to knowingly permit any person to remain in any place or building for any such purpose.

(7) Direct or offer to direct any person to any place or building for the purpose of committing any lewd act or act of prostitution or moral perversion.

(8) Aid, abet, allow, permit, or participate in the commission of any of the acts prohibited in subsections (1) through (7) of this section. [Ord. 87-34 § 13-10-006, 1987.]