Sec. 27-1. - Definitions.

Unless otherwise provided, the following definitions shall apply in the interpretation and enforcement of this article:

Knowingly means having a general knowledge of, or reason to know, or belief or ground for belief which warrants further inspection or inquiry of the character and content of any material described in this article which is reasonably susceptible of examination by the defendant.

Obscene means that which, considered as a whole, has as its dominant theme or purpose an appeal to 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, lacks serious literary, artistic, political or scientific value.

(Ord. No. 302, § 1; Ord. No. 1169, § 1; Ord. No. 1774; Code 1961, § 24-1)

State law reference— Similar definition of "obscene," Code of Virginia, § 18.2-372.

Sec. 27-2. - Obscene items enumerated.

For the purpose of this article, obscene items shall include:

(1)

Any obscene book; or

(2)

Any obscene leaflet, pamphlet, magazine, booklet, picture, painting, drawing, photograph, film, negative, slide, motion picture; or

(3)

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.

(Ord. No. 302, § 3; Code 1961, § 24-3)

State law reference— Similar provisions, Code of Virginia, § 18.2-373.

Sec. 27-3. - Production, publication, sale, possession, etc., of obscene items.

(a)

It shall be unlawful for any person to knowingly:

(1)

Prepare an obscene item for the purpose of sale or distribution; or

(2)

Print, copy manufacture, produce or reproduce any obscene item for purposes of sale or distribution; or

(3)

Publish, sell, rent, lend, transport intrastate commerce or distribute or exhibit any obscene item, or offer to do any of these things; or

(4)

Have in such person's 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 shall be deemed prima facie evidence of a violation of this section.

(b)

For the purpose of this section, "distribute" shall mean delivery in person or by mail or messenger or by any other means by which obscene items may pass from one (1) person to another.

(Ord. No. 302, § 2; Ord. No. 963, § 1; Ord. No 1169, § 1; Code 1961, § 24-2)

State law reference— Similar provisions, Code of Virginia, § 18.2-374.

Sec. 27-4. - Obscene exhibitions and performances generally.

It shall be unlawful for any person to knowingly:

(1)

Produce, promote, prepare, present, manage, direct, carry on or participate in any obscene exhibition or performance, 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 represents 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

(2)

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.

(Ord. No. 302, § 4; Ord. No. 1169, § 1; Code 1961, § 24-4)

State law reference— Similar provisions, Code of Virginia, § 18.2-375.

Sec. 27-5. - Advertising obscene items, exhibitions or performances generally.

Every person who knowingly prepares, prints, publishes or circulates, or causes to be prepared, printed, published or circulated, any notice or advertisement of any obscene item referred to in section 27-2, or of any obscene performance or exhibition referred to in section 27-4, stating or indicating where such obscene item, exhibition or performance may be purchased, obtained, seen or heard, shall be guilty of a misdemeanor.

(Ord. No. 302, § 5; Ord. No. 1169, § 1; Code 1961, § 24-5)

Cross reference— Advertising, Ch. 3.

State law reference— Similar provisions, Code of Virginia, § 18.2-376.

Sec. 27-6. - Obscene placards, posters, bills, etc.

Every person who knowingly exposes, places, displays, posts up, exhibits, paints, prints or marks, or causes 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 or upon any public place, any placard, poster, banner, bill, writing or picture which is obscene, or which advertises or promotes any obscene item referred to in section 27-2, or any obscene exhibition or performance referred to in section 27-4, or who knowingly permits the same to be displayed on property belonging to or controlled by such person, shall be guilty of a misdemeanor.

(Ord. No. 302, § 6; Ord. No. 1169, § 1; Code 1961, § 24-6)

State law reference— Similar provisions, Code of Virginia, § 18.2-377.

Sec. 27-7. - Coercing acceptance of obscene articles or publications.

No persons shall, as a condition to any sale, allocation, consignment or delivery for resale of any paper, magazine, book, periodical or publication, require that the purchaser or consignee receive for resale any other article, book or other publication which is obscene; nor shall any person 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.

(Ord. No. 302, § 7; Ord. No. 1169, § 1; Code 1961, § 24-7)

State law reference— Similar provisions, Code of Virginia, § 18.2-378.

Sec. 27-8. - Obscene photographs, slides and motion pictures.

(a)

Every person who knowingly:

(1)

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

(2)

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 misdemeanor.

(b)

Any violation of this section shall constitute a Class 3 misdemeanor.

(Ord. No. 302, § 9; Ord. No. 1169, § 1; Code 1961, § 24-9)

State law reference— Similar provisions, Code of Virginia, § 18.2-382.

Sec. 27-9. - Operating modeling studio for obscene poses, pictures, etc.

(a)

It shall be unlawful for any person to operate a business of providing models or facilities for lewd and indecent sketching, painting or photographing of the human figure where the model postures or is reproduced by sketches, paintings or photographs, in a manner which:

(1)

Appeals to prurient interests;

(2)

Is utterly without socially redeeming quality or character; and

(3)

Patently offends contemporary community standards.

(b)

Educational institutions, museums and art galleries are not within the purview of this section.

(c)

In addition to the penalties prescribed for a violation of this section, the commissioner of the revenue shall revoke the business license of the establishment wherein the provisions of this section shall have been violated.

(Ord. No. 1600; Code 1961, §§ 21C-2, 21C-3)

Sec. 27-10. - Indecent exposure.

Every person who intentionally makes an obscene display or exposure of his or her person, or the private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself or herself, shall be guilty of a misdemeanor.

(Ord. No. 302, § 10; Ord. No. 1169, § 1; Code 1961, § 24-10)

State law reference— Similar provisions, Code of Virginia, § 18.2-387.

Sec. 27-10.1. - Indecent exposure by entertainers, waitresses, waiters, etc.

(a)

For the purposes of this section the phrase "expose, exhibit or display nude breast or breasts" shall mean the exposure, exhibition or display of a portion of the female breast or breasts below the uppermost portion of the areola (the pigmented area surrounding the nipple of a breast), assuming a normal standing position of the female, and the term "lower torso" shall mean that portion or the male or female body consisting of the private parts or genital organs and the anal cleft or cleavage of the buttocks.

(b)

It shall be unlawful for any female person eighteen (18) years of age or older to expose, exhibit or display her nude breast or breasts under any of the following conditions:

(1)

While performing any dance or other type of entertainment in or at a tavern, restaurant or any public place in the city serving food or beverages for compensation, charging an admission fee or receiving a donation, or in any private club or organization wherein dues or membership fees are charged.

(2)

While working as a waitress, bartender or other type of employment in or at a tavern, restaurant or any public place in the city serving food or beverage for compensation, charging an admission fee or receiving a donation, or in any private club or organization wherein dues or membership fees are charged.

This subsection includes, but is not limited to, the wearing of any costume, garment or material which, by virtue of construction or transparency of material, exposes, exhibits or displays such female's breast or breasts under the above conditions.

(c)

It shall be unlawful for any person eighteen (18) years of age or older to expose, exhibit or display his or her lower torso under any of the following conditions:

(1)

While performing any dance or other type of entertainment in or at a tavern, restaurant or any public place in the city serving food or beverages for consumption, charging an admission fee or receiving a donation, or in any private club or organization wherein dues or membership fees are charged.

(2)

While working as a waitress, waiter or bartender or other similar type of employee in or at a tavern, restaurant or any public place in the city serving food or beverages for compensation, charging an admission fee or receiving a donation, or in any private club or organization wherein dues or membership fees are charged.

This subsection includes, but is not limited to, the wearing of any costume, garment or material which, by virtue of construction or transparency of material, exposes, exhibits or displays such person's lower torso under the above conditions.

(d)

It shall be unlawful for any owner, proprietor, manager or any other person lawfully in charge of a tavern, restaurant or any public place in the city serving food or beverages for compensation, charging an admission fee or receiving a donation, or any private club or organization wherein dues or membership fees are charged, to procure, assist or knowingly to permit any person to violate the provisions of this section in such place.

(e)

Nothing contained in this section shall be construed to apply to the exhibition, presentation, showing or performance of any play, ballet, drama, tableau, production or motion picture in any theater, concert hall, museum of fine arts, school, institution of higher learning or other similar establishment which is primarily devoted to such exhibitions, presentations, shows or performances as a form of expression of opinion, communication, speech, ideas, information, act or drama, as differentiated from commercial or business advertising, promotion or exploitation of nudity for the purpose of advertising, promotion, selling or serving products or services or otherwise advancing the economic welfare of a commercial or business enterprise, such as a hotel, motel, bar, nightclub, restaurant, tavern, dance hall, photography studio or a commercial establishment for which a price of admission is charged.

(Ord. No. 3461-86, § 1)

Sec. 27-10.2. - Live exhibitions or performances.

(a)

For purposes of this section, the following words and phrases shall be construed as follows:

Business establishment shall be deemed to include the real property of a business, or any entity serving food or beverages to the public for compensation, charging an admission fee or receiving a donation, or in any private club or organization wherein dues or membership fees are charged, as well as all appurtenances thereto and buildings thereon, including, but not limited to, the grounds, private walkways and parking lots or garages adjacent thereto which are owned or controlled by the property owner, lessee, or employees or agents thereof.

Direct line of sight means the ability to directly view an area without the benefit of assistance of a mirror, video camera or similar aid.

Live exhibition or performance means modeling, dancing or any similar activity which involves a person or persons physically performing for the benefit of one (1) or more other persons.

Manager's station means any check-out counter, desk, or other place or position where an employee, agent, manager or owner of a business establishment sits or stands or is assigned to sit or stand.

Performer means a person engaged in a live exhibition or performance in a business establishment.

Person means an individual, proprietorship, partnership, corporation, limited liability company, association, organization or other legal entity.

State of nudity means a state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof immediately below the top to the areola.

Viewing area means any area within a business establishment where a live exhibition or performance is taking place.

(b)

The City of Newport News hereby finds and declares that the unregulated practice of live exhibitions or performances in any viewing area, private or semi-private rooms, booths, or cubicles within business establishments (i) encourages criminal activities of a sexual nature including, but not limited to, fornication, masturbation, prostitution, public nudity and sodomy, (ii) facilitates sexual liaisons of a casual nature which create unhealthy conditions, and (iii) increases the likelihood that other criminal activities, such as sexual assaults and drug-related offenses, will occur.

The concern over sexually-transmitted diseases, and the deleterious effect on both existing businesses and surrounding neighborhoods caused by increased crime and the downgrading of property values, demands reasonable regulation of live exhibitions or performances in business establishments which provide such exhibitions or performances in any viewing areas, private or semi-private rooms, booths, or cubicles within business establishments in order to (i) protect the health, safety and welfare of the city's citizens and visitors; (ii) protect citizens and visitors from increased crime; and (iii) preserve the quality of life, property values, the character of surrounding neighborhoods, and the city's tourism industry and other economic interests.

The intent of this section is not to suppress any activities protected by the First Amendment, but is to enact content-neutral regulations which are specifically designed and intended to prevent the deleterious secondary effects associated with live exhibitions or performances in business establishments which provide such exhibitions or performances in private or semi-private rooms, booths, viewing areas or cubicles.

(c)

It shall be unlawful for any person to maintain or operate for himself or herself, or as an officer, employee or agent, a business establishment where live exhibitions or performances take place, unless the following requirements have been met.

(1)

No viewing area of the business establishment shall be obstructed by curtains, doors, walls, display racks or any other permanent or temporary enclosure or barrier.

(2)

At lease one (1) employee other than the performer must be on duty at all times that any patron, customer or member of the audience is inside the business establishment, and such employee must have a direct line of sight of any viewing area during any live exhibition or performance.

(3)

In any business establishment which is configured to include a manager's station, there must be an unobstructed view, from the manager's station, of all viewing areas and any other area of the business establishment, except restrooms, to which any patron, customer or member of the audience is permitted access for any purpose. If the business establishment has two (2) or more manager's stations, all viewing areas and any other area of the business establishment, except restrooms, to which any patron, customer or member of the audience is permitted access for any purpose must be visible from at least one (1) of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station.

(4)

No performer shall be permitted to touch the breasts, genitals, anus, buttocks or groin of any person or persons, including himself or herself or any patron, customer or member of the audience, regardless of whether such parts of the body are fully or partially covered by clothing, or are uncovered.

(5)

No patron, customer or member of the audience shall be permitted to touch the breasts, genitals, anus, buttocks or groin of any performer regardless of whether such parts of the body are fully or partially covered by clothing, or are uncovered.

(6)

No sofa, futon, cot, bed, mattress or similar furnishings shall be located in any viewing area or in any other area of the business establishment to which patrons, customers or members of the audience are permitted access.

(7)

No performer shall appear in a state of nudity in the viewing area or in any other area of the business establishment to which any patron, customer or member of the audience is permitted access.

(d)

It shall be unlawful for any performer in a business establishment to touch the breasts, genitals, anus, buttocks or groin of any person or persons, including himself or herself, or any patron, customer or member of the audience, regardless of whether such parts of the body are fully or partially covered by clothing, or are uncovered.

(e)

It shall be unlawful for any patron, customer or member of the audience to touch the breasts, genitals, anus, buttocks or groin of any performer in a business establishment, regardless of whether such parts of the body are fully or partially covered by clothing, or are uncovered.

(f)

Nothing contained in this section shall be construed to apply to the exhibition, presentation, showing or performance of any play, ballet, drama, tableau, production or motion picture in any theater, concert hall, museum of fine arts, school, institution of higher learning or other establishment which is primarily devoted to such exhibitions, presentations, shows or performances as a form of expression of opinion, communication, speech, ideas, information, art or drama.

(g)

Any person who violates any of the provisions of this section shall be guilty of a Class 1 misdemeanor.

(h)

If any subsection, clause or other portion of this section is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this section.

(Ord. No. 5362-99, § 1)

Sec. 27-11. - Public display of obscene materials.

(a)

For the purposes of this section, the following words and phrases shall have the meanings respectively ascribed to them by this subsection:

(1)

The word "knowledge" includes actual or constructive knowledge of the subject material. A person shall be deemed to have constructive knowledge of its character and content if such person has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material.

(2)

The terms "nudity," "sexual conduct" and "sadomasochistic abuse" shall have the meanings ascribed to them in section 27-25

(3)

The term "prurient interest" shall mean a shameful or morbid interest in nudity, sex or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters.

(4)

The term "transportation facility" means any conveyance, premise or place used for or in connection with public passenger transportation, whether by air, railroad, motor vehicle or any other method. It includes aircraft, watercraft, railroad cars, buses and airboat, railroad and bus terminals and stations and all appurtenances thereto.

(b)

The public display of nudity, sexual conduct and sadomasochistic abuse within the city is a public nuisance.

(c)

It shall be unlawful for any person to display within the city offensive sexual material when, with knowledge of its character and content, such person displays or permits to be displayed, in or on any window, showcase, newsstand, display rack, wall, billboard, display board, viewing screen, moving picture screen, marquee or similar place, in such manner that the display is easily visible from or on any public street, sidewalk, thoroughfare, transportation facility, newsstand or any other business or commercial establishment open to the general public, any pictorial, three-dimensional or other visual representation of a person or a portion of the human body that predominately appeals to prurient interest in sex and that:

(1)

Depicts nudity or sexual conduct or sadomasochistic abuse; or

(2)

Depicts or appears to depict nudity or sexual conduct or sadomasochistic abuse, with the area of the male or female subject's unclothed or apparently unclothed genitals, pubic area or buttocks, or of the female subject's unclothed or apparently unclothed breast, obscured by a covering or mark placed or printed on or in front of the material displayed or obscured or altered in any other manner.

(Ord. No. 1839, § 1; Code 1961, §§ 24A-1—24A-3)

Sec. 27-12. - Employing or permitting minor to assist in violation of article.

Every person who intentionally, in any manner, hires, employs, uses or permits any person under the age of eighteen (18) years to do or assist in doing any act or thing constituting any offense under this article shall be guilty of a misdemeanor.

(Ord. No. 302, § 8; Ord. No. 1169, § 1; Code 1961, § 24-8)

State law reference— Similar provisions, Code of Virginia, § 18.2-379.

Sec. 27-13. - Proceeding against obscene book.

(a)

Whenever any citizen of the city or the city attorney has reasonable cause to believe that any person is engaged in the sale or commercial distribution of any obscene book in the city, such citizen or the city attorney may institute a proceeding in the circuit court of the city for adjudication of the obscenity of the book.

(b)

A proceeding under this section 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 distribution.

(c)

Upon the filing of a petition pursuant to this section, the court, in term or in vacation, shall forthwith examine the book alleged to be obscene. If the court finds no probable cause to believe the book obscene, the judge thereof shall dismiss the petition; but if the court finds 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. The order to show cause shall be:

(1)

Directed against the book by name or description;

(2)

Published once a week for two (2) successive weeks in a newspaper of general circulation within the city;

(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 distribution of the book; and

(4)

Returnable twenty-one (21) days after its service by registered mail or the commencement of its publication, whichever is later.

(d)

When an order to show cause is issued pursuant to this section, and upon four (4) 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.

(e)

On or before the return date specified in the order to show cause issued under subsection (c), the author, publisher and any person interested in the sale or 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.

(f)

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 the 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.

(g)

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 value, if any, of the book, considered as a whole;

(2)

The degree of public acceptance of the book, or books of similar character, within the city;

(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 (f).

(h)

In making a decision on the obscenity of the book, the court shall consider, among other things, the evidence offered pursuant to subsection (g), if any, and shall make a written determination upon every such consideration relied upon in the proceeding in its findings of fact and conclusions of law or in a memorandum accompanying them.

(i)

If it finds the book not obscene, the court shall order the clerk of the court to enter judgment accordingly. If it finds the book obscene, the court shall order the clerk of the 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.

(j)

While a temporary restraining order made pursuant to subsection (d) is in effect, or after the entry of a judgment pursuant to subsection (f) or (i), any person who publishes, sells, rents, lends, transports in intrastate commerce or distributes or exhibits the book, or has the book in possession with intent to publish, sell, rent, lend, transport in the city, or distribute or exhibit the book, is presumed to have knowledge that the book is obscene under the provisions of this article.

(k)

Any party to a proceeding under this section, including the petitioner, may appeal from the judgment of the court to the Supreme Court of Virginia, as otherwise provided by law.

(l)

It is expressly provided that the petition and proceeding authorized under this section 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 a necessary prerequisite to the filing of criminal charges under this article.

(Ord. No. 302, § 12; Code 1961, § 24-12)

State law reference— Similar provisions, Code of Virginia, § 18.2-384.

Sec. 27-14. - Exceptions from article.

Nothing contained in this article shall be construed to apply to:

(1)

The purchase, distribution, exhibition or loan of any book, magazine or other printed or manuscript material by any library, school or institution of higher learning supported by public appropriation;

(2)

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;

(3)

The exhibition or performance of any play, drama, tableau or motion picture by any theatre, museum of fine arts, school or institution of higher learning supported by public appropriation.

(Ord. No. 302, § 11; Code 1961, § 24-11)

State law reference— Similar provisions, Code of Virginia, § 18.2-383.

Secs. 27-15—27-24. - Reserved.