Ordinance 1150 - REPEALS ORD 957 - Pornography Ordinance74
ORDINANCE NO. 1150
AN ORDINANCE REPEALING ORDINANCE NO. 957, AS AMENDED, ESTABLISHING
THE OFFENCE OF DISSEMINATING OBSCENE MATERIALS, DEFINING TERMS, AND
PROVIDING A PENALTY.
WHEREAS, the City Council of the City of Kalispell has determined
that the dissemination of obscene materials constitutes a public
nuisance and presents a danger to the health, safety and welfare of
the citizens of the City of Kalispell, and
WHEREAS, Section 45-8-201(5) Montana Code Annotated authorizes
the adoption by said City of an ordinance more restrictive as to
obscenity than the existing provision of Section 45-8-201, MCA.
NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL AS FOLLOWS:
SECTION I. Unless otherwise specified in this Ordinance,
all words will be taken in the objective standard rather
than in the subjective, and unless a different meaning
plainly is required, the following definitions apply to
this Ordinance:
A) Disseminate means to transfer, distribute,
dispense, lend, show, display, exhibit, send, trans-
port or broadcast in exchange for consideration.
B) Obscene means any material or performance,
whether through pictures, photographs, drawings,
writings, cartoons, recordings, films, videotapes,
or other such medium, which:
1) the average person, applying contemporary
community standards, would find the material or
the performance, taken as a whole, appeals to the
putient interest; and
2) the material or performance depicts or
describes, in a patently offensive wav, sexual
conduct, sadomasochistic sexual abuse, or lewd
exhibition of the genitals; and
3) the material or performance, taken as a
whole, lacks serious literary, artistic, political
or scientific value.
C) Material means any book, magazine, newspaper
advertisement, pamphlet, poster, print, picture,
figure, image, drawing, description, motion pasture
film, phonographic record or recording tape, video
tape, or other tangible thing capable of producing
or reproducing an image, picture, sound or sensation
through sight, sound, or touch.
D) Performance means any motion picture, film,
video tape, played record, phonograph, or tape
broadcast., preview, trailer, play, show, skit,
dance, or other exhibition performed or presented
to or before an audience of one or more, or trans-
mitted by means of an electrical, radio, television,
telephonic, or other communicative device or
facility to a known closed or open circuit audience
of one or more persons or to the general public.
E) Person means any individual, corporation,
company, partner shi.�.. firm, zkSsociation, business,
establishment, cVgana.zation or other legal entity
A1 y -,r° of any ..,kind.
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F) Prurient means a lustful, lascivious, erotic,
shameful, or morbid interest in sexual conduct,
sexually explicit nudity, sodomasochistic sexual
abuse, or lewd exhibition of the genitals.
Materials or performances may be deemed to appeal
to the prurient interest when they have a tendency
to excite lustful thoughts or lascivious desires,
or when they are designed, marketed, promoted or
disseminated to cater or appeal to such an interest.
Where the material or performance is designed for
and primarily disseminated or promoted to a clearly
defined deviate sexual group, rather than the public
at large, the prurient appeal requirement is satis-
fied if the dominant theme of the material or
performance, taken as a whole, appeals to the
prurient interest in sex of the members of that
intended and probable recipient group.
G) Sexual conduct means ultimatesexual acts,
normal or perverted, actual or simulated, involving
a person or persons, or a person or persons and
an animal, including acts of masturbation, sexual
intercourse, fellatio, cunnilingus, anilingus, or
physical contact with a person's nude or partially
denuded genitals, pubic area, perineum, anal region,
or, if such a person be female, a breast.
H) Sadomasochistic sexual abuse means actual or
simulated flagellation, rape, torture, or other
physical or sexual abuse, by or upon a person who
is nude or partially denuded, or the condition of
being bound, fettered, or otherwise physically
restrained, for the actual or simulated purpose
of sexual gratification or abuse as represented
in the context of a sexual relationship.
SECTION II. A person commits the offense of disseminating
obscene material, when with knowledge of the general nature
and character of the material involved, he:
A) purposely or knowingly disseminates obscene
material
B) knowing or having reason to know that the
material will be disseminated, purposely or know-
ingly finances the manufacture or production;
produces, manufactures, directs, photographs,
poses, acts, or in any way assists in the production,
copying or reproduction of visually represented
obscene material or advertisements for any obscene
material.
SECTION III. It is an affirmative defense to charge under
this Or finance that the material or performance involved
was disseminated or promoted for a bona fide medical, psycho-
logical, legislative, judicial or law enforcement purpose,
by or to a physician, psychologist, psychiatrist, legislator,
judge, prosecutor, law enforcement officer, or other person
having a bona fide interest in such material or performance.
SECTION IV. A person convicted of the offense of disseminating
o scene material, or otherwise violating any provision of
this Ordinance, should be punished as provided by Ordinance
No. 834 (Section 1-9 and 1-10, Kalispell City Code).
SECTION V. If a part or provision of this Ordinance or the
application -thereof to any,person or circumstances is held
invalid under the 'laws of ' fhe 'State__ of Montana' or'- of the
United States, such -"invalidity shall not effect any other
parts or provisions or' applications`'of'�this Ordinance'which
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can be given effect without the invalid part or provision
or application, and to that end the parts and provisions of
this Ordinance are declared to be severable.
SECTION VI. Ordinance No. 957, as amended, in its entirety,
is here y repealed.
SECTION VII. This Ordinance shall be effective from and
after t irty (30) days of its final passage by the City
Council and approval by the Mayor.
PASSED BY THE CITY COUNCIL OF THE CITY OF KALISPELL AND APPROVED BY
THE MAYOR THIS 4th __ DAY OF JUNE _ _, 1990
Iv
Roger op n Mayor
ATTEST:
my H Robertson
City Clerk -Treasurer
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