Ordinance 957 - Obscenity Offenses1
ORDINANCE NO. 957
AN ORDINANCE TO ESTABLISH THE OFFENSES OF OBSCENITY, AND PUBLIC
DISPLAY OF OFFENSIVE MATERIAL: TO PROVIDE PENALTY.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL,
AS FOLLOWS:
SECTION I. A person commits the offense of obscenity when,
with knowledge of the obscene nature thereof, he purposely or know-
ingly:
(a) sells, delivers, or provides or offers or agrees to
sell, deliver, or provide any obscene writing, picture,
record, or other representation or embodiment of the ob-
scene to anyone under the age of 19;
(b) presents or directs an obscene play, dance, or other
performance, or participates in that portion thereof
which makes it obscene, to anyone under the age of 19;
(c) publishes, exhibits, or otherwise makes available
anything obscene to anyone under the age of 19;
(d) performs an obscene act or otherwise presents an ob
rcene exhibition of his body to anyone under the age of 19;
(e) creates, buys, procures, or possesses obscene matter
or material with the purpose to disseminate it to anyone
under the age of 19; or
(f) advertises or otherwise promotes the sale of obscene
material or materials represented or held out by him to be
obscene.
SECTION II. A thing is obscene if:
(a) Wit is a representation or description of perverted
ultimate sexual acts, actual or simulated;
(ii) it is a patently offensive representation or descrip-
tion of normal ultimate sexual acts, actual or simulated;
or
(iii) it is a patently offensive representation or descrip-
tion of masturbation, excretory functions, or lewd exhibi-
tion of the genitals; and
(b) taken as a whole the material:
(i) applying contemporary community standards, appeals to
the prurient interest in sex;
(ii) portrays conduct described in (a)(1), (ii), or (iii)
of this section in a patently offensive way; and
(iii) lacks serious literary, artistic, political, or sci-
entific value.
SECTION III. In any prosecution for an offense under this
section, evidence shall be admissible to show:
(a) the predominant appeal of the material and what effect,
if any, it would probably have on the behavior of people;
(b) the artistic, literary, scientific, educational, or
other merits of the material;
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(c) the degree of public acceptance of the material in
the community;`
(d) appeal to prurient interest or absence thereof in
advertising or other promotion of the material; or
(e) purpose of the author, creator, publisher, or dis-
seminator.
SECTION IV. (1) A person is guilty of public display of offen-
sive sexual material when:
(a) with knowledge of its character and content, he dis-
plays or permits to be displayed in or on any window,
showcase, newsstand, display rack, wall, door, bill-
board, marquee, or similar place any pictorial, three-
dimensional, or other visual representation of a person
or a portion of the human body that predominantly appeals
to prurient interest in sex, is patently offensive to
prevailing standards in the adult community as a whole
with respect to what is suitable material for minors,
and is utterly without redeeming social importance for
minors; and
(b) he does not:
(i) separate that material by an opaque structure from
other materials displayed; and
(ii) establish by official identification that each per-
son viewing the displayed material is at least 19 years
of age.
(2) A theater may not display previews or projections ad-
vertising or promoting motion pictures if such previews
or projections contain a display of offensive sexual or
offensive violent material and if minors are permitted to
attend the showing of the motion picture then being fea-
tured.
(3) A drive-in movie screen may not display any material
prohibited by subsection (1) in such manner that the dis-
play is easily visible from any public street, sidewalk,
thoroughfare, or transportation facility.
(4) For purposes of this section, "offensive violent ma-
terial" means material which is so violent as to be
patently offensive to prevailing standards in the adult
community as a whole with respect to what is suitable ma-
terial for minors.
SECTION V. As used in this section, "employee" means:
(1) Any person regularly employed by the owner or opera-
tor of a motion picture theater if he has no financial
interest other than salary or wages in the ownership or
operation of the motion picture theater, has no financial
interest in or control over the selection of the motion
pictures shown in the theater, and is working within the
motion picture theater where he is regularly employed.
"Employee" does not include a manager of the motion pic-
ture theater.
(2) No employee is liable to prosecution under the ordin-
ance for exhibiting or possessing with intent to exhibit
any obscene motion picture provided the employee is acting
within the scope of his regular employment at a showing
open to the public.
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SECTION VI. A person convicted of obscenity or of public
display of offensive material, or of otherwise violating any pro-
vision of this ordinance, shall be punished as provided by ordin-
ance 1834 (Sections 1-9 and 1-10, Kalispell City Code).
FINALLY PASSED BY THE CITY COUNCIL OF THE CITY OF KALISPELL,
AND APPROVED BY THE MAYOR THIS 7 DAY OF 0 � 1980.
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Norma E. Happ, Mayor
ATTEST:
Marjorjl� G ermann, City Clerk
arjorie Giearr, 4'ty Clerk of the Crity of Kalispell, Montana, do certify that on the
day of , 19� , I posted a copy of the Foregoing ordinance in
office and the sam is a true copy of the ordinance that remained poste until final
sage of the second reading by the City Council on the %__ day of , 19
, City
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RESOLUTION NO. 3308
A RESOLUTION TO REFER TO A VOTE OF THE PEOPLE THE PROPOSED AMEND-
MENT OF ORDINANCE #957 TO DELETE AGE LIMITATIONS THEREIN.
WITNESSETH:
WHEREAS, the City did on July 7, 1980, pass Ordinance #957 es-
tablishing Obscenity as an offense against the City. Said Ordinance
#957 follows State of Montana Statutes Sec. 45-8-201, 202 and 203,
M.C.A., except in relation to the age of persons effected. The City
Ordinance relates to persons under nineteen (19) years of age, while
the State of Montana Statutes relate to persons under eighteen (18)
years of age; and
WHEREAS, a group of citizens designating themselves as "Citizens
Against Pornography" have presented to the City a petition for an
initiative amending said Ordinance #957 and said amendments relate
primarily to deleting all age limitations on persons effected by such
an ordinance; and
WHEREAS, the petition by "CAP" for an initiative to so amend
Ordinance #957 has been found inadequate under applicable Montana
statutes by the Flathead County Election Administrator and returned
to Mr. Don Nelson, the circulator of said petition; and
WHEREAS, it appears said petition has been circulated in good
faith and State Statutes relating to such initiative issues are com-
plex and difficult to follow and there is insufficient time within
which to circulate a second petition of similar effect and still
have it included as a ballot issue at the General Election to be
held on November 4, 1980; and
WHEREAS, pursuant to Sec. 17-5-132(2), M.C.A., the City Council
can refer to a vote of the people any proposed Ordinance by Resolu-
tion, and it appears to the Council that the electors of the City
should be allowed and encouraged to_express their views by a vote on
the said issue of age limitation in obscenity matters within ordin-
ance #957;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF KALISPELL, MONTANA:
SECTION I: That the Council does hereby refer to a vote of the
people a proposed Amendment to Ordinance #957 to delete therefrom
all age limitations for persons to whom such ordinance applies. Spe-
cifically, the following amendments will be proposed to be made in
said Ordinance #957:
1) The words ".... under the age of 19" will be de-
leted from Sec. I (a) (b) (c) (d) and (e) .
2) -The-words with respect to what is suitable
material for minors" and the words ".... for
minors .." will be deleted from Sec. IV(1)(a) and
delete in their entirety Sec. IV(1)(b)(i) and (ii).
3) The words and if minors are permitted to
attend the showing of the motion picture then be-
ing featured" shall be deleted from Sec. IV(2).
4) Sec. IV(3) shall be deleted in its entirely and
Sec. IV(4) shall be renumbered as Sec. IV(3).
SECTION II. The City Clerk and the City Attorney are hereby
directed to forthwith prepare the necessary statements and ballot
issue material to assist the Flathead County Election Administrator
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to have such proposed amendment voted on by the people at the General
Election of November 4, 1980.
A copy of said Ordinance #957 is attached hereto as Exhibit "A"
and by this reference is made a part hereof.
PASSED
AND
APPROVED BY
THE MAYOR AND
CITY COUNCIL OF THE CITY OF
KALISPELL,
THIS
8th DAY OF
September
, 1980.
Norma E. Happ, Mayor
ATTEST:
Marjori Giermann, City Clerk
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PROPOSED ORDINANCE
AN ORDINANCE TO AMEND ORDINANCE #957 TO MAKE SAID ORDINANCE APPLI-
CABLE TO ALL PERSONS, AND TO DELETE ITS LIMITATION TO PERSONS UNDER
THE AGE OF 19; TO DELETE FROM SEC. IV (1) (a) QUALIFYING THE SUITA-
BILITY OF MATERIAL TO MINORS; TO DELETE SEC. IV (1) (b) (i) and (ii);
TO DELETE FROM SEC. IV (2) THE REQUIREMENT THAT MINORS BE PERMITTED
TO ATTEND CERTAIN MOTION PICTURES; TO DELETE SEC. IV (3) AND RENUM-
BER SEC. IV (4); TO PROVIDE FOR EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL
THAT ORDINANCE #957 IS AMENDED AS FOLLOWS:
SECTION I. The words "under the age of 19" are hereby deleted
from Ordinance #957 of the City of Kalispell, Section I (a), (b),
(c), (d) and (e), and said Section shall hereafter read as follows:
A person commits the offense of obscenity when,
with knowledge of the obscene nature thereof,
he purposely or knowingly:
(a) sells, delivers, or provides or offers or
agrees to sell, deliver, or provide any obscene
writing, picture, record, or other representa-
tion or embodiment of the obscene to anyone;
(b) presents or directs an obscene play, dance,
or other performance, or participates in that
portion thereof which makes it obscene,to anyone;
(c) publishes, exhibits, or otherwise makes
available anything obscene to anyone;
(d) performs an obscene act or otherwise pre-
sents an obscene exhibition of his body to any-
one;
(e) creates, buys, procures, or possesses ob-
scene matter or material with the purpose to dis-
seminate it to anyone;
(f) advertises or otherwise promotes the sale
of obscene material or materials represented
or held out by him to be obscene.
SECTION II. The words "....with respect to what is suitable
material for minors...." and the words "...for minors..." are de-
leted from Section IV (1) (a) and deleted in their entirety are
parts (i) and (ii) from Section IV (1) (b) of said Ordinance #957,
so that hereafter said Section IV (1) shall read as follows:
A person is guilty of public display of offen-
sive sexual material when with knowledge of its
character and content, he displays or permits
to be displayed in or on any window, showcase,
newsstand, display rack, wall, door, billboard,
marquee, or similar place any pictorial, three-
dimensional, or other visual representation of
a person or a portion of the human body that pre-
dominantly appealsto prurient interest in sex,
is patently offensive to prevailing standards in
the adult community as a whole and is utterly
without redeeming social importance.
SECTION III. The words "... and if minors are permitted to
attend the showing of the motion picture then being featured" are
deleted from said Ordinance #957, Section IV (2) and said Section
shall hereafter read as follows:
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,A.
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A theater may not display previews or projec-
tions advertising or promoting motion pictures
if such previews or projections contain a dis-
play of offensive sexual or offensive violent
material.
SECTION IV. Section IV (3) shall be deleted in its entirety
from said Ordinance #957 and Section IV (4) thereof shall be re-
numbered as Section IV (3).
SECTION V. All other portions of said Ordinance #957 shall
remain in full force and effect.
SECTION VI. This Ordinance shall, in accord with Sec. #7-5-
136(6), M.C.A., be effective when election results are officially
declared if a majority of those voting at the general election
held November 4, 1980, vote in favor thereof as Ballot Issue #1.
FINALLY PASSED BY THE CITY COUNCIL OF THE CITY OF KALISPELL,
AND APPROVED BY THE MAYOR THIS DAY OF , 1980.
ATTEST:
Marjorie Giermann, City Clerk
E. Happ, Mayor
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