#10 Regulating display of material harmful to minors (File Ord. #2009-430)
OPERATIONS DIVISION MEMORANDUM
April 2, 2009
TO: City Council
FROM: Peter Riggs, Assistant Operations Director
SUBJECT: Introduce and schedule a public hearing on a proposed ordinance
regulating the display of material harmful to minors within the City
of Janesville (File Ord. No. 2009-430)
Summary
This memo explains the State and local regulations concerning sexually oriented
businesses and exposing children to harmful material. The memo also explains
the provisions of Proposed Ordinance No. 2009-430 regulating the display of
material harmful to minors. Proposed Ordinance No. 2009-430 requires that
“harmful material” not be displayed in a way that could expose minors, as
members of the generally invited public, to view these “harmful materials.” Staff
recommends the adoption of Proposed Ordinance No. 2009-430.
Staff Recommendation
Staff recommends the City Council adopt Proposed Ordinance No. 2009-430
regulating the display of “harmful material” to minors.
Suggested Motion
I move to approve File Resolution No. 2009-430.
City Manager Recommendation
The City Manager concurs with staff’s recommendation.
Request
Councilmember Steeber requested a report and ordinance regulating the display
of sexual toys and novelties.
Background
Councilmember Steeber contacted the City Manager’s Office with a concern
about sexually oriented material including sexual toys and novelties on display at
Spencer Gifts, a store located in the Janesville Mall. City staff verified that the
material was on display at the store and that the material was not kept in a
separate room or obscured from the view of store patrons. Staff determined that
the sexual material did not exceed the 10% rule outlined in Janesville General
Ordinance 5.82 and thus the establishment does not require an Adult Oriented
Business license. Store staff indicated they monitor the area where the material
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is displayed and attempt to keep minors away from the material. The material is
not kept in a separate room and the material is viewable as an invited member of
the public in the store. It is Janesville Mall policy that all minors ages 12 and
under must be accompanied by an adult while in the mall. It is reasonable to
assume that minors have been exposed to this material.
Local and State Regulations
The City of Janesville regulates adult oriented businesses in Chapter 5.82 of the
General Code of Ordinances. This ordinance was adopted in 2002. This
ordinance requires a license for any business with 10% or more of their business
income, inventory, or floor space comprised of materials depicting or describing
“specified sexual activities” or “specified anatomical areas.” 10% was chosen as
the threshold based on extensive peer community and case law research
performed at the time the ordinance was initially proposed. City zoning code
(18.36.040 (B) (4) (b) (2)) permits licensed adult oriented businesses to locate in
the B4: Business Highway District. The license and ordinance require that
minors are prohibited from adult oriented businesses.
Wisconsin State Statute 948.11 concerns exposing a child to harmful material or
harmful descriptions or narrations, these terms are defined in Wisconsin State
Statute 948.11 (1). Selling, renting, exhibiting, playing, distributing, or loaning
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harmful material to a minor is a violation of the state statute and is a Class I
felony. A Class I felony is punishable by a fine not to exceed $10,000 or
imprisonment not to exceed 3 years and 6 months, or both (Wisconsin State
Statute 939.50 (3) (i)). The statute defines “harmful material” as any picture,
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photograph, drawing, sculpture, motion picture film, or similar visual
representation or image of a person or portion of the human body that depicts
nudity, sexually explicit conduct, sadomasochistic abuse, physical torture, or
brutality, and that is harmful to children. “Harmful to children” is defined as that
quality of any description, narrative account or representation, in whatever form,
of nudity, sexually explicit conduct, sexual excitement, sadomasochistic abuse,
physical torture, or brutality, when it: predominantly appeals to the prurient,
shameful, or morbid interest of children; is patently offensive to prevailing
standards in the adult community as a whole with respect to what is suitable for
children; and, lacks serious literary, artistic, political, scientific, or educational
value for children, when taken as a whole. The state statute addresses a person,
providing or exhibiting the harmful material to a child. A “person” is defined as
an individual, partnership, association, corporation, or other legal entity of any
kind.
Businesses that do not exceed the 10% rule are not prohibited from allowing
minors upon their premises. Thus, it is possible for a business to have on display
harmful material that is accessible and viewable by minors. A business that
displays “harmful material" in an area that is accessible and/or viewable by
minors could be in violation of Wisconsin State Statute 948.11(2) (a). Four
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conditions must be met for a violation of the statute to occur. First, the defendant
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sold, exhibited, transferred, and/or loaned material to a minor. Second, the
defendant had knowledge of the nature of the material. Third, the material was
harmful to children. Fourth, the minor had not attained the age of 18 years at the
time of the alleged offense.
Peer City Research
Research was performed to determine how comparable communities in
Wisconsin regulate the display of “harmful material.” We found that the Cities of
Beloit, Eau Claire, Appleton, and La Crosse have local ordinances that regulate
material that is “harmful to minors.” Appleton has adopted Wisconsin State
Statute 948.11 by reference and the Eau Claire and La Crosse ordinances have
language similar to Wisconsin State Statute 948.11. City of Beloit ordinance
15.02 concerns “obscene material” and does not specifically address materials
that are harmful to minors. The Cities of Fond Du Lac, Manitowoc, Oshkosh,
Brookfield, Green Bay, Kenosha, Racine, Waukesha, Wausau, West Allis, and
Wauwatosa do not have local ordinances that specifically address material that is
“harmful to minors.”
The City of Madison and the City of Milwaukee were also examined. City of
Madison ordinance 26.05 regulates “harmful materials” and is similar to
Wisconsin State Statute 948.11. It also prohibits allowing entry of minors to any
premises where harmful material is exhibited. City of Milwaukee ordinance 106-
9.6 regulates the display of material harmful to minors and marital aid devices.
The Milwaukee ordinance prohibits the display of these items in a location where
minors, as members of the invited general public, may be exposed to view the
materials. The City of Milwaukee issued four citations for failure to comply with
its ordinance in 2008 and no citations were issued in 2005, 2006, or 2007. The
City of Milwaukee City Attorney’s Office stated that the Milwaukee ordinance was
adopted in 1988 and amended in 1996. They stated it is relatively rare for a
citation to be issued for this offense.
Proposed Ordinance Summary
Proposed Ordinance No. 2009-430 was modeled after City of Milwaukee
ordinance 106-9.6. It is the intent of Proposed Ordinance No. 2009-430 to
proactively address prohibiting the exposure of children to “harmful materials” as
defined in the proposed ordinance. It is a violation of this ordinance to knowingly
display “harmful materials” to minors in such a way that minors, as members of
the general invited public, may be exposed to view these materials. Marital aid
devices were not included in the proposed ordinance draft due to the inability to
clearly or adequately define what items would be subject to regulation, especially
to the degree necessary to survive potential judicial scrutiny, and lack of case
law that specifically permits regulation of the display of this material. The
proposed ordinance is similar to several other ordinances and state statutes that
have been upheld in court challenges.
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The City of Janesville’s current approach to this issue relies on enforcing
Wisconsin State Statute 948.11, meaning that in order to enforce the statute a
minor must be exposed to the harmful material. The exposure has already
occurred before any legal action may be taken. Proposed Ordinance No. 2009-
430 creates a proactive approach that allows enforcement and corrective action
to be taken prior to victimization, and limit or eliminate the potential for the
exposure to occur; thus, preventing victimization. This will be accomplished by
requiring that “harmful materials” be displayed in such a way that minors cannot
view them, such as creating a separate room accessible to only those 18 years
or older, or covering the material so that the harmful portion cannot be seen by
minors. It will be the responsibility of the establishment and each employee to
ascertain the age of any minor accessing the harmful material.
The penalty for violating this ordinance will result in the imposition of a forfeiture
of not less than $100 and not more than $500. Each day of violation is
considered a separate offense.
CC: Eric Levitt, City Manager
Jacob J. Winzenz, Director of Administrative Services
Wald Klimczyk, City Attorney
Tim Wellnitz, Assistant City Attorney
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ORDINANCE NO. 2009-430
An Ordinance regulating the display of material harmful to minors within the City of Janesville, with a
penalty for violation thereof as set forth in proposed JGO 9.23.030.
THE COMMON COUNCIL OF THE CITY OF JANESVILLE DO ORDAIN AS FOLLOWS:
SECTION I.
The contents page of Title 9 of the Code of General Ordinances of the City of Janesville
is hereby amended to read as follows:
“Title 9
PUBLIC PEACE, MORALS AND WELFARE*
Chapters:
I. OFFENSES BY OR AGAINST PUBLIC OFFICERS AND GOVERNMENT
9.03 Fire Department Regulations
9.06 Advertising on Government Buses
II. OFFENSES AGAINST THE PERSON
III. OFFENSES AGAINST PUBLIC DECENCY
9.08 Obstructing or Resisting an Officer
9.15 Disorderly Houses
9.18 Gambling
9.21 Indecent Exposure
9.23 Display of Material Harmful to Minors
9.27 Spitting
IV. OFFENSES AGAINST PUBLIC PEACE
9.30 Drug Houses and Criminal Gang Houses
Prostitution Houses and Gambling Houses Prohibited
9.32 Chronic Nuisance Premises
9.34 Burglar alarms, Systems and Users
9.39 Disorderly Conduct
9.42 Disturbing the Peace
9.45 Mob action and Civil Disobedience
9.50 Curfew Ordinance
9.52 Truancy; Contributing to Truancy
9.54 Purchase or Possession of Cigarettes or Tobacco
Products by Children
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* For statutory provisions concerning criminal activities, see Wis. Stat. §66.0107.
V. OFFENSES AGAINST PROPERTY
9.57 Cemetery Hours
9.60 Care and Use of Public Property
9.66 Property Offenses
9.68 Worthless Checks
VI. CONSUMER PROTECTION
9.72 Drug Samples
VII. OFFENSES BY OR AGAINST MINORS
VIII. WEAPONS
9.84 Concealed Weapons
9.87 Firearms”
SECTION II.
Chapter 9.23 of the Code of General Ordinances of the City of Janesville is hereby
created to read as follows:
“CHAPTER 9.32
DISPLAY OF MATERIALS HARMFUL TO MINORS
9.23.010 Definitions
A. “Harmful to minors” means that quality of any description or representation, in
whatever form, of nudity, or sexual conduct when it:
1. Predominantly appeals to the prurient, shameful, or morbid interests of minors
in sex.
2. Is patently offensive to contemporary standards in the adult community as a
whole with respect to what is suitable sexual material for minors.
3. Taken as a whole, lacks serious literary, artistic, political, or scientific value.
B. “Knowingly” means having general knowledge of, or reason to know, or a belief, or
ground for belief which warrants further inspection or inquiry of both:
1. The character and content of any material which is reasonably susceptible of
examination; and
2. The age of the minor.
C.. “Material” means any book, cassette, magazine, motion picture film, newspaper,
pamphlet, poster, print, picture, slide, figure, image, description, record, recording tape,
or video tape.
D. “Minor” means any person under the age of 18 years.
E. “Nudity” means: the intentional or knowing showing or revealing of a human bare
buttocks, anus, perineum, anal region, anal or natal cleft or cleavage, pubic area, male
genitals, testicle, female genitals, vulva, female nipple, female areola, or female breast
below the point immediately above the top of the areola, whether or not in a state of
sexual stimulation or arousal, with less than a fully opaque covering; or the showing or
revealing of human male genitals in a discernible erect or turgid state, even if
completely and opaquely covered.
F. “Person” means any individual, partnership, association, corporation, or other legal
entity of any kind.
G. “Sexual conduct” includes any of the following depicted sexual conduct:
1. Any act of sexual intercourse, actual or simulated, including genital, anal-
genital, or oral-genital intercourse, whether between human beings or between a
human being and an animal.
2. Sadomasochistic abuse meaning flagellation or torture by or upon a person who
is nude or clad in undergarments or in a revealing costume, or the condition of
being fettered, bound, or otherwise physically restricted on the part of one so
clothed.
3. Masturbation or lewd exhibitions of the genitals, including, but not limited to,
any explicit, close-up representation of a human genital organ.
4. Physical contact or simulated physical contact with the clothed or unclothed
pubic areas or buttocks of a human male or female or the breasts of the female,
whether alone or between members of the same or opposite sex, or between
humans and animals in an act of apparent sexual stimulation or gratification.
5. An act of sexual assault where physical violence or drugs are employed to
overcome the will of, or to achieve the consent of, a person to an act of sexual
conduct, and the effects or results of the violence or drugs are shown.
9.23.020 Prohibition
No person having custody, control, or supervision of any commercial establishment may
knowingly display any material whose cover, covers, or packaging, standing alone, is harmful
to minors, in such a way that minors, as part of the invited general public, will be exposed to
view the material or in such a way that the material is easily visible from a public thoroughfare
or sidewalk. A person shall not be deemed to have displayed material harmful to minors if
those portions of the cover, covers, or packaging containing such material harmful to minors
are blocked from view by an opaque screen, border, or cover. An honest mistake regarding the
age of a minor shall constitute an excuse from liability if the defendant made a reasonable bona
fide attempt to ascertain the true age of the minor. A person shall not be deemed to have
displayed material harmful to minors if the defendant had reasonable cause to believe that the
minor had attained the age of 18 years, and the minor exhibited to the defendant a driver’s
license, state issued identification card or other official or apparently official document
purporting to establish that the minor had attained the age of 18 years. A defendant who raises
this affirmative defense has the burden of proving this defense by a preponderance of the
evidence.
9.23.030 Penalty
Any person who violates any provision of this ordinance shall, upon conviction, forfeit not less
than $100 and more than $500, together with the costs of prosecution, for each offense, or, in
default of payment, may be imprisoned in the county jail for not more than thirty days. Each
day in which a violation continues shall constitute a separate and distinct offense.”
ADOPTED:
Motion by:
Second by:
APPROVED:
Councilmember Aye Nay Pass Absent
Brunner
Loasching
Eric J. Levitt, City Manager
McDonald
Rashkin
ATTEST:
Steeber
Truman
Voskuil
Jean Ann Wulf, City Clerk-Treasurer
APPROVED AS TO FORM:
City Attorney
Proposed by: Councilmember Steeber
Prepared by: Assistant Operations Director and
Assistant City Attorney