[HISTORY: Adopted by the County Legislature of the County of Ulster as indicated in article histories. Amendments noted where applicable.]
[Adopted by L.L. No. 3-1989]
The protection of the health, safety, welfare and morals of minors constitutes a legitimate exercise of the police power of the state through local legislative action. This article fully protects the First Amendment rights of adults to purchase material deemed harmful to minors. While the State of New York has a law addressing the dissemination of material deemed harmful to minors (§ 235.20, New York Penal Law) and a law regarding the public display of offensive sexual material (§ 245.11, New York Penal Law), it has no law with respect to the display of material deemed harmful to minors. This article is intended to fill that void.
As used in this article, the following terms shall have the meanings indicated:
- HARMFUL TO MINORS
- That quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it:
- A. Considered as a whole, predominately appeals to the prurient interest 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. Considered as a whole, lacks serious literary, artistic, political and scientific value for minors.
- A person less than 17 years of age.
- The showing of 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 below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernibly turgid state.
- PUBLIC PLACE
- Any window, showcase, newsstand, display rack, viewing screen, moving-picture screen, marquee or similar place that is easily visible from or in any public street, sidewalk or thoroughfare, transportation facility, or any place accessible to members of the public without fee or other limit or condition of admission, such as a minimum age requirement, and including but not limited to schools, places of amusement, parks and playgrounds but excluding rooms or apartments designed for actual residence.
- SADOMASOCHISTIC ABUSE
- Actual or depicted flagellation or torture by or upon a person who is nude or clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed or who is nude.
- SEXUAL CONDUCT
- Actual or depicted acts of masturbation, homosexuality, bestiality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such a person is a female, breast.
- SEXUAL EXCITEMENT
- The condition of human male or female genitals when in a state of sexual stimulation or arousal.
It shall be unlawful for any person knowingly to display in public places any book, pamphlet, magazine, or other printed matter which contains any picture, photograph, drawing, motion-picture film or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to minors.
It shall be unlawful for the owner, operator, manager, employer or person in charge of a retail store or other commercial establishment to knowingly allow his minor employees to sell or handle material which depicts nudity, sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to minors.
In any prosecution for display of material harmful to minors, it is an affirmative defense that the person having custody, control or supervision of a public place kept the material harmful to minors:
Behind an opaque counter;
In a sealed opaque wrapper showing only the title;
Wrapped in an opaque cover;
In an area separate and apart from that part of the premises which is a public place as defined herein, and such area being clearly marked "adults only," and with a door or fully opaque curtain on the entrance which is kept closed; or
In such other manner as not to display the material which is harmful to minors.
The Director of the Consumer Fraud Bureau may prescribe and impose civil penalties for a violation of this article of not more than $100 for the first offense and not more than $500 for the second or subsequent offense.
The continuation of a violation of this article for each and every day the offense is continued is a separate and distinct offense hereunder.