Offenses Against Public Morals – Obscenity

Code of Fairfax County: Offenses Against Public Morals – Obscenity

Fairfax Code Article 1 Public Safety

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Article 2 of the Code of Fairfax County covers:
Offenses Against Public Morals – Obscenity

Offenses Against Public Morals – Obscenity

Section 5-2-1. Definitions.

(a)   For purposes of this Article, the following words and phrases shall have the meanings respectively ascribed to them by this Section:

(1)   Person shall mean any individual, partnership, firm, association, corporation or other legal entity.

(2)   Obscene, where it appears in this Chapter, shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sado-masochistic abuse, and which depicts, describes or portrays sexual conduct in a patently offensive way, going substantially beyond customary limits of candor in description or representation of such matters, and which, taken as a whole, does not have serious literary, artistic, political or scientific value.

(3)   Substantially beyond customary limits of candor shall mean any patently offensive material, as defined herein, shall be deemed to go substantially beyond the customary limits of candor prevailing in the County of Fairfax, Virginia.

(4)   Patently offensive shall be deemed to include any of the following sexual conduct or material when said conduct or material is depicted, described or represented in a manner appealing predominantly to the prurient interest in sex:

(A)   An act of sexual intercourse, normal or perverted, actual or simulated, including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal.

(B)   Sado-masochistic 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 restrained on the part of one so clothed.

(C)  Masturbation, excretory functions and lewd exhibitions of the genitals, including any explicit, close-up representation of a human genital organ.

(D)  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.

(E)   A device designed and marketed as useful primarily for stimulation of the human genital organs.

(F)   Male or female genitals in a state of sexual stimulation or arousal.

(5)   Distribute shall mean delivery in person, by mail, messenger or by any other means by which obscene items as defined in this Article may pass from one person, firm or corporation to another.

Section 5-2-2. Obscene items enumerated.

Obscene items shall include:

(a)   Any obscene book; or

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

(c)   Any obscene figure, object, article, instrument, novelty device, or recording or transcription used or intended to be uses in disseminating any obscene song, ballad, words, or sounds.

Section 5-2-3. Production, publication, sale, possession of obscene items; prohibited.

(a)   It shall be unlawful for any person knowingly to:

(1)   Prepare any obscene item for the purposes 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 in intrastate commerce, or distribute or exhibit any obscene item, or offer to do any of these things; or

(4)   Have in his 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 as defined in this Section shall be deemed prima facie evidence of a violation of this Section.

Section 5-2-4. Obscene exhibitions and performances; prohibited.

(a)   It shall be unlawful for any person knowingly to:

(1)   Produce, promote, prepare, present, manage, direct, carry on or participate in, any obscene exhibitions or performances, including 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 presents 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 or to fail to post prominently therein the name and address of a person resident in the locality who is the manager of such theatre, garden, building, structure, room or place.

Section 5-2-5. Advertising obscene items, exhibitions or performances.

It shall be unlawful for any person knowingly to prepare, print, publish, or circulate, or cause to be prepared, printed, published or circulated, any notice or advertisement of any obscene item proscribed in Section 5-2-2 hereof, or of any obscene performance or exhibition proscribed in Section 5-2-2 hereof, stating or indicating where such obscene item, exhibition, or performance may be purchased, obtained, seen or heard.

Section 5-2-6. Placards, posters, bills, etc.

It shall be unlawful for any person knowingly to expose, place, display, post up, exhibit, paint, print, or mark, or cause to be exposed, placed, displayed, posted, exhibited, painted, printed or marked, in or on any building, structure, billiard, 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 proscribed in Section 5-2-2 or any obscene exhibition or performance proscribed in Section 5-2-4 or knowingly to permit the same to be displayed on property belonging to or controlled by him.

Section 5-2-7. Photographs, slides and motion pictures.

(a)   It shall be unlawful for any person to photograph himself or herself or any other person, for purposes of preparing an obscene film, photograph, negative, slide or motion picture for purpose of sale or distribution; or

(b)   Model, pose, act, or otherwise assist in the preparation of any obscene film, photograph, negative, slide or motion picture for purposes of sale or distribution.

Section 5-2-8. Penalties for violation.

(a)   Every person, firm, association or corporation convicted of an offense under Sections 5-2-3, 5-2-4, or 5-2-5 hereof shall be guilty of a misdemeanor and shall be punished by a fine of One Thousand Dollars ($1,000.00) or by imprisonment in the county jail not to exceed twelve (12) months, or by both such fine and imprisonment.

(b)   Any person convicted of an offense under Section 5-2-6 hereof shall be guilty of a misdemeanor and shall be punished by a fine of not more than Five Hundred Dollars ($500.00).

Section 5-2-9. Declaration of nuisance; remedy.

(a)   Any commercial establishment which at any time limits its customers or patrons to persons eighteen (18) years of age or older may be declared a public nuisance and may be abated and enjoined from further operation upon the adoption by the Board of Supervisors of a resolution declaring and finding the existence of the following conditions:

(1)   That activity on the premises prohibited by Fairfax County Code Section through Section 5-2-6 or 5-3-2 or Virginia Code Sections 18.2-374 through 379, 382, 387, and 391, has resulted in two (2) convictions of persons engaging in such activity; or

(2)   That there have been two (2) separate declarations, pursuant to Virginia Code Sections 18.2-384 and 385 of the obscenity of items located on the premises, provided, however, that the convictions or declarations under Subsections (1) and (2) have resulted from activity or from seizures occurring on two (2) separate days within a consecutive period of twelve (12) months.

(b)   From and after service on the commercial establishment by posting a copy of the resolution as described in Section (d) hereof, all monies paid as admission price to such establishment and all monies received for any tangible items sold on the premises shall be deemed personal property used in conducting and maintaining a declared public nuisance.

(c)   Upon receiving notice through service of a copy of the resolution and order of summary abatement provided for in Section (c)(5) hereof, any and every person who shall own, lease, maintain, manage, conduct, or operate a commercial establishment which has been declared a public nuisance in accordance with the provisions of this Chapter, shall be a person who has knowledge of such nuisance for the purposes of this Chapter, and shall be, thereafter, responsible for its maintenance and shall be liable therefor.

(d)   Upon the specific finding of the conditions described in Subsections (1) and (2) of Section (a) hereof, the Board of Supervisors, in applying the provisions of this Chapter to such nuisance, may provide for the following by resolution:

(1)   Declare the fact that such nuisance exists.

(2)   Set forth the legal description and street address of the real property wherein the nuisance is being conducted.

(3)   Set forth the conditions, as required by Subsections (1) and (2) of Section (a) hereof, necessary to support a declaration that such nuisance exists.

(4)   Inform and give notice to persons named in Section (b) that the Board of Supervisors has determined that a public nuisance presently exists at such address, and that, under Section 5-2-5 hereof, they are deemed to have knowledge thereof and are responsible therefor.

(5)   Order all persons named in Section (b) hereof, to summarily abate such public nuisance immediately, by terminating any and all displays, exhibitions, sales, or offers for sale of sexually-explicit items or performances, whether live or recorded, visual, audible, or tangible, on the premises.

(6)   Order the County Attorney to seek the appropriate judicial remedy to terminate the declared public nuisance, including:

(A)   Declaratory judgment that a public nuisance exists;

(B)   An accounting of all monies paid as admission price and received for items sold or exhibited therein and a declaration that such monies are a public nuisance under this Chapter;

(C)  An order that monies enumerated in the Court-ordered accounting be forfeited and applied as costs of abatement by the County.

(D)  An injunction against the continuing operation of the declared public nuisance; and

(E)   Such other relief as the Court may deem proper.

Section 5-2-10. Exceptions.

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

(a)   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;

(b)   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.

(c)   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.

Section 5-2-11. Severability.

If any of the Articles, Sections, paragraphs, sentences, clauses, or phrases of this Chapter shall be declared unconstitutional or invalid by the valid judgment or decree of a court of competent jurisdiction, such unconstitutionality or invalidity shall not affect the validity of the Chapter in its entirety or any of the remaining Articles, Sections, paragraphs, sentences, clauses and phrases.

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Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.

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