§ 21-42. Obscene materials or performances.

(A)

As used herein the following words shall be construed as defined:

(1)

Obscene. Any material or performance is "obscene" if:

(a)

Considered as a whole, applying community standards, its predominant appeal is to be the prurient interests of the average adult, and

(b)

It is patently offensive because it goes substantially beyond the customary limits of candor in its description of sex, nudity, or excretion, and

(c)

It is utterly without redeeming social value.

(2)

Material means anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or in any other manner.

(3)

Performance means any play, motion picture, dance or other exhibition performed before an audience.

(4)

Promote means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, produce, present, direct, exhibit or advertise, or to offer or to agree to do the same.

(5)

Wholesale promote means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, produce, present, direct, exhibit or advertise, or to offer or agree to do the same for purposes of resale.

(6)

Person includes individuals, firms, associations, corporations, and all other groups and combinations.

(7)

Commission means the Board of County Commissioners of Miami-Dade County, Florida.

(B)

Within the boundaries of Miami-Dade County, Florida, it shall be unlawful for any person, who, knowing its content and character:

(1)

Promotes or wholesale promotes, or possesses with intent to promote or wholesale promote, any performance which is obscene; or

(2)

Promotes or wholesale promotes, or possesses with intent to promote or wholesale promote, any performance which is obscene or participates in any portion thereof which is obscene or which contributes to its obscenity.

(C)

No material or performance which is conceived to be obscene as defined by this section shall be seized before a prior, judicially supervised adversary proceeding is held on the question of the obscenity of such material or performance.

(D)

A person who promotes or wholesale promotes any obscene material or performance, or possesses the same with intent to promote or wholesale promote it, is presumed to do so with knowledge of its content and character.

(E)

Defenses.

(1)

In any prosecution for obscenity, it is an affirmative defense that the persons to whom allegedly obscene material was promoted, or the audience to which an allegedly obscene performance was portrayed, consisted of persons of institutions having scientific, educational, governmental or other similar justification for possessing or viewing the same.

(2)

In any prosecution for obscenity, it is an affirmative defense that the person so charged was a motion picture projectionist, stage employee or spotlight operator, cashier, doorman, usher, candy stand attendant, porter or functioned solely in any other nonmanagerial or nonsupervisory capacity in any promotion or obscene material or performance; provided that the person had no financial interest, other than the person's employment, which employment does not encompass compensation based upon any proportion of the net or gross receipts, in the promotion of any obscene material or performance, and that the person did not personally participate in or contribute to the obscene performance as defined by this ordinance, or promote, wholesale promote or possess for such purposes any obscene material as defined by this section.

(F)

Any person who shall erect, establish, continue, maintain, own or lease any building, booth, tent or other place, or otherwise has any legal or equitable estate in any premises, whether alone or jointly with others, and whether in possession or not, where any obscene material or obscene performance is promoted in violation of this section, or where any materials or performances have been declared obscene by any court having competent jurisdiction to provide a prior, judicially supervised adversary proceeding as required by this section shall be deemed to be doing so against the public peace, health, welfare, prosperity and morals of the County of Miami-Dade, and such conduct shall be declared a public nuisance. Such conduct and persons responsible for same shall be abated or enjoined as provided by law.

(G)

There shall be no right of property in any obscene material or obscene performance, and upon the seizure of any such obscene material or obscene performance by any authorized law enforcement officer or upon the surrender of such material or performance, the same shall be delivered to and held by the clerk of the court having jurisdiction. When the same is no longer required as evidence, the prosecuting officer or any claimant may move the court in writing for the disposition of the same and after notice and hearing, the court, if it finds the same to be obscene or otherwise in violation of this section, shall order the material or performance destroyed in the presence of the clerk; otherwise, the court shall order the same returned to the claimant if he shows that he is entitled to possession. If destruction is ordered, the clerk shall file a certificate of compliance.

(H)

Any person violating the provisions of this section, upon conviction, shall be punished by a fine not exceeding five hundred dollars ($500.00) or imprisonment for a term not exceeding six (6) months, or both, in the discretion of the court.

(I)

It is the specific intent of the Commission in enacting this section to exercise and make effective its general powers and police powers, necessary to promote the peace, health, welfare, prosperity, and morals of the County of Miami-Dade, and this section shall only be applied prospectively from and after its effective date.

(Ord. No. 73-31, §§ 1—9, 4-3-73)

Editor's note

Ord. No. 73-31 amended this Code, but did not specify the manner thereof, hence inclusion of §§ 1—9 herein as § 21-42 was at the discretion of the editors.