Text of MO SB 429 (2023)

EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted and is intended to be omitted in the law. FIRST REGULAR SESSION SENATE BILL NO. 429 102ND GENERAL ASSEMBLY INTRODUCED BY SENATOR CARTER. 1683S.01I KRISTINA MARTIN, Secretary AN ACT To repeal sections 67.2540, 226.531, and 573.010, RSMo, and to enact in lieu thereof three new sections relating to sexually oriented businesses, with penalty provisions. Be it enacted by the General Assembly of the State of Missouri, as follows: Section A. Sections 67.2540, 226.531, and 573.010, RSMo, 1 are repealed and three new sections enacted in lieu thereof, to 2 be known as sections 67.2540, 226.531, and 573.010, to read as 3 follows: 4 67.2540. As used in sections 67.2540 to 67.2556, the 1 following terms mean: 2 (1) "Adult cabaret", a nightclub, bar, restaurant, or 3 similar establishment in which persons regularly appear in a 4 state of nudity, as defined in section 573.500, or 5 seminudity in the performance of their duties; 6 (2) "Biological sex", the biological indication of the 7 physical condition of being male or female, which is 8 determined by an individual's chromosomes, identified at 9 birth by an individual's anatomy, and indicated on the 10 individual's birth certificate, without regard to an 11 individual's psychological, chosen, or subjective experience 12 of gender; 13 (3) "Drag performance", a performance in which a 14 performer exhibits a gender that is different from the 15 performer's biological sex as assigned at birth using 16 clothing, makeup, or other physical markers and sings, lip 17 SB 429 2 syncs, dances, or otherwise performs before an audience for 18 entertainment; 19 (4) "Employee", a person who is at least twenty-one 20 years of age and who performs any service on the premises of 21 a sexually oriented business on a full-time, part-time, or 22 contract basis, whether or not the person is denominated an 23 employee, independent contractor, agent, or otherwise, and 24 whether or not said person is paid a salary, wage, or other 25 compensation by the operator of said business. The term 26 employee does not include a person exclusively on the 27 premises for repair or maintenance of the premises or 28 equipment on the premises, or for the delivery of goods to 29 the premises; 30 [(3)] (5) "Nudity" or a "state of nudity", the showing 31 of the human male or female genitals, pubic area, vulva, 32 anus, anal cleft or anal cleavage with less than a fully 33 opaque covering, the showing of the female breast with less 34 than a fully opaque covering of any part of the nipple, or 35 the showing of the covered male genitals in a discernibly 36 turgid state; 37 [(4)] (6) "Nuisance", any place in or upon which 38 lewdness, assignation, or prostitution is conducted, 39 permitted, continued, or exists, or any place, in or upon 40 which lewd, indecent, lascivious, or obscene films, or films 41 designed to be projected for exhibition, are photographed, 42 manufactured, developed, screened, exhibited, or otherwise 43 prepared or shown, and the personal property and contents 44 used in conducting and maintaining any such place for any 45 such purpose. The provisions of this section shall not 46 affect any newspaper, magazine, or other publication entered 47 as second class matter by the post office department; 48 SB 429 3 [(5)] (7) "Person", an individual, proprietorship, 49 partnership, corporation, association, or other legal entity; 50 [(6)] (8) "Seminude" or in a "seminude condition", a 51 state of dress in which opaque clothing fails to cover the 52 genitals, anus, anal cleft or cleavage, pubic area, vulva, 53 nipple and areola of the female breast below a horizontal 54 line across the top of the areola at its highest point. 55 Seminudity shall include the entire lower portion of the 56 female breast, but shall not include any portion of the 57 cleavage of the human female breast exhibited by wearing 58 apparel provided the areola is not exposed in whole or part; 59 [(7)] (9) "Sexually oriented business", an adult 60 cabaret or any business which offers its patrons goods of 61 which a substantial or significant portion are sexually 62 oriented material or any nightclub, bar, restaurant, or 63 similar commercial enterprise that provides an audience of 64 two or more individuals a drag performance. It shall be 65 presumed that a business that derives thirty percent or less 66 of its revenue from sexually oriented materials is presumed 67 not to be a sexually oriented business. No building, 68 premises, structure, or other facility that contains any 69 sexually oriented business shall contain any other kind of 70 sexually oriented business; 71 [(8)] (10) "Sexually oriented materials", any 72 pictorial or three-dimensional material, or film, motion 73 picture, DVD, video cassette, or similar photographic 74 reproduction, that depicts nudity, sexual conduct, sexual 75 excitement, or sadomasochistic abuse, as defined in section 76 573.010; 77 [(9)] (11) "Specified criminal activity" includes the 78 following offenses: 79 SB 429 4 (a) Prostitution or promotion of prostitution; 80 dissemination of obscenity; sale, distribution, or display 81 of harmful material to a minor; sexual performance by a 82 child; possession or distribution of child pornography; 83 public lewdness; indecent exposure; indecency with a child; 84 engaging in organized criminal activity; sexual assault; 85 molestation of a child; gambling prohibited under Missouri 86 law; or distribution of a controlled substance; or any 87 similar offenses described in this subdivision under the 88 criminal or penal code of other states or countries; 89 (b) For which: 90 a. Less than two years have elapsed since the date of 91 conviction or the date of release from confinement imposed 92 for the conviction, whichever is the later date, if the 93 conviction is of a misdemeanor offense; 94 b. Less than five years have elapsed since the date of 95 conviction or the date of release from confinement for the 96 conviction, whichever is the later date, if the conviction 97 is of a felony offense; or 98 c. Less than five years have elapsed since the date of 99 the last conviction or the date of release from confinement 100 for the last conviction, whichever is the later date, if the 101 convictions are of two or more misdemeanor offenses or 102 combination of misdemeanor offenses occurring within any 103 twenty-four-month period; 104 (c) The fact that a conviction is being appealed shall 105 not prevent a sexually oriented business from being 106 considered a nuisance and closed under section 67.2546; 107 [(10)] (12) "Specified sexual activities" includes the 108 following acts: 109 (a) The fondling or other erotic touching of human 110 genitals, pubic region, buttocks, anus, or female breasts; 111 SB 429 5 (b) Sex acts, actual or simulated, including 112 intercourse, oral copulation, masturbation, or sodomy; or 113 (c) Excretory functions as part of or in connection 114 with any of the activities set forth in this subdivision. 115 226.531. 1. As used in this section the following 1 terms mean: 2 (1) "Adult cabaret", a nightclub, bar, restaurant, or 3 similar establishment in which persons appear in a state of 4 nudity, as defined in section 573.500, or seminudity, in the 5 performance of their duties; 6 (2) "Biological sex", the biological indication of the 7 physical condition of being male or female, which is 8 determined by an individual's chromosomes, identified at 9 birth by an individual's anatomy, and indicated on the 10 individual's birth certificate, without regard to an 11 individual's psychological, chosen, or subjective experience 12 of gender; 13 (3) "Drag performance", a performance in which a 14 performer exhibits a gender that is different from the 15 performer's biological sex as assigned at birth using 16 clothing, makeup, or other physical markers and sings, lip 17 syncs, dances, or otherwise performs before an audience for 18 entertainment; 19 (4) "Seminudity", a state of dress in which opaque 20 clothing fails to cover the genitals, anus, anal cleft or 21 cleavage, pubic area, vulva, nipple and areola of the female 22 breast below a horizontal line across the top of the areola 23 at its highest point. Seminudity shall include the entire 24 lower portion of the female breast, but shall not include 25 any portion of the cleavage of the human female breast 26 exhibited by wearing apparel provided the areola is not 27 exposed in whole or part; 28 SB 429 6 [(3)] (5) "Sexually oriented business", any business 29 which offers its patrons goods of which a substantial 30 portion are sexually oriented materials or any nightclub, 31 bar, restaurant, or similar commercial enterprise that 32 provides an audience of two or more individuals a drag 33 performance. Any business where more than ten percent of 34 display space is used for sexually oriented materials shall 35 be presumed to be a sexually oriented business; 36 [(4)] (6) "Sexually oriented materials", any textual, 37 pictorial, or three-dimensional material that depicts 38 nudity, sexual conduct, sexual excitement, or 39 sadomasochistic abuse in a way which is patently offensive 40 to the average person applying contemporary adult community 41 standards with respect to what is suitable for minors. 42 2. No billboard or other exterior advertising sign for 43 an adult cabaret or sexually oriented business shall be 44 located within one mile of any state highway except if such 45 business is located within one mile of a state highway then 46 the business may display a maximum of two exterior signs on 47 the premises of the business, consisting of one 48 identification sign and one sign solely giving notice that 49 the premises are off limits to minors. The identification 50 sign shall be no more than forty square feet in size and 51 shall include no more than the following information: name, 52 street address, telephone number, and operating hours of the 53 business. 54 3. Signs existing on August 28, 2004, which did not 55 conform to the requirements of this section, may be allowed 56 to continue as a nonconforming use, but should be made to 57 conform within three years from August 28, 2004. 58 4. Any owner of such a business who violates the 59 provisions of this section shall be guilty of a class C 60 SB 429 7 misdemeanor. Each week a violation of this section 61 continues to exist shall constitute a separate offense. 62 5. This section is designed to protect the following 63 public policy interests of this state, including but not 64 limited to: to mitigate the adverse secondary effects of 65 sexually oriented businesses, to improve traffic safety, to 66 limit harm to minors, and to reduce prostitution, crime, 67 juvenile delinquency, deterioration in property values, and 68 lethargy in neighborhood improvement efforts. 69 573.010. As used in this chapter the following terms 1 shall mean: 2 (1) "Adult cabaret", a nightclub, bar, juice bar, 3 restaurant, bottle club, or other commercial establishment, 4 regardless of whether alcoholic beverages are served, which 5 regularly features persons who appear semi-nude; 6 (2) "Biological sex", the biological indication of the 7 physical condition of being male or female, which is 8 determined by an individual's chromosomes, identified at 9 birth by an individual's anatomy, and indicated on the 10 individual's birth certificate, without regard to an 11 individual's psychological, chosen, or subjective experience 12 of gender; 13 (3) "Characterized by", describing the essential 14 character or dominant theme of an item; 15 [(3)] (4) "Child", any person under the age of 16 fourteen; 17 [(4)] (5) "Child pornography": 18 (a) Any obscene material or performance depicting 19 sexual conduct, sexual contact as defined in section 20 566.010, or a sexual performance and which has as one of its 21 participants or portrays as an observer of such conduct, 22 contact, or performance a minor; or 23 SB 429 8 (b) Any visual depiction, including any photograph, 24 film, video, picture, or computer or computer-generated 25 image or picture, whether made or produced by electronic, 26 mechanical, or other means, of sexually explicit conduct 27 where: 28 a. The production of such visual depiction involves 29 the use of a minor engaging in sexually explicit conduct; 30 b. Such visual depiction is a digital image, computer 31 image, or computer-generated image that is, or is 32 indistinguishable from, that of a minor engaging in sexually 33 explicit conduct, in that the depiction is such that an 34 ordinary person viewing the depiction would conclude that 35 the depiction is of an actual minor engaged in sexually 36 explicit conduct; or 37 c. Such visual depiction has been created, adapted, or 38 modified to show that an identifiable minor is engaging in 39 sexually explicit conduct. "Identifiable minor" means a 40 person who was a minor at the time the visual depiction was 41 created, adapted, or modified; or whose image as a minor was 42 used in creating, adapting, or modifying the visual 43 depiction; and who is recognizable as an actual person by 44 the person's face, likeness, or other distinguishing 45 characteristic, such as a unique birthmark or other 46 recognizable feature. The term identifiable minor shall not 47 be construed to require proof of the actual identity of the 48 identifiable minor; 49 [(5)] (6) "Drag performance", a performance in which a 50 performer exhibits a gender that is different from the 51 performer's biological sex as assigned at birth using 52 clothing, makeup, or other physical markers and sings, lip 53 syncs, dances, or otherwise performs before an audience for 54 entertainment; 55 SB 429 9 (7) "Employ", "employee", or "employment", any person 56 who performs any service on the premises of a sexually 57 oriented business, on a full-time, part-time, or contract 58 basis, whether or not the person is denominated an employee, 59 independent contractor, agent, or otherwise. Employee does 60 not include a person exclusively on the premises for repair 61 or maintenance of the premises or for the delivery of goods 62 to the premises; 63 [(6)] (8) "Explicit sexual material", any pictorial or 64 three-dimensional material depicting human masturbation, 65 deviate sexual intercourse, sexual intercourse, direct 66 physical stimulation or unclothed genitals, sadomasochistic 67 abuse, or emphasizing the depiction of postpubertal human 68 genitals; provided, however, that works of art or of 69 anthropological significance shall not be deemed to be 70 within the foregoing definition; 71 [(7)] (9) "Furnish", to issue, sell, give, provide, 72 lend, mail, deliver, transfer, circulate, disseminate, 73 present, exhibit or otherwise provide; 74 [(8)] (10) "Material", anything printed or written, or 75 any picture, drawing, photograph, motion picture film, 76 videotape or videotape production, or pictorial 77 representation, or any recording or transcription, or any 78 mechanical, chemical, or electrical reproduction, or stored 79 computer data, or anything which is or may be used as a 80 means of communication. Material includes undeveloped 81 photographs, molds, printing plates, stored computer data 82 and other latent representational objects; 83 [(9)] (11) "Minor", any person less than eighteen 84 years of age; 85 [(10)] (12) "Nudity" or "state of nudity", the showing 86 of the human genitals, pubic area, vulva, anus, anal cleft, 87 SB 429 10 or the female breast with less than a fully opaque covering 88 of any part of the nipple or areola; 89 [(11)] (13) "Obscene", any material or performance if, 90 taken as a whole: 91 (a) Applying contemporary community standards, its 92 predominant appeal is to prurient interest in sex; and 93 (b) The average person, applying contemporary 94 community standards, would find the material depicts or 95 describes sexual conduct in a patently offensive way; and 96 (c) A reasonable person would find the material lacks 97 serious literary, artistic, political or scientific value; 98 [(12)] (14) "Operator", any person on the premises of 99 a sexually oriented business who causes the business to 100 function, puts or keeps the business in operation, or is 101 authorized to manage the business or exercise overall 102 operational control of the business premises. A person may 103 be found to be operating or causing to be operated a 104 sexually oriented business whether or not such person is an 105 owner, part owner, or licensee of the business; 106 [(13)] (15) "Performance", any play, motion picture 107 film, videotape, dance or exhibition performed before an 108 audience of one or more; 109 [(14)] (16) "Pornographic for minors", any material or 110 performance if the following apply: 111 (a) The average person, applying contemporary 112 community standards, would find that the material or 113 performance, taken as a whole, has a tendency to cater or 114 appeal to a prurient interest of minors; and 115 (b) The material or performance depicts or describes 116 nudity, sexual conduct, the condition of human genitals when 117 in a state of sexual stimulation or arousal, or 118 sadomasochistic abuse in a way which is patently offensive 119 SB 429 11 to the average person applying contemporary adult community 120 standards with respect to what is suitable for minors; and 121 (c) The material or performance, taken as a whole, 122 lacks serious literary, artistic, political, or scientific 123 value for minors; 124 [(15)] (17) "Premises", the real property upon which a 125 sexually oriented business is located, and all appurtenances 126 thereto and buildings thereon, including but not limited to 127 the sexually oriented business, the grounds, private 128 walkways, and parking lots or parking garages or both; 129 [(16)] (18) "Promote", to manufacture, issue, sell, 130 provide, mail, deliver, transfer, transmute, publish, 131 distribute, circulate, disseminate, present, exhibit, or 132 advertise, or to offer or agree to do the same, by any means 133 including a computer; 134 [(17)] (19) "Regularly", the consistent and repeated 135 doing of the act so described; 136 [(18)] (20) "Sadomasochistic abuse", flagellation or 137 torture by or upon a person as an act of sexual stimulation 138 or gratification; 139 [(19)] (21) "Semi-nude" or "state of semi-nudity", the 140 showing of the female breast below a horizontal line across 141 the top of the areola and extending across the width of the 142 breast at such point, or the showing of the male or female 143 buttocks. Such definition includes the lower portion of the 144 human female breast, but shall not include any portion of 145 the cleavage of the female breasts exhibited by a bikini, 146 dress, blouse, shirt, leotard, or similar wearing apparel 147 provided the areola is not exposed in whole or in part; 148 [(20)] (22) "Sexual conduct", actual or simulated, 149 normal or perverted acts of human masturbation; deviate 150 sexual intercourse; sexual intercourse; or physical contact 151 SB 429 12 with a person's clothed or unclothed genitals, pubic area, 152 buttocks, or the breast of a female in an act of apparent 153 sexual stimulation or gratification or any sadomasochistic 154 abuse or acts including animals or any latent objects in an 155 act of apparent sexual stimulation or gratification; 156 [(21)] (23) "Sexually explicit conduct", actual or 157 simulated: 158 (a) Sexual intercourse, including genital-genital, 159 oral-genital, anal-genital, or oral-anal, whether between 160 persons of the same or opposite sex; 161 (b) Bestiality; 162 (c) Masturbation; 163 (d) Sadistic or masochistic abuse; or 164 (e) Lascivious exhibition of the genitals or pubic 165 area of any person; 166 [(22)] (24) "Sexually oriented business" includes: 167 (a) An adult bookstore or adult video store. "Adult 168 bookstore" or "adult video store" means a commercial 169 establishment which, as one of its principal business 170 activities, offers for sale or rental for any form of 171 consideration any one or more of the following: books, 172 magazines, periodicals, or other printed matter, or 173 photographs, films, motion pictures, video cassettes, 174 compact discs, digital video discs, slides, or other visual 175 representations which are characterized by their emphasis 176 upon the display of specified sexual activities or specified 177 anatomical areas. A principal business activity exists 178 where the commercial establishment: 179 a. Has a substantial portion of its displayed 180 merchandise which consists of such items; or 181 b. Has a substantial portion of the wholesale value of 182 its displayed merchandise which consists of such items; or 183 SB 429 13 c. Has a substantial portion of the retail value of 184 its displayed merchandise which consists of such items; or 185 d. Derives a substantial portion of its revenues from 186 the sale or rental, for any form of consideration, of such 187 items; or 188 e. Maintains a substantial section of its interior 189 business space for the sale or rental of such items; or 190 f. Maintains an adult arcade. "Adult arcade" means 191 any place to which the public is permitted or invited 192 wherein coin-operated or slug-operated or electronically, 193 electrically, or mechanically controlled still or motion 194 picture machines, projectors, or other image-producing 195 devices are regularly maintained to show images to five or 196 fewer persons per machine at any one time, and where the 197 images so displayed are characterized by their emphasis upon 198 matter exhibiting specified sexual activities or specified 199 anatomical areas; 200 (b) An adult cabaret; 201 (c) An adult motion picture theater. "Adult motion 202 picture theater" means a commercial establishment where 203 films, motion pictures, video cassettes, slides, or similar 204 photographic reproductions, which are characterized by their 205 emphasis upon the display of specified sexual activities or 206 specified anatomical areas are regularly shown to more than 207 five persons for any form of consideration; 208 (d) A semi-nude model studio. "Semi-nude model 209 studio" means a place where persons regularly appear in a 210 state of semi-nudity for money or any form of consideration 211 in order to be observed, sketched, drawn, painted, 212 sculptured, photographed, or similarly depicted by other 213 persons. Such definition shall not apply to any place where 214 SB 429 14 persons appearing in a state of semi-nudity do so in a 215 modeling class operated: 216 a. By a college, junior college, or university 217 supported entirely or partly by taxation; 218 b. By a private college or university which maintains 219 and operates educational programs in which credits are 220 transferable to a college, junior college, or university 221 supported entirely or partly by taxation; or 222 c. In a structure: 223 (i) Which has no sign visible from the exterior of the 224 structure and no other advertising that indicates a semi- 225 nude person is available for viewing; and 226 (ii) Where, in order to participate in a class, a 227 student must enroll at least three days in advance of the 228 class; 229 (e) A sexual encounter center. "Sexual encounter 230 center" means a business or commercial enterprise that, as 231 one of its principal purposes, purports to offer for any 232 form of consideration physical contact in the form of 233 wrestling or tumbling between two or more persons when one 234 or more of the persons is semi-nude; or 235 (f) A nightclub, bar, restaurant, or similar 236 commercial enterprise that provides an audience of two or 237 more individuals a drag performance; 238 [(23)] (25) "Sexual performance", any performance, or 239 part thereof, which includes sexual conduct by a child who 240 is less than eighteen years of age; 241 [(24)] (26) "Specified anatomical areas" include: 242 (a) Less than completely and opaquely covered: human 243 genitals, pubic region, buttock, and female breast below a 244 point immediately above the top of the areola; and 245 SB 429 15 (b) Human male genitals in a discernibly turgid state, 246 even if completely and opaquely covered; 247 [(25)] (27) "Specified sexual activity", includes any 248 of the following: 249 (a) Intercourse, oral copulation, masturbation, or 250 sodomy; or 251 (b) Excretory functions as a part of or in connection 252 with any of the activities described in paragraph (a) of 253 this subdivision; 254 [(26)] (28) "Substantial", at least thirty percent of 255 the item or items so modified; 256 [(27)] (29) "Visual depiction", includes undeveloped 257 film and videotape, and data stored on computer disk or by 258 electronic means which is capable of conversion into a 259 visual image. 260 