Text of MO SB 693 (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. 693 102ND GENERAL ASSEMBLY INTRODUCED BY SENATOR EIGEL. 2711S.01I KRISTINA MARTIN, Secretary AN ACT To repeal section 573.010, RSMo, and to enact in lieu thereof two new sections relating to the offense of engaging in an adult cabaret performance, with penalty provisions. Be it enacted by the General Assembly of the State of Missouri, as follows: Section A. Section 573.010, RSMo, is repealed and two new 1 sections enacted in lieu thereof, to be known as sections 2 573.010 and 573.520, to read as follows: 3 573.010. 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) "Adult cabaret performance", a performance in a 7 location other than an adult cabaret that features topless 8 dancers, go-go dancers, exotic dancers, strippers, male or 9 female impersonators who provide entertainment that appeals 10 to a prurient interest, or similar entertainers, regardless 11 of whether performed for consideration; 12 (3) "Characterized by", describing the essential 13 character or dominant theme of an item; 14 [(3)] (4) "Child", any person under the age of 15 fourteen; 16 [(4)] (5) "Child pornography": 17 SB 693 2 (a) Any obscene material or performance depicting 18 sexual conduct, sexual contact as defined in section 19 566.010, or a sexual performance and which has as one of its 20 participants or portrays as an observer of such conduct, 21 contact, or performance a minor; or 22 (b) Any visual depiction, including any photograph, 23 film, video, picture, or computer or computer-generated 24 image or picture, whether made or produced by electronic, 25 mechanical, or other means, of sexually explicit conduct 26 where: 27 a. The production of such visual depiction involves 28 the use of a minor engaging in sexually explicit conduct; 29 b. Such visual depiction is a digital image, computer 30 image, or computer-generated image that is, or is 31 indistinguishable from, that of a minor engaging in sexually 32 explicit conduct, in that the depiction is such that an 33 ordinary person viewing the depiction would conclude that 34 the depiction is of an actual minor engaged in sexually 35 explicit conduct; or 36 c. Such visual depiction has been created, adapted, or 37 modified to show that an identifiable minor is engaging in 38 sexually explicit conduct. "Identifiable minor" means a 39 person who was a minor at the time the visual depiction was 40 created, adapted, or modified; or whose image as a minor was 41 used in creating, adapting, or modifying the visual 42 depiction; and who is recognizable as an actual person by 43 the person's face, likeness, or other distinguishing 44 characteristic, such as a unique birthmark or other 45 recognizable feature. The term identifiable minor shall not 46 be construed to require proof of the actual identity of the 47 identifiable minor; 48 SB 693 3 [(5)] (6) "Employ", "employee", or "employment", any 49 person who performs any service on the premises of a 50 sexually oriented business, on a full-time, part-time, or 51 contract basis, whether or not the person is denominated an 52 employee, independent contractor, agent, or otherwise. 53 Employee does not include a person exclusively on the 54 premises for repair or maintenance of the premises or for 55 the delivery of goods to the premises; 56 [(6)] (7) "Explicit sexual material", any pictorial or 57 three-dimensional material depicting human masturbation, 58 deviate sexual intercourse, sexual intercourse, direct 59 physical stimulation or unclothed genitals, sadomasochistic 60 abuse, or emphasizing the depiction of postpubertal human 61 genitals; provided, however, that works of art or of 62 anthropological significance shall not be deemed to be 63 within the foregoing definition; 64 [(7)] (8) "Furnish", to issue, sell, give, provide, 65 lend, mail, deliver, transfer, circulate, disseminate, 66 present, exhibit or otherwise provide; 67 [(8)] (9) "Material", anything printed or written, or 68 any picture, drawing, photograph, motion picture film, 69 videotape or videotape production, or pictorial 70 representation, or any recording or transcription, or any 71 mechanical, chemical, or electrical reproduction, or stored 72 computer data, or anything which is or may be used as a 73 means of communication. Material includes undeveloped 74 photographs, molds, printing plates, stored computer data 75 and other latent representational objects; 76 [(9)] (10) "Minor", any person less than eighteen 77 years of age; 78 [(10)] (11) "Nudity" or "state of nudity", the showing 79 of the human genitals, pubic area, vulva, anus, anal cleft, 80 SB 693 4 or the female breast with less than a fully opaque covering 81 of any part of the nipple or areola; 82 [(11)] (12) "Obscene", any material or performance if, 83 taken as a whole: 84 (a) Applying contemporary community standards, its 85 predominant appeal is to prurient interest in sex; and 86 (b) The average person, applying contemporary 87 community standards, would find the material depicts or 88 describes sexual conduct in a patently offensive way; and 89 (c) A reasonable person would find the material lacks 90 serious literary, artistic, political or scientific value; 91 [(12)] (13) "Operator", any person on the premises of 92 a sexually oriented business who causes the business to 93 function, puts or keeps the business in operation, or is 94 authorized to manage the business or exercise overall 95 operational control of the business premises. A person may 96 be found to be operating or causing to be operated a 97 sexually oriented business whether or not such person is an 98 owner, part owner, or licensee of the business; 99 [(13)] (14) "Performance", any play, motion picture 100 film, videotape, dance or exhibition performed before an 101 audience of one or more; 102 [(14)] (15) "Pornographic for minors", any material or 103 performance if the following apply: 104 (a) The average person, applying contemporary 105 community standards, would find that the material or 106 performance, taken as a whole, has a tendency to cater or 107 appeal to a prurient interest of minors; and 108 (b) The material or performance depicts or describes 109 nudity, sexual conduct, the condition of human genitals when 110 in a state of sexual stimulation or arousal, or 111 sadomasochistic abuse in a way which is patently offensive 112 SB 693 5 to the average person applying contemporary adult community 113 standards with respect to what is suitable for minors; and 114 (c) The material or performance, taken as a whole, 115 lacks serious literary, artistic, political, or scientific 116 value for minors; 117 [(15)] (16) "Premises", the real property upon which a 118 sexually oriented business is located, and all appurtenances 119 thereto and buildings thereon, including but not limited to 120 the sexually oriented business, the grounds, private 121 walkways, and parking lots or parking garages or both; 122 [(16)] (17) "Promote", to manufacture, issue, sell, 123 provide, mail, deliver, transfer, transmute, publish, 124 distribute, circulate, disseminate, present, exhibit, or 125 advertise, or to offer or agree to do the same, by any means 126 including a computer; 127 [(17)] (18) "Regularly", the consistent and repeated 128 doing of the act so described; 129 [(18)] (19) "Sadomasochistic abuse", flagellation or 130 torture by or upon a person as an act of sexual stimulation 131 or gratification; 132 [(19)] (20) "Semi-nude" or "state of semi-nudity", the 133 showing of the female breast below a horizontal line across 134 the top of the areola and extending across the width of the 135 breast at such point, or the showing of the male or female 136 buttocks. Such definition includes the lower portion of the 137 human female breast, but shall not include any portion of 138 the cleavage of the female breasts exhibited by a bikini, 139 dress, blouse, shirt, leotard, or similar wearing apparel 140 provided the areola is not exposed in whole or in part; 141 [(20)] (21) "Sexual conduct", actual or simulated, 142 normal or perverted acts of human masturbation; deviate 143 sexual intercourse; sexual intercourse; or physical contact 144 SB 693 6 with a person's clothed or unclothed genitals, pubic area, 145 buttocks, or the breast of a female in an act of apparent 146 sexual stimulation or gratification or any sadomasochistic 147 abuse or acts including animals or any latent objects in an 148 act of apparent sexual stimulation or gratification; 149 [(21)] (22) "Sexually explicit conduct", actual or 150 simulated: 151 (a) Sexual intercourse, including genital-genital, 152 oral-genital, anal-genital, or oral-anal, whether between 153 persons of the same or opposite sex; 154 (b) Bestiality; 155 (c) Masturbation; 156 (d) Sadistic or masochistic abuse; or 157 (e) Lascivious exhibition of the genitals or pubic 158 area of any person; 159 [(22)] (23) "Sexually oriented business" includes: 160 (a) An adult bookstore or adult video store. "Adult 161 bookstore" or "adult video store" means a commercial 162 establishment which, as one of its principal business 163 activities, offers for sale or rental for any form of 164 consideration any one or more of the following: books, 165 magazines, periodicals, or other printed matter, or 166 photographs, films, motion pictures, video cassettes, 167 compact discs, digital video discs, slides, or other visual 168 representations which are characterized by their emphasis 169 upon the display of specified sexual activities or specified 170 anatomical areas. A principal business activity exists 171 where the commercial establishment: 172 a. Has a substantial portion of its displayed 173 merchandise which consists of such items; or 174 b. Has a substantial portion of the wholesale value of 175 its displayed merchandise which consists of such items; or 176 SB 693 7 c. Has a substantial portion of the retail value of 177 its displayed merchandise which consists of such items; or 178 d. Derives a substantial portion of its revenues from 179 the sale or rental, for any form of consideration, of such 180 items; or 181 e. Maintains a substantial section of its interior 182 business space for the sale or rental of such items; or 183 f. Maintains an adult arcade. "Adult arcade" means 184 any place to which the public is permitted or invited 185 wherein coin-operated or slug-operated or electronically, 186 electrically, or mechanically controlled still or motion 187 picture machines, projectors, or other image-producing 188 devices are regularly maintained to show images to five or 189 fewer persons per machine at any one time, and where the 190 images so displayed are characterized by their emphasis upon 191 matter exhibiting specified sexual activities or specified 192 anatomical areas; 193 (b) An adult cabaret; 194 (c) An adult motion picture theater. "Adult motion 195 picture theater" means a commercial establishment where 196 films, motion pictures, video cassettes, slides, or similar 197 photographic reproductions, which are characterized by their 198 emphasis upon the display of specified sexual activities or 199 specified anatomical areas are regularly shown to more than 200 five persons for any form of consideration; 201 (d) A semi-nude model studio. "Semi-nude model 202 studio" means a place where persons regularly appear in a 203 state of semi-nudity for money or any form of consideration 204 in order to be observed, sketched, drawn, painted, 205 sculptured, photographed, or similarly depicted by other 206 persons. Such definition shall not apply to any place where 207 SB 693 8 persons appearing in a state of semi-nudity do so in a 208 modeling class operated: 209 a. By a college, junior college, or university 210 supported entirely or partly by taxation; 211 b. By a private college or university which maintains 212 and operates educational programs in which credits are 213 transferable to a college, junior college, or university 214 supported entirely or partly by taxation; or 215 c. In a structure: 216 (i) Which has no sign visible from the exterior of the 217 structure and no other advertising that indicates a semi- 218 nude person is available for viewing; and 219 (ii) Where, in order to participate in a class, a 220 student must enroll at least three days in advance of the 221 class; 222 (e) A sexual encounter center. "Sexual encounter 223 center" means a business or commercial enterprise that, as 224 one of its principal purposes, purports to offer for any 225 form of consideration physical contact in the form of 226 wrestling or tumbling between two or more persons when one 227 or more of the persons is semi-nude; 228 [(23)] (24) "Sexual performance", any performance, or 229 part thereof, which includes sexual conduct by a child who 230 is less than eighteen years of age; 231 [(24)] (25) "Specified anatomical areas" include: 232 (a) Less than completely and opaquely covered: human 233 genitals, pubic region, buttock, and female breast below a 234 point immediately above the top of the areola; and 235 (b) Human male genitals in a discernibly turgid state, 236 even if completely and opaquely covered; 237 [(25)] (26) "Specified sexual activity", includes any 238 of the following: 239 SB 693 9 (a) Intercourse, oral copulation, masturbation, or 240 sodomy; or 241 (b) Excretory functions as a part of or in connection 242 with any of the activities described in paragraph (a) of 243 this subdivision; 244 [(26)] (27) "Substantial", at least thirty percent of 245 the item or items so modified; 246 [(27)] (28) "Visual depiction", includes undeveloped 247 film and videotape, and data stored on computer disk or by 248 electronic means which is capable of conversion into a 249 visual image. 250 573.520. 1. A person commits the offense of engaging 1 in an adult cabaret performance if such performance is: 2 (1) On public property; or 3 (2) In a location where the adult cabaret performance 4 could be viewed by a person who is not an adult. 5 2. The offense of engaging in an adult cabaret 6 performance is a class A misdemeanor for a first offense and 7 a class E felony for any second or subsequent offense. 8 3. The provisions of this section shall: 9 (1) Preempt an ordinance or a regulation, restriction, 10 or license that was lawfully adopted or issued by a 11 political subdivision prior to August 28, 2023, if such 12 ordinance, regulation, restriction, or license conflicts 13 with this section; and 14 (2) Prevent or preempt a political subdivision from 15 enacting and enforcing in the future other ordinances, 16 regulations, restrictions, or licenses that are in conflict 17 with this section. 18 