§ 10-8. Obscenity.

(a)

Definitions. For the purposes of this section, the following words and phrases shall have the meanings respectively ascribed to them:

Available to the public. Matter or performance shall be deemed available to the public if the matter or performance may be purchased or attended on a subscription basis, on a membership fee arrangement or for a separate fee for each item or performance.

Disseminate means to transfer possession of, with or without consideration.

Knowingly means aware of the character and the content of the material.

Material means any book, magazine, newspaper or other printed or written material; any picture, drawing, photograph, motion picture or other pictorial representation; any statue or other figure; any recording, transcription, or mechanical, chemical or electrical reproduction; or any other articles, equipment or machines.

Nudity means the showing of the human male or female genitals or pubic area with less than fully opaque covering, or the depiction of covered male genitals in a discernibly turgid state.

Obscene. Matter shall be deemed obscene if, to the average person applying contemporary community standards:

(1)

The predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in sexual conduct, nudity or excretion;

(2)

The matter depicts or describes in a patently offensive manner sexual conduct regulated by S.C. Code 1976, § 16-15-150; and

(3)

The work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Performance means any preview, play, show, skit, film, dance or other exhibition performed before an audience.

Promote means to cause, permit, procure, counsel or assist.

Service to patrons means the provision of services to paying guests in establishments providing food and beverages, including but not limited to hostessing, hat checking, cooking, bartending, serving, table setting and clearing, waiting, and entertaining.

(b)

Prohibited conduct. It shall be unlawful for any person to:

(1)

Knowingly disseminate, distribute or make available to the public any obscene material;

(2)

Knowingly engage or participate in any obscene performance made available to the public;

(3)

Knowingly engage in commerce for commercial gain with materials depicting and describing explicit sexual conduct, nudity or excretion, utilizing displays, circulars, advertisements and other public sales efforts that promote such commerce primarily on the basis of their prurient appeal;

(4)

Provide service to patrons in such a manner as to expose to public view:

a.

His genitals, pubic hair, buttocks, perineum, anal region or pubic hair region;

b.

Any device, costume or covering which gives the appearance of or simulates the genitals, pubic hair, buttocks, perineum, anal region or pubic hair region; or

c.

Any portion of the female breast at or below the areola thereof; or

(5)

Knowingly promote the commission of any of the unlawful acts listed in subsections (b)(1) through (4) of this section.

(c)

Notice of obscene material or action.

(1)

Generally. Actual notice of the obscene nature of such material, performance or activity may be given to a person involved in or responsible for the material, performance or activity from the city attorney on the basis of information lawfully gathered and supplied to him by the police department or citizens.

a.

Such notice shall be in writing and delivered by mail or in person to the alleged offender.

b.

Such notice shall state that:

1.

In the opinion of the city attorney, the activity engaged in falls within the prohibitions of this section;

2.

If such activity has not ceased within seven (7) judicial days, the city will take appropriate legal action; and

3.

A declaratory judgment proceeding as described in this section is available if a person engaged in the challenged activity wishes to initiate the legal determination of whether the activity is in fact obscene.

(2)

Presumption of knowledge. A person who promotes any obscene activity as prohibited in this section in the course of his business is presumed to do so with knowledge of its content and character.

(3)

Declaratory judgment.

a.

Any person receiving notice in writing from the city attorney under this section that a specified activity is obscene may bring an action against the city for a declaratory judgment to determine whether such activity is obscene.

b.

If it is adjudged and declared by the court that such activity is obscene, the city attorney may cause the publication of such judgment in a newspaper of general circulation in the city, and upon such publication all persons residing or doing business in the city will be presumed to have actual notice of the nature of the activity.

(4)

Criminal prosecution.

a.

The city attorney may cause criminal charges to be brought against any person presently engaging in or who has engaged in any prohibited activity in violation of this section; and

b.

If the city attorney has given notice pursuant to this section, such criminal charges may be brought only after seven (7) judicial days after receipt of such notice.

(d)

Types of proceedings.

(1)

In rem proceedings.

a.

The chief of police may apply to the city attorney to institute an attachment proceeding against any material which is alleged to be obscene in a sworn affidavit.

b.

Upon filing of an application for attachment authorized in subsection (d)(1)a of this section, the chief of police shall immediately cause notice thereof to be served either personally or by mail upon any person residing or doing business in the city who is known or believed by the chief of police to have any of the following interests in material named in the complaint:

1.

The publisher;

2.

The wholesaler, distributor or circulator; and

3.

Every retailer or dealer who has or may have possession of any material identical to material named in the complaint.

c.

Trial shall be held no later than the fourth judicial day following the filing for attachment. No trial under this section shall be continued or otherwise postponed more than one (1) judicial day but may be conducted by a judge pro tempore in the event of unavailability of the trial judge.

(2)

Injunction.

a.

The city attorney may seek a temporary restraining order in circuit court in order to enjoin any obscene performance or the service of patrons in violation of this section.

b.

If the city attorney has given written notice pursuant to this section, he may, after the passage of seven (7) judicial days, seek such a temporary restraining order.

(3)

Evidence; defense.

a.

Expert affirmative evidence that the materials or activities are obscene is not required when the materials or activities themselves are presented as evidence.

b.

It shall be an affirmative defense in any prosecution under this section that allegedly obscene material was disseminated or presented for a bona fide scientific, medical, educational, governmental or judicial purpose by a physician, psychologist, teacher, clergyman, prosecutor or judge.

(Code 1977, § 14-10)