House File 640 - Introduced



                                       HOUSE FILE       
                                       BY  ANDERSON and SWAIM


    Passed House,  Date               Passed Senate, Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act relating to indecent exposure and providing penalties.
  2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  3 TLSB 2405HH 83
  4 jm/nh/8

PAG LIN



  1  1    Section 1.  Section 728.5, Code 2009, is amended to read as
  1  2 follows:
  1  3    728.5  PUBLIC INDECENT EXPOSURE IN CERTAIN ESTABLISHMENTS.
  1  4    1.  For purposes of this section, the following definitions
  1  5 apply unless the context otherwise requires:
  1  6    a.  "Minor" means any person under the age of twenty=one.
  1  7    b.  "Place of business" includes a place of business that
  1  8 meets any of the following conditions:
  1  9    (1)  Required to obtain a sales tax permit.
  1 10    (2)  Allows an open or unsealed bottle, can, jar, or other
  1 11 receptacle containing an alcoholic beverage on the premises.
  1 12    (3)  Operates as a single place of business with an
  1 13 adjacent place of business required to obtain a sales tax
  1 14 permit.
  1 15    2.  An owner, manager, or person who exercises direct
  1 16 control over a place of business required to obtain a sales
  1 17 tax permit shall be is guilty of a serious misdemeanor under
  1 18 any of the following circumstances:
  1 19    1.  a.  If such person allows or permits the actual or
  1 20 simulated public performance of any sex act upon or in such
  1 21 place of business.
  1 22    2.  b.  If such person allows or permits the exposure of
  1 23 the genitals or buttocks or female breast of any person who
  1 24 acts as a waiter or waitress.
  1 25    3.  c.  If such person allows or permits the exposure of
  1 26 the genitals or female breast nipple of any person who acts as
  1 27 an entertainer, whether or not the owner of the place of
  1 28 business in which the activity is performed employs or pays
  1 29 any compensation to such person to perform such activity.
  1 30    4.  d.  If such person allows or permits any person to
  1 31 remain in or upon the place of business who exposes to public
  1 32 view the person's genitals, pubic hair, or anus.
  1 33    5.  e.  If such person advertises that any activity
  1 34 prohibited by this section is allowed or permitted in such
  1 35 place of business.
  2  1    6.  f.  If such person allows or permits a minor to engage
  2  2 in or otherwise perform in a live act intended to arouse or
  2  3 satisfy the sexual desires or appeal to the prurient interests
  2  4 of patrons.  However, if such person allows or permits a minor
  2  5 to participate in any act included in subsections 1 through 4
  2  6 paragraphs "a" through "d", the person shall be is guilty of
  2  7 an aggravated misdemeanor.
  2  8    2.  The provisions of this section shall not apply to a
  2  9 theater, concert hall, art center, museum, or similar
  2 10 establishment which is primarily devoted to the arts or
  2 11 theatrical performances and in which any of the circumstances
  2 12 contained in this section were permitted or allowed as part of
  2 13 such art exhibits or performances.  At trial for a violation
  2 14 of this section the court may consider the challenged
  2 15 circumstance and whether the owner, manager, or person is
  2 16 attempting to evade prosecution under this section.  In
  2 17 addition to other competent evidence, the court may consider
  2 18 the offered testimony pertaining to:
  2 19    a.  The artistic or theatrical value, if any, of the
  2 20 performance or exhibit.
  2 21    b.  The degree of public acceptance within the community.
  2 22    c.  The advertising promotion.
  2 23    d.  The nexus, including the unity of interest, ownership,
  2 24 management, and operations between the premises where the
  2 25 challenged circumstance occurred and an adjacent place of
  2 26 business.
  2 27    Sec. 2.  Section 728.8, Code 2009, is amended to read as
  2 28 follows:
  2 29    728.8  SUSPENSION OF LICENSES OR PERMITS.
  2 30    Any person who knowingly permits a violation of section
  2 31 728.2, 728.3, or 728.5, subsection 6, to occur on premises
  2 32 under the person's control shall have all permits and licenses
  2 33 issued to the person under state or local law as a
  2 34 prerequisite for doing business on such premises revoked for a
  2 35 period of six months.  The county attorney shall notify all
  3  1 agencies responsible for issuing licenses and permits of any
  3  2 conviction under section 728.2, 728.3, or 728.5, subsection 6.
  3  3                           EXPLANATION
  3  4    This bill relates to indecent exposure under Code section
  3  5 728.5.
  3  6    The bill specifies that a person who exercises control over
  3  7 a place of business may be held accountable for circumstances
  3  8 of indecent exposure on the premises of the business if any of
  3  9 the following apply: the business is required to obtain a
  3 10 sales tax permit; the business allows an open or unsealed
  3 11 bottle or other receptacle containing an alcoholic beverage on
  3 12 the premises; or the business operates a single place of
  3 13 business with an adjacent place of business required to obtain
  3 14 a sales tax permit.
  3 15    The bill also, for purposes of prohibiting obscene
  3 16 performances by minors under Code section 728.5 only, raises
  3 17 the age of a minor from 18 years to 21 years.
  3 18    The indecent exposure provisions do not apply to the arts
  3 19 or to theatrical performances.  However, the bill provides
  3 20 that at a trial, the court may consider whether the person is
  3 21 attempting to avoid prosecution.
  3 22    Under the bill, and in addition to other competent evidence
  3 23 at trial, the court may consider the following: the artistic
  3 24 value of the performance or exhibit; the degree of public
  3 25 acceptance within the community; the advertising promotion;
  3 26 and the nexus, including the unity of interest, ownership,
  3 27 management, and operations between the premises where the
  3 28 challenged circumstances occurred.
  3 29    A person who violates Code section 728.5 by allowing acts
  3 30 of indecent exposure performed by an adult is guilty of a
  3 31 serious misdemeanor and if such acts are performed by a minor,
  3 32 is guilty of an aggravated misdemeanor.  A serious misdemeanor
  3 33 is punishable by confinement for no more than one year and a
  3 34 fine of at least $315 but not more than $1,875.  An aggravated
  3 35 misdemeanor is punishable by confinement for no more than two
  4  1 years and a fine of at least $625 but not more than $6,250.
  4  2    Upon a conviction, a person's license or permit required to
  4  3 do business on the premises shall be revoked for a period of
  4  4 six months.
  4  5 LSB 2405HH 83
  4  6 jm/nh/8