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5210S.04C
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SENATE COMMITTEE SUBSTITUTE
FOR
SENATE BILLS NOS. 1164 & 1476
AN ACT
To repeal sections 67.2540, 226.531, and 573.010,
RSMo, and to enact in lieu thereof five new sections
relating to adult cabaret performances, 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,
are repealed and five new sections enacted in lieu thereof, to
be known as sections 67.2540, 226.531, 537.048, 573.010, and
573.520, to read as follows:
67.2540. As used in sections 67.2540 to 67.2556, the
following terms mean:
(1) "Adult cabaret", a nightclub, bar, restaurant, or
similar establishment in which persons regularly appear in a
state of nudity[, as defined in section 573.500,] or
seminudity in the performance of their duties;
(2) "Adult cabaret performance", a performance that
appeals to a prurient interest in a location other than an
adult cabaret that features topless dancers, go-go dancers,
exotic dancers, strippers, male or female impersonators who
provide entertainment, or similar entertainers, regardless
of whether performed for consideration;
(3) "Employee", a person who is at least twenty-one
years of age and who performs any service on the premises of
a sexually oriented business on a full-time, part-time, or
contract basis, whether or not the person is denominated an
employee, independent contractor, agent, or otherwise, and
whether or not said person is paid a salary, wage, or other
compensation by the operator of said business. The term
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employee does not include a person exclusively on the
premises for repair or maintenance of the premises or
equipment on the premises, or for the delivery of goods to
the premises;
[(3)] (4) "Nudity" or a "state of nudity", the showing
of the human male or female genitals, pubic area, vulva,
anus, anal cleft or anal cleavage with less than a fully
opaque covering, the showing of the female breast with less
than a fully opaque covering of any part of the nipple, or
the showing of the covered male genitals in a discernibly
turgid state;
[(4)] (5) "Nuisance", any place in or upon which
lewdness, assignation, or prostitution is conducted,
permitted, continued, or exists, or any place, in or upon
which lewd, indecent, lascivious, or obscene films, or films
designed to be projected for exhibition, are photographed,
manufactured, developed, screened, exhibited, or otherwise
prepared or shown, and the personal property and contents
used in conducting and maintaining any such place for any
such purpose. The provisions of this section shall not
affect any newspaper, magazine, or other publication entered
as second class matter by the post office department;
[(5)] (6) "Person", an individual, proprietorship,
partnership, corporation, association, or other legal entity;
[(6)] (7) "Seminude" or in a "seminude condition", a
state of dress in which opaque clothing fails to cover the
genitals, anus, anal cleft or cleavage, pubic area, vulva,
nipple and areola of the female breast below a horizontal
line across the top of the areola at its highest point.
Seminudity shall include the entire lower portion of the
female breast, but shall not include any portion of the
cleavage of the human female breast exhibited by wearing
apparel provided the areola is not exposed in whole or part;
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[(7)] (8) "Sexually oriented business", an adult
cabaret [or], any business which offers its patrons goods of
which a substantial or significant portion are sexually
oriented material, or any business other than an adult
cabaret that offers an adult cabaret performance. It shall
be presumed that a business that derives thirty percent or
less of its revenue from sexually oriented materials is
presumed not to be a sexually oriented business. [No] A
building, premises, structure, or other facility that
contains any sexually oriented business shall not contain
any other kind of sexually oriented business, except that of
an adult cabaret performance;
[(8)] (9) "Sexually oriented materials", any pictorial
or three-dimensional material, or film, motion picture, DVD,
video cassette, or similar photographic reproduction, that
depicts nudity, sexual conduct, sexual excitement, or
sadomasochistic abuse, as defined in section 573.010;
[(9)] (10) "Specified criminal activity" includes the
following offenses:
(a) Prostitution or promotion of prostitution;
dissemination of obscenity; sale, distribution, or display
of harmful material to a minor; sexual performance by a
child; possession or distribution of child pornography;
public lewdness; indecent exposure; indecency with a child;
engaging in organized criminal activity; sexual assault;
molestation of a child; gambling prohibited under Missouri
law; or distribution of a controlled substance; or any
similar offenses described in this subdivision under the
criminal or penal code of other states or countries;
(b) For which:
a. Less than two years have elapsed since the date of
conviction or the date of release from confinement imposed
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for the conviction, whichever is the later date, if the
conviction is of a misdemeanor offense;
b. Less than five years have elapsed since the date of
conviction or the date of release from confinement for the
conviction, whichever is the later date, if the conviction
is of a felony offense; or
c. Less than five years have elapsed since the date of
the last conviction or the date of release from confinement
for the last conviction, whichever is the later date, if the
convictions are of two or more misdemeanor offenses or
combination of misdemeanor offenses occurring within any
twenty-four-month period;
(c) The fact that a conviction is being appealed shall
not prevent a sexually oriented business from being
considered a nuisance and closed under section 67.2546;
[(10)] (11) "Specified sexual activities" includes the
following acts:
(a) The fondling or other erotic touching of human
genitals, pubic region, buttocks, anus, or female breasts;
(b) Sex acts, actual or simulated, including
intercourse, oral copulation, masturbation, or sodomy; or
(c) Excretory functions as part of or in connection
with any of the activities set forth in this subdivision.
226.531. 1. As used in this section the following
terms mean:
(1) "Adult cabaret", a nightclub, bar, restaurant, or
similar establishment in which persons appear in a state of
nudity, as defined in section [573.500] 573.010, or
seminudity, in the performance of their duties;
(2) "Adult cabaret performance", a performance that
appeals to a prurient interest in a location other than an
adult cabaret that features topless dancers, go-go dancers,
exotic dancers, strippers, male or female impersonators who
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provide entertainment, or similar entertainers, regardless
of whether performed for consideration;
(3) "Seminudity", a state of dress in which opaque
clothing fails to cover the genitals, anus, anal cleft or
cleavage, pubic area, vulva, nipple and areola of the female
breast below a horizontal line across the top of the areola
at its highest point. Seminudity shall include the entire
lower portion of the female breast, but shall not include
any portion of the cleavage of the human female breast
exhibited by wearing apparel provided the areola is not
exposed in whole or part;
[(3)] (4) "Sexually oriented business", any business
which offers its patrons goods of which a substantial
portion are sexually oriented materials or any business
other than an adult cabaret that offers an adult cabaret
performance. Any business where more than ten percent of
display space is used for sexually oriented materials shall
be presumed to be a sexually oriented business;
[(4)] (5) "Sexually oriented materials", any textual,
pictorial, or three-dimensional material that depicts
nudity, sexual conduct, sexual excitement, or
sadomasochistic abuse in a way which is patently offensive
to the average person applying contemporary adult community
standards with respect to what is suitable for minors.
2. No billboard or other exterior advertising sign for
an adult cabaret or sexually oriented business shall be
located within one mile of any state highway except if such
business is located within one mile of a state highway then
the business may display a maximum of two exterior signs on
the premises of the business, consisting of one
identification sign and one sign solely giving notice that
the premises are off limits to minors. The identification
sign shall be no more than forty square feet in size and
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shall include no more than the following information: name,
street address, telephone number, and operating hours of the
business.
3. Signs existing on August 28, 2004, which did not
conform to the requirements of this section, may be allowed
to continue as a nonconforming use, but should be made to
conform within three years from August 28, 2004.
4. Any owner of such a business who violates the
provisions of this section shall be guilty of a class C
misdemeanor. Each week a violation of this section
continues to exist shall constitute a separate offense.
5. This section is designed to protect the following
public policy interests of this state, including but not
limited to: to mitigate the adverse secondary effects of
sexually oriented businesses, to improve traffic safety, to
limit harm to minors, and to reduce prostitution, crime,
juvenile delinquency, deterioration in property values, and
lethargy in neighborhood improvement efforts.
537.048. 1. As used in this section, the following
terms mean:
(1) "Actions or materials that appeal to a prurient
interest in sex", actions or materials that are
characterized by, fixate on, depict, or exhibit sex,
sexually explicit content, sexual desire, a state of nudity
or state of seminudity, or obscene or pornographic material;
(2) "Adult cabaret establishment", a nightclub, bar,
restaurant, or similar establishment in which persons
regularly appear in a state of nudity or a state of
seminudity in the performance of their duties;
(3) "Adult cabaret performance", a performance in a
location, other than an adult cabaret establishment, by an
adult cabaret performer and which contains actions or
materials that appeal to a prurient interest in sex;
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(4) "Adult cabaret performer", an entertainer who
provided an adult cabaret performance, including, but not
limited to, a topless dancer, go-go dancer, exotic dancer,
stripper, or male or female impersonator;
(5) "State of nudity", the showing of the human
genitals, pubic area, vulva, anus, anal cleft, or female
breast less than a fully opaque covering of any part of the
nipple or areola;
(6) "State of seminudity", a state of dress in which
opaque clothing fails to cover the human genitals, pubic
area, vulva, anus, anal cleft, nipple and areola of the
female breast below a horizontal line across the top of the
areola at its highest point and extending across the width
of the breast at such point, or the showing of the buttocks.
The term "state of seminudity" shall include the entire
lower portion of the female breast, but shall not include
any portion of the cleavage of the human female breast
exhibited by wearing apparel provided the areola is not
exposed in whole or part.
2. Any person who is a resident of the city, town, or
village where an adult cabaret performance is conducted
shall have a cause of action for damages or relief, as
specified in subsection 3 of this section, against an adult
cabaret performer whose adult cabaret performance, proven by
a preponderance of the evidence, contains actions or
material that appeal to a prurient interest in sex and that
occur:
(1) On public property; or
(2) In a location where the adult cabaret performance
could be viewed by a person who is under the age of eighteen.
3. A court may award any damages or injunctive relief
as it deems necessary, including any actual damages,
punitive damages, and reasonable attorney's fees, to a
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prevailing plaintiff, except no damages, apart from nominal
damages, shall be awarded in more than one action arising
out of a single occurrence.
4. Any action pursuant to subsection 2 of this section
shall be brought in the circuit court of the county where
the adult cabaret performance occurred. Any person entitled
to bring an action pursuant to subsection 2 of this section
may institute an action as a representative of a class
against one or more defendants.
573.010. As used in this chapter the following terms
shall mean:
(1) "Adult cabaret", a nightclub, bar, juice bar,
restaurant, bottle club, or other commercial establishment,
regardless of whether alcoholic beverages are served, which
regularly features persons who appear semi-nude;
(2) "Adult cabaret performance", a performance that
appeals to a prurient interest in a location other than an
adult cabaret that features topless dancers, go-go dancers,
exotic dancers, strippers, male or female impersonators who
provide entertainment, or similar entertainers, regardless
of whether performed for consideration;
(3) "Characterized by", describing the essential
character or dominant theme of an item;
[(3)] (4) "Child", any person under the age of
fourteen;
[(4)] (5) "Child pornography":
(a) Any obscene material or performance depicting
sexual conduct, sexual contact as defined in section
566.010, or a sexual performance and which has as one of its
participants or portrays as an observer of such conduct,
contact, or performance a minor; or
(b) Any visual depiction, including any photograph,
film, video, picture, or computer or computer-generated
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image or picture, whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct
where:
a. The production of such visual depiction involves
the use of a minor engaging in sexually explicit conduct;
b. Such visual depiction is a digital image, computer
image, or computer-generated image that is, or is
indistinguishable from, that of a minor engaging in sexually
explicit conduct, in that the depiction is such that an
ordinary person viewing the depiction would conclude that
the depiction is of an actual minor engaged in sexually
explicit conduct; or
c. Such visual depiction has been created, adapted, or
modified to show that an identifiable minor is engaging in
sexually explicit conduct. "Identifiable minor" means a
person who was a minor at the time the visual depiction was
created, adapted, or modified; or whose image as a minor was
used in creating, adapting, or modifying the visual
depiction; and who is recognizable as an actual person by
the person's face, likeness, or other distinguishing
characteristic, such as a unique birthmark or other
recognizable feature. The term identifiable minor shall not
be construed to require proof of the actual identity of the
identifiable minor;
[(5)] (6) "Employ", "employee", or "employment", any
person who performs any service on the premises of a
sexually oriented business, on a full-time, part-time, or
contract basis, whether or not the person is denominated an
employee, independent contractor, agent, or otherwise.
Employee does not include a person exclusively on the
premises for repair or maintenance of the premises or for
the delivery of goods to the premises;
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[(6)] (7) "Explicit sexual material", any pictorial or
three-dimensional material depicting human masturbation,
deviate sexual intercourse, sexual intercourse, direct
physical stimulation or unclothed genitals, sadomasochistic
abuse, or emphasizing the depiction of postpubertal human
genitals; provided, however, that works of art or of
anthropological significance shall not be deemed to be
within the foregoing definition;
[(7)] (8) "Furnish", to issue, sell, give, provide,
lend, mail, deliver, transfer, circulate, disseminate,
present, exhibit or otherwise provide;
[(8)] (9) "Material", anything printed or written, or
any picture, drawing, photograph, motion picture film,
videotape or videotape production, or pictorial
representation, or any recording or transcription, or any
mechanical, chemical, or electrical reproduction, or stored
computer data, or anything which is or may be used as a
means of communication. Material includes undeveloped
photographs, molds, printing plates, stored computer data
and other latent representational objects;
[(9)] (10) "Minor", any person less than eighteen
years of age;
[(10)] (11) "Nudity" or "state of nudity", the showing
of the human genitals, pubic area, vulva, anus, anal cleft,
or the female breast with less than a fully opaque covering
of any part of the nipple or areola;
[(11)] (12) "Obscene", any material or performance if,
taken as a whole:
(a) Applying contemporary community standards, its
predominant appeal is to prurient interest in sex; and
(b) The average person, applying contemporary
community standards, would find the material depicts or
describes sexual conduct in a patently offensive way; and
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(c) A reasonable person would find the material lacks
serious literary, artistic, political or scientific value;
[(12)] (13) "Operator", any person on the premises of
a sexually oriented business who causes the business to
function, puts or keeps the business in operation, or is
authorized to manage the business or exercise overall
operational control of the business premises. A person may
be found to be operating or causing to be operated a
sexually oriented business whether or not such person is an
owner, part owner, or licensee of the business;
[(13)] (14) "Performance", any play, motion picture
film, videotape, dance or exhibition performed before an
audience of one or more;
[(14)] (15) "Pornographic for minors", any material or
performance if the following apply:
(a) The average person, applying contemporary
community standards, would find that the material or
performance, taken as a whole, has a tendency to cater or
appeal to a prurient interest of minors; and
(b) The material or performance depicts or describes
nudity, sexual conduct, the condition of human genitals when
in a state of sexual stimulation or arousal, or
sadomasochistic abuse in a way which is patently offensive
to the average person applying contemporary adult community
standards with respect to what is suitable for minors; and
(c) The material or performance, taken as a whole,
lacks serious literary, artistic, political, or scientific
value for minors;
[(15)] (16) "Premises", the real property upon which a
sexually oriented business is located, and all appurtenances
thereto and buildings thereon, including but not limited to
the sexually oriented business, the grounds, private
walkways, and parking lots or parking garages or both;
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[(16)] (17) "Promote", to manufacture, issue, sell,
provide, mail, deliver, transfer, transmute, publish,
distribute, circulate, disseminate, present, exhibit, or
advertise, or to offer or agree to do the same, by any means
including a computer;
[(17)] (18) "Regularly", the consistent and repeated
doing of the act so described;
[(18)] (19) "Sadomasochistic abuse", flagellation or
torture by or upon a person as an act of sexual stimulation
or gratification;
[(19)] (20) "Semi-nude" or "state of semi-nudity", the
showing of the female breast below a horizontal line across
the top of the areola and extending across the width of the
breast at such point, or the showing of the male or female
buttocks. Such definition includes the lower portion of the
human female breast, but shall not include any portion of
the cleavage of the female breasts exhibited by a bikini,
dress, blouse, shirt, leotard, or similar wearing apparel
provided the areola is not exposed in whole or in part;
[(20)] (21) "Sexual conduct", actual or simulated,
normal or perverted acts of human masturbation; deviate
sexual intercourse; sexual intercourse; or physical contact
with a person's clothed or unclothed genitals, pubic area,
buttocks, or the breast of a female in an act of apparent
sexual stimulation or gratification or any sadomasochistic
abuse or acts including animals or any latent objects in an
act of apparent sexual stimulation or gratification;
[(21)] (22) "Sexually explicit conduct", actual or
simulated:
(a) Sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex;
(b) Bestiality;
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(c) Masturbation;
(d) Sadistic or masochistic abuse; or
(e) Lascivious exhibition of the genitals or pubic
area of any person;
[(22)] (23) "Sexually oriented business" includes:
(a) An adult bookstore or adult video store. "Adult
bookstore" or "adult video store" means a commercial
establishment which, as one of its principal business
activities, offers for sale or rental for any form of
consideration any one or more of the following: books,
magazines, periodicals, or other printed matter, or
photographs, films, motion pictures, video cassettes,
compact discs, digital video discs, slides, or other visual
representations which are characterized by their emphasis
upon the display of specified sexual activities or specified
anatomical areas. A principal business activity exists
where the commercial establishment:
a. Has a substantial portion of its displayed
merchandise which consists of such items; or
b. Has a substantial portion of the wholesale value of
its displayed merchandise which consists of such items; or
c. Has a substantial portion of the retail value of
its displayed merchandise which consists of such items; or
d. Derives a substantial portion of its revenues from
the sale or rental, for any form of consideration, of such
items; or
e. Maintains a substantial section of its interior
business space for the sale or rental of such items; or
f. Maintains an adult arcade. "Adult arcade" means
any place to which the public is permitted or invited
wherein coin-operated or slug-operated or electronically,
electrically, or mechanically controlled still or motion
picture machines, projectors, or other image-producing
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devices are regularly maintained to show images to five or
fewer persons per machine at any one time, and where the
images so displayed are characterized by their emphasis upon
matter exhibiting specified sexual activities or specified
anatomical areas;
(b) An adult cabaret;
(c) An adult motion picture theater. "Adult motion
picture theater" means a commercial establishment where
films, motion pictures, video cassettes, slides, or similar
photographic reproductions, which are characterized by their
emphasis upon the display of specified sexual activities or
specified anatomical areas are regularly shown to more than
five persons for any form of consideration;
(d) A semi-nude model studio. "Semi-nude model
studio" means a place where persons regularly appear in a
state of semi-nudity for money or any form of consideration
in order to be observed, sketched, drawn, painted,
sculptured, photographed, or similarly depicted by other
persons. Such definition shall not apply to any place where
persons appearing in a state of semi-nudity do so in a
modeling class operated:
a. By a college, junior college, or university
supported entirely or partly by taxation;
b. By a private college or university which maintains
and operates educational programs in which credits are
transferable to a college, junior college, or university
supported entirely or partly by taxation; or
c. In a structure:
(i) Which has no sign visible from the exterior of the
structure and no other advertising that indicates a semi-
nude person is available for viewing; and
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(ii) Where, in order to participate in a class, a
student must enroll at least three days in advance of the
class;
(e) A sexual encounter center. "Sexual encounter
center" means a business or commercial enterprise that, as
one of its principal purposes, purports to offer for any
form of consideration physical contact in the form of
wrestling or tumbling between two or more persons when one
or more of the persons is semi-nude; or
(f) Any business other than an adult cabaret that
offers an adult cabaret performance;
[(23)] (24) "Sexual performance", any performance, or
part thereof, which includes sexual conduct by a child who
is less than eighteen years of age;
[(24)] (25) "Specified anatomical areas" include:
(a) Less than completely and opaquely covered: human
genitals, pubic region, buttock, and female breast below a
point immediately above the top of the areola; and
(b) Human male genitals in a discernibly turgid state,
even if completely and opaquely covered;
[(25)] (26) "Specified sexual activity", includes any
of the following:
(a) Intercourse, oral copulation, masturbation, or
sodomy; or
(b) Excretory functions as a part of or in connection
with any of the activities described in paragraph (a) of
this subdivision;
[(26)] (27) "Substantial", at least thirty percent of
the item or items so modified;
[(27)] (28) "Visual depiction", includes undeveloped
film and videotape, and data stored on computer disk or by
electronic means which is capable of conversion into a
visual image.
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573.520. 1. A person commits the offense of engaging
in an adult cabaret performance if such performance is:
(1) On public property; or
(2) In a location other than an adult cabaret where
the adult cabaret performance is reasonably expected to be
viewed by a person who is not an adult.
2. The offense of engaging in an adult cabaret
performance is a class A misdemeanor for a first offense and
a class E felony for any second or subsequent offense.
3. The provisions of this section shall:
(1) Preempt an ordinance or a regulation, restriction,
or license that was lawfully adopted or issued by a
political subdivision prior to August 28, 2026, if such
ordinance, regulation, restriction, or license conflicts
with this section; and
(2) Prevent or preempt a political subdivision from
enacting and enforcing in the future other ordinances,
regulations, restrictions, or licenses that are in conflict
with this section.