HB2864

SECTION 1. The legislature finds that many individuals have been involuntarily exposed to products of a prurient nature while shopping. This type of exposure is magnified when adult entertainment products are visible to minors. Act 32, Session Laws of Hawaii 2006, was enacted to protect youth and the general public from unwelcome exposure to adult entertainment products by requiring individuals and businesses that sell adult entertainment products to display the products in a separate area of the premises and obscure the products in that area from view by persons in other parts of the premises or off the premises. This requirement was designed to protect the general public, especially minors, from being involuntarily exposed to these materials.

The legislature also finds that adult entertainment products do not have to be pornographic to be offensive to a substantial portion of the community and inappropriate for minors. Accordingly, the definition of "adult entertainment product" in Act 32, as introduced, focused on the explicitly sexual nature of these products and, rather than prohibiting them, established reasonable, time, place, and manner restrictions on their sale. However, in an apparent effort to provide an objective, legally defined standard of the products in question, the legislature made the restrictions applicable only to pornographic materials.

The legislature further finds that the definition of "adult entertainment products" in Act 32 made it unenforceable. Requiring that the products be proven "pornographic" is virtually impossible because the Hawaii supreme court effectively held in State v. Kam, 69 H. 483, 748 P.2d (1988), that only materials that depict children engaged in sexual acts, sexually violent killings, or bestiality can be deemed pornographic. The point at which material can be deemed offensive and subject to constitutionally reasonable limitation is reached long before the materials stoop to that level.

The purpose of this Act is to impose reasonable time, place, and manner restrictions on the display for sale of sexually explicit materials.

SECTION 2. Section 489X-1, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) For the purposes of this section:

"Adult entertainment product" means any [~~merchandise that is pornographic as defined in section 712-1210.~~] product designed, or primarily used for, the sexual gratification of the user including, but not limited to, videos, devices, and novelty items of an explicit sexual nature.

"Premises" means any building, structure, or place, or any separate part or portion thereof."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2864
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII