2006 Ohio Revised Code - 2907.35. Presumptions; notice.

§ 2907.35. Presumptions; notice.
 

(A)  An owner or manager, or agent or employee of an owner or manager, of a bookstore, newsstand, theater, or other commercial establishment engaged in selling materials or exhibiting performances, who, in the course of business: 

(1) Possesses five or more identical or substantially similar obscene articles, having knowledge of their character, is presumed to possess them in violation of division (A)(5) of section 2907.32 of the Revised Code; 

(2) Does any of the acts prohibited by section 2907.31 or 2907.32 of the Revised Code, is presumed to have knowledge of the character of the material or performance involved, if the owner, manager, or agent or employee of the owner or manager has actual notice of the nature of such material or performance, whether or not the owner, manager, or agent or employee of the owner or manager has precise knowledge of its contents. 

(B)  Without limitation on the manner in which such notice may be given, actual notice of the character of material or a performance may be given in writing by the chief legal officer of the jurisdiction in which the person to whom the notice is directed does business. Such notice, regardless of the manner in which it is given, shall identify the sender, identify the material or performance involved, state whether it is obscene or harmful to juveniles, and bear the date of such notice. 

(C)  Sections 2907.31 and 2907.32 of the Revised Code do not apply to a motion picture operator or projectionist acting within the scope of employment as an employee of the owner or manager of a theater or other place for the showing of motion pictures to the general public, and having no managerial responsibility or financial interest in the operator's or projectionist's place of employment, other than wages. 

(D) (1)  Sections 2907.31, 2907.311 [2907.31.1], 2907.32, 2907.321 [2907.32.1], 2907.322 [2907.32.2], 2907.323 [2907.32.3], and 2907.34 and division (A) of section 2907.33 of the Revised Code do not apply to a person solely because the person provided access or connection to or from an electronic method of remotely transferring information not under that person's control, including having provided capabilities that are incidental to providing access or connection to or from the electronic method of remotely transferring the information, and that do not include the creation of the content of the material that is the subject of the access or connection. 

(2) Division (D)(1) of this section does not apply to a person who conspires with an entity actively involved in the creation or knowing distribution of material in violation of section 2907.31, 2907.311 [2907.31.1], 2907.32, 2907.321 [2907.32.1], 2907.322 [2907.32.2], 2907.323 [2907.32.3], 2907.33, or 2907.34 of the Revised Code or who knowingly advertises the availability of material of that nature. 

(3) Division (D)(1) of this section does not apply to a person who provides access or connection to an electronic method of remotely transferring information that is engaged in the violation of section 2907.31, 2907.311 [2907.31.1], 2907.32, 2907.321 [2907.32.1], 2907.322 [2907.32.2], 2907.323 [2907.32.3], 2907.33, or 2907.34 of the Revised Code and that contains content that person has selected and introduced into the electronic method of remotely transferring information or content over which that person exercises editorial control. 

(E)  An employer is not guilty of a violation of section 2907.31, 2907.311 [2907.31.1], 2907.32, 2907.321 [2907.32.1], 2907.322 [2907.32.2], 2907.323 [2907.32.3], 2907.33, or 2907.34 of the Revised Code based on the actions of an employee or agent of the employer unless the employee's or agent's conduct is within the scope of employee's or agent's employment or agency, and the employer does either of the following: 

(1) With knowledge of the employee's or agent's conduct, the employer authorizes or ratifies the conduct. 

(2) The employer recklessly disregards the employee's or agent's conduct. 

(F)  It is an affirmative defense to a charge under section 2907.31 or 2907.311 [2907.31.1] of the Revised Code as the section applies to an image transmitted through the internet or another electronic method of remotely transmitting information that the person charged with violating the section has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by juveniles to material that is harmful to juveniles, including any method that is feasible under available technology. 

(G)  If any provision of this section, or the application of any provision of this section to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of this section or related sections that can be given effect without the invalid provision or application. To this end, the provisions are severable. 
 

HISTORY: 134 v H 511 (Eff 1-1-74); 135 v S 62 (Eff 1-1-74); 149 v H 8. Eff 8-5-2002; 149 v H 490, § 1, eff. 1-1-04.
 

The effective date is set by section 4 of HB 490. 

Not analogous to former RC § 2907.35 (RS § 6843; S&C 426; 37 v 74; GC § 12468; Bureau of Code Revision, 10-1-53), repealed 134 v H 511, § 2, eff 1-1-74.

 

Effect of Amendments

H.B. 490, Acts 2002, effective January 1, 2004, substituted "an electronic method of remotely transferring information" for "a computer facility, system, or network" in (D)(1) and (3); in (D)(1), deleted "transmission, downloading, intermediate storage, access software or other related" preceding "capabilities," and substituted "the electronic method of remotely transferring the information" for "a computer facility, system, or network"; substituted "introduced into the electronic method of remotely transferring information" for "placed in or on the facility, system, or network" in (D)(3); inserted "or another electronic method of remotely transmitting information" in (F); and added (G). 

 

19xx Committee Report or Comment.

1974 Committee Comment to H 511

This section is a modified version of two former statutes, and provides a presumption of possession of obscenity for purposes of pandering it, a presumption of knowledge of the character of objectionable materials in one's possession, and a method of giving notice of the nature of any such materials. The presumptions are rebuttable, and are formulated to be based on objective evidence from which the conclusions they represent may reasonably be inferred. 

The manner of giving notice provided in the section is not exclusive, nor is giving notice a condition precedent to a successful prosecution for pandering obscenity or disseminating matter harmful to juveniles. That an offender knew the character of the matter with which he was dealing can be proven in other ways than by showing he was given advance notice. For example, a showing that an offender had read the book or seen the movie would be strong if not conclusive evidence that he was aware of its contents. Proof that the character of certain matter was common knowledge, due perhaps to widespread notoriety in the news media, might be probative though not conclusive on the question of an offender's knowledge of the matter's character.