§ 6-8. Nude and semi-nude entertainment and other prohibited conduct in alcoholic beverage establishments.
(a)
Authority. This section is enacted to forward the interest of the public health, peace, safety, morals and general welfare of the citizens and inhabitants of the city pursuant to article VIII, section 2(b) of the Florida Constitution and F.S. § 166.021(3), and under the authority of the city to regulate the sale and consumption of alcoholic beverages under the Twenty-First Amendment of the United States Constitution as well as under the city's police power to protect the public health, safety, and welfare. See, e.g., California v. LaRue, 409 U.S. 109 (1972); 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996); City of Erie v. Playtime Theatres, Inc., 529 U.S. 277 (2000); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir. 1982); Sammy's of Mobile, Ltd. v. City of Mobile, 928 F. Supp. 1116 (11th Cir. 1986).
(b)
Intent. In adopting this section, the city council intends to:
(1)
Prohibit nude and semi-nude entertainment and certain erotic physical contact and simulated sexual conduct between patrons and performers in commercial establishments at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed, or offered for sale or consumption.
(2)
Prohibit the commercial advertisement, promotion and exploitation of nude and semi-nude entertainment in commercial establishments at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed, or offered for sale or consumption.
(3)
Prohibit conduct and activities which encourage the competitive commercial exploitation of nude and semi-nude entertainment in commercial establishments at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed, or offered for sale or consumption.
(c)
Findings. The city council makes the following findings of fact:
(1)
In the city there exists an increasing trend toward nude and semi-nude activities, including exhibitions and entertainment, and toward the use of nude and semi-nude employees engaged in other service-oriented aspects of commercial establishments.
(2)
The competitive commercial exploitation of nude and semi-nude activities adversely affects the public's interest in the quality of life, tone of commerce, and community environment in the city.
(3)
The commercial exploitation of nudity and semi-nudity consists of the use of nude and semi-nude entertainment in connection with or for the promotion of the sale of goods or services, and the receipt of money by the person engaging in nude or semi-nude entertainment in exchange for or as consideration for a nude or semi-nude performance by such individual.
(4)
The commercial exploitation described in this subsection frequently occurs in commercial establishments at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption.
(5)
There is a direct relationship between the consumption of alcoholic beverages and the nude and semi-nude activities, certain erotic physical contact and simulated sexual conduct between patrons and performers described in this subsection, and the increase in criminal activities, moral degradation, and disturbances of the peace and good order of the community. The concurrency of these activities threatens the health and safety of the participants, depreciates the value of adjoining property, and harms the economic welfare of the community.
(6)
The combination of the sale or consumption of alcoholic beverages with the performance of nude and semi-nude acts, exhibitions and entertainment, certain erotic physical contact and simulated sexual conduct between patrons and performers, adversely affects the public interest in the quality of life, tone of commerce and community environment. California v. LaRue, 409 U.S. 109 (1972); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir. 1982).
(7)
The prohibition of nude and semi-nude acts, exhibitions and entertainment, certain erotic physical contact and simulated sexual conduct between patrons and performers, in commercial establishments at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed, or offered for sale or consumption preserves the peace, health, safety, morals and welfare of the community. California v. LaRue, 409 U.S. 109 (1972); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir. 1982).
(8)
In order to preserve the peace, health, safety, morals and community welfare, it is necessary to regulate the conduct of owners, operators, agents, employees, entertainers, performers, patrons, spectators and persons on the premises of the commercial establishments. New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981); International Food & Beverage Systems v. Ft. Lauderdale, 794 F.2d 1520 (11th Cir. 1986).
(9)
The disclosures required herein are for the purpose of facilitating the police investigation into the applicant's criminal background regarding crimes of a sexual nature. Deja Vu of Nashville, Inc. v. Metro Government, 274 F.3d 377, 393 (6th Cir. 2001).
(10)
This section is based on evidence of the adverse secondary effects of adult uses that is within the common knowledge of municipalities and is widely reported in judicial opinions, media reports, land use studies, and crime impact reports made available to the city, several of which are set forth herein. Additionally, the city relies on repeated judicial findings of municipalities' reasonable reliance on this body of secondary effects evidence to support time, place, and manner regulations of sexually oriented businesses. The city relies upon and incorporates the findings of secondary effects discussed in the following non-exhaustive list of cases from the U.S. Supreme Court and lower federal courts: Pap's A.M. v. City of Erie, 529 U.S. 277 (2000); City of Los Angeles v. Alameda Books, Inc., 122 S. Ct. 1728 (2002); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); California v. LaRue, 409 U.S. 109 (1972); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir. 1982); International Food & Beverage Systems v. Ft. Lauderdale, 794 F.2d 1520 (11th Cir. 1986); Sammy's of Mobile, Ltd. v. City of Mobile, 928 F. Supp. 1116 (11th Cir. 1986); Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002).
(11)
The city further relies on reports concerning secondary effects occurring in and around sexually oriented businesses, including, but not limited to, Phoenix, Arizona - 1984; Minneapolis, Minnesota-1980; Houston, Texas - 1997; Indianapolis, Indiana - 1984; Amarillo, Texas - 1977; Garden Grove, California - 1991; Los Angeles, California - 1977; Whittier, California - 1978; Austin, Texas - 1986; Seattle, Washington - 1989; Oklahoma City, Oklahoma - 1986; Cleveland, Ohio - 1977; Dallas, Texas - 1997; McCleary Report, Alliance, Ohio - 2002; Tucson, Arizona - 1990; Testimony, Warner-Robins, Georgia - 2000; St. Croix County, Wisconsin - 1993; Bellevue, Washington, - 1998; Newport News, Virginia - 1996; St. Cloud, Minnesota - 1994; New York Times Square study - 1994; Phoenix, Arizona - 1995-98; Fort Myers, Florida - Report of Sergeant Mark Zellman, November 22, 1993; Pinellas County, Florida - Reports of Chief Deputy Sheriff John J. Mulry and Dr. Ronnie Massey, Director of Communicable Disease Service, January 15, 1991; and also on findings of physical abuse from the paper entitled "Stripclubs According to Strippers: Exposing Workplace Sexual Violence," by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, Minnesota, and from "Summaries of Key Secondary Effects Reports," and from "Sexually Oriented Businesses: An Insider's View," by David Sherman, presented to the Michigan House Committee on Ethics and Constitutional Law, Jan. 12, 2000, and the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota).
(d)
Prohibited acts. The following prohibitions shall apply to all commercial establishments where alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed, or offered for sale or consumption on the premises:
(1)
It shall be unlawful for any person to engage in nude or semi-nude entertainment in any commercial establishment where alcoholic beverages, are, or are available to be, sold, dispensed, consumed, possessed, or offered for sale or consumption on the premises.
(2)
It shall be unlawful for any female person, while on the premises of a commercial establishment where alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed, or offered for sale or consumption, to expose to public view the area of the human female breast directly below or laterally below the top of the areola, or to employ any device intended to give the appearance or simulate these areas of the female breast.
(3)
It shall be unlawful for any person, while on the premises of a commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption, to expose to public view his or her genitals, vulva, pubic area, anus, anal cleft or anal cleavage or to employ any device or covering which is intended to give the appearance of or simulate the genitals, vulva, pubic area, anus, anal cleft or anal cleavage.
(4)
It shall be unlawful for any person owning, maintaining, operating or leasing any commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises to suffer or permit any person on the premises to engage in nude or semi-nude entertainment.
(5)
While on the premises of a commercial establishment regulated by this section and at which live performances are regularly offered that are characterized by an emphasis on erotic entertainment and sexuality, it shall be unlawful for any entertainer, performer or employee to dance in such a manner as to simulate sexual activity with any patron, spectator, employee or other person not employed therein.
(6)
While on the premises of a commercial establishment regulated by this section and at which live performances are regularly offered that are characterized by an emphasis on erotic entertainment and sexuality, it shall be unlawful for any entertainer, performer or employee to sit upon or straddle the leg, legs, lap or body of any patron, spectator or other person therein, or to engage in or simulate sexual activity while touching or being touched by the patron, spectator or other person.
(7)
While on the premises of a commercial establishment regulated by this section, it shall be unlawful for any person to use or occupy areas partitioned or screened from public view that are designed to be occupied together or alone by any person on the premises of the establishment for sexual contact or private dancing.
(8)
Subject to the provisions of subsection (e) of this section, it shall be unlawful for any person owning, maintaining, operating or leasing a commercial establishment regulated by this section to suffer or permit any violation of subsection (d)(5), (d)(6) or (d)(7) of this section.
(9)
It shall be unlawful for any person owning, maintaining, operating or leasing a commercial establishment regulated by this section to suffer or permit any outside advertisement which encourages, solicits, induces or promotes conduct or activities prohibited by this section in such establishment.
(e)
Notwithstanding anything to the contrary, for the purposes of this chapter, an act by an employee that constitutes grounds for suspension or revocation of the adult use permit or adult use license shall be imputed to the adult use permittee or licensee for purposes of finding a violation of this ordinance, or for purposes of license denial, suspension, or revocation, only if an officer, director, or general partner, or a person who managed, supervised, or controlled the business premises at the time of the violation, knew or reasonably should have known that such act was occurring and failed to prevent such act. It shall be a defense to liability under this chapter that the person to whom the violative act is imputed was powerless to prevent the act. The defense set forth in the preceding sentence shall be retroactive to January 1, 2003.
(f)
Proof of presence of alcoholic content. Proof pertaining to this section is as follows:
(1)
In both civil and criminal actions for violation of this section, any person who, by common experience, or who by taste, smell or consumption of alcoholic beverages, has knowledge of the presence of the alcoholic content or intoxicating effect thereof, may testify as to his opinion regarding whether such beverage is an alcoholic beverage.
(2)
In both civil and criminal actions for violation of this section, an hydrometer or gravity test may be made in or away from the presence of the factfinder by any person who has knowledge of the use of the instrument to show the alcoholic content of any beverage.
(g)
Penalties. Penalties pertaining to this section are as follows:
(1)
Any person may bring suit to restrain, enjoin or otherwise prevent the violation of this section in the county circuit court.
(2)
Any person violating any of the prohibitions of this section shall, upon conviction:
a.
As to violations of subsections (d)(4), (d)(8) or (d)(9), be guilty of an offense, punishable by a fine not exceeding $500.00. Each violation shall be considered a separate offense.
b.
As to violations of all other subsections, be guilty of an offense punishable by a fine not exceeding $500.00 or by confinement in the county jail not exceeding 60 days or by both fine and imprisonment. Each violation shall be considered a separate offense.
(3)
If the owner, operator, lessor, lessee, manager, employer or any other person participating in the maintenance or operation of a commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises is convicted of a violation of this section, any occupational license or location permit issued by the city to such violator for the establishment may be suspended or revoked by action of the city council upon due notice.
(4)
If at any time the license of a commercial establishment is revoked pursuant to subsection (g)(3) of this section, at least six months shall elapse before another license may be issued to the same establishment. Such license may be issued only after a public hearing held before the city council.
(Code 1961, § 4-17; Code 1985, § 3-7; Ord. No. 2005, § 2, 4-26-88; Ord. No. 5144, § 1, 3-18-03)