§ 10-29. Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Adult arcade means an establishment where, for any form of consideration, one or more motion picture projectors, slide projectors or similar machines for viewing by five or fewer persons each are used to show films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by emphasis upon the depiction or description of specified sexual activities or specified anatomical areas. For the purposes of this article, the term "adult arcade" is included within the definition of adult motion picture theater.

Adult bookstore means an establishment which sells or rents adult material, unless the adult material is accessible only by employees and either the gross income from the sale and rental of the adult material comprises less than ten percent of the gross income from the sale and rental of the goods and services at the establishment, or the individual items of adult material offered for sale or rental comprise less than 25 percent of the individual items publicly displayed at the establishment as stock in trade in any of the following categories: books, magazines, periodicals or other printed matter; photographs, films, motion pictures, videocassettes, slides or other visual representations; or recordings or other audio matter. An adult bookstore includes a place with only a portion or section of its area set aside for the display or sale of adult material listed in subsections (1) and (2) of the definition of adult materials, except that any place, otherwise included within this definition, that can prove that it derives not more than ten percent of its gross income from the sale of materials listed in subsections (1) and (2) of the definition of adult materials shall be exempt from this article so long as such material is kept out of the reach of customers and is accessed only by employees.

Adult dancing establishment means:

(1)

An establishment where any employee:

a.

Displays or exposes any specified anatomical areas to a person other than another employee, regardless of whether the employee actually engages in dancing;

b.

Wears any covering, tape, pasty, Band-Aid or other device which simulates or otherwise gives the appearance of the display or exposure of any specified anatomical areas, regardless of whether the employee actually engages in dancing;

c.

Offers, solicits or contracts to dance or perform with a person other than another employee in consideration for any tip, remuneration or compensation from or on behalf of that person; or

d.

Dances or performs with or within three feet of a person other than another employee in consideration for any tip, remuneration or compensation from or on behalf of that person.

(2)

Any provision of subsection (1) of this definition is not intended to apply if the predominant business or attraction of the establishment is not the offering to customers of a product, service or entertainment which is intended to provide sexual stimulation or sexual gratification to such customers, and the establishment is not distinguished by an emphasis on or the promotion of matters or persons depicting, describing, displaying, exposing, simulating or relating to specified sexual activities or specified anatomical areas.

(3)

Consistent with the decision of the Supreme Court of Florida in the case of Hoffman v. Carson, 250 So. 2d 891, 893 (Florida 1971), appeal dismissed 404 U.S. 981 (1971), an adult dancing establishment shall not be deemed a place provided or set apart for the purpose of exposing or exhibiting a person's sexual organs in a manner contrary to the first sentence of F.S. § 800.03, the state's indecent exposure statute.

Adult entertainment establishment means an adult motion picture theater, a massage establishment, an adult bookstore or an adult dancing establishment.

Adult materials means any one or more of the following:

(1)

Books, magazines, periodicals or other printed matter; photographs, films, motion pictures, videocassettes, slides or other visual representation or recordings; novelties; and devices, which have, as their primary or dominant theme, matter depicting, illustrating, describing or relating to specified sexual activities or specified anatomical areas; or

(2)

Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities.

Adult motion picture booth means an enclosed area designed or used for the viewing by one or two persons of motion pictures, films, videocassettes, slides or other photographic reproductions which have, as their primary or dominant theme, matters depicting, illustrating or relating to specified sexual activities or specified anatomical areas. For the purposes of this article, an adult motion picture booth is included within the definition of an adult motion picture theater.

Adult motion picture theater means an enclosed building or a portion or part of an enclosed building or an open air theater designed to permit viewing by patrons seated in automobiles, used to present on a regular basis, for any form of consideration, film material which has, as its primary or dominant theme, matters depicting, illustrating or relating to specified sexual activities for observation by adult persons thereof, and includes any hotel or motel, boardinghouse, roominghouse or other lodging for transient customers which advertises the presentation of such file material. For the purposes of this article, an adult motion picture theater includes both an adult arcade and an adult motion picture booth.

Alcoholic beverage means all beverages containing more than one percent alcohol by weight.

Commercial means for pecuniary gain, which shall be presumed for any establishment which has received an occupational license. For purposes of this article, operation for pecuniary gain shall not depend on actual profit or loss.

Commercial establishment means any business location, place of business conducting or allowing to be conducted on its premises any commercial activity.

Employee means a person who works or performs in a commercial establishment, irrespective or whether the person is paid a salary or wage by the owner or manager of the premises.

Establishment means a physical plant or location or the commercial activities or operations being conducted or both together, as the context of this article may require.

Inspector means an employee of the public health department or the building department or the zoning department or the fire marshal to inspect premises licensed under this article and to take or require the actions authorized by this article for violations being found on licensed premises, and also to inspect premises seeking to be licensed under this article and to require corrections of unsatisfactory conditions found on the premises.

Licensed premises means not only rooms and areas where adult materials regulated under this article or adult activities where any form of adult entertainment is presented, but also all other areas within 500 feet of the room or area where adult materials or adult activities are regulated and over which the licensee has some dominion and control and to which customers or patrons may pass, and the term includes all of the floor or land areas embraced within the plan appearing on or attached to the application for the license involved and designated as such on the plan.

Massage establishment means a site or premises or portion thereof upon which any person, who is an employee, manipulates the superficial tissues of the body of another person with any portion of the hand, foot, leg, arm or elbow, but not including the following: licensed health care facilities; licensed physicians or nurses engaged in the practice of their professions; educational athletic facilities, if the massage is a normal and usual practice in such facilities; or establishments exempt under F.S. § 480.034.

Personal advertising means any communication on the part of an employee of an adult entertainment establishment that is designed to encourage a prospective patron to enter the establishment and is performed by repeatedly speaking in a raised tone of voice; by making prominent physical gestures, such as waving or repeatedly pointing; or by holding signs or other written statements. Personal advertising shall not include oral or physical references to an adult entertainment established by patrons or spectators.

Premises means not only the rooms and areas physically occupied by a commercial establishment or where alcoholic beverages are sold, dispensed, offered, presented or consumed, but also includes all areas within 500 feet of the rooms and areas physically occupied by a commercial establishment or where alcoholic beverages are sold, dispensed, offered, presented or consumed over which the owner or management of the premises has some dominion and control and to which customers or patrons may pass.

Principal stockholder means any individual, partnership or corporation that owns or controls, legally or beneficially, ten percent or more of a corporation's capital stock, and includes the officers, directors and principal stockholders of a corporation that is a principal stockholder under this article; if no stockholder of a corporation owns or controls, legally or beneficially, at least ten percent of the capital stock, all stockholders shall be considered principal stockholders. If a corporation is registered with the Securities and Exchange Commission or pursuant to F.S. ch. 517 and its stock is for sale to the general public, it shall not be considered to have any principal stockholders.

Religious institution means a building which is used primarily for religious worship and related religious activities.

Residential zoning district, when used in the discussion of adult entertainment establishments, includes any area outside the city legally zoned in a manner primarily intended for dwellings and any area inside the city which is included in any of the following zoning districts; R-1A, R-1, R-2, R-3, R-NC and PUD, if the particular PUD is primarily intended for dwellings.

School means an institution of learning for minors, whether public or private, which offers instruction in those courses of study required by F.S. ch. 233 or which is maintained pursuant to standards set by the state board of education. This definition includes a nursery school, kindergarten, elementary school, junior high school, senior high school or any special institution of learning under the jurisdiction of the state department of education, but it does not include a vocational or professional institution or an institution of higher education, including a community or junior college, college or university.

Specified anatomical areas means:

(1)

Less than completely and opaquely covered:

a.

Human genitals or pubic region.

b.

Human buttocks.

c.

That portion of the human female breast encompassed within an area falling below the horizontal line one would have to draw to intersect a point immediately above the top of the areola (the colored ring around the nipple). This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel, provided the areola is not so exposed.

(2)

Human male genitals in a discernible turgid state, even if completely and opaquely covered.

Specified anatomical areas of the human body means:

(1)

Less than completely and opaquely covered:

a.

Human genitals, pubic region;

b.

Buttocks; or

c.

Female breasts below a point immediately above the top of the areola; and

(2)

Human male genitals in a discernible turgid state, even if completely and opaquely covered.

Specified criminal act means a violation of this article; an offense under F.S. ch. 880; an offense under F.S. § 806.01, 806.10, 806.11 or 806.13(2)(c); an offense under F.S. ch. 796; an offense under F.S. § 847.013 or 847.014; an offense under F.S. § 893.13; or an offense under F.S. § 849.09(2), 849.10 or 849.25(3);

Specified sexual activities means:

(1)

Human genitals in a state of sexual stimulation or arousal.

(2)

Acts of human masturbation, sexual intercourse or sodomy.

(3)

Fondling or other erotic touching of human genitals, pubic region, buttocks or female breasts.

Straddle dance, also known as a lap dance or face dance, means the use by an employee, whether clothed or not, of any part of his body to massage, rub, stroke, knead, caress or fondle the genital or pubic area of a patron, while on the premises, or the placing of the genital or pubic area of an employee in contact with the face of a patron, while on the premises.

Substantially enlarged, when used in the discussion of adult entertainment establishments, means increasing the size of the permitted or license premises by more than ten percent of the original permitted or licensed premises.

Violation of this article means a violation of any section of this article as found by a jury or any other trier of fact. All violations occurring on the same day prior to an arrest or the issuance of a notice to appear shall be considered as a single violation.

(Code 1988, § 2.5-4)

Cross reference

Definitions generally, § 1-2.