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HomeMy WebLinkAboutOrdinance No. 18-2003 ORDINANCE NO. 18 -2003 (10" AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, FLORIDA, REPEALING SECTION 50 -2 OF THE CODE OF ORDINANCES; PROVIDING AMENDMENTS TO ARTICLE IV, ADULT ENTERTAINMENT CODE, TO CONFORM TO THE BREVARD COUNTY PUBLIC NUDITY ORDINANCE; AMENDING THE PLATFORM REQUIREMENT FOR PERFORMERS IN ADULT ENTERTAINMENT ESTABLISHMENTS; PROVIDING FOR REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, INCORPORATION INTO THE CODE, SEVERABILITY, AND EFFECTIVE DATE. WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, local governments may prohibit the exposure of certain body parts, see Geaneas v. Millets, 911 F.2d 579 (11th Cir. 1990), certiorari denied, 499 U.S. 955, 111 S. Ct. 1431, 113 L.Ed. 2d 484 (1991); and WHEREAS, efforts by the State and Federal governments to apply Florida criminal statutes to the public display of nudity have been rejected by the courts because, under certain of Florida's criminal laws, nudity alone cannot be prosecuted without proof of lewd and lascivious conduct; and WHEREAS, other local governments have successfully passed and defended regulations relating to public nudity, including other cities in Central Florida; and WHEREAS, conforming the City of Cape Canaveral's Adult Entertainment Code to the Brevard County Public Nudity Ordinance is a valid exercise of the City's police power; and WHEREAS, the City Council of the City of Cape Canaveral finds that public nudity and sexual conduct begets undesirable behavior, and that adverse secondary effects such as, but not limited to, prostitution, lewd and lascivious behavior, attempted rape, rape, and assault may occur and have the potential for occurring where public nudity and sexual conduct is permitted; and WHEREAS, the City Council of the City of Cape Canaveral desires to prohibit the public display of nudity and sexual behavior or the simulation thereof in adult entertainment establishments; and WHEREAS, the City Council of the City of Cape Canaveral believes that persons who choose to appear nude in public places are engaging in conduct which often serves to impose City of Cape Canaveral Ordinance 18 -2003 Page 1 of 7 their nudity on others who did not seek it out, who are not able to reasonably avoid observing it, and who may be offended or distressed thereby; and WHEREAS, appearing nude in public places was a criminal offense at common law and was considered an act malum en se (a wrong in itself) and appearing nude in a public place which is not a public place provided or set apart for nudity has been considered improper. See Moffett v. State, 340 So. 2d 1155, 1156 n.3 (Fla. 1977); and WHEREAS, the City Council of the City of Cape Canaveral desires to protect and preserve the wholesome character of the City of Cape Canaveral as a family oriented community with a high quality of life offered for families, tourists and businesses; and WHEREAS, the City Council of the City of Cape Canaveral believes that appearing nude in public places is still contrary to the general community standards; and WHEREAS, the City Council of the City of Cape Canaveral believes that the appearance of persons in the nude in public places, including adult entertainment establishments, generally increases adverse secondary effects such as, but not limited to, incidents of prostitution, sexual assaults and batteries, attracts other criminal activity to the community, and encourages degrada- tion of women and other activities which break down societal and family structures; and WHEREAS, the City Council of the City of Cape Canaveral believes that without regulation, public nudity constitutes harmful conduct and occurs in a manner which is incompatible with the normal primary activity of a particular place at a particular time; and WHEREAS, the City Council of the City of Cape Canaveral's sole intent in enacting this Ordinance is to prohibit the conduct of being nude in adult entertainment establishments and to suppress the adverse secondary effects such nudity generates; and WHEREAS, a requirement that exotic dancers don opaque covering sufficient to cover the genitals, buttocks and the breasts, as such portions of the human anatomy are defined in this Ordinance, does not deprive a dance of whatever erotic message, if any, it may convey, but simply makes such message, if any, slightly less graphic and imposes only an incidental limitation, if any, on the message; and WHEREAS, it is the intent of the City Council of the City of Cape Canaveral to protect and preserve the good order, public health, safety, welfare and morals of the City of Cape Canaveral by restricting, to the fullest extent allowed by the United States Constitution and Florida Constitution, the act of being nude in places which are not readily visible to the public; and WHEREAS, the City Council of the City of Cape Canaveral believes that the City of Cape Canaveral is a City that is, and desires very much to continue to be, a community that contains and is known for traditional and wholesome public recreational activities, natural features and resources, and historic facilities; and City of Cape Canaveral Ordinance 18 -2003 Page 2 of 7 WHEREAS, the City Council of the City of Cape Canaveral believes that the average person applying contemporary City of Cape Canaveral community standards would find that the public nudity prohibited by this Ordinance, if allowed, when taken as a whole: (i) appeals to the prurient interests, and (ii) lacks serious literary, artistic, political, and scientific value; and WHEREAS, the City Council of the City of Cape Canaveral believes that non - regulation of persons appearing nude in public places within the City of Cape Canaveral encourages persons and entities to advertise outside of the City of Cape Canaveral and the State of Florida by billboard, radio, print and other media the availability of nudity in public places within the City of Cape Canaveral and thus encourages the influx into the City of Cape Canaveral of persons seeking: (i) to observe and /or participate in such nudity, and (ii) to participate in the disorderly, harmful, and illegal conduct that is associated therewith, thereby increasing injuries and damages to the citizens of the City of Cape Canaveral who will be victims of such increased disorderly, harmful, and unlawful conduct and thereby working directly against the City of Cape Canaveral's economic development and tourism development activities; and WHEREAS, the City Council of the City of Cape Canaveral believes that commercial advertising and/or exploitation of nudity encourages escalation of nude and lewd conduct within the competing commercial establishments exploiting such conduct and thereby increases the adverse effects upon public order and the public health; and WHEREAS, the City Council of the City of Cape Canaveral believes that the commercial exploitation of women as exotic dancers and/or exploitation of any gender's nudity encourages escalation of nude and lewd conduct within the competing commercial establishments exploiting such conduct and thereby increases the adverse effects upon public order and the public health; and WHEREAS, the City Council of the City of Cape Canaveral believes that the prohibitions contained herein are the most reasonable and minimal restrictions required so as to regulate conduct which is adverse to public order, health, safety, morality, and decency within the City of Cape Canaveral when such conduct takes place at locations where the public is present or is likely to be present, or where such conduct would be readily visible to the public; and WHEREAS, the City Council of the City of Cape Canaveral believes that the passage of this Ordinance is necessary to preserve the basic character of the City of Cape Canaveral; and WHEREAS, states may regulate the conduct of appearing nude in public places. See Pap's A.M. v. City of Erie, 812 A. 2d 591 (Pa. 2002); Michael Barnes v. Glen Theater, Inc. 501 U.S. 560, 111 S.Ct. 2456 115 L.Ed. 2d 504 (1991) and Cafe 207, Inc. v. St. Johns County, 856 F. Supp. 641 (M.D. Fla. 1994), affd, 989 F.2d 1136 (11th Cir. 1995); and WHEREAS, the clothing requirements of this Ordinance are substantially similar to those required by the Seminole County public decency ordinance upheld as constitutional by Judge O. H. Eaton, Jr. of Florida's Eighteenth Judicial Circuit in Koziara et al v. Seminole County, Florida, Case No. 99- CA- 511 -16 -E (April 23, 2003); and City of Cape Canaveral Ordinance 18 -2003 Page 3 of 7 WHEREAS, the City Council of Cape Canaveral has taken significant note of the fact that Seminole County and Brevard County are in the same state judicial circuit and that uniformity of judicial decisions in a particular circuit are favored by the courts; and WHEREAS, the City Council of the City of Cape Canaveral is not hereby prohibiting nudity in private places or prohibiting nudity which is protected by the United States Constitution or Florida Constitution; and WHEREAS, this Ordinance is intended to regulate conduct, not speech; and WHEREAS, this Ordinance is a general ordinance regulating conduct and is not an ordinance that affects the use of land as contemplated by Section 166.041, Florida Statutes; and WHEREAS, this Ordinance shall be deemed supplemental and in addition to the Brevard County Public Nudity Ordinance and the clothing requirements set forth herein for adult entertainment establishments are intended to be consistent with the Brevard County Public Nudity Ordinance; and WHEREAS, this Ordinance shall not be construed in any respect whatsoever to opt the City of Cape Canaveral out of the Brevard County Public Nudity Ordinance and that Brevard County's Public Nudity Ordinance shall remain in full force and effect within the territorial boundaries of the City; and WHEREAS, the City Council of the City of Cape Canaveral finds that this Ordinance is in the best interests of the public health, safety, and welfare of the citizens of Cape Canaveral. BE IT ORDAINED by the City Council of the City of Cape Canaveral, Brevard County, Florida, as follows: Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this reference as legislative findings and the intent and purpose of the City Council of the City of Cape Canaveral. Section 2. Code Amendment. That Section 50 -2 of the Code of Ordinances, City of Cape Canaveral, Florida, is hereby repealed in its entirety (underlined type indicates additions and strikeout type indicates deletions): c 50 P nu dit,_ or to cxposo or exhibit his sexual organs. This scction, however, shall not be construed to City of Cape Canaveral Ordinance 18 -2003 Page4of7 Section 3. Conforming Amendments to the Adult Entertainment Code. That Article IV of the Code of Ordinances, City of Cape Canaveral, Florida, is hereby amended as follows: (underlined type indicates additions and strikeout type indicates deletions, while asterisks (* * *) indicate a deletion from this Ordinance of text existing in Article IV. It is intended that the text in Article IV denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance). ARTICLE IV. ADULT ENTERTAINMENT Division 1. Generally Sec. 10 -86. Definitions. * * * Specified anatomical areas means: (1) Less than completely and opaquely covered: a. Human genitals or pubic region; b. The anal cleft of the human buttocks Any portion of the anal cleft or cleavage of the male or female buttocks. Attire which is insufficient to comply with this requirement includes, but is not limited to G- strings, T -back bathing suits, thong bikinis, dental floss or any other clothing or covering that does not completely and opaquely cover the anal cleft or cleavage of the male or female buttocks; c . - - - - - -• . - - .. _ ., .. -- cic wage of the breast exhibited by a dress, blouse, shirt, leotard, bathing suit or - - - , .. - , . _ . .. • . _ .. _ . The portion of the human female breast directly or laterally below a point immediately above the top of the areola with less than a fully opaque covering. This definition shall include the entire lower portion of the human female breast, including the areola and nipple, 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 clothing, provided the areola is not exposed. (2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered. For purposes of this definition, body paint, body dye, a tattoo, latex or any similar substance shall not be considered an opaque covering. City of Cape Canaveral Ordinance 18 -2003 Page 5 of 7 Division 3. Permit for Employees Sec. 10 -136. Required. { (a) Unless specifically excluded in subsection (b) of this section, it shall be unlawful for any person to obtain employment in an establishment licensed or permitted to operate under this article, f o r any f o r m of consideration, - . _ • : • .. • • • in an establishment licensed or permitted to operate under this article, unless and until such person shall have first obtained an adult entertainment permit or temporary permit from the city manager. (b) This division shall not apply to employees engaged exclusively in performing janitorial or maintenance services. * ** Division 4. Operation of Establishments I . * ** Sec. 10 -172. Exhibit or display of certain anatomical areas by employees or patrons prohibited. It shall be unlawful for any employee of a commercial establishment, regardless of whether it is licensed under this article, where the employee knows or should have known that alcoholic beverages are on the premises, to exhibit or display the human genital or pubic region, thc anal - - . - - . . .. . ... - - . . - .. - . . specified anatomical areas. * ** Sec. 10 -177. Adult dancing establishment. * * * y. (2) No employee in an adult dancing establishment shall engage in the display or exhibition of specified anatomical areas, unless the person is positioned in an entertainment area . consisting of a platform or othcr structurc raised 18 inches above thc lest three feet from a patron or spectator. (3) • . .. .. - _ _ - or exhibition of specified anatomical arms. No employee shall engage in any Cie , k City of Cape Canaveral Ordinance 18 -2003 Page6of7 1 performance in view of a patron of the establishment, including erotic dances, unless the C. performance occurs on a permanent platform raised a minimum of eighteen (18) inches above the surrounding floor and encompassing an entertainment area of at least one k - hundred (100) square feet and at least three (3) feet from a patron. No patron shall be present on the platform or within the entertainment area during performances. 1 Section 4. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 5. Incorporation Into Code. This Ordinance shall be incorporated into the Cape Canaveral City Code and any section or paragraph number or letter and any heading may be changed or modified as necessary to effectuate the foregoing. Section 6. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of t competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. Section 7. Effective Date. This Ordinance shall become effective immediately upon Y ti adoption by the City Council of the City of Cape Canaveral, Florida. 1 C., ADOPTED by the City Council of the City of Cape Canaveral, Florida, this 2nd day of S eptember, 2003. C- C...)4.3 ; ROCKY RANDS S, Mayor E ATTEST: For Against Bob Hoog X ;' . Jim Morgan Second i - - ' / ' Buzz Petsos Motion SUSAN � ` 1� , City Clerk Rocky Randels X Richard Treverton X First Reading: 8/19/03 Legal Ad published: 8/24/03 Second Reading: 9/2/03 1 t Appro�/d as to legal form and sufficiency for the * . o , Canaveral on `� f C ANTHONY A. GARGANESE, City Attorney City of Cape Canaveral ?' Ordinance 18 -2003 Page7of7 ` _ i I