HomeMy WebLinkAboutOrdinance No. 18-1986MICROFILMED AUG 87
ORDINANCE NO. 18 -86
AN ORDINANCE OF THE CITY OF CAPE CANAVERAL,
BREVARD COUNTY, FLORIDA, ADOPTING AND
ENACTING AN ADULT ENTERTAINMENT CODE OF
ORDINANCE FOR THE CITY OF CAPE CANAVERAL;
ESTABLISHING THE SAME; ESTABLISHING CHAPTER
722 OF THE CODE OF ORDINANCES OF THE CITY OF
CAPE CANAVERAL; REQUIRING THE LICENSING OF
ADULT BOOKSTORES, ADULT THEATERS, MASSAGE
ESTABLISHMENTS AND ADULT DANCING
ESTABLISHMENTS, AS DEFINED; PROVIDING
PROCEDURES FOR LICENSE APPLICATION, ISSUANCE,
RENEWAL, SUSPENSION AND REVOCATION; REQUIRING
THE DISPLAY OF LICENSES; PROVIDING AN APPEAL
FROM THE DENIAL, SUSPENSION OR REVOCATION OF
LICENSES; REGULATING THE TRANSFER OF LICENSES
AND THE CHANGE IN THE LOCATION OR NAME OF A
LICENSED ESTABLISHMENT; REQUIRING LICENSE
FEES; PERMITTING THE CITY MANAGER TO REQUIRE
THAT RECORDS BE MAINTAINED BY LICENSED
ESTABLISHMENTS; REQUIRING COMPLIANCE WITH
HEALTH, FIRE, BUILDING AND ZONING
REGULATIONS; IMPOSING SPECIAL ADVERTISING
RESTRICTIONS; REQUIRING THAT ADULT BOOKSTORES
CONCEAL THEIR MATERIALS FROM PASSERSBY AND
PROVIDE SPECIFIED FACILITIES FOR RECORDING
BOOTHS; REQUIRING THAT MASSAGE ESTABLISHMENTS
POSSESS A STATE LICENSE AND PROVIDE SPECIFIED
DRESSING ROOMS, SHOWERS, AND LOCKERS;
REQUIRING THAT ADULT MOTION PICTURE THEATERS
PROVIDE SANITARY FACILITIES; IMPOSING SPECIAL
CONSTRUCTION REQUIREMENTS FOR ADULT MOTION
PICTURE BOOTHS; PROHIBITING OUTDOOR ADULT
MOTION PICTURE SCREENS FROM BEING VISIBLE TO
THE PUBLIC; PROHIBITING MORE THAN ONE
CLASSIFICATION OF ADULT ENTERTAINMENT AT A
SINGLE LOCATION; PROHIBITING THE SALE OF
ALCOHOL OR THE POSSESSION OF ALCOHOL IN
CONCURRENCE WITH THE EXHIBITION OF CERTAIN
ANATOMICAL AREAS; PROHIBITING EMPLOYEES FROM
EXHIBITING SPECIFIED ANATOMICAL AREAS WHILE
DISPENSING FOOD OR BEVERAGES; REQUIRING ADULT
DANCING TO BE PERFORMED ON A RAISED PLATFORM;
PROHIBITING CONTACT BETWEEN ADULT DANCERS AND
PATRONS; PROHIBITING THE OPERATION OF
UNLICENSED PREMISES; PROHIBITING EMPLOYEES
FROM ENGAGING IN SPECIFIED ACTIVITIES;
PROHIBITING THE ADMISSION OF MINORS TO ADULT
ESTABLISHMENTS; PROHIBITING THE SALE OF ADULT
MATERIAL TO MINORS; PROHIBITING THE
PERMISSION OF SUFFERANCE OF ILLEGAL ACTS OR
VIOLATIONS OF THIS CODE; REQUIRING PERMITS
FOR ALL EMPLOYEES; PROVIDING PROCEDURES FOR
PERMIT APPLICATION, ISSUANCE, SUSPENSION, AND
REVOCATION; REQUIRING IMMEDIATE POSSESSION OF
PERMITS BY ALL EMPLOYEES OF ADULT
ENTERTAINMENT ESTABLISHMENTS; PROVIDING AN
APPEAL PROCESS FOR DENIAL, SUSPENSION OR
REVOCATION OF PERMITS; PROVIDING IMMUNITY
FROM PROSECUTION; PROHIBITING THE SALE OR
CONSUMPTION OF ALCOHOLIC BEVERAGES IN
COMMERCIAL ESTABLISHMENTS THAT PERMIT THE
DISPLAY OF SPECIFIED ANATOMICAL AREAS;
PROHIBITING THE TOUCHING OF GENITALS OR
ORDINANCE NO. 18 -86
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MICROFILMED AUG 87
PUBIC AREA OF EMPLOYEES OR PATRONS IN ADULT
ENTERTAINMENT ESTABLISHMENTS OR PLACES THAT
SELL OR DISPENSE ALCOHOL; REQUIRING A FEE FOR
LOST PERMITS; REQUIRING LICENSES OF
COMMERCIAL ESTABLISHMENTS ADVERTISING ADULT
ENTERTAINMENT; IMPUTING THE KNOWLEDGE OF
MANAGERS OR SUPERVISORS OF ADULT
ENTERTAINMENT ESTABLISHMENTS, PLACES THAT
SELL OR DISPENSE ALCOHOL, AND PLACES
PERMITTING STRADDLE DANCING TO LICENSEES OR
OWNERS; PROHIBITING STRADDLE DANCING AS
DEFINED HEREIN IN ANY COMMERCIAL
ESTABLISHMENT; PROVIDING PENALTIES FOR
VIOLATIONS OF THIS CODE; PROVIDING FINDINGS
OF FACT; PROVIDING DEFINITIONS; PROVIDING FOR
SEVERABILITY; REPEALING ALL PORTIONS OF THE
CODE IN CONFLICT HEREWITH; PROVIDING AN
EFFECTIVE DATE.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City
of Cape Canaveral, Brevard County, Florida, as follows:
SECTION 1. Chapter 722, "Adult Entertainment Code ", of the
City of Cape Canaveral, Code of Ordinances, is hereby established
as follows:
CHAPTER 722
ADULT ENTERTAINMENT CODE
Part 1. General Provisions
Sec. 722.01 Authority. This ordinance is enacted
under the Home Rule Power and the police power of the
City of Cape Canaveral, Florida in the interest of the
public health, peace, safety, morals and general welfare
of the citizens and inhabitants of Cape Canaveral,
Florida.
Sec. 722.03 Scope. This ordinance shall be effective
throughout the City of Cape Canaveral, Florida.
Sec. 722.05 Purpose. The intent of the City Council
in adopting this ordinance is to establish reasonable and
uniform regulations that will reduce the adverse effects
adult entertainment businesses may have upon Cape
Canaveral, Florida, and to protect the health, safety,
morals and welfare of the citizens and inhabitants of
Cape Canaveral, Florida.
Sec. 722.07 Findings of Facts. Based on the findings
incorporated in the Jacksonville Municipal Code, Chapter
410, Ord. 77- 257 -256 §1, the Los Angeles Municipal Code,
Section 12.70, Ord. 156509 (1982); the Detroit Zoning
Ordinance, 66,0000, Ord. 742 -G §l, 10- 24 -72, the Adult
Entertainment Code of Orange County, Florida, Chapter 1A,
Ordinance 85 -16, and "A Summary of a National Survey of
Real Estate Appraisers Regarding the Effect of Adult
Bookstores on Property Values," conducted by the Division
of Planning, Department of Metropolitan Development,
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MICROFILMED AUG 87
Indianapolis, January, 1984, the City Council hereby
finds:
(a) The possession, display, exhibition,
distribution and sale of books, magazines, motion
pictures, prints, photographs, periodicals, records,
novelties and devices which depict, illustrate, describe
or relate to specified sexual activities are businesses
that exist or may exist within the City.
(b) The operating and maintaining of places:
(1) where the superficial tissues of one person
are manipulated, rubbed, stroked, kneaded or tapped by a
second person, accompanied by the display or exposure of
specified anatomical areas; or
(2) where dancers, entertainers, performers, or
other individuals who perform or are presented while
displaying or exposing specified anatomical areas; or
(3) where straddle dancing occurs;
are businesses that exist or may exist within the City.
(c) When the activities described in subsections
(a) and (b) are present in an area of the City, other
activities which are illegal, immoral or unhealthful tend
to accompany them. Such activities include, but are not
limited to, prostitution, pandering, solicitation for
prostitution, lewd and lascivious behavior, exposing
minors to harmful materials, possession, distribution and
transportation of obscene materials, sale or possession
of controlled substances and violent crimes against
persons and property. These illegal, immoral or
unhealthful activities tend to concentrate around and be
aggravated by the presence of the activities detailed in
subsections (a) and (b).
(d) There is a higher incidence of certain types of
criminal behavior among employees and patrons at
establishments engaged in adult entertainment than among
employees at other commercial establishments.
(e) The concentration within limited areas of the
City of business operations and activities described in
subsections (a) and (b) tends to attract an undesirable
number of transients, blight neighborhoods, adversely
affect neighboring business, lower property values,
promote an increase in crime, particularly of the kinds
detailed in subsection (c), and ultimately results in
residents and businesses moving to other locations.
(f) The buildings and establishments in which the
activities and business operations described in
subsections (a) and (b) take place are conducive to and
are often used for the commission of immoral, lewd,
indecent or illegal acts; or
(g) The business operations and activities detailed
in subsections (a) and (b) frequently occur in commercial
establishments either selling or allowing consumption of
alcoholic beverages on the premises concurrent with the
display of specified anatomical areas or straddle
dancing.
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MICROFILMED AUG 87
(h) There is a direct relationship between the
concurrent consumption of alcoholic beverages and the
activities described in subsections (a) and (b), and an
increase in criminal activities, moral degradation and
disturbances of the peace and good order of the
community.
(i) The concurrence of the sale or consumption of
alcoholic beverages with the activities described in
subsections (a) and (b) is hazardous to the health and
safety of those persons in attendance, and tends to
depreciate the value of adjoining property, harm the
economic welfare of the community as a whole and
adversely affect the public's interest in the quality of
life, tone of commerce, and total community environment
in Cape Canaveral, Florida.
(j) In order to preserve the public peace and good
order, and to safeguard the health, safety and welfare of
the community and the citizens thereof, it is necessary
and advisable to regulate and restrict the sale and
consumption of alcoholic beverages in commercial
establishments where the business operations and
activities described in subsections (a) and (b) occur.
(k) Physical contact within commercial
establishments between persons exhibiting specified
anatomical areas and patrons or spectators poses a threat
to the individual health of both and promotes the spread
of communicable and social diseases.
(1) Personal advertising within close proximity to
public thoroughfares disrupts traffic and poses a traffic
hazard and a threat to the safety of citizens using those
thoroughfares.
(m) There is a higher incidence of criminal
activity among the employees of commercial establishments
that permit the concurrence of the consumption of
alcoholic beverages and straddle dancing than among the
employees of other commercial establishments.
(n) In order to preserve the public peace and good
order, and to safeguard the health, safety and welfare of
the community and the citizens thereof, it is necessary
and advisable to regulate and restrict the conduct of
owners, operators, agents, employees, entertainers,
performers, patrons, and persons on the premises of
commercial establishments where the activities described
in subsections (a) and (b) take place.
(0) The business operations and activities,
described in subsections (a) and (b) are commercial
ventures, operated for the purpose of making a profit,
and as such are proper subjects for regulation by the
City in the interest of the health, safety, and welfare
of the public.
(p) "Straddle dancing ", as regulated under this
Code, does not contain any element of communication and
is expressly found by the City Council to be conduct
rather than expression.
(q) The potential dangers to the health, safety and
welfare of Cape Canaveral citizens posed by permitting an
adult dancing establishment or a massage establishment to
operate without first meeting the requirements of this
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MICROFILMED AUG 87
Code are so great as to require the inspection of said
establishments prior to permitting them to initiate
operations and thereafter.
(r) Straddle dancing in commercial establishments
poses a threat to the individual health of participants
and promotes the spread of communicable and social
diseases.
(s) Requiring employees of adult entertainment
establishments to obtain an adult entertainment permit
will help reduce incidents of criminal activities by
facilitating the identification of potential witnesses or
suspects, will provide a means of preventing minors from
working in adult entertainment establishments, and will
make it easier for health officials to control the spread
of contagious diseases in such establishments.
(t) Minors are customarily found in schools,
churches, parks and residential areas. Colleges and
Junior Colleges in Brevard County offer a variety of
programs that are designed for and are attended by minors.
Prohibiting adult entertainment establishments from
operating within close proximity of such sites will serve
to protect minors from the adverse effects of the
activities that tend to accompany adult entertainment, as
more fully described in subsection (c) above.
(u) The combination of two or more classifications
of adult entertainment, as defined in Section 722.27
below, within the same building, premises or other
structure tends to encourage such illicit, immoral or
undesirable activities as prostitution, solicitation for
prostitution, public masturbation, sodomy and unnatural
sex acts, which are harmful to the health and safety of
patrons and the general community.
Section 722.09 Title. This chapter may be known and
cited as the Cape Canaveral Adult Entertainment Code."
Section 722.11 Definitions. In this Code, unless the
context otherwise requires:
(a) 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, video cassettes, 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 Code, adult arcade is included within
the definition of adult motion picture theater.
(b) Adult Bookstore means a place that sells or
offers for sale, for any form of consideration, adult
materials the gross sale of which represents more than
ten percent (10 %) of the gross sales of the place or that
comprises more than ten percent (10 %) of the individual
items it displays on the premises as its stock in trade
in any one or more of the following categories: (1) New
Publications, (2) Used Publications, (3) New Merchandise,
(4) Used Merchandise. Adult Materials means any one or
more of the following:
(1) Books, magazines, periodicals or other
printed matter, or photographs, films, motion pictures,
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MICROFILMED AUG 87
video cassettes, slides or other visual representations
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.
(c) Adult dancing establishment means a commercial
establishment that permits, suffers or allows employees
to display or expose specified anatomical areas.
Any establishment on whose premises an employee, who
need not be the same employee, displays or exposes
specified anatomical areas on more than one day in a
thirty -day period shall be deemed an adult dancing
establishment and shall be required to obtain a license
under this Code.
(d) Adult entertainment establishment means an
adult motion picture theater, a massage establishment, an
adult bookstore, an adult motel or an adult dancing
establishment. Any commercial establishment that
displays within one hundred (100) feet of its premises a
sign or other form of advertisement capable of leading a
reasonable person to believe that said establishment
offers adult entertainment shall be deemed an adult
entertainment establishment under the appropriate
category.
(e) Adult motel means any hotel or motel,
boardinghouse, rooming house or other lodging used
predominantly for transient customers which includes the
word "adult" in any name it uses or otherwise
advertises, and actually permits, the presentation of
film material which has as its primary or dominant theme
matters depicting, illustrating or relating to specified
sexual activities for observation by patrons thereof.
For the purposes of this Code, an adult motel is included
within the definition of an adult motion picture theater.
(f) Adult motion picture booth means an enclosed
area designed or used for the viewing by one or two
persons of motion pictures, films, video cassettes,
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
Code, an adult motion picture booth is included within
the definition of an adult motion picture theater.
(g) 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 patrons
thereof, and includes any hotel or motel, boardinghouse,
rooming house or other lodging for transient customers
which advertises, and actually permits, the presentation
of such film material. For the purposes of this Code,
an adult motion picture theater includes both an adult
arcade, an adult motel and an adult motion picture booth.
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MICROFILMED AUG 87
(h) Alcoholic beverage means all beverages
containing more than one percent (1 %) of alcohol by
weight.
(i) City means the City of Cape Canaveral, Florida.
(j) City Council means the City Council of Cape
Canaveral, Florida.
(k) City Manager means the City Manager of the City
of Cape Canaveral, Florida.
(1) Commercial means operated for pecuniary gain,
which shall be presumed for any establishment which has
received an occupational license. For purposes of this
Code, operation for pecuniary gain shall not depend on
actual profit or loss.
(m) Commercial establishment means any business
location, place or business conducting or allowing to be
conducted on its premises any commercial activity.
(n) Employee means a person who works or performs
in a commercial establishment, irrespective of whether
said person is paid a salary or wage by the owner or
manager of the premises, and shall specifically include,
but not be limited to, independent contractors or
concessionaires.
(0) Establishment means a physical plant or
location or the commercial activities or operations being
conducted, or both together, as the context of this Code
may require.
(p) Licensed premises means not only buildings,
rooms and areas where adult materials regulated under
this Code, or adult activities regulated by this Code,
are sold, offered, presented or stored or where any form
of adult entertainment is presented, but also all other
areas within 500 feet of the building, 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 shall include
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 said plan.
(q) 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;
establishments licensed under Chapter 480, Florida
Statutes, provided that all employees of said
establishments who manipulate the superficial tissues of
the body of another person are licensed under Chapter
480, Florida Statutes; or establishments exempted under
Chapter 480.034, Florida Statutes (1981).
(r) Person means individuals, firms, associations,
joint ventures, partnerships, estates, trusts, business
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MICROFILMED AUG 87
trusts, syndicates, fiduciaries, corporations, and all
other groups or combinations.
(s) 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 said 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 establishment by
patrons or spectators.
(t) 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 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.
(u) 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 Code; provided, that 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, and further provided, that if a corporation
is registered with the Securities and Exchange Commission
or pursuant to Chapter 517, Florida Statutes (1981), and
its stock is for sale to the general public, it shall not
be considered to have any principal stockholders.
(v) Religious institution means a building which is
used primarily for religious worship and related
religious activities.
(w) School means an institution of learning for
minors, whether public or private, which offers
instruction in those courses of study required by Chapter
233, Florida Statutes (1981), or which is maintained
pursuant to standards set by the State Board of Education.
This definition includes day care facilities, nursery
schools, kindergartens, elementary schools, junior high
schools, senior high schools, colleges, universities,
junior colleges, and any special institutions of learning
under the jurisdiction of the State Department of
Education, but it does not include vocational or
professional institutions.
(x) Specified anatomical areas means:
(1) less than completely and opaquely covered:
(i) human genitals or pubic region;
(ii) the cleavage of the human buttocks;
(iii) any portion of the human female breast
below the top of the areola (the colored ring around the
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nipple). This definition shall include the entire lower
portion of the breast, but shall not be interpreted to
include any portion of the cleavage of the 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 discernibly turgid
state, even if completely and opaquely covered.
(y) Specified criminal act means a violation of
this Code; an offense under Chapter 800, Florida Statutes
(1983) (Lewdness, Indecent Exposure); an offense under
Section 806.01, 806.10, 806.111 or 806.13(2)(c), Florida
Statutes (1983) (Arson and Criminal Mischief); an offense
under Chapter 796, Florida Statutes (1983)
(Prostitution); an offense under Section 847.013 or
847.014, Florida Statutes (1983) (Obscenity); an offense
under Section 877.03, Florida Statutes (1983) (Breach of
the Peace); an offense under Section 893.13, Florida
Statutes (1983) (Possession or Sale of Controlled
Substances) or an offense under Section 849.09(2), 849.10
or 849.25(3), Florida Statutes (1983) (Gambling).
(z) Specified sexual activities means:
(1) human genitals in a state of sexual
stimulation, arousal or tumescence;
(2) acts of human analingus, bestiality,
buggery, cunnilingus, coprophagy, coprophilia, fellation,
flagellation, masochism, masturbation, necrophilia,
pederasty, pedophilia, sadism, sadomasochism, sapphism,
sexual intercourse, sodomy, urolagnia or zooerasty;
(3) fondling or other erotic touching of human
genitals, pubic region, buttock, anus or female breast;
and
(4) excretory functions as part of or in
connection with any of the activities set forth in (1)
through (3) above.
(aa) 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.
(bb) Violation of this Code means a violation of any
provision of this Code 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.
Section 722.13 Obscenity Not Permitted. Nothing in
this Code shall be construed to allow or permit the
possession, distribution and transportation of obscene
materials or to authorize the exposing of persons under
seventeen years of age to motion pictures, exhibitions,
shows, representations and presentations of specified
sexual activities or persons displaying or exhibiting
specified anatomical areas. These matters are preempted
to the State and are subject to State regulation, and it
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is not the intent of the City Council to legislate with
respect to preempted matters.
Section 722.15. Construction. This Code shall be
liberally construed to accomplish its purpose of
licensing, regulating and dispersing adult entertainment
and related activities. Unless otherwise indicated, all
provisions of this Code shall apply equally to all
persons regardless of sex. The words "he ", "his" and
"him" as employed in this Code shall be construed to
apply to females as well as to males.
Section 722.17 Severability. If any part, section,
subsection or other portion of this Code or any
application thereof to any person or circumstances is
declared to be void, unconstitutional or invalid for any
reason, such part, section, subsection or other portion,
or the proscribed application thereof, shall be severable
and the remaining provisions of this Code and all
applications thereof not having been declared void,
unconstitutional or invalid shall remain in full force
and effect. The City Council declares that no invalid or
proscribed provision or application was an inducement to
the enactment of this Code and that it would have enacted
this Code regardless of the invalid or proscribed
provision or application.
Part 2. Licensing Provisions
Section 722.25. Responsibility. Ultimate
responsibility for the administration of this Code is
vested in the City Manager. The City Manager is
responsible for verifying information contained in
applications for adult entertainment licenses and for
issuing all licenses. The City Manager is responsible
for the inspection of licensed premises and premises
applying for a license in order to pass upon the
construction and physical configuration of the premises
involved. The City Manager is responsible for the
inspection of licensed premises and premises applying for
a license to ascertain compliance with: (1) all fire
prevention codes, statutes or ordinances in effect in
Cape Canaveral, Florida; (2) City and Brevard County
Health codes and applicable State laws and regulations;
and (3) all zoning regulations and all other applicable
land use laws.
Section 722.26. Power of Administrative Agencies.
When a provision of this Code gives the City Manager the
authority or duty to act, the authority or duty vests in
the City Manager who is empowered to delegate said
authority or duty to any public officer, inspector or
employee, provided only that said officer, inspector or
employee shall act in accordance with the administrative
procedures of the agency or office concerned.
Section 722.27. License Required.
(a) Requirement. No adult bookstore, massage
establishment, adult motion picture theater or adult
dancing establishment shall be permitted to do business
without having first obtained a license under this Code.
For adult bookstores, massage establishments, adult
motion picture theaters or adult dancing establishments
in legally existence and operation on the effective date
of this Code, permission to operate is hereby granted
until an application for a license under this Code is
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MICROFILMED AUG 87
filed with the City Manager, not later than forty -five
(45) days, and thereafter for so long a time as is
necessary for the City Manager to issue or to deny
issuance of a license under the Code.
Provided it is not in violation of the Zoning
Code of the City of Cape Canaveral, an adult bookstore or
adult motion picture theater will be granted a
conditional right to operate within two (2) days of
filing an application for an Adult Entertainment License
for so long a time as is necessary for the City Manager
to issue or to deny issuance of the license. The
applicant's conditional right to operate shall terminate
five (5) days after the mailing of a notice of denial or
preliminary denial by the City Manager as provided in
Section 722.31(b) of this Code.
(b) Classification. Licenses referred to in
this Code shall be classified as follows:
(1) adult bookstore;
(2) adult motion picture theater, which
shall include adult arcades, places or buildings having
adult motion picture booths, places or buildings having a
hall or auditorium for the presentation of film material,
places designed to permit viewing by patrons seated in
automobiles, adult motels and places or buildings having
a combination of any or all of the foregoing:
(3) massage establishments; and
(4) adult dancing establishment.
Each application for a license shall state the
classification and location for which it is to be issued.
A license may be issued for only one location, and for
only one classification of adult entertainment, as
defined in Section 722.27(b) above, at a single location.
Section 722.28. Disqualification.
(a) Noncompliance of premises. No license
shall be issued if the City Manager, as a result of
investigations, determines that the proposed licensed
premises does not meet each and every one of the general
and special requirements for the type of license applied
for as established in Part 3 of this Code, or if the
proposed licensed premises fails to satisfy all
applicable building, zoning, health and fire codes,
ordinances, statutes and regulations, whether federal,
state or local, nor shall any license be issued on false
information given in the application for license.
(b) Issuance of license where prior license has
been suspended. No license shall be issued to:
(1) any individual, partnership or
corporation whose license under this Code is suspended;
(2) any partnership, a partner of which
has a license presently suspended under this Code;
(3) any corporation, an officer, director
or principal stockholder of which presently has its
license under this Code suspended; or
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MICROFILMED AUG 87
(4) any individual who is or was at the
time of suspension a partner in a partnership or an
officer, director or principal stockholder of a
corporation, whose license under this Code is presently
suspended.
(c) Prohibited by law or court order. No
license shall be issued when its issuance would violate a
statute, ordinance, law or when an order from a court of
law prohibits the applicant from obtaining an adult
entertainment or occupational license in Cape Canaveral,
Florida.
Section 722.29. License Application; Application Fee.
(a) Required information and documents. Any
individual, partnership or corporation desiring to engage
in the business of operating an adult bookstore, massage
establishment, adult motion picture theater or adult
dancing establishment shall file with the City Manager a
sworn application on forms supplied by the City Manager.
The application shall contain the following information
and shall be accompanied by the following documents:
(1) if the applicant is:
(i) an individual, his legal name and
all aliases used by him; or
(ii) a partnership, the full name of
the partnership and the names of all the partners,
whether general or limited, accompanied by, if in
existence, a copy of the written partnership agreement;
or
(iii) a corporation, the exact
corporate name, the date of incorporation, evidence that
the corporation is in good standing, and the names and
capacity of all the officers, directors and principal
stockholders;
(2) if the business is to be conducted
under a name other than that of the applicant, the
business name and the county of registration under
Section 865.09, Florida Statutes (1981);
(3) whether the applicant or any of the
other individuals listed pursuant to paragraph (1) have,
within the five year period immediately preceding the
date of the application, been convicted of a specified
criminal act, and, if so, the particular criminal act
involved and the place of conviction;
(4) whether the applicant or any of the
other individuals listed pursuant to paragraphs (1) or
(2) above have had their license under this Code
previously suspended or revoked or by any federal or
state court order had been prohibited from operating an
adult entertainment establishment, or have been a partner
in a partnership or an officer, director or principal
stockholder of a corporation whose license under this
Code has previously been suspended or revoked, including
the date of the suspension or revocation;
(5) the classification of the license for
which the application is being filed;
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MICROFILMED AUG 87
(6) whether the applicant holds any other
licenses in the classification for which the application
is being filed and, if so, the number and locations of
such licensed premises;
(7) the proposed location of the business;
(8) the names of the employees, if known,
or, if presently unknown or there will be no employees, a
statement to that effect; and
(9) a plan drawn to appropriate scale of
the proposed licensed premises indicating the areas to be
covered by the license, all windows, doors, entrances and
exits and the fixed structural features of the proposed
licensed premises. The term "fixed structural features"
shall include walls, stages, immovable partitions,
projection booths, admission booths, concession booths or
stands, immovable counters and similar structures that
are intended to be permanent.
(b) Application fee. Each application shall be
accompanied by a nonrefundable fee of two hundred dollars
payable to the City of Cape Canaveral at the time the
application is filed. In the event a license is
approved, said fee shall be applied to the license fee
required for the first year pursuant to Section 722.39
of this Code.
Section 722.30. Investigation.
Upon receipt of an application properly filed with the
City Manager and upon payment of the application fee, the
City Manager shall verify the information required by
Section 722.29 (1) through (4) of this Code. The City
Manager shall investigate the proposed licensed premises
for compliance with this Code and other applicable laws
and regulations relating to construction, safety, fire
protection, zoning and public health. At the conclusion
of its investigation, each administrative agency shall
endorse on the application the results and findings
thereof, recommending either approval or disapproval of
the application.
Section 722.31. Issuance; Denial; Revocation.
(a) Approval and issuance. Upon the completion
of the investigation of an application, the City Manager
shall approve or disapprove the application. If
approved, the City Manager shall issue the license upon
the payment of the appropriate license fee provided in
Sections 722.34 and 722.39.
(b) Disapproval and denial. If the City
Manager recommends disapproval, he shall indicate the
reason therefor upon the application, or in a separate
writing, and shall deny the application. If the
application is disapproved, the City Manager shall notify
the applicant of the disapproval and the reasons therefor.
Notification shall be by certified mail and shall be sent to
the address on the license application, which shall be
considered the correct address.
Notwithstanding any other provision in this
Code, the City Manager shall deny any application for a
license in which the applicant has supplied false or
untrue information.
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MICROFILMED AUG 87
The City Manager shall approve or disapprove all
applications within forty -five (45) days from the date a
completed application has been submitted. Upon the
expiration of forty -five (45) days, the applicant shall
be permitted to initiate operating the Adult
Entertainment Establishment for which a license was
sought, unless the City Manager notifies the applicant of
a preliminary denial of the application. A preliminary
denial shall specify the reasons for denial and shall be
sent to the address on the license application, which
shall be considered the correct address.
(c) Revocation. Should a license be issued as
a result of false information, misrepresentation of fact,
or mistake of fact, it shall be revoked. If the
application is revoked, the City Manager shall notify the
licensee of the revocation and the reasons therefor.
Notification shall be by certified mail and shall be sent
to the address on the license application, which shall be
considered the correct address.
(d) Appeal. Within fifteen (15) days after the
mailing of either a notice of denial or preliminary
denial of an application for a license or a notification
of the revocation of a license, the applicant or licensee
may take an appeal to the City Council as provided in
Section 722.38. If the City Council finds that the
application should be approved, it shall so order and,
upon payment of the appropriate license fee provided in
Sections 722.34 and 722.39, the City Manager shall issue
the license. If the City Council finds the license
should not have been revoked, it shall notify the City
Manager who shall reissue the license.
Section 722.32. Limitation on Licenses and Licensed
Premises. No more than one license shall be issued and
in effect for any single location within the City of Cape
Canaveral. A licensed premises may be owned by the
licensee or may be leased by the licensee from a person
not a licensee under this Code; provided that a licensee
who is a tenant or lessee may not surrender his tenancy
or lease to the owner or lessor, if by so doing, the said
owner or lessor will take possession, control and
operation of the licensed premises and the business
licensed under this Code, unless the license is
transferred as provided in Section 722.35, and further
provided, that a licensee who is the owner of the
licensed premises may not lease or otherwise give up
possession, control and operation of the licensed
premises and the business licensed under this Code to any
other individual, partnership or corporation, unless the
license is transferred as provided in Section 722.35.
Section 722.33. Display of License; Mutilation
Prohibited. All licensees licensed under this Code shall
display their licenses in conspicuous places on their
licensed premises, in a clear, transparent cover or frame.
The license shall be available for inspection at all
times by the public. No person shall mutilate, cover,
obstruct or remove a license so displayed.
Section 722.34. Term of License; Renewals.
(a) Term. All licenses issued under this Code,
except new licenses, shall be annual licenses which shall
be paid for on or before October first and shall expire
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MICROFILMED AUG 87
on September thirtieth of the following year. A licensee
beginning business after October first and before April
first may obtain a new license upon application therefor
and the payment of the appropriate license fee and such
license shall expire on the following September thirtieth.
A licensee beginning business after March thirty -first
and before October first may obtain a new license upon
application therefor and the payment of one -half of the
appropriate license fee herein required for the annual
license and such license shall expire on September
thirtieth of the same year. The provisions of this
subsection shall not affect the provisions of Section
722.35.
(b) Renewals. A licensee under this Code shall be
entitled to a renewal of his annual license from year to
year, as a matter of course, on or before October first
by presenting the license for the previous year or
satisfactory evidence of its loss or destruction to the
City Manager and by paying the appropriate license fee to
the Revenue Department of the City of Cape Canaveral. A
license that is not renewed by October first of each year
shall be considered delinquent and, in addition to the
regular license fee, subject to a delinquency penalty of
ten percent of the license fee for the month of October
and an additional penalty of five percent of the license
fee for each additional month, or fraction thereof, of
delinquency until paid; provided that the total
delinquency penalty shall not exceed twenty -five percent
of the license fee. All licenses not renewed within one
hundred twenty days of September thirtieth will be
revoked by the City Manager, unless such license is
involved in litigation.
Section 722.35. Transfer of License. When a licensee
shall have made a bona fide sale of the business which he
is licensed under this Code to conduct, he may obtain a
transfer of the license issued under this Code to the
purchaser of said business, but only if, before the
transfer, the application of the purchaser shall be
approved by the City Manager in accordance with the same
procedure provided in Sections 722.29, 722.30 and 722.31
in the case of issuance of new licenses. Before the
issuance of any transfer of license, the transferee shall
pay a transfer fee of ten percent of the appropriate
annual license fee. Licenses issued under this Code
shall not be transferable in any other way than provided
in this section.
Section 722.36. Licensee Moving to New Location;
Changing Name of Business.
(a) New location. A licensee may move his licensed
premises to a new location and operate at the new
location upon approval by the City Manager of the
licensee's application for change of location. The
licensee shall submit to the City Manager an application
for a change of location, accompanied by an application
fee of two hundred dollars at the time the application is
filed. The application will contain, or have attached to
it, a plan drawn to appropriate scale of the licensed
premises at the new location indicating the area to be
included in the new licensed premises, all windows,
doors, entrances and exits and the fixed structural
features of the new licensed premises. The term "fixed
structural features" shall have the same meaning as in
Section 722.29(a)(9). If more than one license has been
ORDINANCE NO. 18 -86
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MICROFILMED AUG 87
issued to the licensed premises at the old location, the
licensee shall state in his application for a change of
location which of said licenses are being moved to the
proposed new location. Upon approval of the application,
there shall be issued to the licensee a license for the
new location without the payment of any further fee.
(b) Change of name. No licensee may change the
name of the business located at his licensed premises
without first giving the City Manager thirty days' notice
in writing of such change and without first making
payment to the City Finance Department of a $3.00
change -of -name fee.
Section 722.37. Suspension of License.
(a) Violations of health, building, zoning or fire
provisions. In the event a licensed premises is found in
violation of a health, building, zoning or fire provision
of this Code, the appropriate agency shall notify the
licensee of said violation(s) according to the standard
procedures of the agency and shall follow its normal
agency procedures for correcting said violation(s) and
shall grant the licensee the right to exhaust applicable
administrative remedies. Should the licensee fail either
to correct the violation or to obtain an administrative
reversal of the agency finding, the appropriate agency
shall notify the City Manager, who shall forthwith
initiate procedures for suspension of license.
(b) Other violations. In the event a jury or other
trier of fact in a court of law finds that a licensee has
violated Section 722.60 of this Code, whether or not an
adjudication of guilt has been entered, the City Manager
shall forthwith initiate procedures for suspension of
license.
(c) Fine or Suspension of license.
(1) Procedure. Upon receiving notice that a
licensee has violated a provision of this Code, as
provided in subsections (a) and (b) above, the City
Manager shall suspend the license issued for the premises
where said violation occurred, unless otherwise provided
below, and shall notify the licensee(s) of his action.
Notification shall be by certified mail and shall be sent
to the address on the license application, which shall be
considered the correct address.
(2) Periods of suspension. A single violation
by a licensee of this Code shall result in suspension of
the Adult Entertainment License for thirty (30) days.
Upon a second violation of this Code within a period of
two years from the date of a prior violation of this
Code, but not including any time during which the license
was suspended, the license shall be suspended for ninety
(90) days. Upon a third violation of this Code within a
period of two years from the first of three violations,
but not including any time during which the license was
suspended, the license shall be suspended for one hundred
and eighty (180) days. All periods of suspension shall
begin on the fifteenth day from the date the City Manager
mails a notice of suspension to the licensee or on the
date the licensee delivers his license to the City
Manager, whichever comes first.
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MICROFILMED AUG 87
Employers of adult entertainment establishments
are responsible for the acts of their employees. Two
violations of this Code within a thirty (30) day period
by the same employee, as determined by a jury or other
trier of fact, shall result in the suspension for seven
(7) days of the Adult Entertainment License of the
establishment where said employee(s) works or performs.
Upon a third violation of this Code by the same employee
within a period of ninety (90) days from the date of a
prior violation of this Code, but not including any time
during which the license was suspended, the license shall
be suspended for four (4) weeks. Upon a fourth violation
of this Code by the same employee within a period of one
hundred eighty (180) days from the first of three
violations, but not including any time during which the
license was suspended, the license shall be suspended for
one hundred eighty (180) days. Upon a fifth violation of
this Code by the same employee within a period of one (1)
year from the first of five violations, but not including
any time during which the license was suspended, the
license shall be suspended for one (1) year.
All periods of suspension shall begin on the
fifteenth day from the date the City Manager mails a
notice of suspension to the licensee or on the date the
licensee delivers his license to the City Manager,
whichever comes first.
(3) Surrender of license required. If a
licensee, after having been mailed notice of the
suspension of his license in the manner herein provided,
fails to surrender his license to the City Manager within
fifteen (15) days or fails otherwise to account for the
license to the satisfaction of the City Manager, the
period of suspension of the license shall be extended
until and shall not expire until a period has elapsed
after the date of surrender of the license, or after the
date of expiration of the license, whichever comes first,
which is identical in length with the original period of
suspension.
(4) When a license is suspended for a violation
of a health, building, zoning or fire provision of this
Code, as described in subsection (a) above, the license
shall not be reissued until said violation is corrected.
Section 722.38. Appeals. Appeals alleging error in
the denial, suspension or revocation of a license or
permit under this code shall be by petition for a formal
hearing before the City Council.
A notice of intent to appeal shall be filed with the
City Clerk within fifteen (15) days of the mailing of a
notice of denial, suspension or revocation of a license
or permit. Thereafter, and upon payment of a fee of $50
to cover administrative costs, a hearing will be
scheduled within thirty (30) days. The City Clerk shall
give the petitioning party at least ten (10) days written
notice of the time and place for the hearing.
Section 722.39. License Fee.
(a) Levy of fees. There are hereby levied the
following annual license fees under this Code, which fees
shall be paid to the City of Cape Canaveral:
(1) adult bookstore - four hundred dollars;
ORDINANCE NO. 18 -86
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dollars;
MICROFILMED AUG 87
(2) massage establishment - two hundred
(3) adult motion picture theaters, as follows:
(i) having only adult motion picture booths -
thirty -five dollars for each booth; or
(ii) having only a hall or auditorium - three
dollars and fifty cents for each seat or place; or
(iii) designed to permit viewing by patrons
seated in automobiles - three dollars and fifty cents for
each speaker or parking space; or
(iv) having a combination of any of the
foregoing - the license fee applicable to each under
sub - paragraphs (i), (ii), and (iii);
(v) adult motel - four hundred dollars.
(4) adult dancing establishment - four hundred
dollars.
(b) License fees as regulatory fees. The license
fees collected under this Code are fees paid for the
purpose of examination and inspection of licensed
premises under this Code and the administration thereof
and are declared to be regulatory fees in addition to and
not in lieu of the occupational license taxes imposed by
other sections of the Cape Canaveral City Code. The
payment of a license fee under this Code shall not
relieve any licensee or other person of liability for and
the responsibility of paying an occupational license tax
where the same is required by other sections of the Cape
Canaveral City Code, and for doing such acts and
providing such information as may be required by said
sections.
Section 722.40. Records and Reports; Consent by
Licensee. Each licensee shall keep such records and make
such reports as may be required by the City Manager to
implement this Code and carry out its purpose. By
applying for a license under this Code, an individual,
partnership or corporation shall be deemed to have
consented to the provisions of this Code and to the
exercise by the City Manager and other interested
agencies of the powers given by Section 722.26 in the
manner therein specified.
Section 722.41. More Than One Classification of Adult
Entertainment at Single Location Prohibited. No
building, premises, structure, or other facility that
contains any classification of adult entertainment as
defined in 722.27(b) above, shall permit or contain any
other classification of adult entertainment.
Part 3. Requirements for Licensed Premises
Section 722.42. General Requirements. In addition to
the special requirements contained in Sections 722.45,
722.46, 722.47 and 722.48, each licensed premises shall:
(a) conform to all applicable building statutes,
codes or ordinances, whether federal, state or local,
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MICROFILMED AUG 87
specifically including the Zoning Ordinance of the City
of Cape Canaveral, Florida.
(b) conform to all applicable fire statutes, codes
or ordinances, whether federal, state or local.
(c) conform to all applicable health statutes,
codes or ordinances, whether federal, state or local.
(d) have each and every glass area that faces a
public thoroughfare or through which casual passersby can
see the materials or activity inside the licensed
premises covered over by black paint or other opaque
covering; provided, that this requirement shall not apply
if the uncovered glass area exposes to public view only a
lobby or anteroom containing no material or activity
other than a reception counter or desk and chairs or
couches for customers to use while waiting;
(e) conform to the requirements of Chapter 381,
Florida Statutes (1981), and the rules and regulations of
the Florida Department of Health and Rehabilitative
Services made pursuant thereto. Each licensed premises
shall be deemed to be a "place serving the public" for
the purpose of sanitary facilities; provided, that when
more than one license is issued for a single location,
they shall collectively be considered as one licensed
premises if customers may circulate freely throughout the
entire area of the licensed premises;
(f) Sanitary facilities requirements.
(1) Water supply - the water supply must be
adequate, of safe, sanitary quality and from an approved
source in accordance with provisions of Chapter 17 -22 of
the Florida Administrative Code.
(2) Plumbing - plumbing shall be sized,
installed and maintained in accordance with provisions of
Chapter 10D -9 of the Florida Administrative Code and the
Brevard County Plumbing Code.
(3) Restrooms - all toilet facilities must be
of readily cleanable design and be kept clean, in good
repair, and free from objectionable odors. Restrooms
must be vented to the outside of any building, be
equipped with mechanical exhaust systems and be well
lighted. Floors shall be of impervious easily cleanable
materials. Walls shall be smooth, non - absorbent and
easily cleanable.
(g) Distance and Dispersal Requirements. Adult
entertainment establishments are prohibited within the
area circumscribed by a circle which has a radius
consisting of the following distances from the specified
uses or zones:
(a) within one thousand (1000') feet of any
residential zone (R -1, R -2, R2);
(b) one thousand (1000') feet of any public or
private school;
(c) one thousand (1000') feet of any church or
other religious facility or institution;
ORDINANCE NO. 18 -86
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MICROFILMED AUG 87
(d) one thousand (1000') feet of any public park;
(e) one thousand (1000') feet of any other adult
entertainment establishment.
(1) The distances provided for herein shall be
measured by following a straight line, without regard to
intervening buildings from the nearest point of the
property parcel upon which the proposed use is to be
located, to the nearest point of the parcel of property
or the land use district boundary line from which the
proposed land use is to be separated.
(2) The distance and dispersal requirements of
this subsection shall not apply to adult entertainment
establishments existing and operating on the date of this
ordinance but said establishments shall be deemed
non - conforming. If any such non - conforming adult
entertainment establishment voluntarily ceases to do
business for a period of 15 consecutive days then it
shall be deemed abandoned and thereafter shall not reopen
except in conformance with these distance and dispersal
standards.
Section 722.43. Advertising. No adult bookstore,
massage establishment, adult motion picture theater, or
adult dancing establishment shall:
(a) display a sign advertising the presentation of
any activity prohibited by a Florida Statute, an
ordinance of Brevard County, Florida, or any applicable
municipal ordinance;
(b) display a sign capable of leading a reasonable
person to believe that the establishment engages in an
activity prohibited by a Florida Statute, an ordinance of
Brevard County, Florida, or any applicable City
ordinance;
(c) erect, install, maintain, alter or operate any
sign in violation of any applicable State, County or City
law;
(d) engage in, encourage, or permit, any form of
personal advertising for the commercial benefit of the
establishment or for the commercial benefit of any
individual who displays or exhibits specified anatomical
areas within the establishment.
Section 722.44. Prohibited Activities.
(a) No employee as defined in this Code shall
engage in specified sexual activities on the licensed
premises in the presence of patrons or spectators or for
any form of consideration. Notwithstanding any
provisions of this Code to the contrary, it shall not be
unlawful for any person or employee of a commercial
establishment, or adult entertainment establishment, to
expose specified anatomical areas in connection with the
use of approved sanitary facilities commonly known as
restrooms. However, specified anatomical areas shall be
exposed or displayed only in connection with excretory
functions.
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MICROFILMED AUG 87
(b) It shall be unlawful for any employee, customer
or patron of a licensed premises to participate in a
straddle dance, as defined in Section 721.11(aa) above,
on the licensed premises.
(c) No employee, while on the licensed premises or
within the scope of his employment, shall contract or
agree to perform, for any form of consideration, a
straddle dance and actually perform said straddle dance,
regardless of where such performance takes place.
(d) It shall be unlawful for a customer or patron
of a licensed premises to touch with the hands, an
employee's breast, pubic area or genitals, whether said
employee is clothed or not.
(e) It shall be unlawful for an employee of a
licensed premises to touch with the hands a customer or
patron's breast, pubic area or genitals.
Section 722.45. Adult Bookstore. In addition to the
general requirements contained in Sections 722.42, 722.43
and 722.44, an adult bookstore shall observe the
following special requirements:
(a) All materials, devices and novelties shall be
so displayed that they cannot be seen by anyone other
than customers who have entered the licensed premises.
(b) If recordings are offered for sale and
customers may listen to them while on the licensed
premises, soundproof booths or rooms shall be available
for use by customers who desire to listen, and each booth
or room shall have:
(1) one clear window, facing the major portion
of the licensed premises, covering not less than
one - fourth of the wall area into which the window is set,
which window shall not be covered or obscured in any
manner while the booth or room is in use;
(2) sufficient chairs or couches to accommodate
the expected number of persons who will occupy the booth
or room at one time;
(3) the number of persons who may occupy the
booth or room at one time clearly stated on or near the
door to the booth or room, and only that number of
persons shall be permitted inside the booth or room at
one time; and
(4) the door or doors opening into the booth or
room incapable of being locked or otherwise fastened so
that it or they will freely open from either side;
(5) all areas where a patron or customer is to
be positioned visible from a continuous main aisle and
not obscured by any curtain, door, wall or other
enclosure.
(6) all booths shall be illuminated by at least
one 25 watt light bulb and there shall be no openings
between the walls separating the booths.
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MICROFILMED AUG 87
Section 722.46. Massage Establishments. In addition
to the general requirements contained in Sections 722.42,
722.43 and 722.44, a massage establishment shall observe
the following special requirements:
(a) Any massage establishment seeking a license
under this Code shall present to the City Manager a state
license issued pursuant to Chapter 480, Florida
Statutes (1981), at the time a license under this Code is
to be isssued. No license under this Code shall be
issued in the event the applicant fails to present said
state license.
(b) Dressing rooms shall be proportioned to the
maximum number of persons who are expected to be in them
at one time, excluding attendants and assistants, and
separate dressing rooms shall be provided for men and
women. Floors shall be of a smooth, impervious material
with a nonslip surface and shall be covered at the wall
junction for thorough cleaning. Partition walls shall
terminate at least six inches above the floor or be
placed on continuous raised masonry or concrete bases at
least four inches high.
(c) One shower shall be provided for each forty men
or women, or fraction thereof, based upon the maximum
number of persons who are expected to be using shower
facilities at one time, and separate shower facilities
shall be provided for men and women. Floors and
partition walls shall be constructed as required in
subsection (b) for dressing rooms, and duckboards or
wooden gratings may be used on shower floor, if duplicate
sets are provided and rotated in use.
(d) One locker shall be provided for each patron
who is expected to be on the licensed premises at one
time, which shall be of sufficient size to hold clothing
and other articles of wearing apparel. Each locker shall
be capable of being locked by the patron, with no one
else having the key so long as the patron is using the
locker, or the locker shall be under the constant
attention and supervision of an attendant.
(e) Massages of a person by another person who
displays or exhibits specified anatomical areas are
prohibited;
(f) No person shall massage the genitals or pubic
area of another person.
Section 722.47. Adult Motion Picture Theaters. In
addition to the general requirements contained in
Sections 722.42, 722.43 and 722.44, an adult motion
picture theater shall observe the following special
requirements:
(a) Each adult motion picture booth shall be open
or have a rectangular shaped entranceway not less than
two feet wide nor less than six feet high.
(b) Each adult motion picture booth shall have
sufficient seats or couches to accommodate the maximum
number of persons expected to use the booth. The maximum
number of persons who may occupy a booth shall be stated
on or near the entranceway, and only that number shall be
permitted to be in a booth at one time.
ORDINANCE NO. 18 -86
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MICROFILMED ,AUG 87
(c) All areas where a patron or customer is to be
positioned must be visible from a continuous main aisle
and must not be obscured by any curtain, door, wall or
other enclosure.
(d) In addition to the sanitary facilities required
by Section 722.42, there shall be provided within or
adjacent to the common corridor, passageway or area in
adult motion picture theaters having adult motion picture
booths, adequate lavatories equipped with running water,
hand - cleansing soap or detergent and sanitary towels or
hand - drying devices; common towels are prohibited.
(e) An adult motion picture theater designed to
permit viewing by patrons seated in automobiles shall
have the motion picture screen so situated, or the
perimeter of the licensed premises so screened, that the
projected film material may not be seen from any public
right -of -way or residential property.
Section 722.48. Adult Dancing Establishment. In
addition to the general requirements contained in
Sections 722.42, 722.43 and 722.44, an adult dancing
establishment shall observe the following requirements:
(a) Employees are prohibited from simulating sexual
activity with any patron, spectator, employee, or other
person on the premises of an adult dancing establishment.
(b) No employee in an adult dancing establishment
shall engage in the display or exhibition of specified
anatomical areas, except while the person is positioned
in an entertainment area consisting of a platform or
other structure raised eighteen inches above the
immediately surrounding area and encompassing an area of
at least one hundred square feet, and while the person is
positioned at least three feet from a patron or
spectator, except that any establishment regulated by
Section 722.62 herein shall require said person to be
positioned in an entertainment area consisting of a
platform or other structure raised eighteen inches above
the immediately surrounding area and encompassing an area
of at least one hundred square feet, or while the person
is positioned at least three feet from the patron or
spectator.
(c) No spectator or patron shall be present in the
entertainment area, defined in subsection (b), during the
course of any performance involving the display or
exhibition of specified anatomical areas.
(d) No person maintaining, owning or operating an
adult dancing establishment shall suffer or permit the
construction, maintenance, or use of areas partitioned or
screened from public view that are designed to be
occupied or are commonly occupied alone or together by
any person or persons on the premises of such
establishment for private performances involving the
display or exhibition of specified anatomical areas.
(e) No person on the premises of an adult dancing
establishment shall be permitted to use or to be present
in areas partitioned or screened from public view that
are designed to be occupied together or alone by any
person or persons on the premises of such establishment
for the display or exhibition of specified anatomical
areas.
ORDINANCE NO. 18 -86
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MICROFILMED AUG 87
(f) Nothing in this Code pertaining to adult
dancing establishments shall be construed to permit or
authorize any acts or activities therein that are
prohibited by State law.
Part 4. Special Provisions
Section 722.55. Operation of Unlicensed Premises
Unlawful. It shall be unlawful for any person to operate
an adult bookstore, adult motion picture theater, massage
establishment or adult dancing establishment unless such
business shall have a currently valid license therefor
under this Code, which license shall not be under
suspension or permanently or conditionally revoked.
Section 722.56. License Required of Commercial
Establishments Advertising Adult Entertainment. Any
commercial establishment that displays within one hundred
(100) feet of its premises a sign or other form of
advertisement capable of leading a reasonable person to
believe that said establishment engages in an activity
required by this Code to be licensed shall obtain an
adult entertainment license for said activity.
Section 722.57. Proscriptions Where Alcoholic
Beverages Are Sold, Dispensed or Permitted and Where Food
or Beverages are Sold or Dispensed. The human genitals
or pubic region, the areola of the female breast, and the
cleavage of the human buttocks shall not be displayed or
exposed on a licensed premises where alcoholic beverages
are sold, dispensed or permitted. It shall be unlawful
for any employee to exhibit specified anatomical areas
while selling or dispensing any form of food or beverage.
Section 722.58. Admission of Minors Unlawful. It
shall be unlawful for a licensee to admit or to permit
the admission of minors within a licensed premises. This
Adult Entertainment Code shall not apply to conduct the
regulation of which has been preempted to the State under
Chapter 847, Florida Statutes (1981).
Section 722.59. Sale to Minors Unlawful. It shall be
unlawful for any person to sell, barter, or give, or to
offer to sell, barter or give, to any minor any service,
material, device or thing sold or offered for sale by an
adult bookstore, adult motion picture theater, massage
establishment or adult dancing establishment.
Section 722.60. Permitting Violations of Code or
Illegal Acts Prohibited. No licensee, owner or employee
shall permit, suffer or allow violations of this Code or
illegal acts to take place on the licensed premises, if
the licensee or employee knows or has reason to know that
such violations or illegal acts are taking place.
Section 722.61. Permits for Employees in Licensed
Premises.
(a) Adult entertainment permit required. Unless
specifically excluded below, it shall be unlawful for any
person to obtain employment in an establishment licensed
or permitted to operate under the Adult Entertainment
Code, for any form of consideration, or to exhibit or
display specified anatomical areas in an establishment
licensed or permitted to operate under the Adult
ORDINANCE NO. 18 -86
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MICROFILMED AUG 87
Entertainment Code unless and until such person shall
have first obtained an Adult Entertainment Permit or
temporary permit from the City Manager. This Section
shall not apply to employees engaged exclusively in
performing janitorial or maintenance services.
(b) Qualifications. Employees of a licensee . on a
licensed premises shall not be less than eighteen years
of age.
(c) Application for and issuance of adult
entertainment permit.
(1) Permission is hereby granted for an
employee working at an adult entertainment establishment
on the effective date of this Code, to continue working
until an application for a permit under this Code is
filed with the City Manager, not later than forty -five
(45) days for adult bookstores, massage establishments,
adult motion picture theaters, and seventy -five (75) days
after said date for adult dancing establishments, and for
a period thereafter not to exceed one (1) week.
(2) All present and prospective employees of an
adult entertainment establishment shall file an
application for an Adult Entertainment Permit with the
City Manager.
(3) All applications shall be accompanied by a
non - refundable payment of a $16.00 fee.
(4) The City Manager shall submit the names of
all applicants for an Adult Entertainment Permit who
intend to work in an adult dancing establishment or a
massage establishment to the Brevard County Health
Department. If, in the thirty (30) days immediately
preceding submission of an application, such applicant
was a known carrier of any notifiable communicable
disease, as defined in Chapter 10D -3, Florida
Administrative Code, the Brevard County Health Department
shall notify the City Manager and no permit shall be
issued unless and until the applicant presents a
statement from a licensed physician certifying that the
applicant is free of all notifiable communicable
diseases.
(5) At the time an applicant applies for a
permit and completes all requirements for the issuance of
a permit, he shall be issued a temporary permit valid for
seven (7) days. No later than seven (7) days from the
filing of an application and, if applicable, upon
presentation of the statement of a licensed physician as
required in subsection (4) above, the City Manager shall
issue a permit.
(6) It shall be the duty of the City Manager to
issue the applicant a written permit which shall be
signed by the City Manager, and shall bear the name, all
aliases, address, sex, age, signature, and photograph of
the applicant. The City Manager shall procure the
fingerprints and a photograph of the applicant and the
name(s) of all entertainment establishments where the
applicant is to work or perform and shall keep the same
on permanent file in its office. The fingerprints, names
of establishment(s) and photograph of the applicant shall
be furnished by the applicant at the time of filing his
ORDINANCE NO. 18 -86
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MICROFILMED AUG 87
application. The City Manager may request an applicant
to provide such additional information as is necessary to
effect the purposes of this Code. Upon delivery of the
permit to the applicant, the applicant may begin working
on the licensed premises as a permanent employee.
There shall be submitted with each application
for a permit proof of the applicant's age. Such proof
may be provided by production of the applicant's driver's
license, passport, or a certified copy of his birth
certificate. If the applicant is unable to furnish any
of such documents, a certificate from the public school
authorities as to the age of the applicant upon entering
school as required by Section 232.03, Florida Statutes
(1983), or the school authorities of the state where
applicant enrolled in school, shall be submitted. Upon
inability of applicant to establish a birth date as above
provided, then the same may be established in the order
of preference as provided by s. 232.03, Florida Statutes
(1983). However, uncertified copies of such documents
shall not be accepted.
Any applicant who does not possess a driver's
license, passport, or certified copy of his birth
certificate may obtain a temporary permit upon completion
of all other requirements for an application and
submission of a written request to the appropriate
authority in his state of birth that certified evidence
of his date of birth be provided to the City Manager.
(7) No permit shall be issued when its
issuance would violate a statute, ordinance, law or when
an order from a court of law prohibits the applicant from
obtaining an adult entertainment permit in Cape
Canaveral, Florida.
(8) Any adult entertainment establishment
holding a valid adult entertainment license issued
pursuant to this Code, shall be permitted to provide its
employees with current permit application forms approved
by the City Manager and to take the photograph of the
applicant in a manner and with equipment approved by the
City Manager on the express condition that the
establishment (1) require the employee to complete the
application form and be photographed within one working
day of the time said employee begins to work or perform
in said establishment; (2) mail a notice in writing to
the City Manager within one working day that said
employee has begun to work or perform at said
establishment; (3) make the employee available for
fingerprinting at a time and location to be determined by
an agent appointed by the City Manager, at which time and
place said employee shall present to the agent the
employee's completed application form and photograph; (4)
on the first Monday of every month provide the City
Manager with a current listing of all employees and their
positions; (5) in exchange for acceptance of the benefits
provided by this sub - section, waive any and all rights to
challenge the permit requirements of this Code;(6)
reimburse the City for reasonable additional expenses
incurred pursuant to this subsection; and (7) be liable
for damages to the City of $250.00 per day per violation
if any employee who performs in said establishment is not
entitled to a permit.
ORDINANCE NO. 18 -86
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MICROFILMED AUG 87
(d) Revocation. Should a permit be issued as a
result of false information, misrepresentations of fact
or mistake of fact, it shall be revoked.
(e) Expiration and Renewal. A permit under this
Code shall expire two (2) years from the date of issuance.
A permittee under this Code shall be entitled to a
renewal of his permit as a matter of course, except when
said permit has been suspended or revoked, upon
presentation of his previous permit or presentation of an
affidavit as to its loss or destruction to the City
Manager and payment of a $16.00 fee made payable to the
City of Cape Canaveral.
(f) Possession of Permit required.
(1) It shall be unlawful for an employee, as
defined in this Code, to work, perform or to exhibit or
display specified anatomical areas in an adult
entertainment establishment without an Adult
Entertainment Permit in his immediate possession at all
times.
(2) No person charged with violating this
section shall be convicted if he produces to the City
Manager within seventy -two (72) hours of detention or in
court a permit theretofore issued.
(3) Upon receipt of a properly authenticated
notification from the City Manager verifying issuance of
a valid permit, the Clerk of the Court is authorized to
dismiss such cases at any time prior to the defendant's
appearance in court.
(g) Violations. Any person who violates the
provisions of this section, or otherwise fails to secure
a permit as required by this section, shall be prosecuted
and punished in accordance with general law.
(h) Suspension of Permit.
(1) Procedure. Upon receiving notice that a
jury or other trier of fact in a court of law has found
that a permittee violated any provision of this Code,
whether or not an adjudication of guilt has been entered,
the City Manager shall suspend the permit and shall
notify the permittee of his action. Notification shall
be by certified mail and shall be sent to the address on
the permit application, which shall be considered the
correct address.
(2) Periods of Suspension. A single violation
of this Code shall result in the suspension of the Adult
Entertainment Permit for thirty (30) days. Upon a second
violation of this Code within a period of two years from
the date of a prior violation of this Code, but not
including any time during which the permit was suspended,
the permit shall be suspended for ninety (90) days. Upon
a third violation of this Code within a period of two
years from the first of three violations, but not
including any time during which the permit was suspended,
the permit shall be suspended for one hundred eighty
(180) days. All periods of suspension shall begin on the
fifteenth day from the date the City Manager mails a
notice of suspension to the permittee or on the date the
permittee delivers his permit to the City Manager,
whichever comes first.
ORDINANCE NO. 18 -86
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MICROFILMED AUG 87
(3) Surrender of Permit required. If a
permittee, after having been mailed notice of the
suspension of his permit in the manner herein provided,
fails to surrender his permit to the City Manager within
fifteen (15) days, the period of suspension of the permit
shall be extended until and shall not expire until a
period has elapsed after the date of surrender of the
permit, or after the date of expiration of the permit,
whichever comes first, which is identical in length with
the original period of suspension.
(i) Appeal. If an application for a permit is
denied or if a permit is suspended or revoked, the
procedures specified in Section 722.38 shall be available
to the applicant or permittee, in the manner therein
specified. If the applicant or permittee does not appeal
the denial, suspension or revocation of a permit, the
applicant or permittee shall be deemed to have failed to
have exhausted his administrative remedies.
(j) Replacement of Lost Permits. Replacements for
lost permits shall be obtained by completing an
application as required in Section 722.61(c) above. All
applications for replacement permits shall be accompanied
by a ten dollar ($10.00) fee.
(k) Change of Address, Name or Place of Employment.
Whenever any person, after applying for or receiving an
adult entertainment permit, shall move from the
residential address named in such application, or in the
permit issued to him, or when the name of the permittee
is changed by marriage or otherwise, or when the
permittee takes on employment or begins to perform at an
adult entertainment establishment not indicated in his
application, such person shall within ten (10) days
thereafter notify the City Manager in writing of his old
and new address, or of such former and new names.
Section 722.62. Immunity from Prosecution. All
officers and employees of the City who are acting within
the scope of their authority and duties under this Code,
shall be immune from prosecution, civil and criminal, for
trespass upon real property.
Part 5. Alcoholic Beverages
Section 722.65. 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 Code, where said employee knows or should have known
that alcoholic beverages are on the premises, to exhibit
or display the human genital or pubic region, the
cleavage of the human buttocks or the areola of the human
female breast.
Part 6. Commercial Establishments
Section 722.71. Straddle Dancing Unlawful in Any
Commercial Establishment. It shall be unlawful for any
employee, or customer or patron of any commercial
establishment in the City of Cape Canaveral, Florida,
whether or not the establishment is licensed under this
Code, to perform or participate in a "straddle dance ", as
defined by Section 722.11(aa) of this Code, while on the
premises of the commercial establishment. It shall also
ORDINANCE NO. 18 -86
PAGE 28 OP 31
MICROFILMED AUG 87
be unlawful for any employee, while on the premises or
within the scope of his employment, to contract or agree
to perform, for any consideration, a straddle dance and
to actually perform said straddle dance, regardless of
where such performance takes place.
Section 722.72. Sufferance of Straddle Dancing in Any
Commercial Establishment Prohibited. Employers of
commercial establishments within the City of Cape
Canaveral are responsible for the acts of their
employees.
It shall be unlawful for any person maintaining or
operating any commercial establishment, regardless of
whether it is licensed under this Code, to knowingly, or
with reason to know, permit, suffer or allow any employee
on the premises to perform or participate in a straddle
dance, as defined by Section 722.11(aa) of this Code.
Section 722.73. Commercial Establishment - Prohibi-
tion Against Certain Activities. It shall be unlawful
for any employee or customer or patron of any commercial
establishment in the City of Cape Canaveral, whether or
not the establishment is licensed under this code, and
while on the premises, to exhibit or display specified
anatomical areas.
Part 7. Violations
Section 722.82. Presumptions. The following
presumptions shall apply in actions brought for
violations of this ordinance:
(a) Any person who owns, operates, maintains or
enters a commercial establishment, which advertises
within 100 feet of the premises of the commercial
establishment to the general public that said
establishment provides, allows or permits the exhibition
or display of specified anatomical areas, is presumed to
be aware that the exhibition or display of specified
anatomical areas is taking place in the establishment.
(b) Any establishment which has received an
occupational license to operate commercially is presumed
to be a commercial establishment.
(c), An employee, customer or patron of a commercial
establishment who engages in straddle dancing, as defined
by Section 722.11(aa) of this Code may be prosecuted
under Sections 722.44(b) or 722.85 of this Code,
whichever is more appropriate, but shall be prosecuted
under only one of those provisions for each offense.
(d) An employee, customer or patron of a commercial
establishment who contracts to perform a straddle dance
and actually performs said straddle dance may be
prosecuted under Section 722.44(c) or 722.85 of this
Code, whichever is more appropriate, but shall be
prosecuted under only one of those provisions for each
offense.
(e) An employer of a commercial establishment who
permits, suffers or allows any employee on the premises
to perform or participate in a straddle dance, as defined
ORDINANCE NO. 18 -86
PAGE 29 OF 31
MICROFILMED AUG 87
by Section 722.11(aa) of this Code may be prosecuted
under Sections 722.60 or 722.85, whichever is (are) more
appropriate, but shall be prosecuted under only one of
those provisions for each offense.
Section 722.83. Exception - Restroom Use.
Notwithstanding any provisions of this Code to the
contrary, it shall not be unlawful for any person or
employee of a commercial establishment, or adult
entertainment establishment, to expose specified
anatomical areas in connection with the use of approved
sanitary facilities commonly known as restrooms.
However, specified anatomical areas shall be exposed or
displayed only in connection with excretory functions.
Section 722.84. Proof.
(a) In all actions, civil or criminal, for
violation of this ordinance, testimonial evidence that a
beverage was an alcoholic beverage, beer or wine may be
offered by any person who, by experience in the past in
handling or using alcoholic beverages, beer or wine, or
who by taste, smell or drinking of such liquids has
knowledge of the presence of the alcoholic content
thereof or the intoxicating effect thereof.
(b) The presence of alcoholic content of any
beverage, beer or wine may be shown by hydrometer or
gravity test made in or away from the presence of the
fact finder by any person who has knowledge of the use of
said instrument, but the production of such evidence is
optional.
Section 722.85. Penalties. Any person who violates
any section of this Code shall be prosecuted and punished
in accordance with general law and additionally shall be
subject to suspension of his license or permit as
provided in this Code.
Section 722.86. Powers of City Council. The City
Council may bring suit to restrain, enjoin or otherwise
prevent the violation of this Code in the Circuit Court
of Brevard County, Florida.
Part 8. Miscellaneous Provisions
Section 722.89. Public Nudity. It shall be unlawful
for any person in any public place or in any commercial
establishment, unless expressly permitted within the
corporate limits of the City to be found in a state of
nudity or to expose or exhibit his sexual organs. This
section, however, shall not be construed to prohibit the
exposure of sexual organs in any place provided or set
aside for that purpose.
SECTION 2. If any provision of this ordinance or the
application thereof to any person or circumstance is held invalid,
the invalidity shall not affect other provisions or applications of
the ordinance which can be given effect without the invalid
provision or application and to this end the provisions of this
ordinance are declared severable.
ORDINANCE NO. 18 -86
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MICROFILMED AUG 87
SECTION 3. All portions of the Code in conflict herewith are
hereby repealed.
SECTION 4. This Ordinance shall become effective immediately
upon its adoption.
ADOPTED BY the City Council of the City of Cape Canaveral,
Florida, this 19th, day of
ATTEST:
August
, 1986.
First Reading,
Posted.'
Advertised:
Second Reading:
NAME YES NO
FISCHETTI X
KIDD
LEE X
MARCHETTI X
NICHOLAS X
August 5, 1986
August 6, 1986
August 9, 1986
August 19, 1986
ORDINANCE NO. 18 -86
PAGE 31 OF 31