(A) Purpose. It is the purpose of this chapter to regulate sexually-oriented businesses and adult entertainment establishments in order to promote and protect the public health, safety, good order, morals and general welfare of the citizens of the city, to establish reasonable and uniform regulations of adult entertainment establishments and sexually-oriented businesses within the city. The provisions of this chapter have neither the purpose nor effect of imposing an unreasonable limitation or unreasonable restriction on the content of any lawful communicative materials including sexually-oriented materials. Similarly, it is neither the intent nor effect of this chapter to unreasonably restrict or deny access by adults to sexually-oriented materials protected by the First Amendment or to deny access by the distributors and exhibitors of sexually-oriented entertainment protected by the First Amendment to their intended market. Neither is it the intent nor effect of this subchapter to condone or legitimize the distribution of obscene or otherwise illegal material.
(B) Findings. Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the Council, and on findings incorporated in Supreme Court cases presented for consideration by the City Council in the record supporting this chapter, including but not limited to City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986); Young v. American Mini Theaters, 427 U.S. 50 (1976); Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991), on materials made of record relating to the St. Johns County Public Nudity Ordinance, and on the substance of and findings made or incorporated in studies accomplished in other communities and ordinances enacted in other communities, including, but not limited to, New York, New York; City of Houston Ordinance Number 97-75; Senate Bill Number 232, as passed by the Kansas State Legislature; Phoenix, Arizona; Tucson, Arizona; St. Paul, Minnesota; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Austin, Texas; Macon-Bibb County, Georgia; Palm Beach County, Florida; Manatee County, Florida; the findings of the Attorney General of the State of Minnesota; the report of United States Attorney General's Commission on Pornography (1986); Jacksonville, Florida; Detroit, Michigan; 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, Indianapolis, January 1984; the publication entitled "Protecting Communities From Sexually-Oriented Businesses" (Southwest Legal Press, Inc.); the publication entitled "Local Regulation Of Adult Businesses" (Clark, Boardman and Callaghan); publications prepared by the Florida Family Association, Inc. (Tampa, Florida) relating to the regulation of sexually-oriented businesses and adverse secondary effects of sexually-oriented businesses; the "Report to: The American Center for Law and Justice on the Secondary Impacts of Sex Oriented Businesses", Peter R. Hecht, Ph.D. (1996); and the findings of fact relating to the Adult Entertainment Code of Orange County, Florida, and the findings of fact relating to the Sexually-Oriented Business and Adult Entertainment Establishment Ordinance of Seminole County, Florida, matters and materials submitted at the public hearings relating to this Ordinance and other matters and documents relating to all of the above; the City Council finds:
(1) Sexually-oriented businesses and adult entertainment establishments lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled or not adequately controlled by the operators of the establishments or businesses. Further, there are presently no mechanisms or inadequate mechanisms to make the owners of these businesses or establishments responsible for the activities that occur on their premises.
(2) Certain workers of certain sexually-oriented businesses and adult entertainment establishments defined in this chapter engage in a higher incidence of certain types of illicit sexual behavior than workers of other business establishments.
(3) Sexual acts, including masturbation, and oral and anal sex, occur at sexually-oriented businesses and adult entertainment establishments, especially those which provide private or semi-private areas, booths or cubicles for viewing films, videos, live sex shows and those having physical interaction between workers and customers.
(4) Offering and providing such private spaces encourages such previously mentioned activities, which create unhealthy conditions.
(5) Persons frequent certain adult theaters, adult arcades, and other sexually-oriented businesses and adult entertainment establishments for the purpose of engaging in sex within the premises of such businesses and establishments.
(6) At least fifty (50) communicable diseases may be spread by activities occurring in sexually-oriented businesses and adult entertainment establishments, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections.
(7) Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States: 600 in 1982; 2,200 in 1983; 4,600 in 1984; 8,555 in 1985, 253,448 through December 31, 1992 and currently there are 1,400,000 people infected with the disease nationally with 40,000 people becoming infected annually.
(8) As of December 31, 1995, there have been 51,838 reported cases of AIDS in the State of Florida with over 100,000 AIDS cases being reported in the State of Florida from 1983 - 2005. Florida ranks third in cumulative AIDS cases in the United States and has the second highest AIDS rate in the United States.
(9) From 1981 to June 1996, the number of living persons testing positive for the HIV antibody with AIDS symptoms has risen to 73,217 in the twenty-eight (28) states having confidential reporting requirements.
(10) The number of cases of early (less than one (1) year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982 and 45,200 through November of 1990 and between 2004 and 2005, the national syphilis rate increased eleven and one-tenths percent (11.1%).
(11) The number of cases of gonorrhea in the United States reported annually remains at a high level, with over 500,000 cases being reported in 1990 and currently 350,000 cases of gonorrhea are reported annually with Florida reporting over 20,000 cases of gonorrhea annually.
(12) The Surgeon General of the United States, in his report of October 22, 1986, has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, and from an infected mother to her newborn.
(13) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.
(14) Sanitary conditions in some sexually-oriented businesses and adult entertainment establishments are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities and the failure of owners and operators of the facilities to self-regulate those activities and maintain those facilities.
(15) Numerous studies and reports have determined that semen is found in the areas of sexually-oriented businesses and adult entertainment establishments where persons view "adult" oriented films which gives rise to health and aesthetic concerns.
(16) The findings noted in divisions (B)(1) through (15) above and as set forth hereinafter raise substantial governmental concerns.
(17) Sexually-oriented businesses and adult entertainment establishments have operational characteristics that should be reasonably regulated in order to protect those substantial governmental concerns.
(18) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the sexually-oriented businesses and adult entertainment establishments. Further, such a licensing procedure will place a heretofore nonexistent incentive on the operators to see that the business or establishment is run in a manner consistent with the good order, health, safety and welfare of its patrons and workers, as well as the citizens of the city. It is appropriate to require reasonable assurances that the licensee is the actual operator of the business or establishment, fully in possession and control of the premises and activities occurring therein.
(19) Removal of doors on adult booths and requiring sufficient lighting on premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult theaters.
(20) Requiring licensees of sexually-oriented businesses and adult entertainment establishments to keep information regarding current workers and certain past workers will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working at such businesses and establishments.
(21) The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually-oriented business and adult entertainment establishments, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases.
(22) It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain workers who may engage in the conduct which this chapter is designed to prevent or who are likely to be witnesses to such activity.
(23) The fact that an applicant for an adult entertainment establishment or sexually-oriented business license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this chapter.
(24) Commercial establishments exist or may exist within the city and other nearby cities and counties in central Florida where adult entertainment material is possessed, displayed, exhibited, distributed and/or sold for commercial purposes in the form of books, magazines, periodicals or other printed material, or photographs, films, motion pictures, prints, videotapes, slides, computer digital graphic recordings or other visual representations or recordings, or recordings or other audio matter, or instruments, novelties, devices, or paraphernalia which depict, illustrate, describe or relate to specified sexual activities or specified anatomical areas.
(25) Commercial establishments exist or may exist within the city and other nearby cities or counties in Florida where adult entertainment and sexually-oriented commercial activities in the form of nude, semi-nude, or topless dancers, entertainers, performers, or other individuals, who, for commercial gain, perform or are presented while displaying or exposing specified anatomical areas; or engage in straddle dancing or touching with customers.
(26) Commercial sexually-oriented businesses exist or operate or may exist or operate within the city or other nearby cities or counties in Florida where sexually-oriented services are offered for commercial or pecuniary gain in the form of commercial physical contact, escort services and other services providing sexual encounters. The workers of such sexually-oriented businesses operating in Florida engage in physical contact or touching with customers including, but not limited to, acts of prostitution, or encourage or entice the customers to engage in lewdness.
(27) The activities occurring at sexually-oriented businesses and adult entertainment establishments occur at establishments and businesses which operate primarily for the purpose of making a profit and, as such, are subject to regulation by the city in the interest of the good order, health, safety, economy, property values, morals and general welfare of the people, businesses and industries of the city. A major industry which is important to the community's economic welfare is tourism by persons seeking to bring children to visit Palm Bay who wish to stay in a community with a family atmosphere not dominated by commercialized sexual themes.
(28) When the activities occurring at sexually-oriented businesses and adult entertainment establishments are present in establishments and businesses, other activities which are illegal, unsafe, or unhealthful tend to accompany them, concentrate around them, and be aggravated by them. Such other activities include, but are not limited to, prostitution, pandering, solicitation for prostitution, lewd and lascivious behavior, exposing minors to harmful materials and an unhealthy and unsanitary environment, possession, distribution and transportation of obscene materials, sale or possession of controlled substances, and violent crimes against persons and property.
(29) When the activities occurring at sexually-oriented businesses and adult entertainment establishments are competitively exploited in establishments and businesses, they tend to attract an undesirable number of transients, blight neighborhoods, discourage wholesome tourism, adversely affect neighboring businesses, lower real property values, promote the particular crimes described above and, ultimately, lead residents and businesses to move to other locations.
(30) Sexually-oriented businesses and adult entertainment establishments often have exterior signs or exterior appearance that are incongruous with other business signage, lower the surrounding property values and contribute to urban decline.
(31) The activities occurring at sexually-oriented businesses and adult entertainment establishments sometimes occur in establishments and businesses concurrent with the sale and consumption of alcoholic beverages which concurrence leads to a further increase in criminal activity, unsafe activity, and disturbances of the peace and order of the surrounding community and creates additional hazards to the health and safety of customers and workers and further depreciates the value of adjoining real property harming the economic welfare of the surrounding community and adversely affecting the quality of life, commerce, and community environment.
(32) Physical contact or touching within sexually-oriented businesses and adult entertainment establishments between workers exhibiting specified anatomical areas and customers poses a threat to the health of both and promotes the spread of communicable and social diseases.
(33) In order to preserve and safeguard the good order, health, morals, safety, and general welfare of the people of the city it is necessary and advisable for the city to regulate the conduct of owners, managers, operators, agents, workers, entertainers, performers, and customers at sexually-oriented businesses and adult entertainment establishments.
(34) The potential dangers to the good order, morals, health, safety, and general welfare of the people of the city posed by permitting a sexually-oriented business or adult entertainment establishment to operate without first meeting the requirements for obtaining a license under this chapter are so great as to require the licensure of such establishments prior to their being permitted to operate.
(35) Requiring operators of sexually- oriented businesses and adult entertainment establishments to keep records of information concerning workers and certain recent past workers as well as customer contracts and other matters and materials will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by making it difficult for minors to work at or be customers in such establishments.
(36) Prohibiting sexually-oriented businesses and adult entertainment establishments from operating within set distances of educational institutions, religious institutions, residences, areas zoned or designated for residential use, and parks at which minors are customarily found, will serve to protect minors from the adverse affects of the activities that accompany such establishments and businesses.
(37) Straddle dancing, unregulated private performances, and enclosed adult booths in sexually- oriented businesses and adult entertainment establishments have resulted in indiscriminate commercial sex between individuals and poses a threat to the health of the participants and promotes the spread of communicable sexually transmitted diseases. Straddle dancing is primarily conduct rather than communication or expression.
(38) Workers at sexually-oriented businesses and adult entertainment establishments engage in a higher incidence of certain types of unhealthy or criminal behavior than workers of other establishments and businesses including, but not limited to, a very high incidence of illegal prostitution or engaging in lewdness in violation of Fla. Stat. Chapter 796, operation without business tax receipts and illegal and unlicensed massage.
(39) Physical contact or touching between workers of sexually-oriented businesses and adult entertainment establishments and customers poses a threat to the health of both and promotes the spread of communicable and sexually transmittable diseases.
(40) The practice of not paying or underpaying workers at sexually-oriented businesses and adult entertainment establishments and requiring them to earn their entire income from tips or gratuities from their customers who are predisposed to want sexual activity has resulted in a high incidence of prostitution and crimes related to lewdness by workers.
(41) Sexually-oriented businesses and adult entertainment establishments involve some activities that are pure conduct engaged in for the purpose of making a profit, rather than speech or expressive activity and, therefore, are subject to and require increased regulation to protect the health, good order, morals, welfare and safety of the community.
(42) Requiring sexually-oriented businesses to post a listing of services provided and restrict services to those listed as well as maintaining a customer contract and transaction record in a daily register will discourage incidents of criminal behavior such as lewdness and prostitution thereby further safeguarding the health of both workers and customers and will assist facilitating the identification of potential witnesses or suspects if criminal acts do occur.
(43) The general welfare, health, good order, morals and safety of the citizens of the city will be promoted by the enactment of this chapter.
(C) Intent. It is the intent of this chapter to protect and preserve the good order, health, peace, morals, safety, and welfare of the citizens of the City of Palm Bay. This chapter regulates conduct and is not an ordinance that affects the use of land as contemplated by Fla. Stat. § 166.041.
(D) Authority. This chapter is enacted under the constitutionally derived home rule power of the City of Palm Bay in the interest of the good order, health, morals, peace, safety, and general welfare of the people of the city.
(E) Recitals. It is the City Council's further intention to accomplish those intents and purposes expressed by the City Council in the recitals of the ordinance from which this section derives, each of which are incorporated by reference into this section.
(F) Speech protection. Nothing herein shall be construed to prohibit constitutionally protected expression or speech. This chapter is intended to reasonably regulate the adult entertainment industry and sexually-oriented businesses which engage in commercial activities involving acts or services of a sexually explicit nature or which involve acts or services involving matters which are sexual in nature.
(Ord. 2007-29, passed 4-30-07)