The following words and phrases defined in this section and used in this chapter shall have the meaning herein prescribed, unless the context clearly suggests otherwise.
ADULT BOOKSTORE/ADULT VIDEO STORE.
(1) An establishment which, as its principal business purpose, sells or rents adult material or which offers adult materials for sale or rent as a significant portion of its stock and trade as defined more particularly herein below.
(2) Any establishment in which any one (1) or more of the following five (5) elements occur shall be presumed to be an adult bookstore/adult video store:
(a) The adult material is accessible to customers; "accessible to customers" means that the item can be physically touched, picked up, handled by a customer before being transferred from the control of a worker, or is visually displayed so that an adult or child present in the store can view substantially more than its name alone;
(b) The individual items of adult material offered for sale and/or rental comprise more than ten percent (10%) of the unused individual items publicly displayed at the establishment as stock in trade in the following categories: books, magazines, periodicals, other printed matter, slides, photographs, films, motion pictures, videotapes, compact disks, DVDs, computer digital graphic recordings, other visual representations, audio recordings and other audio matter;
(c) The gross income each month from the sale and rental of adult material comprises more than ten percent (10%) of that month's gross income from the sale and rental of the goods and material at the establishment;
(d) The floor area used to display adult material comprises more than ten percent (10%) of the floor area used for display of all goods and material at the establishment; or
(e) The establishment uses any of the following terms in advertisements or any other promotional activities relating to the adult material: "XXX," "XX," "X," or any series of the letter "X" whether or not interspersed with other letters, figures or characters; "erotic" or deviations of that word; "adult entertainment," "adult books," "adult videos" or similar phrases; "sexual acts" or similar phrases; "nude" or "nudies" or similar phrases which letters, words or phrases a reasonable person would believe to be promotional of the purchase or rental of adult material.
(3) In recognition of the provisions of Fla. Stat. §§ 847.013 and 847.0133, which protects minors from exposure to obscene material, any business which is an adult bookstore/adult video store shall have in place at each entrance to such business a sign, no greater than one (1) square foot in size, stating "Persons under 18 years of age not permitted."
ADULT BOOTH. A separate booth inside an adult entertainment establishment accessible to any person, regardless of whether a fee is charged for access. The term ADULT BOOTH includes, but is not limited to, a "peep show" booth or arcade, or other booth used to view "adult material." The term ADULT BOOTH does not include a foyer through which any person can enter or exit the establishment or a rest room.
ADULT ENTERTAINMENT.
(1) The display or exposure of any specified anatomical area by a worker to a customer to the extent permitted by §§ 173.060 et seq., regardless of whether the worker actually engages in performing or dancing or where workers wear or display to a customer any covering, tape, pastie, or other device which simulates or otherwise gives the appearance of the display or exposure of any specified anatomical areas regardless of whether the worker actually engages in performing or dancing;
(2) Providing adult material for commercial or pecuniary gain;
(3) The offering, soliciting or contracting to dance or perform by a worker with or for a customer with the acceptance of any consideration, tip, remuneration or compensation from or on behalf of that customer; or
(4) The dancing or performing by a worker at or within three (3) feet of a customer with the acceptance of any consideration, tip, remuneration, or compensation from or on behalf of that customer.
ADULT ENTERTAINMENT ESTABLISHMENT. An adult performance establishment, adult bookstore/adult video store, adult motel, or adult theater as those terms are defined in this section, which is operated for commercial or pecuniary gain. An establishment with an adult entertainment license shall be presumed to be an adult entertainment establishment.
ADULT MATERIAL. One (1) or more of the following, regardless of whether it is new or used:
(1) Books, magazines, periodicals, or other printed matter, photographs, films, motion pictures, DVDs, videotapes, video cassettes, slides, computer digital graphic recordings, or other visual representations, tape recordings, disks or other audio matter, which have as their primary or dominant theme matters depicting, illustrating, describing or relating to specified sexual activities or specified anatomical areas; or
(2) Instruments, novelties, devices or paraphernalia which are designed for use in connection with specified sexual activities, excluding bona fide birth control devices.
ADULT MODEL. Any person who, for commercial or pecuniary gain, offers, suggests, or agrees to engage in a private performance, modeling or display of male or female lingerie, bathing suits, under garments, or specified anatomical areas to the extent permitted by §§ 173.060 et seq. to the view of a customer.
ADULT MOTEL. Any motel, hotel, boarding house, rooming house or similar commercial establishment which offers accommodations to the public for any form of consideration whose advertisements or business name includes the word "adult" or which advertises to the public outside of the premises of the establishment and visible from a public right-of-way the presentation of closed-circuit television transmissions, films, motion pictures, video tapes, DVDs, 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. The term ADULT MOTEL is included within the definition of ADULT THEATER.
ADULT PERFORMANCE ESTABLISHMENT.
(1) Any establishment where any worker:
(a) Engages in a private performance, acts as an adult model, or displays or exposes any specified anatomical areas to a customer, regardless of whether the worker engages in dancing or any particular activity;
(b) Wears and displays to a customer any covering, tape, pastie, or other device which simulates or otherwise gives the appearance of the display or exposure of any specified anatomical areas, regardless of whether the worker actually engages in performing or dancing;
(c) Offers, solicits, or contracts to dance or perform with or for a customer and accepts any consideration, tip, remuneration or compensation from or on behalf of that customer; or
(d) Dances or performs at or within three (3) feet of a customer and accepts any consideration, tip, remuneration, or compensation from or on behalf of that customer.
(2) A bona fide private club whose membership as a whole engages in social nudism or naturalism as in a nudist resort or camp and at which specified sexual activities do not occur shall be presumed not to be an adult performance establishment.
ADULT THEATER. An establishment which consists of an enclosed building, or a portion or part of an enclosed building, or an open-air area used for viewing by persons of films, motion pictures, DVDs, video cassettes, video tapes, slides, computer digital graphic recordings, 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. ADULT MOTELS, and ADULT BOOTHS are included within the definition of ADULT THEATER.
ADULT VIDEO STORE. See ADULT BOOKSTORE.
ALCOHOLIC BEVERAGES. All distilled spirits and all beverages containing one-half (1/2) of one (1) percent (.005) or more alcohol by volume. It shall be prima-facie evidence that a beverage is an alcoholic beverage if there is proof that the beverage in question was or is known as beer, wine, whiskey, moonshine whiskey, moonshine, shine, rum, gin, tequila, bourbon, vodka, scotch, scotch whiskey, brandy, malt liquor, or by any other similar name or names, or was contained in a bottle or can labeled as any of the above names, or a name similar thereto, and the bottle or can bears the manufacturer's insignia, name, or trademark. Any person who, by experience in the handling of alcoholic beverages, or who by taste, smell, or drinking of such alcoholic beverages has knowledge of the alcoholic nature thereof, may testify as to his or her opinion about whether such beverage is an alcoholic beverage.
CITY COUNCIL. The City Council of the City of Palm Bay, Florida.
COMMERCIAL BODILY CONTACT.
(1) The manipulation, washing, scrubbing, stroking, or touching, for commercial or pecuniary gain, of the body of another person directly, or indirectly through a medium or using any object, instrument, substance, or device between a worker and a customer.
(2) The following persons engaged in the bona fide performance of the following activities shall not be deemed to be engaging in commercial bodily contact for the purposes of this chapter when they are engaged in the bona fide practice of their occupation or profession:
(a) Persons licensed as a massage therapist or apprentice massage therapist pursuant to Fla. Stat. Chapter 480, when providing massage services in an establishment licensed under Fla. Stat. Chapter 480;
(b) Persons licensed under the laws of the state to practice medicine, surgery, osteopathy, chiropody, naturopathy, or podiatry;
(c) Persons licensed under the laws of the state as a physician's assistant or nurse;
(d) Persons holding a drugless practitioner's certificate under the laws of the state;
(e) Persons licensed as barbers or cosmetologists under the laws of the state;
(f) Persons performing authorized services in a hospital, nursing home, sanitarium, adult congregate living facility, group home, day care center, or similar place of business when owned and operated in accordance with the laws of the state;
(g) Persons who are instructors, coaches, or athletic trainers employed by, or on behalf of, any professional, amateur, Olympic, or similar athletic team engaging in bona fide athletic events, or when employed by a governmental entity or a bona fide educational institution; or
(h) Persons licensed as physical therapists under the laws of the state.
COMMERCIAL BODILY CONTACT ESTABLISHMENT. Any establishment, business, or place operated for commercial or pecuniary gain or where for any form of consideration workers or customers engage in commercial bodily contact or any establishment, business or place any portion of which is set aside, advertised, promoted or used as a place where commercial bodily contact occurs or which is described or depicted as a "body scrub salon," "body wash salon," or "body relaxation salon."
COMMERCIAL or PECUNIARY GAIN. Operated for commercial or pecuniary gain shall be presumed for any establishment which has received a business tax receipt. For the purposes of this chapter, operation for commercial or pecuniary gain shall not depend on actual profit or loss. An establishment which has a business tax receipt or an establishment which advertises itself as a type of adult entertainment establishment shall be presumed to be operated for commercial or pecuniary gain.
COMMERCIAL ESTABLISHMENT. Any business, location, or place which conducts or allows to be conducted on its premises any activity for commercial or pecuniary gain.
CONVICTION. A determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.
CUSTOMER.
(1) Any person present at an adult entertainment establishment or sexually-oriented business, other than operators or workers, regardless of whether the person has given or paid any consideration to be present at the adult entertainment establishment or sexually-oriented business and regardless of whether the person has paid any money for goods or services at or to the adult entertainment establishment or sexually-oriented business; or
(2) Any person, excluding a worker or operator, who has paid, or has offered, agreed, been solicited, or had someone else offer or agree on that person's behalf to pay any consideration, fee, or tip to an operator or worker of an adult entertainment establishment or sexually-oriented business.
EDUCATIONAL INSTITUTION. A premises or site upon which there is an institution of learning for minors, whether public or private, which conducts regular classes and/or courses of study required for eligibility to certification by, accreditation to, or membership in the State Department of Education of Florida, Southern Association of Colleges and Secondary Schools, or the Florida Council of Dependent Schools. The term EDUCATIONAL INSTITUTION includes a premises or site upon which there is a nursery school, kindergarten, elementary school, junior high school, senior high school, Charter school, or any special institution of learning, a vocational institution, professional institution, an institution of higher education, a community college, junior college, four (4) year college or university.
ENTITY. Any proprietorship, partnership, corporation, limited liability company, association, business trust, joint venture, joint-stock company or other for profit and/not for profit organization by whatever name, title or description.
ESCORT. Any person who, for commercial or pecuniary gain, compensation or tips, agrees to, offers to go, or goes to any place, including, but not limited to, a business, hotel, motel, residence, boat, vessel, motor vehicle, or other mode of transportation to do any of the following acts:
(1) Act as a companion or date for, or converse with a customer;
(2) Engage in commercial bodily contact with another person;
(3) Engage in a private performance;
(4) Engage in adult modeling or act as an adult model;
(5) Display specified anatomical areas, strip naked, or go topless; or
(6) Engage in any specified sexual activity.
Nothing in this definition shall be construed to legalize prostitution or other conduct prohibited by this Code or other law. Workers of a licensed adult-performance establishment for whom worker records are maintained pursuant to this chapter are excluded from the definition of escort when engaged in the expressive display of specified anatomical areas at a licensed adult-performance establishment.
An escort who is a paid employee type worker of an escort service for whom taxes and social security payments are withheld and paid by the escort service, and who is not an independent contractor, is not required to obtain his or her own sexually-oriented business license for activities conducted pursuant to employment with the escort service.
ESCORT SERVICE. A person, business, establishment, or place operated for commercial or pecuniary gain, which advertises as an "escort", "escort service" or "escort agency" or otherwise offers or advertises that it can furnish escorts, a private performance, or adult models; or offers or actually provides, arranges, dispatches, or refers workers or themselves to act as an escort or engage in a private performance for a customer. An affirmative defense to an allegation that any person, business or establishment or entity is acting as an escort service is that it is a bona fide dating or matching service which arranges social matches or dates for two (2) persons who each wish to meet a compatible companion when neither of said persons solicits, accepts, or receives any financial gain or any monetary tip, consideration, or compensation for the meeting or date is not an escort service.
ESTABLISHMENT. Any place, site, or premises, or portion thereof, upon which any person, corporation, or business entity of any type conducts activities or operations for commercial or pecuniary gain including, but not limited to, any place, site or premises from where an escort service dispatches or refers workers to other locations or at which an escort service receives business calls from customers.
LAW ENFORCEMENT OFFICER. An officer who is on official duty for any law enforcement agency.
LICENSEE. Any person, corporation, partnership, or other entity whose application for an adult entertainment establishment or sexually-oriented business license has been granted and any person, corporation, partnership or other entity who owns or operates or controls the establishment or business.
OPERATOR. Any person who engages in or performs any activity which is necessary to or which facilities the operation of a sexually-oriented business or an adult entertainment establishment including, but not limited to, the licensee, manager, owner, doorman, bouncer, bartender, disc jockey, sales clerk, ticket taker, movie projectionist, DVD operator, dispatcher, receptionist, attendant or supervisor.
PARK. A tract of land within any jurisdiction which is kept for ornament or recreation and which is maintained as public property including, but not limited to, a playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, wilderness areas or other similar public land.
PERSON. Includes, but is not limited to, an individual, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, limited liability companies and any and all other similar entities and all officers, directors and principal stockholders of such associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations or other similar entities.
PRIVATE PERFORMANCE. Modeling, posing, or the display or exposure of any specified anatomical area by a worker to a customer while the customer is in an area not accessible during such display to all other persons in the establishment or, while the customer or worker is in an area which is not on the premises of the establishment, or in which the customer or worker is totally or partially screened or partitioned during such display from the view of persons outside of the area.
SEXUAL ENCOUNTER BUSINESS.
(1) Any person or entity which for any form of consideration or remuneration or which charges an admission fee and provides a place for the purpose of providing, encouraging or allowing three (3) or more persons to engage in any specified sexual activity among themselves or with other persons.
(2) The following shall be presumed not to be a sexual encounter business:
(a) A bona fide private club whose membership as a whole engages in social nudism or naturalism as in a nudist resort or camp and at which specified sexual activities do not occur;
(b) A state licensed sexual therapist; or
(c) A bona fide hotel or motel licensed by the state.
SEXUALLY-ORIENTED BUSINESS. A commercial bodily contact establishment, escort service, or sexual encounter business. A business shall be a sexually-oriented business, whether services are provided on the premises of an establishment or on an out-call basis at any other place and regardless of whether such business is licensed under this chapter. A business with a sexually-oriented business license shall be presumed to be a sexually-oriented business. An individual operating a sexually-oriented business is subject to the provisions of this chapter notwithstanding the fact that services are being provided at or from a residence, motor vehicle, vessel or any other location and a license pursuant to this chapter is required unless the individual is a paid employee for whom taxes and social security payments are withdrawn and paid by the licensed establishment, worker records are maintained, and the individual is not an independent contractor.
POLICE CHIEF. The Chief of Police of the City of Palm Bay, Florida.
SPECIFIED ANATOMICAL AREAS. Editor's note: The source of definitions of terms used below is The New Webster's Medical Dictionary (Bolander, 1991). The definitions of terms are a material part of this chapter and apply to the use of the term each time it is used in this chapter.
(1) Any of the following:
(a) The male or female genitals;
(b) The male or female pubic area;
(c) The vulva;
(d) The anus;
(e) The penis;
(f) The scrotum;
(g) The cleavage of the buttocks;
(h) The buttocks;
(i) The anal cleft;
(j) The anal cleavage;
(k) The areola on the breast of a female;
(l) The nipple on the breast of a female; or
(m) The female breast below a line immediately above the top of the areola said line running horizontal across the top of the entire breast, but shall not include any portion of the cleavage between the human female breasts typically exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel, provided that the areola is not exposed;
(2) Body paint, body dyes, tattoos, liquid latex whether wet or dried, dental floss, G-Strings, thongs, and similar coverings shall not be considered an opaque covering.
SPECIFIED CRIMINAL ACT.
(1) A violation of this chapter;
(2) Any felony not otherwise specified in this definition;
(3) An offense under Fla. Stat. Chapter 794, (Sexual Battery);
(4) An offense under Fla. Stat. Chapter 796, (Prostitution);
(5) An offense under Fla. Stat. Chapter 800, (Lewdness; Indecent Exposure);
(6) An offense under Fla. Stat. Chapter 826, (Bigamy; Incest);
(7) An offense under Fla. Stat. Chapter 847, (Obscene Literature; Profanity);
(8) An offense under Fla. Stat. Chapter 775, §§ 775.21 et.seq. (Sexual Predators Act); or
(9) An offense against an analogous federal statute.
SPECIFIED SEXUAL ACTIVITIES. Editor's note: The sources of definitions of terms used below are (1) Taber's Cyclopedic Medical Dictionary, T.A. Davis Co., Philadelphia, 1997 (ed. 18); (2) Oxford Dictionary of the English Language (multi-volume); (3) Florida Statutes. The definitions of terms are a material part of this chapter and apply to the use of the term each time it is used.
(1) Human genitals in a state of sexual stimulation, arousal or tumescence;
(2) Acts of human anilingus, bestiality, buggery, cunnilingus, coprophagy, coprophilia, fellatio, flagellation, masochism, masturbation, necrophilia, pederasty, pedophilia, sadism, sadomasochism, sapphism, sexual intercourse, sodomy, urolagnia, or zooerasty;
(3) Fondling or other touching of human genitals, pubic region, any part of the buttocks, anus or female breast;
(4) Oral, anal, or vaginal penetration by, or union with, the sexual organ or any other part of the body of another;
(5) Anal or vaginal penetration of another or oneself with any object;
(6) The handling or fondling of the sexual organ of another for the purpose of masturbation directly or through a medium; or
(7) Excretory functions as part of or in connection with any of the activities set forth in divisions (1) through (6) above.
STRADDLE DANCE.
(1) The use by a worker of any part of his or her body to touch the genital or pubic area of another person, or the touching of the genital or pubic area of any worker by another person; or the straddling of the legs of a worker over any part of the body of a customer at the establishment, regardless of whether there is a touch or touching; or the use by a worker, of any part of his or her body to touch the genital, pubic region, buttock, anus or female breast of another person while at the establishment, or the touching of the genital, pubic region, buttock, anus or female breast of any worker by a customer while at the establishment.
(2) Conduct shall be a STRADDLE DANCE regardless of whether the "touch" or "touching" occurs while the worker is displaying or exposing any specified anatomical area.
(3) Conduct shall also be a STRADDLE DANCE regardless of whether the "touch" or "touching" is direct or through a medium.
(4) The terms "lap dance," "table dance," and "face dance" are included within the term STRADDLE DANCE.
WORKER. A person who works, performs, or provides services at an adult entertainment establishment or at or for a sexually-oriented business, irrespective of whether said person is paid a salary or wage and shall include, but is not limited to, employees, independent contractors, subcontractors, lessees, or sub-lessees who work or perform at an adult entertainment establishment or at or for a sexually-oriented business. An operator is a type of worker.
(Ord. 2007-29, passed 4-30-07)