§ 3.5-36. Definitions.

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

Adult bookstore shall mean an establishment which advertises, sells or rents, or offers for sale or rent, adult material. The provisions of this definition are not intended to apply, and it is an affirmative defense to an alleged violation of this code [article] regarding operating an adult bookstore without an adult entertainment license, if the alleged violator shows that at the establishment:

(1)

Admission is not restricted to adults only;

(2)

All adult material is accessible only by employees;

(3)

The gross revenue from the sale and/or rental of adult material comprises less than ten per cent (10%) of the gross revenue from the sale and rental of the goods or services at the establishment; and

(4)

The individual items of adult material offered for sale and rental comprise less than twenty-five per cent (25%) of the total individual new items publicly displayed as stock in trade in any of the following categories: Books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, videotapes, slides, or other visual representations, or recordings, or other audio matter or less than twenty-five per cent (25%) of the individual used items publicly displayed at the establishment as stock in trade in the same categories set out above.

Adult booth shall mean a small enclosure 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 other booth used to view adult material, but does not include a restroom or a foyer through which the public enters or exits the establishment.

Adult entertainment establishment shall mean an adult theater, an adult bookstore, or an adult performance establishment operated for commercial or pecuniary gain, regardless of whether such establishment is licensed under this code [article]. "Operated for commercial or pecuniary gain" shall not depend upon actual profit or loss. An establishment which has a local business tax receipt shall be presumed to be operated for commercial or pecuniary gain. An establishment with an adult entertainment license shall be presumed to be an adult entertainment establishment.

Adult material shall mean any one (1) or more of the following regardless of whether it is new or used:

(1)

Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, videotapes, slides, or other visual representations, or recordings, or other audio matter 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, novelties, devices or paraphernalia which are designed for use in connection with specified sexual activities.

Adult motel shall mean any motel, hotel, boardinghouse, roominghouse, or other place of temporary lodging which includes the word "adult" in any name it uses or otherwise advertises the presentation of films, motion pictures, videotapes, slides or other photographic reproductions which have as their primary or dominate 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 shall mean an establishment where any employee:

(1)

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

(2)

Wears 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 employee actually engages in dancing;

(3)

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

(4)

Dances or performs with or within three (3) feet of a person other than another employee and accepts any consideration, tip, remuneration, or compensation from or on behalf of that person.

It is an affirmative defense that an establishment is not an adult performance establishment if the establishment is a bona fide private club whose membership as a whole engages in social nudism or naturalism, as in a nudist resort or camp, or such other establishment in which the predominant business or attraction of the establishment is not the offering to customers of a product, service, or entertainment which is intended to provide sexual stimulation or sexual gratification to such customers, and the establishment is not distinguished by an emphasis on, or the advertising or promotion of materials relating to, or employees depicting, describing, displaying, exposing, or simulating, specified sexual activities or specified anatomical areas.

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

Adult theater shall mean any establishment which has adult booths where adult material may be viewed or any establishment which has an auditorium, rooms, or an open air area where persons may view films, motion pictures, 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. Adult motels and adult booth or peep show arcades are considered to be adult theaters.

Alcoholic beverage shall mean a beverage containing more than one (1) percent of alcohol by weight. 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 by taste, smell, or drinking of such alcoholic beverages, has knowledge of the alcoholic nature thereof may testify as to his opinion about whether such beverage is an alcoholic beverage.

Conviction shall mean a determination of guilt resulting from a plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.

Department shall mean the community development department, fire and rescue division, health department, sheriff/police department, or tax collector, including the respective director, employees, officers and agents thereof.

Educational institution shall mean 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 Independent Schools. The term "educational institution" includes a premises or site upon which there is a nursery school, kindergarten, elementary school, junior high or middle school, senior high school, or any special institution of learning; however, the term "educational institution" does not include a premises or site upon which there is a vocational institution, professional institution, or an institution of higher education, including a community college, junior college, four-year college or university.

Employee shall mean a person who works, performs, or provides services at an adult entertainment establishment, irrespective of whether such person is paid a salary or wage.

Establishment shall mean any site or premises, or portion thereof, upon which any person, corporation, or business conducts activities or operations for commercial or pecuniary gain. "Operated for commercial or pecuniary gain" shall not depend upon actual profit or loss. An establishment which has a local business tax receipt shall be presumed to be operated for commercial or pecuniary gain.

Law enforcement officer shall mean an officer who is on official duty for a law enforcement agency.

Licensee shall mean any person whose application for an adult entertainment establishment has been granted and who owns, operates, or controls the establishment.

Operator shall mean any person who engages in or performs any activity necessary to, or which facilitates, the operation of an adult entertainment establishment, including, but not limited to, the licensee, manager, owner, doorman, bouncer, bartender, disc jockey, sales clerk, ticket taker, or movie projectionist.

Park shall mean a tract of land within a city or unincorporated area of a county which is kept for ornament or recreation and which is maintained as public property.

Pre-existing shall mean as follows:

(1)

When used together with the term "adult entertainment establishment," "religious institution, " "educational institution, " "commercial establishment that in any manner sells or dispenses alcohol for on-premises consumption", or "residence," the word "pre-existing" shall mean:

a.

The establishment, institution, or residence is already being lawfully used or lawfully occupied;

b.

A building permit for the establishment, institution, or residence has been lawfully issued, all fees associated with the permit have been paid, and the permit has not expired; or

c.

An application or plan to allow the establishment, institution, or residence to be constructed, used, or occupied has been filed and is undergoing review or is approved, with or without conditions.

(2)

When used together with the term "park, " the word "pre-existing" shall mean:

a.

The park is already being used; or

b.

The park site has been approved or otherwise designated by the appropriate governing body.

Private performance shall mean modeling, posing, or the display or exposure of any specified anatomical area by an employee of an adult entertainment establishment to a person other than another employee while the person is in an area not accessible during such display to all other persons in the establishment, or while the person is in an area in which the person is totally or partially screened or partitioned during such display from the view of all persons outside the area.

Public nudity shall mean to display or expose at an adult entertainment establishment, less than completely and opaquely covered human genitals or pubic region, the cleavage of the human buttocks, [and/or] the areola or nipple of the human female breast.

Religious institution shall mean a premises or site which is used primarily or exclusively for religious worship and related religious activities.

Specified anatomical areas shall mean:

(1)

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

(2)

Human male genitals in a discernibly erect or turgid state, even if completely and opaquely covered.

Specified criminal act shall mean:

(1)

A violation of division 5 of this adult entertainment code [article];

(2)

Any offense under the following chapters of the Florida Statutes: Chapter 794 regarding sexual battery, Chapter 796 regarding prostitution, Chapter 800 regarding lewdness and indecent exposure, and Chapter 847 regarding obscene literature; or

(3)

An offense under an analogous statute of a state other than Florida, or an analogous ordinance of another county or city.

Specified sexual activity shall mean:

(1)

Human genitals in a state of sexual stimulation, arousal, erection or tumescence;

(2)

Fondling or other erotic touching of human genitals, pubic region, buttock, anus or female breast;

(3)

Acts of human anilingus, bestiality, buggery, cunnilingus, coprophagy, coprophilia, fellation, flagellation, masochism, masturbation, necrophilia, pederasty, pedophilia, sadism, sadomasochism, sapphism, sexual intercourse, sodomy, or urolagnia; or

(4)

Excretory functions as part of or in connection with any of the activities set forth in subsections (1), (2), or (3).

Straddle dance, also known as a "lap dance" or "face dance," shall mean either of the following acts:

(1)

The use by an employee of any part of his or her body to touch the genital or pubic area of a person while at the establishment, or the touching of the genital or pubic area of any employee by a person while at the establishment. It shall be a straddle dance regardless of whether the touch or touching occurs while the employee is displaying or exposing any specified anatomical area. It shall also be a straddle dance regardless of whether the touch or touching is direct or through a medium.

(2)

The straddling of the legs of an employee over any part of the body of a person other than another employee at the establishment, regardless of whether there is a touch or touching.

(Ord. No. 96-10, § 1(6), 6-25-96; Ord. No. 07-03, § 1, 2-13-07)