Memo 027-2012 Study - Nudity on Washington Avenue _ MIAMI BEACH I� p�
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OFFICE OF THE CITY MANAGER i �_
ciT,� ��'��,,9�, � 0MEMORANDUM
- - -- --
027-2012
TO: Commissioner Deede Weithorn
FROM: Kathie G. Brooks, Interim City 1-P41
DATE: September 19, 2012
SUBJECT: STUDY—NUDITY ON WASHINGTON AVENUE
Earlier this year, you had forwarded a request to the Administration for a study regarding
nudity on Washington Avenue (see attachment). Noting that the City has in the past
considered legislation regarding adult entertainment and nudity, the request asked the
following questions:
1. The legal definition of nudity.
2. At which point does non-nudity legally become nudity?
3. Does any establishment offer adult entertainment in a manner that may be
difficult to determine whether it shall be considered as nudity or non-nudity?
4. Which establishments within the City of Miami Beach, specifically on
Washington Avenue, currently offer such form of entertainment?
5. The proximity of these venues to schools in the neighborhood.
On the following pages are responses to the questions above.
Attached is a map, prepared by the Planning Department, showing the locations of
existing adult entertainment establishments, and the distance to schools and residential
zoning districts.
Also attached are relevant sections of the City Code (Chapter 6, Article II; and Chapter
142, Article V, Division 3)and Florida State Statutes (Chapter 847.0134 F.S.).
1. The legal definition of nudity.
The City Code defines nudity as follows:
Partial Nudity means the exhibition by any female performer or employee of the
establishment to any other person of any portion of her breasts falling below the areola,
or any simulation thereof (which 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).
Total Nudity means the showing by any performer or employee of the establishment of
all or any portion of the cleft of the human male or female buttocks with less than a full
opaque covering; the showing by any performer or employee of the establishment of all
or any portion of the female areola; the depiction by any performer or employee of the
establishment of covered male genitals in a discernibly turgid state; the exhibition by any
performer or employee of the establishment to any other person, of his or her genitals,
pubic area, vulva, anus, anal cleft or cleavage, or any portion of the foregoing specified
anatomical areas, or any simulation thereof.
2. At which point does non-nudity legally become nudity?
The definitions above are fairly detailed and comprehensive. In response to a request
for more information, staff recently prepared a memorandum which contains a further
clarification which reads:
"The use of the following would not constitute "partial nudity" under Chapter
6 of the City Code: The use of adhesive tape or other equivalent method of
covering the nipple, areola, and breast below (measured 4-8 o'clock), with
paint that covers and does not simulate the covered body parts."
3. Does any establishment offer adult entertainment in a manner that may be difficult to
determine whether it shall be considered as nudity or non-nudity?
The above determination stems from a discussion with the owner of Rachel's
Steakhouse, an establishment located at 619-623 Washington Avenue. There were
questions regarding what was occurring there, and staff met with the owner/operator Mr.
Doug Bangle, in order to clarify the City's adult entertainment regulations.
4. Which establishments within the City of Miami Beach, specifically on Washington
Avenue, currently offer such form of entertainment?
The only licensed adult entertainment establishment within Miami Beach that offers
either partial or total nudity is Club Madonna, located at 1527 Washington Avenue. Club
Madonna is a totally nude dancing establishment; alcoholic beverages are not permitted.
Rachel's Steakhouse is licensed as a restaurant and entertainment establishment, and
is operated similar to a "strip club" except that, as mentioned above in #3, it is not
permitted to pass the threshold that would define partial nudity, and .thus, adult
entertainment.
There is also anecdotal evidence that some partial nudity may be occurring in other
nightlife establishments in the City. Staff has seen evidence of "go-go" style dancers at
several entertainment establishments, which appear to be using either pasties, body
tape or body paint, and would likely be defined as partial nudity. However, no violations
have been issued by Code Compliance, and the phenomenon appears to be mainly
ancillary to the regular operations of nightclubs, rather than as featured performers and
the focus of the entertainment.
Similarly, one local club advertises a weekly promotion for "Lapdance Tuesdays," but it
appears to be simply a marketing catchphrase, rather than an advertisement for actual
"lap dancing" which would be considered sexual conduct under the City Code's adult
entertainment provisions. However, it should be conceded that within the City's leading
nightclubs, the atmosphere is likely to be heated, and some activity either by patrons or
employees may come close to or exceed the thresholds that could be considered adult
entertainment.
5. The proximity of these venues to schools in the neighborhood.
With regards to Washington Avenue entertainment establishments, the Feinberg Fisher
elementary school lies within the Washington Avenue commercial corridor. The City
Code contains distance separation requirements for adult entertainment as follows:
No adult entertainment establishment is permitted on a parcel of land located:
(1) Within 300 feet of any district designated as RS, RM, or RPS on the city's official
zoning district map;
(2) Within 300 feet of any parcel of land upon which a house of worship, school, public
park or playground is located; or
(3) Within 1,000 feet of any parcel of land upon which another adult entertainment
establishment is located.
Also applicable is Chapter 847.0134 of the Florida Statutes, requiring a distance
separation of 2,500 feet from any public or private school.
Club Madonna is situated 485 feet away from Feinberg Fisher school. There are four
entertainment establishments on Washington Avenue located within 300 feet of the
school; Cameo Theater, Rush Nightclub, Jazid, and Morena. Within 1,000 feet of the
school lie at least eight more entertainment establishments, including Dream, Waxy's,
Felt, Slim's, and Mansion.
Attached is a graphic map showing the location of adult entertainment establishments in
South Beach; Club Madonna is shown at 1527 Washington Avenue, along with three
other retail stores classified as adult bookstores. Also shown is the distance from
schools, houses of worship, and residential areas, as well as the distance to the other
adult entertainment establishments.
KGB/ /RGL
C: Mayor and Commissioners
Jose Smith, City Attorney
Gary Held, First Assistant City Attorney
Jorge G. Gomez, Assistant City Manager
Richard G. Lorber, Acting Planning Director
F:\PLAN\$ALL\CM_RESP\RL-Memo on Nudity on Washington Avenue.docx
A
CANA r
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OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM
TO: Jorge M. Gonzalez, City Manager
Jose Smith, City Attorney
FROM: Commissioner Deede Weithorn
DATE: February 2, 2012
SUBJECT: Request for Study- Nudity on Washington Ave.
In the past,our City Commission has considered legislation regarding establishments offering
adult entertainment in the form of"nudity". By means of this memorandum, Commissioner
Weithorn would like to request a study detailing the following:-
1. The legal definition of nudity.
2. At which point does non-nudity legally become nudity?
3. Does any establishment offer adult entertainment in a manner that maybe difficult to
determine whether it shall be considered as nudity or non-nudity?
4. Which establishments within the City of Miami Beach, specifically on Washington i
Avenue, currently offer such form of entertainment?
i
5. The proximity of these venues to schools in the neighborhood.
Should you have any questions please contact Commissioner Weithorn's office at extension
7105.
Thank you,
r
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Alex J. Fernandez
Deputy to Commissioner Deede Weithorn
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We are committed to providing excellent public service and safety to all who live,work,and play in our vibrant, tropical,historic community.
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Miami Beach, Florida, Code of Ordinances>> Subpart A -GENERALORDUNANCES >> Chapter 6 -
ALCOHOLIC BEVERAGES > >>
ARTICLE UU. ~ CONDUCT
________________________________________
Sec.6-36.-Definitions.
Sec. 6-37.-Violations and penalties.
Sec.6-38.-Continuation of existing establishments.
Sec.6-39.- Permifting total, partial nudity or sexual conduct.
Sec. 6-40.-Total nudity and sexual conduct prohibited.
Sec. 6-41. -Provisions pertaining to establishments permiffing partial nudity.
Sec. 6~36. ~ Definitions.
The following words, borrns and phnaamo' when used in this article, shall have the meanings
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ascribed to them in this section, except where the context clearly indicates o different meaning:
Adult bookstore nleonm an establishment which ae||a, offers for oo|e or rents adult material
for commercial gain. This definition includes establishments selling or renting adult videos when
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applicable under the above-stated conditions.
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Adult booth means o omoU enclosed or partitioned area inside an establishment operated for
oommmnoio| gain which is (1) designed or used for the viewing of adult material by one or more
persons and (2) is 000emmib|e to any persons, regardless of whether a fee is charged for 000ema.
The term adult booth ino|udeo, but is not limited to' a peep show bomth, 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 eotab|imhnment, or o remtroom.
Adult entertainment establishment means any adult bookstore, adult booth, adult motion
picture theater, or establishment which permits partial nudity.
Adult nnotorim/means one or more of the following, regardless of whether it is new or used:
(1) Booko, magazines, periodicals or other printed matter; photogrepho, fi|mo, motion
pictures, video cassettes, slides or other visual representations; reoordingm, other
audio matter; and novelties or devices; which have as their primary or dominant
theme subject matter depicting, exhibiting' illustrating, describing or relating to
specified sexual activities or specified anatomical areas as defined herein; or
(2) instruments, novelties, devices or paraphernalia which are designed for use in
connection with specified sexual activities as defined herein' except for birth control
devices or devices for disease prevention.
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Adult motion p/obuny theater means an enclosed building used for presenting for observation
by patrons motion pictures, fi|ma' or video media, distinguished or characterized by on emphasis on
matter depicting, describing or relating to mpmoifio sexual activities or specified anatomical areas as
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hereafter defined.
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Alcoholic beverage establishment means any establishment located in the City of Miami
Beach, Florida, at which alcoholic beverages, beer or wine are offered for sale for consumption on
the premises.
Alcoholic beverage, beer and wine shall have the meanings set forth in F.S. §§ 561.01(4),
563.01, and 564.01 respectively.
Nudity, partial, means the exhibition by any female performer or employee of the
establishment to any other person of any portion of her breasts falling below the areola, or any
simulation thereof(which 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).
Nudity, total, means the showing by any performer or employee of the establishment of all or
any portion of the cleft of the human male or female buttocks with less than a full opaque covering;
the showing by any performer or employee of the establishment of all or any portion of the female
areola; the depiction by any performer or employee of the establishment of covered male genitals in
a discernibly turgid state; the exhibition by any performer or employee of the establishment to any
other person, of his or her genitals, pubic area, vulva, anus, anal cleft or cleavage, or any portion of
the foregoing specified anatomical areas, or any simulation thereof.
Parcel of land means any quantity of land capable of being described with such definiteness
that its location and boundaries may be established, which is designated by its owner or developer
as land to be used or developed as a unit, or which has been used or developed as a unit.
Person means an individual, corporation, firm, partnership, limited partnership, association,
joint stock association, estate, trust or business entity.
Sexual conduct means any sexual intercourse, masturbation, sodomy, bestiality, oral
copulation, flagellation, any sexual act which is prohibited by law, erotic touching, caressing or
fondling of the breasts, buttocks or any portion thereof, anus or genitals or the simulation thereof.
Specified anatomical areas as used in this section above shall mean either of the following:
(1) Less than completely opaquely covered human genitals, pubic region, anal cleft, cleft
of the buttocks, and; all or any part of the areola of the female breast; and
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely
covered.
(Ord. No. 89-2665, § 12-4A, eff. 10-1-89; Ord. No. 90-2678, §2, 1-27-90;Ord. No. 90-2684, §2, 3-3-90)
Cross reference—Definitions generally, § 1-2.
Sec. 6-37. -Violations and penalties.
Upon a finding by the appropriate administrative official or agency that a violation of this
article has occurred, the city shall initiate proceedings to revoke the certificate of use, occupational
license or certificate of occupancy, whichever is appropriate. Additionally, this article may be
enforced and violations may be punished as follows:
(1) By enforcement procedures as set forth in the Charter and penalties as provided in
section 1-14 of this Code; or
(2) As provided in section 114-8
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(Ord. No. 89-2665, § 12-41, eff. 10-1-89; Ord. No. 90-2678, §2, 1-27-90;Ord. No. 90-2684, §2, 3-3-90)
Sec. 6-38. - Continuation of existing establishments.
Notwithstanding sections 6-37 and 6-41(a) alcoholic beverage establishments in operation at
a particular location on December 19, 1989, or at any time in the year immediately preceding that
date, under a valid license issued by the state division of alcoholic beverages and tobacco for sale
of alcoholic beverages, beer or wine for consumption on the premises, and which regularly provided
entertainment, including total nudity, partial nudity or sexual conduct, may continue to permit partial
nudity after 1990. However, whenever any such nonconforming use has been changed to a
conforming use, the former nonconforming use shall not be permitted at a later date. Such
establishments shall not be permitted to change to any use other than is permitted in the zoning
district in which the use is located. Additionally, sections 118-393 and 118-394 shall apply to such
nonconforming uses.
(Ord. No. 89-2665, § 12-4H, eff. 10-1-89;Ord. No. 90-2684, §2, 3-3-90)
Sec. 6-39. - Permitting total, partial nudity or sexual conduct.
An alcoholic beverage establishment permits total nudity or partial nudity or sexual conduct
under this article if any person maintaining, owning, managing or operating such establishment
knowingly, or with reason to know, suffers or permits total nudity or partial nudity or sexual conduct
to occur on the premises of such establishment.
(Ord. No. 89-2665, § 12-4G, eff. 10-1-89;Ord. No. 90-2684, §2, 3-3-90)
Sec. 6-40. - Total nudity and sexual conduct prohibited.
(a) No alcoholic beverage establishment shall permit total nudity or sexual conduct on any
parcel of land located in the City of Miami Beach.
(b) It shall be unlawful for any person maintaining, owning, managing or operating an alcoholic
beverage establishment to knowingly, or with reason to know, suffer or permit total nudity or
sexual conduct to occur on the premises of that alcoholic beverage establishment.
(c) It shall be unlawful for any person, while on the premises of an alcoholic beverage
establishment, to expose to public view those portions of anatomy defined as total nudity, or
engage in any sexual conduct.
(Code 1964, § 18-9; Ord. No. 89-2665, § 12-48, eff. 10-1-89; Ord. No. 90-2678, §2, 1-27-90; Ord. No. 90-2684, §2,
3-3-90)
Sec. 6-41. - Provisions pertaining to establishments permitting partial nudity.
(a) Location generally. No alcoholic beverage establishment permitting partial nudity is permitted
on a parcel of land located:
(1) Within 300 feet of any district designated as RS, RM, or RPS on the city's official
zoning district map;
(2) Within 300 feet of any parcel of land upon which a house of worship, school, public
park or playground is located; or
(3) Within 1,000 feet of any parcel of land upon which another adult entertainment
establishment is located.
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A hotel with a minimum of 300 hotel units shall be exempt from subsections (a)(1), (2) and (3) of
this section.
(b) Location, mandatory requirements.
(1) The minimum building size of an alcoholic beverage establishment permitting partial
nudity shall be 8,000 square feet.
(2) An alcoholic beverage establishment permitting partial nudity shall have no less than
250 seats.
(3) An alcoholic beverage establishment permitting partial nudity shall have a full-service
restaurant and kitchen on-site, offering a complete menu during the operating hours of
the establishment.
(4) Parking required for an alcoholic beverage establishment permitting partial nudity
shall be a minimum of one space per three seats, all of which shall be located on-site.
(5) An alcoholic beverage establishment permitting partial nudity shall have no exterior
signage describing or depicting the activities regulated by this article taking place
within the premises.
(6) Partial nudity in alcoholic beverage establishments shall occur only between the hours
of 8:00 p.m. and 4:00 a.m.
The minimum distance separation shall be measured by following a straight line from the main
entrance or exit in which partial nudity associated with an alcoholic beverage establishment occurs
to the nearest point of the property designated as RS, RM or RPS on the city's official zoning district
map or used for house of worship, school, or public park or playground. In cases where a minimum
distance is required between an alcoholic beverage establishment permitting partial nudity and
another adult entertainment establishment, the distance separation shall be determined by
measuring a straight line between the principal means of entrance of each use.
(c) Prohibited activities. No person shall own, operate, manage, work or perform at any alcoholic
beverage establishment permitting partial nudity on the premises unless the following
mandatory requirements are observed therein:
(1) Persons engaged in displaying partial nudity are prohibited from dancing or simulating
sexual activity with any patron, spectator, employee or other person on the premises.
(2) No person shall engage in the display or exposition of partial nudity except while the
person is positioned at least three feet from a patron.
(3) No person maintaining, owning or operating such an 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 partial nudity.
(4) No person on the premises of such 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 partial nudity.
(5) No partially nude person who performs in the establishment shall be permitted to
converse with patrons while on the premises prior to, during or after a performance.
(6) Prostitution or solicitation for prostitution as defined in the F.S. § 768.01 shall not
occur on the premises.
(7) There shall be no sale or use of controlled substances as defined in F.S. § 893.02(4)
on the premises.
(d)
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Compliance with codes, standards. The establishment shall be in compliance with all
applicable fire, property maintenance and building codes at all times. If a building is an
historic structure as defined in section 114-1, it shall conform with the secretary of the
interior's standards for historic places.
(e) Departmental reports. A certificate of use or occupational license shall not be issued until the
city manager or his designee receives reports from the city's police, fire, building services
and code compliance departments that the above regulations have been complied with.
M Variances. Variances to the provisions of subsections (a) and (b) of this section may be
granted pursuant to the procedure in section 118-351 et seq.
(Code 1964, § 18-10;Ord. No. 89-2665, § 12-4C, eff. 10-1-89;Ord. No. 90-2678, §2, 1-27-90;Ord. No. 90-2684, §
2, 3-3-90)
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Miami Beach, Florida, Code of Ordinances>> Subpart B -LAND DEVELOPMENT REGULATIONS>>
Chapter 142 -ZONING DISTRICTS AND REGULATIONS >>ARTICLE V. -SPECIALIZED USE
REGULATIONS >> DIVISION 3. -ADULT ENTERTAINMENT>>
DIVISION 3. -ADULT ENTERTAINMENT 11821
Sec. 142-1271.-Definitions.,
Sec. 142-1272.-Adult entertainment establishments prohibited in certain locations.
Sec. 142-1273.-Adult bookstores:display rental or sale of adult materials to minors prohibited.
Secs. 142-1274--142-1300.- Reserved.
Sec. 142-1271. - Definitions.
For the purpose of this division, the following terms, phrases and words shall have the
meaning given herein:
Adult bookstore means an establishment which sells, offers for sale or rents adult material
for commercial gain. This definition includes establishments selling or renting adult videos when
applicable under the above-stated conditions.
Adult booth means a small enclosed or partitioned area inside an establishment operated for
commercial gain which is designed or used for the viewing of adult material by one or more persons
and is 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. The term "adult booth" does not include a foyer through which any person can enter or exit
the establishment, or a restroom.
Adult entertainment establishment means any adult bookstore, adult booth, adult motion
picture theater or nude dancing establishment as defined in this section.
Adult material means one 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, videocassettes, slides or other visual representations; recordings, other
audio matter; and novelties or devices; which have as their primary or dominant
theme subject matter depicting, exhibiting, illustrating, describing or relating to sexual
conduct or specified anatomical areas as defined in this section; or
(2) instruments, novelties, devices or paraphernalia which are designed for use in
connection with sexual conduct as defined in this section, except for birth control
devices or devices for disease prevention.
Adult motion picture theater means an enclosed building used for presenting for observation
by patrons motion pictures, films, or video media, distinguished or characterized by an emphasis on
matter depicting, describing or relating to sexual conduct or specified anatomical areas as defined
in this section.
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Commercial gain means operated for pecuniary gain, which shall be presumed for any
establishment which has received an occupational license. For the purpose of this division,
commercial or pecuniary gain shall not depend on actual profit or loss.
Nude dancing establishment means an establishment operated for commercial gain wherein
performers or employees of the establishment display or expose to others specified anatomical
areas as defined in this section, regardless of whether the performer or employee so exposed is
actually engaging in dancing.
Sexual conduct means any sexual intercourse, masturbation, sodomy, bestiality, oral
copulation, flagellation, any sexual act which is prohibited by law, erotic touching, caressing or
fondling of the breasts, buttocks or any portion thereof, anus or genitals or the simulation thereof.
Specified anatomical areas as used in this division shall mean either of the following:
(1) Less than completely opaquely covered human genitals, pubic region, anal cleft, cleft
of the buttocks, and all or any part of the areola of the female breast; and
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely
covered.
The word "used" as utilized in the definitions of"adult booth" and "adult motion picture
theater" in this section shall describe a continuing course of conduct of exhibiting sexual conduct or
specified anatomical areas as defined in this section.
(Ord. No. 89-2665, § 12A-1, eff. 10-1-89; Ord. No. 90-2685, eff. 3-3-90)
Cross reference—Definitions generally, § 1-2.
Sec. 142-1272. -Adult entertainment establishments prohibited in certain
locations.
(a) No adult entertainment establishment is permitted on a parcel of land located:
(1) Within 300 feet of any district designated as RS, RM, or RPS on the city's official
zoning district map;
(2) Within 300 feet of any parcel of land upon which a house of worship, school, public
park or playground is located; or
(3) Within 1,000 feet of any parcel of land upon which another adult entertainment
establishment is located.
(b) The minimum distance separation shall be measured by following a straight line from the
main entrance or exit of the adult entertainment establishment to the nearest point of the
property designated as RS, RM, or RPS on the city's official zoning district map or used for a
house of worship, school, or public park or playground. In cases where a minimum distance
is required between an adult entertainment establishment and another adult entertainment
establishment, the distance separation shall be determined by measuring a straight line
between the principal means of entrance of each use.
(c) A hotel with a minimum of 300 hotel units shall be exempt from subsections (a)(1), (a)(2) and
(a)(3) of this section.
(Ord. No. 89-2665, § 12A-2, eff. 10-1-89; Ord. No. 90-2685, eff. 3-3-90)
Sec. 142-1273. -Adult bookstores; display rental or sale of adult materials to
minors prohibited.
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(a) Adult bookstores are prohibited from displaying adult material in such manner that such
material is visible to minors (persons under 17 years of age).
(b) Adult bookstores are prohibited from knowingly selling or renting adult material to minors. As
used in this subsection, "knowingly" shall mean having general knowledge of, reason to
know, or a belief or ground for belief which warrants further inspection or inquiry or both.
(Ord No. 89-2665, § 12A-3, eff. 10-1-89,Ord. No. 90-2685, eff. 3-3-90)
Secs. 142-1274-142-1300. - Reserved.
FOOTNOTE(S):
(182)Cross reference—Alcoholic beverages, ch. 6,businesses, ch. 18. Back
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Florida State Statute
847.0134 Prohibition of adult entertainment establishment that displays,
sells, or distributes materials harmful to minors within 2,500 feet of a
school.—
(1) Except for those establishments that are legally operating or have been
granted a permit from a local government to operate as adult entertainment
establishments on or before July 1, 2001, an adult entertainment establishment
that sells, rents, loans, distributes, transmits, shows, or exhibits any obscene
material, as described in s. 847.0133, or presents live entertainment or a motion
picture, slide, or other exhibit that, in whole or in part, depicts nudity, sexual
conduct, sexual excitement, sexual battery, sexual bestiality, or sadomasochistic
abuse and that is harmful to minors, as described in s. 847.001, may not be
located within 2,500 feet of the real property that comprises a public or private
elementary school, middle school, or secondary school unless the county or
municipality approves the location under proceedings as provided in s. 125.66(4)
for counties or s. 166.041(3)(c) for municipalities.
(2) A violation of this section constitutes a felony of the third degree, punishable
as provided in s. 775.082 or s. 775.083.
(9) "Nudity" means the showing of the human male or female genitals, pubic
area, or buttocks with less than a fully opaque covering; or the showing of the
female breast with less than a fully opaque covering of any portion thereof below
the top of the nipple; or the depiction of covered male genitals in a discernibly
turgid state. A mother's breastfeeding of her baby does not under any
circumstance constitute "nudity," irrespective of whether or not the nipple is
covered during 9
or incidental to feeding.
(20) "Specific sexual activities" includes the following sexual activities and the
exhibition of the following anatomical areas:
(a) Human genitals in the state of sexual stimulation or arousal.
(b) Acts of human masturbation, sexual intercourse, sodomy, cunnilingus,
fellatio, or any excretory function, or representation thereof.
(c) The fondling or erotic touching of human genitals, the pubic region, the
buttocks, or the female breasts.
(d) Less than completely and opaquely covered:
1. Human genitals or the pubic region.
2. Buttocks.
3. Female breasts below the top of the areola.
4. Human male genitals in a discernibly turgid state, even if completely and
opaquely covered.
I