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Ordinance 90-2678 ORDINANCE NO. 90-2678 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA MAKING FINDINGS OF FACT; AMENDING MIAMI BEACH CITY CODE CHAPTER 18, ENTITLED "INTOXICATING LIQUORS" BY ADDITION OF ARTICLE II, ENTITLED "TOTAL AND PARTIAL NUDITY AND SEXUAL CONDUCT IN ALCOHOLIC BEVERAGE ESTABLISHMENTS," PROHIBITING TOTAL NUDITY OR SEXUAL CONDUCT IN ESTABLISHMENTS WHERE ALCOHOLIC BEVERAGES, BEER OR WINE ARE SOLD OR OFFERED FOR SALE FOR CONSUMPTION ON THE PREMISES AND PROHIBITING ANY PERSON MAINTAINING, OWNING OR OPERATING SAID ESTABLISHMENTS FROM PERMITTING OR SUFFERING TOTAL NUDITY OR SEXUAL CONDUCT THEREIN; ESTABLISHING MANDATORY REQUIREMENTS FOR ALCOHOLIC BEVERAGE ESTABLISHMENTS PERMITTING PARTIAL NUDITY; PROVIDING FOR PENALTIES; PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: Section 1. Findings That the City Commission of the City of Miami Beach, Florida makes the following findings: a) A number of alcoholic beverage establishments in the City of Miami Beach, Florida, permit or suffer Total or Partial Nudity or Sexual Conduct as defined herein within their establishments. b) A number of alcoholic beverage permittees have indicated an intention to create new establishments in Miami Beach, Florida, which will permit or suffer Total or Partial Nudity or Sexual Conduct within such establishments. c) Some other local municipalities have recently prohibited Total or Partial Nudity and Sexual Conduct, as defined herein, in establishments where alcoholic beverages, beer or wine are sold or offered for sale for consumption on the premises; the potential exists for some establishments which have been prohibited in those municipalities to relocate in Miami Beach. d) Studies conducted by other local governments and reports from police departments have indicated that there is a direct relationship between adult entertainment establishments, (especially those which sellalcoholic beverages for on-premises consumption, ) and such adverse secondary impacts upon the community as neighborhood deterioration, reduction in property values and increased crime, especially prostitution, rape, indecent exposure 1 and child molestation; some of the most notable studies are the Minneapolis Report of the Attorney General ' s Working Group on the Regulation of Sexually Oriented Businesses conducted in 1989 ; the Saint Paul Minnesota Planning and Economic Development and the Minnesota Crime Control Planning Board' s study, Effects on Surrounding Area of Adult Entertainment Businesses in Saint Paul, conducted in June of 1978 ; and the study conducted by the Phoenix Arizona Planning Department in 1979 entitled Relation of Criminal Activity and Adult Businesses. e) Reports from the City of Miami Beach Police Department indicate occurrences of the above-stated adverse secondary effects in connection with nude bars currently in operation in Miami Beach. f) Due to the above-stated adverse secondary effects associated with alcoholic beverage establishments which permit Total Nudity or Sexual Conduct as defined herein on their premises, such establishments constitute a nuisance in this community. Partial Nudity constitutes a nuisance unless such establishments comply with the mandatory requirements set forth herein. g) In City of Renton v. Playtime Theaters, Inc. , 106 5. Ct. 925 (1986) , the United States Supreme Court held that cities have the authority to enact preventative legislation regarding adult entertainment to protect the quality of life within their communities. h) In International Food & Beverages Systems v. City of Fort Lauderdale, 664 F.Supp. 482 (S. D. Fla. 1987) , aff'd, 838 F. 2d 1220 (1988) , and Fillingim v. Boone, 835 F. 2d 1389 (11th Cir. 1988) , federal courts have recently held that municipalities in Florida may exercise the State ' s authority under the Twenty-first Amendment to the United States Constitution to prohibit nude and semi-nude entertainment in establishments which sell alcoholic beverages for consumption on the premises. i) In order to preserve the public peace and good order and to safeguard the health, safety and welfare of the community and citizens of Miami Beach, Florida, it is necessary and advisable to prohibit Total Nudity or Sexual Conduct in alcoholic beverage 2 establishments and to establish mandatory requirements for alcoholic beverage establishments permitting or suffering Partial Nudity. Section 2 . Addition of Article II to City Code Chapter 18 That Miami Beach City Code Chapter 18, entitled "Intoxicating Liquors" be amended by the addition of an Article II, entitled "Total and Partial Nudity and Sexual Conduct in Alcoholic Beverage Establishments" to read as follows: CHAPTER 18 INTOXICATING LIQUORS * * * Article II. Total and Partial Nudity and Sexual Conduct In Alcoholic Beverage Establishments. § 18-8 . Definitions. § 18-9 . Total Nudity and Sexual Conduct prohibited. § 18-10. Mandatory requirements established for Alcoholic Beverage Establishments permitting Partial Nudity. § 18-11 . Enforcement and Penalties. Article II. Total and Partial Nudity and Sexual Conduct In Alcoholic Beverage Establishments. Sec. 18-8 Definitions. The following words and phrases, when used in this Article, shall have the meanings respectively ascribed to them as follows: (1) "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. /2) "Alcoholic Beverage" , "Beer" and "Wine" shall have the meanings set forth in Florida Statutes Sections 561. 01 (4) , 563 . 01,_,_ and 564 . 01 respectively. 3 (3) "Nudity, Partial" means the exhibition by any female person 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) . (4) "Nudity, Total" means the showing of all or any portion of the cleft of the human male or female buttocks with less than a full opaque covering; the showing of all or any portion of the female areola; the depiction of covered male genitals in a discernibly turgid state; the exhibition by any person 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. (5) "Person" means an individual , corporation, firm, partnership, limited partnership, association, joint stock association, estate, trust or business entity. (6) "Sexual Conduct" means any sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, any sexual act which is prohibited by law, touching, caressing or fondling of the breasts, buttocks or any portion thereof, anus or genitals or the simulation thereof. 4 Section 18-9 . Total Nudity and Sexual Conduct Prohibited. (1) 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. (2) It shall be unlawful for any person, while on the premises of an Alcoholic Beverage Establishment to expose to public view those portions of his or her anatomy, defined herein as Total Nudity, or engage in any Sexual Conduct. Section 18-10. Mandatory requirements established for Alcoholic Beverage Establishments permitting Partial Nudity. No Person shall own, operate, manage, work or perform at any Alcoholic Beverage Establishment which permits 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 (3) 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 As amended on 1/17/90 5 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 Florida Statute Section 768 . 01 shall not occur on the premises; 7 . There shall be no sale or use of controlled substances as defined in Florida Statute Section 893-02 (4) on the premises; 8 . The Establishment shall be in compliance with all applicable fire, property maintenance and building codes at all times. If a Building is a Historic structure as defined in Section 3-2 . 80 of City of Miami Beach Zoning Ordinance No. 89-2665, it shall conform with the U.S. Secretary of Interior' s Standards for Historic Places; and, 9 . 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 and Code Enforcement Departments that the above regulations have been complied with. Section 18-11. Enforcement and Penalties. Section 18-9 of this Article shall be enforced as provided in Section 25 of the City Charter and violations of Section 18-9 shall be As amended on 1/17/90 6 punished as provided in Miami Beach City Code Section 1-8 . Section 3 . Severability. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. Section 4 . Repealer. All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. Section 5. Effective Date. This Ordinance shall take effect on the 27th day of January , 19 90 . PASSED and ADOPTED this 17th _ day of January 19 90 c VICE-MAYOR ATTEST: CITY CLERK 1st Reading 1/3/90 2nd reading 1/17/90 commisn\cordnude FORM APPROVE° LEGAL DEPARTMENT DTE: V' m._ eitei Nel t Fe4C \PMS a fqc FLORIDA 3 3 1 3 9 * INCORP D�*1 GACA TIONL,4ND U. S. A. - . . / s OFFICE OF THE CITY MANAGER CITY HALL ROB W.PARKINS 1700 CONVENTION CENTER DRIVE CITY MANAGER TELEPHONE: 673-7010 COMMISSION MEMORANDUM NO. I 1 Off' DATE: January 17 , 1989 TO: Mayor Alex Daoud Members of t ity Commis 'RI� FROM: Rob W. Parki•s IF ''!il City Manager 1 I SUBJECT: AMENDMENT TO THE CITY CODE REGULATING NUDITY IN ALCOHOLIC BEVERAGE ESTABLISHMENTS SUMMARY OF THE PROPOSED ORDINANCE 1. Prohibits Total Nudity and Sexual Conduct in alcoholic beverage establishments anywhere in the City. 2 . Permits Partial Nudity (dancing with performers wearing pasties and a G-string that covers the cleft of the buttocks and the pubic area) in alcoholic beverage establishments provided that certain mandatory standards are maintained. These are: a. Partially nude performers shall not dance or simulate sex with any person. b. Partially nude performers shall perform at least 3 feet away from any other person. c. Partial Nudity in screened or partitioned areas is prohibited. d. Performers may not converse with patrons before, during or after a performance. e. Prostitution is prohibited. f. Illegal drugs are prohibited. g. The building shall comply with all applicable building, fire and property maintenance standards and codes. h. A Certificate of Use/Occupational License shall not be issued until all codes are complied with. 3 . Grandfathers in existing establishments for Partial Nudity only. They shall also meet mandatory standards. 4 . Does not provide for distance separations, locational restrictions (schools, places of worship, parks, playgrounds, Redevelopment area, residential uses) variance exemptions or minimum number of rooms in hotel buildings. These types of controls may only be included in the Zoning Ordinance rather than the City Code. The Planning Board considered a Zoning Ordinance amendment that addressed these regulations on January 15, 1990 at 7 : 00 p.m. in the City Commission Chambers. 5. Provides for penalties of fines and imprisonment as per Section 1-8 of the City Code. AGENDA ITEM DATE I - -co BACKGROUND. On December 20, 1989 , the City Commission held a public hearing to consider an amendment to the City Code prohibiting nudity in alcoholic beverage establishments. The first proposed ordinance applied to all establishments, whether currently operating or proposed in the future. Several Commissioners expressed concerns over the previously proposed ordinance including the desire to allow hotels to show Parisian-style revues which generally include Partial Nudity. Also a matter of some concern was the immediate effect of the Ordinance upon existing establishments. At the conclusion of the discussion, City Commissioners directed the City Attorney' s Office and Administration to meet with attorneys for current and proposed nude establishments (The meeting could not be scheduled until January 2 , 1990, due to vacation schedules of the attorneys representing nude bar owners) . The City Commission voted to refer the Ordinance back to the City Attorney for revisions which would reflect the comments made during the hearing. On January 3 , 1990, the City Commission approved (6-0) an ordinance on first reading which prohibits total nudity (including topless) and sexual conduct in alcoholic beverage establishments. It permits partial nudity (pasties 'and G-string) if certain mandatory standards are met. ANALYSIS OF ORDINANCE The ordinance adopted on first reading prohibits Total Nudity and Sexual Conduct in alcoholic beverage establishments anywhere in the City; but, permits Partial Nudity in such establishments provided that certain mandatory requirements are met. Partial Nudity refers to performers who are wearing a minimum of a G-string which covers the cleft of the buttocks and the pubic area and pasties covering the areola. The mandatory requirements affecting partial nudity in alcoholic beverage establishments are as indicated in the summary of this memorandum. The proposed Ordinance does not grandfather in the existing establishments (Thrillers - 1716 Alton Rd. and Showgirls - 215 - 22nd St. ) for total nudity and sexual conduct. It does, however, permit them to have partial nudity if the mandatory criteria are met. This proposed City Code amendment does not include any distance separation requirements or locational restrictions (schools, places of worship, parks, playgrounds, Redevelopment area, residential uses) on alcoholic beverage establishments permitting Partial Nudity. These further restrictions can only be contained within a Zoning Ordinance amendment as they relate to land use issues. A Zoning Ordinance amendment further restricting Partial Nudity in alcoholic beverage establishments was presented to the Planning Board on December 27 , 1989 . At that time, the Board deferred action on the Ordinance until January 15, 1990. On January 17 , 1990, the City Commission will also be asked to set a public hearing on first reading of a proposed Zoning Ordinance amendment further restricting nude bars, but permitting Partial Nudity in hotels with at least 300 rooms. Administration Recommendation The Administration recommends that the City Commission adopt the attached Ordinance on second and final reading. RWP:JK:SRP: jm a:ccnudecode 24 cO 0 cd •ri -00 d-.1 ,5.1 W fy' a7 •H ND a-1 Co 3-1 'd 0 )a U a) cd 1.1 -0 0 P a) -0 cd f1. 0 'J -0 0 7 •ri cd .41 cd G TS a) a) v) a) 0 C U Cl. 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