Ordinance 90-2685 ORDINANCE NO. 90-2685
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, MAKING FINDINGS REGARDING ADVERSE EFFECTS
OF ADULT ENTERTAINMENT ESTABLISHMENTS, INCLUDING ADULT
MOTION PICTURE THEATERS, ADULT BOOKSTORES, ADULT BOOTHS,
AND NUDE DANCING ESTABLISHMENTS, ON THE COMMUNITY;
AMENDING COMPREHENSIVE ZONING ORDINANCE NO. 89-2665 BY
ADDITION OF SECTION 12A ENTITLED "ADULT ENTERTAINMENT
ESTABLISHMENTS", PROHIBITING ADULT ENTERTAINMENT
ESTABLISHMENTS WITHIN 300 FEET OF ANY DISTRICT DESIGNATED
AS RS, RM, OR RPS ON THE CITY'S OFFICIAL ZONING DISTRICT
MAP, OR WITHIN 300 FEET OF LAND UPON WHICH A HOUSE OF
WORSHIP, SCHOOL, PUBLIC PARK OR PLAYGROUND IS LOCATED,
OR WITHIN 1,000 FEET OF ANY OTHER ADULT ENTERTAINMENT
ESTABLISHMENT; AMENDING SECTION 7, ENTITLED "PARKING
REGULATIONS" BY AMENDING SUBSECTION 7-2, ENTITLED "OFF-
STREET PARKING REQUIRED", TO ESTABLISH A REQUIREMENT OF
ONE PARKING SPACE PER ONE ADULT BOOTH; AMENDING
SUBSECTION 16-7 OF SECTION 16, ENTITLED "BOARD OF
ADJUSTMENT" BY PROVIDING FOR APPLICATIONS FOR VARIANCES
OF THE DISTANCE REQUIREMENTS SET FORTH IN SUBSECTION 12-
A-2 (A) ; 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 BEI,
FLORIDA:
Section 1. Findings
That the City Commission of the City of Miami Beach, Florida makes
the following findings:
1) The United States Supreme Court in the cases of Young v.
American Mini Theaters, 427 US 50 (1976) and City of
Renton v. Playtime Theaters, Inc. , 475 U.S. 41 (1986) has
opined that municipalities may restrict the locations of
Adult Theaters, as defined in Section II herein, in order
to prevent serious community problems created by such
theaters. In the Renton opinion, the Supreme Court also
indicated that cities may enact legislation to protect
the quality of life within their communities.
2) Studies conducted by other local governments and reports
from police departments have indicated that there is a
direct relationship between adult entertainment
establishments and such adverse secondary impacts upon
the community as neighborhood deterioration, reduction
1
in property values and increased crime, especially
prostitution, rape, indecent exposure 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.
3) These studies have not indicated that there is any
relationship between shows in large hotels which feature
nude dancing and adverse secondary effects on the
community.
4) Reports from the City of Miami Beach Police Department
indicate occurrences of the above-stated adverse
secondary affects in connection with certain adult
entertainment establishments currently in operation in
Miami Beach.
5) Due to the above-stated adverse secondary effects
associated with adult entertainment establishments, such
establishments, when located in close proximity to each
other or to schools, places of worship, or residential
districts, constitute a nuisance in the community.
6) Some other local municipalities have recently enacted
ordinances restricting adult entertainment
establishments; the potential exists for some
establishments which have been restricted in those
municipalities to relocate in Miami Beach.
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7) The restrictions established in this Ordinance are
necessary to protect the quality of urban life and the
welfare of the citizens of the City of Miami Beach,
Florida.
8) The restrictions established herein will not result in
suppression of free expression and will leave open
adequate alternative avenues for such expression within
locations in the City not prohibited herein.
Section 2 . Addition of Section 12A to Zoning Ordinance 89-2665
That Miami Beach Comprehensive Zoning Ordinance No. 89-2665
is hereby amended by the addition of Section 12A, entitled "Adult
Entertainment Establishments, " to read as follows:
Section 12A
ADULT ENTERTAINMENT ESTABLISHMENTS
12A-1. Definitions
For the purpose of this Section, the following terms, phrases
and words shall have the meaning given herein:
A. "Adult Bookstore" shall mean 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.
B. "Adult Booth" shall mean a small enclosed or
partitioned area inside an establishment
operated for commercial gain which is (1)
designed or used for the viewing of Adult
Material by one or more persons and (2) 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
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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.
C. "Adult Entertainment Establishment" shall mean
any Adult Bookstore, Adult Booth, Adult Motion
Picture Theater or Nude Dancing Establishment
as defined in paragraphs A, B, E and G herein.
D. "Adult Material" shall mean 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, video
cassettes, 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 herein;
or;
2) Instruments, novelties, devices or
paraphernalia which are designed for
use in connection with Sexual
Conduct as defined herein, except
for birth control devices or devices
for disease prevention.
E. "Adult Motion Picture Theater" shall mean an enclosed
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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 hereafter defined.
F. "Commercial Gain" shall mean operated for pecuniary
gain, which shall_ be presumed for any establishment
which has received an occupational license. For the
purpose of this Section, commercial or pecuniary gain
shall not depend on actual profit or loss.
G. "Nude Dancing Establishment" shall mean an establishment
operated for commercial gain wherein performers or
employees of the establishment display or expose to
others Specified Anatomical Areas as defined
hereinafter, regardless of whether the performer or
employee so exposed is actually engaging in dancing.
H) "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.
I) "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
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turgid state, even if completely and
opaquely covered.
J. The word "Used" as utilized in paragraphs B and E above
shall describe a continuing course of conduct of
exhibiting Sexual Conduct or Specified Anatomical Areas
as defined in paragraphs H and I above.
12A-2 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; or,
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 principle means of entrance of each Use.
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C. Exemption:
1. A Hotel with a minimum of three hundred (300) Hotel
Units shall be exempt from Section 12A-2 (A) (1, 2 ,
and 3) .
12A-3 ADULT BOOKSTORES - DISPLAY RENTAL OR SALE OF ADULT
MATERIALS TO MINORS PROHIBITED
A. Adult Bookstores are prohibited from displaying Adult
Material in such manner that said 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. )
Section 3. Addition of Adult Booth Parking Requirement
That Subsection 7-2 of City of Miami Beach Comprehensive
Zoning Ordinance No. 89-2665, entitled "Off-street Parking
Required" is hereby amended to read as follows:
SECTION 7
PARKING REGULATIONS
*
7-2 Off-Street Parking Required
Except as otherwise provided in this Ordinance,
when any Building or Structure is erected or
altered,accessory Off-Street Parking Spaces
shall be provided for the Building, Structure
or additional Floor Area as follows:
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A. Parking District No. I
1. Adult Booth, as defined in
Section 12A of this
Ordinance - 1 parking
space per one Adult Booth.
1. 2 Adult Congregate Living Facility - 1 space per
2 beds.
* * *
Section 4. AMENDMENT OF SUBSECTION 16-7
That Subsection 16-7 of Section 16, entitled "Board of
Adjustment" of City of Miami Beach Comprehensive Zoning Ordinance
No. 89-2665 is hereby amended to read as follows:
Section 16
BOARD OF ADJUSTMENT
16-7 POWERS AND DUTIES
A. The Board of Adjustment shall have the following powers
and duties:
1. To hear and decide appeals when it is alleged that
there is error in any order, requirement decision,
or determination made by an administrative official
in the enforcement of this Ordinance with the
exception of appeals pursuant to Section 17-4H. In
the event of an Administrative Appeal to the Board
of Adjustment, the Planning and Zoning Director may
engage the services of an attorney for the purpose
of representing the Administrative Officer who made
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the decision that is the subject of the appeal.
In exercising this power, the Board of Adjustment,
may upon appeal, reverse or affirm, wholly or
partly, the order, requirement, decision, or
determination, and to that end shall have all the
powers of the officer from whom the appeal is
taken. The concurring vote of four (4) members, of
the Board shall be necessary to reverse any order,
requirement, decision, or determination of any such
administrative official or to decide in favor of
the Applicant on any matter upon which the Board is
required to pass under Ordinance.
2 . To authorize, upon application such Variance from
the terms of this Ordinance as will not be contrary
to the public interest when, owing to special
conditions, a literal enforcement of a provision of
this Ordinance would result in unnecessary and
undue hardship. An application for a Variance
shall be limited to the following development
regulations: height, average and minimum unit sizes
(but not the average unit size when used in
determining the bonus for the Floor Area Ratio) ,
setback areas, size and location of Signs, Open
Space Ratio, distance requirements of Subsection
12A-2 (A) (1, 2 , and 3) , and off-Street parking and
loading requirements (however, no Variance shall be
given for off-Street parking for less than one
space per Apartment Unit or Hotel Unit, or a
request pertaining to the reduction of an impact
fee, or for Lot Area when determing Floor Area
Ratios) . In order to authorize any Variance from
the terms of this Ordinance, the Board of
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Adjustment shall find:
Section 5. Severability.
If any section, subsection, clause or provision of this
Ordinance is held invalid, the remainder shall not be affected by
such invalidity.
Section 6. Repealer.
All Ordinances or parts of Ordinances in conflict herewith be
and the same are hereby repealed.
Section 7 . Effective Date.
This Ordinance shall take effect on the 3rd day of
March 1990.
PASSED and ADOPTED this 21st day of February
1990.
VICE- MAYOR
ATTEST:
FORM APPROVED
",ThLEGAL DEPT.
CITY CLERK e i
1st Reading 2/7/90 By
2nd Reading 2/21/90 2�Y/90
a\nudeor4d Date
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OFFICE OF THE CITY MANAGER CITY HALL
ROB W.PARKINS 1700 CONVENTION CENTER DRIVE
CITY MANAGER TELEPHONE: 673-7010
COMMISSION MEMORANDUM NO. I I CIt
DATE: FEB. 21, 1990
TO: Mayor Alex 6.oud and C
Members •' the City Comm' si-,,,/—
rV
FROM: Rob W. Par ' s lr '
City Manager '°
SUBJECT: AN ORDINANCE AMENDING ZONING ORDINANCE 89-2665 BY THE
ADDITION OF REGULATIONS PERTAINING TO ADULT ENTERTAINMENT
ESTABLISHMENTS
BACKGROUND
On February 7 , 1990, the City Commission approved on first reading
a zoning ordinance amendment which requires distance separations
for adult entertainment establishments (adult motion picture
theaters, adult bookstores, peep shows, and nude dancing) . The
ordinance also exempts hotels with a minimum of 300 rooms from the
distance separation requirements.
In December, 1989 and January, 1990, the City Commission was
provided with copies of studies conducted by other local
governments and from the City of Miami Beach Planning and Zoning
Department. These reports shall be construed to be a part of the
permanent record of the adoption proceedings regarding this
Ordinance. These studies are: (1) the Minneapolis Report of the
Attorney General ' s Working Group on the Regulation of Sexually
Oriented Businesses, conducted in 1989 ; (2) 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 ; (3) the study conducted by the Phoenix Arizona Planning
Department in 1979 entitled Relation of Criminal Activity and Adult
Businesses; and (4) The Regulation of Adult Entertainment
Establishments in the City of Miami Beach: Analysis, Findings and
Recommendations Pertaining to Adult Motion Picture Theaters,
prepared by the CMB Planning and Zoning Department in December,
1989 .
CITY COMMISSION ACTION - FIRST READING
On first reading (February 7 , 1990) , the City Commission approved
an adult entertainment ordinance which followed the Planning Board
ordinance, with one amendment. The amendment increased the size
of the hotels which are exempt from the distance separation
requirements of the ordinance, from a minimum of 250 rooms
(Planning Board ordinance) to 300 rooms.
PLANNING BOARD ACTIONS
On January 15 and 16, 1990, the Planning Board held two public
hearings and considered two separate Zoning Ordinance amendments -
one Ordinance restricts the location of nude bars while the other
Ordinance pertains to all other forms of adult entertainment
(movies, bookstores, peep shows) .
.36
AGENDA
ITEM R- 3
DATE ' .--2. 1 - I CI
f
Prior to the public hearing, one of the members (James Silvers)
determined he may have a conflict of interest and left the meeting.
As such, six of the seven members were present throughout the
entire meeting. As set forth in the Zoning Ordinance, in order for
a motion to receive an affirmative recommendation from the Planning
Board, it is necessary that five votes be cast in favor of a
motion. If a motion receives four of the six votes, it fails to
pass. This is the same situation where the Board of Adjustment
requires four of five votes in order to approve a variance.
The attached Ordinance, which only received four votes in favor
and two against, was not recommended by the Planning Board because
it failed to receive five votes. The four votes in favor were cast
by Norman Frank, Stephen Hertz, Keith Kovens, and Ralph Mizrahi.
The two dissenting votes were cast by Joy Alschuler and Neisen
Kasdin. The dissenters voted against the Ordinance because 1) it
allowed adult entertainment establishments in the Redevelopment
Area, and; 2) the Ordinance did not expand the 300 ft. to 400 ft.
separation from a school, place of worship, park and playground
for adult entertainment establishments.
The following motions also failed because they did not receive 5
votes. A motion to expand the separation between schools and nude
bars from 300 ft. to 400 ft. failed four to two. Similarly, a
motion to prohibit adult entertainment establishments in the
Redevelopment Area failed on a Vote of four votes in favor and 2
against.
As required in the Zoning Ordinance, the Planning Board ' s
recommendation, which is not to approve the attached Ordinance,
(four to approve - two to deny) is hereby transmitted to the City
Commission.
SUMMARY OF THE ORDINANCE
The basic concepts included in the proposed ordinance are as
follows:
1. Distance separation will include a minimum distance of 300 ft.
from residential zoning districts (RS, RM, or RPS) , house of
worship, school, public park or playground; 1000 ft. distance
separation from another adult entertainment establishment.
Provides for variances from Zoning Board of Adjustment for
distance separation requirements.
2 . Allows adult entertainment establishments anywhere in the
Redevelopment Area, provided that they meet the above distance
separation requirements.
3 . Grandfathers-in existing establishments.
4 . Exempts hotels of a minimum size (300 units) from distance
separation requirements.
5. Provides for penalties in City Code (fines, imprisonment) and
in Zoning Ordinance (Code Enforcement Board fines) .
ANALYSIS OF THE PROPOSED ORDINANCE
A. Distance Separations
The distance separations set forth in the proposed ordinance
strictly limit the number of potential locations for adult
entertainment establishments in the City. The 1000 feet required
between any two adult entertainment establishments reflects an
accepted method of dispersing these businesses in order to limit
any negative impacts which could be caused by a concentration of
such uses.
B. Hotel Exemptions
The ordinance provides for an exemption from the distance
separation requirements for hotels containing 300 or more rooms.
(The City Commission raised this figure from the Planning Board' s
recommendation of 250 rooms. ) A total of 11 hotels have 300 rooms
or more (18 hotels have 250 rooms or more) . There have been no
studies performed in other cities which have shown that these types
of activities in hotels cause any negative secondary impacts on the
community.
ADMINISTRATION RECOMMENDATION
The Administration recommends that the City Commission adopt the
Ordinance as amended on first reading.
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