Ordinance No.: 01AN
18
ORDINANCE
REGULATIONS
THEATERS
RELATING
OF
THE
TO
CITY
THE
AND
TO
AND MOTELS, COMMONLY
LAND
DEVELOPMENT
SEXUALLY ORIENTED
BOOKSTORES,
CALLED ADULT
ENTERTAINMENT BUSINESSES; AMENDED ARTICLE III OF THE
LAND DEVELOPMENT REGULATIONS OF THE CITY BY THE CREATION
OF A NEW SECTION TO BE KNOWN AS SECTION 3.
06. 02 ESTABLISHING
PROHIBITED
ACTS; PROVIDING
PROVISIONS
FOR
MAKING
FINDINGS
CERTAIN
ON
COMMERCIAL ACTIVITIES;
DEFINITIONS; ESTABLISHING
VIOLATIONS; ESTABLISHING
COMMUNITY
PENALTIES;
STANDARDS; PROHIBITING
DEFINING
ESTABLISHMENTS;
PROVIDING
FOR REPEAL;PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the
City Commission
Augustine Beach,Florida
of St.
is in the best interest of the citizens of the City
to
enact Ordinances
concerning
activities,described herein,in order to protect the quality
of its citizens, and property values and to define and uphold
finds and determines that it
of
certain
adult entertainment
life,health, safety
and
welfare
contemporaneous community standards;
and,WHEREAS,
the City
throughout
the
of obscene
State of Florida and the County
materials and sexually
increase
and uphold
concerning
Commission finds and
determines that in areas
of
oriented
surrounding
St.Johns, with the increase in the sale and display
adult entertainment activities, there
in crime and that in order to promote the health, safety
the
contemporaneous community
such
the City and
standards, it
and
is a
cor esponding
welfare of its citizens
is neces ary to enact these Ordinances
establishments, activities, materials; and,WHEREAS,
since the City
Commission finds that,historically in St.Johns County and in the 1
decent
a
society.
0 2
0 City,sexually oriented bookstores, theaters, hotels, motels and such
have been found and do
not
exist currently in
Johns
St.
County and
related businesses
in the City, this is a clear
and definitive expression of the contemporaneous community standard and ample reason to
enact these Ordinances in order
to maintain and
uphold these
community standards;and, NOW THEREFORE BE IT ENACTED, BY THE CITY
COMMISSION OF THE CITY OF ST.
AUGUSTINE BEACH, FLORIDA: SECTION 1.Article III
City of
of the Land Development Regulations of the
Augustine Beach is hereby amended by the addition
St.
of
a new
section
to be known as Section 3.
06. 02
to read as follows:
06.
02.
Sec.3.
Subject. This Section applies to
oriented business establishments. A.
bookstores, theaters, arcades, adult massage parlors, adult bath houses, hotels and motels and
any other business that offers books and other printed materials, motion
pictures, video tape recordings, tapes, rubber goods or other sexually oriented paraphernalia,
or lodgings which have as their dominant or primary theme matters related
Sexually
specified anatomical
to
purpose
conduct. These
establishments
areas. B. Purpose. This Section is enacted for the
of expressing and protecting contemporaneous community standards of
standards
and
herein
the Untied
do
sexually
not
permit
the operation of
sexually
oriented
oriented activities as described
Section
Findings. The City Commission finds that
IV.C.
States Supreme Court has formulated constitutional
in
guidelines,
including the fol owing: 1.
Obscene material is not protected
under
the First Amendment.
2.
The
government has
a
legitimate
interest
in protecting the public commercial environment by preventing obscene materials from
entering
the
stream
of
commerce. 3.With regard
a right of the nation and of
the
states
maintain
to
to
the regulation
of
obscenity, there is
The
4.
obscene
decency
may be enforced
against
publications.
5.
With
permissible under the
they
First Amendment, the
they
may chart their
obscenity
Supreme Court.
6. The states have
statute
regulation of obscene
Untied States Supreme Court
material
does not
but rather undertakes to define the
must do,
in
own course
construction of a state
Untied States
to the scope of
regard
undertake to tell states what
which
of
primary requirements
by
dealing
the state'
s
area
in
with obscene material. The
highest
court is
biding on the
legitimate interest in regulating the use of obscene
material in local commerce and in all places of public accommodation, including socalled " adult" motion picture theaters from which minors are excluded as long as such
regulations do not run afoul of specific constitutional prohibition.
a
7. Under the First and Fourteenth Amendments, the
Constitutionally
permissible scope of state regulation of obscene materials is confined to works which
depict or describe sexual conduct, which conduct must be specifically defined by the
applicable state law, as written or authoritatively construed.
8.
Under the First and Fourteenth Amendments,
obscene materials must be limited to works that, taken
a
state offense
relating
appeal
the prurient interest in sex; that portray sexual conduct in a patently offensive way;
and that, taken as a whole, do not have serious literary, artistic, political, or scientific
to
as a
whole,
to
value.
With
9.
obscene materials,
regard to constitutionally permissible
the basic guidelines for the trier of fact must
state
regulation of
be:
a) Whether the average person,
applying contemporary community
standards, would find that work taken as a whole, appeals to the prurient interest;
and,
b) Whether the work
sexual conduct
specifically
defined
depicts, describes in a patently offensive
by the applicable state law; and,
Whether the work, taken
way,
whole, lacks serious
literary, artistic,
political, or scientific value - there being no requirements that the work be " utterly
without redeeming social value" or " social importance." If a state law that regulates
c)
obscene material is thus limited
to the State
applicable
by the ultimate
as
written
as a
or
construed, the First Amendment values
the Fourteenth Amendment
through
power of appellate
courts to conduct
constitutional claims when necessary.
an
adequately protected
independent review of
are
E
0 0
10.With regard to
the
standard for constitutionally
permissible
work must depict or describe, in
a patently offensive way, sexual conduct "specifically defined by the applicable state
law,"
a state statute may properly define
state regulation of obscene material that the
regulation;a)
patently offensive representations ordescriptions of
or
perverted,
actual
or
normal
for
ultimate
sexual
acts,
patently offensive representations or descriptions of
and b)
masturbation, excretory functions, lewd exhibition of the
simulated,
genitals.
powers of the
states
as
Although fundamental First Amendment limitations on the
11.
to obscene materials do not vary from community to
community, nevertheless this does
not
mean that
uniform national standards of precisely
offensive,"obscenity is to be
community
standards," not national
standards.
12. Under
Mil er
are,
or
should or
can be fixed
interest" or
what appeal to the prurient
"
its "
determined by applying contemporaneous
"
patently
obscenity announced in
there
California, it
v.
constitutional
standards
for determining
to allow juries to rely on
is
from which they come as to
permissible
the understanding of the community
contemporaneous community standards of obscenity, and that states have a considerable latitude
in framing statutes under such element of the Miller decision. A state may choose
to define an obscenity offense in terms of contemporary
" community standards"
without further specification, or it may choose to define the standards in more
precise geographic
terms.
Although a state may constitutionally
13.
proscribe obscenity in
precise geographic area is not required as a
terms of a statewide"
" standard, any such
matter of constitutional
person
law. 14. The state may constitutionally punish the conduct of a
engaged in the commercial exploitation of the morbid and shameful craving
for materials
with prurient
effect.
15.
Expression by words also can be legally "obscene" in the sense
of being unprotected by the First Amendment, and an obscene book is not protected
by the First Amendment merely because it contains no
pictures.
itself in conduct,
written
16.
Obscenity,unprotected by the First Amendment, can manifest
in the pictorial representation of conduct, or in the oral and
description of
conduct.
area
enclosed
to
to
0
0 17.
Commercial exposure and sale of obscene materials
designed or
anyone,including consenting adults, is not constitutionally protected and is subject
state
not
regulation.
acquire
Obscene, pornographic motion picture films do
18.
from state regulation simply because they are
constitutional immunity
for
exhibited
consenting
adults. The City Commission finds that in areas surrounding the City and
there is an increase in
the public display of obscenity and
sexually explicit adult entertainment for commercial purposes that poses a real danger to
the quality of life and the value of real estate property and is a detriment to the
Johns County
St.
health,safety and
welfare
Statute
of the citizens. The City Commission finds
847. 0125 which forbids the retail display of
agreement with Florida
certain
books, magazines,
periodicals, or other printed matter,considered to
be
harmful to minors. The City Commission finds that
commercial sexually oriented entertainment and display or sale of sexually oriented material tends to
foster and encourage crime.These activities are dangerous to law abiding citizens
living, traveling or
conducting
lawful
business
when used in this
ascribed
the
nearby.D.Definitions. The following words, names, or phrases
Ordinance, shall have the following definitions
to them
respectively:
City Commission" means
1.
" specifically
City Commission
of
St.
Augustine
Beach,
Florida. 2.
State"
means
e.,
State"
"for the purpose of this Ordinance will mean
i.
Commission of St.
Augustine Beach,
Florida,
where
a Florida
for any form
consideration,
projectors, slide
for
are
films,
or other
photographic
3.
Adult Arcade" means
"
an establishment
or
motion
picture
one
more
municipal corporation.
of
projectors or similar machines,
used to show
locally governing body,
"
the City
the
viewing by five (5)or fewer persons each,
motion pictures,
video cassettes, slides,
reproductions
or illustrations which are characterized by emphases
of specified sexual activities or specified anatomical areas.
this Ordinance, adult arcade is included within the
upon the depiction or
For the purpose of
description
definition
of
adult motion picture theater.
an
4.
Adult
"
Motion
Picture
Booth"mans
or;
areas
0 used
of motion pictures,
films, video cassettes, slides, illustrations, or other photographic reproductions which have
as their primary or dominant theme matters depicting, illustrating or relating to
specific sexual activities or specified anatomical areas. For the purpose of this Ordinance,
an adult motion picture booth is included within the definition of an adult
0
IN
for the
picture
or more persons
theater. 5.
Adult"
Motion
its
part
of
Picture Theater"
means
an
enclosed building
or
or an open an
air theater designed
to permit viewing by patrons seated in automobiles, standing or sitting within
viewing range, used to present, for any form of consideration, film material which has as
a
portion or
viewing by one
primary or dominant
specified sexual activities
enclosed building,
theme, matters
depicting,
illustrating
or
relating
to
for observation by adult patrons thereof, and includes any
house, rooming house or other lodgings for patrons which
hotel,motel, boarding
present such motion pictures, films, video cassettes, slides or other photographic
reproductions or illustrations which have as their primary or dominant theme
matters depicting, illustrating, or relating to specified sexual activities or specified anatomical
areas. For the purpose of this Ordinance, an adult motion picture theater is included
within the definition of adult
entertainment
where live and
establishment. 6.
Adult"
Theater" means any place indoors or out of doors
humans
animals are
in a play,drama, single person
act, traveling show, exhibition or entertainment which have as their primary
dominant theme matters depicting, illustrating or relating to specified sexual activities
or
specified
dead
or
used
anatomical areas. For the purpose of
Ordinance, an adult theater
this
is included within the definition of adult
entertainment
establishment. 7.
Adult
"
commercial establishment that permits, suffers or allows
anatomical
persons
Dancing Establishment"
to
or expose specified
to use or simulate use
display
areas or allows
of
means a
persons to display or allows persons
sexually oriented paraphernalia, instruments or devices
the purpose of this Ordinance, adult dancing
with
For
within the definition of an adult
entertainment
sale for
one or more
establishment. 8.
Adult
any
Bookstore" "a
means
consideration, or displays for viewing by
the
place
humans
or animals.
establishment is included
which
sells or offers for
patrons or
browsers""
any
Books, magazines, periodicals or
other
following: a)
printed matter, or photographs, drawings, films,motion pictures, video cassettes, slides,
prints,or other visual representations or recordings, novelties or devices which have
as their primary or dominant
theme matter depicting, illustrating, describing or
relating to specified sexual activities or specified
of
anatomical
said
at
0 0 b)
7
Instruments, devices or
paraphernalia
which
are
designed
for use in
a
place
with
connection with specified sexual activities. An adult bookstore includes
only a portion or section of its area used for display or sale to
persons of materials listed
in
subsection ( a)of
the above. For the purpose of
the Ordinance,adult bookstore is included within the definition of adult
entertainment
establishment. 9.
Adult
means a place where
by rubbing,stroking, kneading or tapping
employee accompanied by the display of exposure
of specified anatomical areas, but not including health care facilities,licensed physicians
or nurses engaged in the practice of their professions, establishments
"
Massage Parlor"
anatomical areas of one person are touched
by another person, who is an
specified
registered under Chapter 480,
Florida Statutes, educational athletic facilities if
a
normal and usual practice
if the massage
the
massage is
in such facilities, and health clubs and athletic societies
to or a normal part of the health and athletic
societies thereof, except where sexual intercourse takes place.For the purpose of this
Ordinance,an adult massage parlor is included within the definition of
is incidental
adult
commercial
entertainment establishment.
establishment
where whirlpools,
10.Adult "
Bathhouse"
saunas,
steam
means a
baths, pools, or similar
devices are
used
by patrons or persons for lewd or indecent exposure, as described in Florida
Statutes 800,of specified anatomical areas or any other specified sexual activities,
as listed in subsection 17 of these definitions. For the purpose of this
Ordinance, an adult bathhouse is included within the definition of
adult
an adult
an adult
motion
entertainment establishment. 11.
Adult
"
Entertainment Establishment" means
picture theater, an adult
theater,
adult
bookstore, an
adult
dancing establishment,
massage parlor,
or
adult
For the purpose
this
of
Commercial" means
12.
"
operated for pecuniary gain.
for
pecuniary
Ordinance, operation
gain shall not depend on
bathhouse.
actual
profit
or
location of
as the context of
ordinance
loss. 13. "
commercial activities
the
the
Establishment" means a physical plant or
operations being conducted, or both together,
or
may require. 14.
Commerci"
al Establishment" means
business location,place
of
business conducting
or allowing
to
be
conducted
any
on its
premises,
any
present
commercial
activity.
means any
15. Patrons"
"
person who is physically
not an owner,
establishment or an entertainer or
on the premises of a commercial establishment and
employee, agent or subcontractor
of
performer
said
who is
establishment.
16. " Persons"
partnerships,
and all other groups
17. "
a)
in
a
means
individuals, firms, associations, joint ventures,
estates, trusts, business trust,
or
syndicates, fiduciaries, corporations, clubs,
combinations.
Specified
Public
or
Sexual Activities"
means:
private exposure, exhibition or display ofhuman genitals
state of sexual stimulation, arousal
or
tumescence;
b) Acts of human automatism
bestiality, beggary, cunnilingus,
coprophagy, coprophilia,
flagellation, frottage, masochism, masturbation,
necrophilia, pederasty, pedophilia, sadism, sadomasochism, sapphism, sexual
intercourse, sodomy, urolagnia or zooerasty;
fellation,
c)
buttocks,
anus or
d)
Fondling or other erotic touching of human genitals pubic region,
female breast;
or
Excretory functions as part
through ( c) above.
of
or
in connection with any of the
activities set forth in ( a)
18. "
a)
Specified
The
Anatomical Areas"
following
areas
less than
means;
completely
and less than
opaquely
covered:
i)
human
genitals
or
ii) human buttocks;
pubic region;
or
iii) human female breasts below a point
the areola ( the
colored
b) Human male
completely
or
opaquely
ring
genitals
around the
in
a
immediately above the top of
nipple); or
discernibly turgid
state,
even
if
covered.
19. " Straddle of
Lap Dancing" means the placing, for any form of
pubic or genital area of persons, whether clothed or
not, in contact with the pubic or genital area of a patron or
person, whether clothed
or not, or within one (1) foot of the face of a
or
patron
person. For the purpose of
this Ordinance, straddle or lap dance is included within the definition of specified
consideration, of the buttocks,
criminal act.
20. "
Specified Criminal
Act" is
soliciting for prostitution, pandering
prostitution, keeping a house of ill fame, lewd and lascivious behavior, or any other
act prohibited under Chapter 796 and 800, Florida Statutes, straddle or lap dancing,
exposing minors to obscene materials, distributing obscene materials, displaying
obscene materials, offering for sale obscene materials, transporting obscene materials,
transmitting obscene materials or allowing transmission of obscene materials.
21. " Obscene Materials" is any
printed
or
material in any
graphic
medium, whether book, magazine, periodical, film, video tape or other which depicts
or
simulates the
depiction of a Specified Sexual Activity, Specified Anatomical Area
following standard:
a) The average person,
applying contemporary community standards
it, taken as a whole, appeals to the prurient interest.
which meets the
would find that
b) It
specifically
depicts or describes,
in
a
patently offensive way, sexual
contact
defined hereunder.
c)
It, taken
as a
whole, lacks serious
literacy, artistic, political
or
scientific value.
E.
Augustine
Prohibitions. The
following
acts
or
activities
are
prohibited
Beach, Florida:
1. The
ownership, establishment,
or
operation of any adult
or
operation of any
entertainment establishment.
2. The commercial establishment
adult
entertainment establishment.
3. The commercial establishment
entertainment
establishment
specified
areas
are
establishment
or
or
operation
any
other
of
an
adult
place
of
which persons or patrons are exposed to
sexual activities or at which specified anatomical
at
displayed,
exhibited
or
exposed
to persons
or
patrons.
4. The commission, attempt to commit,
or
solicitation to commit any
specified
conspiracy to commit
criminal act.
5. The exposure,
activities
or
display or exhibition of any specified sexual
specified anatomical areas at any adult
entertainment establishment.
6. The exposure, exhibition, display, distribution, offer for sale
in St.
or 2000.
of
,lease, 10
pandering or dissemination of any obscene material.
7. The
in any act or activity prohibited under the foregoing
in
subsection ( a)
any commercial establishment or other commercial
at
which
alcoholic
place
beverages are sold, consumed, or permitted
or
engaging
suffered to be sold
or
consumed.
F. Violations
unlawful The commission of any act or activity prohibited under
a violation of this
foregoing
Section. Any
owner, employee, agent, or independent contractor of any adult entertainment
establishment or any other establishment or place which prohibited acts or activities
are
engaged, or who at such establishment or
persons
patrons
place exposes
or
to specified
sexual activities or displays, exhibits or exposes to patrons specified anatomical areas
shall be in violation of this Section,punishable as provided
the
Subsection E., is unlawful and
herein. G.
Penalties.Violation of any provision of this Section shall be
punishable
Augustine Beach Code
as provided by general Section 1 -9 of the St.
providing penalties for the violation of City Ordinances. The Provisions of Subsections E. 1, E.
2., and E.3 shall also be enforceable by the St.Augustine Beach
Municipal Code Enforcement Board created pursuant to Section 11. 03.01 hereof. Each
day of violation
separate
shall
constitute a
violation. H.Severability. If any section, part or phrase of this Ordinance
is held invalid by any Court, that part shall be deemed separate and distinct from
the remainder of the Ordinance and shall not effect the validity of the
remaining portion hereof.I.
Area of enforcement. This Ordinance shall be effective
within the
boundaries
Augustine
Beach,
of St.
Florida."
SECTION
2..
EFFECTIVE DATE: This Ordinance
shall
become
Florida,upon
effective immediately. PASSED
Third Reading
by the City
Commission of the City
this
day
of St.
Augustine Beach,
11 CITY COMMISSION OF THE CITY
OF ST.
AUGUSTINE
ATTEST
First
Mayor-
BEACH
City Manger
reading: June 7, 2001
Second reading: July 2, 2001
Third reading:
h,
AugLgt 2001
Commissioner