HomeMy WebLinkAboutOrdinance 2001-59 Alcohol/Nudity
ORDINANCE NO. 2001-59
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
WINTER SPRINGS, FLORIDA, ADOPTING CITY CODE SECTION 3-10,
MAKING IT UNLAWFUL WITHIN THE CITY OF WINTER SPRINGS FOR
ANY MANAGER, OFFICER, AGENT, SERVANT, EMPLOYEE,
CONTRACTOR, PERSON IN CHARGE, CUSTOMER, OR INVITEE OF
ANY PREMISES OR BOTTLE CLUB LICENSED UNDER THE LAWS OF
FLORIDA TO SELL OR ALLOW THE CONSUMPTION OF ALCOHOLIC
BEVERAGES TO KNOWINGLY, INTENTIONALLY, OR RECKLESSLY
EXHIBIT, SUFFER, ALLOW, PERMIT, ENGAGE IN, PARTICIPATE IN,
OR BE CONNECTED WITH NUDITY UPON THE LICENSED PREMISES;
PROVIDING DEFINITIONS FOR THE TERMS "BREAST", "BUTTOCKS",
"PERSON", AND "NUDITY" OR "NUDE" WHICH SHALL HAVE THE
SAME MEANINGS AS THOSE TERMS ARE ALSO DEFINED IN SECTION
3 OF THE PUBLIC DECENCY ORDINANCE OF SEMINOLE COUNTY,
FLORIDA; PROVIDING LIMITED EXCEPTIONS STATED HEREIN;
PROVIDING FOR ENFORCEMENT AND PENAL TIES FOR VIOLATIONS
OF THIS ORDINANCE; PROVIDING FOR SEVERABILITY; PROVIDING
FOR INCORPORATION INTO THE CODE; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Winter Springs, Florida, called and
scheduled a referendum election that was held concurrent with the general election on the 2nd day
of November, 1999; and
WHEREAS, the referendum election presented the following non-binding question to the
electorate of the City of Winter Springs, Florida;
Shall the City of Winter Springs enact legislation that prohibits a person from
publicly appearing nude in any establishment that is licensed by the State of Florida
to permit the sale, service, or consumption of alcoholic beverages?
Yes
No
WHEREAS, the electors of Winter Springs had an opportunity to cast their vote on the
aforementioned question at the ballot box and by absentee ballot; and
City of Winter Springs
Ordinance No. 2001-59
Page 1 of 8
WHEREAS, the Seminole County Canvassing Board has certified the election results on the
aforementioned question to the City of Winter Springs; and
WHEREAS, City Commission of the City of Winter Springs has affirmed and approved the
certified results on the aforementioned question for the City of Winter Springs; and
WHEREAS, the certified election results indicate that 1,751 voters (73.45%) voted "yes"
to enacting legislation prohibiting a person from publicly appearing nude in any establishment that
is licensed by the State of Florida to permit the sale, service, or consumption of alcoholic beverages,
which 633 (26.55%) voted "no" to enacting such legislation; and
WHEREAS, the City Commission of the City of Winter Springs, Florida, finds and declares
that the certified election results of the aforementioned referendum establish a community standard
within the City of Winter Springs that prohibits a person from publicly appearing nude in any
establishment that is licensed by the State of Florida to permit the sale, service, or consumption of
alcoholic beverage on the licensed premises; and
WHEREAS, the City Commission of the City of Winter Springs, Florida, desires to enact
legislation that codifies this community standard into the City of Winter Springs Code of
Ordinances; and
WHEREAS, the City Commission has reviewed and considered, among other evidence and
information, the following studies:
Alcohol and Human Sexuality: Review and Integration, Leif C. Crowe and William
H. George, Psychological Bulletin, 1989;
Alcohol and Hypermasculinity as Determinants of Men's Empathic Responses to
Violent Pornography, Jeanette Norris, William H. George, Kelly Cue Davis, Joel
Martell, R. Jacob Leonesio; Journal of Int'l Violence, 1999;
Alcohol Expectancies and Sexuality: A Self-Fulfilling Prophecy, Analysis of Dyadic
Perceptions and Behavior, William H. George, Ph.D. and Susan A. Stoner, B.A.,
Jeanette Norris, Ph.D., Peter A. Lopez, Ph.D. and Gail L. Lehman, Ph.D., Journal of
Studies on Alcohol, 1998;
The Effect of Alcohol and Anger on Interest in Violence, Erotica & Deviance,
William H. George and G. Alan Marlatt, Journal of Abnormal Psychology, 1986;
Report of the Attorney General's Working Group on the Regulation of Sexually
Oriented Businesses, State of Minnesota, 1989;
City of Winter Springs
Ordinance No. 2001-59
Page 2 of 8
Perception of Post drinking Female Sexuality: Effects of Gender, Beverage Choice,
and Drink Payment, William H. George, Susan J. Gournic, and Marry P. McAfee,
Journal of Applied Social Psychology, 1988;
Postdrinking Sexual Inferences: Evidence of Linear Rather than Curvilinear Dosage
Effects, William H. George, Gail L. Lehman, Kelly L. Cue, Lorraine J. Martinez,
Peter A. Lopez, and Jeanette Norris, Journal of Applied Social Psychology, 1997;
Self-Reported Alcohol Expectancies and Postdrinking Sexual Inferences About
Women, William H. George, Kelly L. Cue, Peter A. Lopez, Lief C. Crowe, and
Jeanette Norris, Journal of Applied Social Psychology, 1995;
Self-Reported Alcohol Expectancies for Self and Other as a Function of Behavior
Type and Dosage Set; William H. George and Kurt H. Dermen, Journal of Substance
Abuse, 1988;
WHEREAS, the City Commission has also reviewed and considered the studies, reports,
case law, and statistics presented to the City Commission on September 24,2001, as Informational
Agenda Item E; and
WHEREAS, based on the foregoing, the City Commission of the City of Winter Springs,
Florida, also finds and declares that nudity, coupled with alcohol in public places, encourages
undesirable behavior and is not in the best interests of the public health, safety, and welfare of the
citizens of the City of Winter Springs; and
WHEREAS, the City Commission of the City of Winter Springs, Florida, has chosen to
avoid the disturbances associated with mixing alcohol and nudity by means of a reasonable
restriction upon any premises or bottle club licensed under the laws of Florida to sell or allow the
consumption of alcoholic beverages on the licensed premises; and
WHEREAS, pursuant to Section 562.45, Florida Statutes (2001) and Article VIII, Section
2 of the Florida Constitution, the City of Winter Springs has the power and right to enact ordinances
regulating the type of entertainment and conduct permitted in any establishment licensed by the State
of Florida to sell alcoholic beverages for consumption on the licensed premises or any bottle club
which is located within the City of Winter Springs, see City of Miami Springs v. J.J.T., Inc., 437
So.2d 200 (Fla. 3rd DCA 1983); Board of County Commissioners of Lee County v. Dexterhouse, 348
So.2d 916 (Fla. 2d DCA 1977), affirmed 364 So.2d449, appeal dismissed 441 U.S. 918 (1979); and
WHEREAS, as of the effective date of the Seminole County Public Decency Ordinance, that
Ordinance has been applicable county-wide (including within the City of Winter Springs) and is
generally intended to prohibit a person from intentionally or recklessly appearing or being nude or
City of Winter Springs
Ordinance No. 2001-59
Page 3 of 8
causing another person to appear or be nude in a public place and in other places which may
reasonably be expected to be observed by the public within Seminole County; and
WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds and
declares that this Ordinance is in addition and supplemental to the Seminole County Public Decency
Ordinance and the City of Winter Springs Adult Entertainment Code and that this Ordinance is
intended to be in harmony with the Seminole County Public Decency Ordinance and the City of
Winter Springs Adult Entertainment Code; and
WHEREAS, with respect to bona fide live communications, demonstrations, or
performances ("Performances") containing nudity and falling within the exemption under the
Seminole County Public Decency Ordinance, it is the legislative intent of the City Commission that
this Ordinance can be harmonized with the Public Decency Ordinance and to that end, said
Performances are prohibited at licensed beverage establishments and permitted at non-licensed
beverage establishments located within the City of Winter Springs; and
WHEREAS, the City Commission ofthe City of Winter Springs, Florida, finds and declares
that this Ordinance shall not be construed as opting the City of Winter Springs out of the Seminole
County Public Decency Ordinance; and
WHEREAS, this Ordinance is a general ordinance regulating conduct and is not an
ordinance that affects the use of land as contemplated by Section 166.041, Florida Statutes (2001);
and
WHEREAS, the City Commission of the City of Winter Springs, Florida, finds that this
Ordinance is supported by federal and state case law, see e.g., California v. La Rue, 409 U.S. 109
(1972); 44 Liquormart Inc. v. Rhode Island, _ U.S. _, 116 S.Ct. 1495 (1996); Sammy's of
Mobile, Ltd, v. City of Mobile, 140 F.3d 993 (11 th Cir. 1998); City of Daytona Beach v. Del Percio,
476 So.2d 197 (Fla. 1985); and
WHEREAS, the City Commission of the City of Winter Springs deems that this Ordinance
is in the best interests of the public health, safety, welfare, and morals of the citizens of the City of
Winter Springs, Florida.
NOW, THEREFORE, THE CITY OF WINTER SPRINGS ORDAINS AS FOLLOWS:
Section 1. Sec. 3-10 Adopted. The City Commission of the City of Winter Springs,
Florida, hereby adopts a new Section 3-10 of the Winter Springs Code of Ordinances, to fully read
as follows:
City of Winter Springs
Ordinance No. 2001-59
Page 4 of 8
CHAPTER 3
ALCOHOLIC BEVERAGES
SEe. 3-10
Nudity Prohibited Upon Alcohol Licensed Premises and Bottle Clubs.
(a) Definitions. When used in this section the following terms shall have the following
meanings which are intended to have the same meanings as those same terms are
defined in Section 3 of the Public Decency Ordinance of Seminole County, Florida,
as follows:
(1) "Breast" shall mean a portion of the human female mammary gland
(commonly referred to as the female breast) including the nipple and the
areola (the darker colored area of the breast surrounding the nipple) and an
outside area of such gland wherein such outside area is: (i) reasonably
compact and contiguous to the areola, and (ii) contains at least the nipple and
the areola and 1/4 of the outside surface area of such gland.
(2) "Buttocks" shall mean (for a short general description see the last sentence
of this subsection) the area at the rear of the human body (sometimes referred
to as the gluteus maximus) which lies between two imaginary straight lines
running parallel to the ground when a person is standing, the first or top of
such line being 1/2 inch below the top of the vertical cleavage of the nates (i.e.,
the prominence formed by the muscles running from the back of the hip to
the back of the leg) and the second or bottom of such line being 1/2 inch above
the lowest point of the curvature of the fleshy protuberance (sometimes
referred to as the gluteal fold), and between two imaginary straight lines, one
on each side of the body (the "outside lines"), which outside lines are
perpendicular to the ground and to the horizontal lines described above and
which perpendicular outside lines pass through the outermost point(s) at
which each nate meets the other side of each leg. Notwithstanding the above,
buttocks shall not include the leg, the hamstring muscle below the gluteal
fold, the tensor fasciae latae muscle or any of the above-described portion of
the human body that is between either: (i) the left inside perpendicular line
and the left outside perpendicular line, or (ii) the right inside perpendicular
line and the right outside perpendicular line. For the purpose of the previous
sentence the left inside perpendicular line shall be an imaginary straight line
ofthe left side of the anus: (i) that is perpendicular to the ground and to the
horizontal lines described above, and (ii) that is 1/3 of the distance from the
anus to the left outside line; and the right inside perpendicular line shall be
an imaginary straight line on the right side of the anus: (i) that is
perpendicular to the ground and to the horizontal lines described above, and
(ii) that is 1/3 of the distance from the anus to the right outside line. (The
City of Winter Springs
Ordinance No. 2001-59
Page 5 of 8
above description can generally be described as covering 1/3 of the buttocks
centered over the cleavage for the length of the cleavage).
(3) "Nudity" or "Nude" shall be used interchangably and shall mean any person
insufficiently clothed in any manner so that any of the following body parts
are not entirely covered with a fully opaque covering:
1. the male or female genitals, or
11. the pubic area, or
111. the vulva, or
IV. the penis, or
v. the female breast (each female person may determine which 1/4 of
her breast surface area (see definition of breast) contiguous to and
containing the nipple and the areola is to be covered), or
VI. the anus, or
V11. the anal cleft, or
Vl11. the anal cleavage, or
IX. the buttocks. Attire which is insufficient to comply with this
requirement includes, but is not limited to, G-strings, T -backs, dental
floss and thongs.
For purposes of this subsection (3), body paint, body dyes, tattoos, liquid
latex whether wet or dried, string and dental floss and other substances shall
not be considered "opaque covering".
(4) "Person" shall mean any live human being.
(b) Prohibition. It shall be unlawful within the City of Winter Springs for any manager,
officer, agent, servant, employee, contractor, person in charge, customer, or invitee
of any premises or bottle club licensed under the laws of the State of Florida to sell
or allow the consumption of alcoholic beverages to knowingly, intentionally, or
recklessly exhibit, suffer, allow, permit, engage in, participate in, or be connected
with nudity upon the licensed premises. The combination of nudity and alcoholic
City of Winter Springs
Ordinance No. 2001-59
Page 6 of 8
beverages at any premises or bottle club licensed under the laws of the State of
Florida to allow the sale or consumption of alcoholic beverages within the City of
Winter Springs is hereby strictly prohibited.
(c) Exceptions. It is not a violation of this section for any person to engage in the
ordinary an customary bona fide use of an enclosed single sex public restroom,
enclosed single sex functional shower, or enclosed single sex locker and/or dressing
room facilities. It is also not a violation of this section for a mother to breast feed or
change the clothing of her baby.
(d) Enforcement and Penalties. Any person violating any of the provisions of this
section shall be prosecuted in the same manner as misdemeanors are prosecuted.
Such violations shall be prosecuted in the name of the State of Florida in a court
having jurisdiction of misdemeanors by the prosecuting attorney thereof and, upon
conviction, shall be punished by a fine not to exceed Five Hundred and NoI100
Dollars ($500.00) or by imprisonment in the County jail not to exceed sixty (60) days
or by both such fine and imprisonment as provided in Section 162.22, Florida
Statutes (2001), as may be amended from time to time. Each incident or separate
occurrence of any act that violates this section shall be deemed a separate offense.
In addition to the penalties provided under this section, violators of this section shall
be subject to any other appropriate civil or criminal action provided by law in a court
of competent jurisdiction.
Section 2. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior
inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances
and resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
Section 3. Incorporation Into Code. This ordinance shall be incorporated into the
Winter Springs City Code and any section or paragraph number or letter and any heading may be
changed or modified as necessary to effectuate the foregoing.
Section 4. Severability. If any section, subsection, sentence, clause, phrase, word or
provision of this ordinance is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall not affect the
validity of the remaining portions of this ordinance.
Section 5. Effective Date. This Ordinance shall become effective immediately upon
adoption by the City Commission of the City of Winter Springs, Florida.
City of Winter Springs
Ordinance No. 2001-59
Page 7 of 8
ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular
meeting assembled on the 10th day of December ,2001.
PAUL P. PARTYKA
Mayor
ATTEST:
ANDREA LORENZO-LUACES
City Clerk
Approved as to legal form and sufficiency for
the City Winter Springs only
Anthony A. Garganese, City Attorney
First Reading: November 26, 2001
Second Reading: December 10, 2001
Effective Date: December 10, 2001
F:\docs\City of Winter Springs\Adult Entertainment\Alcohol & Nudity Ordinance #2001-59
City of Winter Springs
Ordinance No. 2001-59
Page 8 of 8
ADOPTION. OF SECTlON 3-10,
WINTER SPRINGS
CODE OF ORDINANCES
NOTICE IS HEREBY GIV-
EN THAT THE CITY COM-
MISSION OF THE CITY OF
WINTER SPRINGS WILL
HOLD A PUBLIC HEAR.
ING FOR THE SECOND
READING ON PROPOSED
ORDINANCE 2001-59 TO
CONSI DER ADOPTI NG
SECTION 3-10 OF THE
CITY CODE. A PUBLIC
HEARING ON THE PRO-
POSED ORDINANCE WILL
BE HELD ON DECEMBER 10,
2001 AT 6:30 P.M. AT THE
WINTER SPRINGS CITY
HALL.
AN ORDINANCE OF THE CITY COM-
MISSION OF THE CITY OF WINTER
SPRINGS,. FLORIDA, ADOPTING
CITY CODE SECTION 3.10, MAKING
IT UNLAWFUL WITHIN THE CITY
OF WINTER SPRINGS FOR ANY
MANAGER, OFFICER, OR AGENT,
SERVANT. EMPLOYEE, CONTRAC.
TOR, PERSON IN CHARGE, CUS.
TOMER, OR INVITEE OF ANY
PREMISES OR BOTTLE CLUB LI-
CENSED UNDER THE LAWS OF
FLORIDA TO SELL OR ALLOW THE
CONSUMPTIDN OF ALCOHOLIC
BEVERAGES TO KNOWINGLY, IN-
TENTIONALLY, OR RECKLESSLY EX.
HIBIT, SUFFER, ALLOW, PERMIT,
ENGAGE IN, PARTICIPATE IN, , DR
BE CONNECTED WITH NUDITY up.
ON THE LICENSED PREMISES;
PROVIDING DEFINITIDNS FDR THE
TERMS 'BREAST", "BUTTOCKS",
"PERSON", AND "NUDITY" OR
"NUDF' WHICH SHALL HAVE THE
SAME MEANINGS AS THOSE
TERMS ARE ALSO DEFINED IN
SECTIDN 3 OF THE PUBLIC DECEN-
CY ORDINANCE OF SEMINOLE
COUNTY, FLORIDA; PROVIDING
LIMITED EXCEPTIONS STATED
HEREIN; PROVIDING FOR ENFORCE.
MENT AND PENALTlES FOR VIOLA
TlONS OF THIS ORDINANCE; PRO.
VIDING FOR SEVERABILITY;
PROVIDING FOR INCORPORATION
INTO THE CODE; AND PROVIDING
, FOR AN EFFECTIVE DATE.
A PUBLIC HEARING ON
THE SECOND READING
OF PROPOSED ORDI-
NANCE 2001-59 WILL
'TAKE PLACE AT THE
CITY COMMISSION CHAM-
BERS IN CITY HALL AT
1126 EAST STATE ROAD
434, WINTER SPRINGS,
FLORIDA. INTERESTED
PERSONS MAY ATTEND
AND BE HEARD.
ADDITIONAL. INFORMA-
TION PERTAINING TO
THE ABOVE MAY BE OB-
TAINED FROM THE OF-
FICE OF THE CITY
CLERK AT CITY HALL,
1126 EAST STATE ROAD
434, WINTER SPRINGS,
FLORIDA. FOR MORE IN-
FORMATION CALL 327-
1800, EXT, # 227.
PERSONS WITH DISABILI-
TIES NEEDING ASSIS-
TANCE TO PARTICIPATE
IN ANY OF THESE PRO-
CEEDINGS SHOULD CON-
TACT THE EMPLOYEE
RELATIONS DEPART-
MENT COORDINATOR 48
HOURS IN ADVANCE OF
THE MEETI NG AT (407)
327-1 8OO.
THIS IS A PUBLIC HEAR-
ING, IF YOU DECIDE TO
APPEAL ANY DECISION
OR RECOMMENDATION
MADE BY THE CITY COM-
MISSION WITH RESPECT
TO ANY MATTER CON-
SIDERED AT THIS MEET-
ING, YOU WILL NEED A
RECORD OF THE PRO-
CEEDINGS, AND, FOR
SUCH PURPOSES, YOU
MAY NEED TO ENSURE
THAT A VERBATIM RE-
CORD OF THE PROCEED
INGS IS MADE UPON
WHICH THE APPEAL IS
TO BE BASED.
ANDREA LORENZO-
LUACES
CITY CLERK
COR4209362 11130/01
Published Daily
STATE OF FLORIDA 5.5.
COUNTY OF ORANGE
Before the undersigned authority personally appeared Linda Bridgewater
, who on oath says
that he/she is the Legal Advertising Representative of Orlando Sentinel, a dally
newspaper published at ORLANDO in
ORANGE County, Florida;
that the attached copy of advertisement, being a ADOPTION OF SECTI
in the matter of ORD. 2001-59
in the Orange court
was published in said newspaper in the issue of 11/30/01
Affiant further says that the said Orlando Sentinel is a newspaper published at
ORLANDO in said
ORANGE County, Florida,
and that the said newspaper has heretofore been continuously published in
said ORANGE County, Florida,
each Week Day and has been entered as second-class mail matter at the post
office in ORLANDO in said
ORANGE County, Florida,
for a period of one year next preceding the first publication of the attached
copy of advertisement; and affiant further says that he/she has neither paid
nor promised any person, firm or corporation any discount, rebate,
commission or refund for the purpose of securing this advertisement for
publication in the said newspaper.
Linda Bridgewater
The foregoing instrument was acknowledged before me
Nov , 2001, by Linda Bridgewater
who is personally known to me and who did take an oath.
(SEAL)
DEBORAH M. TONEY
My comm exp 11/18/2005