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HomeMy WebLinkAbout2004 02 09 Public Hearings 401 fCOMMISSION AGENDA Consent ITEM 401 Informational Public Hearing Regular x February 9. 2004 Meeting ()1 Mgr. / Dept. REQUEST: The City Attorney requests that the City Commission adopt on Third and Final Reading Ordinance No. 2003-41, amending Chapter 10, Article III, Adult Entertainment Establishments, related to adult entertainment establishments and sexually oriented businesses and more specifically regarding legislative findings, licensing, conduct regulations, and penalties. PURPOSE: The purpose of Ordinance 2003-41 is to update and enhance the City's Adult Entertainment regulations, which have not been amended since 1995, consistent with case law which has been decided since 1995 and with public policy adopted by surrounding municipalities and Seminole County since 1995. APPLICABLE LAW AND PUBLIC POLICY: 1. Florida Municipal Home Rule Powers Act. 2. The numerous legislative findings, studies, source material, and case law cited in Ordinance No. 2003-41 and index attached. 3. Other current case law not specifically referenced in the index. 4. City of Winter Springs Comprehensive Plan, Future Land Use, Sections 1.5.10 and 1.5.11 state: Page 1 of 3 Policy 1.5.10: As implemented through the adoption of the City's land development regulations, lands designated "Industrial" on the Future Land Use Map shall also serve as an area to locate authorized land uses and activities which could have adverse secondary effects (e.g. increased crime; neighborhood deterioration and blight; property devaluation; economic deterioration; health risks; and other adverse effects) on residential areas, religious institutions, schools, parks, day care centers, and other public institutions located within the City. Policy 1.5.11: Adult entertainment establishments and sexually oriented businesses shall be strictly limited to lands designated "Industrial" on the Future Land Use Map. The City Commission may adopt joint planning agreements with Seminole County and other neighboring cities to jointly coordinate the location of adult entertainment establishments and sexually oriented businesses. CONSIDERATIONS: 1. The City Attorney has conducted a routine review of the City's Adult Entertainment Code in light of case law since the Code was last amended in 1995 and in light of public policy decisions of surrounding municipalities and Seminole County since 1995. 2. Based on case law since 1995, and recent experiences of other cities and counties in the surrounding area, including the City of Casselberry and Seminole County, the City Attorney is recommending, at this time, amendments to the legislative findings of fact, licensing, conduct regulations, and penalty provisions of the Adult Entertainment Code. 3. The amendments are necessary to increase the likelihood that such provisions are declared constitutional by a court should the ordinance be challenged. 4. The amendments are more comprehensive than the current City Code and also make the City's adult entertainment and sexually oriented business regulations more consistent with similar regulations of neighboring communities, like the City of Casselberry and Seminole County. 5. In order to supplement the legislative findings of facts used to justify the adoption of the City's Adult Entertainment Code, Chapter 10, Article III, the City Attorney has provided copies of the various studies, case law, and other source material regarding the adverse secondary effects of adult entertainment establishments and sexually oriented businesses to the City Commission through the City Clerk's office. An index of the studies, case law, and source material is attached to this agenda item. The City Commission should review this material at the City Clerk's office prior to final reading and adoption of Ordinance No. 2003- 41. Page 2 of 3 6. Ordinance No. 2003-41 does not amend the zoning and locational regulations for adult entertainment establishments. Such establishments are required by Chapter 10, Article III, and Section 20-2:59 of the City Code and the City's Comprehensive Plan, to locate and operate in industrial areas of the City and are also subject to a 750 foot distance requirement from residential areas, schools, churches, public parks and recreational areas. STAFF RECOMMENDlATION: The City Attorney recommends that Ordinance No. 2003-41 be adopted on Third and Final Reading. ATTACHMENTS: 1. Ordinance No. 2003-41. 2. Index of Studies, Source Materials, and Case Law. 3. Incorporated herein by this reference are all the studies, source materials, and case law on file in the City Clerk's office. COMMISSION ACTION: The City Commission last adopted adult entertainment regulations in 1995. The City Commission approved Ordinance 2003-41 on First Reading on December 8,2003. The City Commission approved Ordinance 2003-41 on Second Reading on January 26, 2004. Page 3 of 3 "J January 26, 2003 City of Winter Springs Cjity Commission Legislative Record Adult Entertainment, Sexually Oriented Businesses, and The Effects of Alcohol Description Index Number Case Law Barnes v. Glen Theatre, Inc., 501 US. 560, 111 S.Ct. 2456 1. Case Law Cafe 207, Inc. v. St.Johns County, 856 F. Supp 641 2. (M.D. Fla. 1994) Case Law City of Renton v. Playtime Theatres, Inc., 475 US. 41, 3. 106 S.Ct. 925Chapter 796, Florida Statutes CaseLaw N. W Enterprises, Inc. v. City of Houston, 27 F.Supp. 2d 754 4. Case Law Ward v. County of Orange, 217 F.3d 1350 5. Case Law Young v. American Mini Theatres, Inc., 427 US.50, 6. 96 S.Ct, 2440 Case Law City of Erie, et ai, v. PAP'S A.M tdba "Kandyiand", 7. 529 U.S. 277, 120 S.Ct. 1382) Chelsea,.NY Chelsea, New York - An Assessment of the Economic Impact 8. of XXX-Rated Video Stores in Chelsea Findings of Fact Daytona Beach, Florida - Findings of Fact 9. Findings of Fact Findings of Fact: Other Cities 10. City Commission Legislative Record Adult Entertainment, Sexually Oriented Businesses, and The Effects of Alcohol Page 1 of 6 Description Index Number Findings of Fact Findings of Fact: Palm Beach County, Florida 11. Findings of Fact Findings of Fact: Minnesota Attorney General 12. Findings of Fact Findings of Fact: Austin, Texas 13. Findings of Fact Findings of Fact: Los Angeles, California 14. Findings of Fact Findings of Fact: St. Paul, Minnesota 15. Case Law Sammy's of Mobile v. City of Mobile, 140 F. 3d 993 16. (11th Cir. 1998) Case Law City of Daytona Beach v. Del Percio 476 So. 2d 197 17. (Fla. 1985) Garden Grove, CA Garden Grove, California - The Relationship Between Crime 18. and Adult Business Operations on Garden Grove Blvd. Houston, TX Sexually Oriented Business Ordinance Revision Committee 19. Legislative Report Houston, Texas City Council Indianapolis, IN Adult Entertainment Business in Indianapolis 20. Indianapolis, IN Findings of Fact: Indianapolis, Indiana 21. Islip, NY Town ofIslip - Study and Recommendations for Adult 22. Entertainment Businesses Los Angeles, CA Study ofthe Effects of the Concentration of Adult 23. Entertainment Establishments in the City of Los Angeles Macon, GA Findings of Fact: Macon, Georgia 24. City Commission Legislative Record Adult Entertainment, Sexually Oriented Businesses, and The Effects of Alcohol Page 2 of 6 'i Description Index Number Minnesota 25. Minnesota Miscellaneous Miscellaneous Miscellaneous An Analysis of the Relationship Between Adult Entertainment Establishments, Crime, and Housing Values - Summary Report An Analysis of the Relationship Between Adult Entertainment Establishments, Crime, and Housing Values- Complete Report Escort Service - Orange County Sheriff Body Scrub Affidavit -- Metropolitan Bureau of Investigation, Affidavit Prosecutive Summary City of Casselberry - ccm investigation of organized and ongoing vice and illegal drug activities at Rachel's Men's Club -- Composite Affidavit of Arrest Records and Search Warrants from Witnesses 26. 27. 28. 29. Miscellaneous 30. City of Casselberry - Findings of Fact and Conclusions of law re: Revocation of Rachel's Adult Entertainment License Miscellaneous 31. Escort Advertising Miscellaneous 32. Escort Affidavit - Metropolitan Bureau of Investigation, Affidavit Prosecutive Summary Miscellaneous 33. Lewdness and Assignation, Nero's Cabaret, Special Investigations Bureau Miscellaneous 34. New York Magazine Article regarding Escort Business Miscellaneous Newsweek Magazine Article and Various Articles 35. Miscellaneous 36. Sexual Performance Affidavit - MBI Miscellaneous 37. The Criminal Behavior of Nude Businesses City Commission Legislative Record Adult Entertainment, Sexually Oriented Businesses, and The Effects of Alcohol Page 3 of 6 -, Description Index Number New York, NY 38. City of New York - Adult Entertainment Study New York, NY 39. Ordinance Report on the Secondary Effects of the Concentration of Adult Use Establishments in the Times Square Area Times Square Business hnprovement District - 1994 City of Casselberry Adult Entertainment Ordinance 40. Ordinance 41. Houston, Texas - Adult Entertainment Ordinance Ordinance 42. Seminole County, FL Adult Entertainment Ordinance Seminole County, FL Adult Entertainn1ent Centers - State Road 17-92 Southern Gateway, Seminole County, FL 43. Seminole County, FL Casselberry - Order Denying Rachel's Motion for Temporary hljunction; Order Denying Rachel's Petition for Writ of Certiorari 44. Statutes 45. Chapter 800, Florida Statutes (Lewdness; Indecent Exposure) Statutes 46. Chapter 480, Florida Statutes (Massage Practice) Statutes 47. Chapter 847, Florida Statutes (Obscene Literature; Profanity) Statutes 48. Chapter 794, Florida Statutes (Sexual Battery) Statutes 49. Chapter 826, Florida Statutes (Bigamy; Incest) Statutes 50. Chapter 796, Florida Statutes (Prostitution) Statutes 51. Section 847.0133, Florida Statutes (Protection of Minors) City Commission Legislative Record Adult Entertainment, Sexually Oriented Businesses, and The Effects of Alcohol Page 4 of 6 Description Index Number Statutes Section 847.013, Florida Statutes (Exposing Minors) 52. Study Alcohol Expectancy Set and Dyadic Interest in Erotica: A 53. Test of Deviance Disavowal Study Alcohol Expectancies and Sexuality: A Self-Fulfilling 54. Prophecy Study Alcohol and Hypermasculinity as Determinants of Men's 55. Empathic Responses to Violent Pornography Study Alcohol and Human Sexuality: Review and Integration 56. State University of New Yark at Buffalo Study Perceptions of Post drinking Female Sexuality: 57. Effects of Gender, Beverage Choice, and Drink Payment Journal of Applied Social Psychology Study Postdrinking Sexual Inferences: 58. Evidence for Linear Rather Than Curvilinear Dosage Effects Journal of Applied Social Psychology Study Self-Reported Alcohol Expectancies for Self and Other as a 59. Function of Behavior Type and Dosage Set State University of New York at Buffalo Study Self-Reported Alcohol Expectancies and Postdrinking 60. Sexual Inferences About Women - Journal of Applied Social Psychology Study Social Behavior and Personality - an international journal 61. State University of New York at Buffalo Study The Effects of Alcohol and Anger on Interest in Violence, 62. Erotica, and Deviance State University of New York at Buffalo and University of Washington Study Protecting Communities from Sexually Oriented 63. Businesses Len L. Munsil Study Report to: The American Center for Law and Justice on 64. the Secondary Impacts of Sex Oriented Businesses - Peter R. Hecht, Ph.D. City Commission Legislative Record Adult Entertainment, Sexually Oriented Businesses, and The Effects of Alcohol Page 5 of 6 Description Index Number Case Law Seminole Entertainment, Inc. v. City of Casselberry, 813 So. 2d 65. 186 (Pia. 5th DCA 2002), rev. denied 835 So. 2d 269 (2002), cert. denied 123 S. Ct. 2276, 71 USLW 3641 (2003) Case Law City of Los Angeles v. Alameda Books, 535 U.S. 425 (2003) 66. Case Law SOB, Inc. v. County of Benton, 317 F. 3d 856 (8th Cir. 2003) 67. Case Law New York State Liquor Auth. V Bellanca, 452 U.S. 714 (1981) 68. Ordinance Brevard County, Florida, Adult Entertainment Ordinance 69. Other Publications 1. Pinal Report of the Attorney General's Commission on Pornography. 2. Gerard, Local Regulation of Adult Businesses, 2003 Edition. G;IDocslCity of Winter Springs\Adult Entertainment\Adult.. Entertainment_ Index_Studies. wpd, City Commission Legislative Record Adult Entertainment, Sexually Oriented Businesses, and The Effects of Alcohol Page 6 of 6 ORDINANCE NO. 2003-41 AN ORDINANCE OF THE CITY OF WINTER SPRINGS, FLORIDA AMENDING CHAPTER 10, ARTICLE III, OF THE WINTER SPRINGS CITY CODE PERTAINING TO SEXUALLY ORIENTED BUSINESSES AND ADULT ENTERTAINMENT ESTABLISHMENTS, AND RELATED MATTERS; PROVIDING FOR A SHORT TITLE; PROVIDING FOR LEGISLATIVE PURPOSES, FINDINGS AND INTENT; PROVIDING FOR CONSTRUCTION OF THE ORDINANCE; RECOGNIZING OBSCENITY AS UNLA WFUJL; PROVIDING FOR DEFINITIONS; PROVIDING FOR NOTICE; PROVIDING FOR PENAL TIES, REMEDIES AND RELIEF; PROVIDING FOR AND REQUIRING LICENSES; PROVIDING FOR LICENSEE APPLICATIONS AND FEES; PROVIDING FOR CLASSIFICATION OF LICENSES; PROVIDING FORAPPROV AL AND DENIAL, OF LICENSE AJPPLICATIONS; PROVIDING FOR CONTINUING DUTIES UPON LICENSED APPLICANTS; PROVIDING FOR INVESTIGATIONS; PROVIDING FOR REAPPLICATION; PROVIDING FOR TIME PERIODS FOR NOTICES, SUBMITTALS, FILINGS, AND DECISIONS; PROVIDING FOR RESPONSIBILITIES OF CITY AND GOVERNM:ENT OFFICIALS AND DEPARTMENTS; PROVIDING F'OR EXPIRATION, LAPSE, CONTINUATION, TERMS, SUSPENSION, REVOCATION AND ENFORCEMENT OF LICENSES; PROHIBITING THE TRANSFER OF LICENSES; PROVIDING FOR ESTABLISHMENT NAME CHANGES; PROVIDING FOR LICENSE SUSPENSION AND REVOCATION PROCEDURES AND PROCEEDINGS; PROVIDING FOR APPEALS; PROVIDING FOR WORKER RECORDS, CUSTOMER CONTRACTS AND DAIL Y REGISTERS AND INSPECTIONS THEREOF; PROVIDING FOR DUTIJES AND OBLIGATIONS; PROVIDING FOR PROHIBITED ACTIVITIES AND UNLAWFUL ACTS BY EST ABLISHMENTS AND BUSINESSES, WORKERS, OPERATORS, AND CUSTOMERS; PROVIDING FOR GENERAL REQUIREMENTS, DUTIES, OBLIGATIONS, REQUIRED ACTS AND PROHIBITIONS; PROVIDING FOR LICENSEE CONSENT; PROVIDING FOR SPECIFIC City of Winter Springs Ordinance No. 2003-41 Page 1 of 63 PROVISIONS RELATING TO VARIOUS CATEGORIES OF LICENSEES; PROVIDING REGULATIONS FOR SEXUALLY ORIENTED BUSINESSES; PROVIDING REGULATIONS FOR ADULT nOOK STORES/ADULT VIDEO STORES; PROVIDING REGULATIONS FOR ADULT THEATERS; PROVIDING REGULATIONS FORADUL T PERFORMANCE ESTABLISHMENTS; PROVIDING REGULATIONS FOR COMMERCIAL BODILY CONTACT ESTABLISHMENTS; PROVIDING REGULATIONS FOR ESCORTS AND ESCORT SERVICE PROVIDERS; PROVIDING REGULATIONS FOR ADULT MODELING OR DISPLAY ESTABLISHMENTS; PROVIDING REGULATIONS FOR ADULT MODELS; PROVIDING REGULATIONS FOR PROHIBITED ACTS BY CUSTOMERS; PROVIDING FOR PROHIBITED ACTS BY WORKERS AND OPERATORS; PROVIDING FOR RECORDS AND RE]~ORTS; PROVIDING OPERATIONAL REQUIREl\1[ENTS AND PROHIBITIONS; PROVIDING F'OR USE OF RESTROOMS AND DRESSING ROOMS; PROVIDING FOR THE PROTECTION OF MINORS; PROVIDING FOR HOURS OF OPERATION; PROHIBITING SEXUAL ]I!:NCOUNTER BUSINESSES; PROVIDING IMMUNITY FROM PROSECUTION FOR CERTAIN GOVERNMENT OFFICIALS AND ACTS; RESTATING THAT ADULT ENTERTAINMENT ESTABLISHMENTS AND SEXUALLY ORIENTED BUSINESSES SHALL BE LOCATED IN INDUSTRIAL AREAS SUBJECT TO DISTANCE REQUIREMENTS FROM RESIDENTIAL AREAS, SCHOOLS, CHURCHES, AND PARKS AND RECREATIONAL AREAS; PROVIDING FOR REPEAL, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. WHEREAS, the activities of certain commercial enterprises, that are appropriately included within the definition ofthe term "adult entertainment establishment" or "sexually oriented business," have resulted in the necessity for additional Code provisions regulating adult entertainment establishment and sexually oriented business activities and the activities of other similar businesses; and WHEREAS, failure of the City to ensure that adult entertainment activities and sexually oriented businesses are appropriately regulated would adversely impact the City insomuch as the City is a local government jurisdiction that is very family oriented and encourages economic and tourism development that focuses on and derives its economic growth as a result of family oriented acti vities and events; and City of Winter Springs Ordinance No. 2003-41 Page 2 of 63 WHEREAS, the City Commission desires to protect and preserve the unique character of City of Winter Springs as a family oriented attraction for families, tourists, and businesses; and WHEREAS, the City of Winter Springs is essentially a suburban community and has a current population of approximately 32,000 people; and WHEREAS, the City of Winter Springs is a municipality that is, and desires very much to continue to be, a community that contains and is known for traditional wholesome public recreational activities and is proximate to family oriented theme parks such as Walt Disney World, MGM Studios, Universal Studios, Sea World, and numerous other family vacation destinations; and WHEREAS, the City Commission finds and determines that the provisions contained herein are the most reasonable and minimal restrictions required so as to regulate conduct which is or could be adverse to public order, health, safety, morals and welfare within the City of Winter Springs; and WHEREAS, the passage of this Ordinance is necessary to preserve the basic character of the community ofthe City of Winter Springs; and WHEREAS, although the City Commission is ofthe opinion that this Ordinance is a general ordinance regulating conduct and is not an ordinance that affects the use ofland as contemplated by Section 166.041(3)(c), Florida Statutes, the City Commission does not wish to become sidetracked in lengthy and expensive litigation concerning procedural matters that are not relevant to the subject matter of this Ordinance and. has, accordingly, determined to enact this Ordinance under the more conservative, expensive, and time consuming land use procedure as well as under the general procedure for ordinances that regulate conduct; and WHEREAS, sexually oriented businesses and adult entertainment establishments require special supervision from the public safety agencies of the City in order to protect and preserve the health, safety, order and welfare ofthe workers and patrons of such businesses as well as the citizens of the City; and WHEREAS, the City Commission finds that sexually oriented businesses and adult entertainment establishments are frequently used for unlawful sexual activities including, but not limited to, prostitution and sexual liaisons of a casual nature; and WHEREAS, the concern over sexually transmitted diseases is a legitimate health concern of the City which demands reasonable regulation of sexually oriented businesses and adult entertainment establishments in order to protect the health and well-being ofthe citizens ofthe City of Winter Springs; and City of Winter Springs Ordinance No. 2003-41 Page 3 of 63 WHEREAS, licensing is a legitimate and reasonable means of accountability to ensure that operators of sexually oriented businesses and adult entertainment establishments comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation; and WHEREAS, there is convincing documented evidence that sexually oriented businesses and adult entertainment establishments, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them as well as other public and civic uses, causing increased crime and the downgrading of property values and adverse impacts to economic development and tourist development programs and activities; and WHEREAS, it is recognized that sexually oriented businesses and adult entertainment establishments, due to their nature, have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to urban blight and downgrading the quality of life in the adjacent area; and WHEREAS, the City Commission desires to minimize and control these adverse effects and thereby protect the health, morals, good order, safety and welfare ofthe citizenry; protect the citizens from increased crime; preserve the quality of life; preserve the property valu.es and character of surrounding neighborhoods and deter the spread of urban blight; and WHEREAS, the City Commission has determined that locational criteria alone do not adequately protect the health, good order, morals, safety and general welfare of the people of this City; and WHEREAS, it is not the intent of this Ordinance to unreasonably regulate any speech activities protected by the First Amendment, but to enact a content-neutral Ordinance which addresses the adverse secondary effects of sexually oriented businesses and adult entertainment establishments; and WHEREAS, it is not the intent of the City Commission to condone or legitimize obscene material or any other illegal activity and the City Commission recognizes that state and federal law prohibits the distribution of obscene materials and the Commission expects and encourages local and state law enforcement officials to enforce state obscenity statutes and related statutes against any such illegal activities in the City; and WHEREAS, it is not the intent of this Ordinance to regulate the display of specified anatomical areas incidental to a performance offered by a proprietary school licensed by the State of Florida, a college, community college, university supported partly or entirely by taxation or a private college or university which maintains and operates educational programs in which credits are transferable to a college, community college, or university supported partly or entirely by taxation City of Winter Springs Ordinance No. 2003-41 Page 4 of 63 or in any structure owned by a governmental entity (e.g. a civic center, auditorium) when part of a bona fide artistic display or production; and WHEREAS, the City Commission hereby finds at the effective date ofthis Ordinance there are currently no adult entertainment establishments or sexually oriented businesses lawfully operating within the City of Winter Springs; and WHEREAS, the City Commission also finds that given there are no such establishments or businesses operating within the City, reliance on studies, source materials, case law and experiences of other communities involving such establishments and businesses is reasonable and a legitimate basis for supporting the regulations contained in this Ordinance; and WHEREAS, the City Commission hereby finds that on an annual basis, the City of Casselberry, Seminole County, and local law enforcement agencies, have expended numerous man hours licensing adult entertainment establishments and sexually oriented businesses, as well as hundreds ofthousands of dollars defending licensing decisions challenged by the adult entertainment industry (See e.g., Seminole Entertainment v. City of Casselberry); and WHEREAS, the City Commission hereby finds that based on the experiences ofthe City of Casselberry and Seminole County, the application and licensing fees required by this Ordinance will not cover the expected administrative costs which will be incurred by the City of Winter Springs should an adult entertainment establishment or sexually oriented business locate within the City; and WHEREAS, the City Commission, therefore, finds that the annual application and licensing fee is revenue neutral and in. compliance with the court decision in Fly Fish, Inc. v. City Cocoa Beach, 337 F. 3d 1301 (l1th Cir. 2003); and WHEREAS, the City Commission finds and determines that this Ordinance is consistent with the goals, policies and objectives of the City's Comprehensive Plan; and WHEREAS, this Ordinance is not intended to repeal the locational zoning requirements for adult entertainment establishments currently codified in Sections 10-57,10-58, and 10-59 ofthe City Code and renumbered as set forth herein; and WHEREAS, the City Commission ofthe City of Winter Springs hereby finds and deems that this Ordinance is in the best interests of the public health, safety, and welfare of the citizens of the City of Winter Springs. NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: City of Winter Springs Ordinance No. 2003-41 Page 5 of 63 Section 1. Recitals. The foregoing recitals are incorporated herein by reference and made a part of this Ordinance. Section 2. Repeal and Renumber Existing Code Provisions. A. The CityofVVinterSprings Code Sections 10-51,10-52,10-53,10-54,10-55,10-56, 10-60,10-61,10-62,10-63,10-64,10-65,10-66, 10-67, 10-68, 10-69, 10-70, 10-71, and IO- n are hereby repealed in their entirety. Copies of said sections are attached hereto as Exhibit" A" and fully incorporated herein by this reference for repeal purposes only. B. Section 10-57 is renumbered to 10-100; Section 10-58 is renumbered to 10-101; and Section 10-59 is renumbered to 10-102. Said Sections are restated and amended in Section 3 of this Ordinance. Section 3. Amend Code. The City of Winter Springs Code, Chapter 10, Article ill, is hereby amended as follows (underlined type indicates additions, strikeout type indicates deletions, and asterisks (* * *) indicate a deletion from this Ordinance of text existing i.n Chapter 10. It is intended that the text in Chapter 10 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance): CHAPTER ]lO. LICENSES AND BUSINESS REGULATIONS *** ARTICLE In. SEXUALLY ORIENTED BUSINESSES AND ADULT ENTERTAINMENT ESTABLISHMENTS Sec. 10-51. Shorttiltle. This Ordinance shall be known and may be cited as the "City of Winter Springs Sexually Oriented Business and Adult Entertainment Establishment Ordinance." Sec. 10-52. Purpose. findings and intent/incorporation of whereas clauses. (a) Purpose. It is the purpose of this Article to regulate sexually oriented businesses and adult entertainment establishments in order to promote and protect the public health. safety, good order, and general welfare of the citizens of the City, to establish reasonable and uniform regulations of adult entertainment establishments and sexually oriented businesses within the City. The provisions of this Article have neither the purpose nor effect of imposing an unreasonable limitation or unreasonable restriction on the content of any lawful communicative materials including sexually oriented materials. Similarly, it is not the intent nor effect of this Article to unreasonably restrict or deny access by adults to sexually oriented City of Winter Springs Ordinance No. 2003-41 Page 6 of 63 materials protected by the First Amendment or to deny access by the distributors and exhibi- tors of sexually oriented entertainment protected by the First Amendment to their intended market. Neither is it the intent nor effect ofthis Article to condone or legitimize the distribu- tion of obscene or otherwise illegal material. (b) Findings. Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the City Commission, and on findings incorporated in the cases of Citv of Renton v. Plavtime Theaters, Inc., 475 U.S. 41 (1986): Young v. American Mini Theaters, 426 U.S. 50 (1976): Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991): City of Erie v. Pao 's A.M, 120 S. Ct. 1382 (2000): and City of Los Angeles v, Alameda Books, 535 U.S. 425 (2003), and on materials made of record relating to the Seminole County and St. Johns County Public Nudity Ordinances, and on the substance of and findings made or incorporated in studies accomplished in other communities and ordinances enacted in other communities, including, but not limited to, New York, New York; City of Houston Ordinance Number 97-75; Senate Bill Number 232, as passed by the Kansas State Legislature: Phoenix, Arizona; Tucson. Arizona; St. Paul. Minnesota: Minneapolis, Minnesota: Houston, Texas; Indianapolis, Indiana; Amarillo, Texas: Garden Grove, California; Los Angeles, California: Austin, Texas: Macon-Bibb County, Georgia; Palm Beach Countv, Florida: Manatee County, Florida: the findings of the Attorney General ofthe State of Minnesota: the report of United States Attorney General's Commission on Pornography (1986): Jacksonville, Florida: Detroit:. Michigan: and "A Summary of a National Survey of Real Estate Appraisers Regarding the Effect of Adult Bookstores on Property Values," conducted by the Division of Planning, Department of Metropolitan Development:. Indianapolis, January 1984: the publication entitled "Protecting Communities From Sexually Oriented Businesses" (Southwest Legal Press, Inc.): the publication entitled "Local Regulation Of Adult Businesses" (Clark, Boardman and Callaghan): publications prepared by the Florida Family Association, Inc. (Tampa, Florida) relating to the regulation of sexually oriented businesses and adverse secondary effects of sexually oriented businesses: the "Report to: The American Center for Law and Justice on the Secondary Impacts of Sex Oriented Businesses", Peter R. Hecht. Ph.D. (1996): and the findings of fact relating to the Adult Entertainment Codes of Orange and Brevard Counties, two neighboring and contiguous counties in Central Florida, and the findings offact relating to the Sexually Oriented Business and Adult Entertainment Establishment Ordinance of Seminole County, Florida, the county in which the City of Winter Springs is located, the publications of Dr. William George regarding erotica and alcohol: Alcohol and Human SexuaUtv: Review and Integration, Leif C. Crowe and William H. George, Psychological Bulletin, 1989: Alcohol and HvpermascuUnitv as Determinants of Men's Emoathic Resoonses to Violent Pornograohv, Jeanette Norris, William H. George, Kelly Cue Davis, Joel Martell, R. Jacob Leonesio: Journal ofInt'l Violence, 1999: Alcohol Exoectancies and Sexuality: A Self-Fulfllling Proohecv. Analvsis ofDvadic 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 City of Winter Springs Ordinance No, 2003-41 Page 7 of 63 Anger on Interest in Violence. Erotica & Deviance, William H. George and G. Alan Marlatt. Journal of Abnormal Psychology, 1986: Perception of Postdrinking Female Sexuality: Effects of Gender. B.everage Choice. and Drink Pavment, 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-Revorted Alcohol Exvectancies and Postdrinking Sexual Inferences About Women, William H. George, Kelly L. Cue, Peter A. Lopez, LiefC. Crowe. and Jeanette Norris, Journal of Applied Social Psvchology, 1995: Self- Revorted 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: Sammv's of Mobile. LId. v. City of Mobile, 140 F. 3d 993 (11 th Cir. 1998): City of Davtona Beach v. Del Percio 476 So. 2d 197 (Fla. 1985): SOB. Inc. v. County of Benton , 317 F. 3d 856 (8th Cir. 2003): New York State Liquor Auth. V Bellanca, 452 U.S. 714 (1981): California v. LaRue, 409 U.S. 109 (1972) (result upheld in 44 Liquormart v. R.I, 517 U.S. 484 (1996)): Seminole Entertainment. Inc. v. City of Casselberry. 813 So. 2d 186 (Fla. 5th DCA2002).rev. denied 835 So. 2d269 (2002), cert. denied 123 S. Ct. 2276, 71 USLW 3641 (2003) (including the entire record presented to the Casselberry City Commission and the order ofthe City Commission revoking Rachel's adult entertainment license): McKee v. City of Casselberry, 10 Fla. L. Weekly Supp. 408a: and matters and materials submitted at the public hearings relating to this Ordinance and other matters and documents relating to all of the above: and the experiences of other neighboring communities including the City of Casselberry, the City Commission finds: ill Sexually oriented businesses and adult entertainment establishments lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled or not adequately controlled by the operators of the establishments or businesses, Further, there are presently no mechanisms or inadequate mechanisms to make the owners of these businesses or establishments responsible for the activities that occur on their premises. ill Certain workers of certain sexuallv oriented businesses and adult entertainment establishments defined in this Article engage in a higher incidence of certain tyPes of illicit sexual behavior than workers of other business establishments. ill Sexual acts, including masturbation, and oral and anal sex. occur at sexually oriented businesses and adult entertainment establishments, especially those which provide private or semi-private areas, booths or cubicles for viewing films, videos, live sex shows and those having physical interaction between workers and customers. ill Offering and providing such private spaces encourages such previously mentioned activities, which create unhealthy conditions. City of Winter Springs Ordinance No. 2003-41 Page 8 of 63 ill Persons frequent certain adult theaters. adult arcades. and other sexually oriented businesses and adult entertainment establishments for the purpose of engaging in sex within the premises of such businesses and establishments. @ At least 50 communicable diseases may be spread by activities occurring in sexually oriented businesses and adult entertainment establishments. including. but not limited to. syphilis. gonorrhea. human immunodeficiency virus infection (HIV- AIDS)' genital herpes. hepatitis B. Non A. Non B amebiasis. salmonella infections and shigella infections. ill Since 1981 and to the present:. there has been an increasing cumulative number of reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States - 600 in 1982.2.200 in 1983.4.600 in 1984. 8.555 in 1985 and 253.448 through December 31. 1992. 00 As of December 31. 1995. there have been 51.838 reported cases of AIDS in the State of Florida. ill From 1981 to June 1996. the numberofliving persons testing positive for the HIV antibody with AIDs symptoms has risen to 73.217 in the 28 states having confidential reporting requirements. .QQ} The number of cases of early (less than one year) syphilis in the United States reported annually has risen. with 33.613 cases reported in 1982 and 45.200 through November of 1990. au The nwnber of cases of gonorrhea in the United States reported annually remains in a high level. with over one-half million cases being reported in 1990. ill} The surgeon general of the United States. in his report of October 22. 1986. has advised the American public that AIDS and HIV infection may be transmitted through sexual contact. intravenous drug abuse. exposure to infected blood and blood components. and from an infected mother to her newborn. .c.l1l According to the best scientific evidence. AIDS and HIV infection. as well as syphilis and gonorrhea. are principally transmitted by sexual acts. .Q.1) Sanitary conditions in some sexually oriented businesses and adult entertainment establishments are unhealthy. in part. because the activities conducted there are unhealthy. and. in part. because of the unregulated nature of the activities and the failure of owners and operators of the facilities to self-regulate those activities and maintain those facilities. City of Winter Springs Ordinance No. 2003-41 Page 9 of 63 @ Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses and adult entertainment establishments where persons view "adult" oriented films. (l0 The findings noted in paragraphs number 1 through 15 and as set forth hereinafter raise substantial governmental concerns. 011 Sexually oriented businesses and adult entertainment establishments have operational characteristics which should be reasonably re~lated in order to protect those substantial governmental concerns. aID A reasonable licensing procedure is an appropriate mechanism to place the burden ofthat reasonable re~lation on the owners and the operators ofthe sexually oriented businesses and adult entertainment establishments. Further, such a licensing procedure wiU place a heretofore nonexistent incentive on the operators to see that the business or establishment is run in a manner consistent with the good order, health, safety and welfare of its patrons and workers, as well as the citizens of the City. It is appropriate to require reasonable assurances that the licensee is the actual operator of the business or establishment, fully in possession and control of the premises and activities occurring therein. Q.2) Removal of doors on adult booths and requiring sufficient lighting on premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult theaters. (20) Requiring licensees of sexually oriented businesses and adult entertainment establishments to keep information regarding current workers and certain past workers will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working at such businesses and establishments. aD The disclosure of certain information bv those persons ultimately responsible for the day-to.-day operation and maintenance of the sexually oriented business and adult entertainment establishments, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases. (22) It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain workers who may engage in the conduct which this Article is designed to prevent or who are likely to be witnesses to such activity. City of Winter Springs Ordinance No. 2003-41 Page 10 of 63 G1l The fact that an applicant for an adult entertainment establishment or sexually oriented business license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention ofthis Article". (24) Commercial establishments exist or may exist within the City and other nearby cities and counties in central Florida where adult entertainment material is possessed, displayed, exhibited, distributed and/or sold for commercial purposes in the form of books, magazines, periodicals or other printer material. or photographs, films, motion pictures, prints, videotapes, slides, computer digital graphic recordings or other visual representations or recordings, or recordings or other audio matter, or instruments, novelties, devices, or paraphernalia which depict. illustrate, describe or relate to specified sexual activities or specified anatomical areas. Gl2 Commercial establishments exist or may exist within the City and other nearby cities or counties in central Florida where adult entertainment and sexually oriented commercial activities in the form of nude, semi-nude, or topless dancers, entertainers, performers, or other individuals, who, for commercial gain, perform or are presented while displaying or exposing specified anatomical areas: or engage in straddle danci.ng or touching with customers. !lQ} Commercial sexually oriented businesses exist or operate or may exist or operate within the City or other nearby cities or counties in central Florida where sexually oriented services are offered for commercial or pecuniary gain in the form of commercial physical contact. escort services and other services providing sexual encounters. The workers of such sexually oriented businesses operating in central Florida engage in physical contact or touching with customers including, but not limited to, acts of prostitution, or encourage or entice the customers to engage in lewdness. G1} The activities occurring at sexually oriented businesses and. adult entertainment. establishments occur at establishments and businesses which operate primarily for the purpose of making a profit and, as such, are subiect to regulation by the City in the interest of the good order, health, safety, economy, property values, morals and general welfare of the people, businesses and industries of the Citv. A maior industry which is important to the community's economic welfare is tourism by persons seeking to bring children to visit central Florida attractions who wish to stay in a community with a family atmosphere not dominated by commercialized sexual themes. City of Winter Springs Ordinance No. 2003-41 Page 11 of 63 @ When the activities occurring at sexually oriented businesses and adult entertainment establishments are present in establishments and businesses, other activities which are illegal, unsafe, or unhealthful tend to accompany them, concentrate around them, and be aggravated by them. Such other activities include, but are not limited to, prostitution, pandering, solicitation for prostitution, lewd and lascivious behavior, exposing minors to harmful materials, possession, distribution and transportation of obscene materials, sale or possession of controlled substances, and violent crimes against persons and property. (29) When the activities occurring at sexually oriented businesses and adult entertainment establishments are competitively exploited in establishments and businesses, they tend to attract an undesirable number of transients, blight neighborhoods, adversely affect neighboring businesses, lower real property values, promote the particular crimes described above and, ultimately, lead residents and businesses to move to other locations. QQ} Sexually oriented businesses and adult entertainment establishments often have exterior si gns or exterior appearance that lower the surrounding property values and contribute to urban decline. Q.l} In order to reverse urban blight. the City of Winter Springs participates in an established Communi tv Redevelopment Area pursuant to Chapter 163, Florida Statutes along the SR 17-92 corridor. Sexually oriented businesses and adult entertainment establishments that contribute to urban blight operate at cross-purposes with Community Redevelopment Areas. .em The activities occurring at sexually oriented businesses and adult entertainment establishments sometimes occur in establishments and businesses concurrent with the sale and consumption of alcoholic beverages which concurrence leads to a further increase in criminal activity, unsafe activity, and disturbances ofthe peace and order of the surrounding community and creates additional hazards to the health and safety of customers and workers and further depreciates the value of adioining real property harming the economic welfare ofthe surrounding community and adversely affecting the quality of life, commerce, and community environment. ill) Physical contact or touching within sexually oriented businesses and adult entertainment establishments between workers exhibiting specified anatomical areas and customers poses a threat to the health of both and promotes the spread of communicable and social diseases. (W In order to preserve and safeguard the good order, health" morals, safety, and general welfare ofthe people ofthe Citv it is necessary and advisable for the City to City of Winter Springs Ordinance No. 2003-41 Page 12 of 63 regulate the conduct of owners. managers. operators. agents. workers. entertainers. performers. ,md customers at sexually oriented businesses and adult entertainment establishments. Qi) The potential dangers to the good order. morals. health. safety. and general welfare ofthe people of the City posed by permitting a sexually oriented business or adult entertainment establishment to operate without first meeting the requirements for obtaining a license under this Article are so great as to require the licensure of such establishments prior to their being permitted to operate. .QQl Requiring operators of sexually oriented businesses and adult entertainment establishments to keep records of information concerning workers and certain recent past workers as well as customer contracts and other matters and materials will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by making it difficult for minors to work at or be customers in such establishments. Q.1) Prohibiting sexually oriented businesses and adult entertainment establishments from operating within set distances of educational institutions. religious institutions. residences. areas zoned or designated for residential use. and parks at which minors are customarily found. will serve to protect minors from the adverse affects ofthe activities that accompany such establishments and businesses. .QID Straddle dancing. unregulated private performances. ,md enclosed adult booths in sexually oriented businesses and adult entertainnlent establishments have resulted in indiscriminate commercial sex between strangers and poses a threat to the health of the participants and promotes the spread of communicable sexually transmitted diseases. Straddle dancing is primarily conduct rather than communica- tion or expression. Q.2} Workers at sexually oriented businesses and adult entertainment establishments engage in a higher incidence of certain tyPes of unhealthy or criminal behavior than workers of other establishments and businesses including. but not limited to. a very high incidence of illegal prostitution or engaging in lewdness in violation of Chapter 796 of the Florida Statutes. operation without occupational licenses and illegal and unlicensed massage. (40) Physical contact or touching between workers of sexually oriented businesses and adult entertainment establishments and customers poses a threat to the health of both and promotes the spread of communicable and sexually transmissible diseases. City of Winter Springs Ordinance No. 2003-41 Page 13 of 63 ffi} The practice of not paying workers at sexually oriented businesses and requiring them to earn their entire income from tips or gratuities from their customers who are predisposed to want sexual activity has resulted in a high incidence of prostitution and crimes related to lewdness by workers. (42) Sexually oriented businesses involve activities that are pure conduct engaged in for the purpose of making a profit rather than speech or expressive activity and, therefore, are subiect to and require increased regulation to protect the health, good order, morals., welfare and safety of the community. ill} Requiring sexually oriented businesses to post a listing of services provided and restrict services to those listed as well as maintaining a customer contract and transaction record in a daily register will discourage incidents of criminal behavior such as lewdness and prostitution thereby further safeguarding the health of both workers and customers and will assist facilitating the identification of potential witnesses or suspects if criminal acts do occur. (44) This ordinance shall not be construed as opting the City of Winter Springs out of the Seminole County Public Decency ordinance. Gil The general welfare, health. good order, and safety ofthe citizens ofthe City will be promoted by the enactment of this Article. (c) Intent. It is the intent of this Article to protect and preserve the good order, health, peace, safety, and welfare of the citizens of the City of Winter Springs. Except for the locational zoning requirements, this Article regulates conduct and is not an ordinance that affects the use of land as contemplated by Section 166.041, Florida Statutes (2003). (d) Authority. This Article is enacted under the constitutionally derived home rule power of the City of Winter Springs in the interest of the good order, health, peace, safety. and general welfare of the people of the City. (e) "Whereas" ClaUlses. It is the City Commission's further intention to accomplish those intents and purposes t:xpressed by the City Commission in the recital ("whereas" clauses) of this Article, each of which are incorporated by reference into this Section. (f) Speech Protection. Nothing herein shall be construed to prohibit constitutionally protected expression or speech. This Article is intended to reasonably regulate the adult entertainment industry and sexually oriented businesses which engage in commercial activities involving acts or services of a sexually explicit nature or which involve acts or services involving matters which are sexual in nature. City of Winter Springs Ordinance No. 2003-41 Page 14 of 63 Sec. 10-53. Constmction. (a) This Article shall be liberally construed to accomplish its purpose of reasonably regulating sexually oriented businesses and adult entertainment establishments in order to reduce or eliminate adverse secondary effects of such businesses and establishments. This Article is intended to reasonably regulate such matters in order to reduce or eliminate the adverse secondary effects of commercial establishments and businesses. The provisions of this Article shall not be deemed to authorize a violation of Seminole County's Public Decency ordinance or the City's Code regulating public nudity at licensed beverage establishments. The provisions of this Article shall be construed to be additional and supplemental to the Seminole County Public Decency ordinance and is in no way whatsoever intended to conflict with the clothing requirements contained in the Seminole County Public Decency ordinance or the City's Code regulating public nudity at licensed beverage establishments. The regulation of alcoholic beverage establishments is also addressed in the City Code ofthe Citv of Winter Springs and other provisions oflaw. (b) Unless otherwise indicated, all provisions of this Article shall apply equally to all persons, regardless of sex. Masculine pronouns, such as "he," "his," and "him," as employed in this Article, shall also be construed to apply to feminine pronouns and neutral pronouns, unless the context suggests otherwise. Words used in the singular number shall include the plural number, unless the context suggests otherwise. Sec. 10-54. Obscenfity/indecent exposure unlawful. As a matter of State and Federal law, obscenity is unlawful in the City of Winter Springs. Likewise, State law prohibits indecent exposure. Nothing in this Article shall be construed to allow or permit the possession, distribution and transportation of obscene materials: to authorize the exposing of persons under eighteen (18) years of age to motion pictures, exhibitions, shows, representations and presentations of specified sexual activities or persons displaying or exhibiting specified anatomical areas: or the indecent exposure of a person as prohibited by State law. Sec. 10-55. Definitions. The following words and phrases defined in this section and used in this Article shall have the meaning herein prescribed, unless the context clearly suggests otherwise. Adult Bookstore/Adult Video Store: (a) An establishment which, as its principal business purpose, sells or rents adult material or which offers adult materials for sale or rent as a significant portion of its stock and trade. City of Winter Springs Ordinance No. 2003-41 Page 15 of 63 (b) Any establishment in which anyone (1) or more ofthe following five (5) elements occur shall be presumed to be an adult bookstore/adult video store: (1) that the adult material is accessible to customers: "accessible to customers" means that the item can be physically touched. picked up. handled by a customer before being transferred from the control of a worker. or is visually displayed so that an adult or child present in the store can view substantially more than its name alone: or (2) that the individual items of adult material offered for sale and/or rental comprise more than twenty-five percent (25%) of the unused individual items publicly displayed at the establishment as stock in trade in the following categories: books. magazines. periodicals. other printed matter. slides. photographs. films. motion pictures. videotapes. compact disks. computer digital graphic recordings. other visual representations. audio recordings and other audio matter. and more than twenty-five percent (25%) of the total used items publicly displayed at the establishments as stock in trade in each of the same categories set out above: or (3) the gross income each month from the sale and rental of adult material comprises more than ten percent (10%) of that month's gross income from the sale and rental of the goods and material at the establishment or (4) the floor area used to display adult material comprises more than ten percent (10%) of the floor area used for display of all goods and material at the establishment; or (5) the establishment uses any ofthe following terms in advertisements or any other promotional activities relating to the adult material: "XXX." "XX." "X." or any series of the letter "X" whether or not interspersed with other letters. figures or characters: "erotic" or deviations ofthat word: "adult entertainment." "adult books." "adult videos" or similar phases: "sexual acts" or similar phrases: "nude" or "nudies" or similar phrases which letters. words or phrases a reasonable person would believe to be promotional of the purchase or rental of adult material. (c) In recognition of the provisions of Sections 847.013 and 847.0133. Florida Statutes. which protects minors from exposure to obscene material. any business which is an adult bookstore/adult video store shall have in place at each entrance to such business a sign. no greater than one (1) square foot in size. stating "Persons under 18 years of age not permitted." Adult Booth: A separate booth inside an adult entertainment establishment or sexually oriented business 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 arcade. or City of Winter Springs Ordinance No. 2003-41 Page 16 of 63 other booth used to view "adult material." The term "adult booth" does not include a foyer through which any pt::rson can enter or exit the establishment or a rest room. Adult Entertainmenlt: One (1) or more of the following activities: (a) The display or exposure of any specified anatomical area by a worker to a customer regardless of whether the worker actually engages in perfOlming or dancing or where workers wear or display to a customer any covering, tape, pastie, or other device which simulates or otherwise gives the appearance ofthe display or exposure of anv specified anatomical areas regardless of whether the worker actually engages in perfomling or dancing: or (b) Providing adult material for commercial or pecuniary gain: or (c) The offering, soliciting or contracting to dance or perform by a worker with or for a customer with the acceptance of any consideration, tip, remuneration or compensation from or on behalf of that customer; or (d) The dancing or performing by a worker with or within three feet (3') of a customer with the acceptance of any consideration, tip, remuneration, or compensation from or on behalf of that customer. Adult Entertainment Establishment: An adult performance establishment, adult bookstore/adult video store, adult motel, or adult theater as those terms are defined herein, which is operated for commercial or pecuniary gain. An establishment with an adult entertainment license shall be presumed to be an adult entertainment establishment. Adult Material: One (1) or more ofthe following, regardless of whether it is new or used: (a) Books, magazines, periodicals, or other printed matter, photographs, films, motion pictures, videotapes, video cassettes, slides, computer digital graphic recordings, or other visual representations, tape recordings, disks or other audio matter, which have as their primary or dominant theme matters depicting, illustrating, describing or relating to specified sexual activities or specified anatomical areas: or (b) Instruments, novelties, devices or paraphernalia which are designed for use in connection with specified sexual activities, excluding bona fide birth control devices. Adult Model: Any person who, for commercial or pecuniary gain, offers, suggests, or agrees to engage in a private performance, modeling or display of male or female lingerie, bathing suits, under garments, or specified anatomical areas to the view of a customer. City of Winter Springs Ordinance No. 2003-41 Page 17 of 63 Adult Motel: Any motel, hotel, boarding house. rooming house or similar commercial establishment which offers accommodations to the public for any form of consideration whose advertisements or business name includes the word "adult" or which advertises to the public outside of the premises of the establishment and visible from a public right-of-way the presentation of closed-circuit television transmissions. films. motion pictures. video tapes. video cassettes. slides or other photographic reproductions, which have as their primary or dominant theme matters depicting, illustrating or relating to specified sexual activities or specified anatomical areas. The term "adult motel" is included within the defini- tion of" adult theater." Adult Performance Establishment: (a) Any establishment where anv worker: 0) engages in a private performance, acts as an adult model, or displays or exposes any specified anatomical areas to a customer, regardless of whether the worker engages in dancing or any particular activity; or (2) wears and displays to a customer any covering, tape, pastie, or other device which simula.tes or otherwise gives the appearance of the display or exposure of any specified anatomical areas, regardless of whether the worker actually engages in performing or dancing; or (3) offers, solicits, or contracts to dance or perform with or for a customer and accepts any consideration, tip, remuneration or compensation from or on behalf of that customer; or (4) dances or performs with or within three feet (3') of a customer and accepts any consideration, tip, remuneration, or compensation from or on behalf ofthat customer. (b) A bona fide private club whose membership as a whole engages in social nudism or naturalism as in a nudist resort or camp and at which specified sexual activities do not occur shall be presumed not to be an adult performance establishment. (c) It is an affirmative defense to an alleged violation of this Code regarding operating an adult performance establishment without a license if the alleged violator demonstrates that the predominant business or attraction of the establishment is not offering to customers of entertainment which is intended to provide sexual stimulation or sexual gratification to such customers and the establishment and its advertising is not distinguished by an emphasis on or the promotion of matters or persons depicting, describing, displaying, exposing, simulating or relating to specified sexual activities or specified anatomical areas. City of Winter Springs Ordinance No. 2003-41 Page 18 of 63 (d) Consistent with the decision of the Supreme Court of Florida in the case of Hoffman v. Carson. 250 So. 2d 891. 893 (1971). aooeal dismissed 404 U.S. 981 (1971). an adult performance establishment shall not be deemed a place provided or set apart for the purpose of exposing or exhibiting a person's sexual organs in a manner contrary to the first sentence of Florida Statute. ~ 800.03. the State's indecent exposure statute. Adult Theater: An establishment which consists of an enclosed building. or a portion or part of an enclosed building. or an open-air area used for viewing by persons of films. motion pictures. video cassettes. video tapes. slides. computer digital graphic recordings. or other photographic reproductions which have as their primary or dominant theme. matters depicting. illustrating or relating to specified sexual activities or specified anatomical areas. "Adult motels." and "adult booths" are included within the definition of "adult theater." Adult Video Store: See "Adult Bookstore." Alcoholic Beverages: All beverages containing more than one (1) percent of alcohol by weight. It shall be prima-facie evidence that a beverage is an alcoholic beverage if there is proof that the beverage in question was or is known as beer. wine. whiskey. moonshine whiskey. moonshine. shine. rum. gin. tequila. bourbon. vodka. scotch. scotch whiskey. brandy. malt liquor. or by any other similar name or names. or was contained in a bottle or can labeled as any ofthe above names. or a name similar thereto. and the bottle or can bears the manufacturer"s insignia. name. or trademark. Any person who. by experience in the handling of alcoholic beverages. or who by taste. smell. or drinking of such alcoholic beverages has know ledge of the alcoholic nature thereof. may testify as to his opinion about whether such beveral~e is an alcoholic beverage. Commercial Bodily Contact: (a) The. manipulation. washing. scrubbing. stroking. or touching. for commercial or pecuniary gain. of the body of another person directly. or indirectly through a medium or using any obiect. instrument. substance. or device between a worker and a customer. (b) The following persons engaged in the bona fide performance ofthe following activities shall not be deemed to be engaging in commercial bodily contact for the purposes of this Article when they are engaged in the bona fide practice of their occupation or profession: (1) Persons licensed as a massage therapist or apprentice massage therapist pursuant to Chapter 480. Florida Statutes. when providing massage services in an establishment licensed under Chapter 480. Florida Statutes. (2) Persons licensed under the laws of the State of Florida to practice medicine. surgery. osteopathy. chiropody. naturopathy. or podiatry. City of Winter Springs Ordinance No. 2003-41 Page 19 of 63 (3) Persons licensed under the laws ofthe State of Florida as a physician's assistant or nurse. (4) Persons holding a drugless practitioner's certificate under the laws of the State of Florida. (5) Persons licensed as barbers or cosmetologists under the laws of the State of Florida. (6) Persons performing authorized services in a hospital. nursing home, sanitarium, adult congregate living facility, group home. day care center, or similar place of business when owned and operated in accordance with the laws of the State of Florida. (7) Persons who are instructors, coaches, or athletic trainers employed by. or on behalf of. any professional. amateur, Olympic. or similar athletic team engaging in bona fide athletic events, or when employed by a governmental entity or a bona fide educational institution. (8) Persons licensed as physical therapists under the laws of the State of Florida. Commercial Bodily Contact Establishment: Any establishment. business, or place operated for commercial or pecuniary gain or where for any form of consideration workers or customers engage in commercial bodily contact or any establishment. business or place any portion of which is set aside, advertised. promoted or used as a place where commercial bodily contact occurs or which is described or depicted as a "body scrub salon," "body wash salon," or "body relaxation salon. " Commercial or Pecuniary Gain: Operated for commercial or pecuniary gain shall be presumed for any establishment which has received an occupational license. For the purposes of this Article, operation for commercial or pecuniary gain shall not depend on actual profit or loss. .An establishment which has an occuoationallicense or an establishment which advertises itself as a type of adult entertainment establishment shall be presumed to be "operated for commercial or pecuniary gain. II Commercial Establishment: Any business. location, or place which conducts or allows to be conducted on its premises any activity for commercial or pecuniary gain. Conviction: A detennination of guilt resulting from plea or trial. regardless of whether adjudication was withheld or whether imposition of sentence was suspended. City of Winter Springs Ordinance No. 2003-41 Page 20 of 63 Customer: (a) Any person present at an adult entertainment establishment or sexually oriented business, other than operators or workers, regardless of whether the person has given or paid any consideration to be present at the adult entertainment establishment or sexually oriented business and regardless of whether the person has paid anv money for goods or services at or to the adult entertainment establishment or sexually oriented business. (b) Any person, excluding a worker or operator, who has paid, or has offered, agreed, been solicited, or had someone else offer or agree on that person's behalfto pay any consideration, fee, or tip to an operator or worker of an adult entertainment establishment or sexually oriented business. Educational institution: A premises or site upon which there is an institution of learning for minors, whether public or private, which conducts regular classes and/or courses of study required for eligibility to certification by, accreditation to, or membership in the State Department of Education of Florida, Southern Association of Colleges and Secondary Schools, or the Florida Council of Dependent Schools. The term "educational institution" includes a premises or site upon which there is a nursery school, kindergarten, elementary school, junior high school, senior high school, or any special institution of learning, a vocational institution, professional institution, an institution of higher education, a community college, junior college, four (4) year college or university. Entity: Any proprietorship, partnership, corporation, association, business trust, ioint venture, joint-stock company or other for profit ancllnot for profit organization by whatever name, title or description. Escort: Any person who, for commercial or pecuniary gain, compensation or tips, agrees to, offers to go, or goes to any place, including, but not limited to, a business, hotel, motel, residence, boat, vessel, motor vehicle, or other mode of transportation to do any of the following acts: (a) act as a companion or date for, or converse with a customer; (b) engage in commercial bodily contact with another person; (c) engage in a private performance; (d) engage in adult modeling or act as an adult model; (e) display specified anatomical areas, strip naked, or go topless: or City of Winter Springs Ordinance No. 2003-41 Page 21 of 63 (n engage in any specified sexual activity. Nothing in this definition shall be construed to legalize prostitution or other conduct prohibited by this Code or other law. Workers of a licensed adult performance establishment for whom worker records are maintained pursuant to this Article are excluded from the definition of escort when engaged in the expressive display of specified anatomical areas at a licensed adult performance establishment. An escort who is a paid employee type worker of an escort service for whom taxes and social security payments are withheld and paid by the escort service, and who is not an independent contractor, is not required to obtain his or her own sexually oriented business license for activities conducted pursuant to employment with the escort service. Escort Service: A person, business, establishment. or place operated for commercial or pecuniary gain, which advertises as an "escort", "escort service" or "escort agency" or otherwise offers or advertises that it can furnish escorts, a private performance, or adult models: or offers or actually provides, arranges, dispatches, or refers workers or themselves to act as an escort or engage in a private performance for a customer. It is an affirmative defense to an alleged violation of this code regarding escort services if the alleged violator is a bona fide dating or matching service which arranges social matches or dates for two (2) persons who each wish to meet a compatible companion when neither of said persons solicits, accepts, or receives any financial gain or any monetary tip, consideration, or compensation for the meeting or date is not an escort service. Establishment: Any place, site, or premises, or portion thereof, upon which any person, corporation, or business conducts activities or operations for commercial or pecuniary gain including, but not limited to, any place, site or premises from where an escort service dispatches or refers workers to other locations or at which an escort service receives business calls from customers. Law Enforcement Officer: An officer who is on official duty for any law enforcement agency. Licensee: Any person, corporation, partnership, or other entity whose application for an adult entertainment establishment or sexually oriented business license has been granted and any person, corporation, partnership or other entity who owns or operates or controls the establishment or business. Operator: Anv person who engages in or performs any activity which is necessary to or which facilitates the operation of a sexually oriented business or an adult entertainment establishment including, but not limited to, the licensee, manager, owner, doorman, bouncer, bartender. disc iockey. sales clerk. ticket taker, movie proiectionist. dispatcher. receptionist. City of Winter Springs Ordinance No. 2003-41 Page 22 of 63 attendant or supervisor. Park: A tract of land within any jurisdiction which is kept for ornament or recreation and which is maintained as public property including, but not limited to, a playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, wilderness areas or other similar public land. Person: Includes, but is not limited to, an individual, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and any and all other similar entities and all officers, directors and principal stockholders of such associa- tions, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations or other similar entities. Police Chief: The Chief of Police of the City of Winter Springs, Florida. Private Performan,ce: Modeling, posing, or the display or exposure of any specified anatomical area by a worker to a customer while the customer is in an area not accessible during such display to all other persons in the establishment or, while the customer or worker is in an area which is not on the premises of the establishment, or in which the customer or worker is totally or partially screened or partitioned during such display from the view of persons outside of the area. Sexual Encounter Business: (a) Any person or entity which for any form of consideration or remuneration or which charges an admission fee and provides a place for the purpose of providing, encouraging or allowing three (3) or more persons to engage in any specified sexual activity among themselves or with other persons. (b) The following shall be presumed not to be a sexual encounter business: (1) a bona fide private club whose membership as a whole engages in social nudism or naturalism as in a nudist resort or camp and at which specified sexual activities do not occur, (2) a State licensed sexual therapist, and (3) a bona fide hotel or motel licensed by the State. Sexual Gratification: Means the engaging in or committing of an act of sexual intercourse, oral-genital contact, masturbation, or the touching ofthe covered or uncovered sexual organ, pubic region, buttock, breast, chest or inner thigh of a person, any of which is for the purpose of arousing or gratifying the sexual desire of another person. Sexual Stimulation: Means either to excite or arouse the prurient interest or to offer, propose, solicit, or suggest to provide an act of sexual gratification to a customer, including but not limited to all conversations, statements, advertisements and acts which would lead City of Winter Springs Ordinance No. 2003-41 Page 23 of 63 a reasonable person to conclude that an act of sexual gratification was to be provided. Sexually Oriented lBusiness: A commercial bodily contact establishment escort service, or sexual encounter business. A business shall be a sexually oriented business, whether services are provided on the premises of an establishment or on an out call basis at any other place and regardless of whether such business is licensed under this Article. A business with a sexually oriented business license shall be presumed to be a sexually oriented business. An individual operating a sexually oriented business is subiect to the provisions of this Article notwithstanding the fact that services are being provided at or from a residence, motor vehicle, vessel or any other location and a license pursuant to this Article is required unless the individual is a paid employee for whom taxes and social security payments are withdrawn and paid by the licensed establishment, worker records are maintained, and the individual is not an independent contractor. Specified Anatomical Areas: (Editor's note: The source ofthe footnotes below is The New Webster's Medical Dictionary (Bolander, 1991). The definitions of terms set forth in the footnotes are a material part of this Article and apply to the use of the term each time it is used in this Article.) (a) Any of the following in a state that is less than completely and opaquely covered: (1) the male or female genitals 1: (2) the male or female pubic area2: (3) the vulva~ (4) theanus4~ (5) the penis~ (6) the scrotum6: (7) the cleavage of the buttocks: (8) the buttocks: (9) the anal? cleft: (10) the anal cleavage: IGenitals, Genitalia - Organs of the reproductive system, especially the external organs. 2Pubic Area - (1) Pubes, the pubic region; the anterior region of the innominate bone covered with pubic hair; os pubis. (2) Pubic, pertaining to the pubes. (3) Pubis, pubic bone, or the innominate bone. 3Vulva - External female genitalia, including the mons pubis, labia majora and minora, clitoris and vestibule of the vagma. 4Anus - Outlet of the rectum leading from the bowel. 5Penis - The male organ for urination and copulation, a pendulous structure that is suspended from the front and the sides of the pubic arch. 6Scrotum - The external double pouch that contains the testicles. 7 Anal - A ring, pertaining to the rectal opening; near the anus. City of Winter Springs Ordinance No. 2003-41 Page 24 of 63 (11) the breastS of a female; (12) human male genitals in a discernibly turgid state. even if completely and opaquely covered. (b) Body paint. body dyes. tattoos. liquid latex whether wet or dried. dental floss. G-Strings. thongs. and similar coverings shall not be considered an opaque covering. Specified criminal act: (a) A violation of this Article; (b) Any felony not otherwise specified in this definition; 1l' (c) An offense under Chapter 794. Florida Statutes (Sexual Battery); (d) An offense under Chapter 796. Florida Statutes (Prostitution); (e) An offense under Chapter 800. Florida Statutes (Lewdness; Indecent Exposure); (f) An offense under Chapter 826. Florida Statutes (Bigamy; Incest); (g) An offense under Chapter 847. Florida Statutes (Obscene Literature; Profanity); or (h) An offense against an analogous Federal statute or the statutes of a state other than Florida. or an analogous ordinance of another county or city. Specified sexual activities: (Editor's note: The sources for the footnotes below are (1) Taber's Cyclopedic Medical Dictionary. T.A. Davis Co.. Philadelphia. 1997 (ed. 18); (2) Oxford Dictionary of the English Language (multi-volume); (3) Florida Statutes. The definitions of terms set forth in the footnotes are a material part of this Article and aoolv to the use of the term each time it is used.) (a) human genitals in a state of sexual stimulation. arousal or tumescence; or 8Breast - 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 one-fourth of the outside surface area of such gland. The female breast shall not include any portion of the cleavage between the human female breasts typically exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel, provided that the areola is not exposed. City of Winter Springs Ordinance No, 2003-41 Page 25 of 63 (b) acts of human anilingus9, bestialitylO, buggeryll, cunnilingus 12, coprophagy! 3 , coprophilia 14, fellatio 15, flagellation 16, masochism 17, masturbation 18 , necrophilia 19 ,pederastlO ,pedophilia21 , sadism22, sadomasochism23, sapphism24, sexual intercourse25, sodomv26, urolagnia27, or zooerastl8; or (c) fondling or other touching of human genitals, pubic region, any part ofthe buttocks, anus or female breast: or (d) oraL anaL or vaginal penetration by, or union with, the sexual o:rgan or any other part of the body of another; ( e) anal or vaginal penetration of another or oneself with any obi ect; or (f) the handling or fondling of the sexual organ of another for the purpose of masturbation directly or through a medium; or (g) excretory functions as part of or in connection with any of the activities set forth in 9 Anilingus - Oral stimulation of the anus by use of the tongue or lips. IOBestiality - (I) Use of animals for sexual enjoyment or any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, penis or vagina of the other. I I Buggery - Sodomy. 12Cunnilingus - Sexual activity ill which the mouth and tongue are used to stimulate the female genitalia, 13Coprophagy - The eating of excrement. 14Coprophilia - An abnormal interest in feces. 15FelIatio - Oral stimulation of the penis. 16Flagellation - Whipping or a massage by strokes which is a form of sexual aberration in which the libido is stimulated by whipping oneself, being whipped, or whipping someone else. 17Masochism - Sexual excitement by being humiliated or hurt by another or a sexual perversion in which one takes delight in being dominated, even 1:0 the extent of violence or cruelty, by another person. t8Masturbation - Stimulation of genitals or other erogenous areas by some means other than sexual intercourse, such as a hand or object. I~ecrophilia - Sexual intercourse with a dead body. 20Pederasty - Anal intercourse between a man and a young boy. 21Pedophilia - Fondling of children or any other sexual relations with a child. 22Sadism - Sexual pleasure derived from inflicting mental or physical pain on others, 23Sadomasochism - Sexual pleasure related to sadism and masochism. 24Sapphism - Lesbianism, i.e., the unnatural sexual relationship between women such as cunnilingus, anilingus, masturbation, etc. 25Sexual intercourse - Sexual union between a man and a woman by insertion of the penis into the vagina. 26Sodomy - Anal intercourse. 27Urolagnia - Sexual excitation associated with urination (e,g., watching another person tuinate or having another person urinate on one's own body,) 28Zooerasty - Bestiality. City of Winter Springs Ordinance No. 2003-41 Page 26 of 63 subsections (a) throughlQ Straddle Dance: (a) The use by a worker of any part of his or her body to touch the genital or pubic area of another person. or the touching of the genital or pubic area of any worker by another person; or the straddling of the legs of a worker over any part of the bodv of a customer at the establishment. regardless of whether there is a touch or touching: or the use by a worker. of any part of his or her body to touch the genital. pubic region, buttock. anus or female breast of another person while at the establishment. or the touching of the genitaL pubic region. buttock, anus or female breast of any worker by a customer while at the establishment. Cb) Conduct shall be a "straddle dance" regardless of whether the "touch" or "touching" occurs while the worker is displaying or exposing any specified anatomical area. ( c) Conduct shall also be a "straddle dance" regardless of whether the "touch" or "touching" is direct or through a medium. Cd) The terms "lap dance," "table dance," and "face dance" are included within the term "straddle dance". Worker: A person who works. performs. or provides services at an adult entertainment establishment or at or for a sexually oriented business, ilTespective of whether said person is paid a salary or wage and shall include. but is not limited to. employees. independent contractors. subcontractors, lessees, or sub-lessees who work or perform at an adult entertainn1ent establishment or at or for a sexually oriented business. An operator is a type of worker. Sec. 10-56. Notice. Any notice required under this Article shalL unless otherwise provided in this Article. be accomplished by posting upon the subiect premises and/or sending a written notification by certified mail to the mailing address set forth on the application for the license or a permit. This mailing address shall be considered the correct mailing address unless the City Manager or his designee has been otherwise notified in writing. Sec. 10-57. Penalties/remedies/relieC. Any person violating any of the provisions of this Article 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 iurisdiction of misdemeanors by the prosecuting attorney thereof and, upon conviction, shall be punished by a fine not to exceed Five Hundred and No/I 00 Dollars ($500.00) or by imprisonment in the County iail not to exceed City of Winter Springs Ordinance No. 2003-41 Page 27 of 63 sixty (60) days or by both fine and imprisonment as provided in Section 162.22, Florida Statutes (2003). Each incident or separate occurrence of any act that violates this Article shall be deemed a separate offense. In addition to the penalties provided under this section, violators of this Article shall be subject to any other appropriate civil or criminal action provided by law in a court of competent iurisdiction, including, but not limited to, injunctive relief. Sec. 10-58. License required. (a) Requirement. It is unlawful for any person to operate or to be an operator of or worker at a sexually oriented business or an adult entertainment establishment which has not first obtained a license which is applicable for said establishment or business pursuant to this Article: or to continue to operate or be an operator of or worker at a sexually oriented business or an adult entertainment establishment where that person knows or has reason to know that the license ofthe establishment or business is under suspension, has been revoked or has lapsed. The operation of a sexually oriented business or an adult entertainment estab- lishment without a valid license, where applicable, is unlawful and shall be grounds for the closing of the establishment or business upon a finding of fact by a court or other body with proper jurisdiction that the establishment does not have a valid license. (b) Licensing Office. Unless the City Manager designates in writing an office to administer the provisions of this Article, the City Manager shall serve as the licensing office. The City Manager may modify his designation from time to time in writing. When the phrase "City Manager or his desigQ,ee" is used in this Article, the designee referred to shall be the office designated in writing pursuant to this Subsection. (c) Classifications. Adult entertainment establishment and sexually oriented business licenses referred to in this Article shall be classified as follows: (1) Adult bookstore/adult video store: (2) Adult performance establishment: (3) Adult motrl;. (4) Adult theater: (5) Commercial Bodily Contact Establishment: (6) Escort Service. (d) Single License/Single Classification of License. Only one (1) license may be issued for a location or any single building and only under a single classification. City of Winter Springs Ordinance No, 2003-41 Page 28 of 63 -,. Sec. 10-59. Responsibilities of other offices and departments. The City Commission is the legislative branch of the City of Winter Springs government. Ultimate responsibility for the administration of this Article is vested in the City Manager or his designee as set forth in this Article. Other departments having responsibility under this Article are as follows: (a) The City Manager or his designee is responsible for granting, denying, revoking, renewing, suspending and canceling: a license issued under this Article~ (b) The Police Chief is responsible for verifying information contained on applications for inspecting proposed or existing adult entertainment establishments and sexually oriented businesses in order to ascertain compliance with applicable criminal statutes and ordinances including, but not limited to, those set forth in this Article, for determining whether license applicants have been convicted of a felony or a specified criminal act within the previous five (5) years and for enforcing applicable criminal statutes and ordinances including, but not limited to, those set forth in this Article. (c) The Building Official is responsible for inspecting establishments in order to ascertain compliance with all applicable building codes, statutes, ordinances and. regulations. (d) The Fire Chief is responsible for inspecting establishments and businesses in order to ascertain compliance with all applicable fire codes, statues, ordinances and regulations. (e) The Community Development Depmiment is responsible for ascertaining whether the location of proposed sexually oriented businesses or adult entertainment establishments comply with all separation, distance, zoning and location requirements ofthe Land Develop- ment Regulations of the City of Winter Springs and set forth in this Article and whether compliance with all applicable zoning regulations and land use laws is maintained. Sec. 10-60. License application and application fee. Any person desiring to engage in the business of operating an adult enteliainment establish- ment or a sexually oriented business shall file with the City Manager or his designee a sworn application on forms supplied by the City. The application shall contain the information and documents as provided in this Article and shall be accompanied by an application fee as established in this Article. The application shall be signed by the applicant and verified by the applicant before an officer authorized to take oaths and acknowledgments. Sec. 10-61. Contents of application. (a) The completed application, shall be accompanied by the following documents and shall be accompanied by a non-refundable application fee of TWO HUNDRED AND NOll 00 City of Winter Springs Ordinance No. 2003-41 Page 29 of 63 DOLLARS ($200.00) which shall be used to defray the costs of the application review process by various offices and departments: provided, however, that the fee shall be applied as a credit toward the annual license fee for licensing under this Article: (b) If the applicant is: (1) an individual. the individual shall state his or her legal name to include any and all aliases, residential street address, residential telephone number, an address where all correspondence from the City should be mailed, and submit proof that he is eighteen (18', years of age by providing a copy of a valid driver's license, voter's registration card or another State issued identification card: or a certified copy of a birth certificate: or (2) a partnership or trust. the partnership or trust shall state its complete name, and the names, residential street addresses, and telephone numbers of all partners, whether the partnership is general or limited or trustees, the name and residential street address of at least one (1) person authorized to accept service of process and, if in existence, a COPy of the partnership agreement: or (3) a corporation, the corporation shall provide a copy of its articles of incorporation stating its complete name, the date of its incorporation, evidence that the corporation is in good standing, the names, residential street addresses, telephone numbers and capacity of all officers and directors, and, if applicable. the name of the registered corporate agent and the legal street address of the registered office for service of process: or (4) any other entity. the entity shall state its complete name, the date of formation. the names. residential address, telephone numbers and capacity of all principal owners, and the name and residential street address of one (1) person authorized to accept service of process. (c) If the applicant intends to conduct activities in the establishment or business under a name other than that of the applicant. the applicant shall state the establishment's or business' fictitious name or names and the county of registration under Section 865.09, Florida Statutes, or its successor and all business names and telephone numbers to be used by the establishment or busi.ness. (d) The applicant shall state whether the applicant or any of the other individuals listed on the application has, within the five (5) year period immediately preceding the date of the application. been convicted of a specified criminal act. and. if so. the specified criminal act involved. the date of conviction and the place of conviction. City of Winter Springs Ordinance No. 2003-41 Page 30 of 63 (e) The applicant shall state whether the applicant or any of the other individuals listed pursuant to subsection (b) has had a previous license under this Article suspended or revoked including the name and location of the establishment for which the license was suspended or revoked. the date ofthe suspension or revocation. and whether the applicant or any other individuals listed pursuant to subsection (b) has been a partner in a partnership or an officer. director or principal stockholder of a corporation whose license under this Article has previously been suspended or revoked. including the name and location (lithe establishment for which the license was suspended or revoked. as well as the date of the suspension or revocation. (f) The applicant shall state whether the applicant or any other individuals listed pursuant to subsection (b) holds any other licenses under this Article and. if so. the names and locations of such other licensed establishments. (g) The applicant shall state the single classification of license for which the applicant is filing. (h) The applicant shall state the location ofthe proposed establishment or business including a street address. the name and address of the real property owner of the site. a notarized statement of consent from the real property owner authorizing a sexually oriented business or adult entertainment establishment on the site, and a legal description of the property on which the establishment is to be located. (i) The applicant shall provide the names of the workers for the proposed establishment or business, if known, or. if presently unknown a statement to that effect. (i) The applicant shall submit a plan drawn to appropriate scale of the proposed licensed premises indicating the areas to be covered by the license. all windows. doors. entrances and exits and the fixed structural features. walls. stages. partitions. proiection booths. admission booths. adult booths. concession booths. stands, counters and similar structures of the establishment or business to which the proposed license pertains. The term "fixed structural features" shall include immovable partitions and counters and similar structures that are intended to be permanent. (k) The applicant shall provide a mailing address. and. if different. a designated return address where all future correspondence from the City may be sent and the applicant's tele- phone number where communications and inquiries can be made. (1) The applicant shall provide a recent color photograph of the applicant in passport size if an individual and of each officer and director if a partnership, corporation or other similar entity. City of Winter Springs Ordinance No. 2003-41 Page 31 of 63 -, em) The applicant shall provide the weight. height. color of eyes. date of birth and gender of the applicant if an individual and of each officer. director or owner if a partnership. corporation or other similar entity. en) The applicant shall provide the applicant's social security account number or employer's tax identification number and either the applicant's drivers license number or the number of a Federal or State issued identification card if an individual and of each officer and director or owner if a partnership. corporation or other similar entity. eo) The applicant shall provide a complete set ofthe applicant's fingerprints if an individual and of each officer and director or owner if a partnership. corporation or other similar entity. (P) The applicant shall provide a copy of the most recent lease or deed of conveyance. whichever is applicable. indicating the applicant's interest in the proposed establishment. (q) The applicant shall provide a statement of the hours of operations of the establishment or business. (r) It is unlawful for any person applying for an adult entertainment establishment or sexually oriented business license to make a false statement which is intended to facilitate the issuance of a license or to provide false information which is intended to facilitate the issuance of a license. Sec. 10-62. Continuing duty/false or misleading information. (a) Each applicant shall be under a continuing duty and obligation to disclose to the City Manager or his designee any and all changes or alterations in the information or disclosures required by this Artic1.e. It is the duty of each applicant to correct changed. false or erroneous information provided in an application. It is unlawful for an applicant to fail to disclose changes in information provided or to fail to correct false or erroneous information given in an 'application immediately upon the applicant knowing or being in such a position that he or she should have known that the information provided has changed or was false or erroneous when provided. (b) It is unlawful for any person applying for an adult entertainment establishment or sexually oriented business license to make a false or misleading statement or provide false or misleading information which is intended to facilitate the issuance of a license. Sec. 10-63. Consent:. By applying for a license under this Article. the applicant shall be deemed to have consented to the provisions of this Article. City of Winter Springs Ordinance No. 2003-41 Page 32 of 63 Sec. 10-64. Investig:ation of applicant. Upon receipt of an application properly filed with the City Manager or his designee and upon payment ofthe non-refundable application fee, the application shall be time and date stamped and a copy of the application shall be forwarded to the Police Chief, the Fire Chief, the Building OfficiaL and. the Community Development Department. Each recipient entity shall promptly conduct an investigation of the applicant. application and the proposed establish- ment within fifteen (15) days from the date that the application was filed. At the conclusion of its investigation, each recipient entity shall indicate to the City Manager or his designee its investigative findings relating to the application and the reasons therefor. Sec. 10-65. Issuanc(~ or denial of license. (a) Upon the completion of the investigation and a review of the application as required: upon determination that the applicant meets the requirements of this Article and upon payment of the appropriate license fee by the Applicant, the City Manager or his designee shall within thirty (30) days of the application being filed issue the license. (b) If after review and investigation as provided herein the City Manager or his designee determines that one (l) or more ofthe reasons for denial set forth in Section 10-66 exist. the application shall be denied, within thirty (30) days ofthe date that the application is filed, and the City Manager or his designee shall issue a written and dated notice ofthe denial and the reasons therefor. A copy of the notice shall be sent to the applicant by certified mail to the designated return address on the application within five (5) days of the date of denial. (c) The denial of an application shall be final. No further exhaustion of administrative remedies shall be necessary for iudicial review of the administrative action. (d) An applicant whose application is denied may immediately appeal as a matter of right to a court of competent iurisdiction, which court shall promptly review said application. Sec. 10-66. Reasons for denial of application of license. The application for a license shall be denied if one (1) or more of the following reasons is found: (a) The application does not comply with the requirements of this Article and statutes expressly made applicable to adult entertainment and sexually oriented businesses such as Section 847.0134, Florida Statutes. (b) The application contains material false information. City of Winter Springs Ordinance No. 2003-41 Page 33 of 63 (c) The applicant or any of the individuals stated in Section 10-61 of this Article has a license under this Article which is under suspension. (d) The applicant or any of the individuals stated in Section 10-61 of this Article is or was at the time of suspension an officer, director or principal stockholder in an entity who has a license under this Article which is under suspension. (e) The applicant or any of the individuals stated in Section 10-61 of this Article had a license under this Article which had been revoked within the preceding two (2) years. if a first revocation: within the preceding four (4) years if a second revocation: and within a preceding six (6) years if a third revocation. (D The applicant or any of the individuals stated in Section 10-61 of this Article is or was at the time of revocation an officer. director or principal stockholder in an entity who had a license under this Article which had been revoked within the preceding two (2) vears, if a first revocation: within the preceding four (4) years if a second revocation: and within a preceding six (6) years if a third revocation. Sec. 10-67. Reapplication after denial. The applicant may not reapply for a license for a period of nine (9) months from the date of denial unless there has been an intervening change in the circumstances which may lead to a different decision regarding the former reason(s) for denial. Sec. 10-68. Annual license fee. (a) There shall be collected under this Article annual license fees for the following classifications of adult entertainment establishments and sexually oriented businesses: (1) Adult bookstore/adult video store - SEVEN HUNDRED FIFTY AND NOll 00 DOLLARS (5)750.00): (2) Adulttheater-SEVENHUNDREDFIFTY AND NO/IOO DOLLARS ($750.00); (3) Adult performance establishments - SEVEN HUNDRED FIFTY AND NO/I 00 DOLLARS ($750.00): (4) Adult motel- SEVEN HUNDRED FIFTY AND NO/I 00 DOLLARS ($750.00); (5) Commercial bodily contact establishment - SEVEN HUNDRED FIFTY AND NOll 00 DOLLARS ($750.00): and City of Winter Springs Ordinance No. 2003-41 Page 34 of 63 (6) Escort Service - SEVEN HUNDRED FIFTY AND NO/lOO DOLLARS ($750.00). (b) The annual license fees are declared regulatory in nature, collected for the purpose of examination and inspection of adult entertainment establishments and sexually oriented businesses under this Article and the administration thereof. This annual license fee is hereby declared to be revenue neutral in that the City will incur a greater annual cost to license and monitor an adult entertainment establishments and sexually oriented businesses compliance with this Article These regulatory fees are in addition to, and not in lieu of, the occupational licenses taxes imposed by the Winter Springs City Code or State law and other land development or regulatory fees associated with general commercial activities and locations. Sec. 10-69. Cont(mts of license. term of license. renewals. expiration. lapse. nonconforming establishments. (a) Contents. An ad.ult entertainment establishment or sexually oriented business license shall state on its face the name of the licensee, the name of the establishment. the street address of the establishment. the classification of the license, the date of issuance, and the date of expiration. (b) Term. All licenses issued under this Article shall be annual licenses which shall commence running on October L on which date they shall have been paid for, and shall expire on September 30 of the following year. If a license is issued after October L but by March 31 of the following year, the applicant shall pay the appropriate license fee in full. If a license is issued after March 31, but by October 1 of the same year, the applicant shall pay one-half the appropriate license fee. (c) Expiration/RenewaVLapse. Each license shall expire on September 30 of each year and may be renewed only by making an application for a license in accordance with the provisions of this Article. Applications for renewal shall be made at least thirty (30) days before the expiration date of the license. The City Manager or his designee shall issue or deny the renewal application within thirty (30) days of the application being filed. Failure to make application at least thirty (30) days before the expiration date will not suspend the expiration of the current license and could result in a final determination on the renewal application after the commencement of the new license year on October 1. Ifthe application for a renewal is denied, the applicant may immediately appeal to a court of competent iurisdiction, which court shall provide prompt iudicial review of said a~ (d) Nonconformine Establishments. Unless expressly provided otheIwise in this Article, the nonconforming status of any adult entertainment and sexually oriented business shall be governed by the nonconforming uses ofland and uses of structures provisions of the City's Land Development Code. City of Winter Springs Ordinance No, 2003-41 Page 35 of 63 Sec. 10-70. Records and reports. Each licensee shall keep such records and make such reports as may be required by this Article. Sec. 10-71. Transfer of license. It is unlawful for a licensee to transfer his. her or its license to another person or entity or surrender possession. control. and operation of the licensed establishment to such other person or entity. Sec. 10-72. Establishment name change. It is unlawful for a licensee to change the name of an adult entertainment establishment or sexually oriented business unless and until the City Manager or his designee is given thirty (30) days' notice in writing of the proposed name change and any and all changes or alterations in the information or disclosures required by this Article are submitted to the City. Sec. 10-73. Suspension and Revocation of License. (a) For purposes of this Section 10-73. the term "violation" shall mean an incident having occurred at. or by. an adult entertainment establishment or sexually oriented business which is prohibited by the provisions of this Article or made unlawful by Chapters 561. 562. 563. 564.565. 794. 796. 800. 826. 827. 847. 893 or 895. Florida Statutes. or an analogous federal statute. (b) Inspection of ReGords and Premises. In the event that the City Manager or his designee determines that the licensee or an operator at or of the licensee has refused to allow any inspection of records or premises as required by this Article: the City Manager or his designee may suspend the license for a period not to exceed thirty (30) days. (c) Suspension. The following suspension procedure shall apply when the Citv Manager determines the violations have occurred without the licensee's knowledge. The City Manager or his designee shall suspend a license when he or his designee determines that anv one (1) of the following has occurred: (1) In the event three (3) or more violations occur within a two (2) year period. and convictions result from at least three (3) of the violations. the City Manager or his designee shall. upon the date of the third conviction. notify the licensee that the license shall be suspended for a period of thirty (30) days unless good cause is shown in accordance with this Article. that the violations have not occurred. For purposes of calculating this two (2) year period. the two (2) vear period shall be deemed to be those twenty. four (24) months occurring immediately prior to the violation occurrence date for which the thirty (30) day suspension is sought. (2) In the event one (1) or more violations occur within a two (2) year period from the date of the last violation occurrence date from which the conviction resulted in City of Winter Springs Ordinance No, 2003-41 Page 36 of 63 a thirty (30) day suspension pursuant to subsection (c)(1). but not including any time during which the license was effectively suspended. and a conviction results from one (1) or more of the violations. the City Manager or his designee shall. upon the date of the latest conviction. provide notice to the licensee that the license shall be suspended for a period of ninety (90) days unless good cause is shown in accordance with this Article that the violation has not occurred. (3) In the event one (1) or more violations occur within a two (2) year period from the date of the last violation occurrence date from which the conviction resulted in a ninety (90) day suspension pursuant to subsection (c )(2). but not including any time during which the license was effectively suspended. and a conviction results from one (1) or more of the violations. the City Manager or his designee shall. upon the date of the latest conviction. provide notice to the licensee that the license shall be suspended for a period of One Hundred Eighty (180) days unless good cause is shown in accordance with this Article that the violation has not occurred. (d) Revocation. The following revocation procedure shall apply when the City Manager determines the violations have occurred with the licensee's knowledge. The City Manager or his designee shall revoke a license when he or his designee determines that anyone (1) of the following has occurred: (1) The licensee or any person on its or his behalf or any person listed on the application pursuant to Section 1 0-61 (b) of this Article. gave false or misleading information in the material submitted during the application process. (2) The licensee or any person on its or his behalf or any person listed on the application pursuant to Section 1 0-61 (b) of this Article has knowingly allowed possession. use. or sale of controlled substances on the premises of the establishment or business or when with a customer. (3) The licensee or any person on its or his behalf or any person listed on the application pursuant to Section 10-61 (b) of this Article has knowingly allowed prostitution on the premises of the establishment or business or when with a customer. (4) The licensee or any person on its or his behalf or any person listed on the application pursuant to Section 10-61 (b) ofthis Article knowingly operated the adult entertainment establishment or sexually oriented business during a period when the licensee's license was suspended. (5) Except in the case of an adult motel. the licensee or any person on its or his behalf or any person listed on the application pursuant to Section 10-61 (b) of this Article has knowingly allowed any specified sexual activities to occur on the premises of the establishment or business. (e) Effective Dates of Suspensions and Revocations. City of Winter Springs Ordinance No. 2003-41 Page 37 of 63 (1) Except as otherwise provided in this Article, all periods of suspension and revocation shall become effective fifteen (15) days after the City Manager or his designee posts the notice of suspension or revocation at the licensee's establishment, or on the date that the licensee turns in his, her or its license, whichever happens first. (2) The suspension or revocation shall be abated in the event that the licensee files a timely challenge to the suspension or revocation in accordance with the procedures set forth in this Article or upon order of a court of competent iurisdiction. (3) If an adult entertainment establishment or sexually oriented business license is revoked for the first time, the licensee shall not be issued another adult entertainment establishment or sexually oriented business license for a period of two (2) years running from the date the revocation actually takes effect after all abatement periods have lapsed. (4) If an adult entertainment establishment or sexually oriented business license is revoked for the second time, the licensee shall not be issued another adult entertainment establishment or sexually oriented business license for a period offour (4) years running from the date the revocation actually takes effect after all abatement periods have l.apsed. (5) If an adult entertainment establishment or sexually oriented business license is revoked for the third time, the licensee shall not be issued another adult entertainment establishment or sexually oriented business license for a period of six (6) years running from the date the revocation actually takes effect after all abatement periods have lapsed. (f) Other Remedies.. Notwithstanding the provisions ofthis Section, the City may pursue any and all other available remedies through any and all other available processes and procedures available to correct violations of City codes. Included within such remedies are . the enforcement actions set forth in this Article, actions in a court of competent iurisdiction for iniunctive or other appropriate relief, criminal prosecution, code enforcement proceedings, the issuance of citations, the suspension or revocation of permits relating to health or safety matters, and any and all other remedies available under the laws ofthe State of Florida and the United States. Sec. 10-74. Suspension and revocation proceedings. (a) Challenge to Suspension or Revocation. Ifthe City Manager or his designee notifies a licensee in writing of the pending suspension or revocation of a license as provided in Section 10-73 of this Article, then the suspension or revocation shall become final and effective fifteen (15'1 days after mailing to the licensee's record address, posting at the licensed establishment or actual delivery of the notice to the licensee, unless the licensee first files with the City Manager or his designee a written response stating the reasons why the suspension or revocation is alleged to be in error or inappropriate and a written notice of intent to challenge the suspension or revocation requesting a hearing to determine whether the suspension or revocation will become effective. The suspension or revocation shall be City of Winter Springs Ordinance No. 2003-41 Page 38 of 63 '.. abated in the event that a licensee files a timely challenge to the suspension or revocation in accordance with the procedures of this Article or upon an order of a court of competent iurisdiction. A suspension or revocation already in effect. but not previously challenged in a suspension or revocation hearing, may be challenged in the same manner but is not abated during the proceeding[" (b) Hearing on Sus]pension or Revocation. When a licensee files a written response and notice of intent to challenge a pending or existing suspension or revocation then a public hearing to determine if the pending suspension or revocation will become effective and final shall be held by the Hearing Officer appointed by the City Commission. The City Manager or his designee shall notify the City Attorney and any appropriate City offices who shall schedule and provide notice of the hearing date and time. (1) Appointment. term and compensation of hearing officer: ,(AU'hree (3) hearing officers shall be appointed by the City Commission, and they shall be attorneys duly licensed to practice law in the State of Florida, who have practiced in the State for at least 5 years. ffil..Hearing officers shall be subi ect to removal with or without cause, by the City Commission. Hearing officers shall not be considered to be City employees, although they may receive compensation for their services and also may be reimbursed for such travel. mileage and per diem expenses as may be authorized. .c.c.1J1ecause only attorneys may hold the position of hearing officer, the City Commission shall not be required to retain an attorney to represent the hearing officer. illlJ1 shall be unlawful for a hearing officer to act as an agent or an attorney for a party involved in a determination under the provisions ofthis section or to be otherwise involved with any matter arising under this section which will come before the City during the term of the hearing officer's appointment. Further, a hearing officer shall not initiate or consider ex parte communications or other communications with any party of interest to a hearing officer concerning the substance of any proceeding to be heard by a hearing officer. However, the foregoing does not prohibit discussions between the hearing officer and City staff that pertain solely to scheduling and other administrative matters unrelated to the merits of the application. If a person engages in an ex parte communication with the hearing officer, the hearing officer shall place on the record of the pending case all ex parte written communications received, all written responses to such communications, a memorandum stating the substance of all oral communications received, and all oral responses made, and shall advise all parties that such matters have been placed on the record. Any party desiring to rebut the ex parte communication shall be entitled to do so but only if such City of Winter Springs Ordinance No. 2003-41 Page 39 of 63 lliY1Y.requests the opportunity for rebuttal within ten (10) days after notice of such communication. Ifhe or she deems it necessary due to the effect of an ex parte communication received by him. the hearing officer may withdraw from the case and the City Commission shall appoint another hearing officer to handle the case. (E) Selection of Hearing Officer. If the City Manager and licensee cannot agree on the use of one (l) ofthe three (3) hearing officers. the City Manager and licensee shall each have the right to eliminate one (1) of the three (3) hearing officers selected by the City Commission. The one (1) hearing officer not eliminated by either party shall then act as the hearing officer for the license revocation hearing. In the event licensee obiects to all three (3) hearing officers. then the City Commission shall choose the hearing officer from the list ofthree (3) hearing officers absent a showing of clear preiudice by the licensee. (2) The hearing officer shall have the power to: tALb.dopt rules for the conduct of the hearing; mu:ubpoena licensees and witnesses to its hearings. Subpoenas may be served by the Casselberry Police Department and/or other law enforcement agencies with iurisdiction to serve subpoenas; f:Q......Subpoena evidence to its hearings; ~,dminister oaths and take testimony under oath; and (E) Issue an order having the force oflaw suspending or revoking the license. (3) The suspension or revocation hearing shall be held within thirty (30) days ofthe City Manager's receipt of a written challenge and request for a hearing by the aggrieved licensee. (4) The participants before the Hearing Officer shall be the licensee. any witnesses of the licensee. the City Manager or his designee and any witnesses of the City Manager or his designee. All witnesses shall provide their legal name. mailing addresses and telephone number. (5) The procedures used shall be those typically used in a civil case with the City Manager or his designee having the burden of proof by preponderance of the evidence. (6) Testimony and evidence may be submitted by any witness but shall be limited to matters directly relating to the grounds for suspension or revocation. Irrelevant immateriaL or unduly repetitious testimony or evidence shall be excluded. City of Winter Springs Ordinance No. 2003-41 Page 40 of 63 '. (7) All testimony shall be under oath. The Hearing Officer shall decide all questions of procedure :md standing. All hearings shall be open to the public. Minutes shall be kept at all hearings. Unless otherwise mutually agreed to between the licensee and the City Manager or his designee. the order of presentation oitestimony and evidence shall be as follows: (A) The City Manager or his designee and any witnesses (lithe City Manager or his designee. (B) The licensee and any witnesses of the licensee. .c.cL.Rebuttal witnesses from the City Manager or his designee. (D) Rebuttal witnesses from the licensee. ill.L.S-ummation by the City Manager or his designee. .cEl....SJlmmation by the licensee. (8) The Hearing Officer may also call and question witnesses or request additional evidence as the Hearing Officer deems necessary and appropriate. (9) The City shall provide a hearing room and clerical staff as may be reasonably required by the Hearing Officer to conduct hearings and perform his or her duties. (10) Each party to the hearing shall have the right to call and examine witnesses. introduce exhibits. cross-examine opposing witnesses. impeach witnesses and rebut evidence. (11) The licensee has the right. at his or her own expense. to be represented by an attorney at any hearing. (12) All testimony before the hearing officer shall be under oath and shall be recorded. The licensee or the Citv may cause a verbatim record of the proceedings to be made. (13) If the Hearing Officer comes to believe that any facts. claims. or allegations necessitate additional review or response by either the licensee or the City Manager or his designee. then the Hearing Officer may order the hearing continued until an announced da.te certain. not to exceed thirty (30) days from the date of continuance. The Hearing Officer shall render a final decision on the appeal within sixty (60) days ofthe City Manager's receipt oflicensee's written notice of challenge. (c) Filine of Decision. The original of the written decision of the Hearing Officer shall be filed with the City Clerk and copies shall be delivered or mailed to the licensee. the City Manager or his designee and the City Police Department. City of Winter Springs Ordinance No. 2003-41 Page 41 of 63 '. Cd) Judicial Review. Any person who participated in a suspension or revocation hearing before the Hearing Officer and who is aggrieved by the decision ofthe Hearing Officer may immediately challenge the decision in any court of competent iurisdiction pursuant to the Rules of Procedure of that court. The record of the hearing shall consist of the complete record of the proceedings before the Hearing Officer. The Hearing Officer's decision shall be promptly reviewed by the court. (e) Requirement of Exhaustion Procedures. Judicial review of a suspension or revocation, or related hearing or appeal proceedings, shall be available only after the administrative procedures and remedies set forth in this Section have been exhausted. ([) Notice of Final Suspension or Revocation. Ifno response or request for a suspension or revocation hearing is filed within fifteen (15) days ofthe notice of a pending suspension or revocation, or ifthe licensee who requested the hearing does not appear at the suspension or revocation hearing after notice, or if the Hearing Officer decides after a hearing that a pending suspension or revocation will become finaL then the City Manager or his designee shall issue to the licensee notice of final suspension or revocation ofthe adult entertainment license and mail or arrange delivery of the notice to the licensee's record address. (g) Effective Date oj[ Suspension or Revocation. The suspension or revocation of a license shall take effect the day after delivery of a notice of final suspension or revocation to the licensee in person, by posting on the licensed establishment, or by mail to the licensee's record address, or on the date the licensee surrenders the license, whichever happens first. The licensee shall immediately return and surrender a revoked license to the City Manager or his designee or surrender the revoked license, upon demand, to a member of the Police Department. Sec. 10-75. Worker' records. (a) Each adult enteltainment establishment and sexually oriented business, regardless of whether it is licensed under this Article, shall create, establish and maintain a record of all workers of the establishment or business. The record shall contain the worker's full legal name and any aliases and all past or current aliases of the worker: his or her date of birth; his or her residential address: his or her residential or cellular telephone number (if anv) and all pager numbers and other similar numbers used: his or her driver's license number and a photocopy of the license: his or her state or federally issued identification card number including the worker's social security account number: the employment status of the worker including, but not limited to, whether the worker is a salaried employee, an independent contractor, a lessee, a sub-lessee, a subcontractor allowed to work at the establishment, or such other arrangement as may be in place: whether income taxes are withheld for the worker; and a recent passport type photograph of the worker as of the date of association with the establishment which accurately reflects the date on which the photograph was taken. Said records shall be maintained for a period of no less than two (2) years from the date the worker is separated from employment. ~. City of Winter Springs Ordinance No. 2003-41 Page 42 of 63 (b) The original records required by subsection (a) or true and exact photocopies thereof. shall be kept at the adult entertainment establishment or sexually oriented business at all times including clear photographs. (c) All operators of an adult entertainment establishment or sexually oriented business shall be responsible for knowing the location of the original records. or the true and exact photocopies thereof. (d) All operators of an adult entertainment establishment or sexually oriented business shall. upon request by a law enforcement officer or the City Manager or his designee. make available for immediate inspection the original records. or the true and exact photocopies thereof at any time when the establishment or business is open for business. Sec. 10-76. Genenlll requirements for all adult entertainment establishments and sexually oriented businesses. (a) Each adult entertainment establishment and sexually oriented business, regardless of whether it is licensed under this Article, shall observe the following general requirements: (1) Conform to, comply with and abide by all applicable safety, employer related. building. fire, health, zoning or land use statutes. codes, ordinances. rules and regulations. whether Federal. State or local. (2) Keep the adult entertainment establishment or sexually oriented business license posted and prominently displayed in a conspicuous place at the establishment or business at an times. which license shall be available for inspection upon request at all times by the public, any law enforcement officer and the City Manager, or his or her designee. when the establishment or business is open for business. (3) Opaquely cover each non-opaque area where a person outside the adult entertainment establishment or sexually oriented business may otherwise see inside the establishment or business. (4) Provide to any law enforcement officer and the Citv Manager or his designee. during all hours of operation or when an operator is present at the establishment. access through the main entrance and into all areas of the establishment where customers are permitted without the necessity of using a key. computer entry. password or seeking clearance from a worker or customer to obtain entry through an electronically operated door or entryway. (5) Install. construct:. keep, maintain or allow only those signs at the establishment or building exterior which comply with the provisions relating to signage in the Land Development Regulations of the City of Winter Springs. (6) Not allow any person under eighteen (18) years of age to be present when services are provided to or performed for a customer or when the establishment or business is open for business. City of Winter Springs Ordinance No. 2003-41 Page 43 of 63 (7) Not employ or provide goods or services to any person under eighteen (18) years of age. (8) Not provide, offer or engage in any services to any person when not licensed to do so under this Article. (9) Not operate when a license issued pursuant to this Article has been suspended, revoked or canceled or when the license is expired. (10) Not permit any animal except seeing eye dogs accompany a worker or customer when services are provided or performed. (11) Not plaee, operate or contain video cameras, transmitting or taping equipment anywhere on the premises except where customers are advised in advance by posted notice. (12) Not advertise the presentation of any activity prohibited by any law. rule or regulation whether Federal, State or local. (13) Ensure that the view areas specified in this Article remains unobstructed by any doors, walls, merchandise, displav racks or other materials at all times that any customer is present in the premises so as to ensure that no customer is permitted access to any area of the premises which has been designated as an area in which non-workers will not be permitted. (14) Ensure that at least one (1) operator is on duty and present at the establishment or business when the establishment or business is open for business who is responsible and knows the whereabouts of all records required by this Article. Said operator's name shall be conspicuously posted on the premises at all times the business or establishment is open for business. (15) Ensure that at least one (1) operator is situated in each manager's station, when required by this Article, at all times that any customer is present inside the premises. (16) Ensure that the premises are equipped with overhead lighting fixtures ofsuffi- cient intensity to illuminate every place to which customers are permitted access at an illumination of not less than fifteen to twenty (15-20) average maintained foot candles as measured thirty-five inches (35") above the floor level. The light shall be maintained at all times any customer is present in the premises. (17) Not alter or otherwise change the contents of an adult entertainment establishment or sexually oriented business license. (18) Ensure that each exterior entrance and exit door for use by customers and interior doors which permit entrance to the interior and exit to the interior from any interior fover area shall remain unlocked when any person who is not a worker is inside the establishment. City of Winter Springs Ordinance No. 2003-41 Page 44 of 63 .. (19) Establish, create and maintain worker records as required by this Article. Sec. 10-77. Sexuallv oriented businesses. In addition to the general requirements for adult entertainment establishments and sexually oriented businesses contained in this Article, a sexually oriented business shall, regardless of whether it is licensed thereunder, comply with the following general requirements: (a) Post in an open and conspicuous place a list of services provided by the sexually oriented business which services shall be described clearly in the English language along with a specification as to the cost of each service. (b) Provide each customer, in advance of any service being provided, with a written customer contract. written clearly in the English language, setting forth the service or services to be rendered, the cost of such service or services, the actual full name of the worker providing the service and actual full name, address and date of birth ofthe customer as reflected on a State or Federally issued identification card or drivers license and the customer's telephone number. (c) Create, establish and maintain a daily register in a format provided by the City Manager, or his or her designee, containing the actual full names and addresses of all customers as reflected on a State or Federally issued identification card or drivers license, the services performed, the time expended, the mode of payment and the full name of the worker providing the service, (d) Not allow any worker of the sexually oriented business to accept any tip or gratuity, directly or indirectly, from a customer in addition to the service fee specified in the customer contract. (e) Maintain all customer contracts and daily registers for a period oftwo (2) years following the customers date of service. Sec. 10-78. Adult theater provisions. In addition to the general requirements relating to adult entertainment establishments and sexually oriented businesses contained in this Article, an adult theater, regardless ofwhether it is licensed under this Article, shall: (a) If the adult theater contains an auditorium or hall. comply with each of the following prOVISIons: (1) have individual and separate seats (not couches, benches, or other seating configurations allowing or providing for the seating of multiple persons on the same item of furniture) to accommodate the maximum number of persons who may occupy the area: City of Winter Springs Ordinance No. 2003-41 Page 45 of 63 (2) have a continuous main aisle alongside of the seating areas in order that each person seated in the areas shall be visible from the aisle at all times: (3) have a sigrI posted in a conspicuous place at or near each entrance to the auditorium or hall which lists the maximum number of persons who may occupy the auditorium or hall area, which number shall not exceed the number of seats within the hall or auditorium area: and (4) be illuminated at an illumination of not less than fifteen to twenty (15-20) foot candles average maintained as measured at thirty-five inches (35') above the floor level and shall maintain the light at all times so that any customer present in the hall or auditorium may be seen. (b) Ifthe adult theater contains adult booths, each adult booth shall comply with each ofthe following provisions.;. (1) have a sign posted in a conspicuous place at or near the entrance which states the maximum number of persons who may occupy the booth, which number shall correlate with the number of seats in the booth: (2) have a permanently open entrance not less than three feet (3') wide and not less than six feet (6') high, not capable of being closed or partially closed by any curtain, door, or other partition which would be capable of wholly or partially obscuring any person situated in the booth: provided, however, that the requirements of all building and related codes shall also be complied with: (3) have individual. separate seats (which are not couches, benches, or other seating configurations allowing or providing for the seating of multiple persons on the same item of furniture) which correlate with the maximum number of persons who may occupy the booth: (4) have a continuous main aisle alongside the booth in order that each person situated in the booth shall be visible from the aisle at all times: (5) have an illuminated and continuous main aisle in which workers and customers can be seen from one end to the other: and (6) have, except for the entrance, walls or partitions of solid construction without any holes or openings in such walls or partitions. (c) Have one 0) or more manager's stations. (d) Configure the interior of the premises in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any customer is permitted access for any purpose excluding restrooms. City of Winter Springs Ordinance No. 2003-41 Page 46 of 63 (e) If the premises has two (2) or more manager's stations designated, configure the interior of the premises in such a manner that there is an unobstructed view of each area of the premises to which any customer is permitted access for any purposes fi:om at least one (I) ofthe manager's stations. The view required in this subsection shall be by direct line of sight from the manager's station. (D If the adult th(:ater is designed to permit outdoor viewing by persons seated in automobiles, cause the motion picture screen so situated, or the perimeter of the establishment so fenced, such that the material to be seen by those persons may not be seen from any public right of way, property assigned a residential zoning classification or assigned a residential land use designation, any religious institution or church, any educational institution or school. or from a park. (g) Cover the floors of areas accessible to customers with smooth and non-permeable flooring material which can withstand frequent effective cleaning with industrial strength cleaning agents. Carpeting of any type is prohibited. (h) Use smooth and non-permeable upholstery material. which can withstand frequent cleaning with industrial strength cleaning agents, to cover furniture permitted by this Article for the use of customers. (i) Have, in areas accessible to customers, interior wall surfaces which can withstand frequent cleaning with industrial strength cleaning agents. (j) Use only those shades and blinds which can withstand frequent cleaning with industrial strength cleaning agents. (Draperies are prohibited). (k) Maintain areas accessible to customers in a clean and sanitary condition. 0) Keep all furniture upholsterv material free from holes and rips. (m) Utilize an appropriate and effective adaptation ofthe U.S. Center for Disease Controls universal precautions for the storage and transmission of the HIV virus and other diseases when cleaning or sanitizing the establishment. Sec. 10-79. Adult p.~rformance establishment provisions. (a) In addition to the general requirements for adult entertainment establishments and sexually oriented businesses contained in this Article, an adult performance establishment shall. regardless of whether it is licensed under this Article, have a stage provided for the expressive display or exposure of any worker's specified anatomical a.reas to a customer consisting of a permanent platform (or other similar permanent structure) raised a minimum of eighteen inches (18") above the surrounding floor and encompassing an area of at least one hundred (100) square feet. The stage shall be located at least three feet (3 ') from the nearest table, chair, area or other accommodation where customers are seated or otherwise located: provided, however, that a table at which any customer is seated or served shall not be used as a stage. City of Winter Springs Ordinance No. 2003-41 Page 47 of 63 (b) Notwithstanding the stage requirement in subsection (a), an adult performance establishment may also have smaller stages for the expressive display or exposure of a worker's specified anatomical areas to a customer consisting of permanent or removable platforms raised a minimum of eighteen inches (18") above the surrounding floor from where customers are seated or located: provided, however, that a table at which any customer is seated or served shall not be used as a stage. (c) In addition to the general requirements for adult entertainment establishments and sexually oriented businesses contained in this Article, an adult performance establishment shall, regardless of whether it is licensed under this Article: (1) Prohibit persons engaged in displaying or exposing specified anatomical areas from dancing or simulating sexual activity with any patron, spectator, employee, or other person on the premises of an adult performance establishment; and (2) Not suffer or permit any person maintaining, owning or operating an adult performance establishment to construct. maintain, or use 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 specified anatomical areas: and (3) Not pernlit any person or customer on the premises of an adult performance establishment to use or to be present in areas partitioned or screened from public view that are designed to be occupied together or along by any person or persons on the premises of such establishment for the display or exhibition of specified anatomical areas: and (4) Post a sign which is clearly legible and located in a conspicuous place setting forth that straddle dancing is strictly prohibited: and (5) Not place or permit the placement of a bed or mattress in the establishment. Sec. 10-80. Commercial bodilv contact establishments {>rovisions. In addition to all general requirements of this Article pertaining to adult entertainment establishments and sexually oriented businesses contained in this Article, a commercial bodily contact establishment. regardless of whether it is licensed under this Article, shall: (a) Operate only from a fixed physical location which is set forth on its sexually oriented business license and all required occupational licenses. (b) Not advertise, offer or provide any other service other than services which are posted. (c) Provide clean linen and towels for each customer when towels and linens are used during the course of providing services to a customer: provided, however, that heavy white paper City of Winter Springs Ordinance No. 2003-41 Page 48 of 63 may be substituted for sheets if such paper is used for only one (1) customer and then discarded into a sanitary receptacle. (d) Store clean linen, towels and other materials used in connection with providing commercial bodily contact in closed cabinets. ( e) Disinfect and sterilize non-disposable instruments after each use on a customer. (t) Cause all workers to conceal their specified anatomical areas with an opaque covering at all times when on the premises of the business by wearing an opaque surgical type gown. (g) Not encourage, allow or permit any customer to consume food or beverages in the business. (h) Provide commercial bodily contact in an area wherein such area is visible at all times from common areas in the establishment. No contact may occur in a separate or individual cubicle, room, booth or area which is not visible from common areas of the establishment and a receptionist area: provided, however, that if male and female customers are provided services at the same time, separate work areas shall be established for each gender. (i) Not advertise, display, publish, exhibit. place, distribute or promote on any advertising matter or signage services that are not posted or a suggestion that services not posted will be provided. (j) Not advertise, display, publish, exhibit. place, distribute or promote on any advertising matter or signage any suggestion that workers will be dressed in any manner other than as required in this Article. (k) Not begin a meeting or service with a customer between 10:00 p.m. of any day of the week and 9:00 a.m. the following day. (1) Not provide services at any place other than a physical location licensed to provide commercial bodily contact under the provisions of this Article. (m) Not place or permit the placement of any bed, mattress or sofa at the business; provided, however, that a sofa. may be placed in the reception area open to the public at the main entrance of the business and cots or padded mats may be used when providing commercial bodily contact. Sec. 10-81. Escort service. In addition to all general provisions pertaining to adult entertainment establishments and sexually oriented businesses contained in this Article, an escort service, regardless of whether licensed under this Article, shall: (a) Not advertise, offer or perform any other service than services which are posted. City of Winter Springs Ordinance No. 2003-41 Page 49 of 63 n. . (b) Cause all workers and escorts to conceal their specified anatomical areas with an opaque covering at all times when on the premises of the escort service. (c) Not advertise, display, publish, exhibit place, distribute or promote on any advertising matter or signage services that are not posted or a suggestion that services not posted will be provided. (d) Not begin a meeting or service with a customer between 10:00 p.m. of any day of the week and 9:00 a.m. the following day. ( e) If offering or providing escorts or escort service within the City of Winter Springs, each escort service shall notify the City Manager or his designee of an authorized physical location, which mayor may not be within the City, from where the escort service operates and dispatches escorts. (D Include in all advertising or promotional literature posted, placed, published, or distributed within the City of Winter Springs the number of a valid sexually oriented business license issued by the City unless the escort service does not refer. send, or dispatch escorts to any location within the iurisdictionallimits of the City of Winter Springs. (g) Each escort service shall ensure that every escort and worker of the escort service is provided with a copy ofthe escort service's license and carries it while working as an escort for the service, and displays said license upon the request of any law enforcement officer or the City Manager or his designee. In addition to a copy ofthe escort service's license, each escort service shall ensure that each escort has an occupational license to engage in the occupation of escort within the City and that they carry said license while working, and displays said license upon the request of any law enforcement officer or the City Manager or his designee. Notwithstanding the foregoing, an escort or worker of an escort service who is a paid employee for whom taxes and social security payments are withheld and paid by the licensed escort service and who is not an independent contractor may substitute and carry a copy ofthe sexually oriented business/escort service license ofthe employing escort service only, provided that worker records as required by this Article are created and maintained by the licensed escort service. (h) . If a meeting with or the service of a customer occurs at a location not open to the public, then the escort shall check in with the on duty manager of the premises in person where the meeting or service occurs or begins prior to meeting or servicing a customer and advise the manager of the following: names of the escort(s), the escort service and customer(s): the escort's time of arrival and estimated time of departure: and a COPy of the escort service's sexually oriented business license and the escort's own occupational license, if applicable, and the location of the meeting within the structure. Sec. 10-82. Engaging in prohibited activity: customers. (a) It is unlawful for any customer in or for an adult entertainment establishment or sexually oriented business re~~ardless of whether licensed pursuant to this Article to do any of the following acts: City of Winter Springs Ordinance No. 2003-41 Page 50 of 63 (1) To engage or participate in a straddle dance at the establishment or business. (2) To offer, contract or otherwise agree to engage or participate in a straddle dance with a person at the establishment or business. 0) To engage or participate in any specified sexual activity at the establishment or business or while in the presence of a worker. (4) To display or expose while in the presence of a worker or when at the establishment or business any specified anatomical area. (5) To offer or deliver a tip or gratuity to any worker ofan establishment or business before, during or after the provision of services except at an adult performance establishment. (6) If a worker is a female, to intentionally touch, fondle or manipulate her on her clothed or unclothed breast(s), either directly or through a medium. (7) To intentionally touch, fondle, massage, or manipulate any specified anatomical area of a worker, a customer, or himself or herself, whether clothed or unclothed, on the premises of the establishment or business. (8) To intentionally touch, fondle, massage or manipulate a worker on any specified anatomical area when at or receiving services from the adult entertainment establishment or sexually oriented business. (9) To intentionally touch, fondle, massage or manipulate the clothed or unclothed breast( s) of a female worker, or to touch the clothed or unclothed body of a worker at any point below the waist and above the knee of the worker when at an adult entertainment establishment or sexually oriented business. (10) To occupy an adult booth in which booth there are more people than that specified on the posted sign required by this Article. (11) To othelwise violate or aid or abet a violation of this Article. (12) To encourage or solicit anv worker to engage in any specified sexual activity. (b) It is unlawful for any customer at or of a sexually oriented business to do any of the following acts regardless of whether the establishment is licensed pursuant to this Article: (1) To intentionally touch, massage or manipulate, directly or indirectly or through a medium while on the premises of the establishment or when with a worker, the customer's specified anatomical areas. (2) To solicit any worker to provide a service not posted. City of Winter Springs Ordinance No. 2003-41 Page 51 of 63 (3) To solicit or receive any service not indicated and contracted for in the written customer contract. (4) To provide to the worker providing the service either directly, indirectly or through a medium, any tip, gratuity or other consideration beyond the fee specified in the customer contract. (5) To expose any specified anatomical area to the view of a worker. Sec. 10-83. Engagilllg in prohibited activity: workers / operators. (a) It is unlawful for any worker of an adult entertainment establishment or sexually oriented business, regardless of whether licensed under this Article, to do any of the following acts or for an operator of an adult entertainment establishment or sexually oriented business, regardless of whether licensed hereunder, to knowingly permit, suffer, aid, allow or encourage any worker to do any of the following acts: (1) To engage or participate in a straddle dance with a customer at the establishment or business. (2) To offer, Gontract or otherwise agree with a customer to engage or participate in a straddle dance with a person at the establishment or business. (3) To engage or participate in any specified sexual activity or activities at the establishment or business with a customer, him or her self or a worker. (4) To display or expose at the establishment or business specified anatomical areas except in accordance with the provisions of this Article and other applicable law. (5) To request or accept a tip or gratuity from a customer except at an adult performance establishment. (6) To work in an adult entertainment establishment or sexually oriented business that he or she knows or should know is not licensed under this Article, or which has a license which is under suspension, has been revoked or canceled, or has expired, regardless of whether he, she or it has applied for and obtained a license under this Article. (7) To display or expose specified anatomical areas while engaging in personal advertising, pandering, or solicitation, whether passive or otherwise, on behalf ofthe worker, any other worker, or the establishment or business while situated outside any structure at the establishment or business, or at a place at the establishment or business where the worker is visible from any public right-of-way or sidewalk. "Personal advertising" means encouraging or enticing, by whatever direct or indirect means, potential customers outside the doors ofthe establishment or business to enter the establishment or business. City of Winter Springs Ordinance No. 2003-41 Page 52 of 63 -- . (8) To suffer. permit. or allow any door of the business or establishment that is visible from a public right-of-way or sidewalk to be opened or remain opened except when a person is entering or exiting the establishment or business. (9) To allow or encourage a customer to intentionally touch or fondle, either directly or through a medium, any specified anatomical area of the customer, a worker or another customer. (10) If the worker is a female, to allow herself to be intentionally touched on her clothed or unclothed breast(s) by a customer. (11) To allow or encourage a customer to intentionally touch any portion of a worker's body below the waist and above the knee. (12) To display or expose any specified anatomical area unless such worker is in an area described in Subsections 10-79(a) or 10-79(b) of this Article, and the stage on which the worker is located is not located between the legs of a customer. (13) To provide or engage in any private performance described in Subsection 10- 79( c) of this Article. (14) To remain in the presence of a customer who is exposing snecified anatomical areas at the establishment or in the presence of a worker or another customer. (15) To violate or aid or abet in a violation of the provisions of this Article. (16) To encourage or knowingly permit any customer to intentionally touch, fondle, massage or manipulate, either directly or indirectly through a medium, any of the customer's specified anatomical areas on the premises ofthe establishment or when in the presence of another customer or worker. (17) To encourage or solicit any customer to engage in any specified sexual activity. (18) To intentionally touch. fondle, massage or manipulate any customer on the customer's clothed or unclothed body between the waist and above the knee. (b) It is unlawful for any worker of a sexually oriented business, regardless of whether it is licensed under this Article, to do any of the following acts, or for an operator of a sexually oriented business, regardless of whether it is licensed under this Article, to knowingly or with reason to know permit suffer or allow any worker to commit any ofthe following acts: (1) To accept a tip or gratuity from or on behalf of a customer in addition to the service fee stated in the written customer contract. (2) To begin a meeting or service, continue a meeting or service, solicit a meeting or service or make or solicit a sale between the hours of 10:00 p.m. of any particular day and 9:00 a.m. the following day. City of Winter Springs Ordinance No. 2003-41 Page 53 of 63 (3) Provide commercial bodily contact except at the physical structure of the establishment which has a commercial bodily contact establishment license. (4) To provide any service not posted as required by this Article. (5) To provide any service without first executing a customer contract. (c) It is unlawful for any worker of an adult entertainment establishment or sexually oriented business, regardless of whether licensed pursuant to this Article, to knowingly permit. suffer, aid, allow or encourage any customer to do any of the following acts: (1) To intentionally touch, fondle, massage or manipulate, either directly or indirectly through a medium, any ofthe customer's specified anatomical areas when at the establishment or business or while in the presence of a worker or anther customer. (2) To intentionally touch, fondle, massage or manipulate, either directly or indirectly through a medium, any specified anatomical area of another customer or a worker when at the establishment or business or while in the presence of a worker or customer. (3) To engage in any specified sexual activities at the establishment or business with a worker, customer, him or her self or with another customer. (4) To expose the customer's specified anatomical areas at the establishment or business or when receiving services or when in the presence of a worker or another customer. (5) To engage or participate in a straddle dance. (6) To intentionally touch, fondle, massage or manipulate a worker at any point below the waist and above the knee. (7) To intenti.onally touch a female worker on the clothed or unclothed breast. Sec. 10-84. Operation without license. It is unlawful for any person to be an operator of or at or to be a worker for an adult entertainment establishment or sexually oriented business where the person knows or should know: (1) that the establishment or business does not have an adult entertainment establishment or sexually oriented business license for the applicable classification. (2) that the establishment or business has a license which is under suspension. City of Winter Springs Ordinance No. 2003-41 Page 54 of 63 (3) that the establishment or business has a license which has been revoked, canceled or has expired. Sec. 10-85. Operation contrary to operational requirements. (a) It is unlawful for any person to be an operator of an adult entertainment establishment or sexually oriented business which does not satisfy all of the requirements of Section 10-76 of this Article, regardless of whether the establishment is licensed thereunder. (b) It is unlawful for :my person to be an operator of a sexually oriented business which does not satisfy all of the requirements of Section 10-77 ofthis Article regardless of whether the establishment is licensed thereunder. ( c) It is unlawful for any person to be an operator of an adult performance establishment which does not satisfy all of the special requirements of Section 10-79 of this Article regardless of whether licensed thereunder. (d) It is unlawful for any person to be an operator of an adult theater which does not satisfy all of the special requirements of Section 10-78 of this Article regardless of whether the establishment is licensed thereunder. ( e) It is unlawful for any person to be an operator of an escort service which does not satisfy all ofthe special requirements of Section 10-81 ofthis Article regardless of whether licensed thereunder. (D It is unlawful .for any person to be an operator of a commercial bodily contact establishment which does not satisfy all ofthe special requirements of Section 10-80 ofthis Article regardless of whether the establishment is licensed thereunder. Sec. 10-86. Use of n~strooms or dressing rooms. (a) Notwithstanding cmyprovision in this Article indicating to the contrary, it is not unlawful for any worker of an adult entertainment establishment or sexually oriented business, regardless of whether it is licensed under this Article, to expose any specified anatomical area during the worker's bona fide use of a dressing room or bath room which is occupied at the time only by workers of the same sex. (b) Notwithstanding any provision in this Article indicating to the contrary, it shall not be unlawful for any customer of an adult entertainment establishment or sexually oriented business, regardless of whether it is licensed under this Article, to expose any specified anatomical area during the customer's bona fide use of a bath room which is occupied at the time only by customers of the same sex. (c) It is unlawful to be an operator of an adult performance establishment which has a dressing room for use by its workers, that is accessible to customers. City of Winter Springs Ordinance No. 2003-41 Page 55 of 63 '" (d) It is unlawful to be an operator of a sexually oriented business which has a dressing room for use by its customers that is accessible to workers. ( e) Notwithstanding any provision of this Article to the contrary, a worker engaged in the work of a rest room attendant or valet may occupy a rest room which is also occupied by customers provided that the valet or attendant does not expose any specified anatomical area to the view of a customer and is of the same sex of the customer occupying the rest room. (n Notwithstanding any provision of this Article to the contrary, it is not unlawful for a worker or customer to touch their own specified anatomical areas during their bona fide use of a rest room, dressing room or bath room when such touching is necessary and inherent to the activity of changing clothes or excretory functions. Sec. 10-87. Minors - unlawful provisions. It is unlawful for an operator or worker of an adult entertainment establishment or sexually oriented business regardless of whether licensed under this Article, to knowingly or with reason to know, pemlit. suffer or allow: (a) Admittance to the establishment or business of a person under eighteen (18) years of age when the establishment or business is open for business. (b) A person under eighteen (18) years of age to remain at the establishment or business when the establishment or business is open for business. (c) A person under eighteen (18) years of age to purchase goods or services from the establishment or a worker at the establishment or business. (d) A person under e.ighteen (18) years of age to be a worker at or for the establishment or business. Sec. 10-88. Records - unlawful provisions. ( a) It is unlawful. to be an operator or worker of an adult entertainment establishment or sexually oriented business, regardless of whether it is licensed under this Article, if the current and valid adult entertainment establishment or sexually oriented business license is not conspicuously displayed on the premises of the establishment or business. (b) It is unlawful to be an operator of an adult entertainment establishment or sexually oriented business, regardless of whether licensed under this Article, which does not create, establish and compile worker records, maintain worker records or where such records are not produced for inspection by a law enforcement officer upon request when the establishment or business is open for business. (c) It is unlawful to be an operator of a sexually oriented business, regardless of whether it is licensed under this Article, at which customer contracts, daily registers and a list of City of Winter Springs Ordinance No. 2003-41 Page 56 of 63 -. services have not been compiled, maintained or are not produced for inspection by a law enforcement officer upon request when the establishment or business is open for business. (d) It is unlawful for a worker at or of an adult entertainment establishment or sexually oriented business, regardless of whether licensed under this Article, to fail to obtain, carry or produce for inspection by a law enforcement officer upon request. an occupational license for the occupation in which the worker is engaged: provided, however, that a worker of an adult entertainment establishment or sexually oriented business who is a paid employee for whom income taxes and social security payments are withheld and paid by the establishment and who is not an independent contractor shall not be required to obtain an occupational license or their own adult entertainment establishment/sexually oriented business license. (e) It is unlawful for an escort, regardless of whether they are a paid employee for whom income taxes and social security payments are withheld and paid by the escort service, to fail to carry and produce for inspection by a law enforcement officer a copy of the sexually oriented business license of the employing escort service when working as an escort or providing the services of escort. (f) It is unlawful for any person or any person on their behalf applying for a license under this Article to make a false or misleading statement or provide false or misleading information which is intended to facilitate the issuance of a license. (g) It is unlawful for any worker, customer or operator to provide false or misleading information in any worker record, customer contract or daily register required by this Article. (h) It is unlawful to be an operator or worker at an adult entertainment establishment or sexually oriented business which does not have conspicuously posted the name of the operator on duty while the establishment is open for business. (i) It is unlawful for an operator of an adult entertainment establishment or sexually oriented business to fail to produce for inspection any worker record required bv this Article, when requested by a law enforcement officer or the City Manager or his designee when the establishment or business is open for business. (i) It is unlawful for an operator of a sexually oriented business to fail to produce for inspection any worker record, customer contract or daily register required by this Article when requested by a law enforcement officer or the City Manager or his designee when the establishment or business is open for business. Sec. 10-89. Hours of operation - unlawful provisions. (a) It is unlawful for any operator of an adult entertainment establishment. regardless of whether licensed pursuant to this Article, to allow such establishment to remain open for business or to knowingly allow any worker to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service or solicit a service between the hours of2:00 a.m. and 9:00 a.m. of any particular day. City of Winter Springs Ordinance No. 2003-41 Page 57 of 63 (b) It is unlawful for any operator of a sexually oriented business, regardless of whether licensed pursuant to this Article, to allow such business to remain open for business or to permit any worker to engage in a performance, solicit a performance, make a sale, solicit a sale, begin, continue or provide a service or solicit a service between the hours of 1 0:00 p.m. and 9:00 a.m. of any particular day. (c) It is unlawful for any worker of an adult entertainment establishment. regardless of whether licensed pursuant to this Article, to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service or solicit a service between the hours of 2:00 a.m. and 9:00 a.m. of any particular day. (d) It is unlawful for any worker of a sexually oriented business, regardless of whether licensed pursuant to this Article, to provide a service, solicit a service, engage in a performance, solicit a performance, make a sale, solicit a sale, begin a service or continue a service between the hours of 10:00 p.m. and 9:00 a.m. of any particul.ar day. Sec. 10-90. Special prohibitions relating to escorts and escort services - unlawful provisions. It is unlawful for any escort, escort service or worker of an escort service, regardless of whether licensed under this Article, to commit any of the following acts or for an operator of an escort service regardless, of whether licensed thereunder, to knowingly permit. suffer, aid, assist or allow any escort or escort service worker to commit any of the following acts: (a) To enter a hotel. motel or other place of temporary lodging for the purpose of meeting or providing services to a customer without immediately upon entering such hotel. motel or other place and prior to meeting the customer making personal face-to-face contact with the on duty manager at the front desk or reception area and providing that person with the following information: (1) the time of arrival and estimated time of departure: (2) a copy of the escort service's sexually oriented business license and, if applicable, the escort's occupational license: (3) the name of the escort, the escort service and the customer being met/served: and (4) the location of the meeting or service within the structure including the room number. (b) To require, entice or solicit any customer to remove any article of clothing. (c) To display or expose any specified anatomical area to a customer. (d) To begin a meeting or service without first meeting the customer in a public place such as a bar or restaurant before accompanying the customer to any place not open to the public such as a hotel room or residence. City of Winter Springs Ordinance No. 2003-41 Page 58 of 63 (e) To meet with or provide services to a customer in any place not open to the public such as a hotel room, motel room or residence without first executing the customer contract as required by this Artide. (t) To provide services to a customer even in a public place without first executing the customer contract as required by this Article, immediately following the meeting of the customer. (g) To solicit a tip or gratuity from a customer in exchange for a promise or suggestion that any act or service not contracted for in the customer contract will be performed. (h) To accept any compensation or payment except that which is provided in the customer contract. Sec. 10-91. Special ]~rohibited acts - commercial bodily contact - unlawful provisions. It is unlawful for a worker of a commercial bodily contact establishment. regardless of whether licensed pursuant to this Article, to commit any of the following acts or for the operator of a commercial bodily contact establishment. regardless of whether licensed thereunder, to knowingly or with reason to know, permit. suffer. aid, assist or allow any worker to commit any of the following acts: (a) To provide commercial bodily contact or to be present at the premises of the business when open for business unless covering their specified anatomical areas by wearing an opaque surgical type gown. (b) To display or expose any specified anatomical area to a customer. (c) To allow a customer to expose or display the customers specified anatomical areas in the presence of a worker, (d) To allow a customer to engage in any specified sexual activity with him or herself, another customer or with a worker. (e) To perform or provide commercial bodily contact except at the premises of a commercial bodily contact establishment licensed under this Article. (t) To engage in or o:ffer to engage in private modeling or the activities of an escort with any customer. (g) To provide commercial bodily contact or service to a customer without first executing a customer contract as required by this Article. (h) To intentionally touch, fondle, manipulate or massage the specified anatomical area of any customer. City of Winter Springs Ordinance No. 2003-41 Page 59 of 63 (i) To allow any customer to intentionally touch, fondle, manipulate or massage any specified anatomical area of any worker or the body of any worker below the waist and above the knee, directly, indirectly or through a medium. (1) To remain in the presence of any customer who is displaying, exposing, intentionally touching, fondling or manipulating any specified anatomical area. (k) To allow any customer to intentionally touch, massage or manipulate any specified anatomical area while on the premises of the business or when in the presence of a worker. (1) To solicit or require a customer to remove any item of clothing as a prerequisite to providing commercial bodily contact. (m) To accept or soli.cit any tip, remuneration, consideration or gratuity in excess ofthe fee provided in the executed customer contract. (n) To accept or solicit any tip, remuneration, consideration or gratuity in exchange for any enhanced service. (0) To fail to require a customer to cover such customers' specified anatomical areas with a towel. robe, undergarment. bathing suit or other similar fully opaque material while on the premises of the business. (p) To engage in or offer to engage in any private performance or act as an adult model. Sec. 10-92. Commercial bodily contact establishments - prohibited: savings provision. (a) Notwithstanding any provision of this Article, it is unlawful to operate, or be a worker for or at a commercial bodily contact establishment which engages in commercial bodily contact. (b) Notwithstanding the provisions of subsection (a), in the event that subsection (a), prohibiting commerc.ial bodily contact establishments is found to be tmconstitutionaI. or otherwise invalid by a court of competent iurisdiction or should an iniunction be issued relative to the enfor.cement of subsection (a), then all provisions set forth this Article applicable to commercial bodily contact establishments and sexually oriented businesses shall apply to businesses and establishments engaged in commercial bodily contact. Sec. 10-93. Occupa1\:ionallicenses/home occupations. ( a) The City Manager or his designee may take such steps as may be necessary to ensure that the occupational license tax is paid by only such individuals and entities that are lawfully permitted in accordance with the provisions of this Article. (b) Adult entertainment establishments and sexually oriented businesses shall not be approved as home occupations. City of Winter Springs Ordinance No. 2003-41 Page 60 of 63 .., ., Sec. 10-94. Sexual encounter businesses prohibited/prohibited acts - unlawful provisions. (a) It is unlawful to be an operator of or be a worker at a sexual encounter business. (b) It is unlawful to cause, encourage, or allow a person under eighteen (18) years of age to be present at a sexual encounter business. (c) It is unlawful to aid or abet a person causing, encouraging or allowing a person under eighteen (18) years of age to be present at a sexual encounter business. Sec. 10-95. Immumity from prosecution. The City and any and all of its officers, departments or agents and any law enforcement officer shall be immune from prosecution, civil or criminaL for the reasonable, good-faith trespass upon an adult entertainment establishment or sexually oriented business while acting within the scope of the authority set forth in this Article. Secs. 10-96 through 10-99. Reserved. Sec. 10-57100. Zoning. All adult entertainment establishments and sexually oriented businesses within the City of Winter Springs, Florida, shall be limited to the industrial zoning district as designated by an adopted comprehensive plan, and City of Winter Springs Future Land Use Map=2BtB, and shall be subject to all restrictions enumerated herein. Sec. 10-58101. Prohibited locations for adult entertainment establishments: sexually oriented businesses. No person shall cause or permit the establishment, substantial enlargement, 01 transfer of ownership or control of an adult entertainment establishment or sexually oriented business within seven hundred fifty (750) feet of any other adult entertainment establishment or sexually oriented business, any church, school, public park or publicrecreation area or within seven hundred fifty (750) feet of an area zoned for residential use and/or designated by an adopted comprehensive plan in a manner primarily intended for dwellings. No person shall cause or permit the establishment or substantial enlargement of a church, schooL public park or public recreation area or residential area as described above within seven hundred fifty (750) feet of any existing adult entertainment establishment or sexually oriented business. "Substantial enlargement" shall mean increasing the size of the permitted and/or licensed premises by more than ten (10) percent of the original licensed premises. Sec. 10-59102. Measurement of distance. For the purpose ofthis article, distance measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest property line of the property used as an adult entertainment establishment or sexually oriented business to the nearest City of Winter Springs Ordinance No. 2003-41 Page 61 of 63 ... ~ property line of the premises of the other adult entertainment establishment and sexually oriented business, of a church, school, public park, or public recreation area, or to the nearest boundary of any area legally zoned and/or designated by comprehensive plan in a manner primarily intended for dwellings without regard to municipal boundaries. MCc15UlC1l1Cnt of distanccs betwe;en adult cntcrtaimnwt establislullehts sllall be; from lot line to lot line; at their neatest points. Section 4. Severability. If any Section or portion of a Section of this Ordinance proves to be invalid, unlawful, or unconstitutional, it shall not be held to invalidate or impair the validity, force, or effect of any other Section or part of this Ordinance. Section 5. Codification. It is the intention of the City Commission of the City of Winter Springs, Florida, and it is hereby ordained, that the provisions of this Ordinance shall become and be made a part of the Code of Ordinances of the City of Winter Springs, Florida; that the Sections of this Ordinance may be renumbered or relettered to accomplish such intention; that the word, "Ordinance," may be changed to "Section," "Article," or other appropriate word. Section 6. AdditiOlltal Legislative Intent. 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 that this Ordinance in no way whatsoever is intended to conflict with the Seminole County Public Decency Ordinance. The City of Winter Springs' City Commission finds and declared that this Ordinance shall not be construed as opting the City of Winter Springs out of the Seminole County Public Decency Ordinance. This Section 5 shall not be codified. Section 7. Effectiv,e Date. This Ordinance shall become effective upon passage and adoption by the City Commission and pursuant to City Charter. [ADOPTION PAGE FOLLOWS] City of Winter Springs Ordinance No. 2003-41 Page 62 of 63 "'- ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the __ day of , 2004. JOHN F. BUSH, Mayor ATTEST: ANDREA LORENZO-LUACES, City Clerk Approved as to legal form and sufficiency for the City of Winter Springs only: ANTHONY A. GARGANESE, City Attorney First Reading: Second Reading: Effective Date: G:IDocslCity of Winter SpringslAdult EntertainmentlAdult_Entertainment_2003-41.wpd City of Winter Springs Ordinance No. 2003-41 Page 63 of 63