§ 26-26. Public nudity.

(a)

Title. This section shall be known as the "Orange County Public Nudity Ordinance."

(b)

Intent. It is the intent of this section to protect and preserve the health, safety and welfare of the people of Orange County by prohibiting any person from knowingly or intentionally appearing nude in a public place, or knowingly or intentionally causing or permitting another person to appear nude in a public place, within the unincorporated area of Orange County, subject to the following three (3) exceptions:

(1)

When such person appears nude in a public place provided or set apart for nudity, and such person is nude for the sole purpose of performing a legal function that is customarily intended to be performed within such public place, and such person is not nude for the purpose of obtaining money or other financial gain for such person or for another person or entity; or

(2)

When the conduct of being nude cannot constitutionally be prohibited by this section because it constitutes a part of a bona fide live communication, demonstration or performance by such person wherein such nudity is expressive conduct incidental to and necessary for the conveyance or communication of a genuine message or public expression, and is not a guise or pretense utilized to exploit nudity for profit or commercial gain (see, for example, Barnes v. Glen Theatre, Inc.,     U.S.     111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); and Hoffman v. Carson, 250 So. 2d 891 (Fla. 1971); or

(3)

When the conduct of being nude cannot constitutionally be prohibited by this section because it is otherwise protected by the United States Constitution or Florida Constitution.

(c)

Findings. The board of county commissioners finds and determines as follows:

(1)

Since the beginning of civilization, appearing nude in a public place which is not a public place provided or set apart for nudity has been considered improper (see Moffet v. State, 340 So.2d 1155, 1156, n.3 (Fla. 1977), which quotes Genesis 3:7 (King James)); and

(2)

Appearing nude in a public place which was not a public place provided or set apart for nudity was a criminal offense at common law and was considered an act malum en se (wrong in itself); and

(3)

Appearing nude in a public place which is not a public place provided or set apart for nudity is engaging in conduct which often serves to impose such person's nudity on others who did not seek it out, who are not able to reasonably avoid observing it, and who may be offended or distressed thereby; and

(4)

Appearing nude in a public place which is not a public place provided or set apart for nudity is still subject to general disapproval by the people of Orange County; and

(5)

The appearance of persons in the nude in public places which are not public places provided or set apart for nudity generally increases incidents of prostitution, sexual assaults and batteries, attracts other criminal activity to the community, encourages degradation of women, and facilitates other activities which break down family structures and values; and

(6)

Without regulation, appearing nude in a public place which is not a public place provided or set apart for nudity constitutes harmful conduct; and

(7)

Orange County is a family oriented area; and

(8)

Orange County is an area that is known for and whose economy is largely dependent upon its popular tourist and family oriented attractions, such as the Magic Kingdom, EPCOT Center, Sea World, Disney-MGM Studios, Universal Studios; and

(9)

Regulation of public nudity will protect and preserve the public health, safety and welfare of the people of Orange County by restricting, to the fullest extent allowed by the United States Constitution and Florida Constitution, the act of being nude to nonpublic places or public places provided or set aside for nudity; and

(10)

Nonregulation of persons appearing nude in public places which are not public places provided or set apart for nudity within the unincorporated area of Orange County would encourage entities and persons to exploit nudity for profit or commercial gain and to advertise outside of Orange County and the State of Florida the availability of and opportunity for nudity in public places which are not places provided or set apart for nudity within the unincorporated area of Orange County, and thus would encourage the influx into the unincorporated area of Orange County of persons seeking to observe and/or participate in such nudity, and to participate in the disorderly, harmful and illegal conduct that is associated therewith, thereby increasing injuries and damages to the people of the unincorporated area of Orange County who will be the victims of such increased disorderly, harmful and unlawful conduct; and

(11)

The prohibitions contained herein are the most reasonable and minimum restrictions required so as to regulate conduct which is adverse to public order within the unincorporated area of Orange County, when such conduct occurs in a public place which is not a public place provided or set apart for nudity; and

(12)

States may regulate the conduct of appearing nude in public places which are not public places provided or set apart for nudity (see Barnes v. Glen Theatre, Inc.,     U.S.     , 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991)); and

(13)

The exemptions contained in this section provide adequate protection to persons who, without such exemptions, might be prevented or discouraged by this section from exercising constitutionally protected rights; and

(14)

This section regulates conduct, not speech.

(d)

Definitions.

(1)

Entity means any proprietorship, partnership, corporation, association, business trust, joint venture, joint-stock company or other for profit and/or not for profit organization.

(2)

Nude means to display or expose the male or female genitals, pubic area, or the female breast with less than a fully opaque covering of any part of the areola and nipple, or the showing of the covered male genitals in a discernibly turgid state. For purposes of this definition, body paint, body dye, a tattoo, latex, or any similar substances shall not be considered an "opaque covering."

(3)

Person means any human being at least ten (10) years of age.

(4)

Public place provided or set apart for nudity means an enclosed public restroom, an enclosed functional shower or locker room facility, an enclosed sauna, a motel room or hotel room designed and intended for sleeping accommodations, or at the location of a bona fide private club whose membership as a whole engages in social nudism or naturalism (a nudist resort or camp), and any similar public places in which nudity is necessarily and customarily expected outside of the home and the sphere of privacy constitutionally protected therein.

(5)

Public place means any location open to the common and general use, participation or enjoyment of the public where the public is present or likely to be present, or any location where the public is invited and is free to go upon special or implied invitation, or any location where a person may reasonably be expected to be observed by the public. A public place includes, but is not limited to, a street, sidewalk, park, beach, business or commercial establishment (whether for profit or not for profit and whether open to the public at large or where entrance is limited by a cover charge or membership requirement), bottle club, hotel, motel, restaurant, night club, country club, cabaret, or meeting facility utilized by a religious, social, fraternal or similar organization.

(e)

Public nudity. Subject to the exemptions set forth in subsection (f) below, it shall be unlawful for any person to knowingly or intentionally appear nude in a public place, or to knowingly or intentionally cause or permit another person to appear nude in a public place.

(f)

Exemptions The offense of public nudity contrary to subsection (e) above shall not occur in any of the following three (3) instances:

(1)

When a person appears nude in a public place provided or set apart for nudity, and such person is nude for the sole purpose of performing a legal function that is customarily intended to be performed within such public place, and such person is not nude for the purpose of obtaining money or other financial gain for such person or for another person or entity; or

(2)

When the conduct of being nude cannot constitutionally be prohibited by this section because it constitutes a part of a bona fide live communication, demonstration or performance by such person wherein such nudity is expressive conduct incidental to and necessary for the conveyance or communication of a genuine message or public expression, and is not a guise or pretense utilized to exploit nudity for profit or commercial gain (see, for example, Barnes v. Glen Theatre, Inc.,     U.S.     , 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); and Hoffman v. Carson, 250 So.2d 891 (Fla. 1971)); or

(3)

When the conduct of being nude cannot constitutionally be prohibited by this section because it is otherwise protected by the United States Constitution or Florida Constitution.

(g)

Violation of subsection (e). Whoever violates subsection (e) above may be punished as provided in section 1-9 of the Orange County Code.

(Ord. No. 92-33, §§ 1—7, 10-27-92)