§ 3-6. Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context may clearly indicates a different meaning:
Adult bookstore shall mean an establishment where a substantial portion of the items, material, goods or products sold or rented, offered for sale or rent, displayed or exhibited constitutes adult material.
(1)
For purposes of the definition of "adult bookstore," the term "substantial portion" means more than an insignificant or incidental portion. The term "substantial portion" does not necessarily mean a majority or predominant amount.
(2)
Whether the adult material constitutes a "substantial portion" of the items sold, rented, offered for sale or rent, displayed, or exhibited at a commercial establishment does not depend upon a specific percentage or ratio.
(3)
Whether the adult material that is "sold or rented, offered for sale or rent, displayed, or exhibited" constitutes a "substantial portion" may be determined by evidence relating to some, but not necessarily all, of the following factors:
a.
The amount of floor space, wall space, or display area dedicated to adult material;
b.
The amount of adult material sold or rented, offered for sale or rent, displayed, or exhibited in any category or type of product;
c.
The visibility, prominence, or accessibility to customers of adult material;
d.
The retail value of the adult material sold or rented, offered for sale or rent, displayed, or exhibited;
e.
Whether minors are excluded from the establishment;
f.
Any other fact, circumstance, or evidence which is relevant to demonstrate the type and quantity of merchandise that the establishment sells, rents, offers for sale or rent, displays or exhibits.
(4)
Packages, boxes, containers, or the like, displaying photographs or text on the outside thereof that fall under the definition of adult material, shall be considered as a category or type of adult material separate and distinct from their contents (or former contents) that may likewise fall under the definition of adult material.
Adult booth shall mean a small enclosure inside an adult entertainment establishment 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 other booth used to view adult material. The term "adult booth" does not include a foyer through which any person can enter or exit the establishment, or a restroom.
Adult entertainment establishment shall mean an adult bookstore, an adult motel, an adult performance establishment, an adult theater, an escort service, or a physical contact parlor, operated for commercial or pecuniary gain. ("Operated for commercial or pecuniary gain" shall not depend upon actual profit or loss. Also, "operated for commercial or pecuniary gain" shall be presumed where the establishment has an occupational license.) An establishment with an adult entertainment license or an establishment advertising itself as an adult entertainment establishment is deemed to be an adult entertainment establishment.
Adult material shall mean any one (1) or more of the following, regardless of whether it is new or used:
(1)
Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, videotapes, slides, computer digital graphic recordings or other visual representations, or compact discs, audio recordings or other audio matter, which have as their primary or dominant theme matter depicting, illustrating, describing or relating to specified sexual activities or specified anatomical areas; or
(2)
Instruments, novelties, devices or paraphernalia which are designed for use in connection with specified sexual activities, excluding bona fide birth control devices.
Adult motel shall mean any motel, hotel, boardinghouse, roominghouse or other place of temporary lodging:
(1)
Where the word "adult" is used or included by the establishment to identify or name the establishment; or
(2)
Where the predominant or exclusive business or attraction of the establishment is the offering to customers of a product, service or entertainment which is intended to provide sexual stimulation or sexual gratification to such customers, including an establishment which is distinguished by an emphasis on, or the promotion of specified sexual activities or the presentation or rental of films, motion pictures, videocassettes, 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; or
(3)
Where any room with sleeping accommodations is rented or otherwise made available to a customer for a period of eight (8) hours or less and the customer is required to vacate such room before the 8:00 a.m. which follows the time of rental.
Adult performance establishment shall mean as follows:
(1)
An establishment where a worker:
a.
Engages in a private performance, acts as a private model, or displays or exposes any specified anatomical areas to a customer;
b.
Wears and displays to a customer any covering, tape, pastie, or other device which simulates or otherwise gives the appearance of the display or exposure of any specified anatomical areas;
c.
Offers, solicits or contracts to dance or perform with a customer in consideration for or accepts any tip, remuneration or compensation from or on behalf of that customer; or
d.
Dances or performs with or within three (3) feet of a customer in consideration for or accepts any tip, remuneration or compensation from or on behalf of that customer.
(2)
This definition is not intended to apply, and it is an affirmative defense to an alleged violation of this chapter regarding operating an adult performance establishment without a license, if the alleged violator demonstrates either (a) that the establishment is a bona fide private club whose membership as a whole engages in social nudism or naturalism as in a nudist resort or camp, or (b) that the predominant business or attraction of the establishment is not the offering to customers of a product, service, or 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.
(3)
Consistent with the decision of the Supreme Court of Florida in the case of Hoffman v. Carson, 250 So. 2d 891, 893 (Fla. 1971), appeal dismissed 404 U.S. 981 (1971), an adult dancing 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 F.S. § 800.03, the state's indecent exposure statute.
Adult theater shall mean an establishment which, except as set forth in the final sentence of this paragraph, consists of an enclosed building, or a portion or part of an enclosed building, or an open-air area which is predominantly or exclusively used for viewing by persons of films, motion pictures, 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. An establishment which has adult booths is also considered to be an adult theater.
Alcoholic beverage shall mean a beverage 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 whiskey, moonshine whiskey, shine, rum, gin, tequila, vodka, scotch, scotch whiskey, brandy, beer, malt liquor, or by any other similar name or names, or was contained in a bottle or can labeled as any of the 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 knowledge of the alcoholic nature thereof, may testify as to his opinion about whether such beverage is an alcoholic beverage.
Conviction or convicted shall mean the finding of guilt or the entry of a plea of guilt or nolo contendere for a violation of a municipal or county ordinance or state or federal law, regardless of whether adjudication is withheld, or the forfeiture of a bond or bail when charged with a violation of a municipal or county ordinance, or state or federal law.
Customer shall mean any person, excluding a worker or operator, who does any of the following:
(1)
Is present at an establishment, regardless of whether that person has given any consideration or spent any money for goods or services; or
(2)
Has paid, or has offered, agreed, been solicited, or had someone else offer or agree on that person's behalf, to pay any consideration, fee, gratuity, or tip to an adult entertainment establishment or to an operator or worker of an adult entertainment establishment.
Department shall mean the building division, fire and rescue services department, health department, Sheriff of Orange County (hereinafter "the sheriff") or zoning division, whatever the case may be. When used in this chapter, the term "department" includes but is not necessary limited to the directors, managers, employees, officers, agents, department, bureau, division, or section of same.
Educational institution shall mean 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 Independent 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. However, the term "educational institution" does not include a premises or site upon which there is a vocational institution, professional institution or an institution of higher education, including a community college, junior college, four-year college or university.
Escort shall mean any person who, for commercial or pecuniary gain, compensation, or tips, agrees to or offers to go to any place, including but not limited to a business, hotel, motel, residence, room, booth, or conveyance, to do any of the following acts:
(1)
Act as a companion or date for, or converse with, a customer;
(2)
Engage in physical contact with another person;
(3)
Provide private adult entertainment;
(4)
Act as a private model or engage in lingerie modeling;
(5)
Display specified anatomical areas, strip naked or go topless; or
(6)
Engage in any specified sexual activity.
Nothing in this definition shall be construed to legalize conduct prohibited by this chapter or other law.
Escort service, also known as escort agency, shall mean a person, business, establishment or place, operated for commercial or pecuniary gain, which does any of the following:
(1)
Advertises as an "escort service" or "escort agency" or otherwise offers or advertises that it can furnish escorts, private dancers, or private models; or
(2)
Offers or actually provides, arranges, dispatches, or refers workers to act as an escort for a customer.
Exception: It is an affirmative defense that a business is not an escort service if a person seeking to invoke this defense can demonstrate that the business is a bona fide dating or matching service which arranges social matches or dates for two persons who each wish to meet a compatible companion when neither person solicits, accepts, or receives any financial gain or any monetary tip, consideration, or compensation from any person for the meeting or date.
Establishment shall mean a site or premises, including any building, structure, parking lot, and curtilage on such site or premises, upon which any activities or operations are conducted for commercial or pecuniary gain. ("Operated for commercial or pecuniary gain" shall not depend upon actual profit or loss. Also, "operated for commercial or pecuniary gain" shall be presumed where the establishment has an occupational license.)
Law enforcement officer shall mean an officer who is on official duty for a law enforcement agency.
Licensee shall mean any person whose application for an adult entertainment establishment has been granted and who owns, operates or controls the establishment.
Nudity shall mean to display or expose at an adult entertainment establishment less than completely and opaquely covered human genitals or pubic region, less than completely and opaquely covered areola and nipple of the human female breast, or human male genitals in a discernibly turgid state, even if completely and opaquely covered. (This definition of "nudity" is not to be confused with the definition of "nude" found in section 26-26 of this Code, otherwise known as the Orange County Public Nudity Ordinance.)
Operator shall mean any worker or other person who has the authority to direct or otherwise control workers at, or the operation of, an adult entertainment establishment, including but not necessarily limited to the licensee, owner, manager, assistant manager, supervisor, or assistant supervisor.
Park shall mean a tract of land within a municipality or unincorporated area which is kept for ornament and/or recreation and which is maintained as public property.
Physical contact shall mean to manipulate, wash, scrub, stroke or touch, for commercial or pecuniary gain, another person's body, directly or indirectly (through a medium using any object, instrument, substance, or device). Exception: It is an affirmative defense to an alleged violation of this chapter regarding engaging in physical contact if the alleged violator can establish membership in one (1) of the following classes of persons or businesses and the activity alleged to be physical contact is part of the bona fide practice of the profession or business of the person, which overlaps into the field regulated by this chapter:
(1)
A person licensed as a massage therapist or apprentice massage therapist pursuant to F.S. ch. 480, if providing massage services only in a massage establishment licensed under F.S. ch. 480;
(2)
A person licensed under the laws of the state to practice medicine, surgery, osteopathy, chiropody, naturopathy, or podiatry, or persons licensed as a physician's assistant or holding a drugless practitioner's certificate;
(3)
A nurse registered under the laws of the state;
(4)
A barber or beautician licensed under the laws of the state;
(5)
A cosmetologist licensed under the laws of the state;
(6)
A person performing services in any hospital, clinic, nursing home or sanitarium licensed under the laws of the state;
(7)
An instructor, coach, or trainer employed by, or on behalf of, any bona fide professional, Olympic or sanctioned amateur athletic team, governmental entity or any bona fide state, county, or private educational institution; or
(8)
A physical therapist licensed under the laws of the state.
Physical contact parlor shall mean a business, establishment or place, operated for commercial or pecuniary gain, where any worker engages in physical contact, or any business or establishment for which any portion is set aside, advertised, or promoted as a place where physical contact occurs, including a "body scrub salon" or "relaxation salon."
Preexisting shall mean as follows:
(1)
When used together with the term "adult entertainment establishment," "religious institution," "educational institution," "commercial establishment that in any manner sells or dispenses alcohol for on-premises consumption," or "residence," the word "preexisting" shall mean as follows:
a.
The establishment, institution or residence is already being lawfully used or lawfully occupied; or
b.
A building permit for the establishment, institution or residence has been lawfully issued, all fees associated with the permit have been paid, and the permit has not expired; or
c.
An application or plan to allow the establishment, institution or residence to be constructed, used or occupied has been filed and approved, with or without conditions, and all fees associated with the application or plan have been paid; or
d.
An application or plan to allow the establishment, institution or residence to be constructed, used or occupied has been filed, all fees associated with the application or plan have been paid, and the application or plan is undergoing review.
(2)
When used together with the term "park," the word "preexisting" shall mean as follows:
a.
The park is already being used; or
b.
The park site has been approved or otherwise designated by the appropriate governing body.
Private model shall mean any worker who, for commercial or pecuniary gain, offers, suggests or agrees to engage in a private performance, modeling or display of lingerie, bathing suits, undergarments, or specified anatomical areas to a customer.
Private performance shall mean modeling, posing, or the display or exposure of any specified anatomical area by a worker of an adult entertainment establishment 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 of the establishment which is intended, offered, advertised or used for private performances or in which the customer or worker is totally or partially screened or partitioned during such display from the view of persons outside the area. For purposes of this definition, the word "private" shall mean that less than four (4) customers are present during the performance or access to additional customers during the performance is prevented, whether actively or passively.
Religious institution shall mean a premises or site which is used primarily or exclusively for religious worship and related religious activities.
Sexual gratification means the engaging in or committing of an act of sexual intercourse, oral-genital contact, masturbation, or the touching of the 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 a reasonable person to conclude that an act of sexual gratification was to be provided.
Sexually oriented business shall mean an escort service or a physical contact parlor.
Specified anatomical areas shall mean:
(1)
Less than completely and opaquely covered:
a.
Human genitals or pubic region;
b.
Human buttocks;
c.
That portion of the human female breast encompassed within an area falling below the horizontal line one would have to draw to intersect a point immediately above the top of the areola (the colored ring around the nipple). This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel, provided the areola is not so exposed;
(2)
Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
Specified criminal act shall mean:
(1)
An offense under F.S. Ch. 794, (sexual battery);
(2)
An offense under F.S. Ch. 796, (prostitution; lewdness);
(3)
An offense under F.S. Ch. 800, (lewdness; indecent exposure);
(4)
An offense under F.S. Ch. 847, (obscenity, material harmful to minors);
(5)
A felony offense under F.S. Ch. 893 for sale, distribution, manufacture, or possession with the intent to sell a controlled substance, or for trafficking in a controlled substance;
(6)
An offense under F.S. Ch. 895, (racketeering); or
(7)
An offense under F.S. Ch. 896, (money laundering or engaging an unlawful financial transaction).
Specified sexual activity shall mean:
(1)
Human genitals in a state of sexual stimulation, arousal or tumescence; or
(2)
Acts of human anilingus, bestiality, buggery, cunnilingus, coprophagy, coprophilia, fellatio, flagellation, masochism, masturbation, necrophilia, pederasty, pedophilia, sadism, sadomasochism, sapphism, sexual intercourse, sodomy, urolagnia or zooerasty; or
(3)
Reserved;
(4)
Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (3).
Straddle dance, also known as a lap dance, face dance, or friction dance shall mean either of the following acts:
(1)
The use by a worker of any part of his or her body to touch the genital or pubic area of a person while at the establishment, or the touching of the genital or pubic area of any worker to another person while at the establishment. It shall be a straddle dance regardless of whether the touch or touching occurs while the worker is displaying or exposing any specified anatomical area. It shall also be a straddle dance regardless of whether the touch or touching is direct or indirectly (through a medium).
(2)
The straddling of the legs of a worker over any part of the body of a person other than another worker at the establishment, regardless of whether there is a touch or touching.
Tax collector shall mean the Orange County Tax Collector, including but not limited to the director, manager, employees, officers, and agents thereof or department, bureau, or division of same.
Worker shall mean a person who works or performs at or for an adult entertainment establishment, irrespective of whether such person is paid a salary or wage. "Worker" includes, but is not necessarily limited to, an employee, independent contractor, subcontractor, performer, entertainer, lessee or sublessee who works or performs at or for an adult entertainment establishment. A "worker" may also be an "operator."
(Code 1965, § 1A-17; Ord. No. 87-06, § 1, 2-9-87; Ord. No. 87-38, § 1, 11-9-87; Ord. No. 90-05, § 1, 4-9-90; Ord. No. 92-13, § 2, 4-7-92; Ord. No. 93-10, § 1, 4-20-93; Ord. No. 96-27, § 2(a), 9-17-96; Ord. No. 96-34, § 4, 10-29-96; Ord. No. 97-20, § 3, 12-2-97; Ord. No. 98-15, § 3, 6-23-98; Ord. No. 2000-06, § 1, 3-7-00; Ord. No. 2002-13, § 3, 9-24-02; Ord. No. 2006-09 , § 1, 6-27-06)
Cross reference
Definitions and rules of construction generally, § 1-2.