§ 66-137. Adult entertainment code.

This division shall be effective throughout the incorporated area of the City of Quincy, Florida.

The intent of the board of commissioners in adopting this division is to establish reasonable and uniform regulations that will protect the health, morals and general welfare of the people of the City of Quincy. In order to preserve and safeguard the health, safety, morals, and general welfare of the public at large, this division seeks to prohibit adult entertainment establishments from operating within set distances of educational institutions, religious institutions, or areas zoned for residential use.

The following words, terms, and phrases, when used in this division, shall have the meanings ascribed to them in this division, except where the context 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, or displayed or exhibited constitutes adult material. For the purpose of the defining "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. 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.

(1)

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 factors listed below:

(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 of record;

(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 otherwise exhibits.

(2)

Packages, boxes, containers, or the like, that display photographs, drawings, 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 or 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 imposed for access. The term "adult booth" includes, but is not limited to, a peep show booth, or other booth used to view adult material. It does not include a foyer through which any person can enter or exit the establishment, or a restroom facility.

Adult entertainment establishment shall mean an adult bookstore, an adult theater, adult escort service or physical contact parlor operated for commercial or pecuniary gain. An establishment with an adult entertainment license or establishment advertising itself as such is deemed to be an adult entertainment establishment.

Adult material shall mean any one 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, digital videodiscs, computerized 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, or describing or relating to specified sexual acts or specified anatomical areas; or

(2)

Instruments, novelties, devices or paraphernalia that are designed for use in connection with specified sexual activities, excluding universally accepted birth control devices.

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 discs or video tape cassettes, slides or other photographic reproductions which have as their primary or dominant theme matters depicting, illustrating or relating to sexual activities or specified anatomical areas. An establishment which has adult booths is also considered to be an adult theater.

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, or had someone offer or agree on that person's behalf to pay any consideration to an adult entertainment establishment or to the owner or any worker employed by the adult entertainment establishment.

Educational institution shall mean a premises or site upon which there is an institution of learning for minors, whether public or private in nature, 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 in the State Department of Education for the State of Florida, Southern Association of Colleges and Secondary Schools, or the Florida Council of Independent Schools. This definition also includes 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 premises or site upon which there is a vocational institution, institutions of higher education (community colleges, junior colleges, or four-year colleges or universities).

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.

A business is not considered to be an escort service if the owner or operator 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.

Law enforcement officer shall mean an officer who is [sic] 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.

Notices.

(1)

All notices required by this part shall be provided by:

a.

Certified mail, return receipt requested, provided if such notice is sent under this paragraph to the owner of the property in question at the address listed in the tax collector's office for tax notices, and at any other address provided to the local government by such owner and is returned as unclaimed or refused, notice may be provided by posting as described in subparagraph (2)a., and by first class mail directed to the addresses furnished to the local government with a properly executed proof of mailing or affidavit confirming the first class mailing;

b.

Hand delivery by the sheriff or other law enforcement officer, code inspector, or other person designated by the local governing body;

c.

Leaving the notice at the applicant or licensee's usual place of residence with any person residing therein who is above 15 years of age and informing such person of the contents of the notice; or

d.

Leaving the notice with the manager or other person in charge.

(2)

In addition to providing notice as set forth in subsection (1), notice may also be served by posting, as follows:

a.

Notice may be posted at least ten days prior to the deadline contained in the notice, in at least two locations, one of which shall be the property which is licensed and the other of which shall be at the primary municipal government office. Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall include a copy of the notice posted and the date and places of its posting.

b.

Notice by posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under subsection (1).

Evidence that an attempt has been made to hand deliver or mail notice as provided in subsection (1), together with proof of posting as provided in subsection (2), shall be sufficient to show that the notice requirements of this part have been met, without regard to whether or not the alleged violator actually received such notice.

Operator shall mean any person who engages in or performs any activity which is necessary to or which facilitates the operation of an adult entertainment establishment, including but not limited to the licensee, manager, owner, doorman, sales clerk, movie projectionist, dispatcher, receptionist, attendant, or supervisor. An "operator" may also be a "worker".

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 division regarding engaging in physical contact if the alleged violator can establish membership in one 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 division:

(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 of Florida;

(4)

A barber or beautician licensed under the laws of the State of Florida;

(5)

A cosmetologist licensed under the laws of the State of Florida;

(6)

A person performing services in any clinic, hospital, nursing home, or sanitarium licensed under the laws of the State of Florida;

(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 as defined in this division shall mean as follows:

(1)

An establishment, institution, or residence is already being lawfully used or occupied;

(2)

A building permit for the establishment, institution, or residence has been lawfully issued, all fees associated with said permit have been paid, and the permit have been paid, and the permit has not expired; or

(3)

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

(4)

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.

Religious Institution shall mean a premises or site which is used primarily or exclusively or religious worship and related religious activities.

Worker shall mean a person who works or performs in 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, lessee or sublessee who works or performs in or for an adult entertainment establishment. A "worker" may also be an "operator".

Zoning department shall mean the respective director, employees, or agents thereof.

(Ord. No. 920, § 1, 3-26-01)