§ 13-81. Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning.

Adult bookstore: means

(1)

An establishment which advertises, sells or rents, or offers for sale or rent adult material.

(2)

The provisions of subsection (1) are not intended to apply and it is an affirmative defense to an alleged violation of this article regarding operating an adult bookstore without an adult entertainment license if the alleged violator shows that the adult material is accessible only by employees and the gross income from the sale and/or rental of adult material comprises less than ten (10) percent of the gross income from the sale and/or rental of the goods or services at the establishment, and the individual items of adult material offered for sale and/or rental comprise less than twenty-five (25) percent of the individual new items publicly displayed at the establishment as stock in trade in any of the following categories: books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, videotapes, slides, or other visual representations, or recordings, or other audio matter or less than twenty-five (25) percent of the individual used items publicly displayed at the establishment as stock in trade in the same categories set out above.

Adult booth means 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 dancing establishment means:

(1)

An establishment where any employee:

a.

Displays or exposes any specified anatomical areas to a person other than another employee, regardless of whether the employee actually engages in dancing;

b.

Wears any covering, tape, pastie, or other device which simulates or otherwise gives the appearance of the display or exposure of any specified anatomical areas, regardless of whether the employee actually engages in dancing;

c.

Offers, solicits, or contracts to dance or perform with a person other than another employee in consideration for any tip, remuneration or compensation from or on behalf of that person; or,

d.

Dances or performs with, or within three (3) feet of, a person other than another employee in consideration for any tip, remuneration or compensation from or on behalf of that person.

(2)

The provisions of subsection (1) are not intended to apply and it is an affirmative defense if 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 is not distinguished by an emphasis on or the advertising or promotion of materials relating to or employees depicting, describing, displaying, exposing, simulating, specified sexual activities or specified anatomical areas.

(3)

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 as set forth in 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).

Adult entertainment establishment means an adult theater, an adult bookstore, or an adult dancing establishment operated for commercial or pecuniary gain regardless of whether such establishment is licensed under this article. "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 Osceola County occupational license. An establishment with an adult entertainment license shall be presumed to be an adult entertainment establishment.

Adult material means 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, or other visual representations, or 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.

Adult motel means any motel, hotel, boardinghouse, roominghouse or other place of temporary lodging which includes the word "adult" in any name it uses or otherwise advertises the presentation of films, motion pictures, videotapes, slides or other photographic reproductions, which have as their primary or dominate theme matters depicting illustrating, or relating to specified sexual activities or specified anatomical areas. The term "adult motel" is included within the definition of "adult theater".

Adult theater formerly known as or otherwise known as "adult motion picture theater" means 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 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. Adult motels are included within the definition of adult theater. An establishment which has adult booths is considered to be an adult theater.

Alcoholic beverage means 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, ale, malt liquor, wine, liqueur, cordial, 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 shall mean a determination of guilt resulting from a plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.

Educational institution means 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.

Employee means a person who works or performs in an adult entertainment establishment, irrespective of whether said person is paid a salary or wage.

Establishment means a site or premises, or portion thereof, upon which certain 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 means an officer who is on official duty for a law enforcement agency.

Licensee means any person whose application for an adult entertainment establishment has been granted and who owns, operates or controls the establishment.

Operator means 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, bartender, disc jockey, bouncer, sales clerk, ticket taker, movie projectionist, or supervisor.

Park means 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.

Pre-existing means as follows:

(1)

When used together with the term "adult entertainment establishment", "religious institution", "educational institution", or "commercial establishment that in any manner sells or dispenses alcohol for on-premises consumption", the word "pre-existing" shall mean as follows:

a.

The establishment or institution is already being lawfully used or lawfully occupied; or

b.

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

d.

An application or plan to allow the establishment or institution to be constructed, used or occupied has been filed and approved, with or without conditions.

(2)

When used together with the term "park" the word "pre-existing" 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 performance means the display or exposure of any specified anatomical area by an employee of an adult entertainment establishment to a person other than another employee while the person is in an area not accessible during such display to all other persons in the establishment, or while the person is in an area in which the person is totally or partially screened or partitioned during such display from the view of all persons outside the area.

Religious institution means a premises or site which is used primarily or exclusively for religious worship and related religious activities.

Specified anatomical areas means:

(1)

Less than completely and opaquely covered:

a.

Human genitals or pubic region; or

b.

Human buttocks; or

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.

(1)

Human male genitals in a discernably turgid state, even if completely and opaquely covered.

Specified sexual activity means:

(1)

Human genitals in a state of sexual stimulation, arousal or tumescence; or

(2)

Acts of human anilingus, bestiality, buggery, cunnilingus, coprophagy, coprophilia, fellation, flagellation, masochism, masturbation, necrophilia, pederasty, pedophilia, sadism, sadomasochism, sapphism, sexual intercourse, sodomy, urolagnia or zooerastia; or

(3)

Fondling or other erotic touching of human genitals, pubic region, buttock, anus or female breast; or

(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" or "face dance", means either of the following acts:

(1)

The use by an employee 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 employee with a person while at the establishment. It shall be deemed a "straddle dance" regardless of whether the "touch" or "touching" occurs while the employee is displaying or exposing any specified anatomical area. It shall also be deemed a straddle dance regardless of whether the touch or touching is direct or through a medium.

(2)

The straddling of the legs of an employee over any part of the body of a person other than another employee at the establishment, regardless of whether there is a touch or touching.

(Ord. No. 93-9, § 6, 5-24-93)