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HomeMy WebLinkAbout1988-439/7/88 rich2 LR -Planning DN/vj ORDINANCE NO, 88- 43 AN ORDINANCE OF INDIAN RIVER COUNTY, FLORIDA, AMENDING SECTION 20 CG: GENERAL COMMERCIAL DISTRICT, SECTION 20.1 CH: HEAVY COMMERCIAL DISTRICT, SECTION 21, IL LIGHT INDUSTRIAL DISTRICT, SECTION 22 (A). IG: GENERAL INDUSTRIAL DISTRICT, AND SECTION 25.1 OF APPENDIX A OF THE CODE OF LAWS AND ORDINANCES OF INDIAN RIVER COUNTY, FLORIDA, KNOWN AS THE ZONING CODE; PROVIDING FOR ESTABLISHING BOTTLE CLUBS AS SPECIAL EXCEPTION USES IN THE CG AND CH DISTRICTS, ADULT ENTERTAINMENT FACILITIES AS SPECIAL EXCEPTION USES IN THE IL AND IG DISTRICTS, AND PROVIDING FOR DEFINITIONS OF BOTTLE CLUBS AND ADULT ENTERTAINMENT FACILITIES; AND TO AMEND CHAPTER 2, ALCOHOLIC BEVERAGES, SECTION 2-3, CERTAIN ACTS PROHIBITED IN ESTABLISHMENTS SELLING BEVERAGES, OF THE CODE OF LAWS AND ORDINANCES OF INDIAN RIVER COUNTY, FLORIDA; PROVIDING FOR THE PROHIBITION OF CERTAIN ACTS OF NUDITY IN ESTABLISHMENTS WHERE ALCOHOL IS CONSUMED ON THE PREMISES; AND PROVIDING FOR REPEAL OF CONFLICTING.4 PROVISIONS, CODIFICATION, SEVERABILITY, AND EFFECTIVE DATE.' WHEREAS, The BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, has found that there is a direct relationship between nude and semi-nude activities, prohibited hereunder, and more fully described hereinafter, and an increase in criminal activities, moral degradation and disturbances of the peace and good order of the community, this being based on the findings in New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981) (per curium). Accord, California v. LaRue, 409 U.S. 109 (1972), and further finds that the concurrency of these activities is hazardous to the health and safety of those persons in attendance and to the general public, and tends to depreciate the value of adjoining property and harm the economic welfare of the community as a whole, and WHEREAS, the BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, has determined that commercial establishments established primarily not for the sale of alcholic beverages but for furnishing a location for consumption of alcoholic beverages provided by the establishments patron, heretofore known as bottle clubs, have adverse secondary impacts on surrounding properties and are disruptive to the general peace and order of the 0 community, and pose a threat to health, safety, welfare, and morals of the community do hereby establish criteria for control of bottle clubs as.found herein; and WHEREAS, the BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, has determined that the adverse secondary impacts of adult businesses, as defined herein, have negative impacts upon the crime rates, property values, and traffic situation in areas in which they are located, the findings being incorporated in the City of Renton v. Playtime Theaters, Inc. 106 S. Ct. 925. (1986); Coleman A. Young v. American Mini Theaters, Inc., 427 U.S. 50, 49L. Ed. 2d 310, 96 S.Ct. 2440, reh den (US) 50 L. Ed. 2d 155, 97 S.Ct. 191, a study on the impact of adult businesses on Austin, Texas; Regulation of Criminal Activity and Adult Businesses. City of Phoenix, Arizona, May 1979; Adult Entertainment Business in Indianapolis. An Analysis Indianapolis, Indiana, 1984; Study of the Effects of the Concentration of Adult Entertainment Establishments in the City of Los Angeles. Los Angeles, California, June 197.7; and that adult businesses have negative impacts on the general health, safety, welfare, and morals of the community, have enacted definitions and criteria, contained herein, which are designed to control the adverse secondary impacts through regulation of NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA: SECTION 1 Chapter 2 of the Code of Laws and Ordinances of Indian River County, Florida, is amended as follows: Chapter 2 - Alcoholic Beverages. Section 2-3. Certain acts prohibited in commercial establishments 0011 44 where alcoholic beverages/ are consumed on the premises. CODING: Words in OtilA¢XftUIA type are deletions from existing law. Words underlined are additions. location and distance separation. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA: SECTION 1 Chapter 2 of the Code of Laws and Ordinances of Indian River County, Florida, is amended as follows: Chapter 2 - Alcoholic Beverages. Section 2-3. Certain acts prohibited in commercial establishments 0011 44 where alcoholic beverages/ are consumed on the premises. CODING: Words in OtilA¢XftUIA type are deletions from existing law. Words underlined are additions. ORDINANCE N0, 88- 43 (b) Prohibition. (1) It shall be unlawful for any person maintaining, owning, or operating a commercial establishment located within the unincorporated areas of Indian River County, Florida, at which alcholic beverages are consumed or offered for sale for consumption on the premises: (A) To suffer or permit any female person, while on the premises of said commercial establishment, to expose to the public view that area of the human female breast at or below the areola thereof. (B) To suffer or permit any female person, while on the premises of said commercial establishment, to employ any device or covering which is intended to give the appearance of or simulate such portions of the human female breast as described in Section 2.1 (A) (C) To suffer or permit any person, while on the premises .of said establishment, to expose to public view his or her genitals, pubic areas, buttocks, anus, or anal cleft or cleavage. (D) To suffer or permit any person, while on the premises of said commercial establishment, to employ any device or covering which is intended to give the appearance of or simulate the genitals, pubic area, buttocks, anus, anal cleft or cleavage. (2) It shall be unlawful for any female person, while on the premises of a commercial establishment located within the unincorporated areas of Indian River County, Florida, at which alcoholic beverages are consumed or offered for sale for consumption on the premises, to expose to public view that area of the human female breast at or below the areola thereof, or to employ any device or covering which is intended to give the appearance or simulate such areas of the female breast as described herein. CODING: Words in WiiOX4fXPA type are deletions from existing law. Words underlined are additions. 3 In ORDINANCE NO. 88- 43 (3) It shall be unlawful for any. person, while on the premises of a commercial establishment located within the unincorporated areas of Indian River County, Florida, at which alcoholic beverages are consumed or offered for sale for consumption on the premises, to expose to public view his or her genitals, pubic area, buttocks, anus, or anal cleft or cleavage, or to employ any device or covering which is intended to give the appearance of or simulate the genitals, pubic area, buttocks, anus or anal cleft or cleavage. Section 20. (d) (8) is hereby created and shall read as follows: Section 20.CG: General Commercial District (d) Special exception uses. (8) Commercial Uses. (a) Eating and drinking establishments [Sec. 25.1 (h)]: Bottle clubs. follows: Section 20.1. CH: Heavy Commercial District. (c) Uses requiring administrative permit. (5) Commercial uses. Eating a 25. 1 (h) Bottle c 5 drinking establishments [Sec. Section 21. (d) (4) is hereby created and shall read as follows: Section 21. IL: Light Industrial District (d) Special exception uses. (4) Adult entertainment. (a) Adult entertainment businesses [Sec. 25.1(w)]. Adult bookstore Adult arcade Adult dancing establishments Adult motion picture theater or drive-in Adult mini -motion picture theater Adult personal services business Adult theater Section 22 (A). (d) (5) is hereby created and shall read as follows: CODING: Words in ttul¢1 tXjtKi type are deletions from existing law. Words underlined are additions. is hereby Section 20.1. (c) (5) created and shall read as follows: Section 20.1. CH: Heavy Commercial District. (c) Uses requiring administrative permit. (5) Commercial uses. Eating a 25. 1 (h) Bottle c 5 drinking establishments [Sec. Section 21. (d) (4) is hereby created and shall read as follows: Section 21. IL: Light Industrial District (d) Special exception uses. (4) Adult entertainment. (a) Adult entertainment businesses [Sec. 25.1(w)]. Adult bookstore Adult arcade Adult dancing establishments Adult motion picture theater or drive-in Adult mini -motion picture theater Adult personal services business Adult theater Section 22 (A). (d) (5) is hereby created and shall read as follows: CODING: Words in ttul¢1 tXjtKi type are deletions from existing law. Words underlined are additions. ORDINANCE N0, 88-43 Section 22 (A). IG: General Industrial District. (d) Special exception uses. (5) Adult entertainment (a) Adult entertainment businesses [Sec. 25.1 . v, J Adult bookstore Adult arcade Adult dancing establishments Adult motion picture theater or drive-in Adult mini -motion bicture theater Section 25.1 Regulations for Specific Land Uses, is hereby amended by creating paragraph 25.1 (h) (3) which shall read as follows: Section 25.1 Regulations for specific land uses. (h) Eating and drinking establishments. (3) Bottle clubs (Administrative Permit and Special Exception). a. Districts requiring administrative permits: Bottle clubs shall be allowed in the CH district upon receiving approval for an administrative permit pursuant to the provisions of Section 25.2 and after meeting the requirements defined below. b. Districts requiring special exception: Bottle clubs may be allowed in the CG district upon receiving approval as a special exception as provided in Section 25.3 and after meeting the requirements defined be c. Definition: For the purpose of this ordinance, the following definitions shall apply: Bottle club. A bottle club is a commercial premises primarily established for the on-site consumption of alcoholic beverages provi patrons. A bottle club's primary stock in trade is the sale of ice, non-alcoholic beverages, and other materials normally associated with the preparation of alcoholic beverages to be consumed on-site. Bottle clubs may be public or private. For the purpose of this ordinance, other private clubs such as golf and tennis clubs, health clubs, beach clubs, or social membership organization, where the on-site consumption of alcohol is not the primary purpose of attendance, shall not be considered to be bottle clubs. CODING: Words in ti6uf¢b, tXj ld type are deletions from existing law. Words underlined are additions. ORDINANCE NO. 88-.43 d. Additional information requirements: 1. A site plan conforming with all requirements of Section 23, which shows the use and zoning designation of all properties within 1000 feet of the proposed use, and showing the location and type of screening materials. 2. Proof of compliance with all applicable state and local regulations and requirements. e. Criteria for bottle clubs: (1) Bottle clubs shall be located no closer than 1000 feet from any other bottle club, church or place of worship, primary or secondary school, park or playground. This required separation distance shall be measured by following the shortest route or ordinary pedestrian travel along the public thoroughfare from the main entrance of such place of business to the main entrance of the church or bottle club and, in the case of a school, to the nearest point of the school grounds in use as part of the school facilities except: a. Where such established church or school is within the limits of an incorporated city or town and the applicant .for such license is outside such incorporated city or town and outside any other incorporated city or town, then and in that event, the place of business in the county may be the same or a greater distance from such bottle club, church or school as is required by the ordinance of the incorporated city or town wherein such church or school is located. b. Should a church or school be established after the establishment of a place of business the subsequently established church or school shall not affect the location of the place of business nor shall it affect a subsequent renewal or transfer of any license of such a vendor. c. Where such established church or school is located in the county outside the limits of any incorporated city or town but so near the limits of one CODING: Words in Ott7A¢XfMIA type are deletions from existing law. Words underlined are additions. ORDINANCE NO. 88- 43 that under the ordinances of that city or town such a vendor in such city or town could receive a license within a distance less than stipulated by this section of such church or school, then and in that event, the place of business in this county outside any city or town may be the same or a greater distance from such church or school as any such business duly licensed within such city or town. 3) No structure or off-street parking area shall be located within twenty-five (25) feet of any property line abutting a residential district. A Type "A" screening shall be required on all perimeter boundaries abutting said residential district when the bottle club is within a freestanding structure and is the sole use of the property, i.e. located within a structure which is not a part of a larger complex. (4) The hours of operation shall be limited AM, to 7 AM - 3 AM. Section 25.1 Regulations for Specific Land Uses, is hereby amended by creating 25.1 (W) which shall read as follows: Section 25.1 Regulations for specific land uses. (w) Adult entertainment. (1) Adult entertainment businesses (special exception). a. Districts requiring special exception: Adult entertainment businesses as herein defined may be permitted within the IL and IG districts upon receiving approval as a special exception persuant to the provisions of Section 25.3 and upon meeting the requirements defined below. b. Additional information requirements: 1. A site plan meeting all requirements of Section 23 which .shows the zoning and use of all properties within 1000 feet of the site. 2. Written verification of compliance with all applicable state and local ordinances shall -be provided. CODING: Words in # flAtIA type are deletions from existing law. Words underlined are additions. ORDINANCE NO. 88-43 3. Written verification from the property owner that the property may be used for operation of an adult entertainment business. c. Definitions. For the purpose of this ordinance, the following definitions shall apply: 1. Adult entertainment business. An adult entertainment business shall consist of one or more of the following described businesses: (a) Adult arcade - adult arcade means an establishment where, for any form of consideration, one or more motion picture projectors, slide projectors or similar machines, for viewing by five or fewer persons each, are used to show films, motion pictures, video cassettes, slides, photographic reproductions, or other visual materials having as their primary or dominant theme the depiction of or description of "specified sexual activities" or to anatomical areas". Such use is generally not open to the public in general but to one or more classes of the public, exclud- ing minors by reason of age. (b).Adult bookstore - an establishment that sells or rents, or offers to sell or rent, for any form of consideration, adult materials and that (a) more than twenty percent (200) of the stock on view to the public, excluding minors, consists of adult materials or, (b) more than twenty percent (20%) of its gross revenue is derived from the sale or rental of adult materials. Adult materials shall mean any one or more of the following: 1. books, magazines, periodicals or other printed matter, or photographs, films, Imotion pictures, video cassettes or video reproductions that have as their primary or dominant theme the depicting or describing of "specified sexual activities" or "specified anatomical areas" as defined below; or 2a instruments, devices, or paraphernalia which are designed for use in connection with if sexual activities" as defined below; CODING: Words in OttIAO fff4tjA type are deletions from existing law. Words underlined are additions. ORDINANCE NO. 88-43 (c) Adult dancing establishment - an establishment that permits, suffers or allows dancers, employees or other persons to display or expose "specified anatomical areas" to public view, regardless of whether the employees or other persons actually engage in dancing. (d) An adult motion picture booth - an enclosed area designed or used for the viewing by one or more persons of motion pictures, films, video cassettes, slides or other visual materials which have as their primary or dominant theme matters depicting, illustrating or relating to "specified sexual activities or "specified anatomical areas". Such use is not generally open to the public in general but only to one or more classes of the public, excluding any minor by reason of ace. (e) An adult motion picture theater or drive-in - an enclosed building or a ortion or part of an enclosed building or open air establishment designed to permit viewing by patrons for any form of consideration films, video or other visual material in which the primary or dominant theme of the material presented is distinguished or characterized by an emphasis on matter depicting, describing, or related to "specified sexual activities" or "specified anatomical areas," as defined below. Such use is generally not open to the public in general but only to one or more classes of the public, excluding any minor by reason of age. (f) Adult mini -motion picture theater. Adult mini -motion picture theater means an enclosed building or portion or part of an enclosed building with a capacity of less than 50 persons including, but not _limited to, an adult arcade having as a' principal activity the presentation of material having as the primary or dominant theme the depiction of, description of, or portrayals of "specified anatomical areas" or "specified sexual activities". Such use is generally not open to the public in general but only to one or more classes of the public, excluding any minor by reason of age. CODING: Words in1�Yi¢I�f1�I type are deletions from existing law. Words underlined are additions. ORDINANCE NO. 88-43 (g) An adult motel/hotel - any hotel or motel, boarding house, rooming house or other lodging which includes the word "adult" in any name it uses or otherwise advertises the presenting of closed circuit television transmissions, films, video, motion pictures or other visual material having as its primary or dominant theme the depicting or describing of "specified sexual activities" or "specified anatomical areas", as defined below, for observation by patrons of such establishment. (h) Adult personal service business - adult personal service business means a business having as a principal activity a person, while displaying or exposing specific anatomical areas, providing personal services for another person on an individual basis in a closed room. It includes, but is not limited to, the following activities and services: massage parlors, erotic rubs, & modeling studios. Such services are generally not offered to the public in general but only to one or more classes of the public, excluding any minor by reason of age. It does not include activities performed by persons pursuant to, and in accordance with, licenses issued to such persons by the State of Florida, Department of Professional Regulation, Board of Massage, and by state law, Chapter 480. Florida Statutes. (i) Adult theater - a theater, concert hall, auditorium or similar establishment which features persons who appear in a state of nudity or live performances which have as their primary or dominant theme the depicting or describing of "specified anatomical areas" or by "specified sexual activities". Such uses are not generally open to the general public, but to one or more classes of the public, excluding minors by reason of age. The determination as to whether an establishment constitutes an adult establishment, as herein defined, shall be based upon reasonable cause. Reason- able cause may be established through visual observation of the stock, review of financial records, consideration of the nature of the stock which does not constitute adult materials or such other means which establishes a reasonable. likelihood that the establishment CODING: Words in 5�U7AOX flijiA type are deletions from existing law. Words underlined are additions. ORDINANCE NO. 88-43 constitutes an adult establishment. Once a preliminary determination has been made that an establishment con- stitutes an adult establishment, the owner of such establishment shall be notified of such determination and given the opportunity to provide financial or business records, or such other mat- erials as would indicate whether or not the establishment constitutes an adult establishment, as herein defined. A final determination shall not be made until the owner has been given the opportunity to provide such materials. 2. Specified anatomical areas. Specified anatomical areas means: (a). less than completely and opaquely covered: 1e human genitals or pubic region; or 20 cleavage of the human buttocks, or 3e that portion of the human female breast encompassed within an area at or directly below the areola (the colored ring around the nipple). This defin- ition 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. (b) human male genitals -in a discernibly turgid state, even if completely and opaquely covered. 3. Specified sexual activities. Specified sexual activities means. (a) human genitals in a state of sexual stimulation, arousal or tumescence; or (b) acts of human adamutism, analingus, beastiality, buggery, cunnilingus, coprophagy, coprophilia, fellation, flagellation, frottage, hyphephilia, CODING: Words in OtnAOY, MiA type are deletions from existing law. Words underlined are additions. ORDINANCE NO. 88-43 masochism, masturbation, necrophilia, pederasty, pedophilia, sadism, sado- masochism, sapphism, sexual intercourse, sodomy, urolagia or zooerasty; or (c) fondling or other erotic touching of human genitals, pubic region, buttock, anus or female breast, or (d) excretory functions as part of or in connection with any of the activities set forth in subsections (a) through (b). d. Criteria for adult entertainment businesses. 1. The site shall be located a minimum of 1000 feet from other adult business, residential uses or zones, places of worship, secondary or primary schools, parks or playgrounds, or any area where large numbers of minors regularly travel or congre- gate. This required separ- ation distance shall be measured by following the shortest route or ordinary pedestrian travel along the public thoroughfare from the main entrance of such place of business to the main entrance of the church and in the case of a school, park or play- ground, or area where large groups of minors regularly congregate to the nearest point of the school grounds park or playground, or area where large groups of minors regularly congregate in use as part of the school facilities excepts (a) Where such established church, school, park or playground or area where large groups of minors regularly congregate is within the limits of an incorporated city or town and the applicant for such license is outside such incorporated city or town and outside any other incorporated city or town, then and in that event, the place of business inthe county may be the same or a greater distance from such church or school is required CODING: Words in 4ttiAg g t4t'A type are deletions from existing law. Words underlined are additions. ORDINANCE NO. 88-43 incorporated city or town wherein such church or school is located. (b) Should a church, school, park or playground or area where large groups of minors regularly congregate be established after the estab- lishment of a place of busi- ness the subsequently estab- lished church or school shall not affect the location of the place of business nor shall it affect a subsequent renewal.or transfer of any license of such a vendor. (c) Where such established church, school, park or playground, or area where large groups of minors regularly congregate is located in the county outside the limits of any incorporated city or town but so near the limits of one that under the ordinances of that city or town such a vendor in such city or town could receive a license within a distance less than stipulated by this section of such church or school, then and in that event, the place of business in this county outside any city or town may be the same or greater distance from such church or school as any such business duly licensed or approved for operation within such city or town. 2. Com liance with Section. 25 (o), Sign ordinance. 3. Compliance with all applicable state and local laws and ordinances. e. Variance from separation distances. 1. The minimum 1000 foot separation distance as described above may be reduced to 500 feet by the Board of County Commissioners provided that; (a) A petition requesting waiver of the minimum separation distance requirement is received and verified by the Community Development Depart- ment signed by 51 percent of _those persons owning, re- siding, or operating a busi- ness within a 1000 ft. radius of the proposed location; CODING: Words in 4ttjA0X4tbijtld type are deletions from existing law. Words underlined are additions. 13 ORDINANCE NO. 88- 43 (b) The proposed use will not be contrary to the public inter- est or injurious to nearby ,Properties, and that the spirit and intent of this ordinance will be observed; (c) That the proposed use will not adversely impact the adjacent uses with respect to traffic, noise, lighting, etc. (d) That all other applicable regulations of this ordinance will be observed. SECTION 8 REPEAL OF CONFLICTING PROVISIONS All previous ordinances, resolutions, or motions of the Board of County Commissioners of Indian River County, Florida which conflict with the provisions of this ordinance are hereby repealed to the extent of such conflict. All Special Acts of the legislature applying only to the unincorporated portion of Indian River County and which conflict with the provisions of this ordinance are hereby repealed to the extent of such conflict. CODIFICATION The provisions of this ordinance shall be incorporated into the County Code and the work "ordinance" may be changed to "section", "article", or other appropriate word, and the sections of this ordinance may be renumbered or relettered to accomplish such intentions. SECTION 10 SEVERABILITY If any section, part of a sentence, paragraph, phrase or word of this ordinance is for any reason held to be unconstitutional, inoperative or void, such holdings shall not affect the remaining portions hereof and it shall be construed to have been the legislative intent to pass this ordinance without such unconstitutional, invalid or inoperative part. ORDINANCE NO. 88- 43 The provisions this ordinance has of this ordinance shall become effective Department of State. upon receipt from the Florida Secretary of State of official acknowledgement that this ordinance has been filed with the Department of State. Approved and adopted by the Board of County Commissioners of Indian River County, Florida, on this 20th day of September, This ordinance was advertised in the Vero Beach Press -Journal on the 31st day of August , 1988, for a public hearing to be held on the 20th day of Septembew 1988, at 'which time it was moved for adoption by Commissioner Eggert , seconded by Commissioner Bird and adopted by the following vote: Chairman Don C. Scurlock, Jr. AWP Vice Chairman Gary C. Wheeler AQP Commissioner Richard N. Bird A 7 Commissioner Margaret C. Bowman A,P Commissioner Carolyn K. Eggert AA BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY:._` ✓�° By `op VP PW F _ Don C. Scur ock, : Jr . , .� rman� l ` a....NM1., tr..k. '14a I Md • V t$f i t Yrr' ATTEST BY: FREDA WIPA-GHT44 .�., Acknowledgment by the Department of State of the SLt ate of'rFlorida' this 29th day of September 1988. Effective Date: Acknowledgment from the Department .o'f State received on this 3rd day of October 1988; at 10:30 A.M._/P.M, and filed in the office of the Clerk of the Board of County Commissioners of Indian River County, Florida. APPROVED AS TO FORM AND LEGAL SUFFICWkNCY. ,� �Dsistant County Attorney David C. Nearing O Staff Planner, Long -Range Planning Adult Ent. Prop. Ord. richt