10-030
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2 ORDINANCE NO. 10- 0 ~O
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4' AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
5 BOYNTON BEACH, FLORIDA, AMENDING THE CITY OF BOYNTON
6 BEACH CODE OF ORDINANCES, BY AMENDING CHAPTER 3,
7 "ALCOHOLIC BEVERAGES", BY ADDING NEW DEFINITIONS FOR
8 ALCOHOLIC BEVERAGE EST ABLISHMENT, NUDITY AND
9 PARTIAL NUDITY TO SECTION 3-1; BY ADDING NEW SECTION 3-6
10 ENTITLED "PROHIBITION OF NUDITY, PARTIAL NUDITY, SEXUAL
11 CONDUCT"; AMENDING CHAPTER 13, "LICENSES", BY ADDING A
12 NEW ARTICLE III, ENTITLED "ADULT ENTERTAINMENT
13 EST ABLISHMENTS"; AND AMENDING THE LAND DEVELOPMENT
14 REGULA TIONS OF THE CITY OF BOYNTON BEACH, BY
15 AMENDING CHAPTER 2, SUBSECTION 6.C., "C-3, COMMUNITY
16 COMMERCIAL ZONING DISTRICT", BY CHANGING SUBSECTION
17 BB, FROM CONDITIONAL TO PERMITTED AND ADDING
18 REFERENCES TO THE REQUIREMENTS OF SUBSECTION I1.M.; BY
19 AMENDING CHAPTER 2, SUBSECTION 7.E., "USES PERMITTED",
20 BY CHANGING THE USE FROM PERMITTED TO CONDITIONAL
21 AND BY ADDING REFERENCES TO NEW DEFINITIONS; BY
22 AMENDING CHAPTER 2, BY ADDING A NEW SUBSECTION (10),
23 ADUL T ENTERTAINMENT ESTABLISHMENTS; TO SUBSECTION
24 8.A.1.D. AND DELETING SUBSECTION (8) FROM SUBSECTION
25 8.A.2.B.; BY AMENDING CHAPTER 2, SUBSECTION I1.M., "ADULT
26 ENTERT AINMENT; SPECIAL RESTRICTIONS" , BY ADDING
27 FINDINGS OF FACT AND ADDITIONAL REQUIREMENTS;
28 PROVIDING FOR CONFLICTS, SEVERABILITY, CODIFICATION
29 AND AN EFFECTIVE DATE.
30
31 WHEREAS, pursuant to Article VII, Section 2 of the Florida Constitution and Chapter
32 166 of the Florida Statutes, the City Commission of the City of Boynton Beach (the "City
33 Commission") is authorized and required to protect the public health, safety and welfare of its
34 citizens; and
35 WHEREAS, the City Commission recognizes that adult entertainment establishments
36 bring harmful secondary adverse effects on the surrounding neighborhoods and businesses; and
37 WHEREAS, studies have been conducted in other urban areas, municipalities, and
38 counties, which have shown that the location and the concentration of adult entertainment
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1 establishment affect the areas of the city in which they are located and contribute to a
2 devaluation of property values, increase in crime, and have a blighting effect; and
3 WHEREAS, the United States Supreme Court in City of Renton v. Playtime Theatres,
4 Inc., 106 S.Ct. 925,475 U.S. 41, 89 L.Ed.2d 29 (1986) and the Eleventh Circuit of the United
5 States Court of Appeals in International Eateries of America, Inc. v. Broward County, 941 F.2d
6 1157 (11 th Cir. 1991), have each permitted the reliance by government upon the experiences of
7 and the studies and reports conducted in other urban areas, municipalities, and counties; and
8 WHEREAS, City staff has reviewed and analyzed numerous studies, reports,
9 ordinances, federal and state case law, legislative findings, and summaries pertaining to adult
10 entertainment uses and the effects that result and could result therefrom; and
11 WHEREAS, in the numerous studies, reports, ordinances, legislative findings, and
12 summaries on harmful secondary effects that have been presented to and reviewed by the City
13 Commission and City staff, the City Commission finds that convincing evidence has been
14 presented that harmful adverse secondary effects may result from the concentration of adult
15 entertainment establishments; and
16 WHEREAS, the City Commission finds that without the continued enforcement of the
17 distance separation requirements, the harmful secondary effects associated with adult
18 entertainment establishments, including misdemeanor and felonious crime such as prostitution
19 and increased sexual assaults, the attraction of criminal activity, neighborhood blight, and the
20 downgrading of residential and commercial properties would arise and proliferate within the
21 City of Boynton Beach; and
22 WHEREAS, adult entertainment uses have been shown to cause or significantly
23 contribute to increases in criminal activity in the areas in which such uses are located or occur,
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1 bringing about difficulties for law enforcement in preventing crime and maintaining public
2 order; and
3 WHEREAS, adult entertainment establishments can undermine the stability of
4 established businesses and commercial uses where adult entertainment uses are located and can
5 cause a deterioration of such other business and commercial uses, inhibit business and
6 commercial growth, and have an adverse impact on tax revenues and commercial property
7 values; and
8 WHEREAS, adult entertainment uses can have a negative influence on minors and
9 students in areas where adult entertainment establishments are located, can diminish or destroy
10 the enjoyment and family atmosphere of persons utilizing parks and playground areas in the
11 City, and can interfere and even destroy the spiritual experience of persons attending churches
12 and other places of worship; and
13 WHEREAS, the City Commission reaffirms its concerns regarding the harmful
14 secondary effects associated with concentrations of adult entertainment uses and desires to
15 protect and preserve the quality of life in the City of Boynton Beach and the quality of the
16 City's neighborhoods and commercial districts, while protecting other uses within the City,
17 such as residential, parks and playgrounds, child care centers, churches, and schools from the
18 concentration of adult entertainment establishments; and
19 WHEREAS, based on the convincing and documented evidence presented and
20 reviewed, the City Commission finds that the distance separation requirements are not greater
21 than necessary to prevent the adverse secondary effects determined by the City Commission to
22 be associated with adult entertainment uses; and
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1 I WHEREAS, the City Commission of the City has been advised of the numerous
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2 studies, reports, and documentation on the subject of adult entertainment uses, has reviewed the
3 staff analysis pertaining to this ordinance, and has determined that it is absolutely necessary
4 and important to the health, safety, and welfare of the citizens and residents of the City to
5 minimize the adverse secondary effects of adult entertainment uses within the City of Boynton
6 Beach, and in doing so, desires to amend the Code of Ordinances and the Land Development
7 Regulation of the City of Boynton Beach; and
8 WHEREAS, the City Commission determines that these amendments to the Code of
9 Ordinances and Land Development Code of the City of Boynton Beach do not unfairly restrict
10 adult entertainment uses within the City, as there are sufficient properties available within the
11 City for adult entertainment uses to operate; and
12 WHEREAS, the City Commission has the power and authority to enact regulations
13 pertaining to land use and development within the City and for valid governmental purposes
14 that are not inconsistent with general or special law.
15 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
16 THE CITY OF BOYNTON BEACH, FLORIDA, AS FOLLOWS:
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18 Section 1. That the recitations set forth above are incorporated herein.
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20 Section 2. That Chapter 3, "Alcoholic Beverages, of the City of Boynton Beach
21 Code Ordinances, Section 3-1 is amended by adding the new terms and corresponding
22 definitions to read as follows:
23
24 ALCOHOLIC BEVERAGE ESTABLISHMENT Any business or commercial
25 establishment, whether open to the public at large or entrance is limited by cover charge
26 or membership requirements, including those licensed by the State for sale and or
27 service of alcoholic beverages, which include, but are not limited to, any stand-alone
28 bar, bottle club, hotel. motel. restaurant, night club, country club, cabaret, and meeting
29 facility located in the City of Boynton Beach in which alcoholic beverages, beer or wine
30 are, or are available to be, sold, dispensed, served, consumed, provided, possessed or
31 offered for sale or consumption on the premises.
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1 NUDITY The exposing to public view of the human male or female genitals, pubic
2 area, cleavage of the human buttocks, or that portion of the human female breast
3 encompassed within an area falling below the horizontal line one would have to draw to
4 intersect a point immediately above the top of the areola (the colored ring around the
5 nipple ).
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7 PARTIAL NUDITY The exposing to public view of the human male or female
8 cleavage of the human buttocks or that portion of the human female breast encompassed
9 within an area falling below the horizontal line one would have to draw to intersect a
10 point immediately above the top of the areola (the colored ring around the nipple) with
11 less than a full opaque covering; or the depiction of covered human male genitals in a
12 discernibly turgid state.
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14 Section 3. That Chapter 3, "Alcoholic Beverages" of the City of Boynton Beach
15 Code of Ordinances is amended by adding a new Section 3-6 entitled "Prohibition of Nudity,
16 Partial Nudity, Sexual Conduct" to read as follows:
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18 Sec. 3-6 Prohibition of nudity. partial nudity. sexual conduct.
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20 ( 1) No person shall engage in nudity or partial nudity in any alcoholic beverage
21 establishment.
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23 (2) No employee of, or person having an independent contractual relationship with, the
24 owner or operator of an alcoholic beverage establishment shall engage in nudity or
25 g,artial nudity in any alcoholic beverage establishment.
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27 (3) No person maintaining, owning or operating an alcoholic beverage establishment
28 shall suffer or permit any employee or person having an independent contractor status
29 as to the owner or operator of the alcoholic beverage establishment to engage in nudity
30 or partial nudity within any alcoholic beverage establishment.
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32 (4) No person shall engage in and no person maintaining, owning or operating an
33 alcoholic beverage establishment shall suffer or permit any sexual intercourse,
34 masturbation, sodomy, bestiality, oral copulation, flagellation, any sexual act which is
35 prohibited by law, touching, caressing or fondling of the breasts, buttocks, or any
36 portion thereof, anus or genitals or the simulation thereof, within any alcoholic beverage
37 establishment.
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39 Section 4. That Chapter 13, "Licenses" of the City of Boynton Beach Code of
40 Ordinances IS amended by adding a new Article III., ADULT ENTER T AINMENT
41 ESTABLISHMENTS" to read as follows:
42
43 Article III. ADULT ENTERTAINMENT ESTABLISHMENTS
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1 All adult entertainment establishments as defined below shall operate in accordance
2 with this section, as well as in accordance with Chapter 3. Alcoholic Beverae:es, Part
3 III. Land Development Regulations, Chapter 2, Zonine: and Chapter 2, Section 11.
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5 Sec. 13-59. Defined.
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7 An "adult entertainment establishment" is a commercial enterprise which predominately
8 limits admission to "adults only" owing to the sexual nature of its merchandise or
9 entertainment. Such establishments may include, but not be limited to, adult
10 bookstores, adult theatres, adult lounges, adult health studios, adult motels or hotels
11 with nude, bottomless or topless entertainment or employees.
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13 (a) Nude or partially nude performers/entertainers or employees shall not approach
14 wi thin SIX (6) feet of patrons, customers, or other employees or other
15 performers/entertainers.
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17 (b) Nude or partially nude performers/entertainers or employees shall only entertain
18 from a designated stage raised from the floor a mInImUm of 18 inches.
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20 (c) The minimum floor area per room or partitioned area within an adult
21 entertainment establishment shall be 2,000 square feet exclusive of kitchen space,
22 restrooms, storage areas and any other non-public/customer area of the establishment.
23
24 Section 5. That Chapter 2., Section 6., Commercial district regulations and use
25 provisions, Subsection C., "C-3, COMMUNITY COMMERCIAL DISTRICT", subsection
26 l.bb., "Adult entertainment establishments." of the Land Development Regulations of the City
27 of Boynton Beach is amended by changing from conditional to permitted and adding references
28 to the requirements of Subsection II.M. to read as follows:
29
30 bb. Adult entertainment establishments, in accordance with Section II.M*";
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32 Section 6. That Chapter 2, Section 7, Planned industrial development district.,
33 Subsection E., "Uses Permitted Commercial Zoning District" of the Land Development
34 Regulations of the City of Boynton Beach is amended by changing the use from permitted to
35 conditional and adding references to the requirements of Subsection II.M. to read as follows:
36
37 "E. USES PERMITTED. In the PID, a building and its customary ancillary
38 structures and land uses may be erected, altered and occupied for any office,
39 professional, business (wholesale or retail), educational institution, adult entertainment
40 establishments in accordance with Section II.M., recreational and attractions as defined
41 for the industrial land use classification, multi-family residential, and mixed use
42 residential/commercial uses in PID's totaling a minimum of 500 acres or industrial use
43 provided that such use or uses is/are approved by the planning and development
44 board.. .
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46 Section 7. That Chapter 2, Section 8., M-l industrial district regulations and use
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1 provisions., Subsection A.l.d., Transportation, communication, utilities,. and miscellaneous
2 uses as follows:, of the Land Development Regulations of the City of Boynton Beach is
3 amended by adding a new subsection (10), "Adult Entertainment Establishments" to read as
4 follows:
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6 (0) Adult entertainment establishments, in accordance with Section II.M; and
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8 Section 8. That Chapter 2, Section 8., M-l industrial district regulations and use
9 provisions., Subsection A.2.b., Other uses as follows:, of the Land Development Regulations of
10 the City of Boynton Beach is amended by deleting subsection (8), to read as follows:
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12 (8) Adult entertainment establishments, in accordance with Section II.M;
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14 Section 9. That Chapter 2, Section 11, Supplemental Regulations, Subsection "M."
15 ADULT ENTERTAINMENT; SPECIAL RESTRICTIONS of the Land Development
16 Regulations of the City of Boynton Beach Code is amended to read as follows:
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18 M. ADULT ENTERT AINMENT ESTABLISHMENTS; SPECIAL
19 RESTRICTIONS.
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21 1. Findings of fact. The City acknowledges that nude and exotic dancing and
22 entertainment is an expression protected under the First Amendment of the Constitution
23 of the United States. Such expression communicates a message to the intended audience
24 but shall not be obscene, as defined by the courts, nor involve children. The Supreme
25 Court has upheld local regulations that are not intended to preclude such protected
26 expression, but rather to prevent the harmful side effects known as "secondary effects".
27 Based on various reports, studies and iudicial opinions generated throughout the
28 country, including within the State of Florida, the City of Boynton Beach finds it in the
29 interest of health, safety, peace, property values, and general welfare of the people and
30 businesses of the City of Boynton Beach to regulate said businesses to control the
31 secondary effects associated with them. Secondary effects have been proven to include,
32 in part, increased criminal activities, moral degradation, depreciation of property value,
33 and harm to the economic welfare of the community as a whole.
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35 By limiting the location and concentration of such uses, by limiting the proximity of
36 such uses to places of residence and public gathering, and by restricting the sale of
37 alcohol within or nearby said establishments, the secondary effects referenced above
38 will be avoided or minimized. Also contributing to the control of secondary effects are
39 restrictions on operational characteristics, including the interaction between nude or
40 partially nude entertainers, and patrons, customers, other employees and entertainers,
41 given the threat they represent to the health of others through the spread of
42 communicable and social disease. Requirements regarding buffers and stage designs are
43 intended to protect public health while preserving the forms of expression intended by
44 the protected nude and exotic entertainment.
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1 2. Development and operational standards applicable to uses regulated by this section.
2 In addition to the requirements of the underlying zoning district, other applicable
3 general regulations, County licensing requirements, and Section 3-6 of the Code of
4 Ordinances, the following requirements shall apply to adult entertainment
5 establishments:
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7 a. -h No adult entertainment establishment shall be located closer than efle
8 thousand seven hundred (1,000) (750) feet from any other adult entertainment
9 establishment measured from lot boundary to lot boundary along a straight
10 airline route, except when the property containing the adult entertainment
11 establishment is separated from the above use by the 1-95 and CSX Railroad
12 rights-of-way, or the Boynton (C-16) Canal right-of-way.
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14 b. ~. No adult entertainment establishment shall be located closer than efle
15 thousand seven hundred (1,000) (750) feet from any house of worship;
16 residential zoning district (including a mixed-use district containing a
17 residential component or a mixed-use pod of a Planned Industrial
18 Development); public usage district; recreation district except where the
19 subiect property is a preserved natural area not accessible to the general
20 public; or schools measured from lot boundary to lot boundary along a straight
21 airline route, except when the property containing the adult entertainment
22 establishment is separated from the above uses by the 1-95 and CSX Railroad
23 rights-of-way, or the Boynton (C-16) Canal right-of-way.
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25 Section 10. Each and every other provision of the Land Development Regulations
26 not herein specifically amended herein, shall remain in full force and effect as originally
27 adopted.
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29 Section 11. That should any section or provision of this ordinance or any portion
30 thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be
31 invalid, such decision shall not affect the validity of the remainder of this ordinance as a whole
32 or part thereof other than the part declared to be invalid.
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34 Section 12. That all ordinances or parts of ordinances in conflict herewith be, and the
35 same are hereby repealed.
36
37 Section 13. Authority is hereby given to codify this ordinance.
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39 Section 14. That this ordinance shall become effective immediately upon its passage
40 on second and final reading.
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1 i PASSED FIRST READING this ~ day of Nov. ,2010.
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2 SECOND AND FINAL READING ADOPTED this L day of "Dee. , 2010.
3 CITY OF BOYNTON BEACH, FLORIDA
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23 ATTEST:
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32 (C~rporate Seal)
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