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Sec. 2 1/2-32. Legislative findings.
It is hereby found by the board of county commissioners, acting in its legislative capacity for the purpose of regulating
alcoholic beverage establishments, as authorized pursuant to the twenty-first amendment, that, considering what has happened in other communities, the acts prohibited in section 2 1/2-33 below encourage or create the potential
for the conduct of prostitution, attempted rape, rape and assault in and around establishments dealing in alcoholic beverages; that actual and simulated nudity and sexual conduct and the depiction thereof, coupled with alcohol
in public places begets and has the potential for begetting undesirable behavior; that sexual, lewd, lascivious, and salacious conduct among patrons and employees within establishments dealing in alcoholic beverages results in
violation of law and creates dangers to the health, safety, morals, and welfare of the public and those who engage in such conduct; and, it is the intent of this ordinance to prohibit nudity, gross sexuality, and the simulation
and depiction thereof, in establishments dealing in alcoholic beverages.
(Ord. No. 95-9, § 2, 6-7-95)
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Sec. 2 1/2-33. Nudity, sexual conduct prohibited.
Within existing or newly created establishments dealing in alcoholic beverages:
(1)
No person shall expose to public view his or her genitals, pubic area, vulva, anus, anal cleft or cleavage, or buttocks, or any simulation thereof.
(2) No female person shall
expose to public view any portion of her breasts directly or laterally below the top of the areola, or any simulation thereof.
(3) No person maintaining, owning or operating an establishment
dealing in alcoholic beverages shall suffer or permit any person to expose to public view his or her genitals, pubic area, vulva, anus, anal cleft, or any portion of the buttocks or simulation thereof. Within this paragraph and
section, the term "buttocks" shall mean the area at the rear of the body which lies between two imaginary lines running parallel to the ground when a person is standing, the first or top such line drawn at the top of
the cleave of the nates (i.e., the prominence formed by the muscles running from the back of the hip to the back of the leg) and the second or bottom line drawn at the lowest visible point of this cleavage or the lowest point
of the curvature of the fleshy protuberance, whichever is lower, and between two imaginary lines on each side of the body, which lines are perpendicular to the ground and to the horizontal lines described above, and which
perpendicular lines are drawn through the point at which each nate meets the outer side of each leg. This section would be violated, therefore, if any portion of this area is visible from any vantage point.
(4) No person maintaining, owning, or operating an establishment dealing in alcoholic beverages shall suffer or permit any female person to expose to public view any portion of her breasts, directly or
laterally, below the top of the areola or any simulation thereof.
(5) No person shall engage in and no person maintaining, owning, or operating an establishment dealing in alcoholic beverages
shall suffer or permit any sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, any sexual act which is prohibited by law, touching, caressing, or fondling of the breasts, buttocks, anus, or
genitals, or the simulation thereof.
(6) No person shall cause and no person maintaining, owning, or operating an establishment dealing in alcoholic beverages shall suffer or permit the
exposition of any graphic representation, including pictures or images by the projection of film or video images on a television or a monitor, which depicts human genitals, pubic area, vulva, anus, anal cleft or cleavage,
buttocks, female breasts directly or laterally below the top of the areola, sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, any sexual act prohibited by law, touching, caressing, or fondling
of the breasts, buttocks, anus, or genitals, or any simulation thereof. This subsection shall not be construed to prohibit the showing of movies, tapes, or video cassettes that contain a movie industry rating of "R"
or "PG-13".
(Ord. No. 95-9, § 3, 6-7-95)
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Sec. 26-12. Dissemination of obscene material.
(a) Definitions of terms. The following definitions are applicable to [the provisions of this section]:
(1) Obscene. Any material or performance is "obscene" if:
a. Considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excretion, sadism or masochism, and
b.
It goes substantially beyond customary limits of candor in describing or representing such matters, and
c. It is utterly without redeeming social value.
Predominant
appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.
(2) Material means anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or in any other manner.
(3) Performance means any play, motion picture, dance or other exhibition performed before an audience.
(4) Promote means to manufacture, issue, sell, give,
provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.
(5) Wholesale promote
means to manufacture, issue, sell, provide, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate or to offer or agree to do the same for purposes of resale.
(6)
Person includes individuals, firms, associations, corporations, and all other groups and combinations.
(b) Prohibited acts. A person is guilty of obscenity, when, knowing its content and character, he:
(1) Promotes, or possesses with intent to promote, any obscene material; or
(2) Produces, presents or directs an obscene performance or participates in a
portion thereof which is obscene or which contributes to its obscenity.
Whoever commits the crime of obscenity is guilty of a misdemeanor and, upon conviction, shall be guilty of a misdemeanor of the
first degree, punishable as provided in Florida Statutes, Section 775.082 or Florida Statutes, Section 775.083.
(c) Prior hearing. No material which is conceived to be obscene under this section shall be seized before a prior, judicially supervised, adversary proceeding is held on the question of the
obscenity of such material.
(d) Presumptions. A person who promotes or wholesale promotes obscene material, or possesses the same with intent to promote or to wholesale promote it, in the
course of his business is presumed to do so with knowledge of its content and character.
(e) Defense.
(1) In any prosecution for obscenity, it is an affirmative defense that the persons to whom allegedly obscene material was disseminated, or the audience to an allegedly obscene
performance, consisted of persons or institutions having scientific, education, governmental or other similar justification for possessing or viewing the same.
(2) In any prosecution of
obscenity, it is an affirmative defense that the person so charged was a motion picture projectionist, stage employee or spotlight operator, cashier, doorman, usher, candy stand attendant, porter or in any other
nonmanagerial or nonsupervisory capacity in a motion picture theatre; provided he has no financial interest, other than his employment, which employment does not encompass compensation based upon any proportion of the gross
receipts, in the promotion of obscene material for sale, rental or exhibition or in the promotion, presentation or direction of any obscene performance, or is any way responsible for acquiring obscene material for sale,
rental or exhibition.
(f) Injunction. Obscene material, performance, promotions and wholesale promotions may be enjoined:
(1) Upon a complaint in the name of the county filed by the state attorney or attorney for the county a threatened violation of this section may be enjoined by a court of competent
jurisdiction.
(2) When the relator state attorney or attorney for the county shall request a judge of said court to set a hearing upon an application to enjoin such threatened violation,
such judge shall set such hearing for a time within three (3) days after the making of such request. The judge shall be satisfied that sufficient notice of the complaint has been given to the party sought to be enjoined of
the time when and place where the complaint is to be made.
(3) The person sought to be enjoined shall be entitled to a trial of the issues within one day after joinder of issues and a
decision shall be rendered by the court within two (2) days after the conclusion of the trial.
(4) In the event that a final decree of injunction is entered, it shall contain a provision
directing the defendant having the possession, custody, or control of the materials affected by the injunction to surrender the same to the court.
(5) The right to prompt appellate review is provided in the general law.
(6) In any action brought as provided in this subsection, no bond or undertaking shall be
required of the state attorney or the county or the attorney for the county before the issuance of an injunction provided for by paragraph (1), and there shall be no liability on the part of the county or the state attorney
or the attorney for the county for costs or for damages sustained by reason of such injunction in any case where a final decree or appellate decree is rendered in favor of the person sought to be enjoined.
(7) Every person who has possession, custody or control of, or otherwise deals with any of the material described in this section, after the service upon him of the notice and complaint in an action for
injunction brought under this subsection, is chargeable with knowledge of the contents and character thereof.
(g) Disposition of obscene material. There shall be no right of property in any of the material possessed or otherwise dealt with in violation of this section, and upon the seizure of any such
material by any authorized law enforcement officer or upon the surrender of such material, the same shall be delivered to and held by the clerk of the court having jurisdiction to try such violation. When the same is no longer
required as evidence, the prosecuting officer or any claimant may move the court in writing for the disposition of the same and after notice and hearing, the court, if it finds the same to have been possessed or otherwise dealt
with in violation of this section, shall order the material destroyed in the presence of the clerk; otherwise, the court shall order the same returned to the claimant if he shows that he is entitled to possession. If
destruction is ordered, the clerk shall file a certificate of compliance.
(h) Expert witness testimony; admissibility of evidence. In any prosecution for a violation of the provisions of this
section, neither the prosecution nor the defense shall be required to introduce expert witness testimony concerning the obscene or harmful character of the material which is the subject of any such prosecution. Any evidence
which tends to establish contemporary standards of appeal to prurient interest or of customary limits of candor in the description or representation of nudity, sex or excretion, or which bears upon the question of redeeming
social importance, shall be admissible when offered by either the prosecution or the defense.
(i) Florida law incorporated; appeals. The parties shall have the right to invoke the laws of the
State of Florida, both statutory and common law, to accomplish the purposes of this section and such law is hereby made a part of this section and the right to prompt appellate review is provided in such laws.
(Ord. No. 73-3, §§ 1--9, 4-25-73)
Editor's note: At the discretion of the editor, nonamendatory Ord. No. 73-3 has been included as § 26-12.
Cross references: Adult-oriented businesses, Ch. 2 1/2.
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Chapter 2 1/2 ADULT-ORIENTED BUSINESSES*
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*Cross references: Occupational licenses, ch. 25; dissemination of obscene material, § 26-12; viewing arcades, § 26-13; public nudity, § 26-17.
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Art. I. In General, §§ 2 1/2-1--2 1/2-10.6
Art. II. Massage Parlors and Bathhouses, §§ 2 1/2-11--2 1/2-30
Art. III. Alcoholic Beverage Establishments, §§ 2 1/2-31--2 1/2-34
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ST. JOHNS COUNTY, FLORIDA
PUBLIC NUDITY ORDINANCE
ORDINANCE 92-12
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF ST. JOHNS, STATE OF FLORIDA, TO BE KNOWN AS THE ST. JOHNS COUNTY PUBLIC NUDITY ORDINANCE; STATING THE INTENT OF THE ORDINANCE; PROVIDING THE
DEFINITION OF NUDITY AS PROHIBITED BY THIS ORDINANCE AND PROVIDING OTHER DEFINITIONS; PROVIDING LEGISLATIVE FINDINGS; PROHIBITING NUDITY AND SEXUAL CONDUCT OR THE SIMULATION THEREOF WITHIN ALCOHOLIC BEVERAGE ESTABLISHMENTS;
PROHIBITING NUDITY IN CERTAIN OTHER PUBLIC PLACES; PROVIDING FOR ENFORCEMENT AND PENALTIES FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR INJUNCTIVE RELIEF; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN THE COUNTY
CODE; AND PROVIDING AN EFFECTIVE DATE.
a)
WHEREAS, the Board of County Commissioners of St. Johns County, Florida (the "Board"), is aware that local governments may, by virtue of the twenty-first (21st) amendment to the United States Constitution, regulate and prohibit various forms of actual and simulated Nude and sexual conduct, and the depiction thereof, within and around Establishments Dealing In Alcoholic Beverages. See California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, rehearing denied, 410 U.S. 948, 93 S.Ct. 1351 (1972); and New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599 (1981); and,
b)
WHEREAS, the Board is aware that local governments may prohibit the exposure of certain body parts in and around Establishments Dealing In Alcoholic Beverages, see Geaneas v. Willets, 911 F.2d 579 (11th Cir. 1990); and,
c)
WHEREAS, the Board wishes to regulate nudity and sexual conduct in and around Establishments Dealing In Alcoholic Beverages; and, the Board is aware of evidence from other communities that indicates that nudity and sexual conduct, coupled with alcohol in Public Places, begets undesirable behavior, and that prostitution, attempted rape, rape, and assault have occurred and have the potential for occurring in and around Establishments Dealing In Alcoholic Beverages where Nude and sexual conduct is permitted; and,
d) WHEREAS, the Board wishes to protect against similar conditions to the end that they not occur in St. Johns County at or around Establishments Dealing In Alcoholic Beverages; and,
e) WHEREAS, the Board desires to prohibit the public display of Nude conduct and sexual behavior or the simulation thereof in and around Establishments Dealing In Alcoholic Beverages; and,
f)
WHEREAS, the Board finds and determines that there are increasing incidents of nudity in Public Places other than Establishments Dealing In Alcoholic Beverages and in other places readily visible to the public; and,
g)
WHEREAS, the Board finds and determines that Persons who choose to appear Nude in Public Places are engaging in conduct which often serves to impose their nudity on others who did not seek it out, who are not able to reasonably avoid observing it, and who may be offended or distressed thereby; and,
h) WHEREAS, appearing Nude in Public Places was a criminal offense at common law and was considered an act malum en se; and,
i)
WHEREAS, the Board desires to protect and preserve the unique character of St. Johns County as a family oriented, historic attraction for families, tourists and businesses; and,
j)
WHEREAS, the Board finds and determines that appearing Nude in Public Places is still contrary to the general societal disapproval that the people of St. Johns County have of persons appearing Nude among strangers in Public Places; and,
k)
WHEREAS, the Board finds and determines that the mere appearance of Persons in the Nude in Public Places generally increases incidents of prostitution, sexual assaults and batteries, attracts other criminal activity to the community, and encourages degradation of women and other activities which break down family structures; and,
l)
WHEREAS, the Board finds and determines that without regulation, public nudity constitutes harmful conduct and occurs in a manner which is incompatible with the normal primary activity of a particular place at a particular time; and,
m)
WHEREAS, the Board's sole intent in enacting this ordinance is to prohibit the conduct of being Nude in Public Places and to suppress the adverse secondary effects such nudity generates, the Board nevertheless recognizes that there may be instances wherein appearing Nude in a Public Place may be expressive conduct incidental to and a necessary part of the freedom of expression that is protected by United States or Florida constitutional provisions; and,
n)
WHEREAS, a requirement that dancers don opaque covering sufficient to cover the Buttocks and the Breasts as such portions of the human anatomy are defined in this ordinance does not deprive the dance of whatever erotic message, if any, it may convey, but simply makes such message, if any, slightly less graphic and imposes only an incidental limitation on the message; and,
o)
WHEREAS, it is the intent of the Board to protect and preserve the public health, safety, welfare and morals of St. Johns County by restricting, to the full extent allowed by the United States and Florida constitutions, the act of being Nude to places which are not frequented by the public and places which are not readily visible to the public; and,
p) WHEREAS, St. Johns County is essentially a rural-suburban community the largest municipality of which (the City of St. Augustine) has a population of less than 13,000 people; and,
q)
WHEREAS, St. Johns County is a county that is, and desires very much to continue to be, a community that contains and is known for traditional wholesome public recreation activities and historic facilities such as: the historic city of St. Augustine; the ocean beaches; the inland waterways; the golf Tournament Players Championship; the international headquarters and facilities of the Association of Tennis Professionals; and the future home of the PGA Tour Hall of Fame; and,
r)
WHEREAS, the Board finds and determines that the average person applying contemporary St. Johns County community standards would find that the public nudity prohibited by this ordinance, if allowed, when taken as a whole (i) appeals to the prurient interests and (ii) lacks serious literary, artistic, political, and scientific value; and,
s)
WHEREAS, non regulation of persons appearing nude in Public Places within St. Johns County encourages commercial Entities and other Entities and Persons to advertise outside of St. Johns County and the State of Florida by billboard, radio, print and other media the availability of nudity in Public Places within St. Johns County and thus encourages the influx into St. Johns County of Persons seeking (i) to observe and/or participate in such nudity and (ii) to participate in the disorderly, harmful, and illegal conduct that is associated therewith, thereby increasing injuries and damages to the citizens of this county who will be victims of such increased disorderly, harmful, and unlawful conduct; and,
t)
WHEREAS, competitive commercial advertising and/or exploitation of nudity encourages escalation of Nude and lewd conduct within the competing commercial establishments exploiting such conduct and thereby increases the adverse effects upon public order and the public health; and,
u)
WHEREAS, the Board finds and determines that the prohibitions contained herein are the most reasonable and minimal restrictions required so as to regulate conduct which is adverse to public order, health, morality, and decency within St. Johns County when such conduct takes place at locations where the public is present or is likely to be present, or where such conduct would be readily visible to the public; and,
v) WHEREAS, the passage of this ordinance is necessary to preserve the basic character of the unincorporated community of St. Johns County; and,
w) WHEREAS, the Board is aware that States may regulate the conduct of appearing Nude in Public Places, see Michael Barnes v. Glen Theatre, Inc. 115 L.Ed 2d 504, 111 S.Ct. 2456 (1991); and,
x) WHEREAS, the Board is not hereby prohibiting nudity in truly private places or prohibiting nudity which is protected by United States or Florida constitutional provisions; and,
y)
WHEREAS, the Board finds and determines that the express exemption contained in Section 7(b)(ii) of this ordinance provides adequate protection to Persons who, without such express exemption, might otherwise be prevented or discouraged by the ordinance from exercising constitutionally protected rights; and,
z)
WHEREAS, although the Board is of the opinion that this ordinance is a general ordinance regulating conduct and is not an ordinance that affects the use of land as contemplated by Florida Statute 125.66, the Board does not wish to become sidetracked in lengthy and expensive litigation concerning procedural matters that are not relevant to the subject matter of this ordinance and has determined to enact this ordinance under the more conservative, expensive, and time consuming "affecting use of land" procedure as well as under the general procedure for ordinances that regulate conduct; and,
aa) WHEREAS, the Board finds and determines that this ordinance is consistent with its current comprehensive plan;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF ST. JOHNS COUNTY, FLORIDA, THAT:
Section 1. TITLE: This ordinance shall be known as the St. Johns County Public Nudity Ordinance.
Section 2.
INTENT: It is the intent of this ordinance to protect and preserve the health, safety, welfare, and morals of the citizens of St. Johns County by prohibiting a Person from intentionally or recklessly appearing or being Nude, or causing another Person to appear or be Nude, in a Public Place and in other places which may reasonably be expected to be observed by the public within the unincorporated areas of St. Johns County except:
a) When such Person appears Nude in a Place Provided Or Set Apart For Nudity provided (i) such Person is Nude for the sole purpose of performing the legal function(s) that is customarily intended to be performed
within such Place Provided Or Set Apart For Nudity and (ii) such Person is not Nude for the purpose of obtaining money or other financial gain for such Person or for another person or Entity, or;
b) When the
conduct of being Nude can not legally be prohibited by this ordinance (i) because it constitutes a part of a bona fide live communication, demonstration or performance by such Person wherein such nudity is expressive conduct
incidental to and necessary for the conveyance or communication of a genuine message or public expression and is not a guise or pretense utilized to exploit nudity for profit or commercial gain (see for instance Board of County
Commissioners vs. Dexterhouse, 348 So. 2d 916 (Fla. 2nd DCA 1977) and as such is protected by the United States or Florida Constitution or (ii) because it is otherwise protected by the United States or Florida Constitution.
It is the Board's further intention to accomplish those intents and purposes expressed by the Board in the "Whereas" provisions of this ordinance, each of which are incorporated by reference into this Section
2.
Section 3. DEFINITIONS: Capitalized terms, when used in this ordinance, shall have the followed meanings:
a. Alcoholic Beverages: All distilled spirits and all
beverages containing one-half of 1 percent or more alcohol by volume. The percentage of alcohol by volume shall be determined by measuring the volume of the standard ethyl alcohol in the beverage and comparing it with the
volume of the remainder of the ingredients as though said remainder ingredients were distilled water.
b. Breast: A portion of the human female mammary gland (commonly referred to as the female breast) including
the nipple and the areola (the darker colored area of the breast surrounding the nipple) and an outside area of such gland wherein such outside area is (i) reasonably compact and contiguous to the areola and (ii) contains at
least the nipple and the areola and 1/4 of the outside surface area of such gland.
c. Buttocks: (For a short general description see the last sentence of this subsection.) The area at the rear of the human body
(sometimes referred to as the glutaeus maximus) which lies between two imaginary straight lines running parallel to the ground when a person is standing, the first or top such line being 1/2 inch below the top of the vertical
cleavage of the nates (i.e., the prominence formed by the muscles running from the back of the hip to the back of the leg) and the second or bottom such line being 1/2 inch above the lowest point of the curvature of the fleshy
protuberance (sometimes referred to as the gluteal fold), and between two imaginary straight lines, one on each side of the body (the "outside line"), which outside lines are perpendicular to the ground and to the
horizontal lines described above and which perpendicular outside lines pass through the outermost point(s) at which each nate meets the outer side of each leg. Notwithstanding the above, Buttocks shall not include the leg, the
hamstring muscle below the gluteal fold, the tensor fasciae latae muscle or any of the above-described portion of the human body that is between either (i) the left inside perpendicular line and the left outside perpendicular
line or (ii) the right inside perpendicular line and the right outside perpendicular line. For the purpose of the previous sentence the left inside perpendicular line shall be an imaginary straight line on the left side of the
anus (i) that is perpendicular to the ground and to the horizontal lines described above and (ii) that is 1/3 of the distance from the anus to the left outside line, and the right inside perpendicular line shall be an imaginary
straight line on the right side of the anus (i) that is perpendicular to the ground and to the horizontal lines described above and (ii) that is 1/3 of the distance from the anus to the right outside line. (The above
description can generally be described as covering 1/3 of the buttocks centered over the cleavage for the length of the cleavage.)
d. Entity: Any proprietorship, partnership, corporation, association, business
trust, joint venture, joint-stock company or other for profit and/or not for profit organization.
e. Establishment Dealing In Alcoholic Beverages: Any business, commercial or other establishment (whether for
profit or not for profit and whether open to the public at large or where entrance is limited by cover charge or membership requirement) including those licensed by the State for sale and/or service of Alcoholic Beverages, and
any bottle club; hotel; motel; restaurant; night club, country club; cabaret; meeting facility utilized by any religious, social fraternal or similar organization; business, commercial or other establishment where a product or
article is sold, dispensed, served or provided with the knowledge, actual or implied, that the same will be, or is intended to be mixed, combined with or drunk in connection or combination with an Alcoholic Beverage on the
premises or curtilage of said business, commercial or other establishment; or business, commercial or other establishment where the consumption of Alcoholic Beverages is permitted. Premises, or portions thereof such as hotel
rooms, used solely as a private residence, whether permanent or temporary in nature, shall not be deemed to be an Establishment Dealing In Alcoholic Beverages.
f. Nude: Any Person insufficiently clothed in any
manner so that any of the following body parts are not entirely covered with a fully opaque covering:
(1) The male or female genitals, or
(2) The male or female pubic area, or
(3) The female Breast (see the last sentence in this subsection f), or
(4)
The Buttocks. Attire which is insufficient to comply with this requirement includes, but is not limited to, G-Strings, T-Backs, dental floss and thongs.
Body paint, body dyes, tattoos, liquid latex whether wet or dried,
and similar substances shall not be considered opaque covering. Each female Person may determine which 1/4 of her Breast surface area (see definition of Breast) contiguous to and containing the nipple and the areola is to be
covered.
g. Person: Any live human being aged ten years of age or older.
h. Places Provided Or Set Apart For Nudity: Shall mean enclosed single sex public restrooms, enclosed single sex functional
shower, locker and/or dressing room facilities, enclosed motel rooms and hotel rooms designed and intended for sleeping accommodations, doctor's offices, portions of hospitals, and similar places in which nudity or exposure is
necessarily and customarily expected outside of the home and the sphere of privacy constitutionally protected therein. This term shall not be deemed to include places where a person's conduct of being Nude is used for his or
her profit or where being Nude is used for the promotion of business or is otherwise commercially exploited.
i. Public Place: Any location frequented by the public, or where the public is present or likely to be
present, or where a person may reasonably be expected to be observed by members of the public. Public Places include, but are not limited to, streets, sidewalks, parks, beaches, business and commercial establishments (whether
for profit or not for profit and whether open to the public at large or where entrance is limited by a cover charge or membership requirement), bottle clubs, hotels, motels, restaurants, night clubs, country clubs, cabarets,
and meeting facilities utilized by any religious, social, fraternal or similar organization. Premises, or portions thereof such as hotel rooms, used solely as a private residence, whether permanent or temporary in nature shall
not be deemed to be a Public Place.
Section 4.
LEGISLATIVE FINDINGS: In addition and supplemental to the findings and determinations contained in the "Whereas" provisions of this ordinance which are incorporated by reference into this Section 4, it is hereby found by the Board, acting in its legislative capacity for the purpose of regulating the conduct of appearing Nude in Public Places and for the purpose of regulating nudity and other conduct in Establishments Dealing In Alcoholic Beverages, that, considering what has happened in other communities, the acts prohibited in Section 5 hereinbelow encourage or create the potential for the conduct of prostitution, attempted rape, rape, and assault in and around Establishments Dealing In Alcoholic Beverages; that actual and simulated nudity and sexual conduct, coupled with the consumption of Alcoholic Beverages in Public Places, begets and has the potential for begetting undesirable and unlawful behavior; that sexual, lewd, lascivious, and salacious conduct among patrons and employees within Establishments Dealing In Alcoholic Beverages results in violation of law and creates dangers to the health, safety, morals, and welfare of the public and those who engage in such conduct; and, it is the intent of section 5 of this ordinance to specifically prohibit nudity, gross sexuality and the simulation thereof in Establishments Dealing In Alcoholic Beverages.
Section 5.
NUDITY, SEXUAL CONDUCT PROHIBITED IN ESTABLISHMENTS DEALING IN ALCOHOLIC BEVERAGES: The following prohibitions and criteria shall apply within existing and/or newly created Establishments Dealing In Alcoholic Beverages and the curtilages thereof:
a. No person shall knowingly, intentionally or recklessly appear, or cause another person to appear, Nude or expose to public view his or her genitals, pubic area, vulva, or Buttocks, or any simulation
thereof;
b. No female person shall knowingly, intentionally or recklessly expose, or cause another female person to expose her Breasts or any simulation thereof to public view;
c. No person or Entity
maintaining, owning, or operating an Establishment Dealing In Alcoholic Beverages shall encourage, allow or permit any person to appear Nude or to expose to public view his or her genitals, pubic area, vulva, anus, or any
portion of the Buttocks or simulation thereof. This section shall be violated if any portion of the Buttocks is visible from any vantage point.
d. No person or Entity maintaining, owning, or operating an
Establishment Dealing In Alcoholic Beverages shall encourage, allow or permit any female person to expose her Breasts or any simulation thereof to public view;
e. No person shall engage in and no person or Entity
maintaining, owning, or operating an Establishment Dealing In Alcoholic Beverages shall encourage, allow or permit any sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, lap dancing, straddle
dancing, any sexual act which is prohibited by law, touching, caressing, or fondling of the breasts, buttocks, anus, or genitals, or the simulation thereof.
f. The prohibitions of this Section 5 shall not apply
when a person appears Nude in a Place Provided Or Set Apart For Nudity provided (i) such person is Nude for the sole purpose of performing the legal function(s) that is customarily intended to be performed within such Place
Provided Or Set Apart For Nudity and (ii) such person is not Nude for the purpose of obtaining money or other financial gain for such person or for another person or Entity.
g. Each female person may determine
which 1/4 of her Breast surface area (see definition of Breast) contiguous to and containing the areola is to be covered.
h. This Section 5 shall not be deemed to address photographs, movies, video presentations,
or other non live performances.
Section 6.
NUDITY PROHIBITED IN PUBLIC PLACES: It shall be unlawful for any Person to knowingly, intentionally, or recklessly appear, or cause another Person to appear, Nude in a Public Place or in any other place which is readily visible to the public, except as provided in Section 7. It shall also be unlawful for any Person or Entity maintaining, owning, or operating any Public Place establishment to encourage, suffer or allow any Person to appear Nude in such Public Place, except as provided in Section 7.
Section 7. EXEMPTIONS: The prohibitions of Section 6 of this ordinance shall not apply:
a. When a Person appears Nude in a Place Provided Or Set Apart For Nudity provided
(i) such Person is Nude for the sole purpose of performing the legal function(s) that is customarily intended to be performed within such Place Provided Or Set Apart For Nudity and (ii) such Person is not Nude for the purpose
of obtaining money or other financial gain for such Person or for another person or Entity, or;
b. When the conduct of being Nude can not legally be prohibited by this ordinance (i) because it constitutes a part
of a bona fide live communication, demonstration or performance by a Person wherein such nudity is expressive conduct incidental to and necessary for the conveyance or communication of a genuine message or public expression and
is not a mere guise or pretense utilized to exploit the conduct of being Nude for profit or commercial gain (see for instance Board of County Commissioners vs. Dexterhouse, 348 So. 2d 916 (Fla. 2nd DCA 1977) and as such is
protected by the United States or Florida Constitution or (ii) because it is otherwise protected by the United States or Florida Constitution.
Section 8.
ENFORCEMENT AND PENALTIES: Any person or Entity violating any of the provisions of this ordinance shall be prosecuted in the same manner as misdemeanors are prosecuted. Such violations shall be prosecuted in the name of the State of Florida in a court having jurisdiction of misdemeanors by the prosecuting attorney thereof and, upon conviction shall be punished by a fine not to exceed $500 or by imprisonment in the County jail not to exceed 60 days or by both such fine and imprisonment. Each incident or separate occurrence of an act that violates this ordinance shall be deemed a separate offense.
Section 9.
INJUNCTIVE RELIEF: In addition to the procedures provided herein, Establishments Dealing In Alcoholic Beverages that are not in conformity with these requirements shall be subject to appropriate civil action in the court of appropriate jurisdiction for abatement.
Section 10. TERRITORY EMBRACED: All territory within the legal boundaries of unincorporated St. Johns County shall be embraced by the provisions of this ordinance.
Section 11. SEVERABILITY: If any section, subsection, sentence, clause, phrase, word or provision of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction,
whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this ordinance.
Section 12. INCLUSION IN THE CODE: It is the intention of the Board and it is hereby provided that the provisions of this ordinance shall be made a part of the St. Johns County Code;
that the sections of this ordinance may be renumbered or relettered to accomplish such intention; and that the word "ordinance" may be changed to "section," "article," or other appropriate
designation.
Section 13. In order to reduce controversy and provide widespread notice to the public, this ordinance shall be combined and compiled in and with the County's land
development code in addition to and with the county code of St. Johns County.
Section 14. EFFECTIVE DATE: This ordinance shall become effective immediately upon receipt by the Clerk of
the Board of notice that it has been filed with the Department of State.
PASSED AND ADOPTED by the Board of County Commissioners of St. Johns County, State of Florida this 21st day of April,
1992.
Effective date: May 01, 1992
BOARD OF COUNTY COMMISSIONERS
OF ST. JOHNS COUNTY, FLORIDA
BY: Fred Bishop
Its Chairman
ATTEST: CARL "BUD" MARKEL, Its Clerk
Ordinance Book 11 Pages 400-420
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Upheld by the U. S. Supreme Court in 1996
Café 207, Inc. v. St. Johns County
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ORDINANCE 93-33
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF
ST. JOHNS, STATE OF FLORIDA, AMENDING ORDINANCE N. 92-12 WHICH IS THE ORDINANCE KNOWN AS THE ST. JOHNS COUNTY PUBLIC NUDITY ORDINANCE. THIS ORDINANCE CLARIFIES THAT A MOTHER MAY BREASTFEED HER BABY IN PUBLIC AS ALLOWED BY
FLORIDA STATUTE 383.015; AND PROVIDES AN EFFECTIVE DATE.
WHEREAS, the Florida Legislature recently created Florida Statute 383.015 which provides that a mother may breast feed her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether the nipple of the mother's breast is uncovered during or incidental to the breast feeding.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF ST. JOHNS COUNTY, FLORIDA, as follows:
Section 1. The St. Johns County Public Nudity Ordinance (Ordinance 92-12) is hereby amended by adding the following Section thereto:
Section 15. Notwithstanding any other provision of this ordinance, a mother may
breast feed her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether the nipple of the mother's breast is uncovered during or incidental to the breast feeding.
Section 2. This Ordinance shall take effect immediately upon receipt of official acknowledgement by the Office of the Department of State to the Clerk of the Board of County Commissioners that same has been filed.
PASSED AND ENACTED by the Board of County Commissioners of St. Johns County, State of Florida this 27th day of July, 1993.
BOARD OF COUNTY COMMISSIONERS
OF ST. JOHNS COUNTY, FLORIDA
BY: Linda Balsavage
Its Chair
ATTEST: CARL "BUD" MARKEL, CLERK
Effective Date: August 6, 1993
Ordinance Book 12 Page 418
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