§ 10.5-88. Definitions.

[When used in this division, the following terms and phrases shall have the meanings respectively ascribed to them, unless context clearly indicates otherwise:]

Adult arcade : An establishment into which the public is permitted or invited where coin-operated, slug-operated, electronically-controlled, electrically-controlled, or mechanically-controlled still or motion picture machines, projectors or other image-producing devices are maintained to show images to five (5) or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.

Adult bookstore: An establishment which sells or rents adult material, unless the adult material is accessible only by employees and either the gross income from the sale or rental of adult material comprises less than ten (10) per cent of the gross income from the sale or rental of goods or services at the establishment, or the individual items of adult material offered for sale and/or rental comprise less than twenty-five (25) per cent of the individual items publicly displayed at the establishment as stock-in-trade in any of the following categories: books, magazines, periodicals, or other printed matter; photographs, films, motion pictures, video cassettes, slides, or other visual representations; or recordings or other audio matter. Any adult use activity other than the sale or rental of adult material shall preclude the establishment's qualifying solely as an adult bookstore and shall result in classification as other than an adult bookstore.

Adult material: Any one or more of the following, regardless of whether it is new or used:

1.

Books, magazines, periodicals, or other printed matter; paintings, drawings, or other publications or graphic media; photographs, films, motion pictures, video cassettes, disks, 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 photographic or modeling studio : Any business establishment which offers or advertises the use of its premises for the purpose of photographing or exhibiting specified sexual activities or specified anatomical areas or the modeling of apparel that exhibits specified anatomical areas. The fact that the business offers other services or types of photography or modeling shall not preclude the business from complying with the provisions of this division.

Adult theater : An enclosed building or an enclosed space within a building or an open-air area used for presenting either filmed or live plays, dances, or other performances, either by individuals or groups, distinguished or characterized by an emphasis on material depicting, describing, or relating to specified sexual activities or anatomical areas for observation by patrons therein. An establishment which has an adult arcade is considered to be an adult theater.

Adult use establishment : Adult use establishment shall be defined to include the terms adult arcade, adult bookstore, adult theater, special cabarets, physical culture establishments, and adult photographic and modeling studios including any business establishment whose primary business is dependent upon the activities relating to specified sexual activities or specified anatomical areas as defined in this division.

Applicant : Any business entity or person that has applied for an adult use permit or license.

Board : The board of county commissioners of Polk County, Florida.

Board of adjustment. The Polk County Board of Adjustment created pursuant to the Polk County Land Development Code.

Business entity : Any and all persons, natural or artificial, including any individual, firm, corporation, or association operating or proposed to operate 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. Business entity includes any enterprise or venture in which a person sells, buys, exchanges, barters, deals, or represents the dealing in any thing or article of value or renders services for compensation.

Certification of compliance/noncompliance : A notice issued by the division of development services indicating to an applicant that the location proposed for an adult use complies or does not comply with the locational requirements of this division.

Child care facility : Any establishment that provides, on a regular basis, supervision and care for more than five (5) children unrelated to the operator for a period of less than twenty-four (24) hours a day and which receives a payment, fee, or grants for any of the children receiving care, wherever operated, and whether or not operated for profit. The following are not included: public schools and nonpublic schools which are in compliance with the compulsory school attendance law, Chapter 232, Florida Statutes; summer camps having children in fulltime residence; summer day camps; bible schools normally conducted during vacation periods. The term child care facility includes kindergartens, nurseries, nursery schools, day care centers, and day nurseries.

Church/synagogue : Tax-exempt premises or site used for nonprofit purposes by a legally established sect for purpose of worship.

Conviction : A determination of guilt resulting from a plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.

Department/division : The sheriff's office and Polk County government's departments and divisions, including development services, planning, and codes compliance, including the respective director, employees, officers, and agents thereof.

Employee : A person who works, performs, or provides services in connection with an adult use establishment, irrespective of whether said person is paid a salary or wage, or is an independent contractor, provided such person has a substantial or consistent relationship with the business of or entertainment/services provided by the adult use. "Employee" includes, but is not limited to, performers, managers and assistant managers, stockpersons, tellers, operators, and doormen.

Establishment : A site or premises, or portion thereof, upon which certain adult use activities or operations are conducted.

Establishment or commencement of business : Establishment or commencement of business means and includes any of the following:

(1)

The opening or commencement of any adult use business as a new business;

(2)

The conversion of an existing business, whether or not an adult use business, to any adult use business;

(3)

The addition of any adult use business to any other existing adult use business; or

(4)

The relocation of any adult use business.

(5)

The continuation of an existing adult use business regardless of whether it is in compliance with the requirements of this division.

For purposes of determining the date of commencement of business under this division, evidence in the form of certified certificates of occupancy, affidavits, valid receipts, or business records may be utilized. Any decision regarding a given date of commencement may be appealed pursuant to the provisions of section 10.5-110 and, thereafter, section 10.5-131 of this division.

Land development code. The Polk County Land Development Code.

Licensee : Any person whose application for an adult entertainment establishment has been granted and who owns, possesses, operates, and controls the establishment.

Operator : 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, sales clerk, ticket taker, movie projectionist, employee involved in the adult entertainment activity, or supervisor. This term is not meant to include repairmen, janitorial personnel, or the like who are only indirectly involved in facilitating the operation of the adult use.

Person : Any and all persons, natural or artificial, including any individual, firm, corporation, association, or other legal entity.

Physical culture establishment : Any business establishment which offers, advertises, or performs massages, body rubs, or physical contact with specified anatomical areas, whether or not licensed. Business establishments which routinely provide medical services by state licensed medical practitioners, electrolysis treatment by licensed operators of electrolysis equipment, and massage by licensed massage therapists shall be excluded from the definition of adult physical culture establishments.

Public recreation area : Public land which has been designated for recreational activities, including nature trails, boating, picnicking, beaches, playgrounds, ballfields, basketball or tennis courts, open space, and wilderness areas.

School : A facility which is in compliance with the compulsory school attendance law, Chapter 232, Florida Statutes, and provides a curriculum of elementary or secondary academic instruction, including kindergartens, elementary schools, junior high schools, and high schools.

Special cabarets : Any bar; dance hall; restaurant; or other place of business which features dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers, or waiters or waitresses that engage in specified sexual activities or display specified anatomical areas; or any such business establishment, with advertising for, or a sign or signs identifying which use the words, "adult" "topless," "nude," "bottomless" or other words of similar import.

Specified anatomical areas :

(1)

The less than completely or opaquely covered:

a.

Human genitals or pubic region; or

b.

Cleavage of the human buttocks; or

c.

That portion of the human female breast below a point immediately above the top of the areola. 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, providing the areola is not so exposed.

(2)

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

Specified criminal act :

(1)

A violation or violations of this division sufficient to warrant suspension or revocation of an adult use license under section 10.5-103 or section 10.5-104;

(2)

An offense under Chapter 794, Florida Statutes (Sexual Battery);

(3)

An offense under Chapter 796, Florida Statutes (Prostitution);

(4)

An offense under Chapter 800, Florida Statutes (Lewdness; Indecent Exposure);

(5)

An offense under Chapter 826, Florida Statutes (Bigamy; Incest);

(6)

An offense under Chapter 847, Florida Statutes (Obscene Literature; Profanity); or

(7)

An offense under an analogous statute of a state other than Florida, or under an analogous ordinance of another county or city.

Specified sexual activity :

(1)

Human genitals in a state of sexual stimulation or arousal;

(2)

Acts of human masturbation, sexual intercourse, or sodomy, whether actual or simulated;

(3)

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

(4)

Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (3) of this definition.

Straddle dance : The use by an employee of an adult use establishment 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 such employee by a person while at the establishment. It shall be 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 a straddle dance regardless of whether the "touch" or "touching" is direct or through a medium.

(Ord. No. 92-25, § 4, 9-1-92; Ord. No. 01-05, § I, 2-13-01)