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HomeMy WebLinkAboutO-09132ORDINANCE NO. 9 1 :3 2 AN EMERGENCY ORDINANCE REPEALING IN ITS ENTIRETY ORDINANCE NO. 8758, ADOPTED FEB- RUARY 23, 1978, WHICH ESTABLISHED CHAPTER 66 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, PROVIDING FOR THE LICENSING AND REGULATION OF ADULT MOTION PICTURE THEATRES, ADULT BOOK STORES AND ESCORT SERVICES BY SUBSTI- TUTING THEREFOR A REVISED CHAPTER 66 REGULATING THE SAME SUBJECT MATTER WITH THE EXCEPTION OF ESCORT SERVICES WHICH HAS BEEN DELETED THEREFROM, SAID REVISED CHAPTER CONTAINING PROVISIONS WHICH MODIFY THE LICENSE APPLICATION PROCEDURES FOR ADULT MOTION PICTURE THEATRES AND ADULT BOOK STORES; CONTAINING A REPEALER PROVISION AND A SEVERABILITY CLAUSE. WHEREAS, the City of Miami wishes to establish suffi- cient guidelines specifically outlining those grounds for issuing, revoking and suspending a license under this ordinance and to sufficiently indicate to the City Manager and any licensee what conduct may result in a revocation, suspension or failure to issue a license; and WHEREAS, the City of Miami is aware that vesting unfet- tered discretion in any official to suspend, revoke, or fail to issue or reissue adult motion picture theatre or adult bookstore licenses directly threatens the exercise of expres- sion guaranteed by the First Amendment of the United States Constitution; NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. Ordinance No. 8758, adopted February 230 1978, which established a new Chapter 66 of the Code of the City of Miami, Florida, providing for the licensing and regulation of adult motion picture theatres, adult bookstores and escort services is hereby repealed in its entirety by deleting all references to escort services and the following is substituted in its place and stead: "Chapter 66. Adult Motion Picture Theatres, Adult Book- stores, Licensing and Regulation. Section 1. Definitions "Adult motion picture theatres", and "adult bookstores" are those theatres or stores which have a substantial or significant trade, exhibition or portion of stock in films or printed matter which are distinguished or characterized by their emphasis on matter depicting, describing or relat- ing to specified sexual activates or specified anatomical areas, or are those theatres or stores which offer films or printed material to adults only on a regular basis. Such businesses are basically licensed by the City of Miami under the following classification contained in Section 30-28 of this Code: motion picture shows, theatres, coin operated picture -sound machines, books, magazines, periodi- cals, newspapers, or news dealers (wholesale or retail). "Adult motion picture theatre licenses" and "adult book- store licenses" are licenses issued by the License Division, Department of Finance, designated by: (1) the basic license classifications contained in Section 30-28 of this Code such as: motion picture show, theatre, coin operated soundless midget picture machine, coin operated picture -sound machine, book, magazine, periodical, newspaper, or news dealer (wholesale or retail); and (2) the additional designations of adult motion picture theatre, or adult bookstore. -2- rT' 9132 Ilk /70 00 "Adults" are persons 18 years of age or older. The term "conviction" shall include an adjudication of guilt or a plea of guilty or nolo contendere. For the purpose of this ordinance, "specified sexual activities" is defined as: Acts of human masturbation, sexual intercourse or sodomy. Fondling or other erotic touching of human genitals, pubic region, buttock or female breast. For the purpose of this ordinance, "specified anatomical areas" is defined as: Less than completely and opaquely covered: (a) human genitals, pubic region, (b) buttock, (c) female breast below a point immediately above the top of the areola; and (d) human male genitals in a discernibly turgid state, even if completely and opaquely covered. Section 2. Qualifications for the issuance of licenses for adult motion picture theatres or adult bookstores. (1) In addition to any other statutory, code or ordinance provision, issuance of licenses to operate adult motion picture theatres or adult bookstores shall be subject to the following information being furnished: (a) Will the applicant be selling, lending, giving away, distributing, transmitting, showing, or having in his possession, custody or control, with the intent to do such acts, any books, magazines, motion picture films or other materials that are obscene, lewd, lascivious, filthy or indecent as defined by Florida Statute 847.011 as written or construed? -3- r 91 3 2 pill (b) Any individual, partnership or corporation desiring to engage in the business of operating an adult bookstore or adult motion picture theatre shall file with the Director of the Building and Zoning Inspection Department a sworn application on forms supplied by the Director of the Finance Department. The application shall contain the following information: (1) if the applicant is: (i) an individual, his name, or (ii) a partnership, the full name of the partnership and the names of all the partners, whether general or limited, or (iii) a corporation, the exact corporate name and state of incorporation and the names of all the e officers, directors and principal stockholders; (2) if the business is to be conducted under another name than that of the applicant, the business name and the county of registration under Section 865.09, Florida Statutes; (3) whether any of the individuals listed pursuant to Section 2(1)(b)(1) hereof or whether the appli- cant has had his license under the provisions of this ordi- nance previously revoked or has been a partner in a partner- ship or an officer, director or principal stockholder of a corporation whose license under the provisions of this ordi- nance has previously been revoked; (4) the classification of the license for which the application is being filed; (5) whether the applicant holds any other licenses in the classification for which the application is being filed and, if so, the number and locations of such licensed premises; (6) the proposed location of the premises; and (7) the names of the employees, if known, or, if presently unknown or there will be no employees, a statement -4- r,' 9132 OP A Ji to that effect. If the applicant is a partnership or a cor- poration, the application will be accompanied by the following documents: (i) if the applicant is a partnership, the partnership instrument or a certified copy thereof; or (ii) if the applicant is a corporation, the articles of incorporation and all amendments thereto and the certificate of incorporation, or certified copies thereof. (8) The application will contain, or have attached to it a plan drawn to appropriate scale of the pro- posed licensed premises indicating the areas to be covered by the license, all windows, doors, entrances and exits and the fixed structural features of the proposed licensed premises. The term "fixed structural features" shall include walls, immov- able partitions, projection booths, admission booths, conces- sion booths or stands, immovable counters and similar struc- tures that are intended to be permanent. For the purpose of this Section, "principal stockholder" means any individual, partnership or corporation that owns or controls, legally or beneficially, ten percent or more of a corporation's capital stock, and includes the officers, direc- tors and principal stockholders of a corporation that is a principal under this chapter; provided, that if no stockholder of a corporation owns or controls, legally or beneficially, at least ten percent of the capital stock, all stockholders shall. be considered principal stockholders, and further provided, that if a corporation is registered with the Securities and Exchange Commission or pursuant to Chapter 517, Florida Statutes, and its stock is for sale to the general public, it shall not be considered to have any principal stockholders. (2) The only reasons for denial of an application are: (a) that the applicant indicates that he will be selling, lending, giving away, distributing, transmitting, -5- 913 Showing, or having in his possession, custody or control, with the intent to do such acts, any books, magazines, motion picture films or other materials that are obscene, lewd, lascivious, filthy or indecent as defined by Florida Statute 847.011 as written or construed; (b) that the applicant has materially misrepre- sented or failed to include the information mandated by this section of the ordinance; (c) that the the applicant, individual partner- ship or corporation desiring to engage in the business of operating an adult motion picture theatre or adult bookstore currently has a license under suspension or revocation pur- suant to Section 4 of this ordinance; (d) that the applicant, individual, partnership or corporation desiring to engage in the business of operat- ing an adult motion picture theatre or adult bookstore has selected a proposed site that conflicts with Zoning Ordinance No. 8645 which defines certain regulated uses and proscribes their location in certain zones. The City Attorney shall notify the Director of the Finance Department as to whether the applicant complies with the provisions contained in Section 2(2)(b), (c) and (d) hereof. The Director of the Finance Department shall deny the application if the applicant does not comply with all of the above provisions. Section 3. Revocation and suspension of license. (1) Revocation of license. The City Manager shall revoke the license of any person, partnership or corporation holding a license under this chapter where it is determined by the City Manager, after a hearing, that: (a) the licensee has materially misrepresented or failed to include the information required by this chapter to be included in his license application form; -6- 9132 E2 U (b) the licensee, subsequent to being issued a license, has had a permanent injunction entered against said licensee enjoining, restraining and preventing the licensee from exhibiting or showing any motion picture film(s),book(s), magazine(s) or other material. that has been found to be obscene, lewd, lascivious, filthy or indecent pursuant to Florida Statute 847.011 as written or construed, after said material(s) have undergone an adversary judicial hearing as required by law; (c) the licensee, subsequent to being issued a license, has been convicted of, plead guilty to, or nolo contenders to a violation of a law of the State of Florida which affect:• the public health, welfare and safety and which conviction occurred as a part of the main business activity licensed and not merely incidental thereto; (d) The City Attorney or the Chief of Police shall notify in writing the City Manager forthwith of any violation of the enumerated grounds for revocation or suspension of a license contained in Section 3 hereof. Upon said notification, the City Manager shall schedule a hearing at least 10 days from but within 20 days of the date of such notification. The City Manager shall notify in writing, at least 5 days in advance, the licensee of the date, time and place of said hearing and the specific charges. At said hearing, the licensee shall be given the opportunity to be represented by an attorney, to make a record of the hearing by the use of a court reporter, to call witnesses, to present documentary evidence, and to otherwise properly present his position or defense. The City Manager shall enter his findings in writing within 20 days after said hearing with a copy being furnished to the licensee. A revocation under this ordinance shall extend for a period of 18 months, at which time a new application must be submitted. Said period of time shall begin to run from the date the revocation order is entered by the City Manager. - 7 - "`.. 13 2 (2) Suspension of license. The City Manager shall suspend the license of any person, partnership or corporation holding a license under this chapter where it is determined by the City Manager, after a hearing, that the licensee, subsequent to being issued a license, has had a temporary injunction or restraining order entered against the licensee enjoining, restraining and pre- venting the licensee from exhibiting or showing any motion picture(s), film(s), book(s), magazine(s) or other material that have been found to be obscene, lewd, lascivious, filthy or indecent pursuant to Florida Statute 847.011 as written or construed, after said material(s) have undergone a prior adversary judicial hearing as required by law. The procedure for the said hearing shall be the same as outlined in Section 3(1)(d) hereof. The City Manager shall enter his findings in writing within 10 days after said hearing with a copy being furnished to the licensee. A suspension under this ordinance shall extend from the date the suspension order is entered until the temporary injunc- tion or restraining order described above is dissolved, at which time the suspension order is automatically terminated. If the said temporary injunction or restraining order is made a permanent injunction, then the City Manager shall proceed as mandated by the revocation provisions of this ordinance. The City Attorney shall notify the City Manager within 30 days of the entry of the permanent injunction. Section 4. Noncompliance provisions. All adult motion picture theatres or adult bookstores must possess a license issued pursuant to this ordinance. Any individual, partnership or corporation violating Sec- tion 4 hereof shall be punished by a fine not to exceed Five Hundred Dollars ($500) or by imprisonment not to exceed six (6) months, or both such fine and imprisonment." 9132 In Section 2. All ordinances or parts of ordinances insofar as they are inconsistent or in conflict with the provisions of this ordinance are hereby repealed. Section 3. If any section, sentence, clause, phrase or word of this ordinance is for any reason held or dellared to be unconstitutional, inoperative or void, such holding or invalidity shall not affect the remaining portions of this ordinance, and it shall be construed to have been the intent of the City Commission to pass this ordinance without such unconstitutional, invalid, or inoperative part therein, and the remainder of this ordinance shall be deemed and held to be valid as if such parts had not been included therein. Section 4. This ordinance is hereby declared to be an emergency measure on the ground of urgent public need for the preservation of peace, health, safety and property in the City of Miami. Section 5. The requirement of reading this ordinance on two separate days is hereby dispensed with by a vote of not less than four -fifths of the members of the Commission. PASSED AND ADOPTED this 24th day of July, 1980. Maurice A. Ferre M A Y O R FRA ST:H G. ONGIE CLERK PREPARED AND APPROVED BY: rk - 14aAAIM. FRA K R. HARDER ASSISTANT CITY ATTORNEY APPROVED AS TO YOU AND CORRECTNESS: GECfRGE KNOX, JR. CITY A ORNEY -9- iw 91 3 2 VIew �. AND DAILY ilECOIID Published Daily except Saturday, Sunday an Legal Holidays Miami, Dade County, Florida. STATE OF FLORIDA COUNTY OF DADE Before the undersigned authority personally ap• peared Becky Caskey. who on oath says that she is the Assistant Director of Legal Advertising of the Miami Review and Daily Record, a daily (except Saturday, Sunday and Legal Holidays) newspaper. published at - Miami in Dade County, Florida; that the attached copy of advertisement, being a Legal Advertisement or Notice in the matter of CITY OF MIAMI 1; Re: Ordinance 9132 in the X. X. X .. Court, was published in said newspaper in the issues of July 30, 1980 Affiant further says that the said Miami Review and Daily Record is a newspaper published at Miami, in said Dade County. Florida, and that the said newspaper has heretofore been continuously published in said Dade County, Florida. each day (except Saturday, Sun- day and Legal Holidays) and has been entered as second class mail matter at the post office in Miami, in said Dade County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that she has neither paid nor promised any person, firm or corpora - lion any discount, rebate, commission or refund for the purpose of securing this advertisement for publication in the d newsy -- I to and st 30/.h((.�. E, "aU-,S v111V My Commission MY Commissionon �1q _ MR•e�• � ilea jrte this D. 19 . 8 0 1981. at _. CITY DAbE COU YLi ,Vivt',ti 17 iMmt, LEGAL. NOTICE � All Interested will take notice that on the ltth day of July 1960, the City Commission of Miami, Florida passed and adopted the following titled ordinance: ORDINANCE NO. 9132 AN ORDINANCIN ITS EN* NG T RETYERGENCY ORDINANCE NO. 8751EADOPTEDIFEBRUARY 23, 1978, WHICH ESTABLISHED CHAPTER 66OF THE CODE OF THE CITY OF MIAMI, FLORIDA, PROVIDING FOR THE LICENSING AND REGULATION OF ADULT MOTION PIC- TURE THEATRES, ADULT 1300K STORES AND ESCORT SERVICES BY SUBSTITUTING THEREFOR A REVISED CHAPTER "REGULATING THE SAME SUBJECT MATTER WITH THE EXCEPTION OF ESCORT SERVICES WHICH HAS BEEN DELETED THEREFROM, SAID REVISED CHAPTER CONTAINING PROVISIONS WHICH MODIFY THE LICENSE APPLICATION PROCEDURES FOR ADULT MOTION PICTURE THEATRES AND ADULT BOOK STORES; CONTAINING A REPEALER PROVISION AND A SEVERABILITY CLAUSE. RALPH , ONGIE CITY CLERK CITY OF MIAMI, FL ORIDA Publication of this Notice on the 30 day of July 1980. MOO-073038 7/30 - - — --- - - -