Senate Bill sb2118er

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    2001 Legislature                 CS for SB 2118, 1st Engrossed



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  2         An act relating to educational facilities;

  3         amending s. 847.001, F.S.; adding and revising

  4         definitions; creating s. 847.0134, F.S.;

  5         prohibiting the location of adult entertainment

  6         establishments within a specified distance of a

  7         school; providing a criminal penalty; providing

  8         an exception; providing an effective date.

  9         WHEREAS, based upon the experience of other counties

10  and cities, and the personal observation of the legislators in

11  their own districts, the Legislature finds that adult

12  entertainment establishments cause adverse effects in and

13  around these establishments, and

14         WHEREAS, relevant studies demonstrate a significant

15  increase in crime in areas where adult entertainment

16  establishments are located, and

17         WHEREAS, the United States Supreme Court has recognized

18  the adverse secondary effects caused by adult entertainment

19  establishments in Renton v. Playtime Theatres, 475 U.S. 41

20  (1986) and Eric v. Pap's, 529 U.S. 277 (2000); and

21         WHEREAS, prohibiting adult entertainment establishments

22  that show or exhibit material obscene or harmful to minors

23  near public or private elementary, middle, or secondary

24  schools will protect minors from the adverse effects of the

25  activities that accompany such establishments, and

26         WHEREAS, the Legislature does not intend to impinge on

27  the rights of free speech by limiting the location of these

28  establishments away from schools where minors will be present,

29  NOW, THEREFORE,

30

31  Be It Enacted by the Legislature of the State of Florida:


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    2001 Legislature                 CS for SB 2118, 1st Engrossed



  1         Section 1.  Section 847.001, Florida Statutes, is

  2  amended to read:

  3         847.001  Definitions.--When used in this chapter:

  4         (1)  "Adult" means a person 18 years of age or older.

  5         (2)  "Adult entertainment establishment" means the

  6  following terms as defined:

  7         (a)  "Adult bookstore" means any corporation,

  8  partnership, or business of any kind which restricts or

  9  purports to restrict admission only to adults, which has as

10  part of its stock books, magazines, other periodicals, videos,

11  discs, or other graphic media and which offers, sells,

12  provides, or rents for a fee any sexually oriented material.

13         (b)  "Adult theater" means an enclosed building or an

14  enclosed space within a building used for presenting either

15  films, live plays, dances, or other performances that are

16  distinguished or characterized by an emphasis on matter

17  depicting, describing, or relating to specific sexual

18  activities for observation by patrons, and which restricts or

19  purports to restrict admission only to adults.

20         (c)  "Unlicensed massage establishment" means any

21  business or enterprise that offers, sells, or provides, or

22  that holds itself out as offering, selling, or providing,

23  massages that include bathing, physical massage, rubbing,

24  kneading, anointing, stroking, manipulating, or other tactile

25  stimulation of the human body by either male or female

26  employees or attendants, by hand or by any electrical or

27  mechanical device, on or off the premises. The term

28  "unlicensed massage establishment" does not include an

29  establishment licensed under s. 480.43 which routinely

30  provides medical services by state-licensed health care

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    2001 Legislature                 CS for SB 2118, 1st Engrossed



  1  practitioners and massage therapists licensed under s.

  2  480.041.

  3         (d)  "Special Cabaret" means any business that features

  4  persons who engage in specific sexual activities for

  5  observation by patrons, and which restricts or purports to

  6  restrict admission only to adults.

  7         (3)(1)  "Computer" means an electronic, magnetic,

  8  optical, electrochemical, or other high-speed data processing

  9  device performing logical, arithmetic, or storage functions

10  and includes any data storage facility or communications

11  facility directly related to or operating in conjunction with

12  such device. The term also includes: any on-line service,

13  Internet service, or local bulletin board; any electronic

14  storage device, including a floppy disk or other magnetic

15  storage device; or any compact disc that has read-only memory

16  and the capacity to store audio, video, or written materials.

17         (4)(2)  "Deviate sexual intercourse" means sexual

18  conduct between persons not married to each other consisting

19  of contact between the penis and the anus, the mouth and the

20  penis, or the mouth and the vulva.

21         (5)(3)  "Harmful to minors" means that quality of any

22  description, exhibition, presentation, or representation, in

23  whatever form, of nudity, sexual conduct, or sexual excitement

24  when it:

25         (a)  Predominantly appeals to the prurient, shameful,

26  or morbid interest of minors;

27         (b)  Is patently offensive to prevailing standards in

28  the adult community as a whole with respect to what is

29  suitable material for minors; and

30         (c)  Taken as a whole, is without serious literary,

31  artistic, political, or scientific value for minors.


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    2001 Legislature                 CS for SB 2118, 1st Engrossed



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  2  A mother's breastfeeding of her baby is not under any

  3  circumstance "harmful to minors."

  4         (6)  "Masochism" means sexual gratification achieved by

  5  a person through, or the association of sexual activity with,

  6  submission or subjection to physical pain, suffering,

  7  humiliation, torture, or death.

  8         (7)(4)  "Minor" means any person under the age of 18

  9  years.

10         (8)(5)  "Nudity" means the showing of the human male or

11  female genitals, pubic area, or buttocks with less than a

12  fully opaque covering; or the showing of the female breast

13  with less than a fully opaque covering of any portion thereof

14  below the top of the nipple; or the depiction of covered male

15  genitals in a discernibly turgid state.  A mother's

16  breastfeeding of her baby does not under any circumstance

17  constitute "nudity," irrespective of whether or not the nipple

18  is covered during or incidental to feeding.

19         (9)(6)  "Person" includes individuals, firms,

20  associations, corporations, and all other groups and

21  combinations.

22         (10)(7)  "Obscene" means the status of material which:

23         (a)  The average person, applying contemporary

24  community standards, would find, taken as a whole, appeals to

25  the prurient interest;

26         (b)  Depicts or describes, in a patently offensive way,

27  sexual conduct as specifically defined herein; and

28         (c)  Taken as a whole, lacks serious literary,

29  artistic, political, or scientific value.

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    2001 Legislature                 CS for SB 2118, 1st Engrossed



  1  A mother's breastfeeding of her baby is not under any

  2  circumstance "obscene."

  3         (11)  "Sadism" means sexual gratification achieved

  4  through, or the association of sexual activity with, the

  5  infliction of physical pain, suffering, humiliation, torture,

  6  or death upon another person or an animal.

  7         (12)(8)  "Sadomasochistic abuse" means flagellation or

  8  torture by or upon a person or animal, or the condition of

  9  being fettered, bound, or otherwise physically restrained, for

10  the purpose of deriving sexual satisfaction, or satisfaction

11  brought about as a result of sadistic violence, from

12  inflicting harm on another or receiving such harm oneself.

13         (13)(9)  "Sexual battery" means oral, anal, or vaginal

14  penetration by, or union with, the sexual organ of another or

15  the anal or vaginal penetration of another by any other

16  object; however, "sexual battery" does not include an act done

17  for a bona fide medical purpose.

18         (14)(10)  "Sexual bestiality" means any sexual act,

19  actual or simulated, between a person and an animal involving

20  the sex organ of the one and the mouth, anus, or vagina of the

21  other.

22         (15)(11)  "Sexual conduct" means actual or simulated

23  sexual intercourse, deviate sexual intercourse, sexual

24  bestiality, masturbation, or sadomasochistic abuse; actual

25  lewd exhibition of the genitals; actual physical contact with

26  a person's clothed or unclothed genitals, pubic area,

27  buttocks, or, if such person is a female, breast; or any act

28  or conduct which constitutes sexual battery or simulates that

29  sexual battery is being or will be committed.  A mother's

30  breastfeeding of her baby does not under any circumstance

31  constitute "sexual conduct."


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    2001 Legislature                 CS for SB 2118, 1st Engrossed



  1         (16)(12)  "Sexual excitement" means the condition of

  2  the human male or female genitals when in a state of sexual

  3  stimulation or arousal.

  4         (17)  "Sexually oriented material" means any book,

  5  article, magazine, publication, or written matter of any kind

  6  or any drawing, etching, painting, photograph, motion picture

  7  film, or sound recording that depicts sexual activity, actual

  8  or simulated, involving human beings or human beings and

  9  animals, that exhibits uncovered human genitals or the pubic

10  region in a lewd or lascivious manner, or that exhibits human

11  male genitals in a discernibly turgid state, even if

12  completely and opaquely covered.

13         (18)(13)  "Simulated" means the explicit depiction of

14  conduct described in subsection (15) (11) which creates the

15  appearance of such conduct and which exhibits any uncovered

16  portion of the breasts, genitals, or buttocks.

17         (19)  "Specific sexual activities" includes the

18  following sexual activities and the exhibition of the

19  following anatomical areas:

20         (a)  Human genitals in the state of sexual stimulation

21  or arousal.

22         (b)  Acts of human masturbation, sexual intercourse,

23  sodomy, cunnilingus, fellatio, or any excretory function, or

24  representation thereof.

25         (c)  The fondling or erotic touching of human genitals,

26  the pubic region, the buttocks, or the female breasts.

27         (d)  Less than completely and opaquely covered:

28         1.  Human genitals or the pubic region.

29         2.  Buttocks.

30         3.  Female breasts below the top of the areola.

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    2001 Legislature                 CS for SB 2118, 1st Engrossed



  1         4.  Human male genitals in a discernably turgid state,

  2  even if completely and opaquely covered.

  3         Section 2.  Section 847.0134, Florida Statutes, is

  4  created to read:

  5         847.0134  Prohibition of adult entertainment

  6  establishment that displays, sells, or distributes materials

  7  harmful to minors within 2,500 feet of a school.--

  8         (1)  Except for those establishments that are legally

  9  operating or have been granted a permit from a local

10  government to operate as  adult entertainment establishments

11  on or before July 1, 2001, an adult entertainment

12  establishment that sells, rents, loans, distributes,

13  transmits, shows, or exhibits any obscene material, as

14  described in s. 847.0133, or presents live entertainment or a

15  motion picture, slide, or other exhibit that, in whole or in

16  part, depicts nudity, sexual conduct, sexual excitement,

17  sexual battery, sexual bestiality, or sadomasochistic abuse

18  and that is harmful to minors, as described in s. 847.001, may

19  not be located within 2,500 feet of the real property that

20  comprises a public or private elementary school, middle

21  school, or secondary school unless the county or municipality

22  approves the location under proceedings as provided in s.

23  125.66(4) for counties or s. 166.041(3)(