Sec. 26-188. - Application fee.
Sec. 26-189. - Qualifications of applicant.
Sec. 26-190. - Location compliance.
Sec. 26-191. - Investigation of application.
Sec. 26-193. - Annual permit fee.
Sec. 26-194. - Expiration of permit.
Sec. 26-195. - Transfer of permit.
Sec. 26-196. - Suspension of permit.
Sec. 26-197. - Revocation of permit.
Sec. 26-198. - Judicial review.
Secs. 26-200—26-225. - Reserved.
(a)
No sexually-oriented business shall be permitted to operate without a valid permit issued by the county community development services division for the particular type of business. It shall be unlawful and a person commits a misdemeanor if he operates or causes to be operated a sexually-oriented business without said permit.
(b)
The fact that a person possesses other types of state or county permits and/or licenses does not exempt him from the requirement of obtaining a sexually-oriented business permit.
(Ord. No. 91-83, § 6(a), (g))
(a)
An application for a permit required by this division must be made on a form provided by the county community development services division. Any person desiring to operate a sexually-oriented business shall file with the community development services division an original and two copies of a sworn permit application on the standard application form supplied by the community development services division administrator or his designee.
(b)
The completed application shall contain the following information and shall be accompanied by the following documents and information:
(1)
If the applicant is:
a.
An individual, the individual shall state his legal name and any aliases and submit satisfactory proof that he is 18 years of age;
b.
A partnership, the partnership shall state its complete name, and the names of all partners, whether the partnership is general or limited, and a copy of the partnership agreement, if any;
c.
A corporation, the corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing under state law, the names and capacity of all officers, directors and principal stockholders, and the name of the registered corporate agent and the address of the registered office for service of process.
(2)
If the applicant intends to operate the sexually-oriented business under a name other than that of the applicant, the sexually-oriented business's fictitious name and the county of registration under F.S. § 865.09.
(3)
Whether the applicant or any of the other individuals listed pursuant to subsection (b)(1) of this section has, within the five-year period immediately preceding the date of the application, been convicted of a specified criminal act, and, if so, the specified criminal act involved, the date of conviction and the place of conviction.
(4)
Whether the applicant or any of the other individuals pursuant to subsection (b)(1) of this section has had a previous permit under this division denied, suspended or revoked, including the name and location of the sexually-oriented business for which the permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation, and whether the applicant or any other individuals listed pursuant to subsection (b)(1) of this section has been a partner in a partnership or an officer, director or principal stockholder of a corporation that is permitted under this division whose permit has previously been denied, suspended or revoked, including the name and location of the sexually-oriented business for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revocation.
(5)
Whether the applicant or any other individual listed pursuant to subsection (b)(1) of this section holds any other permits under this article and, if so, the names and locations of such other permitted businesses.
(6)
The single classification of permit for which the applicant is filing. The applicant shall state the general nature of the type of sexually-oriented business for which the applicant is seeking a permit, including the degree to which the anticipated activities at the business meet the definitions of the enumerated sexually-oriented businesses at sections 26-152 and 26-156. Such a statement shall serve as the initial basis for the permitted activities allowed under any permit that is issued.
(7)
The location of the proposed sexually-oriented business, including a legal description of the property, street address, and telephone number, if any.
(8)
The applicant's mailing address and residential address.
(9)
A recent photograph of the applicant and of any person listed pursuant to subsection (b)(1) of this section.
(10)
The applicant's driver's permit number, Social Security number, and/or his state or federally issued tax identification number. The same information shall be provided for any person listed pursuant to subsection (b)(1) of this section.
(11)
A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but it must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. The sketch or diagram shall designate any portion of the premises in which patrons will not be permitted.
(12)
A current certificate and straight-line drawing prepared within 30 days prior to application by a state registered land surveyor depicting the property lines and the structures containing any established existing uses regulated by this article within 1,500 feet of the property to be certified; the property lines of any established church/synagogue, school, child care center or public recreation area within 1,000 feet of the property to be certified; and the property lines of any residentially zoned area within 500 feet of the property to be certified. For purposes of this section, a use shall be considered existing or established if it is in existence at the time an application is submitted.
(13)
If a person who wishes to operate a sexually-oriented business is an individual, he must sign the application for a permit as applicant. If a person who wishes to operate a sexually-oriented business is other than an individual, each individual who has a ten percent or greater interest in the business must sign the application for a permit as applicant. If a corporation is listed as owner of a sexually-oriented business or as the entity which wishes to operate such a business, each individual having a ten percent or greater interest in the corporation must sign the application for a permit as applicant.
(14)
If a person wishes to operate a sexually-oriented business which shall exhibit on the premises films, videocassettes, or other video reproductions which depict specified sexual activities or specified anatomical areas, then said person shall comply with the application requirements stated at section 26-163(a).
(15)
The names of the employees for the proposed sexually-oriented business, if known, or, if presently unknown, a statement to that effect.
(c)
Applicants for a permit under this section shall have a continuing duty to promptly supplement application information required by this section in the event that said information changes in any way from what is stated on the application. The failure to comply with said continuing duty within 30 days from the date of such change, by supplementing the application on file with the division administrator or his designee, shall be grounds for suspension of a permit.
(d)
In the event that the community development services division administrator or his designee determines or learns at any time that the applicant has not properly completed the application for a proposed sexually-oriented business, he shall promptly notify the applicant of such fact and allow the applicant ten days to properly complete the application. The time period for granting or denying a permit shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.
(e)
By applying for a permit under this division, the applicant shall be deemed to have consented to the provisions of this article and to the exercise by the community development services division administrator, or his designee, the sheriff's office and all other county agencies or state or municipal agencies or officers charged with enforcing the laws, ordinances and codes applicable in the county of their respective responsibilities under this article.
(Ord. No. 91-83, § 6(c)—(f), (k))
Sec. 26-188. - Application fee.
(a)
The applicant under this division shall be required to pay a nonrefundable application fee of $250.00 at the time of filing an application under this division if the location of the proposed sexually-oriented business is in the unincorporated area of the county. The applicant shall pay the fee to the division.
(b)
The nonrefundable application fee shall be $300.00 if the location of the sexually-oriented business is in either the municipality of the City of Naples or Everglades City. If the $300.00 fee is required, the applicant shall pay the fee to the division and the division shall remit $150.00 to the applicable municipality.
(c)
All application fees shall be subject to modification by resolution of the board of county commissioners.
(Ord. No. 91-83, § 6(h))
Sec. 26-189. - Qualifications of applicant.
The applicant under this division must be qualified according to the provisions of this article and the premises must be inspected and found to be in compliance with the applicable jurisdiction's health, fire and building codes and laws.
(Ord. No. 91-83, § 6(g))
Sec. 26-190. - Location compliance.
Prior to obtaining an occupational license to operate any business defined in this article, and as part of any application for a permit under this division, the applicant shall obtain from the community development services division administrator or his designee a certification that the proposed location of such business complies with the locational requirements of section 26-161.
(Ord. No. 91-83, § 6(i))
Sec. 26-191. - Investigation of application.
(a)
Upon receipt of an application for a permit under this division properly filed with the county community development services division and upon payment of the nonrefundable application fee, the community development services division administrator, or his designee, shall immediately stamp the application as received and shall immediately thereafter send photocopies of the application to the sheriff's office and any other state, county or municipal agencies responsible for enforcement of health, fire and building codes and laws. Each department or agency shall promptly conduct an investigation of the applicant, application and the proposed sexually-oriented business in accordance with its responsibilities under law and as set forth in this article. Said investigation shall be completed within 20 days of receipt of the application by the community development services division administrator or his designee. At the conclusion of its investigation, each department or agency shall indicate on the photocopy of the application its approval or disapproval of the application, date it, sign it, and, in the event it disapproves, state the reasons therefor. The sheriff's office shall only be required to certify the FCIC/NCIC records request check mentioned at section 26-157(b). The sheriff's office shall not be required to approve or disapprove applications.
(b)
A department or agency shall disapprove an application if it finds that the proposed sexually-oriented business will be in violation of any provision of any statute, code, ordinance, regulation or other law in effect in the county or applicable municipality. After its indication of approval or disapproval, each department or agency shall immediately return the photocopy of the application to the community development services division administrator or his designee.
(Ord. No. 91-83, § 7)
(a)
The community development services division administrator, or his designee, shall grant or deny an application for a permit under this division within 30 days from the date of its proper filing. Upon the expiration of the 30th day, the applicant may be permitted to begin operating the business for which the permit is sought, unless and until the community development services division administrator, or his designee, notifies the applicant of a denial of the application and states the reason for that denial. Nothing contained herein is intended to, or shall be construed to, exempt an applicant from compliance with all other applicable county, municipal, state and federal laws including, but not limited to, requirements to obtain a building permit, certificate of occupancy, occupational license or zoning approval.
(b)
Grant of application for permit.
(1)
The community development services division administrator, or his designee, shall grant the application unless one or more of the criteria set forth in subsection (c) of this section is present.
(2)
The permit, if granted, shall state on its face the name of the person to whom it is granted, the name of the business, the date of issuance, the expiration date, and the address of the sexually-oriented business. The permit shall also refer to F.S. § 800.03, with the warning that any sexually-oriented business, whether or not a permit has been issued for said business under this division, may be subject to said section's prohibition against public nudity pursuant to the United States Supreme Court decision in Barnes v. Glen Theatre, Inc., 501 U.S. ____________, 115 L. Ed. 2d 504, 111 S. Ct. 2456, 59 USLW 4745 (1991). The permit shall be posted in a conspicuous place at or near the entrance to the sexually-oriented business so that it can be easily read at any time.
(c)
Denial of application for permit.
(1)
The community development services division administrator, or his designee, shall deny the application for any of the following reasons:
a.
An applicant is under 18 years of age.
b.
An applicant or an applicant's spouse is overdue on his payment to the county or applicable municipality of taxes, fees, fines, or penalties assessed against him or imposed upon him in relation to a sexually-oriented business.
c.
An applicant is residing with a person who has been denied a permit by the county to operate a sexually-oriented business within the preceding 12 months, or residing with a person whose permit to operate a sexually-oriented business has been revoked within the preceding 12 months.
d.
An applicant has failed to provide information reasonably necessary for the issuance of the permit or has falsely answered a question or request for information on the application form.
e.
The premises to be used for the sexually-oriented business have not been approved as being in compliance with health, fire and building codes by the department or agency responsible under law for investigating said compliance.
f.
The application or permit fees required by this division have not been paid.
g.
An applicant of the proposed business is in violation of, or is not in compliance with, any of the provisions of this article.
h.
The granting of the application would violate a statute, ordinance, or court order.
i.
The applicant has a permit under this division which has been suspended or revoked.
j.
An applicant has been convicted of a specified criminal act for which:
1.
Less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
2.
Less than five years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a felony offense; or
3.
Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or a combination of misdemeanor offenses occurring within any 24-month period.
The fact that a conviction is being appealed shall have no effect on disqualification of the applicant. An applicant who has been convicted of a specified criminal act may qualify for a sexually-oriented business permit only when the time period required by this subsection has elapsed.
(2)
If the community development services division administrator, or his designee, denies the application, he shall notify the applicant of the denial and state the reason for the denial.
(3)
If a person applies for a permit for a particular location within a period of nine months from the date of denial of a previous application for a permit at the location, and there has not been an intervening change in the circumstances which could reasonably be expected to lead to a different decision regarding the former reasons for denial, the application shall be denied.
(Ord. No. 91-83, § 9)
Sec. 26-193. - Annual permit fee.
(a)
The annual nonrefundable fee for a sexually-oriented business permit shall be $250.00 if the location of said business is in the unincorporated area of the county. The permittee shall pay the fee to the division.
(b)
The annual nonrefundable fee for a sexually-oriented business permit shall be $350.00 if the location of said business is in either the municipality of the City of Naples or Everglades City. If the $350.00 fee is required, the permittee shall pay the fee to the division and the division shall remit $200.00 to the applicable municipality.
(c)
All annual permit fees shall be subject to modification by resolution of the board of county commissioners.
(Ord. No. 91-83, § 10)
Sec. 26-194. - Expiration of permit.
(a)
Each permit shall expire one year from the date of issuance and may be renewed only by making application as provided in this division (for renewals, a new survey, in addition to the survey originally filed shall not be required). Application for renewal shall be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the permit will not be affected.
(b)
When the community development services division administrator, or his designee, denies renewal of the permit, the applicant shall not be issued a permit under this division for one year from the date of denial. If, subsequent to denial, the community development services division administrator, or his designee, finds that the basis for denial of the renewal of the permit has been corrected, the applicant shall be granted a permit if at least 90 days have elapsed since the date denial became final.
(Ord. No. 91-83, § 12)
Sec. 26-195. - Transfer of permit.
(a)
A permittee shall not operate a sexually-oriented business under the authority of a permit at any place other than the address designated in the application for permit.
(b)
A permittee shall not transfer his permit to another person unless and until such other person satisfies the following requirements:
(1)
Obtains an amendment to the permit from the community development services division administrator, or his designee, which provides that he is now the permittee, which amendment may be obtained only if he has completed and properly filed an application with the community development services division administrator, or his designee, setting forth the information called for under this division in the application; and
(2)
Pays a transfer fee of 20 percent of the annual permit fee set by this division.
(c)
No permit may be transferred when the community development services division administrator or his designee has notified the permittee that suspension or revocation proceedings have been or will be brought against the permittee.
(d)
A permittee shall not transfer his permit to another location.
(e)
Any attempt to transfer a permit either directly or indirectly in violation of this section is hereby declared void and the permit shall be considered abandoned and shall automatically revert to the community development services division administrator.
(Ord. No. 91-83, § 16)
Sec. 26-196. - Suspension of permit.
The community development services division administrator, or his designee, shall suspend a permit for a period not to exceed 30 days if he determines that a permittee, or an employee of a permittee, has:
(1)
Violated or is not in compliance with any section of this article;
(2)
Engaged in excessive use of alcoholic beverages while on the sexually-oriented business premises;
(3)
Refused to allow an inspection of sexually-oriented business premises as authorized by this article;
(4)
Knowingly permitted gambling by any person on the sexually-oriented business premises;
(5)
Operated the sexually-oriented business in violation of a building, fire, health, or zoning statute, code, ordinance or regulation, whether federal, state or local, said determination being based on investigation by the division, department or agency charged with enforcing said rules or laws. In the event of such statute, code, ordinance or regulation violation, the community development services division administrator, or his designee, shall promptly notify the permittee of the violation and shall allow the permittee a seven-day period in which to correct the violation. If the permittee fails to correct the violation before the expiration of the seven-day period, the community development administrator, or his designee, shall forthwith suspend the permit and shall notify the permittee of the suspension. The suspension shall remain in effect until the violation of the statute, code, ordinance or regulation in question has been corrected; or
(6)
Engaged in a permit transfer contrary to this division. In the event that the community development services division administrator, or his designee, suspends a permit on the ground that a permittee engaged in a permit transfer contrary to this division, the administrator or his designee shall forthwith notify the permittee of the suspension. The suspension shall remain in effect until the administrator or his designee is satisfied that the requirements of this division have been met.
(Ord. No. 91-83, § 13)
Sec. 26-197. - Revocation of permit.
(a)
The community development services division administrator, or his designee, shall revoke a permit if a cause of suspension in section 26-196 occurs and the permit has been suspended within the preceding 12 months.
(b)
The community development services division administrator, or his designee, shall revoke a permit upon determining that:
(1)
A permittee gave false or misleading information in the material submitted during the application process;
(2)
A permittee or an employee has knowingly allowed possession, use or sale of controlled substances on the premises;
(3)
A permittee or an employee has knowingly allowed prostitution on the premises;
(4)
A permittee or an employee knowingly operated the sexually-oriented business during a period of time when the permittee's permit was suspended;
(5)
A permittee has been convicted of a specified criminal act for which the time period required in section 26-192 has not elapsed;
(6)
On two or more occasions within a 12-month period, a person committed an offense, occurring in or on the permitted premises, constituting a specified criminal act for which a conviction has been obtained, and the person was an employee of the sexually-oriented business at the time the offenses were committed. The fact that a conviction is being appealed shall have no effect on the revocation of the permit;
(7)
A permittee is delinquent in payment to the county, state, or any municipality within the county, for any taxes or fees past due; or
(8)
A permittee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or any other specified sexual activities to occur in or on the permitted premises.
(c)
When the community development services division administrator, or his designee, revokes a permit, the revocation shall continue for one year and the permittee shall not be issued a sexually-oriented business permit for one year from the date revocation became effective. If, subsequent to revocation, the community development services division administrator finds that the basis for revocation under subsection (7) of subsection (b) of this section has been corrected, the applicant shall be granted a permit if at least 90 days have elapsed since the date revocation became effective. If the permit was revoked under subsection (b)(5) of this section, an applicant may not be granted another permit until the number of years required under section 26-192 have elapsed.
(Ord. No. 91-83, § 14)
Sec. 26-198. - Judicial review.
After denial of an application for a permit under this division, or denial of a renewal of an application, or suspension or revocation of a permit, the applicant or permittee may seek prompt judicial review of such administrative action in the county circuit court. The administrative action shall be promptly reviewed by the court.
(Ord. No. 91-83, § 15)
By holding a permit under this division, the permittee shall be deemed to have consented to the provisions of this article and to the exercise by the division and all other county, federal, state and municipal departments, agencies, officers, agents and employees of their respective responsibilities under this article or other applicable laws.
(Ord. No. 91-83, § 30)