For those of you who are unaware, the City of Pompano Beach is in the process of amending their Adult Entertainment Code. The new legislation has several new provisions that affect adult entertainment.
The new ordinance has a definition for massage establishments which classifies a massage to be the manipulation of the superficial tissue of the body of another person with any portion of the torso, hand, leg, arm or elbow along with monetary consideration. Also, there is a new definition of sexual oriented business which includes massage establishments, adult bookstores and adult video stores along with all the traditional adult establishments and may include swinger clubs.
On the good side, it does lessen the distances required between alcohol beverage establishments and adult establishments along with lessening the distances between and adult establishments and residential uses, churches, schools, parks and other sexually oriented businesses.
On the bad side, there are other restrictive provisions as far as adult entertainment is concerned. The new ordinance requires that within two months of the effective date of the ordinance all sexually oriented businesses must apply and obtain from the City’s zoning director a written determination of lawful non-conforming use status. If at the end of two months period any non-conforming sexually oriented business has not made an application, the adult entertainment establishment that is a legal non-conforming use will lose that non-conforming use status i.e. grandfather status.
There are other provisions within the new ordinance that are two detailed to contain within this article, however, one of the most glaring provision is that “no sexually oriented business shall permit or maintain an enclosed room for use by any member of the public, other than restrooms and dressing rooms which are not viewable or accessible by patrons, unless each such room is greater than 500 total square feet inside. Current lawful existing sexual oriented businesses shall have one year from the date of the passage of this ordinance to make any and all modifications necessary for compliance with this section”. In essence, the City of Pompano Beach is now banning and outlawing private champagne rooms and private dance areas within an adult entertainment establishment.
For those of you who have questions as to whether or not your establishment in Pompano Beach is subjected to or at all affected by the new ordinance, most likely the answer is yes. In Pompano Beach, right now, adult establishments may only operate in a I-1X zone. Other than possibly one or maybe two establishments, none of the establishments in Pompano Beach that serve adult entertainment are in fact located in that zone. Therefore, almost all adult establishments will have to concern themselves with that sixty day time limit.
What is unique about this ordinance, is the fact that there was no need for it. Pompano Beach for years and years has had numerous adult entertainment establishments. These establishments have done a wonderful job of self policing and keeping crime rates and incidences of crime quite low. They have not caused adverse secondary effects and they have not been a haven for illicit activity. This ordinance is simply, a knee jerk reaction to a federal lawsuit that exposed that Pompano Beach had no justification for its previous distance separations of adult entertainment from bars, schools, residential areas, etc. Expect that this ordinance and subsequent law will be challenged in the future.
On another note, several years ago, two Palm Beach County Sheriff’s deputies were terminated from their employment because they were on their wives’ Internet adult site. The deputies sued in Federal court and were represented by Richard Rosenbaum and Daniel Aaronson. Unfortunately, the United States District Court Judge saw fit to dismiss the complaint, however, the terminated deputies have appealed that decision.
For those of you who are keeping abreast of this case, the Appellate Brief on behalf of the deputies has just been filed with the Eleventh Circuit Court of Appeals in Atlanta. The deputies’ cases have gotten significantly better as good law has come out of the Ninth Circuit Court of Appeals ruling that a police officer was wrongfully discharged because he allowed himself to be in an adult video. The Ninth Circuit Court of Appeals in essence ruled that his First Amendment rights were superior to the rights of his law enforcement agency to terminate him.
With this case in mind, we can only hope that the Eleventh Circuit will see fit to follow the rationale of the Ninth Circuit. Time will tell if that is the case. As always we will keep you informed of the outcome, regardless of that outcome.