Ordinance 027-2002
ORDINANCE NO. 027 -2002
AN ORDINANCE AMENDING CHAPTER 9.5, MONROE COUNTY CODE
BY CREATING DNISION 17 AND SECTIONS 9.5-435 THROUGH 9.5-438,
MONROE COUNTY CODE, IN ORDER TO REGULATE THE POTENTIAL
ADVRSE SECONDARY EFFECTS OF SEXUALLY ORIENTED
BUSINESSES ON SURROUNDING LAND USES; PROVIDING FOR THE
SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES
INCONSISTENT HEREWITH; PROVIDING FOR THE INCORPORATION
INTO THE MONROE CODE; AND DIRECTING THE CLERK OF THE
BOARD TO FORWARD A CERTIFIED COpy OF THIS ORDINANCE TO
THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, during its regular meeting on November 21, 2001 the Board of County
Commissioners directed the Planning department to prepare a report on sexually oriented
businesses located within the unincorporated areas of the County; and
WHEREAS, the report, entitled "Recommendations for the Regulation of Adult Oriented
Businesses in Monroe County, Florida" found that sexually oriented businesses may have
negative secondary effects on surrounding land uses; and
WHEREAS, the Board reviewed the report and responded by directing Growth
Management staff to draft an amendment to the Land Development Regulations (LDRs) based
on the recommendations outlined in the report; and
WHEREAS, the intent of the Board is not to suppress expression protected by the First
Amendment, but rather to mitigate potential deleterious secondary impacts on sensitive surrounding
land uses by establishing reasonable land use restrictions for sexually oriented businesses that will
reduce the potential secondary impacts; and
WHEREAS, during a regularly scheduled meeting held on July 2, 2002, the
Development Review Committee conducted a review and consideration of the request by the
Planning and Environmental Resources Department to add Sections 9.5-435 through 9.5-438 of
the Land Development Regulations; and
WHEREAS, the Development Review Committee passed Resolution No. D12-02
recommending approval of the proposed text amendment; and
WHEREAS, during a regular meeting held on July 23, 2002, the Monroe County
Planning Commission conducted a public hearing on the proposed text and passed Resolution
No. P50-02 recommending approval of the proposed text amendment; and
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WHEREAS, The Monroe County Board of County Commissioners were presented with
the following information, which by reference is hereby incorporated as part of the record of said
hearing:
1. The Staff Report prepared on July 25,2002; by K. Marlene Conaway, Director, Planning and
Environmental Resources,
2. Proposed changes to the Monroe County Code,
3. The sworn testimony of the Growth Management Staff,
4. Comments by the public;
WHEREAS, the Monroe County Board of County Commissioners examined the
proposed amendments to the Monroe County Code submitted by the Monroe County Planning
Department at public hearings on August 21 S\ 2002, and October 16, 2002; and
WHEREAS, the Monroe County Board of County Commissioners makes the following
Findings of Fact based on the evidence presented:
1. The proposed regulation doe not intend to suppress expreSSIon protected by the First
Amendment, and
2. The proposed regulations will allow sexually oriented businesses to locate within
unincorporated Monroe County, and
3. The proposed regulations will protect sensitive land uses from the negative impacts which
may result from a sexually oriented business;
WHEREAS, the Monroe County Board of County Commissioners makes the following
Conclusions of Law based on the evidence presented:
1. The intent of the proposed regulations is to protect sensitive land uses from the deleterious
impacts which may result from a sexually oriented business, and
2. The proposed regulations do not preclude the operation of a sexually oriented business within
the unincorporated portion of Monroe County, and
3. Based on the Monroe County Year 2010 Comprehensive Plan, we find that the proposed
regulations are consistent with the other goals, objectives, and policies set forth in the plan;
and
WHEREAS, the Monroe County Board of County Commissioners hereby supports the
decision of the Monroe County Planning Commission and the staff of the Monroe County
Planning Department; and
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WHEREAS, it is the desire of the Monroe County Board of County Commissioners that
the following amendment to the Monroe County Code be approved, adopted and transmitted to
the state land planning agency for approval;
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA, THAT:
Section 1. Division 17, Sections 9.5-435 through 9.5-438 of Chapter 9.5, Monroe County
Code created that reads as follows:
DNISION 17. REGULATION OF SEXUALLY ORIENTED BUSINESSES
Section 9.5-435. Purpose and Intent
(a) It is the purpose of this section to regulate sexually oriented businesses as to promote the
health, safety, and general welfare of the citizens of Monroe County, and to establish reasonable
and uniform regulations to prevent the deleterious location and concentration of sexually
oriented businesses within the unincorporated area of the county. The provisions of this section
have neither the purpose or intent of imposing a limitation or restriction on the content of any
communicative materials, including sexually oriented materials, or other aspects of
constitutionally protected speech. It is not the intent of the county commission to legislate with
respect to matters of obscenity in this section, as those matters are regulated by federal and state
law, particularly, Chapters 800 and 847, Florida Statutes. Similarly, it is not the intent or effect
of this section to restrict or deny access by adults to sexually oriented materials protected by the
First Amendment or to deny the distributors and exhibitors of sexually oriented entertainment
access to their intended market. Neither is it the intent or effect of this section to condone or
legitimize the distribution of sexually oriented material.
Section 9.5-436. Definitions
For the purposes of this division, the terms and phrases listed below shall have the following
meanmgs:
(S-l) Sexually oriented bookstore shall mean:
An establishment that rents and/or sells sexually oriented materials in any form to the public and
meets anyone ofthe following three tests:
(a) the revenues from sexually oriented materials represent more than ten (10) percent of the
gross revenues of the establishment over the same period;
(b) twenty-five (25) percent or more of the stock-in-trade consists of sexually oriented materials;
(c) It advertises or recognizes itself in any forum as "XXX", "adult", "sex" or otherwise as a
sexually oriented business.
(S-2) Sexually oriented business shall mean:
Individually or in combination a sexually oriented book store, sexually oriented entertainment
establishment, or sexually oriented motion picture theater as defined herein, and any other
establishment whose employees display or expose specified anatomical areas as defined herein.
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(S-3) Sexually oriented entertainment establishment shall mean:
An establishment whose employees exhibit or display specific sexual activities or expose specified
anatomical areas while performing.
(S-4) Sexually oriented materials shall mean:
Books, magazines, periodicals, or other printed matter, or photographs, CD-ROMs or other
devices used to record computer images, films, motion pictures, video cassettes, digital video
disks (DVDs), slides or other visual representations or recordings which have as their primary or
dominant theme matter depicting, illustrating, describing or relating to specified sexual activities
or specified anatomical areas or instruments, devices or paraphernalia which are designed for use
in connection with specified sexual activities.
(S-5) Sexually oriented motion picture theater shall mean:
An establishment designed to permit the viewing of motion pictures and other film material which has
as its primary or dominant theme matters depicting, illustrating or relating to specified sexual activities
for observation by the patrons thereof
(S-6) Specified anatomical areas shall mean:
(a) Less than completely and opaquely covered: human genitals, pubic region, the human
buttocks, and female breast below a point immediately above the top ofthe areola; and/or
(b) Human male genitals in a discernibly turgid state, even if completely covered.
(S-7) Specified sexual activities shall mean:
Human genitals in a state of sexual stimulation or arousal or acts of human masturbation, sexual
intercourse, sodomy, bestiality, or fondling or other erotic touching of human genitals, pubic region,
buttocks, or female breast.
Section 9.5-437. Applicability
(a) Sexually oriented businesses shall be allowed in land use districts that permit commercial
development per Division 2 of this Chapter with the following restrictions:
(1) No sexually oriented business shall be located within five hundred (500) feet of the
property line of any property used for residential purposes.
(2) No sexually oriented business shall be located within five hundred (500) feet of any
property used as a place of worship, a public park, or a school.
(3) No sexually oriented business shall be located within five hundred (500) feet of another
sexually oriented business.
(4) Sexually oriented businesses shall opaquely cover each window or other opening through
which a person at the establishment may otherwise see inside the establishment.
(5) Signs for a sexually oriented business shall not depict specified anatomical areas or
specified sexual activities.
(b) For the purposes of Section 9.5-436(a) distances from properties shall be calculated by
straight line measurement from property line to property line, using the closest property lines
of the parcels of land involved.
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Section 9.5-438. Non-conforming uses
(a) A sexually oriented business lawfully operating as a conforming use is not rendered a
non-conforming use by the subsequent location of a resident, a property used as a place
of worship, a park, or a school within five-hundred (500) feet of it. This provision
applies only to a legally established sexually oriented business, not to any sexually
oriented business that had been terminated for any reason or discontinued for a period of
ninety (90) days or more subsequent to the location of the residential use, place of
worship, park or school.
(b) Amortization. Within one year of the effective date of this Ordinance, all eXIstmg
sexually oriented businesses shall conform to the provisions of this Division, or the use
shall be terminated.
Section 2. If any section, subsection, sentence, clause, item, change, or provision of
this ordinance is held invalid, the remainder of this ordinance shall not be affected by such
validity.
Section 3. All ordinances or parts of ordinances in conflict with this ordinance are
hereby repealed to the extent of said conflict.
Section 4. This ordinance shall be transmitted by the Planning Department to the
Department of Community Affairs to determine the consistency of this ordinance with the
Florida Statutes.
Section 5. This ordinance shall be filed in the Office of the Secretary of State of
Florida, but shall not become effective until a notice is issued by the Department of Community
Affairs or Administrative Commission approving the ordinance.
Section 6. The Director of Growth Management is hereby directed to forward a copy
of this ordinance to the Municipal Code Corporation for the incorporation in the Monroe County
Code of Ordinances once this ordinance is in effect.
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Initial
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida at a regular meeting held on the 16th day of October 2002.
Mayor Charles "Sonny" McCoy
Mayor Pro Tern Dixie Spehar
Commissioner Murray Nelson
Commissioner George Neugent
Commissioner Bert Jimenez
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BOARD OF COUNTY COMMISSIONERS
OF MONROE CO TY, FLORIDA
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ATtES:T: D~- ,." . KOLHAGE, CLERK
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BRANCH OFFICE
MARATHON SUB COURTHOUSE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL. (305) 289-6027
FAJ((305) 289-1745
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
MONROE COUNfY COURTHOUSE
500 WHITEHEAD STREET, SUITE 101
KEY WEST, FLORIDA 33040
TEL. (305) 292-3550
FAJ( (305) 295-3663
BRANCH OFFICE
PLANTATION KEY
GOVERNMENT CENTER
88820 OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAJ((305)852-7146
November 13,2002
Department of State, Bureau of Administrative Code
The Collins Building
107 West Gaines Street, Suite L43
Tallahassee, Florida 32399-0250
Dear Ms. Cloud:
Certified Mail Receipt #7002 2030 0001 26687521
Please be advised that at a Regular Meeting in formal session on October 16, 2002 the
Board of County Commissioners of Monroe County adopted Ordinance Nos. 025,026 and
027-2002, which are self-explanatory.
Attached hereto are certified copies of the subject Ordinances for your handling. Should
you have any questions concerning the above, please do not hesitate to contact this office.
Very truly yours,
Danny L. Kolhage
Clerk of Court and ex-officio Clerk to the
Board of County Commissioners
By:~~.C. &)6amfiaJ
Isabel C. DeSantis, Deputy Clerk
Cc: Municipal Code Corporation, Certified Mail Receipt #7002 2030 0001 2668 7798
Monroe County Commission
County Attorney
Public Works Director, Ordinance #026-2002
Growth Management Director, Ordinance #'s: 025 & 027-2002
Monroe County Sheriff, Ordinance #027-2002
File ~
DCA Final Order No.: DCA03-0R-015
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
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The Department of Community Affairs (the "Department") hereby issues it~ Final Oraer, Cl
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In re: MONROE COUNTY LAND DEVELOPMENT
REGULATIONS ADOPTED BY
MONROE COUNTY ORDINANCE NO. 027-2002
FINAL ORDER
pursuant to ~~ 380.05(6) and (11), Fla. Stat., and ~ 380.0552(9), Fla. Stat. (2002), approving a
land development regulation adopted by a local government within the Florida Keys Area of
Critical State Concern as set forth below.
FINDINGS OF FACT
1. The Florida Keys Area is a statutorily designated area of critical state concern, and
Monroe County is a local government within the Florida Keys Area.
2. On November 27, 2002, the Department received for review Monroe County
Ordinance No. 027-2002 which was adopted by the Monroe County Board of County
Commissioners on October 16,2002 ("Ord. 027-2002"). Ord. 027-2002 creates Division 17,
Sections 9.5-435 through 9.5-438 of the Monroe County Code to establish reasonable and
uniform regulations to prevent the deleterious location and concentration of sexually oriented
businesses within the unincorporated area of Monroe County.
3. Ord. 027-2002 is consistent with the County's 2010 Comprehensive Plan.
CONCLUSIONS OF LAW
4. The Department is required to approve or reject land development regulations that are
enacted, amended or rescinded by any local government in the Florida Keys Area of Critical
State Concern. ~~ 380.05(6) and (11), Fla. Stat., and ~ 380.0552(9), Fla. Stat. (2002).
5. Monroe County is a local government within the Florida Keys Area of Critical State
Concern. ~ 380.0552, Fla. Stat. (2002) and Rule 28-29.002 (superseding Chapter 27F-8), Fla.
Admin. Code.
6. "Land development regulations" include local zoning, subdivision, building and other
regulations controlling the development ofland. ~ 380.031(8), Fla. Stat. (2002). The
regulations adopted by Ord. 027-2002 are land development regulations.
7. All land development regulations enacted, amended or rescinded within an area of
critical state concern must be consistent with the Principles for Guiding Development (the
"Principles") as set forth in ~ 380.0552(7), Fla. Stat. See Rathkamp v. Department of
Community Affairs, 21 F.A.L.R. 1902 (Dec. 4, 1998), aff'd, 740 So. 2d 1209 (Fla. 3d DCA
1999). The Principles are construed as a whole and no specific provision is construed or applied
in isolation from the other provisions.
8. Ord. 027-2002 promotes and furthers the following Principles:
(a) To strengthen local government capabilities for managing land use and
development so that local government is able to achieve these objectives without
the continuation of the area of critical state concern designation.
(1) To protect the public health, safety, and welfare ofthe citizens of the Florida
Keys and maintain the Florida Keys as a unique Florida resource.
9. Ord. 027-2002 is not inconsistent with the remaining Principles. Ord. 027-2002 is
consistent with the Principles for Guiding Development as a whole.
WHEREFORE, IT IS ORDERED that Ord. 027-2002 is found to be consistent with the
Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is
hereby APPROVED.
This Order becomes effective 21 days after publication in the Florida Administrative
Weekly unless a petition is filed as described below.
2
DONE AND ORDERED in Tallahassee
NNY TIMMERMAN, DIRECTOR
Division of Community Planning
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
NOTICE OF ADMINISTRATIVE RIGHTS
ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS
ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING
PURSUANT TO SECTION 120.569, FLORIDA STATUTES, REGARDING THE AGENCY'S
ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF
MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE
PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A
FORMAL HEARING.
IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE
OF MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN THE
ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED
PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND
CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN
INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY
COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT
WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR
REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN
STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS
CHOSEN TO JUSTIFY ITS ACTION OR INACTION.
IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY
ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL
ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE
DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND
120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA
ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY
BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND
YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON
ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT
REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS,
AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER.
3
IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL
HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF
COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED, "PETITION FOR
ADMINISTRATIVE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION
OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY
CLERK, IN THE DEPARTMENT'S OFFICE OF GENERAL COUNSEL, 2555 SHUMARD
OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100.
THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28-
106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.201(2), FLORIDA ADMINISTRATIVE CODE.
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A
REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY
RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES
NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.
YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE
PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH
THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL
ORDER.
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with
the undersigned designated Agency Clerk, and that true aI?-gl~rrect copies have been furnished
to the persons listed below by the method indicated this J.:t: ~y of January, 2003.
Bv U.S. Mail:
Honorable Dixie Spehar
Mayor of Monroe County
500 Whitehead Street, Suite 102
Key West, Florida 33040
Danny L. Kolhage
Clerk to the Board of County Commissioners
500 Whitehead Street
Key West, Florida 33040
4
Timothy J. McGarry, AI CP
Director, Growth Management Division
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
By Hand Delivery or Interagency Mail:
Jim Quinn, Bureau of State Planning, DCA Tallahassee
Rebecca Jetton, DCA Florida Keys Field Office
Richard A. Lotspeich, Assistant General Counsel, DCA Tallahassee
5
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1. Article Addressed to: If YES,enter delivery address below: ❑ No
apartment of State
ureau of Administrative Code
he Collins Building
07 West Gaines Street, Suite L43 3. Se ice Type
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PS Form 38i11,'August'2001 ' Domestic Return Receipt 102595-02-M-1540
SENDER: COMPLET IS SECTION COMPLETE THIS SECT!•• ON DELIVERY
• Complete items 1,2--..rid 3.Also complete A. Si nat.re
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Certified Mail ❑ Express Mail
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4. Restricted Delivery?(Extra Fee) ❑Yes
2. Article Number
(Transfer f our'service*09171 0 0 j'•a.030, i lo O p; a,3.440 ;-ii' %
PS Form 3811,August 2001 Domestic Return Receipt
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