§ 62-6102. Definitions.

The following words, terms and phrases, when used in this code, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning.

Adult establishment means a commercial physical contact parlor operated for commercial or pecuniary gain, regardless of whether such establishment is licensed under this code. "Operated for commercial or pecuniary gain" shall not depend upon actual profit or loss. An establishment which has a business tax receipt or an establishment which advertises itself as a type of adult establishment shall be presumed to be "operated for commercial or pecuniary gain". An establishment with an adult license shall be presumed to be an adult establishment.

Board of county commissioners or board means the Board of County Commissioners of Brevard County, Florida.

Commercial physical contact

(1)

Shall mean to manipulate, wash, scrub, stroke, or touch, for commercial or pecuniary gain, another person's body tissues directly or indirectly (through a medium using any object, instrument, substance, or device.)

(2)

Exception: It is an affirmative defense to an alleged violation of this code regarding engaging in commercial physical contact or operating a commercial physical contact parlor if the alleged violator, business, or establishment can establish membership in one of the following classes of persons or businesses and the activity alleged to be commercial physical contact is part of the bona fide practice of the profession or business of the person, which overlaps into the field regulated by this code:

a.

Persons licensed as a massage therapist or apprentice massage therapist pursuant to Chapter 480, Florida Statutes, if providing massage services only in a massage establishment licensed under Chapter 480 of the Florida Statutes.

b.

Persons licensed under the laws of Florida to practice medicine, surgery, osteopathy, chiropody, naturopathy, or podiatry, or persons licensed as a physician's assistant or holding a drugless practitioner's certificate.

c.

Registered nurses under the laws of Florida.

d.

Barbers or beauticians licensed under the laws of Florida.

e.

Cosmetologists licensed under the laws of Florida.

f.

Persons performing services in any hospital, nursing home or sanitarium licensed under the laws of Florida.

g.

Instructors, coaches, or athletic trainers employed by, or on behalf of any bona fide professional, Olympic, or sanctioned amateur athletic team, governmental entity, or any bona fide state, county, or private educational institution.

h.

Physical therapists licensed under the laws of Florida.

Commercial or pecuniary gain: Operated for commercial or pecuniary gain shall be presumed for any establishment which has received a business tax receipt. For the purposes of this Code, operation for commercial or pecuniary gain shall not depend on actual profit or loss. An establishment which has a business tax receipt or an establishment which advertises itself as a type of adult establishment shall be presumed to be "operated for commercial or pecuniary gain."

Commercial physical contact parlor means a business, establishment, or place operated for commercial or pecuniary gain, where any worker engages in commercial physical contact, or any business or establishment for which any portion is set aside, advertised, or promoted as a place where commercial physical contact occurs or as a "leisure spa," "body scrub salon," or as "relaxation salon."

Conviction means a determination of guilt resulting from a plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.

Customer means any person at an establishment, excluding an employee or operator, who does any of the following:

(1)

Is present at an establishment, regardless of whether that person has actually given any consideration or spent any money for goods or services; or

(2)

Has paid, or has offered, agreed, been solicited, or had someone else offer or agree on that person's behalf to, pay any consideration, fee, or tip to an operator or worker of an adult establishment.

Department means the building department, public safety/fire and rescue services division, health department, sheriffs department, zoning department, or tax collector/business tax receipt department, including the respective director, workers, officers and agents thereof.

Law enforcement officer means an officer who is on official duty for a law enforcement agency including, but not limited to, the sheriff's office of county.

Licensee means any person, partnership, or corporation whose application for an adult establishment has been granted and who owns, operates or controls the establishment.

Nudity means to display or expose at an adult establishment less than completely and opaquely covered:

(1)

Human genitals or pubic region,

(2)

The cleavage of the human buttocks, or

(3)

The areola or nipple of the human female breast.

Operator means any person who engages in or performs any activity necessary to, or which facilitates, the operation of a commercial physical contact parlor, including but not limited to, the licensee, manager, owner, doorman, bouncer, sales clerk, ticket taker, dispatcher, receptionist, attendant, or supervisor. An "operator" may also be a "worker."

Sexual gratification means the engaging in or committing of an act of sexual intercourse, oral-genital contact, masturbation, or the touching of the covered or uncovered sexual organ, pubic region, buttock, breast, chest or inner thigh of a person, any of which is for the purpose of arousing or gratifying the sexual desire of another person.

Sexually oriented business means a commercial physical contact parlor regardless of whether such business is licensed under this ordinance.

Sexual stimulation means either to excite or arouse the prurient interest or to offer, propose, solicit or suggest to provide an act of sexual gratification to a customer, including but not limited to all conversations, statements, advertisements and acts which would lead a reasonable person to conclude that an act of sexual gratification was to be provided.

Sheriff's office or sheriff means the Sheriff of Brevard County, Florida.

Specified anatomical areas means:

(1)

Less than completely and opaquely covered:

a.

Human genitals or pubic region; or

b.

Any part of the human buttocks; or

c.

That portion of the human female breast encompassed within an area falling below the horizontal line one would have to draw to intersect a point immediately above the top of the areola (the colored ring around the nipple). This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel, provided the areola is not so exposed.

(2)

Human male genitals in a discernibly erect or turgid state, even if completely and opaquely covered.

(3)

Any simulation of the above.

Specified criminal act means:

(1)

A violation of division 5 of this commercial physical contact parlor adult code; or

(2)

Any offense under the following chapters of the Florida Statutes: Chapter 794 regarding sexual battery, Chapter 796 regarding prostitution, Chapter 800 regarding lewdness and indecent exposure, and Chapter 847 regarding obscene literature; or

(3)

An offense under a statute of a state other than Florida, or an ordinance of another county or city other than Brevard County which is comparable to a violation listed in subsection (1) or (2) above.

Specified sexual activity shall mean:

(1)

Human genitals in a state of sexual stimulation, arousal, erection or tumescence; or

(2)

Fondling or other erotic touching of human genitals, pubic region, buttock, anus or female breast; or

(3)

Acts of human anilingus, bestiality, buggery, cunnilingus, coprophagy, coprophilia, fellation, flagellation, masochism, masturbation, necrophilia, pederasty, pedophilia, sadism, sadomasochism, sapphism, sexual intercourse, sodomy, or urolagnia; zooerasty or

(4)

Excretory functions as part of or in connection with any of the activities set forth in subsection (1) above.

Worker means a person who works, performs, or provides services in or for an adult establishment, irrespective of whether said person is paid a salary or wage and shall include, but is not limited to, any employee, independent contractor, sub-contractor, lessee, or sublessee who works or performs at an adult establishment. A "worker" may also be an "operator."

(Ord. No. 01-26, § 5, 5-22-01; Ord. No. 2007-003, § 33, 2-20-07)