Florida city council approves public nudity law on first reading

Tuesday, November 3, 1998

The Pensacola, Fla., City Council recently approved unanimously on first reading a public nudity ordinance that would prohibit sexual conduct and public nudity except in certain limited circumstances.

Dan Caton, Pensacola city attorney, told freedomforum.org that the public nudity ordinance was prompted by a neighborhood group’s objections to a topless bar opening near a residential area.

The council approved the measure — called the “City of Pensacola Public Nudity Ordinance” — last Thursday. Lynne Snee, assistant to the city manager, told freedomforum.org that the council had scheduled a second reading, which is required for final adoption, for Nov. 12. If the measure passes second reading, it becomes law.

The proposed ordinance would forbid any person from engaging in or any business operator from permitting “any sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, lap dancing, straddle dancing, any sexual act which is prohibited by law, touching, caressing, or fondling of the breasts, anus or genitals or the stimulation thereof” in a public setting.

The measure would also make it unlawful for anyone to knowingly, intentionally or recklessly appear nude or cause someone else to appear nude publicly.

The measure would exempt nudity that occurs as part of a so-called “bona fide live communication, demonstration or performance by a person wherein such nudity is expressive conduct incidental to and necessary for the conveyance or communication of a genuine message or public expression and is not a mere guise or pretense utilized to exploit the conduct of being nude for profit or commercial gain.”

Michael Kahn, special counsel to the city of Pensacola and the author of the proposed ordinance, says the exemption was placed in the law because “some ordinances in the past have run afoul of the Constitution when they ban nudity in a theatrical performance like Hair.”

“This ordinance will not ban nudity that has serious artistic value,” he told freedomforum.org.

However, Steven Mason, an Orlando attorney who specializes in adult business litigation, questions what exactly is a “bona-fide communication.”

“This term ‘bona-fide communication’ is too broad and vague,” he said. “The government should not be allowed to selectively pick and choose which performances are acceptable and which are not. If that’s not First Amendment discrimination, I don’t know what is.”

Caton says the city is engaging in a three-part process to address problems associated with adult entertainment. After the public nudity ordinance, the council will next consider a regulatory ordinance.

Kahn — who has drafted similar ordinances for Melbourne, Malabar, Palm Springs and Brevard County — says a regulatory ordinance will be introduced sometime later this month. That regulation, Kahn says, will set time, place and manner restrictions on adult entertainment establishments.

The third and final part of the process, according to Caton, will be a zoning ordinance, which he says will limit adult businesses to certain areas of the city.

The public nudity measure provides that “the City of Pensacola’s sole intent in enacting this ordinance is to prohibit the conduct of being nude in public places and to suppress the adverse secondary effects such nudity generates.”

Kahn says that the secondary effects doctrine justifies the ordinance and ensures that it will not infringe on First Amendment freedoms. The Pensacola proposal cites a variety of harmful, secondary effects to which unregulated public nudity and sexual conduct may lead, including:

  • An increase in “an undesirable number of transients.”
  • Neighborhood blight.
  • Lower real property values.
  • Increased criminal activity, including prostitution, rape and drug use.

Kahn said he has already distributed at least four studies that show the negative secondary effects associated with adult businesses in Indianapolis, St. Paul, Minn., Phoenix and Houston. None of the studies is from the state of Florida.

In the 1985 decision City of Renton v. Playtime Theatres, Inc., the U.S. Supreme Court wrote: “The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.”

Mason said that “a lot of courts are falling in line with these boilerplate sentiments about secondary effects,” but the issue is a “long way from over.”

“At some point, the U.S. Supreme Court is going to have to step in and revisit the question of secondary effects, ” Mason said. “Some attorneys have shown that more crime occurs at local bars or convenience stores than at adult businesses. The lower courts have gone all over the place on this issue.”