Full opinion text
ORDER ON MOTION FOR PRELIMINARY INJUNCTION PAINE, District Judge. This cause comes before the Court upon the Plaintiffs’ motions for preliminary injunction (DE 2 and DE 72), and upon the hearing held on such matter on October 3, 1989 at West Palm Beach. At the hearing, Mr. Mitchell Beers appeared for all of the Plaintiffs except for Plaintiff Phoenix Limited which was represented by Mr. Daniel Aronson. The Defendants were represented by Mr. Bob Banks, who was assisted by Lee Rosenthal and Clark Cone who represented Defendant Yaun. At the hearing the court granted Plaintiff Phoenix Limited’s Motion to Intervene (DE 72). Mr. Aronson assured the court that his client’s interests were adequately represented at the hearing and, therefore, this order is dispositive of all of the Plaintiffs’, including Phoenix Limited, motions for preliminary injunction. BACKGROUND On November 15, 1988, Palm Beach County adopted Palm Beach County Ordinances 88-31 and 88-32. Ordinance 88-31 includes regulations and licensing requirements for adult bookstores and theaters; ordinance 88-32 provides zoning requirements for adult entertainment establishments. At the onset the court noted that the likelihood of prevailing on the challenge to Palm Beach County Ordinance 88-32, the zoning ordinance, is unlikely in light of the Supreme Court’s approval of a similar zoning system regarding adult entertainment in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). In view of that case, there is no sound basis for an injunction against enforcement of Palm Beach County Ordinance 88-32. Therefore, the focus of the hearing was the challenge to Palm Beach County Ordinance 88-31, a copy of which is attached hereto. Specifically, the Plaintiffs allege: (1) the door removal requirement is a suppression of free-expression in violation of the First Amendment. (2) some of the definitions contained in Palm Beach County Ordinance 1(G) are vague and overbroad. (3) the application process and licensing requirements for adult establishments (contained in Palm Beach County Ordinance 88-31(11)) are underinclusive because non-adult bookstores are not subject to such rigid requirements. STANDARD OF REVIEW The following four elements must be proved by the Plaintiff in order to prevail on a motion for preliminary injunction: 1) irreparable injury unless an injunction is entered; 2) a substantial likelihood that the Plaintiff will prevail on the merits of the claim; 3) the threatened injury to the Plaintiff outweighs the threatened harm that an injunction may cause to the Defendant; 4) the granting of a preliminary injunction will not be adverse to public interest. Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983). Since the Defendant agreed for the purpose of the preliminary injunction that irreparable injury could be presumed, we will begin our analysis with the second prerequisite for a preliminary injunction, to wit: is there a substantial likelihood that the Plaintiff will prevail on the merits of the claim? LIKELIHOOD OF PREVAILING ON THE MERITS A. The Door Removal Requirement When speech and non-speech elements are combined, government regulation which restricts the time, place and manner of the exercise of First Amendment rights is sufficiently justified if it meets the following 4-prong test set out by the Supreme Court: [Wjhen “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms ... we think it clear that a government regulation is sufficiently justified [(1)] if it is within the constitutional power of the Government; [ (2) ] if it furthers an important or substantial governmental interest; [ (3) ] if the governmental interest is unrelated to the suppression of free expression; and [ (4) ] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) [numbering not in original] (hereafter O’Brien). More recently the Supreme Court declared that if an ordinance does not ban adult theaters altogether, it is properly analyzed as a form of time, place, and manner regulation. City of Renton v. Playtime Theatres Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (hereafter Renton). The court further held that such content-neutral time, place, and manner regulations are acceptable so long as they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication. Renton, 96 S.Ct. at 928. When determining the constitutionality of a statute, the court must look to the predominate concern of the legislature in regulating the ills produced by adult theaters; if the legislature targeted the legislation at the secondary effects rather than at the content of the film themselves, it is “more than adequate to establish that the city’s pursuit of its interests is unrelated to the suppression of free expression, and thus the ordinance is to be considered a content-neutral speech regulation.” Id. While the Defendant argues that these 2 tests are divergent, the court finds that in this case, the result under either of these tests is the same. The O’Brien test is to be applied when the activity/expression includes both elements of speech and non-speech, such as in the present case. The Renton test is to be used to determine if the enacted legislation which addresses such activity is content-neutral or intended to suppress free expression. We begin with the 4-prong O’Brien test. The first prong is easily satisfied. It is clearly within the constitutional power of Palm Beach County to enact and enforce regulations for the purpose of providing for the health, welfare, and safety of its residents. See Florida Statutes, Chapter 125 (County Government). The second prong under O’Brien is whether the legislation furthers an important or substantial government interest. This requires a closer look at the facts and data relied upon when enacting ordinance 88-31. While the actual record was not fully developed by the Defendant at the hearing on the preliminary injunction, the Defendant offered into evidence the items presented at the July 5, 1988 and November 15, 1988 meetings of the Palm Beach County Board of County Commissioners. The evidence was admitted without objection and the court considers those exhibits herein. The exhibits considered by the Board of County Commissioners include a Memo from the City Attorney reporting that members of the public and the Sheriff’s Department expressed concern regarding the sexual activities which occur within or in relation to adult entertainment establishments. Specifically, the Memo concludes that such activities contribute to the possible spread of contagious diseases. The Commissioners also considered the experiences of other communities and the solutions employed by them to curtail the possible spread of infection within adult-oriented establishments. Considering the experiences of other communities was specifically sanctioned by the Supreme Court in Renton, supra. The court finds the most interesting and, perhaps the most persuasive exhibit considered by the Board to be a letter apparently sent to owners of Adult Bookstores/Mini-Movies in Palm Beach County from Dale Tavris, M.D., M.P.H., the then Chief Epidemiologist of Palm Beach County and the present expert witness on behalf of the Plaintiff. In that undated letter, Dr. Tavris said that recent reports and conditions regarding these establishments have led the Palm Beach County Health Department to request cooperation to combat the epidemic spread of Acquired Immune Deficiency Syndrome (AIDS) in the community. Dr. Tavris concluded, “Your peep show establishment is a setting in which there is a high probability of the presence of persons with or suspected of being infected with the AIDS virus (HIV), which is significantly affecting the public health of our community. Therefore, any sexual activity on your premises between such patrons or others, increases the likelihood of the spread of the lethal disease AIDS, and thus, in our opinion, constitutes a major public health hazard.” After considering the evidence presented at the meetings, Palm Beach County Board of Commissioners could reasonably conclude that some video booth patrons would be more likely to engage in sexual activities with one another behind closed-door video booths than in open cubicles, visible from a common-aisle. In fact, the Plaintiff concedes and several Defense witnesses testified that semen has been found on the walls and floors, ceilings and video machinery inside these closed-door video booths. The Plaintiff admitted that the semen found inside the booths comes from patrons masturbating. However, they argue that there is no interactive sexual activity going on behind these closed doors. Although the court disagrees and finds that the likelihood of interactive sexual activity is increased by the possibility of closed-doors on the video booths, for the following reasons it is not necessary to employ this conclusion as a basis for the court’s decision. The Plaintiffs’ medical witness, Dr. Dale Tavris testified that there is only a slight possibility that AIDS and other diseases could be spread by masturbation or by ejaculated semen left exposed on the interior of the booths. The court finds this testimony to be credible but notes that even Dr. Tavris admits that there is a possibility, however slight, of such transmission and that the medical field does not use the word “impossible” when making predictions based on scientific testing and data. The Eleventh Circuit has held that a local government is not required to experience “actual deleterious effects before it can regulate” a social ill as the cause. International Food and Beverage Systems v. City of Fort Lauderdale, 794 F.2d 1520, 1527 (11th Cir.1986) (hereafter International Food). Therefore, the Board of Commissioners reasonably concluded that the possibility of casual sexual activity could create the danger of spreading AIDS and other sexually transmitted diseases. Finally, this court finds that Palm Beach County has a “substantial interest in ensuring sanitary, not just safe, public places.” Suburban Video, Inc. v. City of Delafield, 694 F.Supp. 585, 590 (E.D.Wis.1988). The above analysis satisfies the second prong under the O’Brien test and the court finds that the door removal requirement furthers an important and substantial governmental interest. The third prong of the O’Brien test requires that the government interest be unrelated to the suppression of free expression. In this case, just as in'the Renton case, the predominant concern of the legislature in regulating adult theaters was, not the content of the films themselves, but rather, the secondary effects of the closed-door video booths. As the Renton Court held, this is “more than adequate to establish that the [legislation] was unrelated to the suppression of free expression.” Renton, 106 S.Ct. at 929. The Plaintiff suggests that the legislature’s true intent is, not to curb the “secondary effects,” but rather to close the establishment and suppress the content of the films it offers for viewing. However, on its face the statute’s stated reasons are to combat the possible spread of disease and to control crime. The record does not support any intention to suppress the content of the films themselves. Ordinance 88-31 does not ban the showing of sexually explicit videos and in no way limits access to or availability of such videos. It merely regulates the manner in which the films can be viewed. Additionally, the court will not strike down otherwise constitutional legislation on the basis of a “speculated illicit legislative motive.” International Beverage, 794 F.2d at 1525, citing O'Brien, 88 S.Ct. at 1682. The Plaintiff further argues that even if the legislation is aimed at the secondary effects, the enforcement of the ordinance will result in a “chilling effect” on First Amendment Freedom to watch sexually explicit films. However, the chilling effect argument requires a factual basis upon which to conclude that First Amendment freedom would be thwarted. See Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1247 (9th Cir.1982) citing Laird v. Tatum, 408 U.S. 1, 12-16, 92 S.Ct. 2318, 2325-27, 33 L.Ed.2d 154 (1972). At the hearing Mr. Keoski, the Plaintiff-owner, testified that “some” of his customers told him that they would not pay to watch films in the booths if there were no doors on the video booths. This alone does not, in the opinion of this court, constitute a sound factual basis upon which the Court could conclude that the legislation will result in a chilling effect on protected First Amendment freedom. If anonymity is the alleged reason offered in favor of keeping the doors, this court is compelled to point out that Plaintiffs’ Exhibit # 1, a videotape of the 45th Street Bookstore and Movie-Video World showed that the store-front is on a busy street and, as the Plaintiff himself pointed out, across from a high-traffic shopping plaza. Therefore, anonymity is destroyed even before the patron entered the building and the court finds no merit to the anonymity argument. See Ellwest Stereo Theatres v. Wenner, 681 F.2d at 1247. Mr. Keoski also testified that he speculated that his business would diminish by 80 percent if Ordinance 88-31 is enforced. In International Food, supra, the Eleventh Circuit held that the First Amendment does not guarantee anyone profit; all it requires is that speech, expression, and ideas be allowed a physically adequate forum. Id. at 1526. The court finds that Ordinance 88-31 is unrelated to the suppression of free expression and, therefore, satisfies the 3rd prong of the O’Brien test. The final requirement under O’Brien is that the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of the governmental interest. In this case, the Plaintiff suggests that the goal of preventing sexually transmitted diseases could also be served by posting warning signs and ensuring that only one person enter a booth at a time. However, Deputy Sheriff Gerald King of the Sheriff’s Department and Mr Keoski himself testified that in the past there have been such signs posted in these establishments. In light of Deputy Sheriff King’s testimony that masturbation and possibly interactive sexual activity is still occurring inside these video booths, the court finds that these alternative means suggested by the Plaintiff have proved to be unsuccessful at curbing the potential for sexual activity in this public place. Additionally, even if the Plaintiff’s suggested alternatives proved to be successful at assuring one-person per booth and no interactive sexual activity, there still exists the probability that masturbation will occur inside these booths as it has in the past. As noted earlier, while there is only a slight possibility that contact with ejaculated semen could result in AIDS or other diseases, Palm Beach County is permitted to enact time/place/manner restrictions in an attempt to curtail the possibility of harm to the health of the community. As the Renton court noted, such restrictions are constitutional as long as “whatever evidence the county relied upon is believed to be relevant to the problem that the county addresses.” Renton, 106 S.Ct. at 931. The court is satisfied that the least restrictive means to prohibit masturbation and casual sexual conduct in video booths is to remove the doors of such booths so as to chill not the viewing of sexually explicit films, but the secondary ills associated with and threatened by masturbation and interactive sexual conduct in these public places. Under the O’Brien test, the court concludes that because of Palm Beach County’s substantial interest in assuring the safety and cleanliness of its public places as well as the health of its citizens; and because the ordinance is an appropriately narrow means of protecting this interest and condemns only the independent non-communicative impact of conduct within the reach of the Ordinance; and because the noncommunicative impact of masturbation and interactive sexual activity frustrate the County’s interest, a sufficient governmental interest has been shown to justify Palm Beach County Ordinance 88-31. Having determined that the legislation meets the O’Brien test for mixed speech and non-speech activity, we next apply the Renton test to determine if the legislation is, in fact, content-neutral as applied to the mixed-element activity. The first part of the Renton test is satisfied by the O’Brien analysis. The Court has determined that the ordinance does not ban adult theaters and is designed to serve a substantial governmental interest. The only Renton requirement left to satisfy, then, is that the legislation does not unreasonably limit alternative avenues of communication. Renton at 106 S.Ct. at 932. In the present case, Palm Beach Ordinance 88-31 does not attempt to inhibit the viewing of sexually explicit videos either in public video booths or by rental or purchase for viewing in the privacy of one’s own home. Additionally, it does not dictate what may or may not be shown and does not ban or limit the number of booths in one video store. Therefore, the court finds that the content-neutral time/place/manner regulation of protected First Amendment freedom does not unreasonably limit alternative avenues of communication. In fact, the court finds that one who wishes to view a sexually explicit film need not engage in any alternative avenue to do so because the video-booth option for viewing has not been banned by Ordinance 88-31. Video-booths remain an option for those who wish to exercise their First Amendment freedom to view such a film. The court is satisfied that those rights which are protected by the constitution are not infringed upon by the door removal requirement. Therefore, the court concludes under Renton that Palm Beach Ordinance 88-31 represents a valid government response to the serious problems created by video booths in adult theaters. Furthermore, the County has not used the police power to protect the health and welfare of the community as a pretext for suppressing expression but rather it has been used as a balance to address and combat the spread of contagious diseases such as AIDS. The balance is successful: Palm Beach County Ordinance 88-31 achieves the stated goals while also satisfying the dictates of the First Amendment. Therefore, regulation of the mixed-element activity by the enactment and enforcement of this content-neutral legislation meets both the O’Brien and the Renton tests set out by the Supreme Court. Finally, the federal courts have unanimously upheld the open-booth requirement and this court has found no cause to take exception. Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243 (9th Cir.1982); Wall Distributors, Inc., v. City of Newport News, 782 F.2d 1165 (4th Cir.1986); FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir.1988), cert. granted — U.S. -, 109 S.Ct. 1309, 103 L.Ed.2d 578 (1989); Berg v. Health & Hospital Corp of Marion County, 865 F.2d 797 (7th Cir. 1989); Broadway Books, Inc. v. Roberts, 642 F.Supp. 486 (E.D.Tenn.1986); Suburban Video, Inc. v. City of Delafield, 694 F.Supp. 585 (E.D.Wis.1988); Postscript Enterprises v. City of Bridgeton, 699 F.Supp. 1393 (E.D.Mo.1988). Having determined that the likelihood of prevailing on the merits of the open-door requirement is not substantial but rather unlikely, the court need not analyze the final balancing prerequisites for a preliminary injunction. There is no basis for issuing an injunction against the enforcement of the constitutional open-door provisions of Palm Beach County Ordinance 88-31. B. Definitions as Vague and Overbroad The Plaintiff challenges some of the definitions contained in Palm Beach County Ordinance Section 1(G) as being vague and overbroad. At the hearing on this motion the Plaintiff specifically challenged the definitions of adult bookstore (contained in 1(G)(2)); adult entertainment establishment (contained in 1(G)(5)); adult material (contained in 1(G)(6)); and operator (contained in I(G)(23)). As to the definitions of adult bookstore, adult entertainment establishment and adult material, the court finds that the Plaintiffs lack standing to challenge these as being vague and overbroad because they have, in fact, admitted that these same definitions are applicable to their establishments in this case. Where a Plaintiff has acknowledged that definitions are applicable to himself and his establishment, the definition is said to be sufficiently precise to leave the Plaintiff in no doubt about whether his actions are covered. Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Addressing the possible exception to the standing requirement for statutes purported to prohibit protected speech, the court said: “If the statute’s deterrent effect on legitimate expression is not ‘both real and substantial,’ and if the statute is ‘readily subject to a narrowing construction by state courts,’ see Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975), the litigant is not permitted to assert the right of the third parties." Id., 96 S.Ct. at 2447. This court has already found that Palm Beach County Ordinance 88-31 does not serve as a “real and substantial” deterrent effect on any legitimate expression. Furthermore, the statute meets the second part of the Young test as these challenged definitions are clear enough to be “readily subject to narrowing construction by state courts.” The Plaintiffs are not entitled to the exception to the standing requirement under Young and, therefore, they lack standing to challenge these definitions as being vague or overly broad. We next consider the definition of operator as challenged by the Plaintiffs. The Plaintiffs point out that employees of the adult bookstore are subject to criminal liability under Section (IV)(0) of the ordinance. The court finds that this is the intended effect of the statute and the definition is properly tailored to include these persons as operators. The argument that these persons are not managers and, therefore, cannot make managerial decisions is not persuasive as an argument that this definition is vague or overbroad. The ordinance clearly defines who is to be considered an operator. Therefore, the Plaintiffs’ employees are afforded fair notice of inclusion under this definition and they have adequate opportunity to adjust their own behavior accordingly so as to conform with the statute. The Plaintiffs further argue that the definition is vague and overbroad because it could implicate, inter alia, any person who is hired for the purposes of providing maintenance and repair work for the adult video store. The court finds that such an application is unlikely. Additionally, the vagueness prohibition is not meant to invalidate every enactment that could have been drafted with greater precision. Harper v. Lindsay, 616 F.2d 849, 857 (5th Cir.1980). In view of the foregoing, this court finds that the likelihood of prevailing on the merits of the challenge to Palm Beach County Ordinance Section (I)(G) is slim. Therefore, an injunction will not be issued against enforcement of this section of the ordinance. C. The Application Process and Licensing Requirements 1. Disclosure Requirements The Plaintiffs contend that there is no rational basis for the disclosure requirements of the application for a license found in Section (II)(C) of the ordinance. Further, they allege that non-adult bookstores need not conform with such extensive and intrusive disclosures and there is no reasonable relationship between the governmental interest of preventing the spread of diseases and the following disclosures required by Section (II)(C)(2): 1) Listing all the individuals involved in the partnership, limited or otherwise, and the legal names and dates of birth of all officers, directors, and principle stockholders of the corporations owning Plaintiffs’ business. 2) Whether the applicant or any other individuals listed (in the partnership, corporation, or otherwise), have ever been convicted of a specified criminal act, and if so, the specific criminal act, date of conviction, and place of conviction. 3) Whether the applicant or any other individual listed as indicated above (partnership corporation) have had a previous license under the code suspended or revoked, or whether the applicant has been a partner in a partnership, or officer, director, or principle stockholder in a corporation whose license under the code has been previously suspended or revoked. 4) The names of all employees, dates of birth, aliases. 5) Site plan and survey. 6) Floor Plans drawn to appropriate scale of the establishment including all windows, doors, entrances, all fixed structural interior features etc. The Plaintiffs argument that the above requirements are underinclusive because they do not apply to non-adult bookstores is not persuasive on this issue. The First Amendment does not prohibit the government from classifying adult-oriented establishments differently from other places even if First Amendment Rights are impacted by the classification. Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); City of Renton v. Playtime Theatre, supra. However, the court finds the Plaintiffs’ initial argument on this issue to be meritorious. The Defendant argues in opposition that the purpose of Ordinance 88-31 is not merely to regulate the transmission of AIDS but, rather, to serve as a comprehensive regulatory scheme to control the secondary effects of all adult entertainment establishments and to enforce the appropriate zoning ordinance. The Defendant urges that this is ample justification for the detailed disclosure requirements. The court does not agree. There is no governmental interest in determining the identity and personal history of limited partners and stockholders who are not involved in the adult establishment’s daily business. Additionally, the court finds no logical relation between the applicant’s, partner’s, or shareholder’s pri- or felony convictions and the stated purposes of the ordinance. Finally, the names of all employees, dates of birth and aliases used for the proposed establishment are also irrelevant to the stated purpose of the ordinance. In view of the foregoing, the disclosure requirements contained in (II)(C)(2)(b), (d) and (i) “invade Plaintiffs’ privacy without any legitimate justification [so] they are prohibited by the First and Fourteenth Amendments.” Genusa v. City of Peoria, 619 F.2d 1203, 1216 (7th Cir.1980). However, the Defendant has offered adequate justification for the disclosure requirement contained in (II)(C)(2)(e). This provision, which requires disclosure of the status of prior licenses under the ordinance, is intended to enforce section (II)(E)(4)(c) of the ordinance which provides for denial of a license application if the applicant has previously had his adult entertainment license suspended or revoked. The court finds that both of these provisions are reasonably related to the stated purpose and enforcement of the ordinance. Finally, the provisions requiring a site-plan, survey, and floor plan are also related to the governmental purpose in this case. Since licensure of an adult entertainment establishment requires inspection by the Building Division, the Public Health Unit, the Fire-Rescue, and the Sheriff, the requisite site-plan, survey and floor plan are necessary to determine, inter alia, if the establishment meets the requirements under the ordinance. Additionally, the disclosure of these plans is not unduly intrusive on the Plaintiffs as the ordinance merely requires disclosure of the physical features of their establishments — public places. The government could simply walk into the establishments to discover if the applicant has complied with the ordinance. In light of that fact, coupled with the fact that the government has a legitimate interest in enforcing this ordinance and the requirement of submission of these plans is reasonably related to such interest, these disclosure requirements are held to be constitutional. 2. License Fees The Plaintiff also challenges the annual license fee of eight-hundred dollars plus forty dollars per adult video booth (contained in Section 11(G)(6) of the ordinance). The court is satisfied that these fees are reasonably related to the cost of expenses expected to be incurred when administering and implementing the application and licensing scheme of the ordinance. The statute itself states that the licensing fees are “regulatory fees collected for the purpose of examination and periodic inspection of Adult Entertainment Establishments.” {See Section (II)(G)(6)(f)). The court agrees that this ordinance and application process require a good deal of effort on the part of the government agencies to administer and enforce. Therefore, the licensing fee is reasonably related to the government’s legitimate interest in enforcing this ordinance. BALANCING Having determined that there is a substantial likelihood of prevailing on the merits of the challenge to Palm Beach County Ordinance Section (II)(C)(2)(b), (II)(C)(2)(d), and (II)(C)(2)(i), we must continue the analysis to determine if all four prerequisites for a preliminary injunction are satisfied. The third prerequisite which the Plaintiff must prove to prevail on a motion for preliminary injunction is that the threatened injury to the Plaintiff outweighs the threatened harm that an injunction may cause to the Defendant. The court finds that the threatened injury to the Plaintiffs if they comply with Section (II)(C)(2)(b), (d), and (i) of the ordinance is great since it is this very disclosure of requested information that they seek to thwart. Once the information is disclosed, any subsequent success on the merits will be meaningless to the Plaintiffs since the Defendant would already have the requested information. On the other hand, the threatened harm to the defendant is slight since the requested information is not necessary to the successful enforcement of the ordinance. PUBLIC INTEREST The granting of a preliminary injunction against enforcement of Section (II)(C)(2)(b), (d), and (i) will not be adverse to public interest. The remainder of the ordinance would remain in full force and effect and this section is not critical to achieve the desired purpose of the ordinance. SEVERABILITY The Supreme Court has held that a statute is presumed divisible where the legislature provides that the invalidity of any section shall not affect the validity of others. Williams v. Standard Oil Co. of Louisiana, 278 U.S. 235, 49 S.Ct. 115, 73 L.Ed. 287 (1929). Palm Beach County Ordinance 88-31(V)(A), Section 4 entitled “Severability” declares that if any part of this code is held to be unconstitutional or invalid, it shall be severable from the other parts of the code; the remaining portions and provisions shall remain in full force and effect. Additionally, the law of this Circuit obligates this court to sustain the constitutionality of an ordinance whenever possible by severing invalid clauses and permitting the remainder of the act to stand. Scheinberg v. Smith, 659 F.2d 476, 481 (5th Cir. Unit B. 1981). Therefore, in view of the foregoing, it is ORDERED and ADJUDGED that the Motion for Preliminary Injunction as it applies to the open-door requirement of Palm Beach County Ordinance 88-31 is DENIED because the requirement that the doors be removed is constitutional. Further, it is ORDERED and ADJUDGED that the Motion for Preliminary Injunction as it applies to Definitions contained in Palm Beach County Ordinance 88 — 31(I)(G) is DENIED as the court finds that these definitions pass constitutional muster. Additionally, it is ORDERED and ADJUDGED that the Motion for Preliminary Injunction as it applies to the licensing fees contained in Palm Beach County Ordinance 88-31 is DENIED. Finally, it is ORDERED and ADJUDGED that the Motion for Preliminary Injunction as it applies to the application requirements contained in Palm Beach County Ordinance (II)(C) is DENIED in part and GRANTED only as it pertains to the disclosure requirements in Sections (II)(C)(2)(b), (II)(C)(2)(d), and (II)(C)(2)(i). A preliminary injunction is hereby issued against enforcement of these three sections of Palm Beach County Ordinance 88-31. DONE and ORDERED. APPENDIX tc:vb:ll/15/88:adult entertainment ordinance ORDINANCE NO. 88-31 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, FLORIDA, ENACTING THE ADULT ENTERTAINMENT CODE; PROVIDING FOR TITLE, LEGISLATIVE AUTHORITY, JURISDICTION, RULES OF CONSTRUCTION, PURPOSE, FINDINGS OF FACT, AND DEFINITIONS; REQUIRING CERTAIN LICENSING REQUIREMENTS FOR ADULT ENTERTAINMENT ESTABLISHMENTS INCLUDING APPLICATION REQUIREMENTS, ENFORCEMENT PROVISIONS, SUSPENSION, AND REVOCATION OF LICENSES; AUTHORIZING LICENSE FEES; ESTABLISHING GENERAL REQUIREMENTS FOR ALL ADULT ENTERTAINMENT ESTABLISHMENTS; PROVIDING FOR PROHIBITION OF ALCOHOLIC BEVERAGES; PROVIDING FOR SUPPLEMENTAL REQUIREMENTS, REGULATIONS, AND PROHIBITIONS, INCLUDING BUT NOT LIMITED TO LISTING EMPLOYEES, ARCHITECTURAL/DESIGN REQUIREMENTS, TOUCHING, PRIVATE PERFORMANCES, SEXUAL ACTIVITY, ADVERTISING, MINORS, ADULT THEATERS AND BOOTHS, AND HOURS OF OPERATION; PROVIDING FOR CIVIL AND CRIMINAL PENALTIES; ESTABLISHING APPEALS; PROVIDING SEVERABILITY; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Board of County Commissioners of Palm Beach County in the exercise of its police powers to protect the public health, safety, peace, and general welfare, and in response to the concerns of the Sheriff of Palm Beach County and numerous residents of Palm Beach County, have through public hearing, heard interested parties and citizens for and against the purposes of this Ordinance; and WHEREAS, Chapter 125 (County Government) of Florida Statutes establishes the right and power of counties to provide for the health, welfare, and safety of existing and future residents by enacting and enforcing regulations on Adult Entertainment Establishments; and WHEREAS, the Board of County Commissioners of Palm Beach County finds and declares that establishments exist or may exist within Palm Beach County, Florida, where books, magazines, motion pictures, prints, photographs, periodicals, records, novelties and/or devices which depict, illustrate, describe or relate to specified sexual activities are possessed, displayed, exhibited, distributed and/or sold; and WHEREAS, the Board of County Commissioners of Palm Beach County finds and declares that establishments exist or may exist within Palm Beach County, Florida: (1) where dancers, entertainers, performers or other individuals who for any form of commercial gain perform or are presented while displaying or exposing specified anatomical areas; or (2) where lap dancing occurs; and WHEREAS, the Board of County Commissioners of Palm Beach County, Florida, finds and declares that the activities described above occur at establishments for the purpose of making a profit and as such are subject to regulation by Palm Beach County, Florida in the interests of the health, safety, welfare, morals and general welfare of the people of Palm Beach County; and WHEREAS, there exists no method by which to verify that Adult Entertainment Establishments meet the zoning locational requirements of § 500.31; and WHEREAS, a licensing system provides the least restrictive means to insure the zoning locational requirements of § 500.31 are followed; and WHEREAS, the Board of County Commissioners of Palm Beach County, Florida, finds and declares that when activities described above are present in establishments within Palm Beach County, other activities which are illegal, or unhealthful tend to accompany them, concentrate around them, or to be aggravated by them. Such activities include but are not limited to, prostitution, solicitation for prostitution, lewd and lascivious behavior, exposing minors to harmful materials, possession, distribution and transportation of obscene materials, sale or possession of controlled substances, and violent crimes against persons and properties; and WHEREAS, the Board of County Commissioners of Palm Beach County, Florida, finds and declares that when the activities described above are present in establishments within Palm Beach County, Florida, there is an increased amount on average of criminal activity which requires additional law enforcement resources; and WHEREAS, a licensing system is the least restrictive means to limit or prevent the type of environment which fosters and encourages the criminal behavior described above; and WHEREAS, a licensing system is the least restrictive means to insure that patrons of Adult Entertainment establishments do not engage in sexual activities within these establishments, thereby preventing and limiting the spread of communicable diseases. NOW THEREFORE, be it ordained by the Board of County Commissioners, as follows: Section 1. An Ordinance is hereby created to read as follows and herein shall be known as the “Adult Entertainment Code” of Palm Beach County: ADULT ENTERTAINMENT CODE I. GENERAL PROVISIONS A. Title. This Chapter shall be known and may be cited as the “Adult Entertainment Code.” B. Authority. The Adult Entertainment Code is enacted pursuant to the Home Rule of Power of Palm Beach County, Florida, in the interest of the public health, peace, safety, morals, and general welfare of the people of Palm Beach County, Article VIII, Section 1(g) of the Florida Constitution, Section 125.01(l)(o) and (w) of Florida Statutes 1987, and the authority of Palm Beach County to regulate the sale and consumption of alcoholic beverages under the Twenty-First Amendment to the Constitution of the United States, as recognized by the Florida Courts in the City of Daytona Beach v. Del Percio and Fillingim v. The State. C. Jurisdiction. The Adult Entertainment Code shall be effective throughout the unincorporated areas of Palm Beach County, Florida. This Ordinance shall be effective in municipalities unless the municipality opts out or shall be effective up to the extent of conflict with the municipal ordinance. Except for the Sheriffs Department and the Palm Beach County Public Health Unit, within municipalities the respective Municipal Departments which regulate Fire, Building and Zoning shall be responsible for the Administration of this Ordinance as set out in 11(B), below. D. Findings of Facts. Based on the evidence and testimony presented at July 5, 1988, first reading at October 25, 1988, and at the public hearing November 15, 1988 before the Board of County Commissioners of Palm Beach County, Florida, and on the findings incorporated in the United States Attorney General’s Commission on Pornography (1986), “A Summary of a National Survey of Real Estate Appraisers Regarding the Effect of Adult Bookstores on Property Values,” conducted by the Division of Planning, Department of Metropolitan Development, City of Indianapolis, January 1984, the “Study of the Effects of Concentration of Adult Entertainment Establishments in the City of Los Angeles,” conducted by the Planning Committee for the Los Angeles City Council, June 1977, the study conducted by the City of Austin, Texas, the Metropolitan Bureau of Investigation (MBI) for the Ninth Judicial Circuit (Orlando area) and information from Tampa, Florida detailing the effects of Adult Entertainment Establishments in the Tampa area, the Board hereby finds: 1. Establishments exist or may exist within Palm Beach County, Florida, where books, magazines, motion pictures, prints, photographs, periodicals, records, novelties and/or devices which depict, illustrate, describe or relate to specified sexual activities are possessed, displayed, exhibited, distributed and/or sold. 2. Establishments exist or may exist within Palm Beach County, Florida: a. where the superficial tissues of one person are manipulated, rubbed, stroked, kneaded, and/or tapped by a second person, accompanied by the display or exposure of specified anatomical areas; b. where dancers, entertainers, performers, or other individuals, who, for any form of commercial gain, perform or are presented while displaying or exposing any specified anatomical area; or c. where lap dancing occurs. 3. The activities described in subsections (1) and (2) occur at establishments for the purpose of making a profit, and, as such, are subject to regulation by Palm Beach County, Florida in the interest of the health, safety, morals and general welfare of the people of Palm Beach County- 4. The competitive commercial exploitation of such nudity and semi-nudity is adverse to the public’s interest and the quality of life, tone of commerce, and total community environment in Palm Beach County. 5. The commercial exploitation of nudity and semi-nudity consists of the use of nude and semi-nude entertainment in connection with or for the promotion of the sale of goods or services, and the receipt of money by the person engaging in nude or semi-nude entertainment in exchange for or as consideration for nude semi-nude performance by such individuals. 6. The commercial exploitation of nude and semi-nude acts, exhibitions, and nude entertainment frequently occurs at commercial establishments either selling or allowing consumption of alcoholic beverages on the premises. 7. There is a direct relationship between the consumption of alcoholic beverages and the nude and semi-nude activities mentioned above, and an increase in criminal activities, moral degradation and the disturbances of the peace and the good order of the community. The concurrences of these activities is hazardous to the health and the safety of those persons in attendance, and tends to depreciate the value of adjoining property and harm the economic welfare of the community as a whole. 8. The combination of the sale and consumption of alcoholic beverages with the performance of nude and semi-nude acts, exhibitions, and entertainment is adverse to the public’s interest and the quality of life, tone of commerce and total community environment in Palm Beach County. 9. In order to promote and preserve the public peace and good order and to safeguard the health, safety, morals and welfare of the community and the citizens thereof, it is necessary and advisable for Palm Beach County to prohibit certain forms of nude and semi-nude acts, exhibitions, entertainment and commercial establishments at which alcoholic beverages are, or are available to be sold or consumed. 10.In order to preserve the public peace and good order, and to safeguard the health, safety, morals, and welfare of the community and citizens thereof it is necessary and advisable to regulate and restrict the conduct of owners, operators, agents, employees, entertainers, performers, patrons, spectators, and persons on the premises of the commercial establishment subject hereto. 11. There is a direct relationship between the display or depiction of specified anatomical areas in subsection (2) and an increase in criminal activities, moral degradation and disturbances of the peace and good order of the community and the con-currencies of these activities is hazardous to the health and safety of those persons in attendance and tends to depreciate the value of adjoining property and harm the economic welfare of the community as a whole. These secondary effects are adverse to the public’s interest and quality of life, tone of commerce and total community environment in Palm Beach County. 12. When the activities described in subsections (1) and (2) are presented in establishments within Palm Beach County, Florida, other activities which are illegal, immoral, or unhealthful tend to accompany them, concentrate around them, and be aggravated by them. Such other activities include, but are not limited to, prostitution, solicitation for prostitution, lewd and lascivious behavior, possession, distribution and transportation of obscene materials, sale or possession of controlled substances, and violent crimes against persons and property. 13. When the activities described in subsections (1) and (2) are present in establishments within Palm Beach County, Florida, they tend to blight neighborhoods, adversely affect neighboring businesses, lower property values, foster an atmosphere which promotes crime, particularly the kinds detailed in subsection (5) and ultimately lead residents and businesses to move to other locations. 14. Physical contact within establishments at which the activities described in subsections (1) and (2) occur between employees exhibiting specified anatomical areas and customers poses a threat to the health of both and may lead to the spread of communicable and social diseases. 15. In order to preserve and safeguard the health, safety, morals, and general welfare of the people of Palm Beach County, Florida, it is necessary and advisable for Palm Beach County, Florida, to regulate the conduct of owners, managers, operators, agents, employees, entertainers, performers, and customers at establishments where the activities described in subsections (1) and (2) occur. 16. The potential dangers to the health, safety, morals, and general welfare of the people of Palm Beach County, Florida from the activities described in subsections (1) and (2) occurring at establishments without first obtaining a license under this Code are so great as to require the licensure of such establishments pri- or to their being permitted to operate. 17. “Lap dancing” does not contain any element of communication, and is therefore conduct rather than expression. 18. “Lap dancing” in establishments poses a threat to the health of the participants and promotes the spread of communicable and social diseases. 19. The County Commission finds that sexually oriented business is frequently used for unlawful and unhealthy sexual activities, including prostitution and sexual liaison of a casual nature. 20. The concern over sexually transmitted diseases is a legitimate health concern of the County which demands reasonable regulations of sexually oriented businesses in order to protect the health and well-being of the citizens. 21.Licensing is a legitimate reasonable means of accountability to ensure that operators of sexually oriented businesses comply with the reasonable regulations within this Code and the locational requirements of § 500.31 of the Zoning Code, and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation. E. Rules of Construction. The Adult Entertainment Code shall be liberally construed to accomplish its purpose of licensing, regulating and dispersing adult entertainment establishments. Rules of Construction of Section 1-2 of the Palm Beach County Code shall govern. F. Purpose. It is the intent of the Board of County Commissioners of Palm Beach County, Florida, in adopting the Adult Entertainment Code to establish reasonable and uniform regulations that will reduce the adverse secondary effects adult entertainment establishments have upon the residents of Palm Beach County and protect the health, safety, morals and general welfare of the people of Palm Beach County, Florida. G. Definitions. In the Adult Entertainment Code, unless the context suggests otherwise: 1. Adult Arcade Any place or establishment operated for commercial gain which invites or permits the public to view adult material. For purposes of this Code, Adult Arcade is included within the definition of Adult Theater. 2. Adult Bookstore/Adult Video Store An establishment which sells or offers adult material for sale or rent for commercial gain; unless the establishment demonstrates either (1) the adult material is accessible only by employees and the gross income from the sale or rental of adult material comprises less than forty percent (40%) of the gross income from the sale or rental of goods or services at the establishment, or (2) the individual items of adult material offered for sale or rental comprise less than ten percent (10%) of the individual items, as stock in trade, publicly displayed in the establishment and which is not accessible to minors at the establishment. 3. Adult Booth A small enclosed or partitioned area inside an adult entertainment establishment which is: (1) designed or used for the viewing of adult material by one or more persons and (2) is accessible to any person, regardless of whether a fee is charged for access. The term “adult booth” includes, but is not limited to, a “peep show” booth, or other booth used to view “adult material.” The term “adult booth” does not include a foyer through which any person can enter or exit the establishment, or a restroom. 4. Adult Dancing Establishment An establishment where employees display or expose specified anatomical areas to others, regardless of whether the employees actually engage in dancing. 5. Adult Entertainment Establishment a. Any adult arcade, adult theater, adult bookstore/adult video store, adult motel or adult dancing establishment; or any other establishment or business operated for commercial gain where any employee, operator or owner exposes his/her specified anatomical area for viewing by patrons, including but not limited to: massage establishments, whether or not licensed pursuant to Chapter 480, Florida Statutes, tanning salons, modeling studios, or lingerie studios. b. Excluded from this definition are any educational institutions where the exposure of specified anatomical areas is associated with a curriculum or program. c.An establishment that possesses an Adult Entertainment License is presumed to be an Adult Entertainment Establishment. 6. Adult Material Any one or more of the following, regardless of whether it is new or used: a. Books, magazines, periodicals or other printed matter, photographs, films, motion pictures, video cassettes, slides, or other visual representations; recordings, other audio matter; and novelties or devices which have as their primary or dominant theme subject matter depicting, exhibiting, illustrating, describing or relating to specified sexual activities or specified anatomical areas; or b. Instruments, novelties, devices or paraphernalia which are designed for use in connection with specified sexual activities. 7. Adult Motel Any hotel, motel, boarding house, rooming house or other place of temporary lodging which includes the word “adult” in any name it uses or otherwise advertises the presentation of adult material. The term “adult motel” is included within the definition of “adult theater.” 8. Adult Theater An establishment operated for commercial gain which consists of an enclosed building, or a portion or part thereof, or an open-air area used for viewing of adult material. “Adult motels”, “adult arcade”, “adult booth” and “adult motion picture theater” are included within the definition of “adult theater.” An establishment which has “adult booths” is considered to be an “adult theater.” 9. Adult Video Store — see “Adult Bookstore”. 10.Alcoholic Beverage A beverage containing more than one percent (1%) of alcohol by weight, including but not limited to beer and wine, a. It shall be prima-facie evidence that a beverage is an alcoholic beverage if proof exists: (1) the beverage in question was or is known as whiskey, moonshine whiskey, shine, rum, gin, tequila, vodka, scotch, scotch whiskey, brandy, beer, malt liquor, or by any other similar name or names; or (2) the beverage was contained in a bottle or can labeled as any of the above names, or a name similar thereto, and the bottle or can bears the manufacturer’s insignia, name, or trademark. b. Any person who, by experience in the handling of alcoholic beverages, or who by taste, smell, or drinking of such alcoholic beverages has knowledge of the alcoholic nature thereof, may testify as to his opinion about whether such beverage is an alcoholic beverage. 11. Board The Board of County Commissioners of Palm Beach County, Florida. 12. Code The Adult Entertainment Code. 13. Commercial gain Operated for pecuniary gain which shall be presumed for any establishment which has received an occupational license. For the purpose of this Code, operation for commercial or pecuniary gain shall not depend on actual profit or loss. 14. Commercial Establishment Any business, location, or place which conducts or allows to be conducted on its premises any activity for commercial gain. 15. Conviction A determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended. 16. Department The Fire Department, Health Department, Occupational License Department, Sheriff, or the Zoning & Building Divisions of the Planning, Zoning & Building Department including the respective directors, employees, and agents thereof. 1^7. Educational Institution A premises or site upon which there is an institution of learning, whether public or private, which conducts regular classes and/or courses of study required for accreditation by or membership in the State Department of Education of Florida, Southern Association of Colleges and Secondary Schools, or the Florida Council of Independent Schools. The term “educational institution” includes a premises or site upon which there is a day care center, nursery school, kindergarten, elementary school, junior high school, senior high school; professional institution or an institution of higher education including a community college, junior college, or four year college or university; libraries, art galleries and museums open to the public; or any special institution of learning. However, the term “educational institution” does not include a premises or site upon which there is a vocational institution operated for commercial gain. 18. Employee Any person who works or performs in an adult entertainment establishment, irrespective of whether said person is paid a salary or wage by the owner or manager of the premises. Employer shall include any person who pays any form of consideration to an owner or manager of an establishment for the privilege to work, perform or expose his/her specified anatomical areas within the establishment. 19. Establishment The site or premises on which the Adult Entertainment Establishment is located, including the interior of the establishment, or portion thereof, upon which certain activities or operations are being conducted for commercial gain. 20. Inspector A respective employee of the Palm Beach County Sheriff’s Department, Palm Beach County Public Health Unit, Palm Beach County Planning, Zoning & Building Department, Palm Beach County Occupational Licensing Department or officers of Palm Beach County Fire Rescue Department, who are authorized pursuant to this Code to inspect licensed premises. 21. Licensed Premises — see “Establishment”. 22. Licensee Any person whose application for an adult entertainment establishment has been granted and who totally or partially owns, operates or controls the establishment. 23. Operator Any person who engages or participates in any activity which is necessary to or which facilitates the operation of an adult entertainment establishment, including but not limited to the licensee, manager, owner, doorman, bouncer, bartender, dancer, disc jockey, sales clerk, ticket taker, movie projectionist, or supervisor. 24. Person includes, but is not limited to, an individual(s), firm(s), association^), joint venture(s), partnership^), estate(s), trust(s), business trust(s), syndicate(s), fiduciarie(s), corporation(s), and all other or any other similar entity. 25. Principal Stockholder Any person, as defined in Subsection (23) above, who owns or controls, legally or beneficially, ten percent (10%) or more of a corporation’s capítol stock, and includes the officers and directors. If no stockholder of a corporation owns or controls, legally or beneficially, at least ten percent (10%) of the capitol stock, all stockholders shall be considered principal stockholders. And, if a corporation is registered with the Securities and Exchange Commission, or pursuant to Chapter 517, Florida Statutes (1987), and its stock is for sale to the general public, it shall not be considered to have any principal stockholders. 26. Private performance The display or exposure of any specified anatomical area by an employee at an Adult Entertainment Establishment to a person other than another employee while the person is in an area within the establishment not accessible during such display to all other persons in the establishment, or while the person is in an area in which the person is totally or partially screened or partitioned during such display from the view of all persons within the establishment. 27. Specified anatomical areas means: a. less than completely and opaquely covered: (1) human genitals and pubic region; or (2) cleavage of the human buttocks; or (3) 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. This definition shall include the entire lower portion of the 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; or b. human male genitals in a discernibly turgid state, even if completely and opaquely covered. 28. Specified criminal act means: a. A criminal violation of this Code; or, b. Any felony; or, c. An offense under Chapter 794, Florida Statutes (Sexual Battery); or, d. An offense under Chapter 796, Florida Statutes (Prostitution); or, e. An offense under Chapter 800, Florida Statutes (Lewdness; Indecent Exposure); or, f. An offense under Chapter 826, Florida Statutes (Bigamy; Incest); or, g. An offense under Chapter 847, Florida Statutes (Obscene Literature; Profanity); or, h. An offense under Chapter 831, Florida Statutes (Forgery; Counterfeiting); or, i. Offense under Chapter 837, Florida Statutes (Perjury); or, j. An offense under Chapter 843, Florida Statutes (Obstructing Justice); or, k. An offense under Chapter 849, Florida Statutes (Gambling); or, l. An offense under Chapter 893, Florida Statutes (Drug Abuse Prevention and Control); or, m. An offense under Chapter 895, Florida Statutes (Racketeering; Illegal Debts); or, n. An offense under Chapter 896, Florida Statutes (Offenses Related to Financial Transactions); or, o. An offense under an analogous statute of a state other than Florida, or under an analogous ordinance of another county or city. 29. Specified Criminal Offense means: a. a conviction under § 60.05, Florida Statutes (Nuisance Abatement); or, b. a conviction under § 480.043, § 480.046, § 480.047, § 480.048 or § 480.049 (Florida Statutes), or subsequent regulation; or, c. a conviction under Chapter 561 (Beverage Law; Administration) or Chapter 562 (Beverage; Enforcement), Florida Statutes; or, d. a judgment against or conviction under Chapter 823 (Public Nuisances), Florida Statutes. 30. Specified sexual activities means: a. human genitals in a state of sexual stimulation, arousal or tumescence; or, b. acts of human