01-002865GM Glentex, Inc., D/B/A Woody`s vs. Department Of Community Affairs And Islamorada, Village Of Islands Status: Closed Recommended Order on Friday, February 15, 2002.

Summary: Department proved that Islamorada ordinance regulating sexually oriented businesses was not inconsistent with any Principles for Regulating Development in the Florida Keys.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLENTEX, INC., d/b/a WOODY'S, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2865GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and ISLAMORADA, )

VILLAGE OF ISLANDS, )

)

Respondents. )

_____ _________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Islamorada, Florida, on October 10, 2001.

APPEARANCES

For Petitioner: Steven G. Mason

Steven G. Mason, P.A.

1643 Hillcrest Street

Orlando, Florida 32803

For Respondent Department of Community Affairs:

Karen A. Brodeen

Assistant General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Ta llahassee, Florida 32399 - 2100

For Respondent Islamorada, Village of Islands:

Daniel A. Weiss

Weiss Serota

2665 South Bayshore Drive, Suite 420

Miami, Florida 33133

STATEMENT OF THE ISSUE

The issue is whether Village Ordinance No. 01 - 08, w hich

regulates sexually oriented businesses, is inconsistent with the

Principles for Guiding Development in the Florida Keys Area of

Critical State Concern, pursuant to Section 380.0552, Florida

Statutes.

PRELIMINARY STATEMENT

By Final Order published Jun e 29, 2001, Respondent

Department of Community Affairs determined that Village

Ordinance No. 01 - 08, which allowed the establishment of certain

sexually oriented businesses within the Industrial Future Land

Use category, was consistent with the Village Comp rehensive Plan

and with the Principles for Guiding Development in the Florida

Keys Area of Critical State Concern, pursuant to Sections

380.05(6) and (11) and 380.0552(9), Florida Statutes.

By Petition for Administrative Proceedings filed July 18,

2001, P etitioner alleged that Village Ordinance No. 01 - 08 would

require Petitioner to close its business or relinquish its right

to provide constitutionally protected entertainment. The

petition alleges that Petitioner has provided sexually

provocative entertain ment for many years, featuring a band/act

known as "Big Dick and the Extenders." The band/act and

Petitioner have allegedly offered and allowed nudity during the

show for many years. However, in May 2001, Petitioner allegedly

supplemented the band/act wi th striptease dancing, and

Respondent Islamorada, Village of Islands, passed the subject

ordinance. Petitioner also alleges that, if it relocated to the

area required by the ordinance, Petitioner's sexually oriented

entertainment would be within 100 feet of the Islamorada Seventh

Day Adventist Church.

At the hearing, Petitioner called five witnesses and

offered into evidence eight exhibits: Petitioner Exhibits 1 - 8.

Respondent Department of Community Affairs called one witness

and offered into evidence t wo exhibits: DCA Exhibits 1 - 2.

Respondent Islamorada, Village of Islands, called two witnesses

and offered into evidence four exhibits: Village Exhibits 1 - 4.

The parties jointly offered into evidence two exhibits. All

exhibits were admitted except Pet itioner Exhibit 8, which was

proffered.

The parties did not order a transcript.

FINDINGS OF FACT

1. On June 14, 2001, Respondent Islamorada, Village of

Islands (Village), adopted Ordinance No. 01 - 08 (Ordinance). The

Ordinance generally regulates the "loca tion and separation" of

"sexually oriented businesses." On June 19, 2001, Respondent

Department of Community Affairs (DCA) entered a final order

determining that the Ordinance is consistent with Section

380.0552, Florida Statutes (Principles for Guiding D evelopment).

2. In particular, the Ordinance applies to "regulated

business[es]." These are defined as "[s]exually oriented

bookstore[s]," "[s]exually oriented domination/submission

parlor[s]," "[s]exually oriented mini motion picture

theater[s]," "[s]exua lly oriented motel[s]," "[s]exually

oriented motion picture theater[s,]" [e]ncounter studio/modeling

studio[s]," and "[n]ude entertainment establishment[s]."

3. The Ordinance defines a "[n]ude entertainment

establishment" as:

any establishment which does o r does not

offer alcoholic beverages for sale or

consumption but does feature male or female

entertainers, performing partially clothed,

or completely nude, displayed in a setting,

stage, or cubicle within a business, which

has as its principal and inciden tal purpose

the offering for viewing to adults of

performances which have as their dominant or

primary theme matters depicting, describing

or relating to "specified sexual activities"

or "specified anatomical areas," as defined

below.

4. The Ordinance defi nes "specified sexual activities" as:

(1) Human genitals in a state of sexual

stimulation, arousal, or tumescence; or

(2) Acts of human anilingus, bestiality,

buggery, cunnilingus, coprophagy,

coprophilia, fellatio, flagellation,

masochism, masturbation , recrophilia,

pederasty, pedophilia, sadism,

sadomasochism, sexual intercourse or sodomy;

or

(3) Fondling or other erotic touching of

human genitals, pubic region, buttock, anus,

or female breast; or

(4) Excretory functions as part of or in

connection with the activities set forth in

subsections (1) through (3).

5. The Ordinance defines "specified anatomical areas" as:

(1) Less than complete and opaquely

covered:

(a) Human genitals and pubic region; or

(b) Cleavage 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, including the areola;

this definition shall include the

entire lower portion of the human

female breast, but shall not include

a portion of the cleavage of the

human female breast exhibited by a

dress, blouse, shirt, leotard,

bathing suit or ot her wearing

apparel, provided the areola is not

so exposed; and

(2) Human male genitals in a discernible

turgid state, even if completely and

opaquely covered.

6. The Ordinance provides that "regulated businesses" are

permitted within the Indust rial "I" Future Land Use category,

subject to several restrictions. These restrictions include a

400 - foot setback from the property line of any property

designated on the future land use map, zoned, or used for

residential purposes; or a 100 - foot setback from the property

line of any property used for a place of worship, park, or

school.

7. The Ordinance requires that, within 90 days of the

effective date, all legal nonconforming "regulated businesses"

shall conform to the provisions of the Ordinance, or th e use

shall be terminated.

8. The Ordinance explains the legislative intent

underlying its passage as follows:

It is the intent and purpose of this

[Ordinance] to regulate the location and

separation of sexually oriented businesses,

referred to herein as "r egulated

businesses," which, because of their very

nature, are recognized as having serious

objectionable operational characteristics,

particularly when they are located near

properties designated, zoned or used for

residential purposes or used for places of

worship, parks or schools, thereby having a

deleterious effect upon the adjacent areas.

Further, it is recognized that the location

of even one regulated business near such an

area causes such deleterious effects on that

area. Special regulation of th ese

businesses is necessary to ensure that these

adverse effects will not contribute to the

blighting or downgrading of the surrounding

neighborhood, as provided herein. . . .

9. Petitioner operates a restaurant and nightclub known as

Woody's in Islamorad a. Originally a roadhouse, Woody's has been

in business since 1987. During the time that it has been in

business, Woody's has offered adult entertainment featuring the

band known as "Big Dick and the Extenders." Jack Snipes, the

large man who is the "Bi g Dick" of "Big Dick and the Extenders,"

is a part owner of Woody's. The double entendre implicit in the

name of the band exemplifies the sexual content that laces the

band's show, which relies heavily on sexually explicit language,

sexual props, and occa sional baring of female breasts and male

and possibly female buttocks.

10. Historically, most of the nudity was occasional,

largely spontaneous, and displayed by the crowd, rather than the

band or employees of Woody's (Mardi Gras - Style Nudity). In May

2001, Woody's abandoned Mardi Gras - Style Nudity in favor of live

nude dancing performed by dancers hired by Woody's. The dancers

performed for the entire crowd or, for a tip, performed for a

specific customer. However, Woody's allowed only dancing on the

stage or table and prohibited physical contact between any

dancer and any customer.

11. Woody's is unobtrusive, although it abuts U.S. Route

A1A. Surrounding Woody's are restaurants, boat yards, marinas,

and stores. Woody's is not a notorious focal poi nt of drug

activity or prostitution. To the contrary, Mr. Snipes and his

band have given freely of their time for charitable fundraising,

according to the pastor of a local Methodist church. Some

island residents view Woody's as an essential ingredient o f

their community and would not require Woody's to relocate.

Other residents, such as those serving on the Village Council,

probably do not view Woody's as an essential ingredient of their

community and certainly would require Woody's to relocate.

12. Woody's is not presently in an Industrial future land

use category. The two areas designated Industrial on

Islamorada's future land use map are on Plantation Key and

comprise 24 acres, of which ten acres would be unavailable to a

regulated business such a s Woody's due to buffering

requirements.

13. DCA overcame all of Petitioner's objections to the

Ordinance. Petitioner claimed that the Ordinance lacked

specificity, such as floor - area ratios. However, the Ordinance

applies an overlay of a new permitted use -- regulated

businesses -- in areas designated Industrial. Other provisions of

the comprehensive plan and land development regulations

governing land uses in Islamorada will provide more specific

guidelines concerning permitted land uses, including regul ated

businesses.

14. Petitioner claimed that Woody's would be forced by

economic necessity to relocate, if it had to revert to Mardi

Gras - Style Nudity and that Woody's could not find an

economically viable site within the Industrial areas in

Islamorada. DCA proved that these claims were ungrounded.

Petitioner claimed that the relocation of Woody's to an

Industrial area would take it out of the commercial area in

which it is presently located and place it in closer proximity

to a church, park, and school. However, DCA proved that this

relocation represented no more than a potential for

incompatibility of land uses. More importantly, DCA proved that

this relocation produced no meaningful inconsistency between the

Ordinance and the comprehensive plan and l and development

regulations governing land uses in Islamorada such that would

jeopardize Islamorada's planning capabilities.

15. The Ordinance is not inconsistent with the principle

of strengthening Islamorada's capabilities for managing land use

and de velopment, so that the local government may achieve these

objectives without the ongoing designation of a critical area of

state concern. An inconsistency with this criterion of the

Principles for Guiding Development must be sufficiently

significant to je opardize the ability of the local government to

engage in effective land use planning so as to protect the

natural environment of the Florida Keys. DCA has proved that

possible inconsistencies, if any, between the Ordinance and any

provision of the compre hensive plan or land development

regulations governing land uses in Islamorada would be

insubstantial.

16. The Ordinance is not inconsistent with the principle

of ensuring the maximum well - being of the Florida Keys and its

citizens through sound economic development. Neither the

Ordinance nor the disappearance or relocation of Woody's and

"Big Dick and the Extenders" will have any measurable impact on

the economy of the Florida Keys.

17. The Ordinance is not inconsistent with the principle

of protecting the public health, safety, and welfare of the

citizens of the Florida Keys and maintain the Florida Keys as a

unique Florida resource. Neither the Ordinance nor the

disappearance or relocation of Woody's and "Big Dick and the

Extenders" will have any meas urable impact on the public health,

safety, and welfare of the citizens of the Florida Keys or the

maintenance of the Florida Keys as a unique Florida resource.

18. The Ordinance and the disappearance or relocation of

Woody's and "Big Dick and the Extende rs" will have no impact

whatsoever on the natural resources and public facilities

typically within the scope of the Principles for Guiding

Development.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the subject matter . Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes.)

20. Islamorada questions Petitioner's standing. DCA

concedes in its proposed recommended order that Petitioner has

standing. However, the evidence linking Pet itioner to Woody's

is only inferential -- in all likelihood not because such evidence

would have been difficult to produce, but because Petitioner did

not realize that its standing was in issue in this case.

21. If DCA had failed to overcome any of Petition er's

substantive claims, the Administrative Law Judge would address

in detail Islamorada's arguments that standing in this case is

like subject - matter jurisdiction, which can, of course, be

raised at anytime. Islamorada relies on recent decisions, such

as Department of Revenue v. Daystar Farms, Inc. , __ So. 2d __,

27 Fla. L. Weekly D124 (Fla. 5th Department of Community Affairs

2002) and Grand Dunes, Ltd. v. Walton County , 714 So. 2d 473

(Fla. 1st DCA), rev. denied sub nom. Edgewater Beach Owner's

Associat ion v. Grand Dunes, Ltd. , 728 so. 2d 201 (Fla. 1998),

which address well - developed factual records that establish

conclusively the status of the relief - seeking party and then

determine that the party lacks standing. In the more recent

case, the relief - see king party clearly did not pay the sales

tax, and the tax statute authorizes only the taxpayer to seek a

refund. In the other case, the relief - seeking party clearly was

not the developer, owner, or state land planning agency, and the

development - of - region al - impact statutes authorize only these

parties to appeal a development - of - regional - impact order.

22. More to the point is Putnam County Environmental

Council, Inc., v. Board of County Commissioners of Putnam

County , 750 So. 2d 686 (Fla. 5th DCA 1999), in which the court

reversed a circuit court judgment dismissing a claim for

standing when, through no fault of the aggrieved party, it had

had no opportunity to develop a factual record in support of its

standing. If Petitioner had proved any of its subst antive

claims, the Administrative Law Judge would have determined

whether standing is like subject - matter jurisdiction in all

cases and, if so, reconvened the evidentiary hearing to allow

the parties to develop fully the relationship between Petitioner

and Woody's, as the record already establishes that Woody's, if

a party, would be substantially affected by the final order

approving the Ordinance.

23. Section 380.05(6) imposes the burden of proof upon DCA

to prove the validity of its final order approving the

Ordinance.

24. Constituting the Principles for Guiding Development,

Section 380.0552(7) provides for the determination of

consistency between plan amendments and the following

provisions, as construed as a whole:

(a) To strengthen local government

c apabilities 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.

(b) To protect shoreline and marine

resources, including mangroves, coral reef

formations, seagrass beds, wetlands, fish

and wildlife, and their habitat.

(c) To protect upland resources, tropical

biological communities, freshwater wetlands,

native tropical vegetation (for example,

hardwood hammocks and pinelands), dune

ridges and beaches, wildlife, and their

habitat.

(d) To ensure the maximum well - being of the

Florida Keys and its citizens through sound

economic development.

(e) To limit the adverse impacts of

development on the quality of water

throughout the Florid a Keys.

(f) To enhance natural scenic resources,

promote the aesthetic benefits of the

natural environment, and ensure that

development is compatible with the unique

historic character of the Florida Keys.

(g) To protect the historical heritage of

the Florida Keys.

(h) To protect the value, efficiency, cost -

effectiveness, and amortized life of

existing and proposed major public

investments, including:

1. The Florida Keys Aqueduct and water

supply facilities;

2. Sewage collection and disposal

f acilities;

3. Solid waste collection and disposal

facilities;

4. Key West Naval Air Station and other

military facilities;

ansportation facilities;

6. Federal parks, wildlife refuges, and

marine sanctuaries;

7. State parks, recreat ion facilities,

aquatic preserves, and other publicly owned

properties;

8. City electric service and the Florida

Keys Electric Co - op; and

9. Other utilities, as appropriate.

(i) To limit the adverse impacts of public

investments on the environme ntal resources

of the Florida Keys.

(j) To make available adequate affordable

housing for all sectors of the population of

the Florida Keys.

(k) To provide adequate alternatives for

the protection of public safety and welfare

in the event of a natural or manmade

disaster and for a postdisaster

reconstruction plan.

(l) To protect the public health, safety,

and welfare of the citizens of the Florida

Keys and maintain the Florida Keys as a

unique Florida resource.

25. DCA has proved that its final orde r is valid in all

respects.

RECOMMENDATION

It is

RECOMMENDED that the Department of Community Affairs enter

a final order determining that Islamorada Ordinance No. 01 - 08 is

consistent with the Principles for Guiding Development, as set

forth in Section 380.0552(7), Florida Statutes.

DONE AND ENTERED this 15th day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrat ive Hearings

this 15th day of February, 2002.

COPIES FURNISHED:

Steven M. Seibert, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Cari L. Roth, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

Steven G. Mason

Steven G. Mason, P.A.

1643 Hillcrest Street

Orlando, Florida 32803

Karen A. Brodeen, Assistant General Counsel

Department of Communit y Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399 - 2100

Daniel A. Weiss

Weiss Serota

2665 South Bayshore Drive, Suite 420

Miami, Florida 33133

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written e xceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.