AGENDA MEMORANDUM
HERNANDO COUNTY ATTORNEY'S OFFICE

TO: Honorable Chairperson and
Members of the Board of County Commissioners

DATE: April 1, 2002

VIA: Garth Coller
County Attorney

FROM: Kent L. Weissinger
Assistant County Attorney

SUBJECT: First advertised public hearing--proposed Public Nudity ordinance

BRIEF OVERVIEW:The first of two public hearings on the proposed Public Nudity Ordinance, a copy of which is attached, was advertised and scheduled for April 9, 2002 at 10:45 a.m.  The proposed ordinance has been modeled closely after an existing  ordinance in St. Johns County (St. Augustine) which has been judicially validated at the 11th Circuit federal appeals court. It contains findings of fact relating to secondary effects and refers to studies that are available in my office and should be reviewed by each Commissioner between now and the final publichearing to be scheduled on the ordinance.  The proposed ordinance essentially prohibits nudity in public places and includes comprehensive definitions as to nudity in public places.  Although it is not a land development regulation (LDR), challenges to such ordinances often include procedural complaints, and this ordinance is being treated as an LDR with respect to enactment procedure. Under the new ordinance establishing the Board as Local Planning Agency (LPA), the Board must make a determination at this hearing whether or not the proposed ordinance is consistent with the Comprehensive Plan. A separate report on this issue with a recommendation from the Planning Department is attached.

LEGAL AUTHORITY: Pursuant to s.125.01, Florida Statues.

BUDGET IMPACT: N/A

RECOMMENDATION: That the Board as LPA find the proposed Public Nudity Ordinance consistent with the Hernando County Comprehensive Plan and direct staff to move forward with scheduling a second public hearing at 5:01 p.m., April 23, 2002, and that Board members review the secondary effects studies between now and April 23.

ADMINISTRATIVE NOTE: Recommendation Submitted for Approval.

Attachments:proposed Public Nudity Ordinance, LPA staff report.

 

STAFF REPORT
Planning and Zoning Commission: April 8, 2002
Land Planning Agency/Board of County Commissioners: April 9, 2002
Board of County Commissioners: April 23, 2002

APPLICANT:Hernando County

PURPOSE:Review of Public Nudity Ordinance

GENERAL
LOCATION:Countywide

FILE STATUS:All legal obligations have been completed.

The Planning Staff has reviewed the proposed Public Nudity Ordinance.  The findings of staff's review are discussed below:

Proposed Ordinance: Public Nudity Ordinance


Purpose:To develop an ordinance which establishes standards for nudity in public places and includes comprehensive definitions as to nudity and public places.

Staff Findings:

Pursuant to Chapter 163, Florida Statutes, each local government shall prepare a Comprehensive Plan. The adopted comprehensive Plan meets the minimum criteria of Chapter 9J-5 which includes goals, objectives and policies.  Chapter 163, F.S. also requires each local government to adopt or amend and enforce land development regulations (LDRs) that are consistent with and implement the adopted plan.

Although the proposed ordinance is not a land development regulation, challenges to such ordinances often include procedural complaints, and the legal department recommended that the ordinance be advertised in the same manner as an LDR.  The BCC authorized staff to advertise a public hearing before the Planning and Zoning Commission for review and comment on April 8, 2002.  Additionally, the Board of County Commissioners authorized staff to advertise two public hearings before the BCC on April 9, 2002, at 10:45 a.m. and April 23, 2002 at 5:01 p.m.  The proposed ordinance upgrades our existing rules to meet current judicial standards.

Staff has reviewed the adopted Comprehensive Plan for consistency with the proposed ordinance. Of the goals, objectives and policies within the plan, it was our position that only one goal applied to the review of the ordinance as follows: Goal 1.05, "to protect private property rights and recognize the existence of legitimate and often competing public interests and private interests in land use regulations and other government action."  The proposed ordinance intends to protect the citizens of Hernando County by providing clear guidelines addressing the issue of nudity.  It is the staff's opinion that the proposed ordinance is not inconsistent with the adopted Comprehensive Plan.

STAFF RECOMMENDATION:

The Planning Staff recommends that the Land Planning Agency as the review body of the land development regulations make a finding of fact that the proposed ordinance is not inconsistent with the adopted Comprehensive Plan.

AGENDA MEMORANDUM
HERNANDO COUNTY ATTORNEY'S OFFICE

TO:Honorable Chairperson and
Members of the Board of
County Commissioners

DATE:April 16, 2002

VIA:Garth Coller
County Attorney

FROM:Kent L. Weissinger
Assistant County Attorney

SUBJECT:Second advertisedpublic hearing--proposed Public Nudity ordinance

BRIEF OVERVIEW: The second of two public hearings on the proposed Public Nudity Ordinance, a copy of which is attached, was advertised and scheduled for April 23, 2002, at 5:01 p.m. The proposed ordinance has been modeled closely after an existing ordinance in St. Johns County (St. Augustine) which has been judicially validated at the 11th Circuit federal appeals court. It contains findings of fact relating to secondary effects of nudity in places in which alcohol is served, as well as secondary effects of public nudity in general. The proposed ordinance essentially prohibits nudity in establishments that serve alcohol and nudity in other comprehensively defined public places. Although it is not a land development regulation (LDR), challenges to such ordinances often include procedural complaints, and this ordinance is being treated as an LDR with respect to enactment procedure.

Since the first hearing on this ordinance, several communications have been received by Board members and/or the County Attorney's Office from persons representing Naturist (nudist) organizations. These communications have alleged that it will be expensive to enforce and defend the ordinance in court. It has also been suggested that the failure to include a specific provision authorizing nudity in nudist or naturists resorts as in the similar Pasco County ordinance, constitutes discrimination against an otherwise legal use of property.

No changes have been made in the proposed ordinance since the first public hearing on April 9. The County Attorney's Office continues to believe that this court-tested ordinance presents the best means of prohibiting nudity in public places. The ordinance in not by itself full and complete protection against the recognized problems presented by certain types of adult entertainment businesses.  This office is currently reviewing existing adult use regulations and intends to bring forward an ordinance proposal to update the

AGENDA ITEM N