Sec. 5-228. - Sexually oriented activities prohibited in commercial establishments where alcoholic beverages, light wine and beer are sold or consumed.
(a) Findings. The concerns raised and findings stated by the governing authority of the City of Gulfport in the WHEREAS clauses listed in Ordinance No. 2041 of the City of Gulfport are hereafter stated and incorporated herein as follows:
(1) Commercial establishments exist, or may exist, within the City of Gulfport where books, magazines, periodicals, or other printed materials, or photographs, films, motion pictures, prints, video tapes, slides, or other visual representations or recordings, or other audio matters, or instruments, novelties, devices or paraphernalia which depict, illustrate, describe or relate to "specified sexual activities" or "specified anatomical areas," are possessed, displayed, exhibited, distributed, and/or sold.
(2) Commercial establishments exist, or may exist within the city where dancers, entertainers, performers, or other individuals, who, for commercial gain, model, perform, demonstrate, or are presented while displaying or exposing "specified anatomical areas," or engaging in "straddle dancing" or erotic touching with customers.
(3) The sexually oriented activities referred to in (1) and (2) above often occur in establishments concurrent with the sale and/or consumption of alcoholic beverages, which tend to further increase criminal activity, disrupt the peace and order of the community, affect the quality of life of the community, result in the moral degradation of the community; and the exploitation of such sexually oriented activities induces persons to purchase and consume alcoholic beverages, and in some cases intolerable amounts thereof.
(4) In order to preserve and safeguard the health, safety, property values, community moral standards, and the general welfare of the people, businesses and industries of the city, it is advisable for the city to regulate the sale or consumption of alcoholic beverages at establishments where the activities referred to in paragraphs (1) and (2) of this subsection occur.
(5) The State of Mississippi has absolute power under the Twenty-First Amendment to prohibit the sale of alcoholic beverages within its borders; and the Mississippi Legislature has delegated to the Mississippi State Tax Commission the authority to promulgate rules and regulations regarding the sale of alcoholic beverages, and the commission prohibits the sale of alcoholic beverages where the sexually oriented activities referred to in paragraphs (1) and (2) above occur; and the city has legislative authority (Sec. 67-3-65, Mississippi Code of 1972 Annotated) to prohibit the sale of light wine and beer in commercial establishments where the sexually oriented activities described in (1) and (2) above occur for the purpose of promoting public health, morals and safety.
(6) The state's and city's power to regulate the sale and consumption of alcoholic beverages, light wine and beer in commercial establishments under the Twenty-First Amendment overrides and is unrelated to any activities or communicative value that may attach to the activities referred to in paragraphs (1) and (2) of this subsection.
(b) Territory embraced. The provisions of this section apply to all territory within the legal corporate boundaries of the city, a municipal corporation authorized and existing under the laws of the State of Mississippi.
(c) Definitions.
(1) Alcoholic beverage means any alcoholic liquid, including wines of more than four (4) percent of alcohol by weight, capable of being consumed as a beverage by a human being, but shall not include wine containing four (4) percent of alcohol by weight, but shall include native wines (regulated under the "Local Option Beverage Control Law," Title 67, Chapter 3, Mississippi Code of 1972 Annotated, as amended).
(2) Beer and light wine. The words "light wine" and "beer" mean light wine and beer of an alcoholic content of not more than four (4) percent by weight (regulated under Title 67, Chapter 3, Mississippi Code of 1972 Annotated, as amended).
(3) Commercial establishments. A location and place of business where the sale or consumption of alcoholic beverages, light wine or beer may occur.
(4) Employee means a person who works or performs, or provides services in connection with a commercial establishment, irrespective of whether said person is paid a salary or wages, or is an independent contractor, provided such person has a substantial or consistent relationship with the business of, or entertainment/services provided by the commercial establishment. "Employee" includes, but is not limited to, performers, managers and assistant managers, stock persons, tellers, sales representatives, demonstrators and operators.
(5) Specified anatomical areas are:
a. Any of the following areas of the human body less than completely or opaquely covered: (a) human genitals or pubic region; (b) the entire cleft of the male or female buttocks. Attire which is insufficient to comply with this requirement includes, but is not limited to, G-strings, T-backs, and thongs; and (c) that portion of the human female breast below a point immediately above the top of the areola. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel, provided the areola is not so exposed; or
b. Human male genitals in a discernible turgid state, even if completely and opaquely covered.
(6) Specified sexual activities are:
a. Human genitals in a state of sexual stimulation or arousal; or
b. Acts of anilingus, bestiality, buggery, cunnilingus, coprophagy, coprophilia, fellation, flagellation, masochism, masturbation, necrophilia, pederasty, pedophilia, sadism, sadomasochism, sapphism, sexual intercourse, sodomy, urolagnia or zooerasty; or
c. Fondling or other erotic touching of human genitals, pubic region, buttock, anus or female breast; or
d. Excretory functions as part of, or in connection with any of the activities set forth in a. through c. of this definition.
(7) Straddle dance, also known as "lap dance," "table dance" or "face dance," shall mean any of the following acts:
a. The use by an employee of any part of his or her body to touch the genital or pubic area of a person, excluding another employee, while at the commercial establishment, or touching the genital or pubic area of any employee by a person, including another employee, while at the commercial establishment in exchange for receiving a tip, donation, gratuity, or anything of value. It shall be a "straddle dance" regardless of whether touch occurs while the employee is displaying or exposing any specific anatomical area. It shall also be a "straddle dance" regardless of whether the touch or touching is direct or through a medium;
b. The straddling of the legs of an employee over any part of the body of a person, other than another employee at the commercial establishment, regardless of whether there is a touch or touching.
(d) Prohibitions.
(1) It shall be unlawful for any person maintaining, owning or operating a commercial establishment at which alcoholic beverages, light wine or beer are offered for sale or consumed on the premises:
a. To suffer or permit on the premises a person or employee to expose to the public view "specified anatomical areas" or any simulation thereof; or
b. To suffer or permit on the premises a person or employee to engage in any "specified sexual activities" or any simulation thereof; or
c. To suffer or permit the exposition on the premises of any graphic representation, including pictures or projection of film which depict "specified anatomical areas" or "specified sexual activities."
d. To suffer or permit a "straddle dance" to be performed.
(2) It shall be unlawful for any employee of a commercial establishment at which alcoholic beverages, light wine or beer are offered for sale or consumed on the premises (1) to expose to public view "specified anatomical areas" or any simulation thereof, (2) to engage in any "specified sexual activities" or any simulation thereof, or (3) to perform a "straddle dance."
(e) Penalties:
(1) Any "employee" who commits any act or suffers or permits any act prohibited by subsection (d) of this section shall be punished by a fine not exceeding one thousand dollars ($1,000.00) or imprisonment for a term not exceeding ninety (90) days and the cost of prosecution, or by both such fine and imprisonment and the cost of prosecution. Each day any such violation occurs shall constitute a separate offense.
(2) In addition to the penalties hereinabove provided in subsection (e)(1), any condition caused or permitted to exist in violation of any provision of subsection (d) of this section shall be subject to the appropriate civil action, including, but not limited to, the declaration of a public nuisance, injunctive relief for abatement, damages and sanctions in the court of appropriate jurisdiction.
(f) Severability. It is not the intention of this section to restrict, enlarge or affect in any way any existing laws or ordinances of the State of Mississippi or the City of Gulfport, or the separate enforcement thereof. No otherwise illegal acts or omissions are, or shall be, excused or made legal by the passage of the ordinance codified under section 5-228. It is declared to be the legislative intent that if any subsection, sentence, clause, or provision of this section is declared void, unconstitutional or invalid for any reason, such portion or provision, or the application or enforceability thereof, shall be severable from this section. The remaining portion or provisions of this section 5-228, or all applications and the appropriate enforcement thereof, shall not be affected and shall be interpreted, if necessary, so as to give a meaning consistent with the purpose and intent of the enacted ordinance. No void, unconstitutional or invalid portion, or proscribed provision, or application thereof, was an inducement to the enactment of the ordinance codified by this section.
(g) Effective date. Because the adoption of this ordinance is necessary for the immediate and temporary preservation of the public peace, health and safety and because the opening of commercial establishments featuring adult entertainment in conjunction with the sale or consumption of alcoholic beverages, light wine and beer is a threat to public peace, health, safety and established community moral standards, this ordinance shall take effect and be in force from and after February 6, 1996, (the date of its enactment).
(h) Effect on existing nonconforming commercial establishments. One or more commercial establishments featuring adult entertainment may be operating in the city on the effective date hereof in a manner that does not conform to the requirements for legal operation when applying this section. For any such nonconforming commercial establishment conducting such business as of the effective date hereof, the effective date of application of the provision of this section to such nonconforming establishment shall be extended by thirty (30) calendar days, after which this ordinance shall be in full force and effect as to such nonconforming commercial establishment. This provision shall not be a defense or an excuse for any act or omission by any person that is or shall be charged with violation of any other laws or ordinances. Further, the extension of time to conform provided by this subsection shall not apply to any commercial establishment where such beverages are sold or consumed and where at the time of passage hereof said establishment acts or omissions of a nonconforming nature were not regularly being performed.
(Ord. No. 2041, § 1, 2-6-96)
