This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1423z.DOCX
DATE: 5/23/2023
HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: CS/HB 1423 Protection of Children
SPONSOR(S): State Administration & Technology Appropriations Subcommittee, Fine and others
TIED BILLS: IDEN./SIM. BILLS: SB 1438
FINAL HOUSE FLOOR ACTION: 82 Y’s
32 N’s GOVERNOR’S ACTION: Approved
SUMMARY ANALYSIS
CS/HB 1423 passed the House on April 19, 2023, as SB 1438.
The bill prohibits a person from knowingly “admitting” a child to an adult live performance. The penalty for
violating this prohibition is a first-degree misdemeanor which is punishable by imprisonment that does not
exceed 1 year and a fine that does not exceed $1,000.
The bill defines “adult live performance” as:
“Any show, exhibition, or other presentation in front of a live audience which, in whole or in part, depicts
or simulates ‘nudity,’ ‘sexual conduct,’ ‘sexual excitement,’ ‘specific sexual activities’ as those terms are
defined in s. 847.001, F.S., ‘lewd conduct,’ or the ‘lewd exposure of prosthetic or imitation genitals or
breasts’ when it:
o Predominately appeals to a prurient, shameful, or morbid interest;
o Is patently offensive to prevailing standards in the adult community of this state as a whole with
respect to what is suitable material or conduct for the age of the child present; and
o Taken as a whole, is without serious literary, artistic, political or scientific value for the age of the
child present.”
In addition, the bill allows certain licensees to be disciplined related to admitting a child to such performance.
Specifically, if any person that has a license to operate a public lodging establishment or a public food service
establishment or an establishment that has an alcoholic beverage license, knowingly admits a child to an “adult
live performance” such licensee is subject to license suspension or revocation and a fine.
Such violation is considered an “immediate, serious danger to the public health, safety, or welfare” and an
emergency action may be taken against such licensee by the Department of Business and Professional
Regulation. The fine for a first violation is $5,000 and the fine for a second or subsequent violation is $10,000.
The bill prohibits a governmental entity from issuing permits for a performance that would violate the prohibition
on allowing a child to be admitted to an adult live performance. In addition, if an individual lawfully obtains a
permit, and a performance in violation of the bill’s provisions occurs, the individual that obtained the permit
commits a misdemeanor of the first degree.
The bill will have an indeterminate fiscal impact on state and local government. See Fiscal Analysis and
Economic Impact Statement.
The bill was approved by the Governor on May 17, 2023, ch. 2023-94, L.O.F., and became effective on that
date.
STORAGE NAME: h1423z.DOCX PAGE: 2
DATE: 5/23/2023
I. SUBSTANTIVE INFORMATION
A. EFFECT OF CHANGES:
Current Situation
Public Lodging And Public Food Service Establishments
The Division of Hotels and Restaurants (H&R), within the Department of Business and Professional
Regulation (DBPR), is responsible for inspecting and regulating public lodging and public food service
establishments to safeguard the public health, safety, and welfare.
1
In order to fulfill its responsibilities
of inspecting and enforcing the pertinent provisions of law, the division is granted the right of entry and
access to those establishments at any reasonable time.
2
“Public lodging establishment” includes:
3
“Transient public lodging establishments,” which means any unit, group of units, dwelling,
building, or group of buildings within a single complex of buildings which is rented to guests
more than three times in a calendar year for periods of less than 30 days, or 1 calendar month,
whichever is less, or which is advertised or held out to the public as a place regularly rented to
guests; and
“Nontransient public lodging establishments,” which means any unit, group of units, dwelling,
building, or group of buildings within a single complex of buildings which is rented to guests for
periods of at least 30 days or 1 calendar month, whichever is less, or which is advertised or held
out to the public as a place regularly rented to guests for periods of at least 30 days or 1
calendar month.
Classifications of public lodging establishments include hotels, motels, vacation rentals, apartments,
bed and breakfast inns, and timeshare projects.
4
“Public food service establishments” means any building, vehicle, place, or structure, or any room or
division thereof, where food is prepared, served, or sold for immediate consumption on or in the vicinity
of the premises; called for or taken out by customers; or prepared prior to being delivered to another
location for consumption, with certain exceptions.
5
Classifications of public food service establishments include permanent food service restaurants,
catering services, mobile food dispensing vehicles, vending machines, theme park carts, culinary
education programs, and temporary food service events.
6
Each public lodging and food service establishment operating in the state is required to obtain a license
from the division before operating. The license must be conspicuously displayed in the office or lobby of
the establishment.
7
Disciplinary Actions
1
S. 509.032(1), F.S.
2
S. 509.032(2)(b), F.S.
3
S. 509.013(4), F.S.
4
S. 509.242, F.S.
5
S. 509.013(5), F.S.
6
R. 61C-1.002, F.A.C.; Florida Department of Business and Professional Regulation, Hotels and Restaurants – Licensing Guides,
http://www.myfloridalicense.com/DBPR/hotels-restaurants/licensing/licensing-guides/ (last visited Feb. 24, 2023).
7
S. 509.241(1) and (2), F.S.
STORAGE NAME: h1423z.DOCX PAGE: 3
DATE: 5/23/2023
The division is authorized to fine, suspend, or revoke the license of a public lodging establishment or
public food service if:
A person with a direct financial interest in the establishment has, within the preceding 5 years,
been adjudicated guilty or forfeited a bond when charged with soliciting for prostitution,
pandering, letting premises for prostitution, keeping a disorderly place, illegally dealing in
controlled substances, or any other crime reflecting on professional character.
The establishment has been deemed an imminent danger to the public health and safety by the
division or a local health authority for failure to meet sanitation standards or the premises have
been determined to be unsafe or unfit for human occupancy.
8
If a public lodging or food service establishment operates in violation of ch. 509, F.S., or the rules of the
division, it is subject to:
Fines not to exceed $1,000 per offense;
Mandatory completion of a remedial program; and
Suspension, revocation, or refusal of a license issued under ch. 509.
9
A license may not be suspended for more than 12 months and at the end of the suspension, the
establishment may apply for its license to be reinstated or renewed.
10
Beverage Law
The Division of Alcoholic Beverages and Tobacco (division) within DBPR is responsible for licensing
and supervising the conduct, management, and operation of the manufacturing, packaging, distribution,
and sale of all alcoholic beverages in the state. The division is also responsible for enforcing the
provisions of the Beverage Law, the tobacco law, and the corresponding rules and regulations.
11
Licenses are issued by the division to people who are of good moral character and at least 21 years
old. Similarly, corporate licenses are issued to corporations whose officers are of good moral character
and at least 21 years of age.
12
However, a license may not be issued to:
Anyone who has been convicted within the last 5 years of any offense against the beverage
laws of this state, the United States, or any other state;
Anyone convicted within the last 5 years in this state, any other state, or the United States, of
soliciting for prostitution, pandering, letting premises for prostitution, or keeping a disorderly
place or of any criminal violation of ch. 893, F.S., pertaining to drug abuse prevention and
control, or the controlled substance act of any other state or the Federal Government; or
Anyone who has been convicted in the last 15 years of any felony in this state or any other
state; or to a corporation or any of the officers of whom shall have been so convicted.
13
All licenses issued by the division are issued as annual licenses.
14
Disciplinary Actions
8
S. 509.261(6)(a) and (b), F.S.
9
S. 509.261(1), F.S.
10
S. 509.261(5)(a), F.S.
11
S. 561.02, F.S.
12
S. 561.15(1), F.S.
13
S. 561.15(1) and (2), F.S.
14
S. 561.26, F.S.
STORAGE NAME: h1423z.DOCX PAGE: 4
DATE: 5/23/2023
Some of the reasons the division may revoke or suspend a license are:
Violation of any state or federal laws or a municipal or county regulation relating to the hours of
sale, service, or consumption of alcoholic beverages, permits disorderly conduct on the
premises, or permits violations of any state or federal laws by other persons on the premises.
Violation of any laws of this state or any state or territory of the United States.
Maintaining a nuisance on the licensed premises.
Maintaining premises that are unsanitary or are not approved as sanitary.
Violation of any rule promulgated by the division in accordance with the provisions of ch. 561,
F.S., or laws relating to the activities on the premises.
Failing to maintain the licensed premises in an active manner in which the licensed premises
are open for the sale of authorized alcoholic beverages during regular business hours for
specified times.
Failing to maintain records of all monthly sales and all monthly purchases of alcoholic
beverages and to produce the records for inspection by any division employee within 10 days of
written request.
Failing to comply with a stipulation, consent order, or final order.
15
If a licensee violates any provisions of the Beverage Law, or its rules, the division may impose a civil
penalty that does not exceed $1,000 for violations that arise from a single transaction. If the licensee
does not pay the civil penalty, the license will be suspended for a period of time to be determined by the
division. However, the division may suspend the imposition of a penalty when the division, in its
discretion, deems it appropriate.
16
Emergency Suspension of a License under the Administrative Procedures Act
Chapter 120, F.S., The Administrative Procedure Act (APA),
17
provides uniform procedures for
agencies to exercise their authority.
18
The APA is applicable to every administrative agency in Florida.
19
Section 120.60(6), F.S., provides procedures for an agency to issue an emergency suspension,
restriction, or limitation of a license if that agency finds an immediate serious danger to the public
health, safety, or welfare. The agency may take such action by any procedure that is fair under the
circumstances if:
The procedure provides at least the same procedural protection as is given by other statutes,
the State Constitution, or the United States Constitution;
The agency takes only that action necessary to protect the public interest under the emergency
procedure; and
The agency states in writing at the time of, or prior to, its action the specific facts and reasons
for finding an immediate danger to the public health, safety, or welfare and its reasons for
concluding that the procedure used is fair under the circumstances. The agency's findings of
immediate danger, necessity, and procedural fairness are judicially reviewable. Summary
suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding
must also be promptly instituted and acted upon.
Obscenity
It is well established that obscenity is not protected by the First and Fourteenth Amendments and is
subject to limited regulation under the police power of states.
20
The United States Supreme Court
15
S. 561.29(1), F.S.
16
S. 561.29(3), F.S.
17
S. 120.51, F.S.
18
S. 120.515, F.S.
19
S. 120.50, F.S., states that only the Legislature and the courts are exempt from the APA.
20
Johnson v. State, 351 So.2d 10, 11 (Fla. 1977); See also, FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (Audience, medium,
time of day, and method of transmission are relevant factors.).
STORAGE NAME: h1423z.DOCX PAGE: 5
DATE: 5/23/2023
developed the test for determining whether material is obscene in United States v. Miller.
21
Florida uses
the Miller test to define obscene material, which refers to the status of material that:
The average person, applying contemporary community standards, would find appeals to the
prurient interest;
Depicts or describes, in a patently offensive way, sexual conduct; and
Taken as a whole, lacks serious literary, artistic, political, or scientific value.
22
The Florida Supreme Court has determined that the applicable community standard to be used in
determining obscenity is the local county standard, explaining that such a standard “permits
maximum protection of materials acceptable in cosmopolitan areas while not forcing more conservative
areas to accept public depiction of conduct they find obscene.”
23
For the purposes of determining obscenity, s. 847.001, F.S., defines the following:
24
“Nudity” means the showing of the human male or female genitals, pubic area, or buttocks with
less than a fully opaque covering; or the showing of the female breast with less than a fully
opaque covering of any portion thereof below the top of the nipple; or the depiction of covered
male genitals in a discernibly turgid state. A mother’s breastfeeding of her baby does not under
any circumstance constitute “nudity,” irrespective of whether or not the nipple is covered during
or incidental to feeding.”
“Sexual conduct” means:
o actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, or sadomasochistic abuse;
o actual or simulated lewd exhibition of the genitals;
o actual physical contact with a person’s clothed or unclothed genitals, pubic area,
buttocks, or, if such person is a female, breast with the intent to arouse or gratify the
sexual desire of either party; or
o any act or conduct which constitutes sexual battery or simulates that sexual battery is
being or will be committed.
o A mother’s breastfeeding of her baby does not under any circumstance constitute
“sexual conduct.”
“Sexual excitement” means the condition of the human male or female genitals when in a state
of sexual stimulation or arousal.
“Simulated” means the explicit depiction of sexual conduct which creates the appearance of
such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.
“Specific sexual activities” to include the following sexual activities and the exhibition of the
following anatomical areas:
(a) Human genitals in the state of sexual stimulation or arousal.
(b) Acts of human masturbation, sexual intercourse, sodomy, cunnilingus, fellatio, or any
excretory function, or representation thereof.
(c) The fondling or erotic touching of human genitals, the pubic region, the buttocks, or the
female breasts.
(d) Less than completely and opaquely covered:
1. Human genitals or the pubic region.
2. Buttocks.
3. Female breasts below the top of the areola.
4. Human male genitals in a discernibly turgid state, even if completely and opaquely
covered.
21
413 U.S. 15 (1973).
22
S. 847.001(12), F.S.
23
Supra note 20.
24
S. 847.001, F.S.
STORAGE NAME: h1423z.DOCX PAGE: 6
DATE: 5/23/2023
Section 847.011, F.S., prohibits a person from doing any of the following acts, when knowingly
committed, relating to specified obscene materials:
25
Selling;
Giving away;
Distributing;
Showing;
Offering or possessing with the intent to sell, lend, give away, distribute, transmit, show, or
transmute;
Designing;
Drawing;
Photographing;
Posing for;
Writing;
Publishing;
Manufacturing;
Preparing;
Advertising; or
Hiring, employing, using, or permitting another person to do any such act.
Additionally, s. 847.011(4), F.S., prohibits a person from knowingly promoting, conducting, performing,
or participating in an obscene show, exhibition, or performance by live persons or a live person before
an audience. A violation of the prohibition is a first degree misdemeanor
26
for a first violation and a third
degree felony
27
for any second or subsequent conviction.
Under s. 847.011(9), F.S., a circuit court has jurisdiction to enjoin a threatened violation of s. 847.011,
F.S., when the state attorney or an attorney for the municipality in which the threatened violation may
occur files a complaint. After the filing of such a complaint, a court may grant an order restraining the
respondent until a final hearing or subsequent court order.
28
The enjoined person is entitled to an
expedited trial and a court decision within two days of the trial.
Material Harmful to Minors
For the purposes of ch. 847, F.S., material which is “harmful to minors” is defined as any reproduction,
imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or
form, depicting nudity, sexual conduct, or sexual excitement when it:
Predominantly appeals to a prurient, shameful, or morbid interest;
Is patently offensive to prevailing standards in the adult community as a whole with respect to
what is suitable material or conduct for minors; and
Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.
Section 847.012, F.S., prohibits a person from knowingly selling, renting, or loaning for monetary
consideration to a minor:
Any picture, photograph, drawing, sculpture, motion picture film, videocassette, or similar visual
representation or image of a person or portion of the human body which depicts nudity
29
or
25
Enumerated materials are a book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or
article, writing, paper, card, picture, drawing, photograph, motion picture film, figure, image, phonograph record, or wire or tape or
other recording, or any written, printed, or recorded matter, or sensory representations, or any article or instrument for obscene use. S.
847.011(1), F.S.
26
A first degree misdemeanor is punishable by up to one year in county jail and a $1,000 fine. S. 775.082 or s. 775.083, F.S.
27
A third degree felony is punishable by up to five years imprisonment and a $5,000 fine. S. 775.082, s. 775.083, or s. 775.084, F.S.
28
The court must set a hearing within 3 days of a request for hearing by the state attorney or municipal attorney. S. 847.011(9), F.S.
29
“Nudity” means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering;
or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or the
STORAGE NAME: h1423z.DOCX PAGE: 7
DATE: 5/23/2023
sexual conduct, sexual excitement,
30
sexual battery,
31
bestiality,
32
or sadomasochistic abuse
33
and which is harmful to minors; or
Any book, pamphlet, magazine, printed matter however reproduced, or sound recording that
contains any matter defined in s. 847.011, F.S., explicit and detailed verbal descriptions or
narrative accounts of sexual excitement, or sexual conduct that is harmful to minors.
A violation of the prohibition is a third degree felony and a court may grant an order restraining a
violation of this section following the same process described for restraining orders under s. 847.011,
F.S.
34
Section 847.013(3), F.S., prohibits a person from knowingly exhibiting for monetary consideration to a
minor or knowingly selling or renting a videotape of a motion picture to a minor or knowingly selling to a
minor an admission ticket or pass or knowingly admitting a minor for monetary compensation to
premises upon which a motion picture, exhibition, show, representation, or other presentation which, in
whole or in part, depicts nudity, sexual conduct, sexual excitement, sexual battery, bestiality, or
sadomasochistic abuse and which is harmful to minors. However, such prohibitions do not apply to a
minor when he or she is accompanied by his or her parent.
35
Additionally, a person may not knowingly rent or sell, or loan to a minor for monetary consideration, a
videocassette or videotape of a motion picture, or similar presentation, which, in whole or in part,
depicts nudity, sexual conduct, sexual excitement, sexual battery, bestiality, or sadomasochistic abuse
and which is harmful to minors. A person who violates any of these prohibitions commits a first degree
misdemeanor.
The State’s Authority to Regulate in Order to Protect Minors
The United States Supreme Court has determined that the state has a "compelling interest in protecting
the physical and psychological well-being of minors," which "extends to shielding minors from the
influence of literature that is not obscene by adult standards."
36
In doing so, however, the means must be narrowly tailored to achieve that end so as not to
unnecessarily deny adults access to material which is constitutionally protected indecent material. No
similar tailoring is required when the material is obscene material, which is not protected by the First
Amendment.
37
In 2004, Florida’s First District Court of Appeal stated:
depiction of covered male genitals in a discernibly turgid state. A mother's breastfeeding of her baby does not under any circumstance
constitute “nudity,” irrespective of whether or not the nipple is covered during or incidental to feeding. S. 847.001(11), F.S.
30
“Sexual excitement” means the condition of the human male or female genitals when in a state of sexual stimulation or arousal. S.
847.001(20), F.S.
31
“Sexual battery” means oral, anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female
genital penetration of another by any other object; however, “sexual battery” does not include an act done for a bona fide medical
purpose. S. 847.001(17), F.S.
32
“Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one
and the mouth, anus, or female genitals of the other. S. 847.001(18), F.S.
33
“Sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or
otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic
violence, from inflicting harm on another or receiving such harm oneself. S. 847.001(16), F.S.
34
See s. 847.012(8), F.S.
35
S. 847.013(3)(c), F.S.
36
Sable Communications v. FCC, 492 U.S. 115 (1989).
37
Ashcroft v. ACLU, 542 U.S. 656 (2004); Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st DCA 2004). But see, Erznoznik v. City of
Jacksonville, 422 U.S. 205 (1975) (Determining regulation overly broad.)
STORAGE NAME: h1423z.DOCX PAGE: 8
DATE: 5/23/2023
It is within the Legislature’s power to determine that certain matter is harmful for
all minors. There is no indication that the definition of harmful matter will change
depending on the age of the minor. … The Legislature has the responsibility and
authority to protect all of our children, even the older ones.
38
Prosthetic Breasts and Genitalia
The Food and Drug Administration (FDA) regulates the sale of medical device products in the United
States and monitors the safety of all regulated medical products.
39
Medical devices includes prosthetic
devices, which is an artificial substitute for a missing body part.
40
Breast prostheses,
41
or breast
implants, are medical devices implanted under the breast tissue or chest muscle to increase breast size
(augmentation) or to replace breast tissue that has been removed due to cancer or trauma or that has
failed to develop properly due to a severe breast abnormality (reconstruction).
42
Breast prosthesis is also a term used for an artificial breast designed to replicate the size, shape, feel,
and weight of a person’s breasts which are typically designed to fit inside a person’s bra cup or stick to
the chest.
43
Additionally, prosthetics, including prosthetic breasts and genitalia, are commonly used in
the entertainment industry.
44
Public Permitting
In general, local governments in Florida have “home rule powers.” General law authorizes counties "the
power to carry on county government” and to "perform any other acts not inconsistent with law, which
acts are in the common interest of the people of the county, and exercise all powers and privileges not
specifically prohibited by law.”
45
More specifically, non-charter county governments may exercise those
powers of self-government that are provided by general or special law.
46
Those counties operating
under a county charter have all powers of self-government not inconsistent with general law or special
law approved by vote of the electors.
47
Likewise, municipalities
48
have those governmental, corporate,
and proprietary powers that enable them to conduct municipal government, perform functions, provide
services, and exercise any power for municipal purposes, except as otherwise provided by law.
49
38
Simmons v. State, 886 So. 2d 399, 405 (Fla. 1st DCA 2004). But see, Ashcroft v. ACLU, 542 U.S. 656 (2004) (Determining
regulations too restrictive in light of the first amendment.).
39
U.S. Food and Drug Administration, FDA’s Role in Regulating Medical Devices, https://www.fda.gov/medical-devices/home-use-
devices/fdas-role-regulating-medical-
devices#:~:text=In%20the%20U.S.%2C%20FDA%20regulates,seek%20approval%20from%20the%20FDA. (last visited Mar. 21,
2023).
40
Encyclopedia Britannica, Prosthesis, https://www.britannica.com/science/prosthesis (last visited Mar. 21, 2023).
41
21 C.F.R. § 878.3530, .3540
42
U.S. Food and Drug Administration, Breast Implants, https://www.fda.gov/medical-devices/implants-and-prosthetics/breast-
implants#:~:text=Breast%20implants%20are%20medical%20devices,severe%20breast%20abnormality%20(reconstruction). (last
visited Mar. 21, 2023).
43
Jenna Fletcher, MedicalNewsToday, Sep. 3, 2021, What types of breast prostheses are available?,
https://www.medicalnewstoday.com/articles/breast-prosthesis (last visited Mar. 21, 2023).
44
For example, see Jessica Harrington, PopSugar, Confessions of a Movie Prosthetics Designer,
https://www.popsugar.com/beauty/movie-prosthetics-designers-interview-48740851 (last visited Mar. 22, 2023).
45
James R. Wolf and Sarah Harley Bolinder, The Effectiveness of Home Rule: A Preemption and Conflict Analysis, 83 Fla. B.J. 92
(June 2009), available at https://www.floridabar.org/the-florida-bar-journal/the-effectiveness-of-home-rule-a-preemption-and-conflict-
analysis/.
46
Art. VIII, s. 1(f), Fla. Const.
47
Art. VIII, s. 1(g), Fla. Const.
48
A municipality is a local government entity created to perform functions and provide services for the particular benefit of the
population within the municipality, in addition to those provided by the county. The term “municipality” may be used interchangeably
with the terms “town,” “city,” and “village.”
49
Art. VIII, s. 2(b), Fla. Const. See also s. 166.021(1), F.S.
STORAGE NAME: h1423z.DOCX PAGE: 9
DATE: 5/23/2023
Generally, a local government may require a permit for certain use of public property for events, like
large gatherings and parades, as long as such requirements adhere to “time, place, and manner”
restrictions.
50
Many local governments across Florida require permits for such use.
51
Recent Events
According to recent news stories, at least three businesses with liquor licenses in the state are currently
being administratively charged by DBPR with violating public nuisance, lewd activity and disorderly
conduct laws. One business is a hotel associated with a performance center, and another is a
performing arts center, which both hosted an event entitled “A Drag Queen Christmas”; and the other is
a restaurant that hosted a drag queen weekend brunch. DBPR is seeking to revoke the liquor licenses
of these businesses.
52
According to the administrative complaint filed by the Director of the Division of Alcoholic Beverages
and Tobacco, one case alleges that the alcoholic beverage licensee hosted “A Drag Queen Christmas,”
and such show did not provide notice about the sexually explicit nature of the performance but initially
stated that all ages were welcome. The division claims it sent a letter to the licensee advising that the
sexually explicit show would constitute “public nuisance, lewd activity, and disorderly conduct when
minors are in attendance” and if the licensee failed to ensure “minors were prohibited” from
performances, its license would be subject to penalties, including revocation.
53
The complaint alleges that the licensee updated advertising to note performances were recommended
for audiences 18 years of age and older. However, the licensee’s admission policies permitted minor
children to attend if they were accompanied by an adult. The complaint alleges that children younger
than 16 years old were knowingly admitted to the show and then details what the performers wore or
did not wear and the acts of “sexual conduct, simulated sexual activity, and lewd, vulgar, and indecent
displays” that were performed.
54
The complaint alleges that the license holder violated six laws: lewd
exhibition, operating a lewd establishment, public exposure, obscene exhibition, breach of the peace,
and public nuisance.
55
The case is pending.
Effect of the Bill
Admitting Children to an Adult Live Performance
50
Ward v. Rock Against Racism, 491 U.S. 781 (1989). Time, place and manner restrictions are content-neutral limitations imposed by
the government on expressive activity. Regulations that require parade or demonstration permits are frequently upheld and represent a
common part of the regulatory landscape in most cities and counties. Middle Tennessee State University, The First Amendment
Encyclopedia, Time, Place and Manner Restrictions, https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-
restrictions (last visited Apr. 12, 2023).
51
For example, see City of Orlando, Request a Permit for a Large Outdoor Event, orlando.gov/Our-Government/Host-an-Event-in-
the-City/Request-a-Permit-for-a-Large-Outdoor-Event (last visited Apr. 12, 2023); City of Miami, City of Miami Assembly Permit
Application, http://archive.miamigov.com/specialevents/docs/Assembly-Permit-Application.pdf (last visited Apr. 12, 2023).
52
Tampa Bay Times, Ana Ceballos and Joey Flechas, Florida goes after liquor license of Miami hotel over drag show, March 14,
2023, https://www.tampabay.com/news/florida-politics/2023/03/14/drag-queen-minors-liquor-license-lgbtq-hotel-miami/
53
Administrative Complaint, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco,
Petitioner, v. HRM Owner, LLC, d/b/a Hyatt Regency Miami, March 14, 2023 (On file with the Senate Committee on Judiciary).
54
Id. See also, Tampa Bay Times, Nicholas Nehamas and Ana Ceballos, Florida undercover agents reported no ‘lewd acts’ at drag
show targeted by DeSantis, March 20, 2023, https://www.tampabay.com/news/florida-politics/2023/03/20/desantis-drag-show-lewd-
liquor-license-complaint-lgbtq/
55
The statutes that were allegedly violated and listed in the complaint were: Lewd or lascivious exhibition in the presence of a minor
less than 16 years of age, s. 800.04(7)(a), F.S.; Operation of any place, structure, building, or conveyance for the purposes of
lewdness, s. 796.07(2)(a), F.S.; The unlawful exposing or exhibiting of one’s sexual organs in public or on the private premises of
another in a vulgar or indecent manner, s. 800.03, F.S.; Knowingly promoting, conducting, performing, or participating in an obscene
show, exhibition, or performance by live persons or a live person before an audience, s. 847.011(4), F.S.; Breach of the peace and
disorderly conduct with acts that are of such nature as to corrupt the public morals, or outrage the sense of public decency, s. 877.03,
F.S.; and Maintaining a nuisance by erecting or maintaining a structure that tends to annoy the community or injure the health or the
community, or becomes manifestly injurious to the morals or manners of the people, s. 823.05(1), F.S..
STORAGE NAME: h1423z.DOCX PAGE: 10
DATE: 5/23/2023
The bill creates s. 827.11, F.S., to prohibit a person from “knowingly admitting” a child to an “adult live
performance.” A person who violates the prohibition commits a first degree misdemeanor, punishable
by up to one year in jail and a $1,000 fine.
The bill defines “adult live performance” as:
“any show, exhibition, or other presentation in front of a live audience which, in whole or in part,
depicts or simulates ‘nudity,’ ‘sexual conduct,’ ‘sexual excitement,’ ‘specific sexual activities’ as
those terms are defined in s. 847.001, F.S., ‘lewd conduct,’ or the ‘lewd exposure of prosthetic
or imitation genitals or breasts’ when it:
o Predominately appeals to a prurient, shameful, or morbid interest;
o Is patently offensive to prevailing standards in the adult community of this state as a
whole with respect to what is suitable material or conduct for the age of the child
present; and
o Taken as a whole, is without serious literary, artistic, political or scientific value for
the age of the child present.”
Neither the bill, nor Florida law, defines “lewd exposure of prosthetic or imitation genitals or breasts.”
The bill, in part, adopts the Miller test for obscenity when defining a prohibited adult live performance.
However, the definition in the bill differs from the Miller test, differs from the definition of obscene
material in s. 847.001, F.S., and also differs from the definition of material which is harmful to minors in
s. 847.001, F.S., by requiring the fact-finder to consider:
Prevailing standards in the adult community of the state, rather than the local community;
What is suitable material or conduct for the age of the child present, rather than the
average person or minor; and
Whether the material, taken as a whole, is without serious literary, artistic, political, or
scientific value for the age of the child present, rather than whether the material generally
has any such value or any such value for the average person or minor.
The bill defines “knowingly” as:
“Having general knowledge of,
Reason to know, or
A belief or ground for belief which warrants further inspection or inquiry of both:
o The character and content of any adult live performance which is reasonably susceptible
of examination by the defendant; and
o The age of the child.”
The bill allows a fact-finder to find a person acted knowingly when a person “admits” a child to an adult
live performance if he or she had knowledge or reason to know of the character and content of such a
performance and of a child’s age, rather than requiring proof that a person who admitted a child knew
that any such performance legally met the definition of an adult live performance.
Similar to provisions in other crimes relating to obscene material, the bill prohibits a person from raising
as a defense to prosecution:
Ignorance of a child’s age,
A child’s misrepresentation of his or her age, or
The person’s bona fide belief of a child’s consent as a defense to prosecution for exposing a
child to an adult live performance.
Public Lodging and Public Food Service Establishment Licenses
STORAGE NAME: h1423z.DOCX PAGE: 11
DATE: 5/23/2023
The bill authorizes H&R to fine, suspend, or revoke the license of a public lodging establishment or
public food service establishment if the establishment ‘admits” a child to an adult live performance in
violation of the newly created statute.
Admitting a child to the performance constitutes an immediate serious danger to the public health,
safety, or welfare for the purposes of s. 120.60(6), F.S., which authorizes emergency suspension,
restriction, or limitation of a license.
The division may issue a $5,000 fine for an establishment’s first violation and may issue a $10,000 fine
for a second or subsequent violation.
Beverage Law Licenses
In a manner similar to the provisions above, the bill authorizes the division to revoke or suspend the
beverage license, or fine the license holder, who is found to maintain a licensed premise that admits a
child to an adult live performance in violation of the newly created s. 827.11, F.S.
A violation of this new provision constitutes an immediate, serious danger to the public health, safety, or
welfare for purposes of s. 120.60(6), F.S., which allows for the emergency suspension, restriction, or
limitation of a license.
The division may issue a $5,000 fine for a first violation and a $10,000 fine for a second or subsequent
violation.
Public Permitting
The bill prohibits a governmental entity from issuing a permit or otherwise authorizing a person to
conduct a performance in violation of s. 827.11, F.S.
The bill provides that if such a performance occurs at an event in which a lawfully issued permit or other
authorization was obtained, the individual who was issued the permit or other authorization commits a
first degree misdemeanor, punishable by up to one year in jail and a $1,000 fine.
The bill defines "governmental entity" as any state, county, district, or municipal officer, department,
division, board, bureau, commission, or other separate unit of government created or established by
law and any other public or private agency, person, partnership, or corporation or business entity acting
on behalf of any public agency.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
Depending on the number of fines authorized in the bill that are imposed, the state could see an
indeterminate increase in revenue.
2. Expenditures:
DBPR may have an indeterminate increase in expenditures based on the investigation and
prosecution of alcoholic beverage licensees, and public lodging and public food service
establishments.
56
The increase is likely to be insignificant and absorbed within existing resources.
56
Florida Department of Business and Professional Regulation, Agency Analysis of 2023 House Bill 1438 (Mar. 6, 2023).
STORAGE NAME: h1423z.DOCX PAGE: 12
DATE: 5/23/2023
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Venues hosting “adult live performances” or other types of performances may have decreased
revenues related to prohibiting such performances or discontinuing similar performances based on a
fear or lack of understanding of the law or fear of violating the law.
D. FISCAL COMMENTS:
None.