The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: SB 1438
INTRODUCER: Senators Yarborough and Perry
SUBJECT: Protection of Children
DATE: March 29, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Davis Cibula JU Favorable
2. Davis Twogood RC Favorable
I. Summary:
SB 1438 prohibits a person from knowingly admitting a child to an adult live performance. In
broad, general terms, an adult live performance is a presentation that depicts or simulates nudity,
sexual conduct, or specific sexual activities. 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.
If a person who knowingly admits a child to an adult live performance has a license to operate a
public lodging establishment or a public food service or has a beverage license, he or she is
subject to having that license suspended or revoked and being fined. The fine for a first violation
is $5,000 and the fine for a second or subsequent violation is $10,000.
The bill takes effect upon becoming law.
II. Present Situation:
The Division of Hotels and Restaurants (Section 1)
Lodging and Food Establishments
The Division of Hotels and Restaurants, within the Department of Business and Professional
Regulation, 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
1
Section 509.032(1), F.S.
2
Section 509.032(2)(b), F.S.
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Licensure
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.3
Penalties
If a public lodging or food service establishment operates in violation of chapter 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 chapter 509.4
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.5
Grounds for Fining, Suspending, or Revoking a License
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.6
Beverage Law (Section 2)
The Division of Alcoholic Beverages and Tobacco within the Department of Business and
Professional Regulation is responsible for 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.7
Licensure Qualifications
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.8
3
Section 509.241(1) and (2), F.S.
4
Section 509.261(1), F.S.
5
Section 509.261(5)(a), F.S.
6
Section 509.261(6)(a) and (b), F.S.
7
Section 561.02, F.S.
8
Section 561.15(1), F.S.
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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 chapter 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.9
All licenses issued by the division are issued as annual licenses.10
Licensure Revocation and Suspension
The division is authorized to revoke or suspend the license of any person who:
 Violates 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.
 Violates any laws of this state or any state or territory of the United States.
 Maintains a nuisance on the licensed premises.
 Maintains premises that are unsanitary or are not approved as sanitary.
 Violates any rule promulgated by the division in accordance with the provisions of chapter
561, F.S., or laws relating to the activities on the premises.
 Has an unqualified person who is holding an interest in the license or the licensed business.
 Has a person who is required to be qualified by the division as a condition for the issuance of
the license but is not qualified.
 Fails 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.
 Fails to maintain the premises in an active manner in which the licensed premises are open
for business to the public for the retail sale of authorized alcoholic beverages during regular
and reasonable business hours for specified times.
 Fails 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.
 Fails to comply with a stipulation, consent order, or final order.11
Penalties
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
9
Section 561.15(1) and (2), F.S.
10
Section 561.26, F.S.
11
Section 561.29(1), F.S.
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determined by the division. However, the division may suspend the imposition of a penalty when
the division, in its discretion, deems it appropriate.12
Freedom of Speech and the Protection of Minors
Background
Freedom of speech is guaranteed to citizens in the United States Constitution and the State
Constitution.13 As a foundational principle, this prohibits the government from dictating what
people “see or read or speak or hear.”14 However, there are limits to the freedom of speech; it is
not absolute. Categories of speech that do not enjoy complete protection include defamation,
incitement, obscenity, and pornography involving real children.15
Courts have held, as a bedrock principle of the First Amendment, that a government may not
prohibit or suppress the expression of an idea simply because an audience finds the idea
offensive or disagreeable.16 When evaluating what constitutes the free speech rights of adults, the
U.S. Supreme Court held, “[W]e have made it perfectly clear that ‘[s]exual expression which is
indecent but not obscene is protected by the First Amendment.’”17 Stated slightly differently, this
means that some forms of pornography are protected under the Constitution, but obscenity is not.
The Miller Test
In 1973, the U.S. Supreme Court developed a three-prong test in Miller v. California,18 to define
whether speech is obscene. According to the Miller test, speech is determined to be obscene if:
 The average person, applying contemporary community standards would find that the work,
taken as a whole, appeals to the prurient interest;
 The work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and
 The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.19
The Miller test is incorporated into the definition of what is “harmful to minors” in s. 847.001(6),
F.S., and “obscenity” in s. 847.001(12), F.S.
The State’s Authority to Protect Minors
In a 2004 decision, the First District Court of Appeal stated:
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
12
Section 561.29(3), F.S.
13
The United States Constitution states, “Congress shall make no law … abridging the freedom of speech.”
U.S. CONST. amend. I. The State Constitution similarly states “No law shall be passed to restrain or abridge the liberty of
speech or of the press.” Fla. Const. art. I, s. 4.
14
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245 (2002).
15
Id.
16
Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd, 502 U.S. 105, 118 (1991).
17
Ashcroft, 245, quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).
18
Miller v. California, 413 U.S. 15 (1973).
19
Id.at 24.
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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.20
Similarly, and in another 2004 decision, the First District Court of Appeal held:
The state has a compelling interest in protecting the physical and
psychological well-being of children, which extends to shielding minors
from matter that is not obscene by adult standards, but the means must be
carefully tailored to achieve that end.21
Statutes Protecting Minors from Harmful Material
Section 847.0138, F.S., provides third degree felony penalties for a person who knew or believed
that he or she was transmitting an image that is harmful to minors to someone known by the
defendant to be a minor. Similarly, s. 847.0133, F.S. prohibits a person from knowingly selling
or distributing any obscene material to a minor. The penalty for violating the statute is a third
degree felony.
In ch. 847, the chapter containing obscenity crimes, a minor or child is defined to mean any
person, whose identity is known or unknown, who is younger than 18 years of age. “Harmful to
minors” is defined to mean any exhibition, or representation depicting nudity, sexual conduct, or
sexual excitement that meets the three prongs of the Miller test.
Recent Events
According to a recent administrative complaint filed by the Director of the Division of Alcoholic
Beverages and Tobacco, a licensed vendor of alcoholic beverages was alleged to have hosted “A
Drag Queen Christmas” on its premises last December. The six count complaint alleges that the
show did not provide notice about the sexually explicit nature of the performance but initially
stated that all ages were welcome. The division sent a letter to the license holder notifying him
that the sexually explicit show would constitute “public nuisances, lewd activity, and disorderly
conduct when minors are in attendance” and if the license holder failed to ensure that minors
were prohibited from attending the performances, its license would be subject to penalties,
including revocation.22
The complaint states that the license holder updated its advertising to note that the performances
were recommended for audiences 18 years of age and older. However, the license holder’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.23
20
Simmons v. State, 886 So. 2d 399, 405 (Fla. 1st DCA 2004).
21
Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st DCA 2004).
22
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).
23
Id.
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The complaint alleges that the license holder violated six laws24 of the state by hosting the show
and its license should be revoked. The license holder may now request an informal hearing in
which there are no disputed issues of material fact or request a formal hearing and dispute the
issues alleged in the complaint.
III. Effect of Proposed Changes:
Exposing Children to an Adult Live Performance (Section 3)
The bill defines the term “adult live performance” and establishes a first degree misdemeanor
penalty for any person who is found guilty of knowingly admitting a child to an adult live
performance. A first degree misdemeanor is punishable by imprisonment that does not exceed 1
year and a fine that does not exceed $1,000. A “child” is defined in ch. 827, the abuse of children
chapter, to mean any person under the age of 18 years.
Adult Live Performance Defined
An “adult live performance” is defined as any show, exhibition, or other presentation that is
performed in front of a live audience and 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.
The Miller Test for Obscenity
The performance must then meet all three prongs of the obscenity test described in the Miller
decision, meaning that the performance must:
 Predominantly appeal to a prurient, shameful, or morbid interest;
 Be 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
 Taken as a whole, be without serious literary, artistic, political, or scientific value for the age
of the child present.
This language is very similar to the existing definition of what is “harmful to minors” in ch.
847.001, F.S., the chapter dealing with obscenity.
The Element of Knowledge
For a violation to occur under this statute, the defendant must knowingly admit a child to an adult
live performance. “Knowingly” is defined to mean that someone has a general knowledge of,
24
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 exhibit