CiAC to Hillsborough BOCC, via E Stewart memoranda: miscellaneous short subjects …

 

Consideration of "Community Standards " for Public Access Television

 

 

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memo 11/8/2001: "Direction to CiAC re Public Access (?)":

 

 

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Clerk's minutes of the September 19th Board Meeting discussion of the Public Access Management Agreement;

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4

 

 

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captioned minutes of the September 19, 2001 Board meeting discussion; and

 

 

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3

videotape of the Board's September 19, 2001, discussion regarding the Public Access Management Agreement.

 

 

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West's Florida Statues Annotated

 

 

2

 

18

 

 

 

Letter 9/6/2001 from Mark Ober, reviewing "Insanity Defense" sent him 8/6/01 …

 

 

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Public Access Channels in Florida (31998.doc) - 6

 

 

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Copr. © West 2000 No Claim to Orig. U.S. Govt. Works

 

FL ST s 847.001

West’s F.S.A. § 847.001

 

WEST'S FLORIDA STATUTES ANNOTATED

TITLE XLVI. CRIMES

CIIAPTER 847. OBSCENE LITERATURE; PROFANITY

 

Copt'. © West Group 1999. MI rights reserved.

Current through End of 1999 1st Reg. Sess.

 

§47.001.            Definitions

 

When used in this chapter:

 

(1)        "Computer" means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions and includes any data storage facility or communications facility directly related to or operating in conjunction with such device.  The term also includes: any on-line service, internet service, or local bulletin board; any electronic storage device, including a floppy disk or other magnetic storage device; or any compact disc that has read-only memory and the capacity to store audio, video, or written materials.

 

(2)        "Deviate sexual intercourse" means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the month and tile penis, or the month and the vulva. 

 

(3)        "Harmful to minors" means that quality of any description, exhibition, presentation, or representation, in whatever form, of nudity, sexual conduct, or sexual excitement when it: 

 

(a)        Predominantly appeals to the prurient, shameful, or morbid interest of minors;

 

(b)        Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

 

(c)        Taken as a whole, is without serious literary, artistic, political, or scientific value for minors. 

 

A mother’s breastfeeding of her baby is not under any circumstance "harmful to minors." 

 

(4)        "Minor" means any person under the age of 18 years.

 

(5)        "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.

 

(6)        "Person" includes individuals, firms, associations, corporations, and all other groups and combinations.

 

(7)        "Obscene" means the status of material which:

 

(a)        The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

 

(b)        Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and

 

(c)        Taken as a whole, lacks serious literary, artistic, political, or scientific value. 

 

A mother's breastfeeding of her baby is not under any circumstance "obscene."

 

(8)        "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. 

 

(9)        "Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of' another by any other object; however, "sexual battery" does not include an act done for a bona fide medical purpose.

 

(10)       "Sexual bestiality" means any sexual act between a person and an animal involving the sex organ of the and the mouth, anus, or vagina of the other.

 

(11)       "Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.  A mother's breastfeeduig of her baby does not under any circumstance constitute "sexual conduct"

 

(12)       "Sexual excitement" means the condition of the human male or female genitals when in a state of sexual stimulation or arousal.

 

(13)       "Simulated" means the explicit depiction of conduct described in subsection (11) which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.

 

 

State Attorney, etc.  Thirteenth Judicial District, Tampa etc.

 

September 6, 2001

 

The Honorable Emeline C. Acton

County Attorney

Post Office Box 1110

Tampa, Florida  33601

 

Dear Ms. Acton:

 

            I have personally reviewed the videotape of the show

entitled "Insanity Defense" sent to my office on August 7,

2001.   Additionally,  I have read not only the verbatim

minutes of the Board meeting of August 2, 2001~ but viewed a

videotape of that forum.

 

            After my review, and the review of several members of my

staff, it is my opinion that while the content of that show

is offensive,  it is neither obscene nor pornographic as

defined by current statutory and case law. 

 

            If I can be of any further assistance in this or other

matters of mutual concern, please do not hesitate to contact

me.

 

Sincerely yours,

MARK A OBER

 

MAO/fm

 

 

PUBLIC ACCESS CHANNELS IN FLORIDA

 

A.         HILLSBOROUGH COUNTY

 

1.         Operated by public non-profit organization, same as Tampa's

2.         Contact:  Greg Koss, Executive Director, Speak-Up Tampa Bay Public Access Television, Inc.

3.         Production Facility is owned by University of Tampa

4.         County and City Funded

5.         Content regulations prohibit obscene, libelous, and slanderous speech; lottery, gambling, or pari-mutual schemes; commercial

speech; solicitation of funds; and unauthorized copyrighted or trademarked materials; and promotions on behalf of political candidates

 

 

B.         MIAMI-DADE COUNTY

 

1.         Operated by County School Board

2.         Contact: Bernadette Siy, Project Manager, Cable TV Access Proj ecj, 305-995-2187

3.         Production Facility is owned by School Board

4.         County Funded

5.         User regulations require that only non-profit organizations and educational institutions produce shows (School Board handles technical production, producers decide content of programs, one representative of organizations receives non-technical training)

6.         Content regulations prohibit religious, commercial, and political speech involving specific issues or candidates

7.         Due to nature of restrictions, some would not consider this to be a Public Access Channel; station represents itself as offering "community access"

 

C.         PASCO

 

1.         Operated by Cable OperatQr

2.         Contact: David Wilson, Creative Services Producer, Time Warner Cable 727-856-3278

3.         Production Facility is owned by Cable Operator

4.         Funded by Cable Operator

5.         Content regulations prohibit advertising, unauthorized copyrighted works, and obscenity

6.         Channel is also used for educational and government access shows since there are insufficient public access shows

 

 

D.         PINELLAS

 

1.         Operated by County

2.         Contact: Ronnie Goodstein, Director, Public Affairs Dept. 727-464-4600

3.         Production Facility is owned by County

4.         County Funded

5.         Content regulations prohibit obscenity, and commercial speech; there are time restrictions on adult programming

 

E.         TAMPA

 

1.         Operated by public non-profit organization, same as Hilisborough County's

2.         Contact: Greg Koss, Executive Director, Speak-Up Tampa Bay Public Access Television, Inc.

3.         Production Facility is owned by University of Tampa

4.         County and City Funded

5.         Content regulations prohibit obscene, libelous, and slanderous speech; lottery, gambling, or pari-mutual schemes; commercial speech; solicitation of funds; unauthorized copyrighted or trademarked materials; and promotions on behalf of political candidates

 

F.         UNIVERSITY OF WEST FLORIDA IN PENSACOLA (UWF-TV)

 

1.         Operated by University

2.         Contact: Sandra Thompson, Director, UWF-TV, 850-474-2509

3.         Production Facility is owned by University

4.         University Funded

5.         Content regulations prohibit any material that is obscene, libelous or slanderous as defined by federal, state or local laws; political candidate announcements; material designed to promote the sale of commercial products or services; solicitation of funds; lottery, gambling or pari-mutual schemes; and unauthorized copyrighted materials

6.         Only produces one hour of public access programming per week; channel is primarily used for Educational and Government Access

 

 

BOARD OF COUNTY COMMISSIONERS

Office of the County Attorney

 

County Center

601 IE. Kennedy Blv4 -- 27th Floor

Mailing Address:

P.O. Box 1110

Tampa, Florida 33601

(813) 272-5670

Fax (813) 272-5231

 

MEMORANDUM

 

TO:             Board of County Commissioners

 

FROM:        Emeline C. Acton, County Attorney

 

DATE:         November 8, 2001

 

SUBJECT:   Direction to Citizens Advisory Committee regarding Public Access

 

Pursuant to your request during yesterday's Board Meeting, enclosed please find the following:

 

1.         Clerk's minutes of the September l9th Board Meeting discussion of the Public Access Management Agreement;

2.         captioned minutes of the September 19, 2001 Board meeting discussion; and

3.         videotape of the Board's September 19, 2001, discussion regarding the Public Access Management Agreement.

 

The Board's motion on September 19th can be found at page 4 of the Official Minutes and at page 20 of the Captioned Minutes.

 

            The Board requested the enclosed items to review the actions taken on September 19, 2001, and perhaps to narrow the scope of the assignment to the Citizens Advisory Committee (CAC).

 

            The CAC's next meeting is scheduled for November 16, 2001.  Accordingly, if the Board desires to narrow or clarify the assignment to the Citizens Advisory Committee this matter could be scheduled for the November 13, 2001 Land Use meeting.

 

ECA/saa

Attachments

 

cc:        Daniel A. Kleman, County Administrator

            Eric Johnson, Director, Management and Budget

            Christine M. Beck, Chief Assistant County Attorney

            Orlando Perez, Senior Assistant County Attorney

 

PMTI 33695.doc

01-002164

 

 

Clerk's minutes of the September l9th Board Meeting discussion of the Public Access Management Agreement

 

WEDNESDAY, SEPTEMBER 19, 2001 (Book 304 handmarked pp 1-6)

 

ITEMS WITHHELD FROM THE CONSENT AGENDA - 11:15 A.M. TIME CERTAIN

 

A-51     Approve and execute an agreement with Speak Up Tampa Bay Public Access Television, Incorporated (Speak Up), for the period October 1, 2001, to September 30, 2003, in the amount of $355,443 annually.  The agreement would be added to the list of flagged items for the FY 2002-2003 budget that the Board would take up at the public hearing on September 20, 2001. 

 

Chairman Frank said a number of people wanted to address the issue.  She asked if there was a resolution to the issue before anyone spoke.   Commissioner Platt moved that the Board break for lunch, be back there at one o'clock rather than 1:30 p.m., and that item be first on the agenda, seconded by Commissioner Hart.  Mr. Ralph Hughes, representing the taxpayers for the city of Temple Terrace, asked to be heard; he could not return to the meeting later.  The motion carried six to zero.  (Commissioner Scott was out of the room.)   Mr. Hughes opposed the expenditures of Temple Terrace County tax dollars to fund a television station that was not allowed to broadcast within Temple Terrace.  He asked the Board to deduct those tax dollars from Temple Terrace and use those moneys to help people in need.  Ms. Antonia Provatas, 11306 Stratton Park Drive, supported funding.  Chairman Frank said the other speakers would be heard at 1:00 p.m.

 

Chairman Frank called a recess at 12:10 p.m., and reconvened the meeting at 1:10 p.m.  (Commissioner Scott returned at 1:48 p.m.)

 

Ms. Louise Thompson, Speak Up, said Speak Up had already addressed the issues of free speech, plans for public access, good works, and that 15 months was not enough time to turn around a dilapidated facility with a poor image.  She implored the Board to give Speak Up more time.  The controversial program was not found to be unlawful by either the County Attorney or State Attorney.  At issue was Speak Up's contract.  Any argument that the contract not be signed or to deny funding, based on the reaction of displeasure or rage regarding the content of programming was and could be interpreted as censorship.   Ms. Thompson spoke about the Internal Revenue Service definition for taxpayer. She did not want to use ad valorem tax money for funding.  Franchise fees that had been coming to the County for a long time used to go into a separate fund, but now that was part of the General Fund.  Speak Up had received funds from the General Fund. 

 

Mr. Mark Schonbrun, 1802 North Morgan Street, spoke about the uniqueness of public access television and explained Speak Up was not allowed to censor programming.  Mr. Gene Adler, 304 Second Avenue Southeast, Lutz, producer; Mr. Dean Chambers,  2402 Harper Street, producer; and Mr. Brad Jackson, 2804 University Square Drive, supported funding Speak Up.  Commissioner Platt moved approval of the contract as presented. 

 

Commissioner Storms recognized much had been said supporting Speak Up; however, she wanted the Board to understand her perspective on the matter. The issue came about as result of a letter to the editor in The Tampa Tribune on April 7,  2001, by the chairman of Speak Up that included inaccurate statements.  Commissioner Storms had no doubt that the video she had described in an earlier meeting was played after Speak Up took over.   There was no evidence of the videotape, because videotapes were routinely taped over.  Commissioner Storms expressed concern about destruction of public records; leadership, the quality of character and integrity of the person who served as the chairman; and spending $325,000 to fund Speak Up when those funds could be sent to other organizations, to Parks and Recreation, and to keep children in a safe environment that other people would enjoy.  For those people who lived in Temple Terrace whose government did not show public access, Commissioner Storms asked that money be backed out proportionately for Temple Terrace if funding were approved.  

 

Commissioner Hart recalled looking at how to address offensive material on public access.  He spoke about using a not-for-profit organization and setting community standards.   Scope' of services in the contract said policies and procedures would be maintained and any amendment would be submitted to the Tampa-Hillsborough County Cable Advisory Committee for review and comment before implementation.  Commissioner Hart opined the language was weak.  No one approved the contract.  Review and comment did nothing and did not provide responsibility.  Commissioner Hart expressed similar concern about performance review, implementation, goals, certified individuals  and quality and quantity of service.  If those things had not been defined, the Board needed to meet with Speak Up and the Cable Advisory Committee, have a workshop, and help define those issues.   The contract stipulated Speak Up would not have authority to control the content of programming placed on the public access channel so long as programming was lawful.   He asked what happened to community standards, because setting community standards was lawful.  He did not want to go forward without setting those standards.  The Board had worked to correct that six years ago and had a responsibility to set standards. 

 

Commissioner Scott apologized for his tardiness;. he was unaware the Board had reconvened  at  1:00  p.m.    Commissioner  Scott  seconded  the motion  for discussion.  (The motion was not voted on.)  Commissioner Scott had committed to continuing the contract before Commissioner Storms presented her issues.  He had reviewed the tapes, which were despicable and offensive.  The issue for him was the greater good.  Many ministries/churches could not afford to go on television and would be impacted if funding were denied.  He wanted to be sure there was no obscenity or nudity, while having a contract in place that would allow Speak Up to continue.  He did not support people disrespecting Board members. 

 

Commissioner Norman did not know if the Board should take action to spend dollars on public access from a community whose government had taken action not to invest in public access.  Commissioner Norman asked to amend the motion to ask Temple Terrace City Council to give the Board input on withdrawing their funds and their citizen participation on public access; he wanted Temple Terrace to give the Board direct reaction and if Temple Terrace would like their money withdrawn from that allocation.  Commissioner Platt did not accept that as an amendment. 

 

Commissioner Norman moved to amend the main motion to ask the city of Temple Terrace to give the Board input on withdrawing their funds, their piece of the investment, and in relationship to their citizen participation.  Commissioner Storms seconded the amendment.   (The second was subsequently withdrawn.)  Chairman Frank asked what the amendment meant,  how much money would be affected, and what was the position of Temple Terrace.   If the issue went beyond the end of September, the Board would be back in the same place in terms of not having the contract finalized. 

 

Mr. Kieman did not know if there was a way to pass that savings back to Temple Terrace, if that was the intent; however, there could be a lower contract figure to recognize that.  Commissioner Platt would not support the amendment; if Temple Terrace felt strongly about the issue, the Board would have heard from Temple Terrace long ago.  Commissioner Hart would not support the amended motion.  For the time remaining to address the issue, the Board should block some money, $250,000 or $350,000, whatever the amount was, and put that in an account.  Meanwhile, the Board should take no more than 90 days to address the issues he had raised about standards and an approval process. 

 

Chairman Frank said programs on public access were terrible before Speak Up took over.  Speak Up and the County Attorney's Office worked out language for the contract that was compatible with the Constitution.  Even though community standard was not defined, it was recognized by the courts and was applied to the community.  Chief Assistant County Attorney Christine M. Beck confirmed that information.  Commissioner Hart asked how a not-for-profit group could be inconsistent with Board direction and community standards. 

 

Commissioner Storms opined using the Citizens Advisory Committee, not the Cable Advisory Committee,  to set community standards would be legally defensible.  The Board would not be in a position of censorship.  She asked the Board to refer the issue of setting community standards to the Citizens Advisory Board and incorporate the Citizens Advisory Board into the contract so they would be the standard-bearers for community standards. 

 

In reply to Commissioner Platt, Attorney Beck said the only language that had been changed in the contract related to franchise fees.   Senior Assistant County Attorney Orlando Perez explained the language had been in effect since July 2000.   The contract language required Speak Up to adopt rules and procedures that would prohibit obscenity.   Not all speech was protected.  Something obscene was not protected.  Obscene programming would subject the producer, and possibly others, to prosecution by the State Attorney's Office. 

 

Commissioner Platt, as an elected politician, did not want to assume the right to decide what everyone else would see, and she would not participate in altering the contract language based on one program.  Federal laws dealt with pornography.

 

Commissioner Easterling agreed the contract language was vague, and she needed a clearer definition on some issues.  Although Commissioner Easterling did not want to pull funding, she supported the Citizens Advisory Committee providing the Board with an opinion on what the community standard should be.  Mr. Frank Turano,  Cable Television Administrator, Management and Budget Department, explained the problem was in the contract clause that said if money was not appropriated, Speak Up was not responsible for performing under the contract.  Commissioner Scott asked if the contract could be extended for 30 days, so Board members who wanted to have input or forward issues to the Citizens Advisory Committee could do so, appropriate funding for 30 days, and put the remaining funds in a special account until the Board made a decision. 

 

Chairman Frank opined Speak Up had done everything it could.  The videotape was sent to the State Attorney's Office who found nothing wrong.  She did not see the point in putting people through more anguish. 

 

Commissioner Norman suggested voting on the motion and having Commissioner Hart make a recommendation for a six-month window for Speak Up to meet with the Citizens Advisory Committee.  Ms. Marilyn Smith, Cable Advisory Committee member, explained the Cable Advisory Committee did not have a seat on the Citizens Advisory Committee.    The Cable Advisory Committee unanimously supported the actions of Speak Up. 

 

After withdrawing her second to the amendment, Commissioner Storms moved to do a budget amendment, get them there for six months, work 'on the contract to adopt the points Commissioner Hart raised,  to address those points of community standards utilizing the Citizens Advisory Committee. as the community standard-bearer.   In reply to Commissioner Storms, Attorney Beck said which group would assist in the matter was within the prerogative of the Board.  Commissioner Easterling seconded the motion.  Commissioner Storms preferred to use the Citizens Advisory Committee, because they referred multiple issues to the Board and were the standard-bearer for community standards on almost every other issue with which the Board dealt.  Commissioner Scott asked about the remaining funds and whether five affirmative votes would be required to transfer those funds from reserves.  Commissioner Storms said the remaining funds would be held in reserve.  Mr. Kleman said five votes would be required to transfer funds from reserve for contingency; a reserve held specifically for the proposed purpose would require a majority of a quorum.  Commissioner Norman asked if the motion included an opportunity for the city of Temple Terrace to speak to the Citizens Advisory Committee.   Commissioner Storms included that in the motion; Commissioner Easterling agreed.   Mr. Kleman received clarification from Commissioner Storms that the motion approved the contract as written for six months for one-half the annual amount, until the contract could be amended to include the items Commissioner Hart raised which included the community standard issue; and the Board's community standard-bearer would be the Citizens Advisory Committee. 

 

Chairman Frank thought the Cable Advisory Committee should also advise the Citizens Advisory Committee.  Commissioner Storms opined the Citizens Advisory Committee would take a report from the Cable Advisory Committee; however, the Citizens  Advisory Committee  would make  that  decision.    For fairness, Commissioner Norman suggested the Cable Advisory Committee appoint an ad hoc member to sit in those meetings.  Commissioners Storms and Easterling accepted that as an amendment.  Commissioner Platt would not support the motion, which ultimately aimed at censorship. 

 

Mr. Greg Cox, executive director, Speak Up, said structures, policies, and procedures were in place to use the facility.  The proposed contract language was almost identical to the five-year contract Speak Up had with the city of Tampa.   Commissioner Hart wanted the Cable Advisory Committee to continue working with Speak Up on the contract, but parallel to that, he also wanted the Citizens Advisory Committee to provide a recommendation on community standards.   Chairman Frank opposed the motion.   Speak Up had set every standard in place that was possible and had cleaned up the programming.  Chairman Frank did not want to revisit the issue in six months, because it would become more controversial.   Programming was being done properly, complied with all the standards of the constitution, nothing illegal had happened, and there was no reason to deny funding.  The motion carried four to three; Chairman Frank and Commissioners Platt and Scott voted no.  (01-1357)

 

B-8       Approve in concept the Livable Roadways Task Force (LRTF) recommendations as indicated in attachment A as means of improving the appearance of County  roadways  and  gateways  with  implementation  and  funding considerations to be decided during the FY 2004-2005 budget process. 

 

Mr. Kleman suggested deferring item B~8, which required no action, to the next meeting; he suggested addressing items withheld from the Consent Agenda at 4:15 p.m.  Commissioner Hart so moved, seconded by Commissioner Easterling, and carried six to zero.  (Commissioner Storms was out of the room.) 

 

E-1  Consideration  of extension  of County  Administrator's  employment agreement. REVISITED.

 

Commissioner Easterling said there might have been some confusion with the motion regarding the County Administrator's contract.   She had wanted the contract to go four years, to November 1, 2005, and for it to be treated as a continuing contract, as in the past.  The only difference for her was the severance issue.  She wanted other Board members to understand that was her ... (ed note: preceding not carried to page 6)

 

E-11      Discussion  regarding Governor's  task  force  on  airports and ports regarding constitutional amendment.  (Chairman Frank)  Addressed earlier in the meeting.

 

E-12      Discussion regarding payment of overtime to employees during Tropical Storm Gabrielle.  (Commissioner Storms)  Continued to September 20, 2001. 

 

F.         STAFF REPORTS

 

COUNTY ADMINISTRATOR'S OFFICE

 

F-1       Report regarding County Administrator's meeting with Southwest Florida Water Management District on August 20,  2001.    (Deferred from the September 5, 2001, regular Board meeting.)  Continued to September 20, 2001.

 

HUMAN RESOURCES DEPARTMENT

 

F-2       Receive Human Resources Department report regarding response to County audit conducted by the Clerk1s Office on the Hillsborough  County employee benefits contract.  Continued to September 20, 2001. 

 

There being no further business, the meeting was adjourned at 5:45 p.m.

 

            READ AND APPROVED:           CHAIRMAN        ATTEST: