These regulations are adopted by the Town Board under the authority
granted by §§ 60.62, 61.35, 62.23(7) and 66.0103, Wis.
Stats. This chapter may be referred to as the "Adult-Oriented Establishments"
is hereby adopted as part of the Code of the Town of Cedarburg, Ozaukee
County, Wisconsin, pursuant to § 66.0103, Wis. Stats.
The following words, terms and phrases, when used in this chapter,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
ADULT ARCADE
Any place to which the public is permitted or invited, wherein
coin-operated or slug-operated or electronically, electrically, or
mechanically controlled or still or motion picture machines, projectors,
or other image-producing devices are regularly maintained to show
images to five or fewer persons per machine at any one time, and where
the images so displayed are distinguished or characterized by their
emphasis upon matters exhibiting specified sexual activities or specified
anatomical areas.
ADULT BOOKSTORE or ADULT VIDEO STORE
A.
A commercial establishment that has as a significant or substantial
portion of its stock-in-trade, or derives a significant or substantial
portion of its revenues or devotes a significant or substantial portion
of its interior business or advertising, or maintains a substantial
section of its sales or display space for the sale or rental, for
any form of consideration, of any one or more of the following:
(1)
Books, magazines, periodicals or other printed matter, or photographs,
films, motion pictures, videocassettes, compact discs, slides or other
visual representations, which are characterized by their emphasis
upon the exhibition or display of specified sexual activities or specified
anatomical areas; or
(2)
Instruments, devices or paraphernalia which are designed for
use or marketed primarily for stimulation of human genital organs
or for sadomasochistic use or abuse of the user or others.
B.
A commercial establishment may have other principal business
purposes that do not involve the offering for sale or rental of material
depicting or describing specified sexual activities or specified anatomical
areas and still be categorized as adult bookstore or adult video store,
so long as one of its principal business purposes is the offering
for sale or rental for consideration the specified materials that
depict or describe specified sexual activities or specified anatomical
areas. A principal business purpose need not be a primary use of an
establishment so long as it is a significant use based upon the visible
inventory or commercial activity of the establishment. This definition
shall expressly exclude films, motion pictures, videocassettes, slides
or other similar photographic reproductions given an "R" rating by
the Motion Picture Association of America.
ADULT CABARET
A.
A nightclub, dance hall, bar, restaurant, or similar commercial
establishment which regularly features:
(1)
Persons who appear seminude;
(2)
Live performances that are characterized by the exposure of
specified sexual activities or specified anatomical areas; or
(3)
Films, motion pictures, videocassettes, slides or other photographic
reproductions which are characterized by the exhibition or display
of specified sexual activities or specified anatomical areas.
B.
This definition shall expressly exclude films, motion pictures,
videocassettes, slides or other similar photographic reproductions
given an "R" rating by the Motion Picture Association of America.
ADULT ENTERTAINMENT
Any exhibition of any motion picture, videocassette, live
performance, display or dance of any type which has as its dominant
theme or is distinguished or characterized by an emphasis on any actual
or simulated specified sexual activities, specified anatomical areas,
the removal of articles of clothing or partial or total nude appearance.
ADULT ENTERTAINMENT STORE
An establishment including in its stock in trade for sale,
rent, lease, inspection or viewing books, films, videocassettes, novelties,
magazines or other periodicals which have as their dominant theme
or are distinguished or characterized by their emphasis on matters
depicting, describing or relating to specified sexual activities or
specified anatomical areas.
ADULT MINITHEATER
An enclosed building with a capacity of less than 25 persons
used for presenting adult entertainment having as its dominant theme
or distinguished or characterized by an emphasis on matters depicting,
describing or relating to specified sexual activities or specified
anatomical areas for observation by patrons.
ADULT MOTEL
A hotel, motel or similar commercial establishment, which:
A.
Offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films,
motion pictures, videocassettes, slides or other photographic reproductions,
which are characterized by the depiction of specified sexual activities
or specified anatomical areas; and has a sign visible from the public
right-of-way which advertises the availability of this adult type
of photographic reproductions;
B.
Offers a sleeping room for rent for a period of time that is
less than 10 hours; or
C.
Allows a tenant or occupant of a sleeping room to subrent the
room for a period of time that is less than 10 hours.
ADULT MOTION PICTURE THEATER
A commercial establishment where, for any form of consideration,
films, motion pictures, videocassettes, slides, or similar photographic
reproductions are regularly shown which are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas. This definition shall expressly exclude films, motion pictures,
videocassettes, slides or other similar photographic reproductions
given an "R" rating by the Motion Picture Association of America.
ADULT-ORIENTED ESTABLISHMENTS
Means, but is not limited to, adult arcades, adult bookstores
or adult video stores, adult motel, adult motion picture theater,
escort agency, adult entertainment stores, adult theaters, adult mini-theaters,
adult cabarets and sexual encounter centers.
BOARD
The Town Board for the Town of Cedarburg, Ozaukee County,
Wisconsin.
DIRECTLY
To require physical contact. For instance, when this chapter
prohibits an employee to receive a gratuity "directly" from a patron,
it prohibits the direct touching of skin, other body parts or clothing.
DISTINGUISHED OR CHARACTERIZED BY
The dominant or principal theme of the object referenced.
For instance, when the phrase refers to films "which are distinguished
or characterized by an emphasis upon the exhibition or display of
specified sexual activities or specified anatomical areas," the films
so described are those whose dominant or principal character and theme
are the exhibition or display of specified sexual activities or specified
anatomical areas.
EMPLOYEE, EMPLOY and EMPLOYMENT
Describe and pertain to any person who performs any service
on the premises of an adult-oriented business on a full-time, part-time,
or contract basis, regardless of whether the person is denominated
as an employee, independent contractor, agent, or by another status.
"Employee" does not include a person exclusively on the premises for
repair or maintenance of the premises, or for the delivery of goods
to the premises.
ESCORT
A person who, for consideration, and for another person,
agrees or offers to privately model lingerie or to privately perform
a striptease.
ESCORT AGENCY
A person or business association who furnishes, offers to
furnish, or advertises to furnish escorts as one of its primary business
purposes for a fee, tip or other consideration.
ESTABLISH or ESTABLISHMENT
Includes any of the following:
A.
The opening or commencement of any adult-oriented business as
a new business;
B.
The conversion of any existing business, whether or not an adult-oriented
business, to any adult-oriented business;
C.
The addition of any adult-oriented business to any other existing
adult-oriented business; or
D.
The relocation of any adult-oriented business.
LICENSEE
A person in whose name a license to operate an adult-oriented
business has been issued, as well as the individual listed as an applicant
on the application for a license.
OPERATOR
Any person, partnership, corporation or other organization
operating, conducting, maintaining or owning any adult-oriented establishment.
PERSON
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
PREMISES
The real property upon which the adult-oriented business
is located, and all appurtenance thereto and buildings thereon, including
but not limited to the adult-oriented business grounds, the private
walkways, and parking lots and/or parking garages adjacent thereto,
under the ownership, control or supervision of the owner or operator
of the business.
REGULARLY FEATURES or REGULARLY SHOWS
A consistent or substantial course of conduct, such that
the films or performances exhibited constitute a substantial portion
of the films or performances offered as part of the ongoing business
of the adult-oriented business.
SEMINUDE or SEMINUDE CONDITION
The showing of the human male or female genitals, pubic area,
vulva or anus, with not more than a complete opaque covering, or the
showing of the female breast with not more than a complete opaque
covering of any part of the nipple or areola.
SEXUAL ENCOUNTER CENTER
A business or commercial establishment that as one of its
principal business purposes, offers for any form of consideration,
a place where two or more persons may congregate, associate, or consort
for the purpose of specified sexual activities. The definition of
sexual encounter center or any adult-oriented business shall not include
an establishment where a medical practitioner, psychologist, psychiatrist,
or similar professional person licensed by the state engages in medically
approved and recognized sexual therapy.
SPECIFIED ANATOMICAL AREAS
A.
Less than completely and opaquely covered human genitals, pubic
region, vulva or anus and the nipple or areola of the female breast.
B.
Human male genitals in a discernible turgid state, even if opaquely
covered.
SPECIFIED SEXUAL ACTIVITIES
A.
Showing of human genitals in a state of sexual stimulation or
arousal.
B.
Acts of masturbation, sexual intercourse, sodomy, bestiality,
necrophilia, sadomasochistic abuse, fellatio or cunnilingus.
C.
Fondling or erotic touching of another person's genitals,
pubic region, anus or female breasts.
TRANSFER OF OWNERSHIP or CONTROL OF AN ADULT-ORIENTED BUSINESS
Means and includes any of the following:
A.
The sale, lease, or sublease of the business;
B.
The transfer of securities which constitute a controlling interest
in the business, whether by sale, exchange, or similar means; or
C.
The establishment of a trust, gift, or other similar legal device
which transfers the ownership or control of the business except for
transfer by bequest or other operation of law upon the death of the
person possessing the ownership or control.
Any adult-oriented establishment having available for customers,
patrons or members, any booth, room or cubicle for the private viewing
of any adult entertainment must comply with the following requirements:
A. Each booth, room or cubicle shall be totally accessible to and from
aisles and public areas of the adult-oriented establishment and shall
be unobstructed by any door, lock or other control-type devices.
B. Every booth, room or cubicle shall meet the following construction
requirements:
(1) Each booth, room or cubicle shall be separated from adjacent booths,
rooms or cubicles and any nonpublic areas by a wall.
(2) Each booth shall have at least one side totally open to a lighted
public aisle so that there is an unobstructed view at all times of
anyone occupying the booth.
(3) All walls shall be solid and without any openings, extended from
the floor to a height of not less than six feet and be light colored,
nonabsorbent, and smooth textured.
(4) The floor must be light colored, nonabsorbent, and smooth textured.
(5) The lighting level of each booth, room or cubicle, when not in use,
shall be a minimum of 20 footcandles at all times, as measured from
the floor.
(6) Only one individual shall occupy a booth, room or cubicle at any
time. No occupant shall engage in any type of sexual activity.
The Town Board shall issue an adult-oriented establishment license
if it finds that:
A. The required fee has been paid.
B. The application conforms in all respects to this chapter.
D. The applicant has not knowingly made a material misstatement in the
application.
E. The applicant has supplied all the information required under §
195-11 and the information requested by the various public agencies regarding the investigation of the application.
F. The adult-oriented establishment, as proposed by the applicant, would comply with all applicable laws including, but not limited to, Chapter
108, pertaining to the Town's building regulations, and Chapter
320, pertaining to the zoning regulations.
G. The applicant has not had an adult-oriented establishment license
or permit or other similar license or permit revoked or suspended
in this state or any other state within 10 years prior to the date
of application.
H. The applicant, if an individual; any of the stockholders holding
five percent or more of the stock or beneficial ownership of the corporation,
and any officers, agents or directors, if the applicant is a corporation;
any of the partners, including limited partners, if the applicant
is a partnership; or any of the members holding five percent ownership
of the LLC, and any managers, officers, agents or directors, if the
applicant is a LLC, does not, at the time of application, have pending
any criminal charge for, or within 10 years prior to the date of application
has not been convicted of any offense involving dishonesty, fraud,
deceit, robbery, the use or threatened use of force or violence upon
the person of another, or sexual immorality under Wis. Stats. Ch.
944 or 948, as amended, or the laws of another state similar in nature
to Wis. Stats. Ch. 944 or 948, or other offenses, subject to Wis.
Stats. § 111.335, as amended.
I. The applicant, if a corporation, is licensed to do business and is
in good standing in this state.
J. All individual applicants; all stockholders holding five percent
or more of the stock or beneficial ownership, directors and officers,
if the applicant is a corporation; all partners, including limited
partners, if the applicant is a partnership; and all members holding
five percent or more of the ownership, managers, agents, directors,
and officers, if the applicant is a LLC, are at least 18 years of
age.
The adult-oriented establishment license shall be displayed
in a conspicuous public place within five feet of the entrance of
the adult-oriented establishment.
Upon the sale or transfer of ownership or control of any interest
in an adult-oriented establishment, the license shall be void. Any
person desiring to continue to operate an adult-oriented establishment
following sale or transfer shall apply for a new license.
The provisions of this chapter do not apply to the following
establishments: theaters, performing arts centers, civic centers,
and dinner theaters where live dance, ballet, music and dramatic performances
of serious artistic merit are offered on a regular basis; and in which
the business or attraction is not the offering of entertainment which
is intended for sexual interests or titillation of customers; and
where the establishment is not distinguished by an emphasis on or
the advertising or promotion of nude or seminude performances. While
expressive live nudity may occur within these establishments, this
ordinance seeks only to minimize and prevent the secondary effects
of adult-oriented businesses on the community. Negative secondary
effects have not been associated with the establishments referenced
in this section.
A person who operates or causes to be operated an adult-oriented
business without a valid license or in violation of this chapter is
subject to a suit for injunction as well as municipal prosecution.
Such violation shall be punishable by a forfeiture of not less than
$500 nor more than $1,000, plus court costs. Each day an adult-oriented
business operates as such constitutes a separate offense or violation.
Chapter 68 of the Wisconsin Statutes concerning municipal administrative
procedure shall govern the administrative procedure and review concerning
the granting, denial, renewal or nonrenewal of a permit or a license.
A request for an initial determination shall be made by an aggrieved
person pursuant to the provisions contained in Wis. Stat., § 68.08,
to the Town Clerk. An administrative appeal pursuant to the provision
contained in Wis. Stat., § 68.10, may be made by an aggrieved
person to the Board of Appeals and a hearing shall be held by the
Board of Appeals pursuant to Wis. Stat., § 68.11. Any party
to a proceeding resulting in a final determination may seek judicial
review pursuant to the provisions contained in Wis. Stat. § 68.13.
The several sections and portions of this chapter are declared
to be severable. If any section or portion thereof shall be declared
by a court of competent jurisdiction to be invalid, unlawful or unenforceable,
such decision shall apply only to the specific or portion thereof
directly specified in the decision, and shall not affect the validity
of any other provisions, sections or portions thereof of the ordinance.
The remainder of the ordinance shall remain in full force and effect.
Any other ordinances whose terms are in conflict with the provisions
of this ordinance are hereby repealed as to those terms that conflict.