[HISTORY: Adopted by the Common Council of the City of Burlington 10-17-2023 by Ord. No.
2103(9). Amendments noted where applicable.]
A.
Based on evidence concerning the adverse secondary effects of adult-oriented
establishments on the community, as set forth in reports made available
to the Common Council of the City of Burlington, and on the holdings
and findings in:
(1)
Report to the American Center for Law and Justice on the Secondary
Impacts of Sexual Oriented Businesses;
(2)
The Affidavit of Richard McCleary for the case of New Albany DVD
LLC v. City of Albany;
(3)
National Law Center Summaries of SOB Land Use Studies;
(4)
Workplace Perspectives on Erotic Dancing, a Minneapolis Minnesota
Study;
(5)
The studies conducted in Newport News, Virginia, Garden Grove, California,
Dallas, Texas, Houston, Texas;
(6)
The Effects of Sexually Oriented Businesses by Louis F. Cormus III,
which summarized studies conducted in Phoenix, Arizona; Garden Grove,
California; Los Angeles, California; Whittier, California; Indianapolis,
Indiana; Minneapolis, Minnesota; Cleveland, Ohio; Oklahoma City, Oklahoma;
Amarillo, Texas; Austin, Texas; Beaumont, Texas; Houston, Texas; Seattle,
Washington; New York City, New York (specifically Times Square); Dallas,
Texas; Environmental Research Group Report; Tucson, Arizona; Manatee
County, Florida; State of Minnesota; New Hanover County, North Carolina;
Town and Village of Ellicottville, New York; Islip, New York; New
York City, New York; Oklahoma City, Oklahoma; Houston, Texas; Newport
News; and Des Moines, Washington;
(7)
The Police Memorandum dated May 1, 1990, to the Tucson, Arizona City
Prosecutor;
(8)
Rural hotspots: The Case of Adult Businesses by Dr. Richard McCleary;
(9)
The findings incorporated in City of Renton v. Playtime Theaters,
Inc., 475 U.S. 41 (1986); Colman A. Young v. American Mini-Theaters,
Inc., 427 U.S. 50 (1976), Association of Club Executives of Dallas,
Inc., et al. v. City of Dallas, 22-CV-00177 (N.D. Tex. May 24, 2022).
B.
The Common Council finds that there is convincing evidence that the
secondary effects of adult establishments include an increased risk
of:
(1)
Crime statistics show that all types of crimes, especially sex-related
crimes, occur with greater frequency in neighborhoods where adult-oriented
establishments are located.
(2)
Adult-oriented establishments may contribute to an increased public
health risk through the spread of sexually transmitted diseases, and
such increased risk is a significant and legitimate matter of concern
to the City.
(3)
Studies on the relationship between adult-oriented establishments
and neighboring property values have consistently found a negative
effect on both residential and commercial property values.
(4)
There is an increased potential for the infiltration of organized
crime into the community via the operation of adult-oriented establishments
for the purpose of perpetrating unlawful conduct.
(5)
The consumption of alcoholic beverages on the premises of an adult-oriented
establishment exacerbates the harmful secondary effects that such
businesses have on the community.
(6)
Human trafficking may be prevalent in certain adult establishments.
(7)
Prostitution may be prevalent in certain adult establishments.
C.
Given this well-documented correlation between adult-oriented establishments
and the harmful secondary effects itemized above, the Common Council
has determined that the locational criteria imposed by the Zoning
Code[1] are not alone adequate to protect the health, safety and
general welfare of City residents, so the Common Council deems it
necessary to regulate, to the extent allowed by law, the operation
of adult-oriented establishments within the City. By this chapter,
it is not the Common Council's intent to suppress the constitutionally
protected speech occurring within adult-oriented establishments, nor
does the Common Council anticipate that the limited regulations contained
herein will have the effect of "chilling" the expression of such speech
within the City. To the contrary, the Common Council's purpose
in adopting this chapter is limited to minimizing the occurrence and
impact of the harmful secondary effects associated with adult-oriented
establishments and ensuring that the protected speech occurring therein
is expressed in a safe, healthy, and lawful environment.
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 indicates a different meaning:
An establishment:
Which has a facility or facilities for the presentation of "adult
entertainment," as defined in this section, including adult-oriented
films, computer video, movies or live performances for observation
by patrons therein; or
Having as a substantial or significant portion of its stock
in trade, for sale, rent, trade, lease, inspection or viewing, books,
films, videocassettes, DVDs, or magazines or other periodicals, which
are distinguished or characterized by their emphasis on matters depicting,
describing or relating to specified anatomical areas or specified
sexual activities as defined in this section.
A nightclub, bar, restaurant, or similar commercial establishment
which features:
Live performances which are characterized or distinguished by
the exposure of specified anatomical areas or the removal of articles
of clothing; or
Films, motion pictures, videocassettes, video reproductions,
slides or other visual representations which are distinguished or
characterized by depicting or describing specified anatomical areas
or specified sexual activities.
Any exhibition of any motion picture, 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 or specified anatomical areas.
An enclosed building with a capacity of less than 50 persons
used for presenting material 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 therein.
Any establishment or business where individuals pay money
or other consideration to observe, sketch, draw, paint, sculpt or
photograph a person who displays his or her specified anatomical areas.
Adult modeling studios shall not include a proprietary school licensed
by the state or a college, technical college, or university; or adult
modeling in a structure:
That has no sign visible from the exterior of the structure
and no other advertising that indicates a nude or seminude person
is available for viewing;
Where, in order to participate in a class, a student must enroll
at least three days in advance of the class; and
Where no more than one nude or seminude model is on the premises
at any one time.
An enclosed building with a capacity of 50 or more persons
used for presenting material 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
as defined below for observation by patrons therein.
An establishment or business having as a substantial or significant
portion of its stock and trade in novelty or other items which are
distinguished or characterized by their emphasis on or design for
specified sexual activity or stimulating such activity.
Any premises including, but not limited to, adult bookstores,
adult motion-picture theaters, adult mini motion-picture establishments,
adult modeling studios, adult novelty shops, or adult cabarets. It
further means any premises to which public patrons or members are
invited or admitted and wherein an entertainer provides adult entertainment
to a member of the public, a patron or a member, whether or not such
adult entertainment is held, conducted, operated or maintained for
a profit, direct or indirect. The term "adult-oriented establishment"
further includes any establishment open to the public upon the premises
of which is conducted an enterprise having as its dominant theme or
which is distinguished or characterized by an emphasis on any actual
or simulated specified sexual activities or specified anatomical areas
as herein defined.
Enclosures as are specifically offered to the public or members of an adult-oriented establishment for hire or for a fee as part of a business operated on the premises which offers as part of its business adult entertainment to be viewed within the enclosure. This shall include, without limitation, such enclosures wherein the adult entertainment is dispensed for a fee, but a fee is not charged for mere access to the enclosure. However, the terms "booth," "cubicle," "room," "compartment" and "stall" do not mean such enclosures that are private offices used by the owners, managers or persons employed on the premises for attending to the tasks of their employment, which enclosures are not held out to the public or members of the establishment for hire or for a fee or for the purpose of viewing adult entertainment for a fee, and are not open to any persons other than employees; nor shall this definition apply to hotels, motels or other similar establishments licensed by the state pursuant to Ch. 50, Wis. Stats.
The appearance of the human bare anus, anal cleft or cleavage,
pubic area, male genitals, female genitals, or the nipple or areola
of the female breast, with less than a fully opaque covering; or showing
of the covered male genitals in a discernibly turgid state.
Any person, partnership, or corporation operating, conducting,
maintaining or owning any adult-oriented establishment.
Simulated or actual:
A.
Manager's stations. Each adult establishment shall have one
or more manager's stations. The interior of each adult establishment
shall be configured in such a manner that there is a direct and substantially
unobstructed view from at least one manager's station to every
part of each area, except restrooms, of the establishment to which
any adult establishment patron is permitted access for any purpose.
The cashier's or manager's station shall be located so that
someone working there can quickly move to physically halt any attempted
or accidental entry by a minor. An employee shall occupy the station
at all times when patrons are in and on the premises.
B.
Adult booths prohibited. Adult booths, rooms, or cubicles for the
private viewing of any adult entertainment shall be prohibited in
all adult establishments.
C.
Stages. All live performers in an adult establishment shall perform
only on a stage elevated no less than 36 inches above floor level.
There shall be a metal railing attached to the floor by bolts surrounding
the stage which shall keep patrons at least 48 inches from the stage.
There shall also be a metal railing attached to the floor by bolts
at the end of the stage.
D.
Display windows prohibited. All points of access into structures
containing adult establishments and all windows or other openings
shall be located, constructed, covered, or screened in a manner which
will prevent a view into the interior.
E.
Residential quarters not allowed. No residential quarters shall be
allowed on a premises with an adult establishment.
A.
It shall be a violation of the provisions of this section for an
operator to authorize or knowingly permit any employee action that
is in violation of this section. Any violation by an operator of this
subsection shall be separate and distinct from the employee's
violation, and both the employee's and the operator's violations
shall be punishable as set forth herein.
B.
Any act or omission of any employee constituting a violation of the
provisions of this section shall be deemed the act or omission of
the operator for purposes of determining whether the operator's
license shall be revoked, suspended or renewed.
C.
No employee of an adult-oriented establishment shall allow any minor
to loiter around or to frequent an adult-oriented establishment or
to allow any minor to view adult entertainment.
D.
The adult establishment shall clearly post and enforce a "no loitering"
policy.
E.
The operator must ensure that at least one employee is on duty and
situated such that he or she has an unobstructed view of each part
of every area, except restrooms, of the establishment to which any
adult establishment patron is permitted access for any purpose.
F.
The operator shall maintain the premises in a clean and sanitary
manner at all times.
G.
The operator shall maintain at least 10 footcandles of light in the
public portions of the establishment, including aisles, at all times.
H.
The operator shall ensure compliance of the establishment and its
patrons with the provisions of this section.
I.
It shall be a violation of this section for any person to knowingly
or intentionally appear in a state of nudity in an adult-oriented
establishment.
J.
The sale, use, or consumption of alcohol on the premises of an adult-oriented
establishment is prohibited.
A.
No adult-oriented establishment shall be open between the hours of
2:00 a.m. and 12:00 noon.
B.
All adult-oriented establishments shall be open to inspection at
all reasonable times by the Code Enforcement Officer, the County Sheriff's
Department, the Building Inspectors, and the Health Department.
A.
The provisions of this chapter do not apply to the following establishments:
theatres, performing arts centers, civic centers, and dinner theatres
where live dance, ballet, music and dramatic performances of serious
artistic merit are offered on a regular basis, and in which the predominant
business or attraction is not the offering of entertainment which
is intended for the 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 chapter seeks only to minimize and prevent the secondary effects
of adult-oriented establishments on the community, and the Common
Council is not aware of any negative secondary effects that have been
associated with these establishments.
B.
The provisions of this chapter also do not apply to any medical or
therapeutic treatment facilities that are owned and operated by medical
professionals licensed to practice within this state.
B.
A business license may be issued only for one adult-oriented establishment
located at a fixed and certain place. Any person who desires to operate
more than one adult-oriented establishment must have a business license
for each.
C.
No business license or interest in a business license may be transferred
to any person.
D.
All adult-oriented establishments existing at the time of the passage
of this section must submit an application for a business license
within 60 days of the passage of this section.
E.
Notwithstanding § 90-8, an adult-oriented establishment business license shall not be granted to a premises in which the Common Council has determined that said premises operated as an adult-oriented establishment without a business license within one year prior to the date of application. This prohibition applies to a premises for a period of one year following the Common Council's determination.
A.
Any person desiring to secure a license shall make application to
the City Clerk. The application shall be filed in triplicate and dated
by the Clerk. A copy of the application shall be distributed promptly
by the Clerk to the Code Enforcement Officer and to the applicant.
B.
The application for a license shall be upon a form provided by the
City Clerk. An applicant for a license shall furnish the following
information under oath:
(1)
Demographics.
(b)
Corporations.
[1]
Applicant corporation's complete name and official business
address;
[2]
Legal names, all aliases, the ages, and business addresses of
all of the directors, officers, and managers of the corporation and
of every person owning or controlling more than 25% of the voting
shares of the corporation;
[3]
Applicant corporation's date and place of incorporation
and the objective for which it was formed;
[4]
Proof that the corporation is a corporation in good standing
and authorized to conduct business in the State of Wisconsin;
[5]
Name of the registered corporate agent and the address of the
registered office for service of process.
(c)
Partnerships (general or limited), limited-liability companies,
joint ventures, or any other type of organization where any number
of persons share in the profits and liabilities of the organization.
[1]
Applicant organization's complete name and official business
address;
[2]
Legal name, all aliases, the ages, and business addresses of
each person (other than limited partners) or any other person entitled
to share in the profits of the organization, whether or not any such
person is also obligated to share in the liabilities of the organization;
[3]
Applicant organization's date and place of incorporation
and the objective for which it was formed;
[4]
Proof that the organization is an entity is in good standing
and authorized to conduct business in the State of Wisconsin;
[5]
Name of the registered agent and the address of the registered
office for service of process.
(d)
Land trusts.
[1]
Applicant land trust's complete name;
[2]
Legal name, all aliases, and the business address of the trustee
of the land trust;
[3]
Legal name, all aliases, the ages, and business addresses of
each beneficiary of the land trust and the specific interest of each
such beneficiary in the land trust;
[4]
The interest, if any, that the land trust holds in the permitted
premises;
[5]
Applicant land trust's date and place of creation and the
objective for which it was formed;
[6]
Proof that the land trust is an entity in good standing and
authorized to conduct business in the State of Wisconsin;
[7]
Name of the registered agent and the address of the registered
office for service of process.
(3)
The general character and nature of the applicant's business.
(4)
The length of time that the applicant has been in the business of the character specified in response to Subsection B(3) above.
(5)
The location (including street address and legal description) and
telephone number of the premises for which the adult establishment
permit is sought.
(6)
The specific name of the business that is to be operated under the
adult establishment permit.
(7)
The identity of each fee simple owner of the anticipated premises.
(8)
A diagram showing the internal and external configuration of the
permitted premises, including all doors, windows, entrances, exits,
the fixed structural internal features of the permitted premises,
plus the interior rooms, walls, partitions, stages, performance areas,
and restrooms. A professionally prepared diagram in the nature of
an engineer's or architect's blueprint shall not be required,
provided, however, that each diagram shall be oriented to the north
or to some designated street or object and shall be drawn to a designated
scale or with marked dimensions to an accuracy of plus or minus six
inches and sufficient to show clearly the various interior dimensions
of all areas of the permitted premises and to demonstrate compliance
with the provisions of this chapter. The approval or use of the diagram
required pursuant to this subsection shall not be deemed to be, and
may not be interpreted or construed to constitute, any other City
approval otherwise required pursuant to applicable City ordinances
and regulations.
(9)
The specific type(s) of adult establishment(s) that the applicant
proposes to operate on the permitted premises.
(11)
The name of the individual(s) who shall be the day-to-day, on-site
manager(s) of the proposed adult establishment.
(12)
Whether the applicant or any person required to be named is currently
operating, or has previously operated, in this or any other county
or state, under an adult-oriented establishment license or similar
business license or permit; and whether the applicant has ever had
such a license revoked or suspended, the reason therefor, and the
business entity or trade name under which the applicant operated that
was subject to the suspension or revocation.
(13)
Consent from the applicant(s) for the City to conduct a background
check on the applicant(s).
C.
Within 30 days of receiving an application for a new license or an
application to renew a license, the City Clerk shall notify the applicant
whether the application is granted or denied. Any application for
a license that does not include all of the information and documents
required under this section, or the appropriate application fee required
by this section, shall be deemed to be incomplete and shall be returned
to the applicant without any action thereon being taken by the City.
D.
Whenever an application is denied, or a license is not renewed, the
City Clerk shall advise the applicant, in writing, of the reasons
for such action. Administrative review under Ch. 68, Wis. Stats.,
may be requested when a license is denied.
E.
Refusal of the applicant to give any information relevant to the
application or his refusal or failure to appear at any reasonable
time and place for examination under oath regarding such application
or his refusal to submit to or cooperate with regard to any information
required by this section shall constitute an admission by the applicant
that he is ineligible for such license and shall be grounds for denial
thereof by the City Clerk.
A.
To receive a license to operate an adult-oriented establishment,
an applicant must meet the following standards:
(2)
(3)
If the applicant is a partnership, limited-liability company, joint
venture or any other type of organization where two or more persons
have a financial interest:
(a)
All persons having a financial interest in the partnership,
limited-liability company, joint venture or other type of organization
shall be at least 18 years of age.
(b)
No person having a financial interest in the partnership, limited-liability
company, joint venture or other type of organization shall have been
found to have violated any provision of this chapter within five years
immediately preceding the date of the application.
A.
No person shall work as an entertainer at an adult establishment
without having first obtained an entertainer's license from the
City Clerk.
(1)
Purpose. To ensure the entertainers comply with this chapter and
provide enforcement mechanisms for the City against violators.
B.
No person shall work as a manager of an adult establishment without
having first obtained a manager's license from the City Clerk.
(1)
Purpose. To require licensed managers at adult establishments to
monitor the conduct of patrons at adult establishments on the premises
and ensure compliance with this chapter.
(a)
"On-site viewing" of adult entertainment means patrons viewing
films, videos, live entertainment, and other such entertainment on
the premises, whether or not for a fee or other consideration, as
opposed to strictly the sale or rental of adult books, magazines,
novelties and videos.
A.
Any person desiring to secure an entertainer or manager license shall
make application to the City Clerk. The application shall be filed
in triplicate and dated by the Clerk. A copy of the application shall
be distributed promptly by the Clerk to the Code Enforcement Officer
and to the applicant.
B.
The application for an entertainer or manager license shall be upon
a form provided by the City Clerk. An applicant for a license shall
furnish the following information under oath:
(1)
Name (including any aliases, previous names, and stage names or nicknames
used while entertaining), current address, and date of birth.
(2)
Written proof that the individual is at least 18 years of age. Any
of the following shall be accepted as documentation of age:
(a)
A driver's license issued by any state bearing the applicant's
photograph and date of birth; or
(b)
A state-issued identification card bearing the applicant's
photograph and date of birth; or
(c)
An official passport issued by the United States of America;
or
(d)
An immigration card issued by the United States of America;
or
(e)
Any other picture identification that the City determines to
be acceptable.
(3)
The name, if known, and address of all adult-oriented establishments
the applicant will be working at under this license.
(4)
A description of the applicant's principal activities and exact
nature of the service or performances to be conducted.
(5)
The names and addresses of employers or individuals or businesses
for whom the applicant was an employee or independent contractor for
the period of three years immediately prior to the application.
(6)
Consent from the applicant(s) for the City to conduct a background
check on the applicant(s).
C.
Within 30 days of receiving an application for a new license or an
application to renew a license, the City Clerk shall notify the applicant
whether the application is granted or denied. Any application for
a license that does not include all of the information and documents
required under this section, or the appropriate application fee required
by this section, shall be deemed to be incomplete and shall be returned
to the applicant without any action thereon being taken by the City.
D.
Whenever an application is denied, or a license is not renewed, the
City Clerk shall advise the applicant, in writing, of the reasons
for such action. Administrative review under Ch. 68, Wis. Stats.,
may be requested when a license is denied.
E.
Refusal of the applicant to give any information relevant to the
application or his refusal or failure to appear at any reasonable
time and place for examination under oath regarding such application
or his refusal to submit to or cooperate with regard to any information
required by this section shall constitute an admission by the applicant
that he is ineligible for such license and shall be grounds for denial
thereof by the City Clerk.
To receive a license as an entertainer at or manager of an adult-oriented
establishment, an applicant must meet the following standards:
A license fee as established by resolution of the Council from
time to time shall be submitted with the application for a business
or entertainer/employee license, respectively. If the application
is denied, 1/2 of the fee shall be returned.
The business license shall be displayed in a conspicuous public
place in the adult-oriented establishment.
A.
Every license issued pursuant to this chapter will terminate at the
expiration of one year from the date of issuance, unless sooner revoked,
and must be renewed before operation is allowed in the following year.
Any operator desiring to renew a license shall make application to
the City Clerk. The application for renewal must be filed not later
than 60 days before the license expires. The application for renewal
shall be upon a form provided by the Clerk and shall contain such
information and data given under oath or affirmation as is required
for an application for a new license.
B.
The license renewal fee is 1/2 the amount of the initial application fee as set forth in § 90-13 and in the schedule of fees on file in the City Clerk's office and which may be revised by Common Council resolution and shall be submitted with the application for renewal. In addition to the renewal fee, a late penalty as set forth in the schedule of fees on file in the City Clerk's office and which may be revised by Common Council resolution shall be assessed against any applicant who files for a renewal less than 60 days before the license expires. If the application is denied, 1/2 of the total fees collected shall be returned.
C.
Any law enforcement agencies with any information bearing on the
operator's qualifications may file that information with the
City Clerk.
D.
The Building Inspector shall inspect the establishment prior to the
renewal of a license to determine compliance with the provisions of
this chapter.
A.
The Common Council may revoke, suspend, or refuse to renew a license
for any of the following reasons:
(1)
Discovery that false or misleading information or data was given
on any application or material facts were omitted from any application.
(2)
The operator or any employee of the operator violates any provision
of this chapter, the Burlington Zoning Code,[1] or any rules or regulations adopted by the Common Council
pursuant to this chapter, provided, however, that in the case of a
first offense by an operator where the conduct was solely that of
an employee, the penalty shall not exceed a suspension of 30 days
if the Common Council shall find that the operator had no actual or
constructive knowledge of such violation and could not by the exercise
of due diligence have had such actual or constructive knowledge.
(3)
The operator becomes ineligible to obtain a license or permit.
(4)
Any cost or fee required to be paid by this chapter is not paid.
B.
The Common Council, before revoking or suspending any license or
permit, shall give the operator at least 10 days' written notice
of the charges and an opportunity for a public hearing in accordance
with Ch. 68, Wis. Stats. If the operator does not file a timely request
for a public hearing, the allegations set forth in the charges shall
be taken as true, and if the Common Council finds the charges sufficient
the license shall be revoked or suspended. If the operator files a
written request for a hearing with the City Clerk within 10 days of
receipt of the charges, a public hearing shall be held in accordance
with Ch. 68, Wis. Stats.
C.
The transfer of a license or any interest in a license shall automatically
and immediately revoke the license.
D.
Any operator whose license is revoked shall not be eligible to reapply
for a license for one year from the date of revocation. No location
or premises for which a license has been issued shall be used as an
adult-oriented establishment for six months from the date of revocation
of the license. For purposes of this section, a revocation of a license
takes effect when the licensed premises ceases operations as an adult-oriented
establishment.
Any person who shall violate any provisions of this chapter or who shall fail to obtain a license or permit as required hereunder shall be subject to penalty as provided in § 1-4 of this City Code for each offense.
If any section, subsection, or clause of this chapter shall
be deemed to be unconstitutional or otherwise invalid, the validity
of the remaining sections, subsections, and clauses shall not be affected.
