Village of Theresa, WI Article III Sexually Oriented Adult Entertainment Establishments

§ 238-13 Purpose.

It is the purpose of this article to regulate sexually oriented adult entertainment establishment businesses (hereinafter referred to as "adult establishment") to promote the health, safety, morals, and general welfare of the citizens of the Village of Theresa, to aid in the alleviation and prevention of the adverse and deleterious effects of criminal activity and disruption of the public peace associated with such establishments, and to establish reasonable and uniform regulations to prevent the serious health hazards associated with unsafe and unsanitary conditions known to exist in those establishments and to alleviate the spread of sexually transmitted diseases and other contagious diseases in those establishments.

§ 238-14 Definitions.

For the purpose of this article, the following terms shall have the meaning indicated:

DOOR, CURTAIN or PORTAL PARTITION

A nontransparent closure device which prevents activity taking place within a booth, room or cubicle from being seen or viewed.

OPERATOR

Any person operating, conducting, maintaining or owning any adult-oriented establishment.

SEXUALLY ORIENTED ADULT ENTERTAINMENT ESTABLISHMENT

Includes bookstores, motion-picture theaters, mini motion-picture theaters, bathhouses, modeling studios, and body painting studios, more specifically defined as follows:

A. ADULT BOOKSTORE An establishment having as a substantial or significant portion of its stock and trade in books, magazines, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined herein. This includes an establishment having as its stock-in-trade, for sale, rent, lease, inspection or viewing, books, films, videocassettes, motion pictures, magazines or other periodicals which are distinguished or characterized by their emphasis on matters depicting, describing or relating to specific sexual activities or specified anatomical areas and in conjunction therewith have facilities for the presentation of adult entertainment, including adult-oriented videotapes, films, motion pictures or other offered entertainment, for observation by patrons therein.

B. ADULT MOTION-PICTURE THEATER An enclosed building with a capacity of 50 or more persons at which a significant or substantial portion of the material presented is distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined herein for observation by patrons therein.

C. ADULT MOTION-PICTURE THEATER (OUTDOOR) A parcel of land from which individuals may view a motion picture presented out of doors which presents material distinguishably characterized by an emphasis on matter depicting, describing, or relating to specified sexual activity or specified anatomical areas.

D. ADULT MINI MOTION-PICTURE THEATER An enclosed building with a capacity for fewer than 50 persons used for presenting materials distinguished or characterized by an emphasis on matter depicting describing, or relating to specified sexual activities or specified anatomical areas as defined herein for observation by patrons therein, including establishments that have coin-operated video or motion-picture booths.

E. ADULT BATHHOUSE An establishment or business which provides the service of baths of all kinds, including all forms and methods of hydrotherapy, that is not operated by a medical practitioner or a professional physical therapist licensed by the State of Wisconsin and which establishment provides to its patrons an opportunity for engaging in specified sexual activities as defined in this article.

F. ADULT MOTEL A hotel, motel, or similar commercial establishment which:

(1) 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 or description of specified sexual activities or specified anatomical areas; and which may have a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions;

(2) Offers a sleeping room for rent for a period of time that is less than 10 hours; or

(3) Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours.

G. ADULT MODELING STUDIO An establishment or business which provides the services of modeling for the purpose of reproducing the human body wholly or partially nude by means of photography, painting, sketching, drawing or otherwise.

H. ADULT BODY PAINTING STUDIO An establishment or business wherein patrons are afforded an opportunity to paint images on a body which is wholly or partially nude. For purposes of this article, the adult body painting studio shall not be deemed to include a tattoo parlor.

I. ADULT NOVELTY SHOP 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 designed for, specified sexual activities as defined herein or stimulating such activity.

SPECIFIED ANATOMICAL AREAS

Less than completely and opaquely covered:

A. Human genitals; public region.

B. Buttock.

C. Female breast below a point immediately above the top of the areola.

SPECIFIED SEXUAL ACTIVITIES

A. Human genitals in a state of sexual stimulation or arousal.

B. Acts of human masturbation, sexual intercourse, or sodomy.

C. Fondling or other erotic touching of human genitals, pubic region, buttock, or female breasts.

D. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

§ 238-15 License required.

A. Except as provided in Subsection D below, no adult establishment shall be operated or maintained within the corporate limits of the Village of Theresa without obtaining a license to operate issued by the Village of Theresa.

B. A license may be issued only for one adult establishment located at a fixed and certain place. Any person, partnership, or corporation which desires to operate more than one adult establishment must have a license for each.

C. No license or interest in a license may be transferred to any person, partnership, or corporation.

D. All adult establishments existing at the time of the original passage of this chapter must submit an application for a license within 90 days of the passage of this chapter. If an application is not received within said ninety-day period, then such existing adult establishment shall cease operations.

§ 238-16 Application for license.

A. License procedure. Any person, partnership, or corporation desiring to secure a license shall make application to the Village Clerk-Treasurer. The application shall be filed in triplicate with and dated by the Village Clerk-Treasurer. A copy of the application shall be distributed within 10 days of receipt thereof to the Police Department, Fire Inspector, Building Inspector, and to the applicant. The procedures prescribed in § 238-6A to C shall be applicable to adult entertainment licenses under this article.

B. Required information. The application for a license shall be upon a form approved by the Village Clerk-Treasurer. An applicant for a license, which shall include all partners or limited partners of a partnership applicant and all officers or directors of a corporate applicant and any other person who is interested directly in the ownership or operation of the business, shall furnish the following information under oath:

(1) Name and address, including all aliases.

(2) Written proof that the individual is at least 18 years of age.

(3) All residential addresses of the applicant for the past 10 years.

(4) The business, occupation, or employment of the applicant for 10 years immediately preceding the date of application.

(5) Whether the applicant previously operated in this or any other state, county, or municipality under an adult establishment license or similar business license 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.

(6) All criminal convictions, whether federal or state, or municipal ordinance violation convictions, forfeiture of bond and pleadings of nolo contendere on all charges, except minor traffic violations.

(7) Fingerprints and two portrait photographs at least two inches by two inches of the applicant.

(8) The address of the adult establishment to be operated by the applicant.

(9) If the applicant is a corporation, the application shall specify the name of the corporation, the date and state of incorporation, the name and address of the registered agent, and all officers and directors of the corporation.

§ 238-17 Standards for issuance of license.

A. General requirements. To receive a license to operate an adult establishment, an applicant must meet the following standards:

(1) If the applicant is an individual:

(a) The applicant shall be at least 18 years of age.

(b) Subject to Ch. 111, Wis. Stats., the applicant shall not have been convicted of or pleaded nolo contendere to a felony or any crime involving moral turpitude, prostitution, obscenity, or other crime of a sexual nature in any jurisdiction within five years immediately preceding the date of the application.

(c) The applicant shall not have been found to have previously violated this article within five years immediately preceding the date of the application.

(2) If the applicant is a corporation:

(a) All officers, directors, and others required to be named under § 238-16B shall be at least 18 years of age.

(b) Subject to Ch. 111, Wis. Stats., no officer, director, or other person required to be named under § 238-16B shall have been convicted of or pleaded nolo contendere to a felony or any crime involving moral turpitude, prostitution, obscenity, or other crime of a sexual nature in any jurisdiction within five years immediately preceding the date of the application.

(c) No officer, director, or other person required to be named under § 238-16B shall have been found to have previously violated this article within five years immediately preceding the date of the application.

(3) If the applicant is a partnership, 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, joint venture, or other type of organization shall be at least 18 years of age.

(b) No persons having a financial interest in the partnership, joint venture, or other type of organization, subject to Ch. 111, Wis. Stats., shall have been convicted of or pleaded nolo contendere to a felony or any crime involving moral turpitude, prostitution, obscenity, or other crime of a sexual nature in any jurisdiction within five years immediately preceding the date of the application.

(c) No person having a financial interest in the partnership, joint venture, or other type of organization shall have been found to have violated any provision of this article within five years immediately preceding the date of the application.

B. Investigation. No license shall be issued unless the Police Department has investigated the applicant's qualifications to be licensed. The results of that investigation shall be filed in writing with the Village Clerk-Treasurer no later than 14 days after the date of the application.

C. Inspection. The Building Inspector, Fire Inspector and Police Department shall inspect the premises proposed to be licensed to verify compliance with their respective codes and shall report compliance findings to the Village Clerk-Treasurer within 14 days of the date of application.

D. Proof. No license shall be issued unless the applicant provides proof of one of the following:

(1) Ownership of a properly zoned building or parcel of real property upon which a building can be constructed. Proper zoning includes permissible nonconforming use status.

(2) A lease on a building which is properly zoned to house a venture. Proper zoning includes permissible nonconforming use status.

(3) An option to purchase property which is properly zoned for the venture. Proper zoning includes permissible nonconforming use status.

(4) An option to lease property which is properly zoned for the venture. Proper zoning includes permissible nonconforming use status.

§ 238-18 License fee.

A nonrefundable license application fee of $500 shall be submitted with the application for a license.

§ 238-19 Display of license.

The license shall be displayed in a conspicuous public place in the adult establishment.

§ 238-20 Renewal of license.

A. Every license issued pursuant to this article will terminate on December 31 of the year it is issued, 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 Village Clerk-Treasurer. The application for renewal must be filed not later than 60 days before the license expires. The application for renewal shall be filed in triplicate with and dated by the Village Clerk-Treasurer. A copy of the application for renewal shall be distributed by the Village Clerk-Treasurer to the law enforcement agencies and the applicant. The application for renewal shall be upon a form provided by the Village Clerk-Treasurer and shall contain such information and data, given under oath or affirmation, as is required for an application for a new license.

B. A license renewal fee of $500 shall be submitted with the application for renewal.

C. If the Police Department is aware of any information bearing on the operator's qualifications, that information shall be filed in writing with the Village Clerk-Treasurer.

§ 238-21 Denial of application.

A. Whenever an initial application is denied, the Village Clerk-Treasurer shall, within 14 days of the denial, advise the applicant in writing of the reasons for such action. If the applicant requests a hearing within 10 days of receipt of notification of denial, a public hearing shall be held at the next regularly-scheduled meeting of the Village Board.

B. Failure or refusal of the applicant to give any information relevant to the investigation of the application or his or her refusal or failure to appear at any reasonable time and place for examination under oath regarding said application or his or refusal to submit to or cooperate with any investigation required by this article shall constitute an admission by the applicant that he or she is ineligible for such license and shall be grounds for denial thereof by the Village Clerk-Treasurer.

§ 238-22 Physical layout of adult establishment.

Any adult establishment having open for customers, patrons, or members any booth, room, or cubicle for the private viewing of any sexually oriented adult entertainment must comply with the following requirements:

A. Access. Each booth, room, or cubicle shall be totally accessible to and from aisles and public areas of the adult establishments and shall be unobstructed by any door, lock, or other control-type devices.

B. Construction. Every booth, room, or cubicle shall meet the following construction requirements:

(1) Each booth, room, or cubicle shall be separated from adjacent booths, rooms, cubicles, and any nonpublic areas by a wall.

(2) Each booth, room, or cubicle shall have at least one side totally open to a public lighted aisle so that there is an unobstructed view at all times of anyone occupying the same.

(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, smooth textured and easily cleanable.

(4) The floor must be light colored, nonabsorbent, smooth textured and easily cleanable.

(5) The lighting level of each booth, room, or cubicle, when not in use, shall be a minimum of 10 footcandles at all times, as measured from the floor.

C. Occupants. Only one individual shall occupy a booth, room or cubicle at any time. No occupant of the same shall engage in any type of sexual activity, cause any bodily discharge or litter while in the booth. No person shall alter, damage or deface any portion of any such booth, room or cubicle in such a manner that it no longer complies with the provisions of this section.

§ 238-23 Responsibilities of operators.

A. An operator, licensed under this article, shall maintain a register of all employees, showing the name and aliases used by the employee, home address, birth date, sex, telephone numbers, social security number, and date of employment and termination. The above information on each employee shall be maintained in the register on the premises for a period of three years following termination.

B. The operator shall make the register of employees available immediately for inspection by police upon demand of a member of a law enforcement agency at all reasonable times.

C. Every act or omission by an employee constituting a violation of the provisions of this article shall be deemed the act or omission of the operator if such act or omission occurs either with the authorization, knowledge, or approval of the operator, or as a result of the operator's negligent failure to supervise the employee's conduct, and the operator shall be punishable for such act or omission in the same manner as if the operator committed the act or caused the omission.

D. Any act or omission of any employee constituting a violation of the provisions of this article 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.

E. No employee of an adult entertainment establishment shall allow any minor to loiter around or to frequent an adult entertainment establishment or allow any minor to view sexually oriented adult entertainment as defined herein.

F. The operator shall maintain the premises in a clean and sanitary manner at all times.

G. The operator shall ensure compliance of the establishment and its patrons with the provisions of this article.

H. The operator shall ensure there is conspicuously posted inside each booth, stall, partitioned portion of a room, or individual room an unmutilated and undefaced sign or poster supplied by the Village which contains information regarding sexually transmitted diseases and the telephone numbers from which additional information can be sought.

I. The operator shall ensure there is conspicuously displayed at a place near the main entrance of the establishment, or portion thereof, any information, brochures, or pamphlets supplied by the Village pertaining to sexually transmitted diseases.

J. The operator shall ensure there are posted regulations concerning booth occupancy on signs, with lettering at least one inch high, that are placed in conspicuous areas of the establishment and in each of the viewing enclosures.

K. The Village shall charge its reasonable costs for supplying such posters, brochures, pamphlets, and other information supplied under this article.

§ 238-24 Registration of employees.

A. All operators, employees, and independent contractors working in any adult establishment hereunder shall, prior to beginning employment or contracted duties, register with the Village Clerk-Treasurer. Such registration shall include the following:

(1) Name, address, birth date, any aliases used, telephone numbers, date of employment and name of employer.

(2) Photographs and fingerprinting.

B. Upon registration, the Village will provide to each registered employee an identification card containing the employee's photograph identifying the employee as such, which shall be kept available for production upon request of all inspecting officers while on duty at such adult establishment.

C. All registrations hereunder are valid for a period of one year.

D. The registration fee of $100 shall be paid per registration, which shall be paid to the Village to cover the costs of the identification card.

§ 238-25 Exclusions.

All private schools and public schools, as defined in Ch. 115, Wis. Stats., located within the Village of Theresa are exempt from obtaining a license hereunder when instructing pupils in sex education as part of their curriculum.

§ 238-26 Violations and penalties. [1]

In addition to any other actions allowed by law or taken by the Village Board, including the action of license revocation or nonrenewal, anyone who violates any of the provisions of this article may forfeit not less than $250 but not more than $2,000 for each and every offense, together with the costs of prosecution. If such forfeiture and costs are not paid, such person so convicted may be subject to any civil penalties or other penalties available by law.

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

§ 238-27 License suspension, revocation or nonrenewal.

A. In general. Any license granted herein may be revoked or suspended, indefinitely, or not renewed by the Village Board as follows:

(1) If the applicant has made or recorded any statement required by this article knowing it to be false or fraudulent or intentionally deceptive.

(2) For the violation of any provision of this section, except for establishment license matters involving a violation of building codes; in such case the license shall be revoked after the second conviction thereof in any license year.

(3) After one conviction of any establishment personnel of an offense under Ch. 944, Wis. Stats., or of an offense against the person or property of a patron of the property or of an offense involving substances included in Subchapter II of Ch. 961, Wis. Stats., where there is shown the participation or knowledge of any other establishment personnel or of any individual within the business structure of the applicant.

B. Notice of hearing. No license shall be revoked, suspended, or not renewed by the Village Board except upon due notice and hearing to determine whether grounds for such action exist. Such hearing shall be held before the Village Board. Notice of such hearing shall be in writing and shall state the grounds of the complaint against the licensee. The notice shall be served upon the licensee at least 15 days prior to the date of the hearing and shall state the time and place thereof. The licensee shall be entitled to be heard, to be represented by counsel, to cross-examine opposing witnesses, and to present witnesses on his or her own behalf, under subpoena by the Village Board if such is required, and the hearing may be stenographically recorded at the licensee's option and expense. At the conclusion of such hearing, the Village Board shall prepare findings of fact and conclusions as to what, if any, action the Village Board will take with respect to the license. The Board shall provide the complainant and licensee with a copy of the report.[1]

[1] Editor's Note: Original § 11-7-55, License transfer, which immediately followed this section, was deleted at time of adoption of Code (see Ch. 1, General Provisions, Art. II).