[HISTORY: Adopted by the Village Board of the Village of Mazomanie 4-12-2005
by Ord. No. 2005-02 (Title 7, Ch. 12 of the 1988 Code). Amendments
noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 415.
A.
Purpose. The purpose of this chapter is to regulate sexually
oriented businesses in order to promote the health, safety, morals and general
welfare of the citizens of the Village of Mazomanie. The provisions of this
chapter have neither the purpose nor effect of regulating obscenity or imposing
a limitation or restriction on the content of any communicative materials,
including sexually oriented materials. Similarly, it is not the intent nor
effect of this chapter to restrict or deny access by adults to sexually oriented
materials protected by the First Amendment, or to deny access by the distributors
and exhibitors of sexually oriented entertainment to their intended market.
Neither is it the intent nor effect of this chapter to condone or legitimize
the distribution of obscene material.
B.
Findings. Based on evidence concerning the adverse secondary
effects of sexually oriented businesses on the community presented in hearings
and in reports made available to the Board, and on findings incorporated in
the cases of Erie v. Pap's A.M. 529 U.S. 277 (2000); Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991); City of Renton v. Playtime Theatres, Inc. 475 U.S.
41 (1986); City of Newport v. Iacobucci, 479 U.S. 92 (1986); New York State
Liquor Authority v. Bellanca, 452 U.S. 714 (1981); Young v. American Mini
Theatres, 427 U.S. 50 (1976); G.M. Enterprises, Inc. v. Town of St. Joseph,
Case No. 03-1428 (7th Cir., Nov. 25, 2003); Ben's Bar v. Village of Somerset,
316 F.3d 702 (7th Cir. 2003); Schultz v. City of Cumberland, 228 F.3d 831
(7th Cir. 2000); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir.
1997); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Hang On,
Inc. v. City of Arlington, 65 F.3d 11248 (5th Cir. 1995); East of the River
Enterprises II v. City of Hudson, 2000 Wis. App. Lexis 734 (Ct. App. Aug.
1, 2000); East of the River Enterprises II v. City of Hudson, 2000 WI App
116; Urmanski v. Town of Bradley, 2000 WI App 141 (2000); and on studies in
other communities, including but not limited to Phoenix, Arizona; Minneapolis,
Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden
Grove, California; Los Angeles, California; Whittier, California; Austin,
Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and
Beaumont, Texas, which evidence the Board reasonably believes is relevant
to the potential problems caused by the adverse secondary effects of sexually
oriented businesses, the Board finds that:
(1)
Sexually oriented businesses lend themselves to ancillary
unlawful and unhealthy activities that are presently uncontrolled by the operators
of the establishments. Further, there is presently no mechanism to make the
owners of these establishments responsible for the activities that occur on
their premises.
(2)
Certain employees of sexually oriented businesses, defined
in this section as adult theatres and cabarets, engage in higher incidence
of certain types of illicit sexual behavior than employees of other establishments.
(3)
Sexual acts, including masturbation, and oral and anal
sex, occur at sexually oriented businesses, especially those which provide
private or semiprivate booths or cubicles for viewing films, videos, or live
sex shows.
(4)
Offering and providing such space encourages such activities,
which creates unhealthy conditions.
(5)
Persons frequent certain adult theatres, adult arcades,
and other sexually oriented businesses for the purpose of engaging in sex
within the premises of such sexually oriented businesses.
(6)
At least 50 communicable diseases may be spread by activities
occurring in sexually oriented businesses, including, but not limited to,
syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital
herpes, hepatitis B, and trichomoniasis.
(7)
Since 1981 and to the present, there has been an increasing
cumulative number of reported cases of AIDS caused by the human immunodeficiency
virus (HIV) in the United States: 600 in 1982, 2,200 in 1983, 4,600 in 1984,
8,555 in 1985, 253,448 in 1992, and 886,575 through 2002. (HIV/AIDS Surveillance
Report, United States Health and Human Services Department, Centers for Disease
Control, 2003.)
(8)
As of December 30, 2002, there have been 5,386 reported
cases of AIDS and 8,233 reported cases of HIV infection in the State of Wisconsin.
(Review of Wisconsin HIV Case Surveillance Data, Wisconsin Department of Health
and Family Services, September 30, 2003.)
(9)
Since 1981 and to the present, there have been an increasing
cumulative number of persons testing positive for the HIV antibody test in
the State of Wisconsin.
(10)
In the United States each year, 3,000,000 people are
infected with chlamydia, 650,000 with gonorrhea, 70,000 with syphilis, 1,000,000
with herpes, 5,500,000 with human papillomavirus, 120,000 with hepatitis B,
and 5,000,000 with trichomoniasis. Overall, the CDC estimates there are 15,000,000
new cases of sexually transmitted diseases each year. (Tracking the Hidden
Epidemics: Trends in STD's in the United States, United States Health and
Human Services Department, Centers for Disease Control, 2000.)
(11)
The Surgeon General of the United States in his report
of October 22, 1986, has advised the American public that AIDS and HIV infection
may be transmitted through sexual contact, intravenous drug abuse, exposure
to infected blood and blood components, and from an infected mother to her
newborn.
(12)
According to the best scientific evidence, AIDS and HIV
infection, as well as syphilis and gonorrhea, are principally transmitted
by sexual acts.
(13)
Sanitary conditions in some sexually oriented businesses
are unhealthy, in part, because the activities conducted there are unhealthy
and, in part, because of the unregulated nature of the activities and the
failure of the owners and the operators of the facilities to self-regulate
those activities and maintain those facilities.
(14)
Numerous studies and reports have determined that semen
is found in the areas of sexually oriented businesses where persons view adult-oriented
films.
(15)
The consumption of alcoholic beverages on the premises
of sexually oriented businesses is an explosive combination, one that can
beget undesirable behavior and exacerbate the adverse secondary effects of
such businesses on the community.
(17)
Sexually oriented businesses have operational characteristics
which should be reasonably regulated in order to protect these substantial
governmental concerns.
(18)
A reasonable licensing procedure is an appropriate mechanism
to place the burden of that reasonable regulation on the owners and the operators
of the sexually oriented businesses. Further, such a licensing procedure will
place a heretofore nonexistent incentive on the operators to see that the
sexually oriented business is run in a manner consistent with the health,
safety and welfare of its patrons and employees as well as the public. It
is appropriate to require reasonable assurances that the licensee is the actual
operator of the sexually oriented business, fully in possession and control
of the premises and activities occurring therein.
(19)
Requiring licensees of sexually oriented businesses to
keep information regarding current employees and certain past employees will
help reduce the incidence of certain types of criminal behavior by facilitating
the identification of potential witnesses or suspects and by preventing minors
from working in such establishments.
(20)
The disclosure of certain information by those persons
ultimately responsible for the day-to-day operation and maintenance of the
sexually oriented business, where such information is substantially related
to the significant governmental interest in the operation of such uses, will
aid in preventing the spread of sexually transmitted diseases.
(21)
It is necessary to license entertainers in the adult
entertainment industry to prevent the exploitation of minors, to ensure that
each such entertainer is an adult and to ensure that such entertainers have
not assumed a false name, which would make regulation of the entertainer difficult
or impossible.
(22)
It is desirable in the prevention of the spread of communicable
diseases to obtain a limited amount of information regarding certain employees
who may engage in the conduct which this chapter is designed to prevent or
who are likely to be witnesses to such activity.
(23)
Proximity between entertainers and patrons during adult
entertainment performances can facilitate sexual contact, prostitution and
related crimes.
(24)
Removal of doors on adult booths and requiring sufficient
lighting on premises with adult booths advances a substantial governmental
interest in curbing the illegal and unsanitary sexual activity occurring in
adult theaters.
(25)
The license fees required in this chapter are necessary
as nominal fees imposed as necessary regulatory measures designed to help
defray the substantial expenses incurred by the Village of Mazomanie in regulating
sexually oriented businesses.
(26)
The general welfare, health, morals and safety of the
citizens of the Village of Mazomanie will be promoted by the enactment of
this chapter.
(27)
It is not the intent of this chapter to suppress or censor
any expressive activities protected by the First Amendment of the United States
Constitution or Article I, Section 3 of the Wisconsin Constitution, but rather
to enact time, place and manner regulations which address the compelling interests
of the Village of Mazomanie in mitigating the secondary effects of sexually
oriented businesses.
As used in this chapter, the following terms shall have the meaning
indicated:
Any place to which the public is permitted or invited wherein coin-operated,
slug-operated, or for any form of consideration, or electronically, electrically,
or mechanically controlled still- or motion-picture machines, projectors,
video or laser disc players, or other image-producing devices are maintained
to show images to five or fewer persons per machine at any one time, where
the images so displayed are distinguished or characterized by the depicting
or describing of specified sexual activities or specified anatomical areas.
A commercial establishment which has as a significant or substantial
portion of its stock-in-trade or a significant or substantial portion of its
revenues or devotes a significant or substantial portion of its interior business
or advertising to the sale or rental for any form of consideration of any
one or more of the following:
Books, magazines, periodicals or other printed matter or photographs,
films, motion pictures, videocassettes or video reproductions, slides, or
other visual representations which are characterized by the depiction or description
of specified sexual activities or specified anatomical areas; or
Instruments, devices, or paraphernalia which are designed for use in
connection with specified sexual activities.
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 an adult bookstore, adult novelty store, or adult
video store. Such other business purposes will not serve to exempt such commercial
establishment from being categorized as an adult bookstore, adult novelty
store, or adult video store so long as one of its principal business purposes
is the offering for sale or rental for consideration of the specified materials
which are characterized by the depiction or description of specified sexual
activities or specified anatomical areas.
Video stores that sell and/or rent only videotapes or other photographic
or computer-generated reproductions and associated equipment shall come within
this definition if 20% or more of their stock-in-trade or revenues comes from
the rental or sale of videotapes or other photographic reproductions or associated
equipment which is characterized by the depiction or description of specified
sexual activities or specified anatomical areas.
A nightclub, bar, restaurant, or similar commercial establishment
at which on 20 or more days in any twelve-month period:
Persons appear in a state of nudity or semi-nude;
Live performances occur which are characterized by the exposure of specified
anatomical areas or by specified sexual activities; or
Films, motion pictures, videocassettes, slides or other photographic
reproductions are shown which are characterized by the depiction or description
of specified sexual activities or specified anatomical areas.
An enclosed establishment with a capacity of fewer 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.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any form of consideration; provides
patrons with closed-circuit televising 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 has a sign visible from the public right-of-way which
advertises the availability of this adult type of photographic reproductions;
Offers a sleeping room for rent for a period of time that is less than
10 hours; or
Allows a tenant or occupant of a sleeping room to subrent the room for
a period of time that is less than 10 hours.
An enclosed establishment with a capacity of 50 or more persons 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.
A theater, concert hall, auditorium, or similar commercial establishment
which regularly features persons who appear in a state of nudity or semi-nude,
or live performances which are characterized by the exposure of specified
anatomical areas or by specified sexual activities.
Such enclosures as are specifically offered to the public or members of a sexually oriented business for hire or for a fee as part of a business operated on the premises which offers as part of its business the entertainment to be viewed within the enclosure, which shall include, without limitation, such enclosures wherein the entertainment is dispensed for a fee, but a fee is not charged for mere access to the enclosure. However, "booth, room or cubicle" does 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 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 of Wisconsin pursuant to Ch. 50, Wis. Stats.
A person who performs any service on the premises of a sexually oriented
business on a full-time, part-time or contract basis, whether or not the person
is denominated an employee, independent contractor, agent or otherwise and
whether or not said person is paid a salary, wage or other compensation by
the operator of said business. "Employee" does not include a person exclusively
on the premises for repair or maintenance of the premises or equipment on
the premises or for the delivery of goods to the premises.
A person who, for consideration, agrees or offers to act as a companion,
guide, or date for another person, or who agrees or offers to privately model
lingerie or to privately perform a striptease for another person.
A person or business association who or which furnishes, offers to
furnish, or advertises to furnish escorts as one of its primary business purposes
for a fee, tip, or other consideration.
Includes any of the following:
The opening or commencement of any sexually oriented business as a new
business;
The conversion of an existing business, whether or not a sexually oriented
business, to any sexually oriented business;
The addition of any sexually oriented business to any other existing
sexually oriented business; or
The relocation of any sexually oriented business.
A person in whose name a license to operate a sexually oriented business
has been issued, as well as the individual listed as an applicant on the application
for a license, and in the case of an employee, a person in whose name a license
has been issued authorizing employment in a sexually oriented business.
Any place where a person who appears semi-nude or in a state of nudity
or who displays specified anatomical areas is provided to be observed, sketched,
drawn, painted, sculptured, photographed, or similarly depicted by other persons
who pay money or any form of consideration. "Nude model studio" shall not
include a proprietary school licensed by the State of Wisconsin or a college,
junior college or university supported entirely or in part by public taxation;
a private college or university which maintains and operates educational programs
in which credits are transferable to a college, junior college or university
supported entirely or partly by taxation; or in a structure:
That has no sign visible from the exterior of the structure and no other
advertising that indicates a nude or semi-nude 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 semi-nude model is on the premises at
any one time.
The showing of the human male or female genitals, pubic area, vulva,
anus, anal cleft or cleavage with less than a fully opaque covering, the showing
of the female breast with less than a fully opaque covering of the entire
nipple and areola, or the showing of the covered male genitals in an discernibly
turgid state.
An individual, proprietorship, partnership, corporation, association,
or other legal entity.
A person who, knowingly or intentionally, in a public place:
Any location frequented by the public, or where the public is present
or likely to be present, or where a person may reasonably be expected to be
observed by members of the public. Public places include, but are not limited
to, streets, sidewalks, parks, beaches, business and commercial establishments
(whether for profit or not for profit and whether open to the public at large
or where entrance is limited by a cover charge or membership requirement),
bottle clubs, hotels, motels, restaurants, nightclubs, country clubs, cabarets
and meeting facilities utilized by religious, social, fraternal or similar
organizations. Premises used solely as a private residence, whether permanent
or temporary in nature, shall not be deemed to be a public place. "Public
place" shall not include enclosed single sex public rest rooms, enclosed single
sex functional shower, locker and/or dressing room facilities, enclosed motel
rooms and hotel rooms designed and intended for sleeping accommodations, doctors'
offices, portions of hospitals and similar places in which nudity or exposure
is necessarily and customarily expected outside of the home and the sphere
of privacy constitutionally protected therein. "Public place" does not include
a private facility which has been formed as a family-oriented clothing-optional
facility, properly licensed by the state.
The showing of the female breast below a horizontal line across the
top of the areola at its highest point or the showing of the male or female
buttocks. This definition shall include the entire lower portion of the human
female breast but shall not include any portion of the cleavage of the human
female breast exhibited by a dress, blouse, skirt, leotard, bathing suit,
or other wearing apparel provided that the areola is not exposed in whole
or in part.
A business or commercial enterprise that, as one of its principal
business purposes, offers for any form of consideration:
Both any live performance occurring in an adult cabaret that includes
nudity, semi-nudity, exposure of specified anatomical areas or specified sexual
activities and films, motion pictures, videocassettes, slides or other photographic
reproductions characterized by the depiction or description of specified anatomical
areas or specified sexual activities, when shown in an adult cabaret.
An adult arcade, adult bookstore, adult novelty store, adult video
store, adult cabaret, adult motel, adult motion-picture theater, adult theater,
escort agency, nude model studio, or sexual encounter center.
Any of the following:
The increase in floor area occupied by the business by more than
25%, as the floor area exists on the date this chapter takes effect.
Includes any of the following:
The sale, lease, or sublease of the business;
The transfer of securities which constitute a controlling interest in
the business, whether by sale, exchange, or similar means; or
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.
All sexually oriented businesses are subject to the regulations of this
chapter and are classified as follows:
A.
It is unlawful for any person:
(1)
To operate a sexually oriented business without a valid
sexually oriented business license issued by the Village of Mazomanie pursuant
to this chapter.
(2)
Who operates a sexually oriented business to permit a
person to be employed, work for or perform in the sexually oriented business
who is not licensed as a sexually oriented business employee by the Village
of Mazomanie pursuant to this chapter.
(3)
Who is required under this chapter to have a sexually
oriented business employee license to be employed, to work for or to perform
in a sexually oriented business without having secured a sexually oriented
business employee license pursuant to this chapter.
(4)
To substantially enlarge a sexually oriented business
without a valid sexually oriented business license issued by the Village of
Mazomanie pursuant to this chapter.
B.
A 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 license for each.
C.
A licensee shall not transfer his/her license to another,
nor shall a licensee operate a sexually oriented business under the authority
of a license at any place other than the address designated in the application.
D.
All sexually oriented businesses existing at the time
of the passage of this chapter must submit an application for a license within
45 days of the passage of this chapter.
A.
This chapter shall not be construed to restrict or prohibit
the following activities or products:
B.
The provisions of this chapter are not intended to and
do not prohibit the simulation of sex acts which are part of nonobscene expression.
C.
Whether or not an activity is obscene shall be judged
by consideration of the following factors:
(1)
Whether the average person, applying contemporary community
standards, would find that the activity taken as a whole appeals to the prurient
interest in sex;
(2)
Whether the activity depicts or described sexual conduct
in a patently offensive way, as measured against community standards; and
(3)
Whether the activity taken as a whole lacks serious literary,
artistic, political or scientific value.
A.
An application for a license under this chapter must
be made on a form provided by the Village of Mazomanie.
B.
All applicants must be qualified according to the provisions
of this chapter. The application may request and the applicant shall provide
such information necessary to enable the Village of Mazomanie to determine
whether the applicant meets the qualifications established in this chapter.
C.
If a person who wishes to operate a sexually oriented business is an individual, the person must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a twenty-percent or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under § 339-7.
D.
The completed application for a sexually oriented business
license shall contain the following information and shall be accompanied by
the following documents:
(1)
If the applicant is:
(a)
An individual, the individual shall state his/her legal
name and any aliases and submit proof that he/she is at least 18 years of
age.
(b)
A partnership, the partnership shall state its complete
name, the names of all partners, whether the partnership is general or limited,
and a copy of the partnership agreement, if any.
(c)
A corporation, the corporation shall state its complete
name, the date of its incorporation, evidence that the corporation is in good
standing under the laws of its state of incorporation, the names and capacity
of all officers, directors and principal stockholders, and the name of the
registered corporate agent and the address of the registered office for service
of process.
(2)
If the applicant intends to operate the sexually oriented
business under a name other than that of the applicant, he or she must state
the sexually oriented business fictitious name and submit the required registration
documents.
(3)
The classification of sexually oriented business license
for which the applicant if filing.
(4)
The location of the proposed sexually oriented business,
including a legal description of the property, street address, and telephone
number(s), if any.
(5)
The applicant's mailing address.
(6)
A sketch or diagram showing the configuration of the
premises, including a statement of total floor space occupied by the business.
The sketch or diagram need not be professionally prepared, but it must be
drawn to a designated scale or drawn with marked dimensions of the interior
of the premises to an accuracy of plus or minus six inches.
(7)
If an applicant wishes to operate a sexually oriented business, other than an adult motel, which shall exhibit on the premises, in a viewing room or booth of less than 150 square feet of floor space, films, videocassettes, other video reproductions, or live entertainment which depicts specified sexual activities or specified anatomical areas, then the applicant shall comply with the application requirements set forth in § 339-11.
(8)
Before any applicant may be issued a sexually oriented
business employee license, the applicant shall submit on a form to be provided
by the Village of Mazomanie the following information:
A.
Upon the filing of an application for a sexually oriented
business employee license, the Village of Mazomanie shall issue a temporary
license to the applicant. The application shall then be referred to the appropriate
Village of Mazomanie officials for an investigation to be made on such information
as is contained on the application. The application process shall be completed
within 45 days from the date the completed application is filed. After the
investigation, the Village of Mazomanie shall issue a license, unless it is
determined by a preponderance of the evidence that one or more of the following
findings is true:
(1)
The applicant has failed to provide information reasonably
necessary for issuance of the license or has falsely answered a question or
request for information on the application form;
(2)
The applicant is under the age of 18 years;
(3)
The sexually oriented business employee license is to
be used for employment in a business prohibited by local or state law, statute,
rule or regulation, or prohibited by a particular provision of this chapter;
or
(4)
The license fee required by this chapter has not been
paid.
B.
Upon the filing of an application for a sexually oriented
business license, the Village of Mazomanie shall issue a temporary license
to the applicant. The application shall then be referred to the appropriate
Village of Mazomanie officials for an investigation to be made on such information
as is contained on the application. The application process shall be completed
within 45 days from the date the completed application is filed. After the
investigation, the Village of Mazomanie shall issue a license, unless it is
determined by a preponderance of the evidence that one or more of the following
findings is true:
(1)
An applicant is under 18 years of age.
(2)
An applicant has failed to provide information reasonably
necessary for issuance of the license or has falsely answered a question or
request for information on the application form.
(3)
The premises to be used for the sexually oriented business
has not been approved by the Village of Mazomanie health, police, fire and
building officials as being in compliance with applicable laws and ordinances.
(4)
The license fee required by this chapter has not been
paid.
(5)
An applicant of the proposed establishment is not in
compliance with any of the provisions of this section.
C.
A license under this chapter, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, the address of the sexually oriented business and the regulated use for which the license is issued pursuant to § 339-3. All licenses shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that they may be easily read at any time.
D.
The Village of Mazomanie health, police, fire and building
officials shall complete their certification that the premises is in compliance
or not in compliance with all applicable statutes and ordinances within 20
days of receipt of the application by the Village of Mazomanie.
E.
A sexually oriented business license shall be issued for only one classification as found in § 339-3.
F.
A sexually oriented business license shall not be issued
unless the owner ensures that no specified anatomical areas and no specified
sexual activities are visible at any time from any public place that is not
the sexually oriented business in question.
G.
Whenever an application is denied or a license is not
renewed, the Village of Mazomanie Clerk-Treasurer shall 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 within 10 days thereafter in conformity with § 68.11(2)
and (3), Wis. Stats. A final determination, stating the reasons therefor,
together with a copy of any official recording or transcript of the hearing,
shall be rendered within 20 days of the commencement of the hearing. Judicial
review shall be governed by § 68.13, Wis. Stats.
A.
Every person required to have a sexually oriented business
employee license shall post his or her license in his or her work area so
that it is readily available for public inspection.
B.
Every person, corporation, partnership, or association
licensed under this chapter shall display its license in a prominent place
within the establishment. In the case of adult cabarets, the name of the manager
on duty shall be prominently posted during business hours.
A.
Separation of sexually oriented adult entertainment performance
area.
(1)
The portion of the adult cabaret premises in which sexually
oriented adult entertainment is performed shall be a stage or platform that
is separated from all patron seating areas in the following ways:
(a)
It shall be at least 24 inches in elevation;
(b)
It shall be separated by a distance of at least 10 feet; and
(c)
It shall have a continuous railing at least three feet in height,
extending from the floor, and located at least 10 feet from all points of
the sexually oriented adult entertainment performance area.
B.
Lighting. Sufficient lighting shall be provided and equally
distributed in and about the parts of the premises which are open to and used
by patrons so that all objects are plainly visible at all times and so that
on any part of the premises which is open to and used by patrons a program,
menu, or list printed in eight-point type will be readable.
C.
Submittal of plans. Building plans showing conformance
with the requirements of this chapter shall be included with any application
for a sexually oriented business license for an adult cabaret.
D.
Standards of conduct for employees. All employees of
a sexually oriented business must adhere to the following standards of conduct:
(1)
No employee or holder of a sexually oriented business
employee license shall appear in a state of nudity or semi-nude on any part
of the premises open to view of members of the public, except on or in the
entertainment performance area described above.
(2)
No employee holder of a sexually oriented business employee
license shall allow, encourage or knowingly permit any person upon the premises
to touch, caress, or fondle the breasts, buttocks, anus, pubic area or genitals
of any other person.
(3)
No employee or holder of a sexually oriented business
employee license of an adult cabaret shall be visible from any public place
that is not the sexually oriented business in question during the actual or
apparent hours of his or her employment or performance on the premises of
that sexually oriented business.
E.
Manager on premises. A manager, who shall be a licensed
employee and not an entertainer, shall be on duty at an adult cabaret business
premises at all times and shall verify that any employee or holder of a sexually
oriented business employee license who works or appears within the premises
possess a current and valid entertainer's license posted in the manner required
by this chapter.
F.
Signs. Signs in letters at least 3/4 inch high shall
be conspicuously displayed in the public area of the establishment stating
the following:[2]
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This adult cabaret is regulated by the Village of Mazomanie. Entertainers
are:
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A. Not permitted to engage in any type of sexual conduct.
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B. Not permitted to appear in a state of nudity or semi-nude, except
on stage.
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C. Not permitted to dance or model where patrons are congregated.
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G.
Visibility. Any area of an adult cabaret in which any
patrons are permitted during hours of operation, and which is also partially
or fully closed off from other portions of the premises by one or more interior
walls, curtains, dividers or other partitions, must have on each such partition
at least one window or other similar opening for each 20 feet of partition.
Such window or opening must be at least three feet wide, 3 1/2 feet in height
and begin no more than 3 1/2 feet from the floor of the partially or
fully closed-off area. Additionally, the windows or other similar openings
must at all times permit a clear view of such partially or fully closed-off
area to any person looking in the window or opening and may not be covered.
This provision does not apply to rest rooms.
H.
Rest rooms. The entrance of any rest room in any adult
cabaret that has one or more stalls may not be locked at any time during the
adult cabaret's hours of operation.
A.
Evidence that a sleeping room in a hotel, motel, or similar
commercial establishment has been rented and vacated two or more times in
a period of time that is less than 10 hours creates a rebuttal presumption
that the establishment is an adult motel as that term is defined in this chapter.
B.
A person commits a violation of this chapter if, as the
person in control of a sleeping room in a hotel, motel, or similar commercial
establishment that does not have a sexually oriented business license, he
rents or subrents a sleeping room to a person and, within 10 hours from the
time the room is rented, he rents or subrents the same sleeping room again.
A.
A person who operates or causes to be operated a sexually
oriented business, other than an adult motel, which exhibits on the premises,
in a viewing room of less than 150 square feet of floor space, a film, videocassette,
live entertainment, or other video reproduction which depicts specified sexual
activities or specified anatomical areas shall comply with the following requirements:
(1)
Upon application for a sexually oriented business license,
the application shall be accompanied by a diagram of the premises showing
a plan thereof specifying the location of one or more managers' stations and
the location of all overhead lighting fixtures and designating any portion
of the premises in which patrons will not be permitted. A manager's station
may not exceed 32 square feet of floor area. The diagram shall also designate
the place at which the permit will be conspicuously posted, if granted. A
professionally prepared diagram in the nature of an engineer's or architect's
blueprint shall not be required; however, each diagram should be oriented
to the north or to some designated street or object and should be drawn to
a designated scale or with marked dimensions sufficient to show the various
internal dimensions of all areas of the interior of the premises to an accuracy
of plus or minus six inches. The Village of Mazomanie may waive the foregoing
diagram for renewal applications if the applicant adopts a diagram that was
previously submitted and certifies that the configuration of the premises
has not been altered since it was prepared.
(2)
No alteration in the configuration of location of a manager's
station may be made without the prior approval of the Village of Mazomanie.
(3)
It is the duty of the licensee of the premises to ensure
that at least one licensed employee is on duty and situated in each manager's
station at all times that any patron is present inside the premises.
(4)
The interior of the premises shall be configured in such
a manner that there is an unobstructed view from a manager's station of every
area of the premises to which any patron is permitted access for any purpose,
excluding rest rooms. Rest rooms may not contain video reproduction equipment.
If the premises has two or more managers' stations designated, then the interior
of the premises shall be configured in such a manner that there is an unobstructed
view of each area of the premises to which any patron is permitted access
for any purpose from at least one of the manager's stations. The view required
in this subsection must be by direct line of sight from the manager's station.
(5)
It shall be the duty of the licensee to ensure that the view area specified in Subsection A(4) remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection A(1) of this section.
(6)
No viewing room may be occupied by more than one person
at any time.
(7)
The premises shall be equipped with overhead lighting
fixtures of sufficient intensity to illuminate every place to which patrons
are permitted access at an illumination of not less that five footcandles
as measured at the floor level.
(8)
It shall be the duty of the licensee to ensure that the
illumination described above is maintained at all times that any patron is
present in the premises.
(9)
No licensee shall allow openings of any kind to exist
between viewing rooms or booths.
(10)
No person shall make or attempt to make an opening of
any kind between viewing booths or rooms.
(11)
The licensee shall cause all floor coverings in viewing
booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
(12)
The licensee shall cause all wall surfaces and ceiling
surfaces in viewing booths to be constructed of, or permanently covered by,
nonporous, easily cleanable material. No wood, plywood, composition board
or other porous material shall be used within 48 inches of the floor.
A.
A nude model studio shall not employ any person under
the age of 18 years.
B.
A person under the age of 18 years commits an offense
if the person appears semi-nude or in a state of nudity in or on the premises
of a nude model studio. It is a defense to prosecution under this subsection
if the person under 18 years was in a rest room not open to public view or
visible to any person.
C.
A person commits an offense if the person appears in
a state of nudity or knowingly allows another to appear in a state of nudity
in an area of a nude model studio premises which can be viewed from the public
right-or-way.
D.
A nude model studio shall not place or permit a bed,
sofa, or mattress in any room on the premises, except that a sofa may be placed
in a reception room open to the public.
A.
It shall be a violation of this chapter for a person
to knowingly and intentionally, in a sexually oriented business, appear in
a state of nudity.
B.
It shall be a violation of this chapter for a person
to knowingly or intentionally, in a sexually oriented business, appear in
a semi-nude condition unless the person is an employee who, while semi-nude,
shall be a least 10 feet from any patron or customer and on a stage at least
24 inches from the floor.
C.
It shall be a violation of this chapter for an employee,
while semi-nude, to touch a customer or the clothing of a customer.
A person commits a violation of this chapter if the person knowingly
allows a person under the age of 18 years on the premises of a sexually oriented
business.
A person commits a violation of this chapter if the person knowingly
or intentionally commits a public indecency.
A person commits a violation of this chapter if the person knowingly
allows or otherwise participates in the sale, use or consumption of alcoholic
beverages on the premises of a sexually oriented business.
Sexually oriented businesses, except for an adult motel, must remain
closed at all times between the hours of 12:00 midnight and 10:00 a.m., Monday
through Saturday. No Sunday open hours are permitted for sexually oriented
businesses except for an adult motel.
A.
Every application for a sexually oriented business license
(whether for a new license or for renewal of an existing license) shall be
accompanied by a nonrefundable application and investigation fee as set by
the Village Board.
B.
In addition to the application and investigation fee
required above, every sexually oriented business that is granted a license
(new or renewal) shall pay to the Village of Mazomanie an annual nonrefundable
license fee as set by the Village Board within 30 days of license issuance
or renewal.
C.
Every application for a sexually oriented business employee
license (whether for a new license or for renewal of an existing license)
shall be accompanied by an annual nonrefundable application, investigation
and license fee as set by the Village Board.
D.
All license applications and fees shall be submitted
to the Village of Mazomanie Clerk-Treasurer.
A.
An applicant or licensee shall permit representatives
of the Village of Mazomanie to inspect the premises of a sexually oriented
business for the purpose of ensuring compliance with the law, at any time
it is occupied or open for business.
B.
A person who operates a sexually oriented business or
his agent or employee commits a violation of this chapter if he refuses to
permit such lawful inspection of the premises at any time it is open for business.
A.
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in § 339-6. Application for renewal shall be made at least 45 days before the expiration date, and when made less than 45 days before the expiration date, the expiration of the license will not be affected.
B.
When the Village of Mazomanie denies renewal of a license,
the applicant shall not be issued a license for one year from the date of
denial. If, subsequent to denial, the Village of Mazomanie finds that the
basis for denial of the renewal license has been corrected or abated, the
applicant may be granted a license if at least 90 days have elapsed since
the date denial became final.
The Village of Mazomanie shall suspend a license for a period not to
exceed 30 days if it determines that a licensee or an employee of a licensee
has:
A.
The Village of Mazomanie shall revoke a license if a cause of suspension in § 339-22 occurs and the license has been suspended within the preceding 12 months.
B.
The Village of Mazomanie shall revoke a license if it
determines that:
(1)
A licensee gave false or misleading information in the
material submitted during the application process;
(2)
A licensee has knowingly allowed possession, use, or
sale of controlled substances on the premises;
(3)
A licensee has knowingly allowed prostitution on the
premises;
(4)
A licensee knowingly operated the sexually oriented business
during a period of time when the licensee's license was suspended;
(5)
Except in the case of an adult motel, a licensee has
knowingly allowed any act of sexual intercourse, sodomy, oral copulation,
masturbation, or other sex act to occur in or on the licensed premises; or
(6)
A licensee is delinquent in payment to the Village of
Mazomanie, county, or state for any taxes or fees past due.
C.
When the Village of Mazomanie revokes a license, the
revocation shall continue for one year, and the licensee shall not be issued
a sexually oriented business license for one year from the date the revocation
became effective. If, subsequent to revocation, the Village of Mazomanie finds
that the basis for the revocation has been corrected or abated, the applicant
may be granted a license if at least 90 days have elapsed since the date the
revocation became effective.
D.
An existing business can remain open pending the review
of license denials and failures to renew, and all businesses can remain open
pending review of suspensions and revocations.
It is a defense to prosecution under § 339-14 that a person appearing in a state of nudity did so in a modeling class operated:
A.
By a proprietary school, licensed by the State of Wisconsin,
a college, junior college, or university supported entirely or partly by taxation;
B.
By a private college or university which maintains and
operates educational programs in which credits are transferable to a college,
junior college, or university supported entirely or partly by taxation; or
C.
In a structure:
(1)
Which has no sign visible from the exterior of the structure
and no other advertising that indicates a nude person is available for viewing;
(2)
Where, in order to participate in a class, a student
must enroll at least three days in advance of the class; and
(3)
Where no more than one nude model is on the premises
at any one time.
A.
A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of any provisions of this chapter is subject to a suit for injunction as well as prosecution for violations of this chapter. Such violations shall be subject to a forfeiture as provided in Chapter 1, § 1-3 of this Code, plus costs. Each day a violation continues constitutes a separate offense or violation.
B.
The remedies found in this chapter are not exclusive,
and the Village of Mazomanie may seek any other legal or equitable relief,
including but not limited to enjoining any acts or practices which constitute
or will constitute a violation of any business license ordinances or other
regulations herein adopted.
The Village of Mazomanie Code and state law shall govern the administrative
procedure and review regarding the granting, denial, renewal, nonrenewal,
revocation and suspension of a license.[1] After denial of an application, or denial of a renewal of an application,
or suspension or revocation of any license, the applicant or licensee may
seek prompt judicial review of such administrative action in any court of
competent jurisdiction. The administrative action shall be promptly reviewed
by the court.
A.
A sexually oriented business establishment shall be a conditional use in the I-1 or I-2 District as provided in Article IV of Chapter 415, Zoning, of the Code of the Village of Mazomanie. All pertinent general or district zoning restrictions shall apply. In addition, no permit may be granted for a sexually oriented business establishment unless it shall be located at least 1,000 feet from:
B.
All applicable provisions of the municipal ordinances
and the Wisconsin Statutes regulating conditional uses shall apply to any
request for conditional use for any sexually oriented business establishment.
