Town of Winneconne, WI
Winnebago County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Winneconne 8-21-2008. Amendments noted where applicable.]
GENERAL REFERENCES
Peace and good order — See Ch. 237.
Signs — See Ch. 256.
Zoning — See Ch. 310.
The title of this chapter is the "Town of Winneconne Adult Entertainment Ordinance Chapter 109."
The Town Board of the Town of Winneconne, Winnebago County, Wisconsin has the authority under its Village Powers under § 60.22(3), Wis. Stats., and the specific authority under § 61.34(1), Wis. Stats., to adopt this chapter.
The Town Board of the Town of Winneconne, Winnebago County, Wisconsin by this chapter, adopted on proper notice with a quorum and by a roll call vote by a majority of the Town Board present and voting, provides the authority of the Town of Winneconne to regulate and license adult entertainment in the Town of Winneconne. The Town Board of the Town of Winneconne, Winnebago County, Wisconsin, does hereby ordain as follows.
Whereas, the Town of Winneconne finds that the adult entertainment businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a causal nature; and whereas, the concern over sexually transmitted diseases is a legitimate health concern to the Town of Winneconne, which demands reasonable regulation of adult entertainment businesses in order to protect the health and well-being of the citizens; and whereas, there is convincing documented evidence that adult entertainment businesses have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values; and whereas, the Town of Winneconne desires to minimize and control these adverse secondary effects and thereby protect the health, safety and welfare of the citizenry, protect the citizens from increased crime, preserve the quality of life, preserve the property values and character of surrounding neighborhoods, and deter the spread of urban blight; and whereas, it is not the intent of this chapter to suppress any speech activities protected by the First Amendment but to enact a regulation that addresses the negative secondary effects of adult entertainment businesses; and whereas, it is not the intent of the Town of Winneconne to condone or legitimize the distribution of obscene material; now, therefore, the Town of Winneconne ordains as follows.
A. 
It is the purpose of this chapter to regulate adult entertainment businesses in order to promote the health, safety, and general welfare of citizens of the Town of Winneconne, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of adult entertainment businesses within the Town of Winneconne. The provisions of this chapter have neither the purpose nor the effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is neither 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 adult 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. Findings are as follows:
(1) 
That the Town of Winneconne has done the following in the development of this chapter:
(a) 
Conducted a workshop presented by their legal counsel regarding the state of law regulating adult entertainment business and the concerns that adult entertainment businesses bring to the community.
(b) 
Read and utilized the following:
[1] 
A study entitled "Everything You Always Wanted To Know About Regulating Sex Businesses," by Eric Damian Kelly and Connie Cooper.
[2] 
Review of the following cases: Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976); City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); Kraimer v. Schofield, 342 F.Supp 2d 807 (Wd Wis 2004); Ben's Bar Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); Heideman v. South Salt Lake City, 165 Fed. App. 627 (2006).
[3] 
Village of Grafton, Wisconsin, Ordinance 9.35.
[4] 
Winnebago County, Wisconsin, Adult Entertainment Ordinance.
[5] 
Adult Entertainment, a 40-Acre Study, Development of Planning and Economic Development for the City of St. Paul.
(2) 
That the existence of adult entertainment businesses may increase the occurrence of unlawful sexual activities, this having a deleterious effect on the existing and surrounding commercial and residential areas, thus resulting in a downgrading of property values as well as causing an increase in criminal activity.
(3) 
That it is in the best interests of the Town of Winneconne to minimize and control any adverse secondary effects of adult entertainment establishments within the Town of Winneconne while preserving the right of free speech and protecting First Amendment rights to all citizens and recognizing the rights of citizens to patronize and operate adult entertainment establishments.
As used in this chapter, the following terms shall have the meanings indicated:
ADULT ESTABLISHMENTS
Includes adult bookstores, adult motion-picture theaters, adult bath houses, adult massage parlors, modeling studios, body painting studios, and adult cabarets, and are more specifically defined as:
A. 
A commercial establishment that has a significant or substantial portion of its stock-in-trade, or derives a significant or substantial portion of its revenues, from books, magazines and other periodicals, videos, streaming videos, DVDs, tapes, and other similar items which are distinguished or characterized by their emphasis upon the exhibition or display of specific sexual activities or specified anatomical areas as defined herein. 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, so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials that depict or describe "specified sexual activities" or specified anatomical areas. A principal business purpose need not be a primary use of an establishment so long as it is a significant use based upon the visible inventory or commercial activity of the establishment. This definition shall expressly exclude films, motion pictures, video cassettes, streaming videos, DVDs, slides or other similar photographic reproductions given an R or NC-17 rating by the Motion Picture Association of America.
B. 
A commercial establishment, held either indoors or outdoors, where, for any form of consideration, films, motion pictures, video cassettes, streaming videos, DVDs, slides, or similar photographic reproductions are regularly shown which are distinguished or characterized by the depiction or description of specified sexual activities or specified anatomical areas as defined herein. This definition shall expressly exclude films, motion pictures, videocassettes, streaming videos, DVDs, slides or other similar photographic given an R or NC-17 rating by the Motion Picture Association of America.
C. 
A commercial establishment 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 chapter.
D. 
A commercial establishment or business with our without sleeping accommodations which provides the services of massage and body manipulation, including exercises, heat and light treatments of the body, and all forms and methods of physiotherapy, not operated by a medical practitioner or professional physical therapist licensed by the State of Wisconsin and which establishment provides for its patrons the opportunity to engage in specified sexual activity as defined in this chapter.
E. 
A commercial establishment or business which provides the service of modeling for the purpose of reproducing the human body, wholly or partially in the nude, by means of photography, painting, sketching, drawing or otherwise.
F. 
A commercial 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 chapter, the adult body painting studio shall not be deemed a tattoo parlor.
G. 
(1) 
A nightclub, dance hall, bar, restaurant, or similar commercial establishment which regularly features:
(a) 
Persons who appear seminude; or
(b) 
Live performances that are characterized by the exposure of specified sexual activities or specified anatomical areas; or
(c) 
Films, motion pictures, video cassettes, streaming videos, DVDs, slides or other photographic reproductions which are characterized by the exhibition or display of specified sexual activities or specified anatomical areas.
(2) 
This definition shall expressly exclude films, motion pictures, video cassettes, slides or other similar photographic reproductions given an R rating or NC-17 rating by the Motion Picture Association of America.
A. 
The fondling of another persons genitals, pubic region, anus or female breasts;
B. 
Actual sex acts, normal or perverted, including intercourse, oral copulation, masturbation, or sodomy; or
C. 
Excretory functions as part of or in connection with any of the activities set forth in Subsections A and B above.
A. 
The human male genitals in a discernibly turgid state, even if completely and opaquely covered; or
B. 
Less than completely and opaquely covered human genitals, pubic region, vulva, anus or the nipple and areola area of the human female breast.
DIRECTLY
To require physical contact. For instance, when this chapter prohibits an employee receiving a gratuity directly from a patron, it prohibits the direct touching of skin, other body parts or clothing.
DISTINGUISHED or CHARACTERIZED BY
The dominant or principal object referenced. For instance when the phrase refers to films which are distinguished or characterized by an emphasis upon the exhibition or display of specified sexual activities or specified anatomical areas, the films so described are those whose dominant or principal character and theme are the exhibition or display of specified sexual activities or specified anatomical areas.
EMPLOYEE, EMPLOY and EMPLOYMENT
Describe and pertain to any person who performs any service on the premises of an adult establishment on a full-time, part-time, or contract basis, regardless of whether the person is denominated as an employee, independent contractor, agent, or by another status. Employee does not include a person exclusively on the premises for the repair or maintenance of the premises, or for the delivery of goods to the premises.
OWNER or OPERATOR
Any person on the premises of an adult entertainment business who is authorized to exercise operational control of the business, or who causes to function or who puts or keeps in operation the business. A person may be found to be operating or causing to be operated an adult entertainment business regardless of whether that person is an owner, part owner, or licensee of the business.
PREMISES
The real property upon which the adult establishment is located and all appurtenance thereto and buildings thereon, including but not limited to the adult establishment, the grounds, the private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control or supervision of the owner or operator of the business.
REGULARLY FEATURES or REGULARLY SHOWS
A consistent or substantial course of conduct, such that the films or performances exhibited constitute a substantial portion of the films or performances offered as part of the ongoing business of the adult establishment.
SEMINUDE or SEMINUDE CONDITION
The showing of the human male or female genitals, pubic area, vulva or anus, with not more than a complete opaque covering, or the showing of the female breast with not more than a complete opaque covering of any part of the nipple or areola.
A. 
Adult establishments shall only be permitted by a conditional use permit in C-1 Commercial zoning.
B. 
No person, employee, entertainer or patron shall be permitted to have any physical contact with any entertainer on the premises of an adult entertainment business during any performance. To prevent actual physical contact between the entertainer and any other person, employee or patron, all performances shall only occur on a stage or on a table that is elevated at least eight inches above the immediate floor level and shall not be less than three feet from any areas occupied by a patron. Patrons shall not have any physical contact with and shall not be less than five feet from any entertainer during any performance, including, but not limited to, during the payment of a tip or gratuity. Any adult entertainment establishment deemed a legal nonconforming use when this chapter is enacted shall not have to reconstruct existing stages and tables but shall adhere to the prohibition against physical contact.
C. 
No more than one of the above adult uses may be established on any one parcel, and the establishment of any one of the above adult uses shall be at least 600 feet from the establishment of any other adult use.
D. 
No adult use shall be permitted within 600 feet of any land zoned residential or within 600 feet of a residential planned unit development or farm dwelling.
E. 
No adult use shall be permitted within 600 feet from any public or private educational facility or church, including but not limited to any child day care establishments, nursery schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges and universities. "School" includes the school grounds, but does not include facilities used primarily for another purpose and only incidental at a school.
F. 
No adult use shall be permitted within 600 feet from any municipally owned public park or recreational area which has been designated for park or recreational activities, including but not limited to a park, playground, nature trail, swimming pool, reservoir, athletic field, basketball or tennis court, pedestrian/bicycle path, wilderness area or other similar public land within the Town of Winneconne which is under the control, operation or management of the Town of Winneconne and recreational authorities.
G. 
No adult use shall be permitted within 600 feet of any premises that in any manner sells or disperses alcohol or is licensed pursuant to the alcoholic beverage control regulations of the state.
H. 
For purposes of this chapter, distances are to be measured in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as the part of the premises where an adult entertainment business is conducted, to the nearest property line of the premises of a use listed in Subsections C through G. The presence of a city, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this chapter.
I. 
The sale, use or consumption of any intoxicating or alcoholic beverage on the premises is prohibited.
J. 
Signs advertising any of the aforementioned adult uses shall conform to Chapter 256 of the Code of the Town of Winneconne[1] with the exception, however, that no tower or portable signs or billboards shall be permitted on the premises, and with the further exception that signs will not depict specified sexual activities and/or specified anatomical areas as defined in the chapter, and provided further that there shall be no flashing or traveling lights located outside the building.
[1]
Editor's Note: See Ch. 256. Signs.
K. 
Adequate parking shall be provided in a lighted area.
L. 
There shall be no display windows on the premises.
M. 
The owner and/or operator of the adult entertainment establishment shall agree to comply with all applicable state, federal and local laws, health regulations, ordinances and applicable licensing requirements, including obscenity, liquor and cabaret laws, and shall further ensure that minors are not permitted on the premises. Solicitation for purposes of prostitution shall be strictly prohibited.
N. 
In the case of adult cabarets, there shall be compliance with Chapter 237 of the Code of the Town of Winneconne[2] for such establishments shall be limited to the same hours of operations for bars and taverns within that community within which the district is located.
[2]
Editor's Note: See Ch. 237, Peace and Good Order.
O. 
In the case of adult motion-picture theaters held outdoors, the establishment shall comply with the same conditional use standards set forth for drive-in theaters in the C-1 District and shall furthermore comply with the standards set forth in Chapter 237 of the Town of Winneconne.[3] Furthermore, outdoor adult motion-picture theaters shall confine their hours of operation to those hours of operation established for bars and taverns within the community within which the establishment is located. Outdoor adult motion-picture theaters shall also have the viewing screen located in such a fashion as not to be visible from any road, street, highway or residence, and the premises shall be surrounded by solid fencing at least eight feet in height. All theaters shall be in compliance with § 134.46, Wis. Stats.
[3]
Editor's Note: See Ch. 237, Peace and Good Order.
P. 
Prior to the establishment of an adult establishment, an inventory of the surrounding area and population shall be made by a registered land surveyor or planner, along with a study of the proposed development plans for the area so as to enable the Town of Winneconne Plan Commission to make appropriate findings relating to the effect of the establishment of such a district in that area.
Q. 
The owner of the parcel of land upon which the adult entertainment use is to be established and the operator of the establishment and owner of the establishment shall appear in person before the Town of Winneconne Plan Commission.
No principal uses shall be permitted as a matter of right in the Town of Winneconne. All uses shall be conditional uses.
Conditional uses shall be as follows:
A. 
Adult bath houses.
B. 
Adult body painting studios.
C. 
Adult bookstores.
D. 
Adult cabarets.
E. 
Adult massage parlors.
F. 
Adult motion-picture theaters.
G. 
Adult modeling studios.
H. 
All accessory, conditional, and principal uses of the adult establishments.
All applicable Town of Winneconne standards and ordinances shall be complied with, including lot area and width, setback requirements, building height requirements, and sanitary disposal systems.
An application for the issuance of a conditional use permit shall be made in accordance with Chapter 310 and must comply with Chapter 310,[1] with the following findings:
A. 
That all the standards and requirements of this chapter have been met.
B. 
That the proposed zoning is consistent with the general intent of any comprehensive plan in existence.
C. 
That the existing streets and utility services are adequate for the proposed use.
[1]
Editor's Note: See Ch. 310, Zoning.
The provisions of this chapter do not apply to the following establishments: theaters, performing arts centers, civic centers, and dinner theaters where live dance, ballet, music and dramatic performances of serious artistic merit are offered on a regular basis; and in which the predominant business or attraction of the offering of entertainment which is intended for sexual interests or attraction 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 entertainment businesses on the community. Negative secondary effects have not been associated with the establishments referenced in this section.
Any adult entertainment establishment lawfully operating as of August 22, 2008, which is in violation of this chapter shall be deemed a nonconforming use. The nonconforming use shall be permitted to continue in substantially the same manner for a period not to exceed one year from the enactment of this chapter unless sooner terminated for any reason, voluntarily discontinued or brought into compliance with this chapter. After one year, the owner or operator of any adult entertainment business must comply with the provisions of this chapter. The existing structure(s) and the use contained herein, shall be exempt from the six-hundred-foot setback requirements of this chapter. Any expansion of the existing structure(s) and the use contained therein, shall adhere to the six-hundred-foot setback requirements of this chapter.
Any provisions stated in this chapter are hereby declared to be independent divisions and subdivisions, not withstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provision of this chapter, or the application thereof to any person or circumstance, is held to be invalid, the remaining ordinances or provisions, and the application of such remaining ordinances and provisions to any person or circumstances whatsoever, shall not be affected thereby, and it is hereby declared that such remaining ordinances and provisions would have been passed independently of the ordinance or provision so held to be invalid.
This chapter is effective on publication or posting.