[HISTORY: Adopted by the Town Board of the
Town of Winneconne 8-21-2008. Amendments noted where applicable.]
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:
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:
ADULT BOOKSTOREA 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.
ADULT MOTION-PICTURE THEATERA 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.
ADULT BATH HOUSEA 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.
ADULT MASSAGE PARLORA 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.
ADULT MODELING STUDIOA 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.
ADULT BODY PAINTING STUDIOA 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.
A nightclub, dance hall, bar, restaurant, or
similar commercial establishment which regularly features:
Persons who appear seminude; or
Live performances that are characterized by
the exposure of specified sexual activities or specified anatomical
areas; or
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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:
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.
