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.
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.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
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.
SPECIFIED SEXUAL ACTIVITIES
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.
SPECIFIED ANATOMICAL AREAS
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.
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:
B. Adult body painting studios.
F. Adult motion-picture theaters.
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, 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.
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.