A. 
Intent. It is the intent of this chapter to regulate sexually oriented businesses and related activities to promote the health, safety and general welfare of the citizens of the City of Weyauwega and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the City. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent or 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 or effect of this chapter to condone or legitimize the distribution of obscene materials.
B. 
Findings.
(1) 
It is a lawful purpose of the City Council to enact rules and regulations as are necessary for the preservation of health and to prevent the spread of AIDS and other communicable or sexually transmitted diseases in the City of Weyauwega. It has been found by localities through the State of Wisconsin, particularly Milwaukee, Racine, Waukesha, Delafield, Kenosha and West Allis, as well as communities around the country, including Indianapolis, Indiana; Austin, Texas; Chattanooga, Tennessee; Newport News, Virginia; Marion County, Indiana; Detroit, Michigan; and Seattle, Washington, as well as other communities around the country, that sexually oriented adult entertainment establishments are predisposed to the creation of unsafe and unsanitary conditions; that operators and employees of such businesses tend to participate in sex-related offenses on the premises, creating substantial law enforcement problems; and that the operational characteristics of such businesses have a deleterious effect on surrounding areas, resulting in neighborhood blight and reduced property values, especially when such businesses are concentrated in one area. Many of such establishments install movie viewing booths with doors in which patrons view videotapes, movies, films and other forms of entertainment characterized by their emphasis on depicting, describing or relating to specified sexual activities or specified anatomical areas, and such booths have been and are being used by patrons to engage in sexual acts resulting in unsanitary, unhealthy and unsafe conditions in said booths and establishments. This chapter is intended to establish standards in order to prevent the spread of AIDS and other communicable or sexually transmitted diseases and to eliminate the deleterious effects described above in the City of Weyauwega.
(2) 
The City Council recognizes that "Class B" licensed premises are the most likely location to conduct a live nude dancing business and that this sexually oriented adult entertainment activity could lead to the exploitation of human sexuality. Such exploitation takes the form of employing or permitting persons to perform or exhibit their nude or seminude bodies to other patrons as an inducement to the patrons to purchase alcohol beverages. The result of such exploitation is both direct and secondary criminal activity, moral degradation and disturbance of the peace and good order of the community. In addition, this commercial exploitation of such nude and seminude acts is adverse to the public's interest in the quality of life, commercial activity and total community environment of the City of Weyauwega.
(3) 
The City Council also recognizes that it lacks authority to regulate obscenity in light of § 66.0107(3), Wis. Stats., and does not intend by adopting this chapter to regulate obscenity, since nudity in and of itself is not obscene; it declares its intent to enact an ordinance addressing the secondary effects of live, totally nude, nonobscene, erotic dancing in bars or taverns.
(4) 
Based on evidence concerning the adverse secondary effects of adult uses on communities stated above, and on findings incorporated in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 426 U.S. 50 (1976); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986); California v. LaRue, 409 U.S. 109 (1972); Iacobucci v. City of Newport, Ky., 479 U.S. 92 (1986); United States v. O'Brien, 391 U.S. 367 (1968); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Key, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); and South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608 (11th Cir. 1984), and findings reported in the Final Report of the Attorney General's Commission on Pornography (1986), the Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989, State of Minnesota), and statistics obtained from the United States Department of Health and Human Services, Centers for Disease Control and Prevention, the City Council finds that:
(a) 
Crime statistics show that all types of crimes, especially sex-related crimes, occur with more frequency in neighborhoods where sexually oriented businesses are located.
(b) 
Studies of the relationship between sexually oriented businesses and neighborhood property values have found a negative impact on both residential and commercial property values.
(c) 
Sexually oriented businesses may contribute to an increased public health risk through the spread of sexually transmitted diseases.
C. 
Exemptions. 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, social or political merit are offered on a regular basis and in which the predominant business or attraction is not the offering of entertainment which is intended for the sexual interests or titillation 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-oriented establishments or sexually oriented businesses on the community. Negative secondary effects have not been associated with these establishments.
The following definitions are applicable in this chapter:
ADULT ARCADE
Any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still- or motion-picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
ADULT BATHHOUSE
An establishment or business which provides the service of baths of all kinds, including all forms and methods of hydrotherapy, that is not operated by a medical practitioner or a professional physical therapist licensed by the State of Wisconsin and which establishment provides to its patrons an opportunity for engaging in specified sexual activities as defined in this article.
ADULT BODY PAINTING STUDIO
An establishment or business wherein patrons are afforded an opportunity to paint images on a body which is wholly or partially nude. For purposes of this chapter, an adult body painting studio shall not be deemed to include a tattoo parlor.
ADULT BOOKSTORE or ADULT VIDEO STORE
An establishment having as a substantial or significant portion of its stock and trade in books, magazines, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined herein. This includes an establishment having as its stock-in-trade, for sale, rent, trade, lease, inspection or viewing, books, films, videocassettes, motion pictures, magazines or other periodicals which are distinguished or characterized by their emphasis on matters depicting, describing or relating to specific sexual activities or specified anatomical areas, and in conjunction therewith having facilities for the presentation of adult entertainment, including adult-oriented videotapes, films, motion pictures or other offered entertainment for observation by patrons therein. This also includes a commercial establishment that, as one of its principal business purposes, offers for sale or rental for any form of consideration instruments, devices, or paraphernalia that is designed for use in connection with specified sexual activities. Note: 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" or "adult video store" 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.
ADULT CABARET
A nightclub, dance hall, bar, restaurant, or similar commercial establishment that regularly features:
A. 
Persons who appear in a state of nudity or seminudity;
B. 
Live performances that are characterized by specified sexual activities; or
C. 
Films, motion pictures, videocassettes, slides, or other photographic or computer reproductions or depictions that are characterized by the depiction or description of specified sexual activities or nudity.
ADULT ENTERTAINMENT
Any exhibition of any motion picture, live performance, display or dance of any type which has as a significant or substantial portion of such performance or is distinguished or characterized by an emphasis on any actual or simulated performance of specified sexual activities or exhibition and viewing of specified anatomical areas, as defined herein, appearing unclothed, or the removal of articles of clothing to reveal specified anatomical areas.
ADULT MINI MOTION-PICTURE THEATER
An enclosed building with a capacity for fewer than 50 patrons, including establishments that have coin-operated video or motion-picture booths, used for presenting material distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined herein for observation by patrons therein.
ADULT MODELING STUDIO
An establishment or business which provides the services of modeling for the purpose of reproducing the human body wholly or partially nude by means of photography, painting, sketching, drawing or otherwise.
ADULT MOTEL
A hotel, motel, or similar commercial establishment which:
A. 
Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and which may have a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions;
B. 
Offers a sleeping room for rent for a period of time that is less than 10 hours; or
C. 
Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours.
ADULT MOTION-PICTURE THEATER
An enclosed building with a capacity of 50 or more persons at which a significant or substantial portion of the material presented is distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined herein for observation by patrons therein.
ADULT MOTION-PICTURE THEATER (OUTDOOR)
A parcel of land from which individuals may view a motion picture presented out of doors which presents material distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activity or specified anatomical areas, as defined herein, for observation by patrons.
ADULT NOVELTY SHOP
An establishment or business having as a substantial or significant portion of its stock and trade in novelty or other items which are distinguished or characterized by their emphasis on, or designed for, specified sexual activities or specified anatomical areas, as defined herein, or stimulating such activity.
ADULT-ORIENTED OR SEXUALLY ORIENTED ESTABLISHMENT
An establishment which includes, but is not limited to, adult bookstores, adult motion-picture theaters, adult mini motion-picture theaters, adult theaters, adult bathhouses, adult body painting studios, adult motels, adult novelty shops or adult cabarets, sexual encounter centers, sexually oriented businesses, escort agencies, and establishments featuring live sexually explicit performances and further means any premises to which public patrons or members are invited or admitted and which are so physically arranged as to provide booths, cubicles, rooms, compartments or stalls separate from the common area of the premises for the purposes of viewing adult-oriented motion pictures, or wherein an entertainer provides adult entertainment to a member of the public, a patron or a member, whether or not such adult entertainment is held, conducted, operated or maintained for profit, direct or indirect. An adult-oriented establishment further includes, without being limited to, any adult entertainment studio or any premises that is physically arranged and used as such whether advertised or represented as an adult entertainment studio, rap studio, exotic dance studio, encounter studio, sensitivity studio, modeling studio or any other term of like import.
ADULT THEATER
A theater, concert hall, auditorium, or similar commercial establishment that regularly features persons who appear, in person, in a state of nudity and/or seminudity and/or live performances that are characterized by the exposure of specified anatomical areas or by specified sexual activities.
BOOTH, ROOM or CUBICLE
Such enclosures as are specifically offered to the public or members of an adult-oriented establishment 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 then 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.
BREAST
A portion of the human female mammary gland (commonly referred to as the "female breast"), including the nipple and the areola (the darker colored area of the breast surrounding the nipple), and an outside area of such gland wherein such outside area is:
A. 
Reasonably compact and contiguous to the areola; and
B. 
Contains at least the nipple and the areola and 1/4 of the outside surface area of such gland.
BUTTOCKS
(For a short general description see the last sentence of this definition.) The area at the rear of the human body (sometimes referred to as the "gluteus maximus") which lies between two imaginary straight lines running parallel to the ground when a person is standing, the first or top such line being 1/2 below the top of the vertical cleavage of the nates (i.e., the prominence formed by the muscles running from the back of the hip to the back of the leg) and the second or bottom such line being 1/2 inch above the lowest point of the curvature of the fleshy protuberance (sometimes referred to as the "gluteal fold") and between two imaginary straight lines, one on each side of the body (the "outside line"), which outside lines are perpendicular to the ground and to the horizontal lines described above and which perpendicular outside lines pass through the outermost point(s) at which each nate meets the outer side of each leg. Notwithstanding the above, "buttocks" shall not include the leg, the hamstring muscle below the gluteal fold, the tensor fasciae latae muscle or any of the above-described portion of the human body that is between either the left inside perpendicular line and the left outside perpendicular line or the right inside perpendicular line and the right outside perpendicular line. For the purpose of the previous sentence, the left inside perpendicular line shall be an imaginary straight line on the left side of the anus that is perpendicular to the ground and to the horizontal lines described above and that is 1/3 of the distance from the anus to the left outside line, and the right inside perpendicular line shall be an imaginary straight line on the right side of the anus that is perpendicular to the ground and to the horizontal lines described above and that is 1/3 of the distance from the anus to the right outside line. (The above description can generally be described as covering 1/3 of the buttocks centered over the cleavage for the length of the cleavage.)
CHURCH
A building, whether situated within the City or not, in which persons regularly assemble for religious worship intended primarily for purposes connected with such worship or for propagating a particular form of religious belief.
CUSTOMER
Any person who:
A. 
Is allowed to enter an adult-oriented establishment in return for the payment of an admission fee or any other form of consideration or gratuity;
B. 
Enters an adult-oriented business and purchases, rents or otherwise partakes of any merchandise, goods, entertainment or other services offered therein; or
C. 
Is a member of and on the premises of an adult-oriented establishment operating as a private club.
COMMUNITY
The State of Wisconsin.
DAY-CARE CENTER
A facility licensed by the State of Wisconsin pursuant to § 48.65, Wis. Stats., whether situated within the City or not.
DOOR, CURTAIN or PORTAL PARTITION
A nontransparent closure device which prevents activity taking place within a booth, room or cubicle from being seen or viewed from outside the booth, room or cubicle.
EMPLOYEE
Any and all persons, including independent contractors, who work in or at or render any services directly or indirectly related to the operation of an adult-oriented establishment.
ENTERTAINER
Any person who provides entertainment within an adult-oriented establishment as defined in this chapter, whether or not a fee is charged or accepted for entertainment and whether or not entertainment is provided as an employee or independent contractor, including:
A. 
Any person who appears in a state of nudity or seminudity in a sexually oriented business; or
B. 
Any person who engages in live performances that are characterized by specified sexual activities.
ESCORT
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.
ESCORT AGENCY
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.
ESTABLISHMENT
Includes any of the following:
A. 
The opening or commencement of any sexually oriented business as a new business;
B. 
The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
C. 
The addition of any sexually oriented business to any other existing sexually oriented business;
D. 
The relocation of any sexually oriented business; or
E. 
A sexually oriented business or premises on which the sexually oriented business is located.
HARMFUL TO MINORS
That quality of any description or representation, in whatever form, of nudity, specified sexual activities or specified anatomical areas which taken as a whole appeals to the prurient interest in sex, which taken as a whole portrays sexual conduct in a patently offensive way, and which taken as a whole does not have serious literary, artistic, political or scientific value. Whether a work appeals to the prurient interest and whether it depicts or describes sexual conduct in a patently offensive way and whether it has serious literary, artistic, political or scientific value are to be determined by applying contemporary community standards in the adult community as a whole with respect to what is suitable material for minors.
KNOWINGLY
Having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:
A. 
The character and content of any material described herein which is reasonably suspect under this chapter; and
B. 
The age of a minor; provided, however, that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.
KNOWLEDGE OF MINOR'S AGE
A. 
Knowledge or information that the person is a minor; and
B. 
Reason to know, or a belief or ground for belief, which warrants further inspection or inquiry of the age of the minor.
MANAGER
The operator or agent licensed under this chapter who shall not be licensed as a massage technician.
MASSAGE
Any process or procedure consisting of rubbing, stroking, kneading or tapping, by physical or mechanical means, upon the external parts or tissues of the body of another for consideration.
MASSAGE ESTABLISHMENT
A place of business wherein private massage is practiced, used or made available as a principal use of the premises.
MASSAGE ROOM
The area where private massage is performed.
MASSAGE TECHNICIAN
A person who practices, administers or uses massage for a consideration and who holds a valid license under this chapter.
MINOR
Any person under the age of 18 years.
NUDITY
The showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state.
OPERATOR
Any person operating, conducting, maintaining or owning any sexually oriented establishment, adult-oriented establishment or massage establishment.
PATRON
Any person who receives a massage under such circumstances that it is reasonably expected that he or she will pay money or give any consideration therefor.
PREMISES
The real property upon which the sexually oriented business is located and all appurtenances thereto and buildings thereon, including but not limited to the sexually oriented business and the grounds, 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.
RESIDENTIAL
Pertaining to the use of land, whether situated within the City or not, for premises such as homes, townhouses, duplexes, condominiums, apartments and mobile homes which contain habitable rooms for nontransient occupancy and which are designed primarily for living, sleeping, cooking and eating therein. A premises which is designed primarily for living, sleeping, working and eating therein shall be deemed to be residential in character unless it is actually occupied and used exclusively for other purposes. Hotels, motels, boardinghouses, nursing homes and hospitals shall not be considered to be residential.
SADOMASOCHISTIC ABUSE
Flagellation or torture by a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
SCHOOL
A building, whether situated within the City or not, where persons regularly assemble for the purpose of instruction or education, together with playgrounds, stadiums and other structures or grounds used in conjunction therewith. The term is limited to:
A. 
Public and private schools used for primary or secondary education in which any regular classes in kindergarten or grades one through 12 are taught; and
B. 
Special educational facilities in which students who have physical or learning disabilities receive specialized education in lieu of attending regular classes in kindergarten or any of grades one through 12.
SEMINUDE or SEMINUDITY
The exposure of a bare female breast with less than 1/4 of the breast surface area, contiguous to and containing the areola, completely and opaquely covered (see definition of "breast" in this section). Each female person may determine which 1/4 of her breast surface area contiguous to and containing the areola is to be covered.
SEXUAL CONDUCT
The commission of any of the following: sexual intercourse, sodomy, bestiality, necrophilia, human excretion, masturbation, sadism, masochism, fellatio, cunnilingus, lewd exhibition of human genitals, or passionate kissing and petting of a sexual nature.
SEXUAL ENCOUNTER CENTER
A business or commercial enterprise that, as one if its principal business purposes, offers for any form of consideration:
A. 
Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
B. 
Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or seminudity.
SEXUAL INTERCOURSE
Physical sexual contact between individuals that involves the genitalia of at least one person, including but not limited to heterosexual intercourse, sodomy, fellatio, or cunnilingus.
SPECIFIED ANATOMICAL AREAS
A. 
Less than completely and opaquely covered human genitals, pubic region, buttock or female breast below a point immediately above the top of the areola.
B. 
Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES
Simulated or actual:
A. 
Showing of human genitals in a state of sexual stimulation or arousal.
B. 
Acts of human masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio, or cunnilingus.
C. 
Fondling or other erotic touching of human genitals, pubic region, buttock, or female breasts, whether covered or uncovered.
D. 
Excretory functions as part of or in connection with any of the activities set forth in Subsections A through C above.
SUBSTANTIAL
As used in various definitions, 50% or more of a business' stock-in-trade, display space, floor space or retail sales in any one month during the license year.
WAITING AREA
An area adjacent to the main entrance that is separate from any area where massages are given.
A. 
Any person who, within the City of Weyauwega municipal limits, knowingly or intentionally, in a public place, does any of the following commits public indecency:
(1) 
Engaging in specified sexual activities, including but not limited to public passionate kissing or petting of a sexual nature;
(2) 
Displaying specified anatomical areas; or
(3) 
Appearing in a state of nudity.
B. 
In addition to any other actions allowed by law or taken by the City Council and/or a committee thereof, including the action of applicable license revocation or nonrenewal, any person violating this section shall be subject to the penalty provisions of § 1-3, together with costs, and if such forfeiture and costs are not paid, such person so convicted shall be subject to such other penalties available by law.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
A. 
It shall be unlawful for any person knowingly to exhibit for a monetary consideration to a minor or knowingly to sell to a minor an admission ticket or pass or knowingly to admit a minor for a monetary consideration to premises whereon there is exhibited a motion picture, show or other presentation which in whole or in part depicts nudity or specified sexual activities and which is harmful to minors.
B. 
It shall be unlawful for any person knowingly to sell or loan for monetary consideration to a minor:
(1) 
Any picture, photograph, drawing, sculpture, motion-picture film or similar visual representation or image of a person or portion of the human body which depicts specified anatomical areas or shows specified sexual activities and which is harmful to others.
(2) 
Any book, pamphlet, magazine, printed matter however produced, or sound recording which contains any material enumerated in Subsection B(1) hereof or explicit and detailed verbal descriptions or narrative accounts of specified sexual activities and which, taken as a whole, is harmful to minors.
C. 
It shall be unlawful for any person knowingly to admit a minor to any premises whereon there is exhibited nudity or specified sexual activities which are harmful to minors unless such minor is accompanied by his/her parent or legal guardian.
D. 
Any person violating this section shall be subject to the penalty provisions of § 1-3.