This article shall be known as the "Sexually Oriented Business
Ordinance."
It is the intent of this article to regulate sexually oriented
businesses and related activities to promote the health, safety, and
general welfare of the citizens of the City, 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 article have neither the purpose nor effect 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 article 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
article to condone or legitimize the distribution of obscene materials.
Based on evidence concerning the adverse secondary effects of
adult uses on the community in reports made available to the Common
Council, and on findings incorporated in the cases of City of Renton
v. Playtime Theaters, Inc, 475 U.S. 41 (1986); Young v. American Mini
Theaters, 426 U.S. 50 (1976); and Barnes v. Glen Theater, Inc. 501
U.S. 560 (1991); Arcara v Cloud Books, Inc., 478 U.S. 697 (1986);
California v. LaRue, 409 U.S. 109 (1972); Lacobucci 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 606 (11th Cir.
1984), as well as studies conducted in other cities, 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; 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 U.S.
Department of Health and Human Services, Centers for Disease Control
and Prevention, the Common 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.
As used in this article, the following terms shall have the
meanings indicated:
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 pictures, 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 BOOKSTORE or ADULT VIDEO STORE
A.
A commercial establishment that, as one of its principal business
purposes, offers for sale or rental for any form of consideration
any one or more of the following:
(1)
Books, magazines, periodicals or other printed matter or photographs,
films, motion pictures, videocassettes or video reproductions, slides
or other visual representation that depict or describe specified sexual
activities or specified anatomical areas; or
(2)
Instruments, devices, or paraphernalia that are designed for
use in connection with specified sexual activities.
B.
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 adult bookstore or adult video store.
Such other business purposes will not serve to exempt such commercial
establishment from being 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 public or private nightclub, dance hall, bar, restaurant,
or similar commercial establishment that regularly features:
A.
Persons who appear in a state of nudity or seminudity; or
B.
Live performances that are characterized by specified sexual
activities; or
C.
Films, motion pictures, video cassettes, slides, computer images
or other photographic reproductions that characterized by the depiction
or description of specified sexual activities or nudity; or
D.
Topless dancers, strippers, "go-go" dancers, other performers
where nipples and genitalia are visible, male or female impersonators,
mud wrestling, lingerie or bathing suit fashions shows.
ADULT MASSAGE PARLOR or BATH HOUSE
A business which provides baths, including hydrotherapy or
massages 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.
ADULT MOTION-PICTURE THEATER
A commercial establishment where, for any form of consideration,
films, motion pictures, videocassettes, slides or similar photographic
reproductions are regularly shown that are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas.
ADULT NOVELTY STORE
An establishment having a substantial or significant portion
of its sales or stock-in-trade consisting of toys, devices, clothing,
novelties, lotions and other items distinguished or characterized
by this emphasis on or use for specialized sexual activities or specified
anatomical areas or an establishment that holds itself out to the
public as a purveyor of such materials based upon it signage, advertising,
displays, actual sales, exclusion of minors or any other factors showing
the establishment primary purpose is to purvey such material.
ADULT STUDIO
An establishment or business (not primarily a tattoo parlor)
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, or where patrons are afforded an
opportunity to paint images on a body which is wholly or partially
nude.
ADULT THEATER
A theater either inside a building or outside, concert hall,
auditorium, or similar commercial establishment that regularly features
persons who appear 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.
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 area is reasonably compact and contiguous
to the areola and contains at least the nipple and areola and 1/4
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 ties between two imaginary
straight lines running parallel to the ground when a person is standing,
the first or top such line being 1/2 inch 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, "buttock" shall not include the leg, the hamstring muscle
below the gluteal fold, the tensor fasciase 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 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.)
EMPLOYEE
A person who performs any service on the premises of a sexually
oriented business on a full-time, part-time, contract basis or independent
basis, whether or not the person is denominated an employee, independent
contractor, agent or otherwise, and whether or not the 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, nor does employee include
a person exclusively on the premises as a patron or customer.
ENTERTAINER
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
or specified sexual activities for another person.
ESCORT AGENCY
A person or business association who or which furnishes or
offers to furnish escorts as one of its primary business purposes
for a fee, time, 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 a sexually oriented
business to any sexually oriented business; or
C.
The additions of any sexually oriented business to any other
existing sexually oriented business; or
D.
The relocation of any sexually oriented business; or
E.
A sexually oriented business or premises on which the sexually
oriented business is located.
LICENSED DAY-CARE CENTER
A facility licensed by the State of Wisconsin, under § 48.65,
Wis. Stats., whether situated within the City or not, that provides
care, training, education, custody, treatment or supervision for more
that four children under 14 years of age, where such children are
not related by blood, marriage or adoption to the owner or operator
of the facility, for less than 24 hours a day, regardless of whether
or not the facility is operated for profit or charges for the services
it offers.
NUDITY or A STATE OF NUDITY
The appearance of the human, bare buttocks (as defined in
this section), anus, anal cleft or cleavage, pubic area, male genitals,
female genitals or vulva, with less than a full opaque covering; or
the female breast with less than 1/4 of the breast surface area, contiguous
to and containing the areola, completely and opaquely covered with
fabric (see definition of "breast" in this section.) Each female person
may determine which 1/4 of her breast surface area contiguous to cover,
including the nipple and containing the areola.
OPERATOR
The person on the premises who is responsible for the control
and management of the sexually oriented business.
PERSON
An individual, proprietorship, partnership, corporation,
association or other legal entity.
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, 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.
REGULARLY
Recurring on a basis which is frequently, customarily or
typically.
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 with fabric (see definition of "breast"
in this section). Each female person may determine which 1/4 of her
breast surface area contiguous to cover, including the nipple and
containing the areola.
SEXUAL ENCOUNTER CENTER
A business or commercial enterprise that, as one of it principal
business purposes, offers for any form of consideration:
A.
Physical contact in the form of sexually intimate touching 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.
SEXUALLY ORIENTED BUSINESS
An adult arcade, adult bookstore or adult video store, adult
cabaret, adult motion-picture theater, adult theater, escort agency
or sexual encounter center.
SPECIFIED ANATOMICAL AREAS
A.
The human male genitals in a discernibly turgid state, even
if fully and opaquely covered;
B.
Less than completely and opaquely covered human genital, pubic
region, buttocks or female breast.
SPECIFIED SEXUAL ACTIVITIES
Includes any of the following:
A.
The fondling or other erotic touching of human genital, pubic
region, buttocks, anus, or female breasts, whether covered or uncovered;
B.
Sex acts, actual or simulated, including intercourse, oral copulation,
or sodomy.
C.
Masturbation, actual or simulated; or
D.
Excretory functions as part of or in connection with any of the activities set forth in Subsection
A through
C above.
Any sexually oriented business having open for customers, patrons
or members any booth, room or cubicle for the private viewing of any
sexually oriented adult entertainment must comply with the following
requirements:
A. Access. Each booth, room, or cubicle shall be totally accessible
to and from aisles and public areas of the sexually oriented business
and shall be unobstructed by any door, lock or other control-type
devices.
B. Construction. Every booth, room or cubicle shall meet the following
construction requirements:
(1) Each booth, room or cubicle shall be separated from adjacent booths,
rooms, cubicles and any nonpublic areas by a wall.
(2) Each booth, room or cubicle shall have at least one side totally
open to a public lighted aisle so that there is an unobstructed view
at all time of anyone occupying same.
(3) All walls shall be solid and without any openings, extended from
the floor to a height of not less than six feet and be light colored,
nonabsorbent, smooth textured and easily cleanable.
(4) The floor must be light colored, nonabsorbent, smooth textured and
easily cleanable.
(5) The lighting level of each booth, room or cubicle, when not in use,
shall be a minimum of 10 footcandles at all times, as measured from
the floor.
C. Occupants. Only one individual shall occupy a booth, room or cubicle
at any time. No occupant of same shall engage in any type of sexual
activity, cause any bodily discharge or litter while in the booth.
No individual shall damage or deface any portion of the booth.
If any section, subsection, clause, phrase, word or provision of this article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this article. Specifically §
210-8, Location restrictions, and §
210-10, Regulation of sexually oriented businesses, should be considered separate, distinct and independent provisions, so that if either section is held invalid or unconstitutional for any reason, the other sections will remain valid and enforceable.