Adams County, WI Chapter 296 Sexually Oriented Businesses

[HISTORY: Adopted by the Board of Supervisors of Adams County 1-17-2006 by Ord. No. 12-75-2005. Amendments noted where applicable.]

GENERAL REFERENCES

Zoning — See Ch. 405.

§ 296-1 Findings and intent.

A. The County Board of Adams County finds that:

(1) It has a governmental interest in protecting the general welfare, health, safety and order of the citizens of Adams County;

(2) Prostitution, promotion of prostitution, indecent exposure, lewd conduct, illegal drug possession, and illegal drug dealing occur with greater frequency at or near places where a state of nudity or seminudity or specified acts occur or exist;

(3) Property values for both residential and commercial properties tend to depreciate in areas in close proximity to sexually oriented businesses;

(4) Sexually oriented businesses provide enhanced opportunities for employee participation in various forms of criminal activities, including prostitution, lewd conduct, indecent exposure, obscenity law violations, and related crimes that are associated with sexual conduct or sexually oriented materials;

(5) Persons who are employed in sexually oriented businesses should be subject to verification that they have not been convicted of certain crimes relating to the foregoing issues;

(6) Areas such as schools, public parks and tourist areas are deserving of protection of Chapter 405, Zoning, of this Code; and

(7) Regulations regarding signs located at sexually oriented businesses should be added related to configuration, size and color, the color of the building, the age of admission for patrons when alcohol is sold, hours of operation, and conduct of the entertainment and are necessary to reduce the secondary effects of sexually oriented businesses upon the community and further protect the health, safety and welfare of the public.

B. The County of Adams has a substantial public concern that its residents be protected from criminal activity and be protected from casual sexual activity that facilitates the spread of sexually transmitted diseases.

C. The County Board of Adams County desires to adopt new regulations that establish permit requirements and rules of conduct to better protect the health, safety, and welfare of the public.

D. Based on evidence concerning the adverse secondary effects of sexually oriented businesses on the community presented in public hearings to the Planning and Zoning Committee and on findings incorporated in the cases of City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theatres, Inc., 501 U.S. 560 (1991); City of Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000); City of Los Angeles v. Alameda Books, Inc., 122 S. Ct. 1728 (2002); Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002); LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358 (5th Cir. 2002); Mitchell v. Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993); Schultz v. City of Cumberland, 228 F.3d 831 (7th Cir. 2000); Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995), N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162 (5th Cir. 2003); 2300, Inc. v. City of Arlington, 888 S.W. 123 (Tex. App. Fort Worth, 1994); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert denied, 529 U.S. 1053 (2000); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); DLS, Inc. v. Chattanooga, 107 F.3d 403 (6th Cir. 1997); Jake's Ltd., Inc. v. Coates, 384 F.3d 884 (8th Cir. 2002); and DFW Vending, Inc. v. Jefferson County, 991 F.Supp. 578 (E.D. Tex 1998) and on studies, report and/or testimony in other communities, including but not limited to Rochester, New York; Austin, Texas; Denver, Colorado; Minneapolis, Minnesota; Newport News, Virginia; Kansas City, Missouri; Dallas, Texas; Phoenix and Tucson, Arizona; Garden Grove, Los Angeles, and Whittier, California; Adams County, Colorado; Environmental Research Group to the American Center for Law and Justice, March 31, 1996; Manatee County, Florida; Indianapolis, Indiana; Saint Paul, Minnesota; Las Vegas, Nevada; Ellicottville, Islip, New York City, New York Times Square, and Syracuse, New York; New Hanover, North Carolina; Cleveland, Ohio; Oklahoma City, Oklahoma; Amarillo, Beaumont, Cleburne, El Paso, Fort Worth, and Houston (1983 and 1997), Texas; Bellevue, Des Moines, and Seattle, Washington; and Saint Croix County, Wisconsin, the County Board of Adams County finds that:

(1) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments. Further, absent municipal regulation aimed at reducing adverse effects there is no mechanism to make the owners of these establishments responsible for the activities that occur on their premises.

(2) Certain employees of sexually oriented businesses, defined in this chapter as adult arcades; adult bookstores, adult novelty stores or adult video stores; adult cabarets; adult motels; adult motion picture theaters; adult theaters; escort agencies; massage parlors; adult model studios; and sexual encounter establishments, engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

(3) Sexual acts, including masturbation, prostitution, sexual contact, and oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semiprivate booths or cubicles, or rooms for viewing films, videos, or live sex shows.

(4) Offering and providing private or semiprivate areas in sexually oriented businesses encourages such sexual activities, which creates unhealthy conditions.

(5) Persons frequent certain sexually oriented theaters, sexually oriented arcades, and other sexually oriented businesses for the purpose of engaging in sex within the premises of the sexually oriented businesses.

(6) The managers or owners of sexually oriented businesses fail to monitor or are unable to monitor the patrons of said places and allow these patrons to engage in specified sexual activity while on the premises of said places.

(7) Sexually oriented businesses offering a public place where a state of nudity or seminudity or specified sexual acts occur or exist pose public health risks by engaging in unsanitary disposition of bodily secretion thereby posing a threat of spreading infection or disease.

(8) At least 50 communicable diseases may be spread by activities occurring in sexually oriented businesses, including but not limited to syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections.

(9) The number of cases of early syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982 and 45,200 through November 1990. During 2001-2002, the rate of syphilis increased 9.1% (from 2.2 cases per 100,000 population in 2001 to 2.4 cases in 2002). In 2002, a total of 6,862 cases of primary and secondary syphilis were reported, an increase of 12.4% over the 6,103 cases reported in 2001, and the rate of primary and secondary syphilis was 3.5 times higher among men than among women (3.8 versus 1.1 cases per 100,000 population). The number of cases of gonorrhea in the United States reported annually remains at a high level, with over 1/2 million cases being reported in 1990.

(10) The Surgeon General of the United States has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components and from an infected mother to her newborn (1986 report).

(11) According to scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.

(12) Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted therein are unhealthy and, in part, because of the unregulated nature of the activities and the failure of the owners and the operators of the facilities to self-regulate those activities and maintain those facilities.

(13) Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view sexually oriented films.

(14) Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect substantial governmental concerns.

(15) A reasonable licensing procedure is an appropriate mechanism to place the burden on the owners and the operators of the sexually oriented businesses. Further, such a licensing procedure will place an incentive on the operators to see that the sexually oriented businesses is run in a manner consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of Adams County. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business(es), fully in possession and control of the premises and activities occurring therein.

(16) Requiring the operators of sexually oriented businesses to keep information regarding employees as well as perform criminal background checks on all prospective employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential employees with past pertinent criminal behavior and by preventing minors from working in such establishments.

(17) The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually oriented businesses, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases.

(18) In the prevention of the spread of communicable diseases, it is desirable to obtain a limited amount of information regarding certain employees who may engage in the conduct that this chapter is designed to prevent, or who are likely to be witnesses to such conduct.

(19) The fact that an applicant applying for a specialized certificate of occupancy for a sexually oriented businesses has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this chapter. There is a correlation between sexually oriented businesses, specifically their hours of operation and the type of people which such businesses attract, and higher crime rates. [See Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002).]

(20) The barring of such individuals from the management of sexually oriented businesses serves as a deterrent to, and prevents conduct which leads to, the transmission of sexually transmitted diseases.

(21) There is no constitutional right for sexually oriented business employees in a state of nudity to touch customers. [Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995).]

(22) A court has characterized the acts of sexually oriented business employees in a state of nudity and being paid to touch or be touched by customers as prostitution. [People v. Hill, 2002 Ill., App. LEXIS 792 (Ill. App 2 Dist., Sep. 4, 2002); see also Texas Penal Code Sections 43.01 ("sexual conduct" and "sexual contact") and 43.02 ("prostitution").]

E. The County Board of Adams County does not intend to close sexually oriented businesses that are engaged in conveying erotic messages though dance.

F. The County Board of Adams County does not intend to prohibit any speech activities protected by the First Amendment of the United States Constitution, but it does intend to enact a content-neutral ordinance to address the adverse secondary effects resulting from nudity, seminudity, and specified sexual acts at a public place.

G. It is not the purpose or intent of this chapter to restrict or deny lawful access by adults to sexually oriented materials or to deny access by the distributors and exhibitors of sexually oriented materials to their intended market.

H. It is the purpose and intent of this chapter to regulate sexually oriented business establishments so as to protect and promote the health, safety, and general welfare of the citizens of Adams County and visitors thereto, and to establish reasonable and uniform regulations to prevent the concentration of sexually oriented businesses within the County.

I. The County Board of Adams County also intends to deter property uses and activities conducted thereon which, directly or indirectly, cause or would cause adverse effects on the stability of the immediate neighborhood surrounding the sexually oriented business.

J. It is reasonably believed by the County Board of Adams County that the general welfare, health and safety of the citizens of Adams County will be promoted by the enactment of this chapter.

§ 296-2 Guidelines for construction, interpretation and enforcement.

The following are provided as guidelines for the construction, interpretation and enforcement of this chapter:

A. It is the purpose and intent of this chapter to regulate sexually oriented business establishments so as to protect and promote the health, safety, and general welfare of the citizens of the County and visitors thereto, and to establish reasonable and uniform regulations to prevent the concentration of sexually oriented businesses within the County.

B. This chapter is also intended to deter property uses and activities which directly or indirectly cause or would cause adverse secondary effects, including the depreciation of property values, on the stability of the immediate neighborhood surrounding the sexually oriented business.

C. This chapter has neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials.

D. Similarly, it is not the purpose or intent of this chapter to restrict or deny lawful access by adults to sexually oriented materials or to deny access by the distributors and exhibitors of sexually oriented materials to their intended market.

E. Similarly, it is not the purpose or intent of this chapter to impose judgment on the content or merits of any constitutionally protected form of speech or expression.

F. It is the purpose of this chapter to generally charge operators of sexually oriented businesses to comply with a policy of "keep it indoors and under control" and to hold operators answerable, directly or indirectly, for all uses of the premises and activities conducted thereon.

§ 296-3 Classification of sexually oriented businesses. [1]

Sexually oriented businesses are classified as follows:

A. Adult arcades;

B. Adult bookstores, adult novelty stores or adult video stores;

C. Adult cabarets;

D. Adult motels;

E. Adult motion picture theaters;

F. Adult theaters;

G. Escort agencies;

H. Massage parlors;

I. Sexual encounter establishments and "swingers" clubs; and

J. Adult model studios.

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

§ 296-4 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

ESTABLISHMENT

Includes any of the following:

A. The opening or commencement of any such business as a new business;

B. The conversion of an existing business, whether or not a sexually oriented business, to any of the sexually oriented businesses defined in this chapter;

C. The addition of any of the sexually oriented businesses defined in this chapter to any other existing sexually oriented business; or

D. The relocation of any such sexually oriented business.

NUDITY or STATE OF NUDITY

A. The appearance of human bare buttocks, anus, male genitals, female genitals, or the areola or nipple of the female breast; or

B. A state of dress which fails to opaquely and fully cover human buttocks, anus, male or female genitals, pubic region or areola or nipple of the female breast.

PERSON

An individual, proprietorship, partnership, corporation, association, or other legal entity.

PUBLIC BUILDING

Any building owned, leased or held by the United States, the state, the County, any special district, or any other agency or political subdivision of the state or the United States, which building is used for governmental purposes.[1]

PUBLIC PARK OR RECREATION AREA

Public land which has been designated for park or recreational activities, including but not limited to a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, open space, wilderness areas, or similar public land within the County which is under the control, operation, or management of the County parks and recreation authorities or County Board.

RELIGIOUS INSTITUTION

Any church, synagogue, mosque, temple or building that is used primarily for religious worship and related religious activities.

SCHOOL

Any public or private educational facility, including but not limited to child day-care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle 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 incidentally as a school.

SEMINUDE

A state of dress in which clothing covers no more than the genitals, pubic region, and areola of the female breast, as well as portions of the body covered by supporting straps or devices.[2]

SEXUALLY ORIENTED BUSINESSES

Those businesses defined as follows. The definition of "sexually oriented businesses" shall not include any of the normal and prudent activities conducted by any licensed hospital, nor by a licensed physician, surgeon, chiropractor, osteopath, or certified massage therapist nor by any nurse or technician working under the supervision of a licensed physician, surgeon, chiropractor or osteopath, nor by trainers for any amateur, semiprofessional or professional athlete or athletic team or school athletic program. The definition of "sexually oriented businesses" shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized sexual therapy.

A. ADULT ARCADE An establishment where, for any form of consideration, one or more still or motion picture projectors, slide projectors, or similar machines, or other image-producing machines, for viewing by five or fewer persons each, are regularly used to show 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.

B. ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE A commercial establishment which has as a significant or substantial portion of its stock-in-trade or derives a significant portion of its revenues or devotes a significant or substantial portion of its interior business or advertising to the sale or rental, for any form of consideration, of any one or more of the following:

(1) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, videocassettes, slides, or other visual representations, which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

(2) Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others.

C. ADULT CABARET A nightclub, bar, restaurant, "bottle club" or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features:

(1) Persons who appear nude or in a state of nudity or seminude;

(2) Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or

(3) 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.

D. ADULT MOTEL A motel, hotel or similar commercial establishment which:

(1) Offers public accommodations, for any form of consideration, which 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 advertises the availability of this sexually oriented type of material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising, including but not limited to newspapers, magazines, pamphlets or leaflets, radio, television or Internet;

(2) Offers a sleeping room for rent for a period of time less than 10 hours; or

(3) Allows a tenant or occupant to subrent the sleeping room for a time period of less than 10 hours.

E. ADULT MOTION PICTURE THEATER A commercial establishment where films, motion pictures, videocassettes, slides or similar photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas are regularly shown for any form of consideration.

F. ADULT THEATER A theater, concert hall, auditorium, or similar commercial establishment which, for any form of consideration, regularly features persons who appear in a state of nudity or live performances which are characterized by exposure of specified anatomical areas or by specified sexual activities.

G. ESCORT A person who, for any form of 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.

H. 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.

I. MASSAGE PARLOR Any place where, for any form of consideration or gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatments, or any other treatment or manipulation of the human body occurs as a part of or in connection with specified sexual activities, or where any person providing such treatment, manipulation, or service related thereto exposes his or her specified anatomical areas.[3]

J. SEXUAL ENCOUNTER ESTABLISHMENT and SWINGERS CLUB A business or commercial establishment that as one of its primary business purposes offers for any form of consideration a place where two or more persons may congregate, associate, or consort for the purpose of specified sexual activities or the exposure of specified anatomical areas or activities when one or more of the persons is in a state of nudity or seminude.

K. ADULT MODEL STUDIO Any place where a person who appears in a state of nudity or displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculpted, photographed, or similarly depicted by other persons for consideration.

SPECIFIED ANATOMICAL AREAS

Includes any of the following:

A. Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breasts below a point immediately above the top of the areola; or

B. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

SPECIFIED SEXUAL ACTIVITIES

Includes any of the following:

A. The fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breasts.

B. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy.

C. Masturbation, actual or simulated.

D. Human genitals in a state of sexual stimulation, arousal or tumescence.

E. Excretory functions as part of or in connection with any of the activities set forth in Subsections A through D of this definition.

SUBSTANTIAL or REGULARLY

In order to determine if a business is substantially or regularly orientated to sexually orientated business as defined in this chapter, the predominant amount of capital, labor, time, attention, and floor space, together with the amount of gross and net revenues derived from and devoted to sexually oriented business activities versus other sources, shall be determinative.

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

[2] Editor's Note: The definition of "sexually oriented business" which immediately followed this definition was repealed at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

[3] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

§ 296-5 Prohibited locations.

A. A person, including an operator of a sexually oriented business, commits an offense if he/she operates or permits the operation or establishment of a sexually oriented business in a zoning district that does not expressly permit that type of use in said zoning district.[1]

[1] Editor's Note: See Ch. 405, Zoning.

B. In addition to being located in the proper zoning district, a person, including an operator, commits an offense if he/she causes or permits the operation or establishment of a sexually oriented business in or within 1,000 feet of an existing:

(1) Religious institution.

(2) School.

(3) Public park.

(4) Residential district or historical/cultural district.[2]

[2] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

(5) Day-care facility.

C. In addition to being located in the proper zoning district, a person, including an operator, commits an offense if he/she causes or permits the operation or establishment of a sexually oriented business in or within 1,500 feet of an existing sexually oriented business.

D. For the purpose of Subsections B and C above, measurement of the distance shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the property line of an existing religious institution, school, day-care facility or sexually oriented business, or from the boundary line of a public park, residential district, designated historical/cultural district, or areas which currently or within the last 10 years were designated as neighborhood empowerment zones, tax increment finance districts and public improvement districts to the nearest property line of the property sought to be used as a sexually oriented business. If the establishment is located within a structure with multiple spaces available for occupancy, the measurement will be from the closest wall of the tenant space occupied by the sexually oriented business.[3]

[3] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

E. A certified survey prepared by a licensed surveyor or licensed engineer showing distance measurements in accordance with this section shall be submitted to the Adams County Planning and Zoning Administrator as part of the application for the specialized certificate of occupancy. Any specialized certificate of occupancy issued for a building or facility used to conduct a sexually oriented business without submission of the required survey shall be null and void.

F. A person commits an offense if he/she causes or permits the establishment or operation of more than one sexually oriented business on the same property, in the same building or structure, or any portion thereof.

G. A sexually oriented business lawfully operating as a conforming use after January 17, 2006, is not rendered a nonconforming use by the subsequent location of a religious institution, school, public park, residential district or designated historical/cultural district, or day-care facility within 1,000 feet of the sexually oriented business.[4]

[4] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

H. A sexually oriented business lawfully operating as a conforming use prior to January 17, 2006, is not rendered a nonconforming use by the change in zoning districts that expressly permits sexually oriented business in said zoning district or by the increase in distance to 1,500 feet. Such businesses shall be allowed to remodel and repair their current operations so long as the size of the building is not expanded and the remodel and repair occur within the same footprint of the building at the time of adoption of this chapter. All repairs and remodeling must be in compliance with the current County codes.

§ 296-6 Specialized certificate of occupancy.

A. Specialized certificate of occupancy required.

(1) A person commits an offense if he/she establishes, operates or continues to operate a sexually oriented business without a valid specialized certificate of occupancy expressly allowing the particular type of business issued by Adams County for the particular type of business and activity to be conducted on the premises.

(2) The fact that a person possesses other types of state or County permits does not exempt him/her from the requirement of obtaining and thereafter maintaining a valid specialized certificate of occupancy. A person who operates a sexually oriented business and possesses other state or County permits shall comply with the requirements and provisions of this chapter as well as the requirements and provisions of the other applicable ordinances.

(3) A person shall not cause the establishment, operation or continuation of a sexually oriented business establishment under any other form of certificate of occupancy, such as a lounge, nightclub, bar, tanning salon, etc., that does not also expressly provide for the sexually oriented business and activity also conducted on the premises.

B. Application for specialized certificate of occupancy.

(1) Any person, association, firm, partnership or corporation or other entity desiring to obtain a specialized certificate of occupancy for a sexually oriented business shall make application on a form(s) provided by the Adams County Planning and Zoning Department. The applicant shall also furnish any and all necessary supporting documents as required by the application.

(2) Only a person who is an officer of or who has at least a twenty-percent ownership interest in a sexually oriented business may apply for a specialized certificate of occupancy for the business. Each applicant must be qualified according to the provisions of this section and shall be considered an operator if a specialized certificate of occupancy is granted.

(3) If an applicant is an individual, he/she must sign the application form as "applicant."

(4) If the applicant is other than an individual, each person or entity who is an officer of the business or has a twenty-percent or greater investment or ownership interest in the business entity must sign the application as an "applicant." An application on behalf of a corporation or partnership must provide sufficient documentation with the application to identify all corporate shareholders and directors or partners who have a twenty-percent or greater ownership interest.

(5) If the enterprise is a Wisconsin corporation, a certified copy of the articles of incorporation, together with all amendments, must be submitted.

(6) If the enterprise is a foreign corporation, a certified copy of the certificate of authority to transact business in this state, along with all amendments, must be submitted.

(7) If the enterprise is a limited partnership formed under the laws of Wisconsin, the applicant must submit a certified copy of the certificate of limited partnership, together with all amendments filed in the office of the Secretary of State of Wisconsin. If the partnership is a foreign limited partnership, the applicant must submit the certificate of limited partnership and the qualification documents along with all amendments filed in the ofice of the Secretary of State of Wisconsin.

(8) Proof of the current fee ownership of the tract of land on which the enterprise is to be situated in the form of a copy of the recorded deed or binding lease for the premises on which the business would be operated shall be submitted.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

(9) In addition to identifying those persons required to sign an application under this subsection, the application must identify all parent and sexually oriented related corporations or entities of any person who will own or operate the sexually oriented business and include the names of the officers of each parent or related corporation or entity.

(10) Subsequent corporate sales, mergers, changes in shareholders or changes in partners shall be registered with the Adams County Planning and Zoning Department immediately upon completion of the documentation evidencing the transaction. All subsequent shareholders and directors or partners must be identified and shall be subject to qualification and compliance with the requirements for obtaining the specialized certificate of occupancy.

(11) The application must be accompanied by:

(a) A sketch or diagram drawn to scale of the floor plan(s). A professionally prepared sketch or diagram in the nature of an engineer's or architect's blueprint is recommended but shall not be required. Each sketch or diagram shall be oriented to the north or to some designated street or landmark. Each sketch or diagram shall be drawn to a designated scale or with marked dimensions sufficient to show the various dimensions of all areas, walls, doors, windows or other material aspects of the premises. Each sketch or diagram shall include at least the following:

[1] The internal and external configuration of the premises, including a statement of total floor space occupied by the structure;

[2] A statement fully describing the external signage to be displayed on the premises, as well as signage intended to be displayed elsewhere in the County to advertise the business;

[3] The location of one or more managers' stations or offices;

[4] The location of all electrical wiring and fixtures, including but not limited to lighting fixtures, sound systems, special effects equipment, video display equipment, video surveillance systems, etc.;

[5] Designation of any portion of the premises in which customers will not be permitted or in which sexually oriented business activities will not be conducted;

[6] A plan or description of the safety and security measures for the inside and outside of the premises, its customers and employees; and

[7] A designation of the place(s) at which the specialized certificate of occupancy, a copy of the floor plan(s), and other necessary permits, licenses and signage will be conspicuously posted.

(b) The Administrator of the Adams County Planning and Zoning Department may waive the foregoing sketch or diagram requirements only for renewal applications if the applicant expressly adopts by reference a floor plan that was previously approved and certifies that the configuration of the premises has not been altered or enlarged since it was approved.

(c) All new applications shall include a certified survey map prepared by a licensed surveyor or licensed engineer which shows the required minimum distances from properties with protected uses or protected zoning.

(12) A nonrefundable application fee of $1,000 shall accompany all applications. An application shall not be considered filed until all applicable fees are paid and all information required by the application form has been submitted.

(13) A copy of all applications and supporting documentation for specialized certificates of occupancy shall be maintained in the Adams County Planning and Zoning Department.

(14) The operator of a sexually oriented business shall permit and cooperate with the appropriate County enforcement personnel to lawfully inspect the entire premises as well as all activity being conducted therein.

(15) Each applicant shall sign a waiver and authorization form authorizing the Sheriff to request on behalf of the applicant criminal history reports from any appropriate state and/or federal agency.

(16) Each application shall contain the following statements signed by applicant:

(a) "I represent that I have personal knowledge of all statements made and information given in this application and that the information is true and correct;"

(b) If required by law, that an outdoor sign was posted in conformance with this chapter and state law not later than the 60th day before the date the application was filed; and

(c) The applicant has read the provisions of this chapter.

C. Issuance of original specialized certificate of occupancy.

(1) The Adams County Planning and Zoning Department shall approve the issuance of a specialized certificate of occupancy to an applicant within 30 business days after all conditions required for the application have been satisfied.

(2) When issued, the certificate shall state on its face:

(a) The full name, address and telephone number of the person(s) ("the operator") to whom it is granted;

(b) The name, address and telephone number of the establishment;

(c) A description of specifically what type of sexually oriented business operation has been approved to be conducted on the premises; and

(d) The expiration date.

(3) When issued, the specialized certificate of occupancy shall remain the sole property of Adams County and shall be valid only as to the operator and location for which it was originally issued and shall not be sold, loaned or otherwise transferred to any other person, subsequent operator of the business or to another location unless the sale, loan or transfer complies with the provisions of this chapter.

(4) The specialized certificate of occupancy as well as a copy of the currently approved floor plan shall be continually displayed in a conspicuous place within the establishment so that it is visible to the public at all times and may be easily read.

(5) It shall be an offense for any person to counterfeit, forge, change, deface or alter a specialized certificate of occupancy.

(6) No increase of the floor area or modification in the internal structural configuration of a sexually oriented business shall be made beyond the area or configuration as shown in the floor plan as approved with the issuance of the specialized certificate of occupancy unless an amended specialized certificate of occupancy is issued by the Adams County Planning and Zoning Department per Subsection D.

D. Issuance of amended or modified certificate of occupancy.

(1) In the event a lawfully operating sexually oriented business desires to modify its operations by varying the type of entertainment or activity provided to another type which is not authorized in the operator's current specialized certificate of occupancy, the operator shall notify the Adams County Planning and Zoning Department in writing 30 days in advance and apply for and acquire prior written approval for the modification, up to and including an amended or modified specialized certificate of occupancy, if necessary. The Adams County Planning and Zoning Department's approval or denial shall be made within 30 days of receipt of said written request from the operator.

(2) A nonrefundable processing fee equal to 1/2 of the original application fee shall be required for obtaining an amended or modified certificate. The amended or modified certificate shall expire on the same date as the original certificate.

E. Expiration and renewal of a specialized certificate of occupancy.

(1) Each specialized certificate of occupancy shall be valid for a period of one year and shall expire on the anniversary of its date of issuance, unless sooner revoked or surrendered. Each specialized certificate of occupancy shall be subject to renewal as of its expiration date by the filing of a renewal application with the Adams County Planning and Zoning Administrator.

(2) The operator holding a specialized certificate of occupancy issued under this section may renew the certificate rather than reapply for an original certificate if, not later than 30 days prior to the expiration of the certificate, the operator files and receives approval of a renewal application.

(3) Application for renewal shall be made to the Adams County Planning and Zoning Department on the form(s) prescribed and accompanied with payment of the nonrefundable processing fee equal to 1/2 of the original application fee ($500). All applications for renewal shall meet the same requirements as set for an original application.

(4) A violation of a County ordinance or state statute that would constitute the basis for the denial, suspension or revocation of a certificate that occurs before the filing of a renewal application shall be considered as the basis for the denial of the renewal application.

(5) If the Adams County Planning and Zoning Department denies an application for renewal, the operator may appeal the decision to the Board of Adjustment as provided in Subsection H hereafter. Any action by the Adams County Planning and Zoning Administrator is stayed pending the decision of the Board of Adjustment and, if applicable, any appeal of the Board's decision.

F. Denial of application for a specialized certificate of occupancy.

(1) The Adams County Planning and Zoning Department shall deny issuance of the certificate if one or more of the following are found to be true:

(a) The location of the establishment would be in violation of the applicable zoning district classification for the intended property use.

(b) The location would be in violation of the distance regulation as set forth in § 296-5.

(c) The application fees have not been paid.

(d) An applicant has failed to make full disclosure or supply all of the information requested on the application.

(e) An applicant has failed to provide information reasonably necessary for the issuance of the specialized certificate of occupancy or had provided false, fraudulent or untruthful information on the application, or is attempting to acquire the certificate under false pretenses.

(f) The configuration and layout of the proposed premises would be in violation of the applicable provisions regarding accessibility, visibility and inspection as set forth in this chapter.

(g) The structure, configuration and layout of the premises would be in violation of, or are not in compliance with, all other applicable County ordinances, including fire code and building codes.

(h) An applicant has not demonstrated lawful ownership of the premises, or does not hold a binding lease for the premises upon which the business would be operated, or has not demonstrated a legally enforceable right to acquire the same.

(i) An applicant is under 18 years of age.

(j) An applicant is under 21 years of age and the sale or serving of alcoholic beverages would be an aspect of the business.

(k) If the location of the proposed sexually oriented business is within a building, structure or portion thereof which contains another sexually oriented business.

(l) An applicant or an applicant's spouse is overdue in payment to the County of taxes, fees, fines, or penalties assessed against or imposed upon the applicant or the applicant's spouse in relation to a sexually oriented business and has not paid the taxes, fees, or penalties after submission of the application and before the issuance of the specialized certificate of occupancy by the Adams County Planning and Zoning Department.

(m) The applicant has been operating the proposed business as a sexually oriented business without a valid specialized certificate of occupancy issued under this chapter.

(n) The applicant or the applicant's spouse is required to register as a sex offender under Wisconsin state statutes.

(o) An applicant or an applicant's spouse has been convicted of a criminal offense within the last 10 years involving any of the following offenses:

[1] Public lewdness, indecent exposure, or indecency with a child;

[2] Sexual assault or aggravated sexual assault;

[3] Incest, solicitation of a child or harboring a runaway child;

[4] Prostitution; promotion of prostitution; aggravated promotion of prostitution; compelling prostitution; obscenity, display or distribution; sale, distribution or display of harmful material to a minor; sexual performance by a child; employment harmful to minors; or possession or promotion of child pornography; or

[5] Criminal attempt, conspiracy or solicitation to commit any of the foregoing offenses.

(2) An applicant who has been convicted or whose spouse has been convicted of a criminal offense listed this section may obtain a specialized certificate of occupancy only after the time period required for satisfactory completion has elapsed and full release has been received from all conditions imposed regarding confinement, parole, or probation, whichever is the later date.

(3) The fact that a conviction is being appealed has no effect on the disqualification of the applicant or applicant's spouse under this subsection.

G. Appeal of a denial of an application for a specialized certificate of occupancy. If the Adams County Planning and Zoning Department denies the application and the issuance of a specialized certificate of occupancy, certified mail, return receipt requested, written notice shall be provided to the applicant(s) of such action within 30 business days after receipt of the application.

(1) Upon receipt of the notice of denial the applicant may respond by requesting reconsideration and providing appropriate documentation sufficient to complete the application or otherwise address the Department's basis for the denial.

(2) If a written request for reconsideration is received, the application and supplemental information shall be reconsidered and a response provided within 10 business days after the request is received.

(3) Upon receipt of notice of denial of the reconsidered application, the applicant shall have the right to appeal the denial to the Board of Adjustment within 30 days, but only for a determination as to whether the application was denied through error or mistake.

(4) The written appeal to the Board of Adjustment shall provide a clear and concise statement of the factual basis or grounds for the appeal. The request for appeal shall also be accompanied by the nonrefundable fee pursuant to the adopted fee schedule.

(5) The appeal hearing shall be scheduled and conducted according to the Board of Adjustment's rules of procedure.

(6) The applicant shall bear the burden of proof of disputed factual matters to produce a preponderance of the evidence to establish that the application was erroneously or mistakenly denied by the Adams County Planning and Zoning Department.

(7) The Board of Adjustment may overturn the denial of the application and thereafter approve the issuance of the certificate only if the application was erroneously or mistakenly denied by the Adams County Planning and Zoning Department and is otherwise shown to comply with all other requirements for an application. Unless the application was erroneously or mistakenly denied, the Board of Adjustment shall affirm the Department's denial.

H. Appeal of a denial of a renewal application for a specialized certificate of occupancy.

(1) A denial of a renewal application for a specialized certificate of occupancy may be appealed to the Board of Adjustment following the same procedures as provided in Subsection G, Appeal of a denial of an application for a specialized certificate of occupancy.

(2) The filing of any appeal under this subsection stays the action of the Adams County Planning and Zoning Administrator until the Board of Adjustment makes a final decision.

I. Suspension of specialized certificate of occupancy.

(1) The Adams County Planning and Zoning Administrator shall suspend a specialized certificate of occupancy for a period not to exceed 30 days if it is determined that the operator has:

(a) Violated or is not in compliance with the regulations set forth in this chapter;

(b) Refused to allow an inspection of the sexually oriented business premises as authorized by this chapter; or

(c) Committed acts that constitute grounds for revocation as set forth in Subsection J.

(2) A suspension may be appealed to the Board of Adjustment as provided in Subsection K below.

J. Revocation of a specialized certificate of occupancy.

(1) The Adams County Planning and Zoning Department shall revoke a specialized certificate of occupancy if the Adams County Planning and Zoning Administrator determines that one or more of the following is true:

(a) The operator gave false or fraudulent information in the application or otherwise acquired the certificate under false pretenses.

(b) The operator knowingly operated, provided or permitted sexually oriented business activity or entertainment to occur on the premises during a period of time when the specialized certificate of occupancy was suspended.

(c) The operator knowingly allowed or participated in the unlawful possession, use or sale of controlled substances on the premises.

(d) The operator knowingly allowed, or participated in, prostitution, or its solicitation, or unlawful offenses of a similar nature to take place on the premises.

(e) An operator is delinquent in payment to the County for sales taxes or property taxes related to the sexually oriented business.

(f) An operator has transferred the specialized certificate of occupancy in violation of this chapter.

(g) Cause for suspension as provided in Subsection I above has occurred, and the certificate has been previously suspended for any reason at least two times in the preceding twelve-month period.

(2) The fact that a conviction is being appealed has no effect on the revocation of the specialized certificate of occupancy.

(3) When the Adams County Planning and Zoning Administrator revokes a specialized certificate of occupancy, the revocation will continue for one year, and the operator shall not apply for or be issued a specialized certificate of occupancy for one year after the date of revocation became effective. If, subsequent to revocation, the Adams County Planning and Zoning Administrator finds that the basis for the revocation has been corrected or abated, the operator may apply for and be granted a specialized certificate of occupancy if at least 90 days have elapsed since the date the revocation became effective.

(4) A revocation may be appealed to the Board of Adjustment as provided in Subsection K hereafter.

K. Appeal of the suspension or revocation of a specialized certificate of occupancy.

(1) If the Adams County Planning and Zoning Administrator suspends or revokes a specialized certificate of occupancy, he/she shall send to the operator, by certified mail, return receipt requested, written notice of the action and the right to appeal.

(2) Upon receipt of written notice of the suspension or revocation, the operator whose specialized certificate of occupancy has been suspended or revoked has the right to appeal to the Board of Adjustment.

(3) An appeal to the Board of Adjustment must be in accordance with Subsection G, Appeal of a denial of an application for a specialized certificate of occupancy. The filing of any appeal under this subsection stays the action of the Adams County Planning and Zoning Administrator in suspending or revoking a specialized certificate of occupancy until the Board of Adjustment makes a final decision.

(4) Any appeal of the decision of the Board of Adjustment must be filed with the Circuit Court within 30 days after the receipt of notice of the decision of the Board of Adjustment. The operator shall bear the burden of proof. The filing of any appeal under this subsection stays any action of the Adams County Planning and Zoning Administrator.[2]

[2] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

L. Transfer of specialized certificate of occupancy.

(1) A person commits an offense if he/she operates a sexually oriented business under a specialized certificate of occupancy in any name or at any location other than the name and address designated on the face of the certificate.

(2) Any person desiring to continue the operation of a sexually oriented business after purchase or transfer must meet all requirements of a new applicant and receive a new specialized certificate of occupancy in his or her own name prior to continuing the business operation. Otherwise, the certificate shall automatically be deemed revoked as of the date of the transfer or purchase of the operator in whose name the certificate was issued.

(3) A person commits an offense if he/she wrongfully counterfeits, forges, changes, defaces or alters a specialized certificate of occupancy. Any certificate wrongfully altered shall automatically be deemed void and invalid.

(4) If corporations that have substantially similar ownership merge or consolidate, a fee of 1/2 the original filing fee shall be paid for each sexually oriented business holding a specialized certificate of occupancy that is merged or consolidated into the surviving corporation. The surviving corporation succeeds to all privileges of the prior corporation that held the specialized certificate of occupancy if the owners of the surviving corporation meet the qualifications for an applicant to acquire the certificate under this section. For the purposes of this section, corporations have "substantially similar ownership" if 90% or more of the corporations involved are owned by the same person or persons, or by the same corporation or corporations, or if the surviving corporation has maintained an ownership interest in the merged or consolidated corporations since the date the original specialized certificate of occupancy was issued.

(5) The County's specialized certificate of occupancy is not property to be inherited or otherwise transferred in cases of incapacity or death. If an operator becomes legally incapacitated or dies, the executor or guardian of the estate shall, as soon as reasonably possible but in no event later than 30 days of the death or incapacity, notify the Adams County Planning and Zoning Department in writing of the status of business operations, the persons controlling the estate, and those heirs or other persons involved in settling the estate. Any person desiring to continue the sexually oriented business must meet all requirements of new applicants and receive a new specialized certificate of occupancy in his or her own name prior to continuing the business operations. Otherwise, the certificate shall automatically be deemed revoked as of the date of the death or incapacity of the operator in whose name the certificate was issued.

(6) The County's specialized certificate of occupancy is not property to be listed as an "asset" or otherwise transferred for purposes of resolution in bankruptcy. If an operator files a petition in bankruptcy seeking protection as a failing business, the operator shall also immediately deliver true and correct copies of documentation of the same to the Adams County Planning and Zoning Department.

§ 296-7 Employee background checks.

A. Prior to employment of any person by the sexually oriented business, the owner or operator of the sexually oriented business shall conduct a national criminal background check on all prospective employees to ensure that no person employed has any convictions or any time of service in jail or prison for any of the following offenses:

(1) Sexual assault or aggravated sexual assault;

(2) Incest, solicitation of a child or harboring a runaway child;

(3) Prostitution; promotion of prostitution; aggravated promotion of prostitution; compelling prostitution; obscenity, display or distribution; sale, distribution or display of harmful material to a minor; sexual performance by a child; employment harmful to minors; or possession or promotion of child pornography;

(4) Criminal attempt, conspiracy or solicitation to commit any of the foregoing offenses; or

(5) Public lewdness, indecent exposure, drink solicitation, or possession of a controlled substance.

B. The operator shall maintain a current registration card or file on the premises clearly identifying all managers, employees and/or entertainment personnel currently on the premises or employed by the business. The information contained on the registration card shall include at least:

(1) Full legal name;

(2) All aliases or stage names;

(3) Date of birth;

(4) Race;

(5) Color of hair and eyes;

(6) Current residence address and phone number;

(7) Wisconsin driver's license number (or Wisconsin identification number);

(8) Social security number;

(9) Color photograph of full-face view; and

(10) Date of criminal background check.

C. Records.

(1) Within 10 business days of employment of an employee, each manager shall send copies of the national criminal background check (with redacted social security number) and registration card to the Adams County Sheriff's Office and the Adams County Planning and Zoning Department.

(2) Each manager shall maintain on the premises and make available for inspection upon request by County enforcement personnel the criminal background information and current registration card for all current employees.

(3) A manager commits an offense if he or she fails to make the criminal background information or current registration card available for immediate inspection upon request by County enforcement personnel.

§ 296-8 Hours of operation.

No sexually oriented business, except for an adult motel, may remain open at any time between the hours of 2:00 a.m. and 8:00 a.m. Sunday through Thursday, and 2:30 a.m. and 12:00 p.m. on Fridays and Saturdays.

§ 296-9 Signs.

A. Notwithstanding any other County ordinance, code, or regulation to the contrary, it shall be unlawful for the operator of any sexually oriented business or any other person to erect, construct, or maintain any sign for the sexually oriented business other than one primary sign and one secondary sign, as provided herein.

B. Primary sign.

(1) Primary signs shall have no more than two display surfaces. Each such display surface shall:

(a) Not contain any flashing lights;

(b) Be a flat plane, rectangular in shape;

(c) Not exceed 75 square feet in area; and

(d) Not exceed 10 feet in height or 10 feet in length.

(2) Primary signs shall contain no photographs, silhouettes, drawings or pictorial representations in any manner and shall contain only the name of the enterprise.

(3) Each letter forming a word on a primary sign shall be of a solid color, and each such letter shall be the same print type, size and color. The background behind such lettering on the display surface of a primary sign shall be of a uniform and solid color.

C. Secondary sign.

(1) Secondary signs shall have only one display surface. Such display surface shall:

(a) Be a flat plane, rectangular in shape;

(b) Not exceed 20 square feet in area;

(c) Not exceed five feet in height and four feet in width; and

(d) Be affixed or attached to any wall or door of the enterprise.

(2) The provisions of Subsection B(1)(a), (2) and (3) shall also apply to secondary signs.

§ 296-10 Violations and penalties.

Any person, firm, or corporation who or which fails to comply with the provisions of this chapter shall, upon conviction thereof, forfeit not less than $10 nor more than $200 and costs of prosecution for each violation and, in default of payment of such forfeiture and costs, shall be imprisoned in the County jail until payment thereof, but not exceeding 30 days. Each day a violation exists or continues shall constitute a separate offense.

§ 296-11 Abrogation and greater restrictions.

It is not intended by this chapter to repeal, abrogate, annul, impair, or interfere with any existing easements, covenants, deed restrictions, agreements, ordinances, rules, regulations, or permits previously adopted or issued pursuant to law. However, wherever this chapter imposes greater restrictions, the provisions of this chapter shall govern.