[HISTORY: Adopted by the Board of Trustees of the Village of Westville as Ch. 7, Art. VII, of the 2015 Code. Amendments noted where applicable.]
The purpose of this chapter is to regulate adult uses to protect the community from the many types of criminal activity frequently associated with such uses. The Village recognizes that such regulation cannot effectively prohibit such uses, but can balance the competing interests of the community in reducing criminal activity and protecting property values versus the protected rights of the owners, operators, employees and patrons of adult uses.
As used in this chapter, the following terms shall have the meanings indicated:
- ADULT BOOKSTORE
- An establishment having as a substantial or significant portion of its sales or stock-in-trade, books, magazines, films for sale or for viewing on premises by use of motion-picture devices or by coin-operated means, and periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities, or specified anatomical areas, or an establishment with a segment or section devoted to the sale or display of such materials, or an establishment that holds itself out to the public as a purveyor of such materials based upon its signage, advertising, displays, actual sales, presence of video preview or coin-operated booths, exclusion of minors from the establishment's premises or any other factors showing the establishment's primary purpose is to purvey such material.
- ADULT ENTERTAINMENT CABARET
- A public or private establishment which:
- A. Features topless dancers, strippers, "go-go" dancers, male or female impersonators, lingerie or bathing suit fashion shows;
- B. Not infrequently features entertainers who display specified anatomical areas; or
- C. Features entertainers who by reason of their appearance or conduct perform in a manner which is designed primarily to appeal to the prurient interest of the patron or features entertainers who engage in, or are engaged in explicit simulation of, specified sexual activities.
- ADULT MOTION-PICTURE THEATER
- A building or area used for presenting materials distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.
- 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 their emphasis on or use for specified sexual activities or specified anatomical areas or an establishment that holds itself out to the public as a purveyor of such materials based upon its signage, advertising, displays, actual sales, exclusion of minors from the establishment's premises or any other factors showing the establishment's primary purpose is to purvey such material.
- ADULT USE
- Adult bookstores, adult motion-picture theaters, adult entertainment cabarets, adult clubs allowing nudity at regular or frequent times, adult novelty stores and other similar uses.
- Employees, independent contractors or any other person who is retained by the licensee or subject to dismissal from working at the licensed premises.
- The showing of the human male or female genitals, pubic area, female breasts with less than a full opaque covering below a point immediately above the top of the areola, human male genitals in a discernibly turgid state even if completely and opaquely covered, or that portion of the buttocks which would be covered by a properly worn "thong" type bikini bottom.
- PUBLIC PLACE
- Any location frequented by the public, or where the public is present or likely to be present, or where a person may reasonably be expected to be observed by members of the public. Public places include, but are not limited to, streets, sidewalks, parks, beaches, business and commercial establishments (whether for profit or not-for-profit and whether open to the public at large or where entrance is limited by a cover charge or membership requirement), hotels, motels, restaurants, nightclubs, country clubs, cabarets and meeting facilities utilized by social, fraternal or similar organizations. Premises used solely as a private residence, whether permanent or temporary in nature, shall not be deemed a public place. Public places shall not include enclosed single-sex public rest rooms, enclosed single-sex functional showers, locker and/or dressing room facilities, enclosed motel rooms and hotel rooms designed and intended for sleeping accommodations, doctors offices, churches, synagogues or similar places when used for circumcisions, baptisms or similar religious ceremonies, portions of hospitals and similar places in which nudity or exposure is necessarily and customarily expected outside of the home; nor shall it include a person appearing in a state of nudity in a modeling class operated by: 1) a proprietary school licensed by the state; a college, junior college or university supported entirely or partly by taxation; or 2) a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college or a university supported entirely or partly by taxation or an accredited private college.
- SPECIFIED CRIMINAL ACTIVITY
- Any of the following offenses:
- A. Prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution or display of harmful material to a minor; sexual performance by a minor; possession or distribution of child pornography; public lewdness; public indecency; indecency with a child; engaging in organized criminal activity; sexual assault; molestation of a child; gambling; or distribution of a controlled substance; or any similar offenses to those described above under the criminal or penal code of other states or countries;
- B. For which:
- (1) Less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
- (2) Less than five years have elapsed since the date of conviction or the date of release from confinement for conviction, whichever is the later date, if the conviction is a felony offense; or
- (3) Less than five years have elapsed since the date of the last conviction or the date of release from confinement from the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or a combination of misdemeanor offenses occurred within any twenty-four-month period; and
- C. The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.
It shall be unlawful for any person to operate an adult use without a valid adult use business license issued by the Village pursuant to this chapter.
An application for a license shall be made on a form provided by the Village.
All applicants must be qualified according to the provisions of this chapter. The application may request and the applicant shall provide such information (including fingerprints) as is needed to enable the Village to determine whether the applicant meets the qualifications established in this chapter.
If a person who wishes to operate an adult use is an individual, the person must sign the application for a license as applicant. If the applicant is a club, consisting of private or public membership, then such entity shall also be licensed under this chapter. If a person who wishes to operate an adult use is other than an individual or club, each individual who has a 20% or greater interest in the business, including corporations, must sign the application for a license as applicant. Each applicant must be qualified under the following section and each applicant shall be considered a licensee if the license is granted.
The completed application for an adult use business license shall contain the following information:
If the applicant is an individual, the individual shall state his/her legal name and any aliases and submit proof that he/she is 18 years of age;
If the applicant is a club, consisting of private or public membership, a copy of the bylaws of the club must be submitted with the application. In addition, a sworn statement as to the purposes, general activities and requirements for club membership must be submitted.
If the applicant is a partnership, the partnership shall state its complete name and the names of all partners, whether the partnership is general or limited, and a copy of the partnership agreement, if any; and
If the applicant is a corporation, the corporation shall state its complete name, the date of incorporation, evidence that the corporation is in good standing under the laws of its state of incorporation, the names and capacity of all officers, directors and principal shareholders (those with a 20% or more stake), and the name and address of the registered corporate agent.
Whether the applicant has been convicted of any specified criminal activity as defined in this chapter, and if so, the specified criminal activity involved, the date, place and jurisdiction of each.
Whether the applicant has had a previous license under this chapter or similar ordinances from another jurisdiction denied, suspended or revoked, including the name and location of the business which the permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation. If the applicant has been a partner in a partnership or an officer, director or principal stockholder of a corporation that is or was licensed under this chapter or similar ordinance in another jurisdiction and a license has previously been denied, suspended or revoked, include the name and location of the business for which the permit was denied, suspended or revoked, as well as the date of denial, suspension or revocation.
Whether the applicant holds any other licenses under this chapter or other similar ordinance from another jurisdiction and, if so, the names and locations of such other licensed businesses.
A sketch or diagram showing the configuration of the premises, including a statement of total floor area occupied by the business. This sketch or diagram need not be professionally prepared, but it must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises.
Within 30 days after receipt of a completed adult use business license application, the Village shall approve or deny the issuance of a license to an applicant. The Village shall approve the issuance of a license unless it determines, by a preponderance of the evidence, any one or more of the following:
The applicant is under 18 years of age;
The applicant is overdue in payment to the Village of taxes, fees, fines or penalties assessed against or imposed upon him/her in relation to any business;
The applicant has failed to provide information reasonably necessary for the issuance of the license or has falsely answered a question or request for information on the application form;
The applicant has been denied a license by the Village to operate an adult use business within the preceding 12 months or has had his license to operate an adult use business revoked within the preceding 12 months;
The applicant has been convicted of a specified criminal activity defined in this chapter;
The premises to be used for adult use business has not been inspected and approved by the Fire Department and the Building Department as being in compliance with applicable laws and ordinances;
The license fee required by this chapter has not been paid;
The applicant of the proposed establishment is in violation or is not in compliance with all of the provisions of this chapter.
The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date and the address of the adult use business. All licenses shall be posted in a conspicuous place at or near the entrance to the business so that they may be easily read at any time.
The Fire Department and Code Enforcement Officers shall complete their inspection certification that the premises are in compliance or not in compliance with Village codes within 20 days of receipt of the application by the Village.
No adult use business license shall be issued unless the business building and the lot on which the building is located meet all criteria set forth in Chapter 360, Zoning, of the Village Code. However, an adult use business license may be issued for a premises which is a legal nonconforming use which has not yet been amortized or for a premises where such amortization is being challenged by litigation.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
No signs, advertising or other notice to the public may be given for any premises where an adult use is conducted, pursuant to this chapter.
No liquor license shall be issued to a licensee or to premises where adult use is conducted, nor shall liquor be sold, given away or allowed to be consumed on the premises where any adult use is conducted.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
Every application for an adult use business license (whether a new license or for renewal of an existing license) shall be accompanied by a nonrefundable application and investigation fee in an amount set from time to time by the Board of Trustees by resolution.
An applicant or licensee shall permit representatives of the Police Department, Fire Department, Building Department or other Village or Village-designated departments or agencies to inspect the premises of the adult use for the purpose of ensuring compliance with the provisions of this chapter at any time it is occupied or open for business.
A person who operates an adult use or his agent or employee violates this chapter if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or open for business.
Each license shall expire on the January 1 after it was issued and may be renewed only by making application as provided in § 150-3. Application for renewal shall be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of license will not be affected.
If the Village denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. If, subsequent to denial, the Village finds that the basis for denial of the license has been corrected or abated, the applicant may be granted a license.
The Village may suspend a license for a period not to exceed 30 days if, after a hearing, it determines that a licensee or an employee of a licensee:
If the licensee or an employee of the licensee has been found guilty in a court of law of a violation of this chapter, no hearing is necessary prior to suspension of the license.
The Village shall revoke a license if a cause of suspension in § 150-9 above occurs and the license has been suspended within the preceding 12 months or if the licensee is convicted of any specified criminal activity.
The Village may revoke a license if it determines, after a hearing, that:
A licensee gave false or misleading information in the material submitted during the application process;
A licensee or management personnel have knowingly allowed possession, use or sale of alcohol or controlled substances on the premises;
A licensee or management personnel have knowingly allowed prostitution on the premises;
A licensee or management personnel knowingly operated the adult use business during a period of time when the licensee's license was suspended;
A licensee or management personnel have knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or other sex act to occur in or on the licensed premises;
A licensee is delinquent in payment to the Village, county or state for any taxes or fees past due;
A licensee or management personnel have knowingly facilitated another's commission of the offense of public indecency; or
The adult use is a public nuisance as defined by statute, ordinance or case law.
If the Village revokes a license, the revocation shall continue for one year and the licensee shall not be issued an adult use business license for one year from the date the revocation became effective. If, subsequent to revocation, the Village finds that the factual basis for the revocation did not occur, the applicant may be granted a license.
After denial of an application, or denial of a renewal of an application, or suspension or a revocation of any license, the applicant or licensee may seek prompt judicial review of such action in any court of competent jurisdiction.
A licensee shall not transfer his/her license to another nor shall a licensee operate an adult use business under the authority of a license at any place other than the address on the license.
All adult uses shall file a verified report with the Village showing the licensee's gross receipts and amounts paid to employees during the preceding calendar year. In addition, all adult uses shall maintain and retain for a period of two years the names, addresses and ages of all persons employed, including independent contractors, by the licensee.
No adult use may be issued a liquor license; nor shall any establishment with a liquor license operate as an adult use.
All dancing or other performances shall occur on a stage intended for that purpose which is raised at least two feet from the level of the floor. No dancing or other performance shall occur closer than 10 feet to any patron. In addition, no dancer or performer shall fondle, caress or otherwise touch any patron, and no patron shall fondle, caress or otherwise touch any dancer or performer. No patron shall directly pay or give any gratuity to any dancer or performer, and no dancer shall solicit any pay or gratuity from any patron. Gratuities may be indirectly given to dancers or performers by placing the gratuity on the stage.
No booths, stalls or partitioned portions of a room or individual rooms used for the viewing of motion pictures or other forms of entertainment shall have doors, curtains or portal partitions, but all such booths, stalls or partitioned portions or a room or individual rooms so used shall have at least one side open to an adjacent public room so that the area inside is visible to persons in the adjacent public room. All such described areas shall be lighted in such a manner that the persons in the areas used for viewing motion pictures or other forms of entertainment are visible from the adjacent public rooms, but such lighting shall not be of such intensity as to prevent the view of the motion pictures or other offered entertainment.
No adult use shall be open prior to 10:00 a.m. or after 2:00 a.m.
Any licensee hereunder shall permit law enforcement officials free and unlimited access to the premises during hours of operation, upon reasonable request, for the purposes of investigating compliance with the provisions of this chapter.