Village of Fox Crossing, WI Alcohol Beverages

There shall be the following classes of licenses which, when issued by the Village Clerk under the authority of the Village Board, and after payment of the fee set forth in the Village Fee Schedule, referenced by Code section, shall permit the holder to sell, deal or traffic in intoxicating liquor and/or fermented malt beverages as provided in Chapter 125 of the Wisconsin Statutes. (Sections 125.25, 125.26, 125.27 and 125.51.)

Proration of fees. Licenses shall be granted annually and expire on June 30 each year, except when a new license is issued, proration of the annual license fee is required on the basis of the number of months or fraction thereof remaining in the licensing year. [Sections 125.26(4) and 125.51(9)(a).]

Class "A" fermented malt beverage retailer's license. Licensees may sell fermented malt beverages to consumers in original packages or containers for off-premises consumption only. [Section 125.25(4).]

Class "B" fermented malt beverage retailer's license.

Licensees may sell fermented malt beverages to consumers for on-premises or off-premises consumption. The annual license fee shall be determined by the municipality, but may not exceed $100 per year.

A six-month Class "B" license may be issued for a period of six months in any calendar year which runs from January 1 to December 31 and is thus different from a license year which runs from July 1 to June 30. The fee for a six-month license is half of the annual license fee. [Section 125.26(5).] Such licenses are not renewable during the calendar year in which issued. A six-month license issued from January 1 through June 30 or for the balance of the year would not prohibit the applicant from obtaining an annual license as of July 1 of that same year.

Temporary Class B license.

Temporary Class "B" retailer's license to sell fermented malt beverages at picnics or gatherings. The amount of the fee shall be determined by the municipality, but may not exceed $10 per application. Requires filing of an application with Village Clerk at least 15 days prior to granting of each temporary license, and requires applicant to have been in existence six months prior to date of application. [Sections 125.26(6) and 125.04(3)(f).]

Temporary "Class B" retailer's license to sell wine at picnics or gatherings. The amount of the fee shall be determined by the municipality, but may not exceed $10 per application, except that no fee may be charged to a person who at the same time applies for a temporary Class "B" fermented malt beverage license (above) for the same event. [Section 125.51(10).] Requires filing of an application with Village Clerk at least 15 days prior to granting of each temporary license, and requires applicant to have been in existence six months prior to date of application. [Sections 125.51(10) and 125.04(3)(f).] Not more than two licenses may be issued under this subsection in any twelve-month period. Background checks may be waived by the Village Clerk.

"Class A" intoxicating liquor retailer's license. Licensees may sell intoxicating liquor to consumers only in original packages or containers for off-premises consumption. Wine taste samples are allowed of not more than three fluid ounces each, free of charge, to customers and visitors for consumption on the premises only between the hours of 11:00 a.m. and 7:00 p.m. No licensee may provide more than two taste samples per day to any one person. [Section 125.06(13)(a).] Fee may not exceed $500. [Section 125.51(2).]

"Class B" intoxicating liquor retailer's license. Licensees may sell intoxicating liquor to consumer by the glass for on-premises consumption. However, wine may be sold for consumption off-premises in the original package or container in any quantity.

Restrictions on dispensing; hours of operation.

Class "A" premises may remain open for the conduct of their regular business but may not sell, dispense or give away fermented malt beverages between 12:00 midnight and 8:00 a.m.

No premises for which a "Class A" license or permit has been issued may remain open for the sale of intoxicating liquor between the hours of 9:00 p.m. and 8:00 a.m.

Between 12:00 midnight and 6:00 a.m. no person may sell, dispense or give away fermented malt beverages or intoxicating liquor on a Class B-licensed premises in an original unopened package, container or bottle or for consumption away from the premises.

Reserve "Class B" license. Licenses available under the quota system which existed before December 1, 1997, and were not granted or issued by the municipality as of December 1, 1997. The number of reserve "Class B" licenses available to a municipality is determined by a series of calculations described in § 125.51(4)(a)4, (br)1 and (v)1 and 2, Wis. Stats.

Two exceptions: if a municipality has granted or issued a number of licenses equal to or exceeding its quota, the municipal governing body may issue a license for any of the following:

A full-service restaurant that has a seating capacity of 300 or more persons.

A hotel that has 50 or more rooms of sleeping accommodations and that has either an attached restaurant with a seating capacity of 150 or more persons or a banquet room in which banquets attended by 400 or more persons may be held.

On December 1, 1997, pursuant to § 125.51(4)(bm), Wis. Stats., the Town of Menasha (now the Village of Fox Crossing) consisted of 15,287 residents, thus allowing the Town Clerk (now the Village Clerk) to issue 14 regular, nonreserve "Class B" liquor licenses.

Initial retail reserve "Class B" license fee. There shall be an initial fee set forth in the Village Fee Schedule, reference this Code section, to be paid in addition to the regular liquor license fee.

Temporary operator's license.

The Village Clerk or designee may issue a temporary operator's license subject to the following conditions:

A written application shall be filed with the Village Clerk giving the name, residence, age and gender of the applicant, together with other such pertinent information as to determine whether applicant has a satisfactory background check.

At the time of application, the applicant shall pay to the Village Treasurer a fee set forth in the Village Fee Schedule.

A temporary operator's license shall be valid for 14 days and shall be issued only to operators employed by, or donating their services to, holders of special Class "B" license pursuant to Subsection D of this section.

(d)

No person may hold more than two temporary licenses per calendar year.

Completion of a mandatory alcohol server training program is not required to obtain a temporary license.

Retail "Class C" wine license. Authorizes retail sale of wine by the glass or in an opened original container for consumption on premises. License may be issued to a person qualified for a restaurant in which the sale of alcohol beverages accounts for less than 50% of gross receipts and which does not have a barroom, or for a restaurant in which the sale of alcohol beverages accounts for less than 50% for gross receipts and which has a barroom in which wine is the only intoxicating liquor sold. Fees stated in the Village Fee Schedule, reference this Code section. [Section 125.51(3m), Wis. Stats.]

Provisional retail licenses. There shall be an initial fee determined by the municipality and set forth in the Village Fee Schedule, reference this Code section, to be paid in addition to the regular liquor license fee and may not exceed $15.

A provisional retail license may be issued by the Village Clerk only to a person who has applied for a Class "A," Class "B," "Class A," "Class B," or "Class C" license and authorizes only the activities that the type of retail license applied for authorizes.

A provisional retail license expires 60 days after its issuance or when the Class "A," Class "B," "Class A," Class B" or "Class C" license is issued to the holder, whichever is sooner.

The Village Clerk may revoke the license if he or she discovers that the holder of the license made a false statement on the application.

A provisional "Class B" license may not be issued if the municipality's quota under § 125.51, Wis. Stats., prohibits the municipality from issuing a "Class B" license.

No person may hold more than one provisional retail license for each type of license applied for by the holder per year.

Operator's license. License is issued for a two-year term and is prorated for new licenses, per the Village Fee Schedule, reference this Code section. (Section 125.17, Wis. Stats.) Included in the license fee is the current cost of obtaining a background check. It shall be at the discretion of the Village of Fox Crossing Police Chief as to whether the remainder of the fee shall be refunded.

Operator licenses required. All of the provisions of §§ 125.32(2) and 125.68(2), Wis. Stats., and any future amendments or changes to this statute are hereby incorporated herein.

Application.

An operator's license may not be issued unless the applicant fulfills one of the following requirements: the person is renewing an operator's license, within the past two years held a current manager's, retailer's or operator's license, or within the past two years has completed a state-mandated server's training course and must show proof. New applicants must at least be registered for the course and shall present a schedule at the time of application.

A written application shall be filed with the Police Department which shall include the name, residence, age and gender of the applicant, and the prescribed fee shall be paid according to the payment schedule incorporated herein. A background check shall be performed to determine whether the applicant has a satisfactory history. All applications shall be accompanied by a recommendation for approval/denial by the Chief of Police or his/her designee.

Issuance of operator's license.

An operator's license shall be granted by the Village Board only to persons who have attained the age of 18 and have met the requirements defined by Chapter 125 of the Wisconsin Statutes, and for all new applicants on or after January 1, 1990, who have successfully completed a mandatory responsible beverage server training course, at which time license shall be issued by the Police Department. The operator's license shall be issued for two years, expiring on June 30 of even years, or prorated depending upon the month of issuance within the two-year period, unless otherwise revoked.

Mandatory schooling required. Operator license applicants in the Village of Fox Crossing shall be required, prior to the issuance, to provide the Police Department with proof of successful completion of a server's training course offered at any location by a technical college district and that conforms to curriculum guidelines specified by the college system board, or a comparable training course which may include computer-based training and testing that is approved by the State of Wisconsin under §§ 125.17 and 125.04, Wis. Stats. However, an applicant who fails to timely renew his/her operator's license shall be granted a thirty-day grace period without mandatory schooling required. It is the responsibility of the applicant to pay the tuition fee for the server's training course. An exception to this requirement is temporary operators (bartenders) who may only hold a fourteen-day license in a calendar year.

Operator's (bartender) instructions. The following Bartender's Awareness Certification Program Procedure Policy, as it relates to the issuance of operator's licenses, is effective January 1, 1996:

The applicant applies for operator's license at the Police Department.

The Village requires new applicants and expired licensees expired more than two years to successfully complete a responsible beverage server training course approved by the State of Wisconsin in accordance with § 125.17, Wis. Stats.

The applicant must score 70% or above on the post test to receive the Certificate of Completion. Applicants who score below 70% may take the course over at any time.

(d)

The certificate must be presented to the Police Department upon completion of the Bartender's Awareness Course.

(e)

If the applicant wishes to take the course before he/she applies for the operator's (bartender's) license, he/she may do so.

(f)

The Police Department will perform a background check and recommend approval or denial of the license.

(g)

It is the policy of the Village of Fox Crossing that any operator's (bartender's) license application may be denied for up to two years following a conviction of an alcohol/drug related offense.

(h)

Upon approval by the Police Department, it will issue licenses during two-year periods, provided the applicant has successfully completed the Bartender's Awareness Course.

(i)

The Bartender Awareness Course fee is the responsibility of the applicant.

(j)

The license fee is for a two-year period. Included in the license fee is the current cost of obtaining a criminal investigation check through the Department of Justice. The license fee set forth in the Village Fee Schedule, reference this Code section, is to be prorated for all new licenses.

Payment schedule.

Application fees will be prorated on a quarterly basis. An operator license is for a two-year period, and thereafter, the applicant pays the prorated license fee, which includes the fee for a background check by the Police Department

The two-year term commences on July 1 of the even-numbered years.

Provisional operator's license. The Police Department may only issue a provisional operator's license to a person who has applied for a regular operator's license under Subsection L.

Fee shall be paid upon application.

A provisional operator's license may not be issued to any person who has been denied a beverage operator's license.

The provisional operator's license expires 60 days after its issuance or when a license under Subsection L is issued to the applicant, whichever is sooner.

Persons are limited to one provisional license per calendar year.

Revocation. The provisional operator's license shall be revoked by the Police Department if it is discovered the holder of the provisional operator's license made a false statement on his/her application, or holder fails to complete the Responsible Beverage Server Training Course, if required, or is in noncompliance with Wisconsin Statutes.

§ 146-4 Replacements of license.

A fee per Village Fee Schedule, reference this Code section, shall be charged for a duplicate license or permit.

§ 146-5 License restrictions.

In addition to the requirements imposed by provisions of the Wisconsin Statutes adopted by reference in § 146-1 of this article, the following restrictions shall apply to the issuance of licenses or permits pursuant to this article:

Requirement for licenses.

No license or permit shall be issued to any person who is not 21 years of age or over, except for an operator's license, of good moral character, and a citizen of the United States and the State of Wisconsin. No license shall be issued to any person who has been an habitual petty law offender or convicted of a crime under the laws of this state punishable by imprisonment in the state prison unless such person has been pardoned. This subsection shall not apply to Wisconsin corporations but shall apply to all officers and directors of any such corporation.

As of January 1, 1990, where new application is made for a Class "A" or Class "B" license, or any combination thereof, on behalf of an individual, the individual shall successfully complete a state-approved responsible beverage server training course within 60 days from the filing of the application with the Village Clerk. The same shall be required for each partner of an application filed by a partnership, and for an agent of an application filed by a corporation, and for an agent of a special Class "B" license.

Effect of revocation of license. No license shall be issued for any premises if a license covering such premises has been revoked within six months prior to application. No license shall be issued to any person who has had a license issued pursuant to this article revoked within 12 months prior to application.

Inspection of application and premises. The Village Clerk shall notify the Police Department and Fire Department Inspector of all licenses and permit applications, and these officials shall inspect each application and premises to determine whether the applicant and the premises comply with the regulations, ordinances and laws applicable and the applicant's fitness for the trust to be imposed. No license or permit provided for in this article shall be issued without the approval of a majority of the Village Board.

Health and sanitation. No license shall be issued for any premises which does not conform to the sanitary, safety and health requirements of the State Department of Safety and Professional Services and State Department of Agriculture, Trade and Consumer Protection and to all such ordinances and regulations adopted by the Village.

Tax delinquencies. No license shall be granted for operation on any premises upon which taxes or assessments or other financial claims of the Village are delinquent.

Premises. No initial or renewal alcohol beverage license shall be granted for any premises for which taxes, assessments or other claims of the Village are delinquent.

Persons. No initial or renewal alcohol license shall be granted to any person:

Delinquent in payment of any taxes, assessments or other claims owed to the Village.

Delinquent in payment of a forfeiture resulting from a violation of any ordinance in the Village.

Delinquent in payment to the state of any state taxes owed.

Nonrenewals. Renewal of a license may be denied where any of the following has occurred:

Providing false information on an application.

Violation of the provisions of Chapter 125 of the Wisconsin Statutes or this article.

Failure to pay suppliers of liquor or beer as required by § 125.33(7) or 125.69(4), Wis. Stats.

Surrender of license due to nonuse.

A licensee may hold a license until its expiration date or request approval of the Village Board to transfer the license to another qualified location in the municipality. The license may also be surrendered to the Village Clerk. (Note: An alcohol beverage license is not "tied" to a particular location. The license is issued to a particular person for a specific premises, but it is the person that holds the license, not the place.)

If a licensed premises is leased or sold, the new owner or tenant may receive an available retail license for the premises if, prior to granting the license, control of the premises can be shown by purchase or lease agreement.

An agreement between a landowner and tenant regarding the premises is not binding on the Village Board. The Village Board decides whether licenses are granted and to whom they are granted. A landowner or previous licensee cannot force the Village Board to grant a license to the applicant of the landowner's choice or force revocation of the license at a later date.

The Village Board requires that no licensee shall close down an establishment for more than 90 days. To do so may result in a revocation or suspension of the license.

§ 146-6 Search of licensed premises.

It shall be a condition of any license issued that the licensed premises may be entered and inspected at any reasonable hour by any police officer of the Village of Fox Crossing without any warrant, and the application for a license shall be deemed a consent to this provision. Any refusal to permit such inspection shall automatically operate as a revocation of any license issued and shall be deemed a violation of this article.

§ 146-7 Posting licenses.

Licenses or permits, issued under this article, shall be posted and displayed as proved in Chapter 125 of the Wisconsin Statutes, and any licensee or permittee who fails to post his/her license(s) or permit as required shall be presumed to be operating without a license.

§ 146-8 Safety and sanitation requirements.

Each licensed premises shall be maintained and conducted in a sanitary manner and shall be a safe and proper place for the purpose for which used.

§ 146-9 Revocation and suspension of licenses.

Procedure. Except as provided, the provisions of Chapter 125 of the Wisconsin Statutes shall be applicable to proceedings for the revocation or suspension of all licenses or permits granted under this article. Revocation or suspension proceedings may be instituted by the Village Board upon its own motion by adoption of a resolution.

Suspension of licenses. The Village President upon obtaining reasonable information that any licensee has violated any provision of this article and/or state or federal liquor or fermented malt beverage law or committed any felony may suspend the license or permit of such person for a period not to exceed 10 days, pending hearing by the Village Board pursuant to Subsection A.

Automatic revocation. Any license or permit issued under the provisions of this article shall stand revoked without further proceedings upon the conviction of a licensee or permittee or his/her employee, agent or representative of a second offense under this article or Chapter 125 of the Wisconsin Statutes or any other state or federal liquor or fermented malt beverage law or any felony.

Repossession of license or permit. Whenever any license or permit under this article shall be revoked or suspended by the Village Board or Village President or action of any court or under Subsection C, it shall be the duty of the Village Clerk to notify the licensee or permittee of such suspension or revocation and to take physical possession of the license or permit wherever it may be found and file it in the Village Clerk's office.

§ 146-10 Transfer of premises.

Any person desiring to transfer his or her license from any building in the Village to any building in the Village shall file a written application with the Village Clerk, stating:

The place he/she desires to move to;

Whether he/she is to be the owner or lessee;

The nature of any other business carried on concurrently at the location proposed to be licensed; and

Such other information as may be required time to time by the Village Board.

Such applications shall be filed for at least 15 days with the Village Clerk before acted upon by the Board. The Village Clerk shall promptly notify the Chief Officer, the Health Inspector, and the Fire Inspector of such application and these officers shall inspect or cause to be inspected the premises sought to be licensed. They shall make such other investigation as the Village Board shall order to determine whether the application complies with the regulations, orders and laws applicable and the premises are in a proper physical condition and a suitable location. The aforesaid officers shall furnish to the Village Board in writing the information derived from such investigation.

As far as applicable, provisions of § 146-5 of this article shall apply to further proceedings in regard to the granting or refusal by the Board of the applicant's request to transfer the license.

§ 146-11 Publication of licenses.

The applicant shall pay a fee to cover the costs of publication. The fee shall be set forth in the Village Fee Schedule, reference this Code section, and is nonrefundable.

§ 146-12 Change of agent.

The corporation or limited liability company shall, following the approval of each successor agent or another qualified agent by the licensing authority, pay a fee set forth in the Village Fee Schedule, reference this Code section.

§ 146-13 Beer gardens.

Required for outdoor consumption. No permit shall be given for the consumption of alcohol beverages on any part of the licensed premises not enclosed within the building, except under permit granted by the Village Board. The permits are a privilege in which no rights vest and, therefore, may be revoked by the Village Board at its pleasure at any time or shall expire on June 30 of each year. No person shall consume or have in his/her possession alcohol beverages on any unenclosed part of licensed premises which is not described in a valid beer garden permit. It is the purpose of proper fencing in the beer garden area to prohibit or significantly restrict the ease with which alcohol beverages may be passed from within the beer garden area to anyone outside the beer garden.

Limitations on issuance of beer garden permits.

No permit shall be issued for a beer garden if any part of the beer garden is within 50 feet of any property used for residential purposes, measured from the property line, with the following exception:

A beer garden less than 50 feet but greater than 30 feet from property used for residential purposes measured from the property line shall meet the following additional requirements:

[1]

The wall, fence or barrier specified in Subsection B(4) shall be increased to six feet in height and shall be solid with no openings.

[2]

The noise from any source that is emitted from the outdoor area as described and measured in Subsection B(7) shall never exceed 75 db during all hours of operation. Hours of operation shall be limited to 8:00 a.m. to 10:00 p.m. seven days a week.

There shall be a licensed operator within the beer garden when alcohol beverages are dispensed in the beer garden.

No open flames may be displayed unless approved by the Village of Fox Crossing Fire Prevention Bureau staff.

Outdoor premises shall be completely surrounded by an attractive wall, fence, or barrier at least four feet in height. The outdoor premises shall be attached to the main business premises and access to the outdoor premises shall only be allowed through the main building.

Temporary windbreak. Between November 1 and April 1, windbreaks consisting of a minimum three-sixteenths-inch-thick clear acrylic material meeting all local and state codes and referenced standards may be installed on the perimeter of the outdoor premises. The temporary windbreak shall comply with the requirements of § 101.123, Wis. Stats., so that the outdoor premises does not become an enclosed place as defined in § 101.123(1)(ak), Wis. Stats., when the temporary windbreak is installed. No obstructions of any kind may be posted on the clear acrylic material.

(6)

The outdoor premises shall only be used for serving food and alcohol beverages, and no part of said area shall be used for recreational activities, including, but not limited to, volleyball, horseshoes, darts, and softball.

(7)

Noise from any source that is emitted from the outdoor area and measured at any border of the real property on which licensed premises is located shall not exceed 85 db from 8:00 a.m. to 10:00 p.m. and 75 db from 10:00 p.m. to close of the outdoor premises. Live entertainment is prohibited from 10:00 p.m. to close Sunday through Thursday, and 11:00 p.m. to close on Friday and Saturday.

(8)

Lighting of the area must be shielded and not be of intensity or brilliance to create glare which is distracting to adjoining property owners or can become a hazard or danger to vehicular traffic.

(9)

Service in the outdoor premises shall be limited to persons seated at tables and/or a bar unless the premises is located on a parcel that is a distance of 100 feet or greater from a parcel zoned or used for residential purposes within the Village or an adjacent municipality.

(10)

The outdoor premises shall be allowed to be open during the following hours unless the premises is located on a parcel that is a distance of 100 feet or greater from a parcel zoned or used for residential purposes within the Village or an adjacent municipality. In such case, the premises may remain open for the same hours allowed for the principal liquor license.

Sunday through Thursday, 8:00 a.m. to 11:00 p.m.

Friday and Saturday, 8:00 a.m. to 12:00 midnight.

Site plan. All applicable permits required shall be obtained and submitted along with a site plan that complies with Chapter 394, Development Standards and Site Plan Review, of this Code.

State statutes enforced within beer gardens. Every permittee under this section shall comply with and enforce all provisions of Ch. 125, Wis. Stats., applicable to Class "B" licensed premises, except where such provisions are clearly inapplicable. Violation of the provisions of Ch. 125, Wis. Stats., shall be grounds for immediate revocation of the beer garden permit by the Village Board.

Inspections. The beer garden shall be inspected annually by the Village of Fox Crossing Building Official and the Fire Prevention Bureau staff.

Permit fee. Fee for a beer garden permit is required at time of application as set forth in the Village Fee Schedule, reference this Code section, and the permit shall have a term of one year commencing on July 1 and expiring June 30 of each year. If granted subsequent to July 1 in any given year, the permit shall expire on June 30 after issuance. The fee is nonrefundable.

§ 146-14 General provisions.

Authority. This article is adopted pursuant to that authority provided by § 125.10, Wis. Stats.

Section 125.07(1) incorporated by reference. Section 125.07(1), Wisconsin Statutes, to the extent such statutory section requires any act to be performed or prohibits any act, is hereby adopted and by reference made a part of this article as fully as if set forth herein. Any act required to be performed or prohibited by § 125.07(1) is required or prohibited by this article.

Definitions. Pursuant to that authority provided to municipalities under § 125.10, Wis. Stats., the definition of "premises" as contained in § 125.02(14)(m), Wis. Stats., shall be amended for the purpose of § 146-14B so as to include all public or private property, regardless of whether said property is described in a license or permit.

§ 146-15 Violations and penalties.

The holder of any license under this article who shall violate this article or any of the provisions, or whose agents or employees shall do so, or who, having had his/her or its license revoked, shall continue to operate such place of business, shall be deemed guilty of a misdemeanor and shall, upon due proof and conviction, be punished as follows: a violation of any provision of this article where a like violation is covered, provided for and penalized by Chapter 125 of the Wisconsin Statutes shall be punished by a fine of not less than the minimum fine and not more than the maximum fine provided for by said chapter for said violation or offense, besides the costs of prosecution, and in default of the payment of any such fine and/or costs of prosecution, such guilty and convicted person shall be committed to and confined within the county jail of Winnebago County, Wisconsin, until such fine and/or costs of prosecution are paid, but not to exceed 60 days.

Each day of violation under this article shall constitute a separate and distinct offense.

A first violation of any other provision of this article shall be punished by a fine set forth in Chapter A450, Fines and Penalties, reference this Code section, besides the costs of prosecution, and on default of the payment of any such fine and/or costs of prosecution, such person shall be committed to the county jail of Winnebago County until such fine and costs are paid, but not to exceed 90 days.

Any person violating this article who previously had been convicted of a violation of the same article shall, upon proof and conviction, forfeit not less than amounts set forth in Chapter A450, Fines and Penalties, reference this Code section, together with the costs of prosecution, and in default of the payment of such fine and costs of prosecution, or either of them, such convicted person shall be committed to and confined within the county jail of Winnebago County, Wisconsin, until such fine and costs of prosecution are paid, but not to exceed six months.

Article II Sexually Oriented Businesses

[Adopted 7-13-2020 by Ord. No. 200713-1[1]]

[1]

Editor's Note: This article derives from § 9.015 of the former Municipal Code, added 12-17-2007.

§ 146-16 Applicability.

This article shall only apply to licensed establishments that operate sexually oriented businesses as defined below, subject to the excluded categories of businesses described as follows:

Excluded from application of the provisions of this article are the following licensed establishments: theaters, performing arts centers, civic centers, and dinner theaters, where live dance, ballet, music or performances, of serious artistic merit, are offered, or legitimate educational, medical or health-related programs are offered, and in which the predominant business or attraction is not the offering to customers of entertainment which is intended for the sexual interests or titillation of customers, and where the licensed establishment is not distinguished by an emphasis on, or the advertising or promotion of, live nude or live seminude performances, or live specified sexual activities take place. Also excluded from application of this article are such establishments at hotels, motels, and restaurants which are licensed establishments but which do not operate sexually oriented businesses.

Also excluded from application of this article are sexually oriented businesses which are not licensed establishments.

§ 146-17 Intent.

It is the intent of this article to promote the health, safety, welfare, and morals of the citizens of the Village of Fox Crossing by establishing reasonable and uniform regulations to prevent the deleterious secondary effects associated with licensed establishments that operate sexually oriented businesses. The provisions of this article have neither the purpose nor the effect of imposing a limitation or restriction on the content of any communicative or expressive materials or acts, including sexually oriented materials or acts. Similarly, it is not the intent nor effect of this article to restrict or deny access by adults to sexually oriented materials or acts protected by the First Amendment or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent or effect of this article to condone or legitimize the distribution of obscene materials as regulated by state law.

§ 146-18 Authority.

The Village Board of the Village of Fox Crossing has explicit authority under § 125.10, Wis. Stats. to adopt regulations governing the sale of alcohol beverages.

Under § 61.34, Wis. Stats., and its police powers, respectively, the Village Board has authority to act for the good order of the Village of Fox Crossing and for the health, safety and welfare of the public and may carry out its powers by ordinances and enforcement.

The Village Board recognizes it lacks authority to regulate obscenity, to the extent preempted by State of Wisconsin statutes, and does not intend by adopting this article to regulate or to condone obscenity.

The Village Board recognizes that the U.S. Supreme Court has held that nude or seminude dancing is expressive conduct within the outer parameters of the First Amendment to the United States Constitution and therefore is entitled to protection under the First Amendment, and the Village Board further recognizes that freedom of speech and expression are among our most precious and highly protected rights, and wishes to act consistently with the full protection of these rights.

§ 146-19 Findings.

Notwithstanding the foregoing, the Village Board has become aware, based upon its own observations and experiences, as well as testimony before the Board by legal counsel for the Village, and also the experiences of other communities, that sexually oriented businesses may and do generate secondary effects which the governing body believes are detrimental to the public health, safety, welfare, and morals of the citizens of the Village of Fox Crossing.

Specifically, the Village Board has reviewed evidence concerning adverse secondary effects on other communities found in, but not limited to, the cases of Ben's Bar, Inc. v. Village of Somerset, 316 F3d 702 (2003); City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986); 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); City of Newport, KY v. Iacobucci, 479 U.S. 92 (1986); United States v. O'Brien, 391 U.S. 367 (1968); DLS, Inc. v. City of Chattanooga, 107 F3d 403 (6th Cir. 1997); Kev, Inc. v. Kitsap County, 793 F2d 1053 (9th Cir. 1986); Hang On, Inc. v. City of Arlington, 65 F3d 1248 (5th Cir. 1995); South Florida Free Beaches, Inc. v. City of Miami, 734 F2d 608 (11th Cir. 1984); New York State Liquor Auth. v. Bellanca, 452 U.S. 714 (1981); Blue Canary Corp. v. City of Milwaukee, 251 F3d 1121; MDK, Inc. v. Village of Grafton, 345 F. Supp 2d 952 at page 957; Daytona Grand, Inc. v. City of Daytona Beach, Florida, 490 F3d 860 (11th Cir. 2007); and a compilation of studies on various municipalities regarding the impact of adult-oriented business, and reports of harmful secondary effects occurring in and around sexually oriented businesses, including a publication of the American Planning Association compiled by Eric Damian Kelly and Connie Cooper entitled "Everything You Always Wanted To Know About Regulating Sex Businesses XXX," Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses, June 6, 1989, reports from studies in Phoenix, Arizona, 1984 and 1995-1998; Minneapolis, Minnesota 1980; Houston, Texas 1997; Indianapolis, Indiana 1984; Amarillo, Texas 1977; Garden Grove, California 1991; Los Angeles, California 1977; Whittier, California 1978; Austin, Texas 1986; Seattle, Washington 1989; Oklahoma City, Oklahoma 1986; Cleveland, Ohio 1977; Dallas, Texas 1997; St. Croix County, Wisconsin 1993; Bellevue, Washington 1998; Newport News, Virginia 1996; and New York Times Square study 1994.

Based upon the foregoing evidence as well as Village Board members' own individual experiences, observations and reasoning, the Village Board finds that:

Crime statistics show that many types of crimes, especially sex-related crimes, such as prostitution, occur with more frequency in neighborhoods where sexually oriented businesses are located.

Studies of the relationship between sexually oriented businesses and neighborhood property values have found a negative impact on both residential and commercial property values.

Sexually oriented businesses will probably contribute to an increased public health risk through the spread of sexually transmitted diseases.

Areas with sexually oriented businesses exhibit an increased potential for infiltration by organized crime for the purpose of unlawful conduct.

The consumption of alcohol beverages on the premises of a sexually oriented business exacerbates the deleterious secondary effects of such businesses on the community.

(6)

Restricting performers and entertainers only to a requirement of wearing minimal coverings such as pasties or G-strings alone will not avoid undesirable secondary effects in licensed establishments.

(7)

Some persons frequent sexually oriented businesses for the purpose of engaging in illicit sexual behavior on the premises.

The Village Board desires to protect the health, safety, and welfare of the citizens of the Village by preventing and controlling the secondary adverse effects associated with licensed establishments that operate sexually oriented businesses.

The Village Board has determined that the enactment of an ordinance prohibiting licensed establishments from operating sexually oriented businesses promotes the goal of minimizing, preventing, and controlling the above-referenced adverse secondary effects and thereby protects the health, safety, and welfare of the citizens of the Village of Fox Crossing.

§ 146-20 Definitions.

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

ANAL CLEFT AND CLEAVAGE

The definition of "anal cleft and cleavage" for this article can generally be described as including only that 1/3 of the complete buttocks centered over the cleavage for the length of the cleavage, more particularly described as follows:

The area at the rear of the human body (sometimes referred to as the gluteus maximus) which lies between two imaginary straight lines running parallel to the ground when a person is standing, the first or top such line being 1/2 below the top of the vertical cleavage of the nates (i.e., the prominence formed by the muscles running from the back of the hip to the back of the leg) and the second or bottom such line being 1/2 inch above the lowest point of the curvature of the fleshy protuberance (sometimes referred to as the "gluteal fold"), and between two imaginary straight lines, one on each side of the body (the "outside line"), which outside lines are perpendicular to the ground and to the horizontal lines described above and which perpendicular outside lines pass through the outermost point(s) at which each nate meets the outer side of each leg.

Notwithstanding the above, buttocks shall not include the leg, the hamstring muscle below the gluteal fold, the tensor fasciae latae muscle or any of the above-described portion of the human body that is between either:

The left inside perpendicular line and the left outside perpendicular line; or

The right inside perpendicular line and the right outside perpendicular line.

For the purpose of Subsection B(1) and (2), 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;

One-third 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;

Perpendicular to the ground and to the horizontal lines described above; and

PROHIBITED SEXUAL CONTACT

One-third of the distance from the anus to the right outside line.

BREASTS

A portion of the human female mammary gland (commonly referred to as the "female breast"), including the nipple and the areola (the darker colored area of the breast surrounding the nipple), and an outside area of such gland wherein such outside area:

Is reasonably compact and contiguous to the areola; and

Contains at least the nipple and the areola and 1/2 of the outside surface area of such gland located below the top of the areola, which area shall be reasonably compact and contiguous to the areola.

ENTERTAINER or PERFORMER

Any person who provides performances or entertainment for customers or patrons at a sexually oriented business, whether or not for consideration, such as fees, wages, or tips, charged or accepted for the performance or entertainment, and whether or not the performance or entertainment is provided as an employee or independent contractor, including any person who performs or entertains customers or patrons in the form of either live nudity, live seminudity, or live specified sexual activities.

LICENSED ESTABLISHMENT

Any premises licensed by the Village of Fox Crossing pursuant to Chapter 125 of the Wisconsin Statutes for serving alcohol beverages for on-premises consumption.

NUDE or NUDITY

The showing of the human male or female genitals, pubic area, vulva, anus, or anal cleft or cleavage with less than a fully opaque covering or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola, or the showing of covered male genitals in a discernibly turgid state. This definition shall not include any portion of the human female breast exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel commonly worn by persons in public.

OPERATOR

Any person operating, conducting, maintaining or owning any sexually oriented business.

PREMISES

The real property upon which a licensed establishment operating a sexually oriented business is located, or is proposed to be located, and all appurtenances thereto and buildings thereupon, including but not limited to the licensed establishment, the grounds, the private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control, or supervision of the operator of the licensed establishment.

Touching the breasts, buttocks, anus, vulva, labia, penis or testicles of another person in public view of customers or patrons done for the purpose of gratifying the sexual desires of either party.

SEMINUDE or SEMINUDITY

All definitions of nude or nudity above, and also the exposure of a bare female breast, including the nipple and areola, at any point below a horizontal line intersecting the top of the areola. This definition shall not include any portion of the human female breast exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel commonly worn by persons in public. The terms "seminude" and "seminudity" include females adorned by clothing consisting of pasties covering only the nipple and areola, and G-strings.

SEXUALLY ORIENTED BUSINESS

A business that regularly features either live nudity or live seminudity, as a permanent focus of its business, giving special prominence to such content on a permanent basis, as cited in Kraimer v. City of Schofield, 342 F. Supp. 2d 807 at page 822, citing Schultz v. City of Cumberland, 228 F.3d 831, or otherwise permits live display of specified sexual activities to members of the public.

SPECIFIED SEXUAL ACTIVITIES

Live simulated or live actual:

Acts of human masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio, or cunnilingus.

Excretory functions as part of or in connection with any of the activities set forth in Subsection A above.

§ 146-21 Grounds for action on alcohol beverage license.

The following shall constitute grounds for nonissuance, suspension, revocation or nonrenewal, in accordance with notice and hearing procedures under Chapter 125 of the Wisconsin Statutes, of a license issued by the Village of Fox Crossing, for any premises, pursuant to Chapter 125 of the Wisconsin Statutes, which license authorizes on-premises consumption of alcohol beverages at any proposed or existing licensed establishment which operates a sexually oriented business.

Conviction of an offense, contrary to § 944.21, Wis. Stats., or any successor statute or later amended version.

A finding by the Village Board that the operation of the licensed facility or activity is in conflict with § 944.21, Wis. Stats.

A finding by the Village Board that any of the following have occurred on the licensed establishment's premises:

Live nude or live seminude performances by entertainers or performers, performed at a sexually oriented business, directed at a licensed establishment's patrons or customers, or the general public.

An instance of live public display of specified sexual activities involving any entertainer or performer at a licensed establishment.

An instance of live display of prohibited sexual contact involving an entertainer or performer.

The failure of any operator to comply with the following requirements at a sexually oriented business:

It shall be unlawful for any operator of a licensed establishment to conduct a sexually oriented business on the premises.

It shall be unlawful for any operator of a licensed establishment covered by this article to permit any patron or customer of a sexually oriented business to participate in any public performance or public entertainment featuring either live nudity, live semi-nudity, or live specified sexual activities.