This chapter shall be known and may be cited as the "Adult Entertainment
Ordinance."
This chapter is enacted pursuant to the Village of Barneveld
(hereinafter "Village") home rule power in the interest of the public
health, peace, safety, morals and general welfare of the people of
the Village, and the authority of the Village to regulate the sale
and consumption of alcoholic beverages under the 21st Amendment to
the Constitution of the United States and Ch. 125, Wis. Stats.
This chapter shall be effective throughout the Village.
Based on information and belief, the Village of Barneveld hereby
finds:
A. Establishments exist or may exist within the Village where books,
magazines, motion pictures, video tapes, prints, photographs, periodicals,
records, novelties and/or devices which depict, illustrate, describe
or relate to specified sexual activities are possessed, displayed,
exhibited, distributed and/or sold, leased or rented.
B. Establishments exist or may exist within the Village:
(1) Where the superficial tissues of one person are manipulated, rubbed,
stroked, kneaded and/or taped by a second person, accompanied by the
display or exposure of specified anatomical areas;
(2) Where dancers, entertainers, performers or other individuals who,
for any form of commercial gain, perform or are presented while displaying
or exposing any specified anatomical areas; or
(3) Where lap dancing occurs.
C. The activities described in Subsections
A and
B occur at establishments for the purpose of making a profit, and, as such, are subject to regulation by the Village in the interest of the health, safety, morals and general welfare of the people of the Village.
D. The competitive commercial exploitation of such nudity and seminudity
is adverse to the public's interest and the quality of life,
tone of commerce and total community environment in the Village.
E. The commercial exploitation of nudity and seminudity consists of
the use of nude and seminude entertainment in connection with or for
the promotion of the sale of goods or services, and the receipt of
money by the person engaging in or promoting the nude or seminude
entertainment in exchange for or as consideration for nude or seminude
entertainment in exchange for or as consideration for nude or seminude
performance by such individuals.
F. The commercial exploitation of nude and seminude acts, exhibitions
and nude entertainment frequently occurs at commercial establishments
either selling or allowing consumption of alcoholic beverages on the
premises.
G. There is a direct relationship between the consumption of alcoholic
beverages and the nude and seminude activities mentioned above and
an increase in criminal activities, moral degradation and the disturbances
of the peace and the good order of the community. The concurrences
of these activities are hazardous to the health and safety of those
persons in attendance and tends to depreciate the value of adjoining
property and harm the economic welfare of the community as a whole.
H. The combination of the sale and consumption of alcoholic beverages
with the performance of nude and seminude acts, exhibitions and entertainment
is adverse to the public's interest and the quality of life,
tone of commerce and total community environment in the Village.
I. In order to promote and preserve the public peace and good order
and to safeguard the health, safety, morals and welfare of the community
and the citizens thereof, it is necessary and advisable for the Village
to prohibit certain forms of nude and seminude acts, exhibitions,
entertainment and commercial establishments at which alcoholic beverages
are, or are available to be, sold or consumed.
J. In order to preserve the public peace and good order and to safeguard
the health, safety, morals and welfare of the community and citizens
thereof, it is necessary and advisable to regulate and restrict the
conduct of owners, operators, agents employees, entertainers, performers,
patrons, spectators and persons on the premises of the commercial
establishment subject hereto.
K. There is a direct relationship between the display or depiction of specified anatomical areas in Subsection
B(2) and an increase in criminal activities, moral degradation and disturbances of the peace and good order of the community and the concurrences of these activities is hazardous to the health and safety of those persons in attendance and tends to depreciate the value of adjoining property and harm the economic welfare of the community as a whole. These secondary effects are adverse to the public's interest and quality of life, tone of commerce and total community environment in the Village.
L. When the activities described in Subsections
A and
B are presented in establishments within the Village, other activities which are illegal, immoral or unhealthful tend to accompany them, concentrate around them, and be aggravated by them. Such other activities include but are not limited to prostitution, solicitation for prostitution, lewd and lascivious behavior, possession, distribution and transportation of obscene materials, sale or possession of controlled substances and violent crimes against persons and property.
M. When the activities described in Subsections
A and
B are present in establishments within the Village, they tend to blight neighborhoods, adversely affect neighboring businesses, lower property values, foster an atmosphere which promotes crime, particularly the kinds detailed in Subsection
G, and ultimately lead residents and businesses to move to other locations.
N. Physical contact within establishments at which the activities described in Subsections
A and
B occur between employees exhibiting specified anatomical areas and customers poses a threat to the health of both and may lead to the spread of communicable and social diseases.
O. In order to preserve and safeguard the health, safety, morals and general welfare of the people of the Village, it is necessary and advisable for the Village to regulate the conduct of owner, managers, operators, agents, employees, entertainers, performers and customers at establishments where the activities described in Subsections
A and
B occur.
P. The potential dangers to the health, safety, morals and general welfare of the people of the Village from the activities described in Subsections
A and
B occurring at establishments without first obtaining a license under this chapter are so great as to require the licensure of such establishments prior to their being permitted to operate.
Q. Lap dancing does not contain any element of communication and is
therefore conduct rather than expression.
R. Lap dancing in establishments poses a threat to the health and safety
of the participants and promotes the spread of communicable and social
diseases.
S. The Village Board finds that sexually oriented business is frequently
used for unlawful and unhealthy sexual activities, including prostitution
and sexual liaison of a casual nature.
T. The concern over sexually transmitted diseases is a legitimate health
concern of the Village which demands reasonable regulations of sexually
oriented businesses in order to protect the health and well-being
of the citizens.
U. Licensing is a legitimate reasonable means of accountability to ensure
that operators of sexually oriented businesses comply with the reasonable
regulations within this chapter and to ensure that operators do not
knowingly allow their establishments to be used as places of illegal
sexual activity or solicitation.
This chapter shall be liberally construed to accomplish its
purpose of licensing, regulating and dispersing adult entertainment
establishments. If any provision of this chapter is deemed invalid
or unconstitutional by a court of competent jurisdiction, such invalidity
or unconstitutionality shall not effect the other provisions of the
same. The sections of this chapter are declared to be severable. If
any sections of this chapter or portion of thereof shall be declared
by a decision of a court of competent jurisdiction to be invalid,
unlawful, or unenforceable, such decision shall apply only to the
specific section or portion thereof directly specified in the decision
and not to affect the validity of all provisions, sections or portions
thereof of the chapter, which shall remain in full force and effect.
It is the intent of the Village Board in adopting this chapter
to establish reasonable and uniform regulations that will reduce the
adverse secondary effects adult entertainment establishments have
upon the residents of the Village and protect the health, safety,
morals, and general welfare of the people of the Village.
In this chapter, unless the context suggests otherwise, the
following terms are defined as follows:
ADULT ARCADE
Any place or establishment operated for commercial gain which
invites or permits the public to view adult material. For purposes
of this chapter, "adult arcade" is included within the definition
of "adult theater."
ADULT BOOKSTORE/ADULT VIDEO STORE
An establishment which sells or offers adult material for
sale or rent for commercial gain; unless the establishment demonstrates
either:
A.
The adult material is accessible only by employees and the gross
income from the sale or rental of adult material comprises less than
40% of the gross income from the sale or rental of goods or services
at the establishment; or
B.
The individual items of adult material offered for sale or rental
comprise less than 10% of the individual items, as stock-in-trade,
publicly displayed in the establishment and which is not accessible
to minors at the establishment.
ADULT BOOTH
A.
A small enclosed or partitioned area inside an adult entertainment
establishment which is:
(1)
Designed or used for the viewing of adult material by one or
more persons; and
(2)
Is accessible to any person, regardless of whether a fee is
charged for access.
B.
The term "adult booth" includes but is not limited to a peep
show booth or other booth used to view adult material. The term "adult
booth" does not include a foyer through which any person can enter
or exit the establishment, or a restroom.
ADULT DANCING ESTABLISHMENT
An establishment where employees display or expose specified
anatomical areas to others, regardless of whether the employees actually
engage in dancing.
ADULT ENTERTAINMENT ESTABLISHMENT
Any adult arcade, adult theater, adult bookstore/adult video
store, adult motel or adult dancing establishment; or any other establishment
or business operated for commercial gain where any employee, operator
or owner exposes his/her specified anatomical area for viewing by
patrons, including but not limited to massage establishments, tanning
salons, modeling studios, or lingerie studios.
A.
Excluded from this definition are any educational institutions
where the exposure of specified anatomical areas is associated with
a curriculum or program.
B.
An establishment that possesses an adult entertainment license
is presumed to be an adult entertainment establishment.
ADULT MATERIAL
Any one or more of the following, regardless of whether it
is new or used:
A.
Books, magazines, periodicals or other printed matter, photographs,
films, motion pictures, video cassettes, slides, or other visual representations;
recordings, other audio matter; and novelties or devices which have
as their primary or dominant theme subject matter depicting, exhibiting,
illustrating, describing or relating to specified sexual activities
or specified anatomical areas; or
B.
Instruments, novelties, devices or paraphernalia which are designed
for use in connection with specified sexual activities.
ADULT MOTEL
Any hotel, motel, boardinghouse, rooming house or other place
of temporary lodging which includes the word "adult" in any name it
uses or otherwise advertises the presentation of adult material. The
term "adult motel" is included within the definition of "adult theater."
ADULT THEATER
An establishment operated for commercial gain which consists
of an enclosed building or a portion or part thereof or an open-air
area used for viewing of adult material. Adult motels, adult arcade,
adult booth and adult motion-picture theater are included within the
definition of "adult theater." An establishment which has adult booths
is considered to be an adult theater.
AIDS INFORMATION SIGN
A sign warning persons entering an adult entertainment establishment
of the current danger of contracting AIDS, the nature of the danger,
the means of transmission of AIDS and the procedures a reasonable
person would follow to avoid contracting AIDS.
ALCOHOLIC BEVERAGE
Shall be defined as set forth in Ch. 125, Wis. Stats.
A.
It shall be prima facie evidence that a beverage is an alcoholic
beverage if proof exists:
(1)
The beverage in question was or is known as "whiskey," "moonshine
whiskey," "shine," "rum," "gin," "tequila," "vodka," "scotch," "scotch
whiskey," "brandy," "beer," "malt liquor," or by any other similar
name or names; or
(2)
The beverage was contained in a bottle or can labeled as any
of the above names, or a name similar thereto, and the bottle or can
bears the manufacturer's insignia, name or trademark.
(3)
The sale of such beverages is subject to the requirements of Ch. 125, Wis. Stats., and/or Chapter
153 of the Code of the Village of Barneveld.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
B.
Any person who, by experience in the handling of alcoholic beverages
or who by taste, smell/or drinking of such alcoholic beverages has
knowledge of the alcoholic nature thereof, may testify as to his opinion
about whether such beverage is an alcoholic beverage.
COMMERCIAL ESTABLISHMENT
Any business, location or place which conducts or allows
to be conducted on its premises any activity for commercial gain.
COMMERCIAL GAIN
Operated for pecuniary gain, which, for the purpose of this
code, operation for commercial or pecuniary gain shall not depend
on actual profit or loss.
CONVICTION
A determination of guilt resulting from plea or trial, regardless
of whether adjudication was withheld or whether imposition of sentence
was suspended.
DEPARTMENT
The Fire Department, Police Department and Building Inspector(s).
EDUCATIONAL INSTITUTIONS
A premises or site upon which there is an institution of
learning, whether public or private, which conducts regular classes
and/or courses of study required for accreditation by or membership
in the State Department of Public Instruction of Wisconsin, the University
of Wisconsin, or a member of an association of private colleges of
the State of Wisconsin. The term "educational institution" includes
a premises or site upon which there is a day-care center, nursery
school, kindergarten, elementary school, junior high school, senior
high school; professional institution or an institution of higher
education, including a community college, junior college, or four-year
college or university; libraries, art galleries and museums open to
the public; or any special institution of learning. However, the term
"educational institution" does not include a premises or site upon
which there is a vocational institutional operated for commercial
gain.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
EMPLOYEE
Any person who works or performs in an adult entertainment
establishment, irrespective of whether the person is paid a salary
or wage by the owner or manager of the premises.
ESTABLISHMENT
The site or premises on which the adult entertainment establishment
is located, including the interior of the establishment, or portion
thereof, upon which certain activities or operations are being conducted
for commercial gain.
INSPECTOR
A respective employee of the Village or Police Department;
Building Inspector, Zoning Administrator, or officers of the Village
Fire or Rescue Department who are authorized pursuant to this code
to inspect licensed premises.
LAP DANCE (also known as "straddle dance" or "face dance" or
"flash dance")
The use by an employee, whether clothed or partially or totally
nude, of any part of his or her body to touch, massage, rub, stroke,
caress, or fondle the genital or public area of a person while at
the establishment. It shall be a lap dance regardless of whether the
touch or touching occurs while the employee is displaying or exposing
any specified anatomical area. It shall also be a lap dance regardless
of whether the touch or touching is direct or through a medium.
LICENSEE
Any person whose application for an adult entertainment establishment
has been granted and who totally or partially owns, operates or controls
the establishment.
OPERATOR
Any person who engages or participates in any activity which
is necessary to or which facilitates the operation of an adult entertainment
establishment, including but not limited to the licensee, manager,
owner, doorman, bouncer, bartender, dancer, disc jockey, sales clerk,
ticket taker, movie projectionist or supervisor.
PERSON
Includes, but is not limited to, an individual(s), firm(s),
association(s), joint venture(s), partnership(s), estate(s), trust(s),
business trust(s), syndicate(s), fiduciary(s), corporation(s), and
all other or any other similar entity.
PRINCIPAL STOCKHOLDER
Any person, as defined above, who owns or controls, legally
or beneficially, 10% or more of a corporation's capital stock,
and includes the officers and directors. If no stockholder of a corporation
owns or controls, legally or beneficially, at least 10% of the capital
stock, all stockholders shall be considered principal stockholders.
And, if a corporation is registered with the Securities and Exchange
Commission, or pursuant to Ch. 180, Wis. Stats., and its stock is
for sale to the general public, it shall not be considered to have
any principal stockholders.
PRIVATE PERFORMANCE
The display or exposure of any specified anatomical area
by an employee at an adult entertainment establishment to a person
other than another employee while the person is in an area within
the establishment not accessible during such display to all other
persons in the establishment, or while the person is in an area in
which the person is totally or partially screened or partitioned during
such display from the view of all persons within the establishment.
SPECIFIED ANATOMICAL AREAS
A.
Less than completely and opaquely covered:
(1)
Human genitals and public regions; or
(2)
Cleavage of the human buttocks; or
(3)
That portion of the human female breast encompassed within an
area falling below the horizontal line one would have to draw to intersect
a point immediately above the top of the areola; this definition shall
include the entire lower portion of the female breast, but shall not
include any portion of the cleavage of the human female breast exhibited
by a dress, blouse, shirt, leotard, bathing suit, or other wearing
apparel, provided the areola is so not exposed; or
B.
Human male genitals in a discernible turgid state, even if completely
and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES
A.
Human genitals in a state of sexual stimulation, arousal or
tumescence; or
B.
Acts or human anilingus, bestiality, buggery, cunnilingus, coprophagy,
coprophilia, fellation, flagellation, masochism, masturbation, necrophilia,
pederasty, pedophilia, sadism, sadomasochism, sexual intercourse,
or sodomy; or
C.
Fondling or other erotic touching of human genitals, public
region, buttock, anus, or female breast; or
D.
Excretory functions as part of or in connection with any of the activities set forth in Subsections
A through
C.
VILLAGE BOARD
The Village Board of the Village of Barneveld, Iowa County,
Wisconsin.
It is not the intent of the Board to legislate with respect
to matters of obscenity. These matters are regulated by state law.
It is not the intent of the Board to legislate, limit or conflict
with respect to matters of massage establishments which are or may
be regulated by state law or state regulatory agency.
No application for a license as provided in §
80-15 of this chapter shall be approved until the appropriate provisions of the municipal zoning ordinances have been complied with, the required zoning approval obtained and the respective zoning official officially notifies the Village Board of compliance.
In the event the notice of denial of an application for a license
was grounded in whole or in part upon failure to comply with or testify
all applicable zoning regulations, the aggrieved party shall first
file an application with the Zoning Board of Adjustment for a variance
within 30 days of the mailing of the notice of denial, receive a public
hearing before the Board of Appeals and obtain a final decision therefrom
within 120 days of the date of application denial. If the Board of
Appeals grants the variance, the aggrieved party shall notify the
Village Board of the variance within 30 days of the grant of the variance.
Except as otherwise provided, any notice required under this chapter
shall be accomplished by sending a written notification by certified
mail, return receipt requested, to the mailing address set forth on
the application for the license. This mailing address shall be considered
the correct mailing address unless the Village Clerk has been otherwise
notified, in writing, by certified mail, return receipt requested,
by the licensee of the new address. The licensee shall have the burden
of proving the occupational licensing department received the new
address.
The Village or any department shall be immune from prosecution,
civil or criminal, while acting within the scope of its authority
under this chapter and shall have authority to enter any adult entertainment
establishment at all reasonable times to inspect the premises and
enforce this chapter.
The Village Board, through the Village Attorney, may bring suit in the circuit court to restrain, enjoin or otherwise prevent the violation of §§
80-16 and
80-17 of this chapter.