[HISTORY: Adopted by the Village Board of the Village of
Gresham as § 12.10 of the prior Code. Amendments noted where
applicable.]
The Village Board intends that the enforcement of this chapter
shall be used primarily to combat the secondary effects of the obscenity
industry and shall never be used for harassment or censorship purposes
against materials or performances having serious artistic, literary,
political, educational or scientific value. The Village Board further
intends that the enforcement of this chapter shall be consistent with
the first amendment to the United States Constitution; Article I,
Section 3 of the Wisconsin Constitution; and the compelling state
interest in protection of the free flow of ideas.
The terms used herein shall be defined as follows:
An establishment which features topless dancers, strippers
or similar entertainers.
Any exhibition of any motion picture, video cassette, live
performance, display or dance of any type which has as its dominant
theme or is distinguished or characterized by an emphasis on any actual
or simulated specified sexual activities, specified anatomical areas,
the removal of articles of clothing or partial or total nude appearance.
An establishment including in its stock-in-trade for sale,
rent, lease, inspection or viewing, books, films, video cassettes,
novelties, magazines or other periodicals which have as their dominant
theme or are distinguished or characterized by their emphasis on matters
depicting, describing or relating to specified sexual activities or
specified anatomical areas.
An enclosed building with a capacity of less than 50 persons,
used for presenting adult entertainment, having as its dominant theme
or distinguished or characterized by an emphasis on matters depicting,
describing or relating to specified sexual activities or specified
anatomical areas for observation by patrons.
This term includes, but is not limited to, adult entertainment
stores, adult theaters, adult mini theaters, adult cabarets and any
premises to which public patrons or members are invited or admitted
and which are physically arranged so as to provide booths, cubicles,
rooms, compartments or stalls separate from the common areas of the
premises for the purposes of viewing adult entertainment, whether
or not such adult entertainment is held, conducted, operated or maintained
for commercial gain.
An enclosed building with a capacity of 50 or more persons
used for presenting adult entertainment having as its dominant theme
or distinguished or characterized by an emphasis on matters depicting,
describing or relating to "specified sexual activities" or "specified
anatomical areas" for observation by patrons.
Any person, partnership, corporation or other organization
operating, conducting, maintaining or owning any adult-oriented establishment.
Simulated or actual:
A.
No person may engage in, conduct or carry on the operation or maintenance
of an adult-oriented establishment without first obtaining a valid
adult-oriented establishment license issued under this chapter.
B.
A license may be issued only for one adult-oriented establishment
located at a fixed and certain place. Any person desiring to operate
more than one adult-oriented establishment must have a license for
each adult-oriented establishment.
C.
Any adult-oriented establishment existing at the time of the passage
of this chapter must submit an application for a license within 60
days of the passage of this chapter.
A.
Any person desiring to obtain an adult-oriented establishment license
shall pay the required fee in an amount as set from time to time by
resolution of the Village Board to defray the costs of administration
and investigation of the application.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
B.
Any person desiring an adult-oriented establishment license shall
file a written application with the Village Clerk on a form provided
in the Clerk's office. The information provided to the Clerk
shall be given under oath.
(1)
Corporation. If the applicant is a corporation, the name of the corporation
shall be set forth exactly as set forth in its Articles of Incorporation
together with the date and state of incorporation and the names and
residence addresses of each of its officers, directors and each stockholder
holding 5% or more of the stock or beneficial ownership of the corporation.
The application shall also be verified by an officer of the corporation.
(2)
Partnership. If the applicant is a partnership, the application shall
set forth the name of the partnership and the name and residence address
of each of the partners, including limited partners, and be verified
by each partner. If one or more of the partners is a corporation,
the provisions of this chapter pertaining to a corporate applicant
shall apply to the corporate partner.
(3)
Others. If the applicant is neither a corporation nor a partnership,
the application shall set forth the true full name and residence address
of the applicant and be verified by the applicant. The application
shall also include any other name by which the applicant has been
known during the previous five years.
C.
The application also shall set forth the proposed place of business
of the adult-oriented establishment by business address, including
suite number, and not by post office box and shall contain a description
of the nature and scope of the proposed business operation. In addition,
the following information shall be furnished concerning the applicant
if an individual; each officer and director and all stockholders who
own 5% or more of the stock or beneficial ownership if the applicant
is a corporation; and each partner, including limited partners, if
the applicant is a partnership:
(1)
The previous residence address, if any, for a period of three years
immediately prior to the date of application and the dates of such
residence.
(2)
Written proof that the individual is at least 18 years of age.
(3)
A complete set of fingerprints.
(4)
The business, occupation or employment history for three years immediately
preceding the date of application, including, but not limited to,
whether such person previously operated under any permit or license
in another municipality in this or another state and whether any such
permit or license had ever been suspended or revoked.
(5)
All convictions in any state or federal court within the past five
years, including municipal ordinance violations, exclusive of traffic
violations, with a brief statement of the nature of the convictions
and the jurisdiction in which the convictions occurred.
(6)
All pending criminal charges in any state or federal court, with
a brief statement of the nature of the pending charges and the jurisdiction
in which the charges are pending.
(7)
The names of persons who will have custody of the business records
at the business location.
(8)
The name and address of the person who will be the agent for service
of process.
(9)
Such other information relating to the application as may be required
by the Protective Services Committee.
D.
The application shall include the proposed hours of operation and
a detailed floor plan.
E.
The Village Clerk shall notify the Chief of Police, the Chief of
the Fire Department, and the Building Inspector of any adult-oriented
establishment license application, and these officials shall inspect
or cause to be inspected each such application and the premises to
determine whether the applicant and the premises sought to be licensed
comply with the regulations, ordinances and laws applicable thereto.
These officials shall furnish to the Protective Services Committee,
in writing, the information derived from such investigation and a
statement as to whether the applicant and the premises meet the requirements
of the department for whom the officer is certifying within five business
days of receipt of notice from the Village Clerk. Upon receiving the
information from said officials, the Protective Services Committee
shall, within 10 days, file its written recommendation with the Village
Board.
F.
Upon receiving a recommendation of the Protective Services Committee,
within 30 days of receiving an application for license, the Village
Board shall grant, grant with conditions, or deny a license to the
applicant. The Village Clerk shall notify the applicant whether the
application is granted or denied.
G.
Whenever an application is denied, the Village Clerk shall advise
the applicant, in writing, of the reasons for such action. If the
applicant requests a hearing within 10 days of receipt of notification
of denial, a public hearing shall be held within 10 days thereafter
before the Village Board.
H.
Failure or refusal of the applicant to give any information relevant
to the application, failure or refusal to appear at any reasonable
time and place for examination under oath regarding said application
or refusal to submit to or cooperate with regard to any information
required by this chapter shall constitute an admission by the applicant
that he is ineligible for such license and shall be grounds for denial.
The Village Board shall issue an adult-oriented establishment
license if, upon recommendation by the Protective Services Committee,
it finds that:
A.
The required fee has been paid.
B.
The application conforms in all respects to this chapter.
C.
The location of the adult-oriented establishment is not within 1,000
feet of any church or synagogue building, school building or park,
nor within 200 feet of any residential district.
D.
The applicant has not knowingly made a material misstatement in the
application.
E.
The applicant has supplied all the information required under § 100-4 above and the information requested by the Protective Services Committee regarding the investigation of his application.
G.
The applicant has not had an adult-oriented establishment license
or permit or other similar license or permit revoked or suspended
in this state or any other state within three years prior to the date
of application.
H.
The applicant, if an individual; any of the stockholders holding
5% or more of the stock or beneficial ownership of the corporation,
and any officers, agents or directors, if the applicant is a corporation;
or any of the partners, including limited partners, if the applicant
is a partnership, does not, at the time of application, have pending
any criminal charge for or within five years prior to the date of
application, has not been convicted of any offense involving dishonesty,
fraud, deceit, robbery, the use or threatened use of force or violence
upon the person of another, or sexual immorality under Ch. 944 or
948, Wis. Stats., as amended, or the laws of another state similar
in nature to said Ch. 944 or 948, Wis. Stats., or other offense, subject
to § 111.335, Wis. Stats., as amended.
I.
The applicant, if a corporation, is licensed to do business and is
in good standing in the state.
J.
All individual applicants; all stockholders holding 5% or more of
the stock or beneficial ownership, directors and officers if the applicant
is a corporation; and all partners, including limited partners, if
the applicant is a partnership, are at least 18 years of age.
The adult-oriented establishment license shall be displayed
in a conspicuous public place in the adult-oriented establishment.
Any corporation holding an adult-oriented establishment license
under this chapter shall report to the Village Clerk, in writing,
within 15 days of the event described herein, any of the following:
Upon the sale or transfer of any interest in an adult-oriented
establishment, the license shall be void. Any person desiring to continue
to operate an adult-oriented establishment following sale or transfer
shall apply for a license.
A.
Any act or omission of any employee constituting a violation of the
provisions of this chapter shall be deemed the act or omission of
the operator for purposes of determining whether the operator's
license shall be revoked, suspended or renewed.
B.
No employees of an adult-oriented establishment shall allow any minor
to loiter around or to frequent an adult-oriented establishment or
allow any minor to view adult entertainment.
C.
The operator shall maintain the adult-oriented establishment in a
clean and sanitary manner at all times.
D.
The operator shall maintain at least 10 footcandles of light in the
public portions of the adult-oriented establishment, including aisles,
at all times. However, if a lesser level of illumination in the aisles
shall be necessary to enable a patron to view the adult entertainment
in a booth, room or cubicle adjoining an aisle, a lesser amount of
illumination may be maintained in such aisles; provided, however,
at no time shall there be less than one footcandle of illumination
in said aisles, as measured from the floor.
E.
No alcohol beverage may be served or permitted on the premises.
F.
No sexual activity of any kind shall be permitted on the premises.
G.
The operator shall ensure compliance of the adult-oriented establishment
and its patrons with the provisions of this chapter.
H.
No person licensed for an adult-oriented establishment may, in any
manner, advertise its establishment as licensed by the Village.
Any adult-oriented establishment having available for customers,
patrons or members any booth, room or cubicle for the private viewing
of any adult entertainment must comply with the following requirements:
A.
Each booth, room or cubicle shall be totally accessible to and from
aisles and public areas of the adult-oriented establishment and shall
be unobstructed by any door, lock or other control-type devices.
B.
Every booth, room or cubicle shall meet the following construction
requirements:
(1)
Each booth, room or cubicle shall be separated from adjacent booths,
rooms or cubicles and any nonpublic areas by a wall.
(2)
Unobstructed view at all times of anyone occupying the same.
(3)
All walls shall be solid and without any openings, extended from
the floor to a height of not less than six feet and be light colored,
nonabsorbent, smooth textured and easily cleanable.
(4)
The floor must be light colored, nonabsorbent, smooth textured and
easily cleanable.
(5)
The lighting level of each booth, room or cubicle, when not in use,
shall be a minimum of 10 footcandles at all times, as measured from
the floor.
C.
Only one individual shall occupy a booth, room or cubicle at any
time. No occupant shall engage in any type of sexual activity.
A.
Every license issued pursuant to this chapter will terminate at the expiration of one year from date of issuance unless sooner revoked and must be renewed before operation is allowed in the following year. All applications for the renewal of adult-oriented establishment licenses issued by the Village shall be filed with the Village Clerk's office on forms to be provided by the Clerk no later than 60 days prior to the expiration of the licenses. The renewal application shall contain such information and data, given under oath or affirmation, as is required for an application for a new license. Applications to renew licenses shall be processed by the Village in the same fashion as new applications. No license shall be renewed without a reinspection of the premises as required under § 100-4E above.
B.
A license renewal fee of $250 shall be submitted with the renewal
application. In addition to the renewal fee, a late penalty of $100
shall be assessed against any applicant who files for renewal less
than 60 days before the license expires. If the application is denied,
1/2 of the total fees collected shall be returned.
A.
Any adult-oriented establishment license may be suspended for not
more than 90 days or revoked by the Village Board for any of the following
reasons:
(1)
Any of the grounds that would warrant the denial of the original
application for the license.
(2)
Discovery that false or misleading information or data was given
on any application or material facts were omitted from any application.
(3)
The operator or any employee of the operator violates any provision
of this chapter or any rules or regulations adopted by the Village
Board pursuant to this chapter; provided, however, that in the case
of a first offense by an operator where the conduct was solely that
of an employee, the penalty shall not exceed a suspension of 30 days
if the Board shall find that the operator had no actual or constructive
knowledge of such violation and could not, by the exercise of due
diligence, have had such actual or constructive knowledge.
(4)
The operator becomes ineligible to obtain a license or permit.
(5)
Any cost or fee required to be paid by this chapter is not paid.
(6)
Any intoxicating liquor or fermented malt beverage is served or consumed
on the premises of the adult-oriented establishment.
(7)
The establishment is operated outside of operation hours established
by the Village Board.
(8)
There is any substantial change in the floor plan approved by the
Village Board without the approval of the Board.
B.
An adult-oriented establishment license may be suspended or revoked
after notice and hearing before the Village Board to determine if
grounds for such suspension or revocation exist. Notice of the hearing
shall be in writing and may be served by certified mail addressed
to the licensee at the current address of the licensee on file with
the Village Clerk's office. The notice shall state the grounds
of the complaint against the licensee and shall designate the time
and place where the hearing will be held.
C.
Any operator whose license is revoked shall not be eligible to receive
a license for one year from the date of revocation. No location or
premises for which a license has been issued shall be used as an adult-oriented
establishment for six months from the date of revocation of the license.
Any person violating this chapter shall, upon conviction, be
subject to a forfeiture not to exceed $500.