[HISTORY: Adopted by the Village Board of the Village of
Birnamwood 3-10-1997 by Ord. No.
3-97-1. Amendments noted where applicable.]
A.
It is a lawful purpose of the Village Board to enact regulatory ordinances
protecting and promoting the general welfare, health and safety of
its citizens.
B.
The Village is empowered to enact such ordinances pursuant to the
Constitution and laws of the State of Wisconsin.
C.
The Village Board deems it necessary to provide for licensing and
regulation of adult-oriented establishments, including but not limited
to adult bookstores, adult mini motion-picture establishments, adult
motion-picture theaters and adult cabarets.
D.
Many adult-oriented establishments install booths with doors in which
patrons can view adult-oriented movies or video tape or film or view
other forms of adult entertainment.
E.
It is well known and has been found that viewing booths in adult-oriented
establishments have been and are being used by patrons of said establishments
for engaging in sexual acts, particularly between males, including
but not limited to intercourse, sodomy, oral copulation and masturbation,
resulting in unsafe and unsanitary conditions in said booths.
F.
The State Division of Public Health has indicated that, as of November
1, 1989, 553 cases of Acquired Immune Deficiency Syndrome (AIDS) were
reported in the state, including 334 that resulted in death, and that
Wisconsin can expect a significant increase in reported cases.
G.
AIDS is a sexually transmitted disease which destroys the body's
immune system, is always fatal and has no known cure.
H.
The viral agents responsible for AIDS and other sexually transmitted
diseases have all been isolated at one time or another from semen.
For the purpose of this chapter, the terms used shall be defined
as follows:
An establishment having as its stock-in-trade, for sale,
rent, lease, inspection or viewing, books, films, video cassettes,
magazines or other periodicals which are distinguished or characterized
by their emphasis on matters depicting, describing or relating to
specified sexual activities or specified anatomical areas, as defined
below, and, in conjunction therewith, have facilities for the presentation
of adult entertainment, as defined below, including adult-oriented
films, movies or live performances, for observation by patrons therein.
A cabaret which features topless dancers, strippers, male
or female impersonators or similar entertainers.
Any exhibition of any motion pictures, 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 or specified anatomical areas, as defined
below, or the removal of articles of clothing or appearing partially
or totally nude.
An enclosed building with a capacity of less than 50 persons
used for presenting material 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, as defined below, for observation by patrons therein.
An enclosed building with a capacity of 50 or more persons
used for presenting material 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, as defined below, for observation by patrons therein.
Includes, but is not limited to, adult bookstores, adult
motion-picture theaters, adult mini motion-picture establishments
or adult cabarets and further means any premises to which public patrons
or members are invited or admitted and which are so 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-oriented motion pictures, or wherein an entertainer provides
adult entertainment to a member of the public, a patron or a member,
whether or not such adult entertainment is held, conducted, operated
or maintained for a profit, direct or indirect.
Any person, partnership or corporation operating, conducting,
maintaining or owning any adult-oriented establishment.
Simulated or actual:
The Village Board of the Village of Birnamwood.
A.
No adult-oriented establishment shall be operated or maintained in
the Village without first obtaining a license to operate issued by
the Village.
B.
A license may be issued only for one adult-oriented establishment
located at a fixed and certain place. Any person, partnership or corporation
which desires to operate more than one adult-oriented establishment
must have a license for each.
C.
No license or interest in a license may be transferred to any person,
partnership or corporation.
A.
Any person, partnership or corporation desiring to secure a license
shall make application to the Clerk-Treasurer. The application shall
be filed in triplicate with and dated by the Clerk-Treasurer. A copy
of the application shall be distributed promptly by the Clerk-Treasurer
to the Police Department and to the applicant.
B.
The application for a license shall be upon a form provided by the
Clerk-Treasurer. An applicant for a license interested directly in
the ownership or operation of the business shall furnish the following
information under oath:
(1)
Name and permanent address, telephone number and temporary address,
if any.
(2)
Age, height, weight and color of hair and eyes.
(3)
Written proof that the individual is at least 18 years of age.
(4)
The address of the adult-oriented establishment to be operated by
the applicant.
(5)
If the applicant is a corporation, the application shall specify
the name of the corporation, the date and state of incorporation,
the name and address of the registered agent and the name and address
of all shareholders owning more than 5% of the stock in said corporation
and all officers and directors of the corporation.
C.
Within 45 days of receiving an application for a license, the Clerk-Treasurer
shall notify the applicant whether the application is granted or denied.
D.
Whenever an application is denied, the Clerk-Treasurer 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, as hereinafter provided.
E.
Failure or refusal of the applicant to give any information relevant
to the investigation of the application or his or her refusal or failure
to appear at any reasonable time and place for examination under oath
regarding said application or his or her refusal to submit to or cooperate
with any investigation required by this chapter shall constitute an
admission by the applicant that he or she is ineligible for such license
and shall be grounds for denial thereof by the Clerk-Treasurer.
To receive a license to operate an adult-oriented establishment,
an applicant must meet the following standards.
B.
C.
If the applicant
is a partnership, joint venture or any other type of organization
where two or more persons have a financial interest:
(1)
All
persons having a financial interest in the partnership, joint venture
or other type of organization shall be at least 18 years of age.
(2)
No person
having a financial interest in the partnership, joint venture or other
type of organization shall have been found to have violated any provision
of this chapter within five years immediately preceding the date of
the application.
D.
For any
applicant:
(1)
The
application cannot contain any material omission or materially inaccurate
statement.
(2)
The
applicant shall not have been convicted of a crime, statutory violation
or ordinance violation within the last five years, the nature of which
is directly related to the applicant's fitness to engage in said adult-oriented
establishment.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
A license fee of $500 per business day shall be submitted with
the application for a license. If the application is denied, 1/2 of
the fee shall be returned.
The license shall be displayed in a conspicuous public place
in the adult-oriented establishment.
A.
The Village
Board shall revoke a license or permit for any of the following reasons:
(1)
Discovery
that false or misleading information or data was given on any application
or material facts were omitted from any application.
(2)
The
operator or any employee of the operator violates any provision of
this chapter or any rule or regulation 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 Village 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.
(3)
The
operator becomes ineligible to obtain a license or permit.
(4)
Any
cost or fee required to be paid by this chapter is not paid.
(5)
Any
intoxicating liquor or cereal malt beverage is served or consumed
on the premises of the adult-oriented establishment.
B.
The Village
Board, before revoking or suspending any license or permit, shall
give the operator at least 10 days' written notice of the charges
against him or her and the opportunity for a public hearing before
the Village Board, as hereinafter provided.
C.
The transfer
of a license or any interest in a license shall automatically and
immediately revoke the license.
D.
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 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.
Access.
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.
Construction.
Every booth, room or cubicle shall meet the following construction
requirements:
(1)
Each
booth, room or cubicle shall be separated from adjacent booths, rooms
and cubicles and any nonpublic areas by a wall.
(2)
Each
booth shall have at least one side totally open to a public lighted
aisle so that there is an unobstructed view at all times of anyone
occupying same.
(3)
All
walls should 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.
Occupants.
Only one individual shall occupy a booth, room or cubicle at any time.
No occupant of same shall engage in any type of sexual activity, cause
any bodily discharge or litter while in the booth. No individual shall
damage or deface any portion of the booth.
A.
Every act
or omission by an employee constituting a violation of the provisions
of this chapter shall be deemed the act or omission of the operator
if such act or omission occurs either with the authorization, knowledge
or approval of the operator or as a result of the operator's negligent
failure to supervise the employee's conduct, and the operator shall
be punishable for such act or omission in the same manner as if the
operator committed the act or caused the omission.
B.
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.
C.
No employee
of an adult-oriented establishment shall allow any minor to loiter
around or to frequent an adult-oriented establishment or to allow
any minor to view adult entertainment, as defined herein.
D.
The operator
shall maintain the premises in a clean and sanitary manner at all
times.
E.
The operator
shall maintain at least 10 footcandles of light in the public portions
of the 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.
F.
The operator
shall insure compliance of the establishment and its patrons with
the provisions of this chapter.
This Code and the Wisconsin statutes shall govern the administrative
procedure and review regarding the granting, denial, renewal, nonrenewal,
revocation or suspension of a license.
All private schools and public schools, as defined in Ch. 115,
Wis. Stats., located within the Village are exempt from obtaining
a license hereunder when instructing pupils in sex education as part
of their curriculum.
Any person who shall violate any provision of this chapter or
who shall fail to obtain a license or permit as required hereunder,
or who shall operate after his or her license is revoked, shall be
subject to a penalty as provided herein.
A.
General penalty. Any person who shall violate any of the provisions
of this chapter shall, upon conviction of such violation, be subject
to a penalty, unless otherwise provided, which shall be as follows:
(1)
First offense, penalty. Any person who shall violate any provision
of this chapter subject to a penalty shall, upon conviction thereof,
forfeit not less than $25 nor more than $250 together with the costs
of prosecution and, in default of payment of such forfeiture and costs
of prosecution, shall be imprisoned in the County Jail until said
forfeiture and costs are paid, but not exceeding 90 days.
(2)
Second offense, penalty. Any person found guilty of violating any
provision of this chapter who shall previously have been convicted
of a violation of the chapter within one year shall, upon conviction
thereof, forfeit not less than $30 nor more than $500 for each such
offense together with the costs of prosecution and, in default of
payment of such forfeiture and costs, shall be imprisoned in the County
Jail until said forfeiture and costs of prosecution are paid, but
not to exceed six months.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
B.
Continued violations. Each violation and each day a violation continues
or occurs shall constitute a separate offense. Nothing in this chapter
shall preclude the Village from maintaining any appropriate action
to prevent or remove a violation of any provision of this chapter.
