[HISTORY: Adopted by the Village Board of the Village of Elm Grove 2-12-1990. Amendments noted where applicable.]
GENERAL REFERENCES
Dance halls — See Ch. 123.
Drug paraphernalia — See Ch. 128.
Intoxicating liquor and fermented malt beverages — See Ch. 171.
Massage parlors — See Ch. 185.
Minors — See Ch. 190.
Peace and good order — See Ch. 208.
Tobacco products — See Ch. 255.
Zoning — See Ch. 335.
For the purpose of this chapter, the following words and phrases shall have the following definitions:
ADULT BOOKSTORE
An establishment having as a substantial portion of its stock-in-trade for sale, rent, lease, inspection or viewing books, films, videocassettes, magazines or other periodicals which are distinguished or characterized by their emphasis on matters depicting, describing or relating to specific sexual activities or specified anatomical areas, as defined below, and in conjunction therewith having facilities for the presentation of adult entertainment, as defined below, including adult-oriented films, movies or live performances, for observation by patrons therein.
ADULT CABARET
A cabaret which features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators or similar entertainers.
ADULT ENTERTAINMENT
Any exhibition of any motion pictures, live performance, display or dance of any type which has as a significant or substantial portion of such performance, or is distinguished or characterized by an emphasis on, any actual or simulated performance of specified sexual activities or exhibition and viewing of specified anatomical areas, as defined below, appearing unclothed or the removal of articles of clothing to reveal specified anatomical areas.
ADULT MINI MOTION PICTURE THEATER
An enclosed building with a capacity of fewer 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.
ADULT MOTION PICTURE THEATER
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.
ADULT-ORIENTED ESTABLISHMENT
Includes, but is not limited to, adult bookstores, adult motion picture theaters, adult mini motion picture theaters or adult cabarets and further means any premises to which public patrons or members are invited or admitted and which are so physically arranged as to provide booths, cubicles, rooms, compartments or stalls separate from the common area 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. "Adult-oriented establishment" further includes, without being limited to, any adult entertainment studio or any premises that is physically arranged and used as such, whether advertised or represented as an adult entertainment studio, rap studio, exotic dance studio, encounter studio, sensitivity studio, modeling studio or any other term of like import.
BOARD
The Village Board of Trustees for the Village of Elm Grove, Wisconsin.
BOOTH, ROOM OR CUBICLE
Such enclosures as are specifically offered to the public or members of an adult-oriented establishment for hire or for a fee as part of a business operated on the premises which offers as part of its business the entertainment to be viewed within the enclosure, which shall include, without limitation, such enclosures wherein the entertainment is dispensed for a fee but a fee is not charged for mere access to the enclosure. However, "booth," "room" or "cubicle" does not mean such enclosures that are private offices used by the owners, managers or persons employed on the premises for attending to the tasks of their employment, which enclosures are not held out to the public or members of the establishment for hire or for a fee or for the purpose of viewing entertainment for a fee and are not open to any persons other than employees, nor shall this definition apply to hotels, motels or other similar establishments licensed by the State of Wisconsin pursuant to Ch. 50, Wis. Stats.
EMPLOYEE
Any and all persons, including independent contractors, who work in or at or render any services directly related to the operation of an adult-oriented establishment.
ENTERTAINER
Any person who provides entertainment within an adult-oriented establishment as defined in this chapter, whether or not a fee is charged or accepted for entertainment and whether or not entertainment is provided as an employee or independent contractor.
OPERATOR
Any person, partnership or corporation operating, conducting, maintaining or owning any adult-oriented establishment.
SPECIFIED ANATOMICAL AREAS
A. 
Less than completely and opaquely covered human genitals, pubic region, buttocks and female breasts below the point immediately above the top of the areola.
B. 
Human male genitals in a discernible turgid state, even if opaquely covered.
SPECIFIED SEXUAL ACTIVITIES
Simulated or actual:
A. 
Showing of human genitals in a state of sexual stimulation or arousal.
B. 
Acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio or cunnilingus.
C. 
Fondling or erotic touching of human genitals, pubic region, buttocks or female breasts.
A. 
Except as provided in Subsection E below, from and after the effective date of this chapter, no adult-oriented establishment shall be operated or maintained in the Village of Elm Grove without first obtaining a permit to operate issued by the Village of Elm Grove.
B. 
A permit may be issued for only one adult-oriented establishment located at a fixed and certain place per application filed. Any person, partnership or corporation who or which desires to operate more than one adult-oriented establishment must have a permit for each.
C. 
No permit or interest in a permit may be transferred to any person, partnership or corporation.
D. 
It shall be unlawful for any entertainer, employee or operator to knowingly work in or about or to knowingly perform any service directly related to the operation of any adult-oriented establishment which does not have a valid permit pursuant to this chapter.
E. 
All adult-oriented establishments existing at the time of the passage of this chapter must submit an application for a permit within 90 days of the passage of this chapter. If an application is not received within said ninety-day period, then such existing adult-oriented establishment shall cease operations.
A. 
Any person, partnership or corporation desiring to secure a permit shall make application to the Village Clerk. The application shall be filed in triplicate with, and dated by, the Village Clerk. A copy of the application shall be distributed promptly by the Village Clerk to the Elm Grove Police Department and to the applicant.
B. 
The application for a permit shall be upon a form provided by the Village Clerk. An applicant for a permit shall furnish the following information under oath:
(1) 
The names (including all aliases), addresses and dates of birth of the applicant and any partner or limited partner in a partnership applicant and any officer, director and shareholder holding more than 10% of the stock of a corporate applicant.
(2) 
Written proof that any person required to be named under Subsection B(1) of this chapter is at least 18 years of age.
(3) 
The exact nature of the adult use to be conducted and the proposed address of the adult-oriented establishment to be operated.
(4) 
Whether any person required to be named under Subsection B(1) of this chapter is currently operating, or has previously operated, in this or any other county, city or state under an adult-oriented establishment permit or similar business permit or license and whether the applicant has ever had such a permit revoked or suspended, the reason therefor and the business entity or trade name under which the applicant operated that was subject to the suspension or revocation.
(5) 
If the applicant is a corporation, the application shall also specify the name of the corporation, the date and state of incorporation and the name and address of the registered agent.
C. 
Within 30 days of receiving an application for a permit the Village Clerk shall notify the applicant whether the application is granted, denied or held for further investigation. Such additional investigation shall not exceed an additional 30 days unless otherwise agreed to by the applicant. Upon the conclusion of such additional investigation, the Village Clerk shall advise the applicant in writing whether the application is granted or denied.
D. 
Whenever an application is denied or held for further investigation, the Village Clerk shall advise the applicant in writing of the reasons for such action and that the applicant has the right to request that the Village Clerk review said determination pursuant to § 68.08, Wis. Stats.
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 permit and shall be grounds for denial thereof by the Village Clerk.
To receive a permit to operate an adult-oriented establishment, an applicant must meet the following standards:
A. 
If the applicant is an individual:
(1) 
The applicant shall be at least 18 years of age.
(2) 
The applicant shall not have been found to have previously violated this chapter within five years immediately preceding the date of the application.
(3) 
Subject to §§ 111.321, 111.322 and 111.335, Wis. Stats., the applicant shall not have been convicted of or pleaded nolo contendere to any offense involving moral turpitude, prostitution, obscenity or other offense of a sexual nature in any jurisdiction within the five years immediately preceding the date of the application unless the applicant has been duly pardoned.
B. 
If the applicant is a corporation:
(1) 
All officers, directors, shareholders and agents required to be named under § 87-3B(1) of this chapter shall be at least 18 years of age.
(2) 
No officer, director or shareholder required to be named under § 87-3B(1) of this chapter shall have been found to have previously violated this chapter within five years immediately preceding the date of the application.
(3) 
Subject to §§ 111.321, 111.322 and 111.335, Wis. Stats., no officer, director, shareholder or agent required to be named under § 87-3B(1) of this chapter shall have been convicted of or pleaded nolo contendere to any offense involving moral turpitude, prostitution, obscenity or other offense of a sexual nature in any jurisdiction within the five years immediately preceding the date of the application unless he or she has been duly pardoned.
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.
(3) 
Subject to §§ 111.321, 111.322 and 111.335, Wis. Stats., no person having a financial interest in the partnership, joint venture or other type of organization shall have been convicted of or pleaded nolo contendere to any offense involving moral turpitude, prostitution, obscenity or other offense of a sexual nature in any jurisdiction within the five years immediately preceding the date of the application unless he or she has been duly pardoned.
In addition to the permit requirements previously set forth for owners and operators of adult-oriented establishments, no person shall be an employee or entertainer in an adult-oriented establishment without first obtaining a valid license issued by the Village Clerk.
A. 
Any person desiring to secure a license shall make application to the Village Clerk. The application shall be filed in triplicate with and dated by the Village Clerk. A copy of the application shall be distributed to the Elm Grove Police Department and to the applicant.
B. 
The application for a license shall be upon a form provided by the Village Clerk. An applicant shall furnish the following information under oath:
(1) 
Name, age and address, including all aliases.
(2) 
Written proof that the individual is at least 18 years of age.
(3) 
Whether the applicant, while previously operating in this or any other municipality or state under an adult-oriented establishment license or similar business license or permit, has ever had such a license or permit revoked or suspended, the reason therefor and the business entity or trade name for which the applicant was employed or associated at the time of such suspension or revocation.
C. 
Within 30 days of receiving an application for a license the Village Clerk shall notify the applicant whether the application is granted, denied or held for further investigation. Such additional investigation shall not exceed an additional 30 days unless otherwise agreed to by the applicant. Upon the conclusion of such additional investigation, the Village Clerk shall advise the applicant in writing whether the application is granted or denied.
D. 
Whenever an application is denied or held for further investigation, the Village Clerk shall advise the applicant in writing of the reasons for such action and that the applicant has the right to request that the Village Clerk review said determination pursuant to § 68.08, Wis. Stats.
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 Village Clerk.
To receive a license as an employee for an adult-oriented establishment, an applicant must meet the following standards:
A. 
The applicant shall be at least 18 years of age.
B. 
The applicant shall not have been found to have previously violated this chapter within five years immediately preceding the date of the application.
C. 
Subject to §§ 111.321, 111.322 and 111.335, Wis. Stats., the applicant shall not have been convicted of or pleaded nolo contendere to any offense involving moral turpitude, prostitution, obscenity or other offense of a sexual nature in any jurisdiction within the five years immediately preceding the date of the application unless the applicant has been duly pardoned.
A. 
A permit fee of $500 shall be submitted with the application for a permit. If the application is denied, 1/2 of the fee shall be returned.
B. 
A license fee of $100 shall be submitted with the application for a license. If the application is denied, 1/2 of the fee shall be returned.
A. 
The permit shall be displayed in a conspicuous public place in the adult-oriented establishment.
B. 
The license shall be carried by an employee upon his or her person and shall be displayed upon request of any member of the Elm Grove Police Department or any person designated by the Board.
A. 
Every permit issued pursuant to this chapter will terminate at the expiration of one year from the date of issuance, unless sooner revoked, and must be renewed before operation is allowed in the following year. Any operator desiring to renew a permit shall make application to the Village Clerk. The application for renewal must be filed not later than 60 days before the permit expires. The application for renewal shall be filed in triplicate with and dated by the Village Clerk. A copy of the application for renewal shall be distributed promptly by the Village Clerk to the Elm Grove Police Department and to the operator. The application for renewal shall be upon a form provided by the Village Clerk and shall contain such information and data, given under oath or affirmation, as is required for an application for a new permit.
B. 
A permit renewal fee of $500 shall be submitted with the application for renewal. In addition to the renewal fee, a late penalty of $125 shall be assessed against any applicant who files for a renewal less than 60 days before the permit expires. If the application is denied, 1/2 of the total permit renewal fees collected shall be returned.
C. 
If the Elm Grove Police Department is aware of any information bearing on the operator's qualifications, that information shall be filed in writing with the Village Clerk.
D. 
Every license issued pursuant to this chapter shall terminate at the expiration of one year from the date of issuance unless sooner revoked and must be renewed before an employee is allowed to continue employment in an adult-oriented establishment. Any employee desiring to renew a license shall make application to the Village Clerk. The application for renewal must be filed not later than 60 days before the license expires. The application for renewal shall be filed in triplicate with and dated by the Village Clerk. A copy of the application shall be distributed promptly by the Village Clerk to the Elm Grove Police Department and to the employee. The application shall be upon a form provided by the Village Clerk and shall contain such information and data given under oath or affirmation as is required for a new license.
E. 
A license renewal fee of $100 shall be submitted with the application for renewal. In addition to the renewal fee, a late penalty of $50 shall be assessed against any applicant who files for a renewal less than 60 days before the license expires. If the application is denied, 1/2 of the total license renewal fees collected shall be returned.
F. 
If the Elm Grove Police Department is aware of any information bearing on the employee's qualifications, that information shall be filed in writing with the Village Clerk.
A. 
A permit or license issued under this chapter shall be revoked 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, entertainer or any employee of the operator violates any provision of this chapter or any rule or regulation adopted by the 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.
(3) 
The operator or employee becomes ineligible to obtain a permit.
(4) 
An operator employs an employee who does not have a license or provides space on the premises, whether by lease or otherwise, to an independent contractor who performs or works as an entertainer without a license.
(5) 
Any cost or fee required to be paid by this chapter is not paid.
(6) 
Any intoxicating liquor or fermented malt beverage, narcotic or controlled substance is served or consumed on the premises of the adult-oriented establishment.
(7) 
Any operator, employee or entertainer sells, furnishes, gives or displays, or causes to be sold, furnished, given or displayed, to any minor any adult-oriented entertainment or adult-oriented material.
B. 
Notice of violation.
(1) 
The Village Manager, upon making an initial determination that a violation of this chapter has occurred, shall serve written notice of said violation(s) on the operator or employee. Said written notice shall include specific charges and shall provide the operator or employee with notice that revocation or suspension of the permit or license will occur unless a written request for a review of the Village Manager's decision is made to the Board of Trustees within 30 days after service of said notice to the operator or employee. Unless otherwise extended by an agreement with the aggrieved party, within 15 days of receipt of a request for review the Village Board shall conduct a hearing pursuant to § 68.11, Wis. Stats., at which time the operator or employee may present evidence bearing upon the question. The appellant shall be provided with written notice of such hearing by mail or personal service at least 10 days before such hearing. A final determination shall be made by the Board of Trustees pursuant to § 68.12, Wis. Stats.
(2) 
The provisions of Subsection B(1) of this chapter shall not be construed to abridge the authority or responsibilities of the Elm Grove Police Department to enforce this chapter or to issue any citation(s) or complaints for violations of this chapter or any other ordinance or county, state or federal law.
C. 
The transfer of a permit or license or any interest in a permit or license shall automatically and immediately revoke the permit or license.
D. 
Any operator or employee whose permit or license is revoked and who seeks to obtain a permit or license under this chapter must apply for a permit or license according to the application provisions set forth in this chapter and must meet the standards for the issuance of a permit or license as set forth in this chapter. No location or premises for which a permit has been revoked shall be used as an adult-oriented establishment for six months from the date of revocation of the permit.
A. 
No adult-oriented establishment shall be located:
(1) 
Within 500 feet of an existing adult-oriented establishment;
(2) 
Within 350 feet of any residential dwelling; or
(3) 
Within 500 feet of any pre-existing school or place of worship or an establishment that in any manner sells or dispenses alcohol.
B. 
For purposes of this chapter, distances are to be measured in a straight line, without regard to intervening structures or objects, from the property line of the adult-oriented establishment to the nearest property line of another adult-oriented establishment, school, place of worship or residential dwelling.
A. 
No adult-oriented establishment shall be open between the hours of 2:00 a.m. and 8:00 a.m. on weekdays or between the hours of 3:00 a.m. and 12:00 noon on Sundays.
B. 
All adult-oriented establishments shall be open to inspection at all reasonable times by the Elm Grove Police Department and the Building Inspector.
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 or cubicles and any nonpublic areas by a wall.
(2) 
Each booth, room or cubicle 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 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. 
Occupants. Only one individual shall occupy a booth, room or cubicle at any time. No occupant of the 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.
D. 
View from street. No adult-oriented establishment shall be situated in such manner as to allow public view of either its stock-in-trade or adult entertainment from outside of the establishment.
A. 
The operator shall maintain a register of all employees, showing the name and aliases used by the employee, home address, age, birth date, sex, height, weight, color of hair and eyes, telephone numbers, date of employment and termination and duties of each employee and such other information as may be required by the Board. The above information on each employee shall be maintained in the register on the premises for a period of one year following termination of the employee and shall be made immediately available for inspection upon demand of a member of the Elm Grove Police Department at all reasonable times.
B. 
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.
C. 
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 permit shall be revoked, suspended or renewed.
D. 
There shall be posted and conspicuously displayed in the common areas of each adult-oriented establishment a list of any and all entertainment provided on the premises. Said list shall further indicate the specific fee or charge in dollar amounts for each entertainment listed. Viewing adult-oriented motion pictures shall be considered as entertainment. The operator shall make the list available immediately upon demand of the Elm Grove Police Department at all reasonable times.
E. 
No employee of an adult-oriented establishment shall allow any minor to loiter around or frequent an adult-oriented establishment or allow any minor to view adult entertainment as defined herein.
F. 
The operator shall maintain the premises in a clean and sanitary manner at all times.
G. 
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, that at no time shall there be less than one footcandle of illumination in said aisles, as measured from the floor.
H. 
The operator shall ensure compliance of the establishment and its patrons with the provisions of this chapter.
Chapter 68 of the Wisconsin Statutes concerning municipal administrative procedure shall govern the administrative procedure and review concerning the granting, denial, renewal or nonrenewal of a permit or license. A request for an initial determination made by an aggrieved person pursuant to the provisions contained in § 68.08, Wis. Stats., shall be made to the Village Clerk. An administrative appeal pursuant to the provisions contained in § 68.10, Wis. Stats., may be made by an aggrieved person to the Board of Appeals and a hearing shall be held by the Board of Appeals pursuant to § 68.11, Wis. Stats. Any party to a proceeding resulting in a final determination may seek judicial review pursuant to the provisions contained in § 68.13, Wis. Stats.
All private schools and public schools, as defined in Ch. 115, Wis. Stats., located within the Village of Elm Grove are exempt from obtaining a permit hereunder when instructing pupils in sex education as part of their curriculum.
[Amended 7-26-2005]
Any person, partnership or corporation who or which is found to have violated this chapter shall be subject to a penalty as provided in § 1-16 of this Code, except that the forfeiture shall not be less than $250. In addition to the monetary penalty imposed, violation of this chapter shall further result in the revocation of any permit issued under this chapter.