[HISTORY: Adopted by the Village Board of the Village of Black Earth 6-7-2005
by Ord. No. 05-O-4. Amendments noted where applicable.]
A.
Purpose. The purpose of this chapter is to regulate sexually
oriented businesses in order to promote the health, safety, morals and general
welfare of the citizens of the Village of Black Earth. The Village Board recognizes
that it lacks authority to regulate obscenity in light of § 66.0107(3),
Wis. Stats., and does not intend by adopting this chapter to regulate obscenity.
Further, the provisions of this chapter are not intended to and do not have
the purpose or effect of imposing a limitation or restriction on the content
of any communicative materials, including sexually oriented materials. Similarly,
it is not the intent or effect of this chapter to restrict or deny access
by adults to sexually oriented materials protected by the First Amendment,
or to deny access by the distributors and exhibitors of sexually oriented
entertainment to their intended market.
B.
Findings. Based on evidence concerning the adverse secondary
effects of sexually oriented businesses on the community in reports made available
to the Board, and on findings incorporated in the cases of Erie v. Pap's
A.M, 529 U.S. 277 (2000), Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991),
City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), City of NewPort
v. Iacobucci, 479 U.S. 92 (1986), New York State Liquor Authority v. Bellanca,
452 U.S. 714 (1981), Young v. American Mini Theatres, 427 U.S. 50 (1976),
G.M. Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003),
Ben's Bar v. Village of Somerset, 316 F.3d 702 (7th Cir., 2003), Schultz
v. City of Cumberland, 228 F.3d 831 (7th Cir . 2000), DLS, Inc. v. City of
Chattanooga, 107 F. 3d 403 (6th Cir. 1997), Kev, Inc. v. Kitsap County, 793
F.2d 1053 (9th Cir. 1986), Hang On, Inc. v. City of Arlington, 65 F.3d 11248
(5th Cir. 1995); East of the River Enterprises II v. City of Hudson, 2000
Wis. App. Lexis 734 (Ct. App. Aug. 1, 2000); East of the River Enterprises
II v. City of Hudson, 2000 WI App 116; Urmanski v. Town of Bradley, 2000 WI
App 141 (2000) and on studies in other communities including, but not limited
to, Phoenix, Arizona, Minneapolis, Minnesota; Houston, Texas; Indianapolis,
Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California;
Whittier, California; Austin, Texas, Seattle, Washington; Oklahoma City, Oklahoma;
Cleveland, Ohio; St. Croix County, Wisconsin; and Beaumont, Texas, which evidence
the Board reasonably believes is relevant to the potential problems caused
by the adverse secondary effects of sexually oriented businesses, the Board
finds:
(1)
Sexually oriented businesses lend themselves to ancillary
unlawful and unhealthy activities that are presently uncontrolled by operators
of the establishments.
(2)
Studies in communities across the United States such
as St. Paul, Minnesota, Indianapolis, Indiana, Austin, Texas and Phoenix,
Arizona, have documented that the secondary effects of adult-oriented establishments
affect property values, contribute to physical deterioration and blight, have
a deleterious effect on both the existing businesses around them and surrounding
residential areas, including increased transiency, increased levels of criminal
activities, including prostitution, rape, assaults and other sex-related crimes.
(3)
It has been the experience of other municipalities, including
Seattle and Renton, Washington, and Detroit, Michigan, that adult-oriented
establishments can contribute to the impairment of the character and quality
of surrounding residential neighborhoods and contribute to a decline in the
value of surrounding properties.
(4)
Certain employees of sexually oriented businesses defined
in this section as adult theaters and cabarets engage in higher incidence
of certain types of illicit sexual behavior than employees of other establishments.
(5)
Sexual acts, including masturbation, and oral and anal
sex, occur at sexually oriented businesses, especially those which provide
private or semiprivate booths or cubicles for viewing films, videos, or live
sex shows.
(6)
Offering and providing such space encourages such activities,
which creates unhealthy conditions.
(7)
persons frequent certain adult theatres, adult arcades,
and other sexually oriented businesses for the purpose of engaging in sex
within the premises of such sexually oriented businesses.
(8)
At least 50 communicable diseases may be spread by activities
occurring in sexually oriented businesses, including, but not limited to,
syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital
herpes, hepatitis B, and trichomoniasis.
(9)
Since 1981 and to the present, there has been an increasing
cumulative number of reported cases of AIDS caused by the human immunodeficiency
virus (HIV) in the United States: 600 in 1982, 2,200 in 1983, 4,600 in 1984,
8,555 in 1985 and 253,448 in 1992, and 902,223 through 2003. HlV/AIDS Surveillance
Report, United States Health and Human Services Department, Center for Disease
Control, 2003. Center for Disease Control AIDS Surveillance - General Epidemiology
2003.
(10)
As of 2004, there have been 5,690 reported cases of AIDS
and 8,743 reported cases of HIV infection in the State of Wisconsin. The Epidemic
Of HIV Infection In Wisconsin: Overview Of Case Surveillance Data Collected
Through 2004, Wisconsin Division of Public Health.
(11)
Since 1981 and to the present, there have been an increasing
cumulative number of persons testing positive for the HIV antibody test in
the State of Wisconsin.
(12)
In the United States each year 3,000,000 people are infected
with chlamydia, 650,000 with gonorrhea, 70,000 with syphilis, 1,000,000 with
herpes, 5,500,000 with human papillomavims, 120,000 with hepatitis B, and
5,000,000 with trichomoniasis. Overall, the CDC estimates there are 15,000,000
new cases of sexually transmitted diseases each year. Tracking the Hidden
Epidemics: Trends in STDs in the United States, United States Health and Human
Services Department, Center for Disease Control, 2000.
(13)
The Surgeon General of the United States, in his report
of October 22, 1986, has advised the American public that AIDS and HIV infection
may be transmitted through sexual contact, intravenous drug abuse, exposure
to infected blood and blood components, and from an infected mother to her
newborn.
(14)
According to the best scientific evidence, AIDS and HIV
infection, as well as syphilis and gonorrhea, are principally transmitted
by sexual acts.
(15)
Sanitary conditions in some sexually oriented businesses
are unhealthy, in part because the activities conducted there are unhealthy,
and, in part because of the unregulated nature of the activities and the failure
of the owners and the operators of the facilities to self-regulate those activities
and maintain those facilities.
(16)
Numerous studies and reports have determined that semen
is found in the areas of sexually oriented businesses where persons view adult-oriented
films.
(17)
The consumption of alcoholic beverages on the premises
of sexually oriented businesses is an explosive combination, one that can
beget undesirable behavior and exacerbate the adverse secondary effects of
such businesses on the community.
(18)
Requiring licensees of sexually oriented businesses to
keep information regarding current employees and certain past employees will
help reduce the incidence of certain types of criminal behavior by facilitating
the identification of potential witnesses or suspects and by preventing minors
from working in such establishments.
(19)
Proximity between entertainers and patrons during adult
entertainment performances can facilitate sexual contact, prostitution and
related crimes.
(20)
Removal of doors on adult booths and requiring sufficient
lighting on premises with adult booths advances a substantial governmental
interest in curbing the illegal and unsanitary sexual activity occurring in
adult theaters.
(21)
The general welfare, health, morals and safety of the
citizens of the Village of Black Earth will be promoted by the enactment of
this chapter.
(22)
Pursuant to § 111.335, Wis. Stats., the Village
Boards finds that the following felonies, misdemeanors, and offenses constitute
charges or convictions, the circumstances of which substantially relate to
the licensing of adult-oriented establishments, including offenses under Wisconsin
Statutes, Chapter 944 (Crimes - Sexual Morality), Chapter 975 (Sex Crimes
Law), Chapter 980 (Sexually Violent persons) and §§ 940.22
(Sexual exploitation by therapist), 940.225 (Sexual assault), 948.02 (Sexual
assault of a child), 948.025 (Repeated acts of sexual assault of a child),
948.05 (Sexual exploitation of a child), 948.055 (Causing child to view or
listen to sexual activity), 948.06 (Incest), 948.07 (Child enticement), 948.08
(Soliciting child for prostitution), 948.09 (Sex with child age 16 or older),
948.095 (Sexual assault of a student), 948.10 (Exposing to child), 948.11
(Exposing a child to harmful material) and 948.12 (Possession of child pornography);
(24)
Sexually oriented businesses have operational characteristics
which should be reasonably regulated in order to protect these substantial
governmental concerns.
(25)
Licensing is a legitimate and reasonable means of accountability
to ensure that operators of sexually orientated businesses comply with reasonable
regulations and to ensure that operators do not knowingly allow their establishments
to be used for or to foster illegal activity Further, such a licensing procedure
will place a previously nonexistent incentive on operators to see that the
sexually oriented business is run in a manner consistent with the health,
safety and welfare of its patrons, its employees, as well as the public. It
is appropriate to require reasonable assurances that the licensee is the actual
operator of the sexually oriented business, fully in possession and control
of the premises and activities occurring therein.
(26)
The disclosure of certain information by those persons
ultimately responsible for the day-to-day operation and maintenance of the
sexually oriented business, where such information is substantially related
to the significant governmental interest in the operation of such uses, will
aid in preventing the spread of sexually transmitted diseases.
(27)
It is necessary to license entertainers in the adult
entertainment industry to prevent the exploitation of minors, to ensure that
each such entertainer is an adult and to ensure that such entertainers have
not assumed a false name, which would make regulation of the entertainer difficult
or impossible.
(28)
It is desirable in the prevention of the spread of communicable
diseases to obtain a limited amount of information regarding certain employees
who may engage in the conduct which this chapter is designed to prevent or
who are likely to be witnesses to such activity.
(29)
The license fees required in this chapter are necessary
as nominal fees imposed as necessary regulatory measures designed to help
defray the substantial expenses incurred by the Village of Black Earth in
regulating sexually oriented businesses.
(30)
It is not the intent of this chapter to suppress or censor
any expressive activities protected by the First Amendment of the United States
Constitution or Article I, Section 3, of the Wisconsin Constitution, but rather
to enact time, place and manner regulations which address the compelling interests
of the Village of Black Earth in mitigating the secondary effects of sexually
oriented businesses.
As used in this chapter, the following terms shall have the meanings
indicated:
Any place to which the public is permitted or invited wherein coin-operated,
slug-operated, or for any form of consideration, or electronically, electrically,
or mechanically controlled still- or motion-picture machines, projectors,
video or laser disc players, or other image-producing devices are maintained
to show images to five or fewer persons per machine at any one time, and where
the images so displayed are distinguished or characterized by the depicting
or describing of specified sexual activities or specified anatomical areas.
A commercial establishment which has a significant or substantial portion
of its stock-in-trade or a significant or substantial portion of its revenues
or devotes a significant or substantial portion of its interior business or
advertising to the sale or rental for any form of consideration of any one
or more of the following:
Books, magazines, periodicals or other printed matter, or photographs,
films, motion pictures, video cassettes or video reproductions, slides, or
other visual representations which are characterized by the depiction or description
of specified sexual activities or specified anatomical areas; or
Instruments, devices, or paraphernalia which are designed for use in
connection with specified sexual activities.
A commercial establishment may have other principal business purposes
that do not involve the offering for sale or rental material depicting or
describing specified sexual activities or specified anatomical areas and still
be categorized as "adult bookstore," "adult novelty store," or "adult video
store." Such other business purposes will not serve to exempt such commercial
establishments from being categorized as an "adult bookstore," "adult novelty
store," or "adult video store" so long as one of its principal business purposes
is the offering for sale or rental for consideration the specified materials
which are characterized by the depiction or description of specified sexual
activities or specified anatomical areas.
Video stores that sell and/or rent only video tapes or other photographic
or computer generated reproductions, and associated equipment shall come within
this definition if 20% or more if its stock-in-trade or revenues comes from
the rental or sale of video tapes or other photographic reproductions or associated
equipment which are characterized by the depiction or description of specified
sexual activities or specified anatomical areas.
A nightclub, bar, restaurant, or similar commercial establishment
at which:
Persons appear in a state of nudity or seminude; or
Live performances occur which are characterized by the exposure of specified
anatomical areas or by specified sexual activities; or
Films, motion pictures, video cassettes, slides or other photographic
reproductions are shown which are characterized by the depiction or description
of specified sexual activities or specified anatomical areas.
An enclosed commercial establishment with a capacity of less than
50 persons used for presenting materials 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 therein.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any form of consideration; provides
patrons with closed-circuit television transmissions, films, motion pictures,
video cassettes, slides, or other photographic reproductions which are characterized
by the depiction or description of specified sexual activities or specified
anatomical areas; and has a sign visible from the public right-of-way which
advertises the availability of this adult type of photographic reproductions;
or
Offers a sleeping room for rent for a period of time that is less than
10 hours; or
Allows a tenant or occupant of a sleeping room to subrent the room for
a period of time that is less than 10 hours.
An enclosed commercial establishment with a capacity of 50 or more
persons where, for any form of consideration, films, motion pictures, video
cassettes, slides, or similar photographic reproductions are regularly shown
which are characterized by the depiction or description of specified sexual
activities or specified anatomical areas.
A theater, concert hall, auditorium, or similar commercial establishment
which regularly features persons who appear in a state of nudity or seminude,
or live performances which are characterized by the exposure of specified
anatomical areas or by specified sexual activities.
Such enclosures as are specifically offered to the public or members
of a sexually oriented business 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 private members of the commercial establishment for hire or for a fee or
for the purpose of viewing entertainment for a fee, 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.
A person who performs any service on the premises of a sexually oriented
business on a full-time, part-time or contract basis, whether or not the person
is denominated an employee, independent contractor, agent or otherwise, and
whether or not said person is paid a salary, wage or other compensation by
the operator of said business. "Employee" does not include a person exclusively
on the premises for repair or maintenance of the premises or equipment on
the premises, or for the delivery of goods to the premises.
A person who, for consideration, agrees or offers to act as a companion,
guide, or date for another person, or who agrees or offers to privately model
lingerie or to privately perform a strip-tease for another person.
A person or business association who furnishes, offers to furnish,
or advertises to furnish escorts as one of its primary business purposes for
a fee, tip, or other consideration.
A person in whose name a license to operate a sexually oriented business
has been issued, as well as the individual listed as an applicant on the application
for a license; and in the case of an employee, a person in whose name a license
has been issued authorizing employment in a "sexually oriented business."
Any place where a person who appears semi-nude, in a state of nudity,
or who displays specified anatomical areas and is provided to be observed,
sketched, drawn, painted, sculptured, photographed, or similarly depicted
by other persons who pay money or any form of consideration. "Nude model studio"
shall not include a proprietary school licensed by the State of Wisconsin
or a college, junior college or university supported entirely or in part by
public taxation; a private college or university which maintains and operates
educational programs in which credits are transferable to a college, junior
college, or university supported entirely or partly by taxation; or in a structure:
That has no sign visible from the exterior of the structure and no other
advertising that indicates a nude or seminude person is available for viewing;
and
Where in order to participate in a class a student must enroll at least
three days in advance of the class; and
Where no more than one nude or seminude model is on the premises at
any one time.
The showing of the human male or female genitals, pubic area, vulva,
anus, anal cleft or cleavage with less than a fully opaque covering, the showing
of the female breast with less than a fully opaque covering of the entire
nipple and areola, or the showing of the covered male genitals in a discernibly
turgid state.
An individual, proprietorship, partnership, limited partnership,
corporation, association, LLC, LLP, or other legal entity.
A person who knowingly or intentionally, in a public place:
Any location frequented by the public, or where the public is present
or likely to be present, or where a person may reasonably be expected to be
observed by members of the public. Public places include, but are not limited
to streets, sidewalks, parks, beaches, business and commercial establishments
(whether for profit or not-for-profit and whether open to the public at large
or where entrance is limited by a cover charge or membership requirement),
bottle clubs, hotels, motels, restaurants, nightclubs, country clubs, cabarets
and meeting facilities utilized by religious, social, fraternal or similar
organizations. Premises used solely as a private resident, whether permanent
or temporary in nature, shall not be deemed to be a "public place." Public
place shall not include enclosed single sex public restrooms, enclosed single
sex functional showers, locker and/or dressing room facilities, enclosed motel
rooms and hotel rooms designed and intended for sleeping accommodations, doctors'
offices, medical facilities, portions of hospitals and similar places in which
nudity or exposure is necessarily and customarily expected outside of the
home and the sphere of privacy constitutionally protected therein. Public
place does not include a private facility which has been formed as a family-oriented
clothing option facility, properly licensed by the state.
The showing of the female breast below a horizontal line across the
top of the areola at its highest point or the showing of the male or female
buttocks. This definition shall include the entire lower portion of the human
female breast, but shall not include any portion of the cleavage of the human
female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit,
or other wearing apparel, provided the areola is not exposed in whole or in
part.
A business or commercial enterprise that, as one of its principal
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore, adult novelty store, adult video
store, adult cabaret, adult motel, adult motion-picture theater, adult mini
motion-picture theater, adult theater, escort agency, nude model studio, or
sexual encounter center.
Any of the following:
The increase in floor areas occupied by the business by more than
25%, as the floor area exists on the date this chapter takes effect.
Includes any of the following:
The sale, lease, or sublease of the business;
The transfer of securities, stocks, partnership interests, or membership
units which constitute a controlling interest in the business, whether by
sale, exchange, or similar means; or
The establishment of a trust, gift or other similar legal device which
transfers the ownership or control of the business, except for transfer by
bequest or other operation of law upon the death of the person possessing
the ownership or control.
All sexually oriented businesses are subject to the regulations in this
chapter and are classified as follows:
A.
It is unlawful:
(1)
For any person to operate a sexually oriented business
without a valid sexually oriented business license issued by the Village of
Black Earth pursuant to this chapter.
(2)
For any person who operates a sexually oriented business
to permit a person to be employed, work for or perform in the sexually oriented
business who is not licensed as a sexually oriented business employee by the
Village of Black Earth pursuant to this chapter.
(3)
For any person who is required under this chapter to
have a sexually oriented business employee license to be employed, to work
for or to perform in a sexually oriented business without having secured a
sexually oriented business employee license pursuant to this chapter.
(4)
For any person to substantially enlarge a sexually oriented
business without a valid sexually oriented business license issued by the
Village of Black Earth pursuant to this chapter.
B.
A license may be issued only for a sexually oriented
business located at a fixed and certain place. Any person who desires to operate
more than one sexually oriented business must have a license for each.
C.
A licensee shall not transfer his/her license to another
person, including by way of transfer of ownership or control of a sexually
oriented business; nor shall a licensee operate a sexually oriented business
under the authority of a license at any place other than the address designated
in the application. A person who has not been licensed under this chapter
shall not use the license of a licensee, and no licensee may allow an unlicensed
person to use the licensee's license.
D.
All businesses that are sexually oriented businesses
existing at the time of the passage of this section must submit an application
for a license within 45 days of the passage of this section.
A.
This chapter shall not be construed to restrict or prohibit
the following activities or products:
B.
The provisions of this chapter are not intended to and
do not prohibit the simulation of sex acts which are part of nonobscene expression.
C.
Whether or not an activity is obscene shall be judged
by consideration of the following factors:
(1)
Whether the average person, applying contemporary community
standards, would find that the activity taken as a whole appeals to the prurient
interest in sex; and
(2)
Whether the activity depicts or describes sexual conduct
in a patently offensive way, as measured against community standards; and
(3)
Whether the activity taken as a whole lacks serious literary,
artistic, political or scientific value.
A.
An application for a license under this chapter must
be made on a form provided by the Village of Black Earth.
B.
All applicants must be qualified according to the provisions
of this chapter. The application may request and the applicant shall have
a duty to provide such information as is necessary to enable the Village of
Black Earth to determine whether the applicant meets the qualifications established
in this chapter.
C.
If a person who wishes to operate a sexually oriented business is an individual, the person must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual or person who has a twenty-percent or greater interest in the business must sign the application for a license as applicant; in addition there must be at least one individual (nonbusiness entity) who has an ownership interest in the business who must sign the application as an applicant. Each applicant must be qualified under the section § 165-7.
D.
The completed application for a sexually oriented business
license shall contain the following information and shall be accompanied by
the following documents:
(1)
If the applicant is:
(a)
An individual, the individual shall state his/her legal
name and any aliases and submit proof that he/she is at least 18 years of
age;
(b)
A partnership, the partnership shall state its complete
name, the names of all partners and/or limited partners, whether the partnership
is general or limited, and a copy of the partnership agreement, if any;
(c)
A corporation, LLC, LLP, association or other legal entity,
its complete name, its d/b/a if applicable, the date of its incorporation,
formation or organization, evidence that the entity is in good standing under
the laws of its state of incorporation, formation or organization, the names
and capacity of all officers, directors, principal stockholders, shareholders,
unit holders, members, managers; and the name of the registered agent and
the address of the registered office for service of process.
(2)
If the applicant intends to operate the sexually oriented
business under a name other than that of the applicant, the applicant must
state the sexually oriented business's fictitious name and submit the
required registration documents.
(3)
The classification of sexually oriented business license
for which the applicant is filing.
(4)
The location of the proposed sexually oriented business,
including a legal description of the property to be licensed, street address,
and telephone number(s).
(5)
The applicant's mailing address.
(6)
A sketch or diagram showing the configuration of the
premises, including a statement of total floor space occupied by the business.
The sketch or diagram need not be professionally prepared, but it must be
drawn to a designated scale or drawn with marked dimensions of the interior
of the premises to an accuracy of plus or minus six inches.
(7)
If an applicant wishes to operate a sexually oriented business, other than an adult motel, which shall exhibit on the premises, in a viewing room or booth of less than 150 square feet of floor space, films, video cassettes, other video reproductions, or live entertainment which depict specified sexual activities or specified anatomical areas, then the applicant shall comply with the application requirements set forth in § 165-11.
(8)
If an applicant is an adult cabaret, then the applicant shall comply with the application requirements set forth in § 165-9.
(9)
Before any applicant may be issued a sexually oriented
business employee license, the applicant shall submit on a form to be provided
by the Village of Black Earth the following information:
A.
All applications shall be filed with the Village of Black
Earth Clerk. Upon the filing of a complete application for a sexually oriented
business employee license, the Village of Black Earth Clerk shall issue a
temporary license to the applicant. All complete applications shall be referred
to the appropriate Village of Black Earth officials for an investigation to
be made on such information as is contained on the application.
B.
The Village of Black Earth police, fire and building
officials shall complete their certification that the person, individual and/or
premises is in compliance or not in compliance with all applicable statutes
and ordinances within 20 days of receipt of the completed application by the
Village of Black Earth.
C.
Consideration of, review of and action on application.
(1)
After the investigation, the Village of Black Earth Board
shall consider, review and act on the application at a regular or special
meeting. At the Board's discretion, it may hold a public hearing on the
license application. The Village of Black Earth shall issue or renew a license,
unless it is determined by a preponderance of the evidence that one or more
of the following findings is true:
(a)
The applicant has failed to provide information reasonably
necessary for issuance of the license or has falsely answered a question or
a request for information on the application form;
(b)
The applicant is under the age of l 8 years;
(c)
The sexually oriented business employee license is to
be used for employment in a business prohibited by local or state law, statute,
rule or regulation, or prohibited by a particular provision of this chapter;
or
(d)
The license fee required by this section has not been
paid.
(e)
Pursuant to the standards in § 111.335, Wis.
Stats., the applicant has an arrest record or has been convicted of a felony,
misdemeanor or other offense, the circumstances of which substantially relate
to the licensed activity, which for purposes of this license include offenses
under Chapters 944, 975, 980 and §§ 940.22, 940.225, 948.02,
948.025, 948.05 through 948.12, Wis. Stats., as may be amended.
(f)
The applicant has been found to have previously violated
this chapter within five years immediately preceding the date of the application.
(g)
One or more of the standards, provisions or requirements
of this chapter has not been met.
(h)
One or more of the standards, provisions, or requirements
set forth in the Village, county or state building statutes, code or regulations
has not been met.
(2)
The application process shall be completed within 45
days from the date the completed application is filed.
D.
A license under this chapter, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, the address of the sexually oriented business and the regulated use for which the license is issued pursuant to § 165-4. All licenses shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that they may be easily read at any time.
E.
A sexually oriented business license shall issue for only one classification as found in § 165-3.
F.
A sexually oriented business license shall not be issued
unless the owner ensures that no specified anatomical areas and no specified
sexual activity are visible at any time from any public place that is not
the sexually oriented business in question.
G.
Whenever an application is denied, or a license is not
renewed by the Village Board, 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 the denial or nonrenewal, a public
hearing shall be held within 10 days thereafter in conformity with § 68.11
(2) and (3), Wis. Stats. A final determination stating the reasons therefor,
together with a copy of any official recording or transcript of the hearing,
shall be rendered within 20 days of the commencement of the hearing. Judicial
review shall be governed by § 68.13, Wis. Stats.
A.
Every person that is an individual who is required to
have a sexually oriented business employee license shall post his or her license
in his or her work area so that it is readily available for public inspection.
B.
Every person that is not an individual, who is licensed
under this chapter shall display its license in a prominent place within the
establishment. In the case of adult cabarets, the name of the manager on duty
shall be prominently posted during business hours.
A.
Separation of sexually oriented adult entertainment performance
area. The portion of the adult cabaret premises in which sexually oriented
adult entertainment is performed shall be a stage or platform that is separated
from all patron seating areas in the following ways:
B.
Lighting. Sufficient lighting shall be provided and equally
distributed in and about the parts of the premises which are open to and used
by patrons so that all objects are plainly visible at all times, and so that
on any part of the premises which is open to and used by patrons, a program,
menu, or list printed in eight-point type will be readable.
C.
Submittal of plans. Building plans showing conformance
with the requirements of this section shall be included with any application
for a sexually oriented business license for an adult cabaret.
D.
Standards of conduct for employees. All employees of
a sexually oriented business must adhere to the following standards of conduct:
(1)
No employee or holder of a sexually oriented business
employee license shall appear in a state of nudity or seminude on any part
of the premises open to view of members of the public, except on or in the
entertainment performance area described above.
(2)
No employee holder of a sexually oriented business employee
license shall allow, encourage or knowingly permit any person upon the premises
to touch, caress, or fondle the breasts, buttocks, anus, pubic area or genitals
of any other person.
(3)
No employee or holder of a sexually oriented business
employee license of an adult cabaret shall be visible from any public place
that is not the sexually oriented business in question during the actual or
apparent hours of his or her employment or performance on the premises of
that sexually oriented business.
E.
Manager on premises. A manager, who shall be a licensed
employee and not an entertainer, shall be on duty at an adult cabaret business
premises at all times, and shall verify that any employee or holder of a sexually
oriented business employee license who works or appears within the premises
possesses a current and valid entertainer's license posted in the manner
required by this chapter.
F.
Signs. Signs in letters at least 3/4 inch high shall
be conspicuously displayed in the public area of the establishment stating
the following:
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"THIS ADULT CABARET IS REGULATED BY THE VILLAGE OF BLACK EARTH. ENTERTAINERS
ARE:
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a.
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Not permitted to engage in any type of sexual conduct;
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b.
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Not permitted to appear in a State of Nudity or Semi-Nude, except on
stage;
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c.
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Not permitted to dance or model where patrons are congregated.”
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A.
Evidence that a sleeping room in a hotel, motel, or similar
commercial establishment has been rented and vacated two or more times in
a period of time that is less than 10 hours creates a rebuttable presumption
that the establishment is an adult motel as that term is defined in this section.
B.
A person commits a violation of this chapter if, as the
person in control of a sleeping room in a hotel, motel, or similar commercial
establishment that does not have a sexually oriented business license, he
rents or subrents a sleeping room to a person and, within 10 hours from the
time the room is rented, he rents or subrents the same sleeping room again.
A.
A person who operates or causes to be operated a sexually
oriented business, other than an adult motel, which exhibits on the premises
in a viewing room of less than 150 square feet of floor space, a film, video
cassette, live entertainment, or other video reproduction which depicts specified
sexual activities or specified anatomical areas, shall comply with the following
requirements:
(1)
Upon application for a sexually oriented business license,
the application shall be accompanied by a diagram of the premises showing
a plan thereof specifying the location of one or more manager's stations
and the location of all overhead lighting fixtures and designating any portion
of the premises in which patrons will not be permitted. A manager's station
may not exceed 32 square feet of floor area. The diagram shall also designate
the place at which the permit will be conspicuously posted, if granted. A
professionally prepared diagram in the nature of an engineer's or architect's
blueprint shall not be required; however, each diagram should be oriented
to the north or to some designated street or object and should be drawn to
a designated scale or width marked dimensions sufficient to show the various
internal dimensions of all areas of the interior of the premises to an accuracy
of plus or minus six inches. The Village of Black Earth may waive the foregoing
diagram for renewal applications if the applicant adopts a diagram that was
previously submitted and certifies that the configuration of the premises
has not been altered since it was prepared.
(2)
No alteration in the configuration or location of a manager's
station may be made without the prior approval of the Village of Black Earth.
(3)
It is the duty of the licensee of the premises to ensure
that at least one licensed employee is on duty and situated in each manager's
station at all times that any patron is present inside the premises.
(4)
The interior of the premises shall be configured in such
a manner that there is an unobstructed view from a manager's station
of every area of the premises to which any patron is permitted access for
any purpose, excluding restrooms. Restrooms may not contain video reproduction
equipment. If the premises has two or more manager's stations designated,
then the interior of the premises shall be configured in such a manner that
there is an unobstructed view of each area of the premises to which any patron
is permitted access for any purpose from at least one of the manager's
stations. The view required in this subsection must be by direct line of sight
from the manager's station.
(5)
It shall be the duty of the licensee to ensure that the view area specified in Subsection A(4) remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection A(1) of this section.
(6)
No viewing room may be occupied by more than one person
at any time.
(7)
The premises shall be equipped with overhead lighting
fixtures of sufficient intensity to illuminate every place to which patrons
are permitted access at an illumination of not less than five footcandles
as measured at the floor level.
(8)
It shall be the duty of the licensee to ensure that the
illumination described above is maintained at all times that any patron is
present in the premises.
(9)
No licensee shall allow openings of any kind to exist
between viewing rooms or booths.
(10)
No person shall make or attempt to make an opening of
any kind between viewing booths or rooms.
(11)
The licensee shall cause all floor coverings in viewing
booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
(12)
The licensee shall cause all wall surfaces and ceiling
surfaces in viewing booths to be constructed of, or permanently covered by,
nonporous, easily cleanable material. No wood, plywood, composition board
or other porous material shall be used within 48 inches of the floor.
A.
A nude model studio shall not employ any person under
the age of 18 years.
B.
A person under the age of 18 years commits an offense
if the person appears seminude or in a state of nudity in or on the premises
of a nude model studio. It is a defense to prosecution under this subsection
if the person under 18 years was in a restroom not open to public view or
visible to any other person.
C.
A person commits an offense if the person appears in
a state of nudity, or knowingly allows another to appear in a state of nudity
in an area of a nude model studio premises which can be viewed from the public
right-of-way.
D.
A nude model studio shall not place or permit a bed,
sofa, or mattress in any room on the premises, except that a sofa may be placed
in a reception room open to the public.
A.
It shall be a violation of this chapter for a person
who knowingly and intentionally, in a sexually oriented business, appears
in a state of nudity.
B.
It shall be a violation of this chapter for a person
who knowingly or intentionally in a sexually oriented business appears in
a seminude condition unless the person is an employee who, while seminude,
shall be at least 10 feet from any patron or customer and on a stage at least
24 inches from the floor.
C.
It shall be a violation of this chapter for an employee,
while seminude, to touch a customer or the clothing of a customer.
A person commits a violation of this chapter if the person knowingly
allows a person under the age of 18 years on the premises of a sexually oriented
business.
A person commits a violation of this chapter if the person knowingly
or intentionally commits public indecency.
A.
A person commits a violation of this chapter if the person
knowingly allows or otherwise participates in the sale, use or consumption
of alcoholic beverages on the premises of a sexually oriented business.
B.
No establishment or premises that has a sexually oriented
business license may be physically connected to, part of the same building
structure, or share a common wall or entrance with any establishment that
has any alcohol beverage license or allows the sale, use or consumption or
alcoholic beverages.
Sexually oriented businesses, except for an adult motel, must remain
closed at all times between the hours of 12:00 a.m., (midnight) and 10:00
a.m., Monday through Saturday. No Sunday open hours shall be permitted for
sexually oriented businesses except for an adult motel.
A.
Every application for a sexually oriented business license
(whether for a new license or for renewal of an existing license) shall be
accompanied by a nonrefundable application and investigation fee of $500.
B.
In addition to the application and investigation fee
required above, every sexually oriented business that is granted a license
(new or renewal) shall pay to the Village of Black Earth an annual nonrefundable
license fee of $500 within 30 days of license issuance or renewal.
C.
Every application for a sexually oriented business employee
license (whether for a new license or for renewal of an existing license)
shall be accompanied by an annual nonrefundable application, investigation
and license fee of $75.
D.
All license applications and fees shall be submitted
to the Village of Black Earth Clerk.
A.
An applicant or licensee shall permit representatives
of the Village of Black Earth to inspect the premises of a sexually oriented
business for the purpose of insuring compliance with the law at any time it
is occupied or open for business.
B.
A person who operates a sexually oriented business or
his agent or employee commits a violation of this chapter if he or she refuses
to permit such lawful inspection of the premises at any time it is open for
business.
A.
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in § 165-6. Application for renewal shall be made at least 45 days before the expiration date, and when made less than 45 days before the expiration date, the expiration of the license will not be affected.
B.
When the Village of Black Earth denies renewal of a license,
the applicant shall not be issued a license for one year from the date of
denial. If, subsequent to denial, the Village of Black Earth finds that the
basis for denial of the renewal license has been corrected or abated, the
applicant may be granted a license if at least 90 days have elapsed since
the date denial became final.
A.
The Village of Black Earth Board shall suspend a license
for a period not to exceed 30 days if it determines that a licensee or an
employee of a licensee has:
B.
Prior to suspending a license, the Village Board shall
conduct a public hearing affording the licensee an opportunity to present
information and evidence as to why the license should not be suspended. At
least 10 days prior to the hearing, the Village Clerk shall issue the licensee
a written notice setting forth the alleged basis for the suspension, and identifying
the date and time at which the Village Board will conduct a hearing on the
suspension.
C.
Whenever a license is suspended by the Village Board,
the Village Clerk shall advise the licensee in writing of the reasons for
such action. If the licensee requests a hearing within 10 days of receipt
of notification of the suspension, a public hearing shall be held within 10
days thereafter in conformity with § 68.11(2) and (3), Wis. Stats.
A final determination stating the reasons therefore, together with a copy
of any official recording or transcript of the hearing, shall be rendered
within 20 days of the commencement of the hearing. Judicial review shall be
governed by § 68.13, Wis. Stats.
A.
The Village of Black Earth shall revoke a license if a cause of suspension in § 165-22 occurs and the license has been suspended within the preceding 12 months.
B.
The Village of Black Earth shall revoke a license if
it determines that:
(1)
A licensee gave false or misleading information in the
material submitted during the application process;
(2)
A licensee has knowingly allowed possession, use, or
sale of controlled substances on the premises;
(3)
A licensee has knowingly allowed prostitution on the
premises;
(4)
A licensee knowingly operated the sexually oriented business
during a period of time when the licensee's license was suspended;
(5)
Except in the case of an adult motel, a licensee has
knowingly allowed any act of sexual intercourse, sodomy, oral copulation,
masturbation, or other sex act to occur in or on the licensed premises; or
(6)
A licensee is delinquent in payment to the Village of
Black Earth, county, or state for any taxes or fees past due.
C.
Prior to revoking a license, the Village Board shall
conduct a public hearing affording the licensee an opportunity to present
information and evidence as to why the license should not be revoked. At least
10 days prior to the hearing, the Village Clerk shall issue the licensee a
written notice setting forth the alleged basis for the revocation, and identifying
the date and time at which the Village Board will conduct a hearing on the
revocation.
D.
When the Village of Black Earth revokes a license, the
revocation shall continue for one year, and the licensee shall not be issued
a sexually oriented business license for one year from the date the revocation
became effective. If, subsequent to revocation, the Village of Black Earth
finds that the basis for the revocation has been corrected or abated, the
applicant may be granted a license if at least 90 days have elapsed since
the date the revocation became effective.
E.
Whenever a licensee is revoked by the Village Board,
the Village Clerk shall advise the licensee in writing of the reasons for
such action. If the licensee requests a hearing within 10 days of receipt
of notification of the revocation, a public hearing shall be held within 10
days thereafter in conformity with § 68.11(2) and (3), Wis. Stats.
A final determination stating the reasons therefor, together with a copy of
any official recording or transcript of the hearing, shall be rendered within
20 days of the commencement of the hearing. Judicial review shall be governed
by § 68.13, Wis. Stats.
A.
It is a defense to prosecution under § 165-14 that a person appearing in a state of nudity did so in a modeling class operated:
(1)
By a propriety school, licensed by the State of Wisconsin;
a college, junior college, or university supported entirely or partly by taxation;
(2)
By a private college or university which maintains and
operates educational programs in which credits are transferable to a college,
junior college, or university supported entirely or partly by taxation; or
(3)
In a structure:
(a)
Which has no sign visible from the exterior of the structure
and no other advertising that indicates a nude person is available for viewing;
and,
(b)
Where, in order to participate in a class a student must
enroll at least three days in advance of the class; and,
(c)
Where no more than one nude model is on the premises
at any one time.
A.
A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of any provisions of this chapter is subject to a suit for injunction as well as prosecution for violations of this chapter. Such violations shall be subject to a forfeiture as provided in § 1-4 of this Code, plus costs. Each day a violation continues constitutes a separate offense or violation.
B.
The remedies found in this chapter are not exclusive,
and the Village of Black Earth may seek any other legal or equitable relief;
including but not limited to enjoining any acts or practices which constitute
or will constitute a violation of any business license ordinances or other
regulations herein adopted.
After denial of an application, or denial or a renewal of an application,
or suspension or revocation of any license, the applicant or licensee may
seek prompt judicial review of such administrative action in any court of
competent jurisdiction in accordance with the terms of this chapter and state
law. The administrative action shall be promptly reviewed by the court. An
existing business can remain open pending the review of license denials and
failures to renew, and all businesses can remain open pending review of suspensions
and revocations.
If any portion of this chapter, or its application to any person or
circumstances, is held invalid, the validity of this chapter as a whole, or
any other provision herein and its application to other persons or circumstances,
shall not be affected.
