[HISTORY: Adopted by the Town Board of the Town of St. Joseph 6-21-2001
by Ord. No. 2001-2. Amendments noted where applicable.]
GENERAL REFERENCES
Intoxicating liquor and fermented malt beverages — See Ch. 114.
Whereas, the Town Board finds that sexually oriented businesses are
frequently used for unlawful sexual activities, including prostitution and
sexual liaisons of a casual nature; and whereas, the concern over sexually
transmitted diseases is a legitimate health concern of the Town Board, which
demands reasonable regulation of sexually oriented businesses in order to
protect the health and well-being of the citizens; and whereas, there is convincing
documented evidence that sexually oriented businesses have a deleterious effect
on both the existing businesses around them and the surrounding residential
areas adjacent to them, causing increased crime and the downgrading of property
values; and whereas, the Town Board desires to minimize and control these
adverse secondary effects and thereby protect the health, safety and welfare
of the citizenry; protect the citizens from increased crime; preserve the
quality of life; preserve the property values and character of surrounding
neighborhoods; and deter the spread of urban blight; and whereas, it is not
the intent of this chapter to suppress any speech activities protected by
the First Amendment but to enact a content-neutral chapter which addresses
the negative secondary effects of sexually oriented businesses; and whereas,
it is not the intent of the Town Board to condone or legitimize the distribution
of obscene material, and the Town Board recognizes that state and federal
law prohibits the distribution of obscene materials and expects and encourages
state law enforcement officials to enforce state obscenity statutes against
any such illegal activities in the Town of St. Joseph; now, therefore, the
Town Board of the Town of St. Joseph ordains as follows.
It is the intent of this chapter to regulate sexually oriented businesses
and related activities in order to ameliorate the negative secondary effects
associated with such businesses so as to promote the health, safety and general
welfare of the citizens of the Town of St. Joseph. It is not intended that
the provisions of this chapter directly or indirectly impose limitations or
restrictions on the content of any communicative materials, including sexually
oriented materials, nor is it the intent of this chapter to restrict or deny
access by adults to sexually oriented materials protected by the First Amendment
of the Constitution of the United States or to deny access by the distributors
and exhibitors of sexually oriented entertainment to their intended market.
Further, it is not the intent of this chapter to condone or legitimize the
distribution of obscene materials.
The Town of St. Joseph relies upon evidence concerning the adverse secondary
effects of sexually oriented businesses on the community as reported in the
following cases of City of Erie v. Pap's A.M., 120 S. Ct. 1389 (2000);
City of Renton v. Playtime Theaters, Inc., 475 U.S.C. § 41 (1986);
Young v. American Mini Theaters, 426 U.S.C. § 50 (1976); and Barnes
v. Glen Theatre, Inc., 501 U.S.C. § 560 (1991); Arcara v. Cloud
Books, Inc., 478 U.S.C. § 697 (1986); California v. LaRue, 409 U.S.C.
§ 697 (1972); Iacobucci v. City of Newport, Ky, 479 U.S.C. § 92
(1986); United States v. O'Brien, 391 U.S.C. § 367 (1968);
DLS, Inc. v. City of Chattanooga, 107 F.2d 403 (6th Cir. 1997); Key, Inc.
v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Hang on, Inc. v. City of
Arlington, 65 F.3d 1248 (5th Cir. 1995); South Florida Free Beaches, Inc.
v. City of Miami, 734 F.2d 608 (11th Cir. 1984); East of the River Enterprises
II v. City of Hudson, 2000 Wis. App. Lexis 734 (Ct. App. August 1, 2000);
and Urmanski v. Town of Bradley, 2000 WI App. 141, 613 N.W.2d 905 (Ct. App.
2000); and upon studies conducted in numerous cities, such as 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; and
Beaumont, Texas, among others. It further relies upon the findings reported
in Regulation of Adult Entertainment Establishes in St. Croix County, Wisconsin,
findings reported in the Final Report of the Attorney General's Commission
on Pornography (1986), the Report of the Attorney General's Working Group
on the Regulation of Sexually Oriented Businesses (June 6, 1989, State of
Minnesota) and statistics reported by the Centers for Disease Control and
Prevention. Therefore, the Town of St. Joseph finds that:
A.
Crime statistics show that all types of crimes, especially
sex-related crimes, occur with more frequency in neighborhoods where sexually
oriented businesses are located.
B.
Studies of the relationship between sexually oriented
businesses and neighborhood property values have found a negative impact on
both residential and commercial property values.
C.
Sexually oriented businesses may contribute to an increased
public health risk through the spread of sexually transmitted diseases.
D.
Sexually oriented businesses may encourage, support and
facilitate prohibited secondary sexual activities such as prostitution.
E.
The consumption of alcoholic beverages on the premises
of sexually oriented businesses exacerbates the negative secondary effects
of such businesses on the community.
F.
There is an increase in the potential for infiltration
by organized crime for the purposes of unlawful conduct.
The following terms shall have the following meanings:
Any place to which the public is permitted or invited wherein coin-operated
or slug-operated or electronically, electrically or mechanically controlled
still or motion-picture machines, projectors 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.
An establishment which, as its substantial course of business, presents
adult entertainment for observation by patrons therein or which, as part of
its substantial course of conduct, offers for sale, rent, trade, lease, inspection
or viewing books, films, videocassettes, magazines or other such media which
are distinguished or characterized by their emphasis on matters depicting,
describing or relating to specified anatomical areas or specified sexual activities;
or instruments, devices or paraphernalia that 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 for
rent of material as defined above and still be categorized as an adult bookstore
or adult video store. Such other business purpose will not serve to exempt
these commercial establishments from being categorized as adult bookstores
or adult video stores so long as one of the principal purposes is the offering
for sale or rent for consideration the specified materials that depict or
describe specified sexual activities or specified anatomical areas. A principal
business purpose need not be a primary use of an establishment so long as
it is a significant use based upon the visible inventory or commercial activity
of the establishment.
Substantial means 40% or more of a business stock in trade, display
space, floor space or retail sales in any one month. Upon reasonable belief
that an entity is in excess of the forty-percent threshold, that entity shall
provide all necessary records, receipts and documentation to the town upon
request. Failure to do so shall result in a presumption that the entity is
operating in excess of the threshold.
A nightclub, dance hall, bar, restaurant or similar commercial establishment
that regularly features:
Persons who appear in a state of nudity or semi-nudity; or
Live performances that are characterized by specified sexual activities;
or
Films, motion pictures, videocassettes, slides or other photographic
reproductions that are characterized by the depiction or description of specified
sexual activity or nudity or specified anatomical areas.
Any exhibition of any motion picture, 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.
An adult arcade, adult bookstore, adult cabaret, adult motion-picture
theater, adult theater, adult video store and further means any premises to
which public patrons or members are invited or admitted that is substantially
devoted to the purveyance, demonstration or display of specified sexual activities
or specified anatomical areas.
A commercial establishment where, for any form of consideration,
films, motion pictures, videocassettes, slides or similar photographic reproductions
are regularly shown that are characterized by the depiction or description
of specified sexual activities or specified anatomical areas.
A theater, concert hall, auditorium or similar commercial establishment
that regularly features persons who appear in person in a state of nudity
and/or seminudity and/or live performances that are characterized by the exposure
of specified anatomical areas or by specific sexual activities.
"Regularly" means on a daily, weekly, monthly, semimonthly or bimonthly
basis as part of the ongoing scheduled activities of the establishment.
A person who performs any service on the premises of a sexually oriented
business on a full-time, part-time, contract or independent basis, whether
or not the person is denominated an employee, independent contractor, agent
or otherwise, and whether or not the said person is paid a salary, wages 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 nor does employee include a person exclusively
on the premises as a patron or customer.
Includes any of the following:
The opening or commencement of any sexually oriented business as a new
business.
The conversion of an existing business, whether or not a sexually oriented
business, to any sexually oriented business.
The additions of any sexually oriented business to any other existing
sexually oriented business.
The relocation of any sexually oriented business.
A sexually oriented business or premises on which the sexually oriented
business is located.
The exposure of any specified anatomical areas as defined in this
chapter.
The person on the premises who is responsible for the control and
management of the sexually oriented business.
An individual, proprietorship, partnership, corporation, association
or other legal entity.
Enclosed single sex public restrooms, enclosed single sex functional
shower, locker and/or dressing room facilities, enclosed motel rooms and hotel
rooms designed and intended for sleeping accommodations and similar places
in which nudity or exposure of specified anatomical areas is necessarily and
customarily expected outside of the home and the sphere of privacy constitutionally
protected therein. This term shall not be deemed to include places where a
person's conduct of being nude is used for his or her profit or where
being nude is used for the promotion of business or is otherwise commercially
exploited.
The real property upon which the sexually oriented business is located
and all appurtenances thereto and buildings thereon, including, but not limited
to, the sexually oriented business, the grounds, private walkways, and parking
lots and/or parking garages adjacent thereto, under the ownership, control
or supervision of the owner or operator of the business.
Recurring on a basis which is frequently, customarily or typically
a part of the ongoing scheduled activities of the establishment.
The exposure of the nipples or areolas of the female breast less
than completely and opaquely covered.
An adult bookstore, adult establishment, adult motion-picture theater,
adult video store, adult cabaret or a business featuring adult entertainment,
adult motion-picture theater, adult theater or other business classified as
an adult establishment.
Includes any of the following:
The fondling or other erotic touching of human genitals, pubic region,
buttocks, anus or female breasts, whether covered or uncovered.
Sex acts, actual or simulated, including intercourse, oral copulation,
sodomy, masturbation, necrophilia, sadomasochistic abuse, fellatio or cunnilingus.
Showing human genitals in a state of sexual stimulation or arousal.
A.
No person, employee, entertainer or patron shall be permitted
to have any physical contact with any entertainer on the premises of a sexually
oriented business during any performance. To prevent actual physical contact
between the entertainer and any other person, employee or patron, all performances
shall only occur on a stage or on a table that is elevated at least 18 inches
above the immediate floor level and shall not be less than five feet from
any area occupied by any patron. Patrons shall not have any physical contact
with and shall not be less than five feet from any entertainer during any
performance, including, but not limited to, during the payment of a tip or
gratuity.
B.
The sale, use or consumption of alcoholic beverages on
the premises of a sexually oriented business is prohibited.
C.
It shall be unlawful to allow a person who is younger
than 18 years of age to enter or be on the premises of a sexually oriented
business at any time the sexually oriented business is open for business.
D.
It shall be the duty of the operator of each sexually
oriented business to ensure that an attendant is stationed at each public
entrance to the sexually oriented business at all times during regular business
hours. It shall be presumed that an attendant knew a person was under the
age of 18 unless such attendant asked for and was furnished:
E.
No person shall cause another to commit a violation of
this chapter, nor shall any person permit such a violation to occur on any
premise under his/her control, tenancy, management or ownership.
F.
Hours of operation. No sexually oriented business regulated
by this chapter may remain open between the hours of 2:00 a.m. and 8:00 a.m.,
Monday through Friday, or between the hours of 2:30 a.m. and 8:00 a.m. on
Saturdays and Sundays.
G.
Signs posted. All Premises governed by this chapter shall
be required to post signs provided by the Town of St. Joseph which state:
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By Town of St. Joseph Ordinance: The use or consumption of alcoholic
beverages on these premises is prohibited. No person shall be permitted to
have any physical contact with any entertainer. No person shall be less than
five feet from any entertainer, including during the payment of tips. Violators
may be subject to a fine of not less than $200 and not more than $700 per
violation.
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H.
Doors. Each entryway to a sexually oriented business
featuring live entertainment shall, through use of a vestibule, screening
or double doors and with window coverings, eliminate any direct line of sight
from the public street area to any entertainer on the premises.
A.
The provisions of this chapter do not apply to the following
establishments: theaters, performing arts centers, civic centers and dinner
theaters where live dance, ballet, music and dramatic performances of serious
artistic, social or political merit are offered on a regular basis and in
which the predominant business or attraction is not the offering of entertainment
which is intended for the sexual interests or titillation of customers and
where the establishment is not distinguished by an emphasis on or the advertising
or promotion of nude or seminude performances. While expressive live nudity
may occur within these establishments, this chapter seeks only to minimize
and prevent the secondary effects of sexually oriented businesses on the community.
Negative secondary effects have not been associated with these establishments.
B.
Places in sexually oriented businesses that are provided
or set apart for nudity, provided that:
(1)
Persons appearing nude in a place provided or set apart
for nudity do so for the sole purpose of performing a lawful function(s) that
is customarily intended to be performed within such place provided or set
apart for nudity; and
(2)
Persons appearing nude in a place provided or set apart
for nudity are not nude for the purpose of directly or indirectly obtaining
money or other financial gain for such person or for another person or entity.
A.
Violation of the use provisions of § 153-5 is declared to be a public nuisance per se which, in addition to any other remedy provided by law, may be abated by the Town Board or its designee by way of civil abatement procedures.
B.
Any person, partnership or corporation who violates any of the provisions of § 153-5 of this chapter shall be subject to a forfeiture of not less than $200 and not more than $700 per violation. A separate offense and violation shall be deemed committed on each day on which a violation occurs or continues to occur.
C.
Violation of this chapter constitutes sufficient grounds
for suspending, revoking or nonrenewing an alcohol beverage license under
W.S.A. s. 125.12.
