Chapter 5.70
ADULT-ORIENTED ESTABLISHMENTS
Sections:
5.70.030 Application for license.
5.70.040 Standards for issuance of license.
5.70.080 Suspension or revocation of license.
5.70.090 Physical layout of adult-oriented establishment.
5.70.100 Responsibilities of the operator.
5.70.110 Registration of entertainers.
5.70.120 Administrative procedure and review.
5.70.140 Penalties and prosecution.
5.70.010 Definitions.
“Adult bath house” means an establishment or business which provides the service of baths of all kinds, including all forms and methods of hydrotherapy, that is not operated by a medical practitioner or a professional physical therapist licensed by the state of Wisconsin and which establishment provides to its patrons an opportunity for engaging in specified sexual activities as defined in this chapter.
“Adult body painting studio” means an establishment or business wherein patrons are afforded an opportunity to paint images on a body, which is wholly or partially nude. For purposes of this chapter, the adult body-painting studio shall not be deemed to include a tattoo parlor.
“Adult bookstore” means an establishment having as a substantial or significant portion of its stock in trade, for sale, rent, lease, inspection or viewing books, films, video cassettes, magazines or other periodicals which are distinguished or characterized by their emphasis on matters depicting, describing or related to “specified anatomical areas” or “specified sexual activities,” as defined in this section, or an establishment with a segment or section devoted to the sale, rental or display of such material.
“Adult cabaret” means a cabaret, which features dancers, strippers, male or female impersonators, or similar entertainers, performing or presenting material having as its dominant theme, or distinguished or characterized by an emphasis on, any actual or simulated “specified sexual activities” or “specified anatomical areas” as defined in this section.
“Adult entertainment” means any exhibition of any motion pictures, live performances, display or dance of any type, which has as its dominant theme, or is distinguished or characterized by an emphasis on, any actual or simulated “specified sexual activities,” or “specified anatomical areas,” as defined in this section.
“Adult massage parlor” means an establishment or business with or without sleeping accommodations which provides services of massage and body manipulation, including exercises, heat and light treatments of the body, and all forms and methods of physiotherapy, not operated by a medical practitioner or professional physical therapist licensed by the state of Wisconsin and which establishment provides for its patrons the opportunity to engage in “specified sexual activity” as defined in this section.
“Adult mini motion picture theater” means an enclosed building with a capacity of less than 50 persons used for presenting material having as its dominant theme or distinguished or characterized by an emphasis on matters depicting, describing or related to “specified sexual activities,” or “specified anatomical areas,” as defined in this section, for observation by patrons therein.
“Adult modeling studio” means an establishment or business which provides the service of modeling for the purpose of reproducing the human body wholly or partially in the nude by means of photography, painting, sketching, drawing or otherwise.
“Adult motion picture theater” means an enclosed building with a capacity of less than 50 persons used for presenting material having as its dominant theme, or distinguished or characterized by an emphasis on, matters depicting, describing or related to “specified sexual activities,” or “specified anatomical areas,” as defined in this section, for observation by patrons therein.
“Adult novelty shop” means an establishment or business having as a substantial or significant portion of its stock and trade in novelty or other items including movies, tapes, videos, books, etc., which are distinguished or characterized by their emphasis on, or designed for, specified sexual activity as defined herein or stimulating such activity.
“Adult-oriented establishment” shall include, but is not limited to, “adult motion picture theaters,” “adult mini motion picture establishments,” or “adult cabarets.” It further means any premises to which public patrons or members are invited or admitted and which are so physically arranged so as to provide booths, cubicles, rooms, compartments or stalls separate from the common areas of the premises for the purpose 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.
“Entertainer” means a dancer, stripper, impersonator or similar performer referred to in the definition of “adult cabaret.”
“Operator” means any person, association, partnership or corporation operating, conducting, maintaining or owning any adult-oriented establishment.
“Specified anatomical areas” means:
1. Less than completely and opaquely covered human genitals, pubic region, perineum, buttocks, female breasts below the point immediately above the top of the areola;
2. Human male genitals in a discernible turgid state, even if opaquely covered.
“Specified sexual activities” means simulated or actual:
1. Showing of human genitals in a state of sexual stimulation or arousal;
2. Acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sado-masochistic abuse, fellatio or cunnilingus;
3. Fondling or erotic touching of human genitals, pubic region, buttocks or female breasts. (2008 code § 8.18(1))
5.70.020 License.
1. Except as provided in subsection (4) of this section, from and after the effective date of the ordinance codified in this chapter, no adult-oriented establishment shall be operated or maintained in the Town of East Troy without first obtaining a license to operate issued by the Town of East Troy.
2. A license may be issued only for one adult-oriented establishment located at a fixed and certain place. Any person, partnership or corporation which desires to operate more than one adult-oriented establishment must have a license for each.
3. No license or interest in a license may be transferred to any person, partnership or corporation.
4. All adult-oriented establishments existing at the time of the passage of the ordinance codified in this chapter must submit an application for a license within 90 days of the passage of the ordinance. If an application is not received within said 90-day period, then such existing adult-oriented establishment shall cease operations. (2008 code § 8.18(2))
5.70.030 Application for license.
1. Any person, partnership or corporation desiring to secure a license shall make application to the Town Clerk. The application shall be filed in triplicate with and dated by the Town Clerk. A copy of the application shall be distributed promptly to the Town of East Troy Police Department and the applicant.
2. The application for a license shall be upon a form provided by the Town Clerk. An applicant for a license interested directly in the ownership or operation of the business shall furnish the following information under oath:
a. Name and address;
b. Written proof that the individual is at least 18 years of age;
c. The exact nature of the adult-oriented use to be conducted and the address of the adult-oriented establishment to be operated by the applicant;
d. If the applicant is a corporation, the applicant shall specify the name of the corporation, the date and state of incorporation, the name and address of the registered agent and the name and address of any shareholder(s) who individually or jointly owns or controls more than 49 percent of the stock in said corporation and all persons responsible for the management and operation of the adult-oriented establishment;
e. If the applicant is a partnership or joint venture or any other type of organization where two or more persons have a financial interest, the application shall specify the name of the entity, the name and address of any general partner(s) and all persons responsible for the management and operation of the adult-oriented establishment.
3. Within 60 days of receiving an application for a license, the Town Clerk shall notify the applicant whether the application is granted or denied or being held for up to an additional 60 days, unless otherwise agreed to by the applicant.
4. Whenever an application is denied, the Town Clerk shall advise the applicant in writing of the reasons for such action. If the applicant requests a hearing within 10 days of receipt of notification of denial, a public hearing shall be held before the Town Board, pursuant to ETMC 5.70.120.
5. 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 Town Clerk. (2008 code § 8.18(3))
5.70.040 Standards for issuance of license.
1. To receive a license to operate an adult-oriented establishment, an application must meet the following standards:
a. If the applicant is an individual:
i. The applicant shall be at least 18 years of age;
ii. The applicant shall not have been found to have previously violated this chapter or an ordinance of like terms in another jurisdiction or have been arrested or convicted for a violation for which licensure may be denied under Wis. Stat. § 111.335 within five years immediately preceding the date of application.
b. If applicant is a corporation:
i. All persons required to be named under ETMC 5.70.030(2)(d) shall be at least 18 years of age.
ii. No person required to be named under ETMC 5.70.030(2)(d) shall have been found to have previously violated this chapter or any ordinance of like terms in another jurisdiction or have been arrested or convicted for a violation for which licensure may be denied under Wis. Stat. § 111.335, with five years immediately preceding the date of application.
iii. If the applicant is a partnership, joint venture or any other type of organization where two or more persons have a financial interest:
A. All persons required to be named under ETMC 5.70.030(2)(e) shall be at least 18 years of age.
B. No person required to be named under ETMC 5.70.030(2)(e) shall have been found to have violated any provision of this chapter or any ordinance of like terms in another jurisdiction or have been arrested or convicted for a violation for which licensure may be denied under Wis. Stat. § 111.335, within five years immediately preceding the date of application. (2008 code § 8.18(4))
5.70.050 Fees.
A license fee of $500.00 shall be submitted with the application for a license. If the application is denied, one-half of the fee shall be returned. (2008 code § 8.18(5))
5.70.060 Display of license.
1. The license shall be displayed in a conspicuous public place in the adult-oriented establishment.
2. Any licenses of employees or agents that work in said establishment that relate to this license or establishment shall be displayed with the adult establishment license. (2008 code § 8.18(6))
5.70.070 Renewal of license.
1. Every license issued pursuant to this chapter will terminate at the expiration of one year from the date of issuance or the following June 30th, whichever is earlier, unless sooner revoked, and must be renewed before operation is allowed in the following fiscal year. Any operator desiring to renew a license shall make application to the Town Clerk. The application for renewal must be filed not later than 90 days before the license expires. The application for renewal shall be filed in triplicate and dated by the Town Clerk. A copy of the application for renewal shall be distributed promptly to the Town Clerk and to the East Troy Police Department. The Clerk shall require complete information and data, given under oath or affirmation, as is required for an application for a new license.
2. A license renewal fee of $300.00 shall be submitted with the application for renewal. In addition to the renewal fee, a late penalty of $200.00 shall be assessed against an applicant who files for a renewal less than 90 days before the license expires. If the application is denied, one-half of the total fees collected shall be returned. (2008 code § 8.18(7))
5.70.080 Suspension or revocation of license.
1. The Town Board may revoke a license for any of the following reasons:
a. Discovery that false or misleading information or data was given on any application or material facts were omitted from any application.
b. The operator or any employee of the operator violated any provision of this chapter or any rule or regulation adopted by the Town 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 60 days if the Town 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.
c. The operator becomes ineligible to obtain a license.
d. Any cost or fee required to be paid by this chapter is not paid.
e. Any intoxicating liquor or cereal malt beverage is served or consumed on the premises of the adult-oriented establishment, unless the premises have a liquor and cabaret license, and all appropriate zoning and conditional use permits.
2. The Town Board, before revoking or suspending any license or permit, shall give the operator at least 10 days’ written notice of the charges against the operator and the opportunity for a public hearing before the Town Board, pursuant to EMTC 5.70.120.
3. The transfer of a license or any interest in a license shall automatically and immediately revoke the license.
4. Any operator whose license is revoked shall not be eligible to receive a license for one year from the date of revocation. No location of premises for which a license has been issued shall be used as an adult-oriented establishment for six months from the date of revocation of the license. (2008 code § 8.18(8))
5.70.090 Physical layout of adult-oriented establishment.
Any adult-oriented establishment having available for customer, patrons, or members any booth, room or cubicle for a private viewing of any adult entertainment must comply with the following requirements:
1. Access. Each booth, room or cubicle shall be totally accessible from aisle and public areas of the adult-oriented establishment and shall be unobstructed by any door, lock or other control type devices.
2. Construction. Every booth, room or cubicle shall meet the following construction requirements:
a. Each booth, room or cubicle shall be separated from adjacent booths, rooms or cubicles and any nonpublic areas by a wall.
b. Have at least one side totally open to a public lighted aisle so that there is an unobstructed view at all times of anyone occupying same.
c. 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.
d. The floor must be light colored, nonabsorbent, smooth textured and easily cleanable.
e. The lighting level of each booth, room or cubicle, when not in use, shall be a minimum of 10 foot candles at all times, as measured from the floor.
3. Occupants. Only one individual shall occupy a booth, room or cubicle at any time. No occupant of same shall engage in any type of sexual activity, cause any bodily discharge or litter while in the booth. No individuals shall damage or deface any portion of the booth. (2008 code § 8.18(9))
5.70.100 Responsibilities of the operator.
1. 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.
2. Any act or omission of any employee constituting a violation of the provisions of this chapter shall be deemed that act or omission of the operator for purpose of determining whether the operator’s license shall be revoked, suspended or renewed.
3. No operator or employee of an adult-oriented establishment shall allow any minor to loiter around or to frequent an adult-oriented establishment or allow any minor to view adult entertainment as defined herein.
4. The operator shall maintain the premises in a clean and sanitary manner at all times.
5. The operator shall maintain at least 10 foot candles of light in the public portions of the establishment, including aisles, at all times. However, if a lesser level of illumination in the aisles shall be necessary to enable a patron to view the adult entertainment in a booth, room or cubicle adjoining an aisle, a lesser amount of illumination may be maintained in such aisles; provided, however, at no time shall there be less than one foot candle of illumination in said aisles, as measured from the floor.
6. The operator shall insure compliance of the establishment and its patrons with provisions of this chapter.
7. No operator shall suffer, allow or permit any employee or performer and no employee or performer shall intentionally touch the clothed or unclothed body of any patron or customer at the establishment premises, at any point below the neck and above the knee of the person, excluding that part of the person’s arm below the wrist, commonly referred to as the hand. It shall further be unlawful for any patron or customer in or upon the establishment premises, to touch any portion of the clothed or unclothed body of an operator, employee or performer below the neck and above the knee, excluding the part of the operator’s employee’s or performer’s arm below the wrist.
8. Display of Ordinance. The ordinance codified in this chapter shall be displayed on the exterior of every licensed premises with such ordinance to be clearly visible to patrons entering the premises from the outside and shall be posted within eight feet of any exterior entryway. The ordinance shall also be placed in each room and any enclosed location or booth within an establishment licensed under this section. The Town Board may, by formal motion or resolution, authorize the posting of an abbreviated form of this chapter, so as to notify patrons, employees and operators of the regulations stated in this chapter. The exterior signs shall be in block letters, written in black on a white background surface, and be no less than one inch in size. The interior signs shall be of a similar type and color with a minimum height of one-half-inch each. Upon application of the owner, abbreviated versions of this chapter may be posted or other amendments to this chapter may be approved, consistent with the intent of this chapter in keeping affected persons apprised of the requirements of this chapter. (2008 code § 8.18(10))
5.70.110 Registration of entertainers.
1. Any person desiring to provide entertainment in the Town of East Troy as an entertainer at any facility governed by Chapter 5.05 ETMC or this chapter, before engaging in any such entertainment shall register at the Town of East Troy Police Department and pay a fee of $25.00. The individual shall provide full name and permanent address, date and place of birth, information concerning height, weight, hair and eye color, gender and race, two forms of identification with at least one form being photo identification confirming such information, fingerprints, state name and booking agent if any, accompanied by a fee of $25.00. Such registration shall be valid for one year from date of registration, or if employed by an establishment holding a liquor license, on June 30th following issuance.
2. Upon registration, the Police Department will provide to each registered entertainer an identification card containing the individual’s photograph. Upon request of any law enforcement officer, this identification card shall be made available for inspection at any time the individual is performing duties upon the premises. A duplicate original shall be displayed at the licensed premises.
3. No person shall permit entertainment by an individual subject to this chapter without prior registration as required in subsection (1) of this section. (2008 code § 8.18(11))
5.70.120 Administrative procedure and review.
The provisions of Wis. Stat. Ch. 227 pertaining to contested cases shall govern the administrative procedure and review regarding the granting, denial, renewal, nonrenewal, revocation or suspension of a license. (2008 code § 8.18(12))
5.70.130 Exclusions.
All private schools, public schools, charter schools, and home-based private education programs as defined in Wis. Stat. Ch. 115, located within the Town of East Troy are exempt from obtaining a license hereunder when instructing pupils in professional nursing care or human growth and development as a part of its curriculum. All licensed medical care or professional nursing care facilities located within the Town of East Troy, and agents of the Town of East Troy and Walworth County Health Department, are exempt from obtaining a license hereunder when engaged in the providing of medical care or human growth and development education. (Ord. 2010-18 § 1. 2008 code § 8.18(13))
5.70.140 Penalties and prosecution.
In addition to all other remedies available to the Town in equity and under law, any person who shall violate any provision of this chapter or who shall operate after his license is revoked, shall be subject to penalty, on a per diem or per occurrence basis, as provided in the general penalty provisions of the East Troy municipal ordinances. Any violation of this chapter is deemed to be a public nuisance and the Town may seek to enjoin or otherwise obtain relief and remedy of such violation in addition to any forfeiture action. (2008 code § 8.18(14))
5.70.150 Severability.
The several sections of this chapter are declared to be severable. If any section, provision, phrase, word or any portion of this chapter shall be declared by a decision of a court of competent jurisdiction to be invalid, unlawful or unenforceable, such decision shall apply only to the specific section, word, phrase, provision or portion thereof directly specified in the decision, and not affect the validity of all other provisions, words, sections or portions thereof of the chapter which shall remain in full force and effect. (2008 code § 8.18(15))