(A) Purpose and findings.
(1) It is the purpose of this section to regulate sexually-oriented businesses in order to promote the health, safety, morals and general welfare of the citizens of the village, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually- oriented businesses within the village. The provisions of this section have neither the purpose nor 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 section 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. Neither is it the intent nor effect of this section to condone or legitimize the distribution of obscene material.
(2) Based on evidence concerning the adverse secondary effects of adult uses on the community presented in reports made available to the Village Board, and on findings incorporated in the cases of Young v. American Mini Theaters, 427 U.S. 50 (1976); Northend Cinema, Inc. v. City of Seattle, 585 P.2d 1153 (1978); Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); and City of Erie v. Pap’s A.M., 120 S. Ct. 1382 (2000), and on studies in other communities, including Arlington, Texas; Harries County, Texas; and St. Croix County, Wisconsin, the Village Board finds the following:
(a) Sexually-oriented businesses lend themselves to ancillary unlawful and unhealthy activities that may be uncontrolled by the operators of the establishments. There are no sexually-oriented businesses now located within the village limits, nor are there any applications for such businesses pending, nor is there presently any mechanism to make the owners of these establishments responsible for the activities that may occur on their premises in the event a sexually-oriented business, pursuant to this section, is located within the village;
(b) Certain employees of sexually-oriented business, defined in division (C) below, engage in higher incidents of certain types of illicit sexual behavior than employees of other establishments;
(c) Sexual acts, including masturbation and oral and anal sex occur at sexually- oriented businesses, especially those which provide private or semi-private booths or cubicles for viewing films, videos or live sex shows;
(d) Offering and providing such space encourages such activities, which creates unhealthy conditions;
(e) Persons frequent certain adult theaters, adult arcades and other sexually- oriented businesses for the purpose of engaging in sex within the premises of such sexually-oriented businesses;
(f) Communicable diseases may be spread by activities occurring in sexually- oriented businesses, including, but not limited to, syphilis; gonorrhea; human immuno deficiency virus infection (HIV-Aids); genital herpes; hepatitis B, non A, non B; amebiasis; salmonella infections; and shigella infections;
(g) The findings noted in divisions (A)(2)(a) through (A)(2)(f) above raise substantial governmental concerns;
(h) Sexually-oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns;
(i) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the sexually-oriented businesses. Further, such a licensing procedure will place an incentive on the operators to see that the sexually- oriented business is run in a manner consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of the village. 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;
(j) Prohibiting 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;
(k) 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;
(l) 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;
(m) In the prevention of the spread of communicable diseases, it is desirable to obtain a limited amount of information regarding certain employees who may engage in the conduct which this section is designed to prevent, or who are likely to be witnesses to such conduct;
(n) The fact that an applicant for an adult use license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this section;
(o) The barring of such individuals from the management of adult uses for a period of years serves as a deterrent to, and prevents conduct which leads to, the transmission of sexually transmitted diseases; and
(p) The general welfare, health, morals and safety of the citizens of the village will be promoted by the enactment of this section.
(B) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ADULT BOOKSTORE. An establishment having a substantial or significant portion of its sales or stock in trade, books, magazines, films for sale or for viewing on premises by use of motion picture devices or by coin operated means, and periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas; or an establishment with a segment or section devoted to the sale or display of such materials; or an establishment that holds itself out to the public as a purveyor of such materials based upon its signage, advertising displays, actual sales, presence of video preview or coin operated booths, exclusion of minors from the establishment’s premises or any other factors showing the establishment’s primary purpose is to purvey such material.
ADULT ENTERTAINMENT CABARET. A public or private establishment which features topless dancers, strippers, male or female impersonators; not infrequently features entertainers who display specified anatomical areas; or features entertainers who, by reason of their appearance or conduct, perform in a manner which is designed primarily to appeal to the prurient interest of the patron or entertainers who engage in or are engaged in explicit simulation of specified sexual activities.
ADULT MINI-MOTION PICTURE THEATER. An enclosed building or drive-in theater with a capacity for less than 50 persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.
ADULT MOTION PICTURE THEATER. A building or area used for presenting materials distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.
BODY SHOP or MODEL STUDIO. Any public or private establishment which describes itself as a body shop or model studio, or where for any form of consideration or gratuity, figure models who display “specified anatomical areas” are provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by persons paying such consideration or gratuity, or where for any form of consideration or gratuity, nude and semi-nude dancing, readings, counseling sessions, body painting and other activities that present materials distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas are provided for observation by or communication to persons paying such consideration or gratuity.
SPECIFIED ANATOMICAL AREAS.
(a) Less than completely and opaquely covered: human genitals; pubic region; buttock; female breasts below a point immediately above the top of the areola; and
(b) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES. Human genitals in the state of sexual stimulation or arousal; acts of human masturbation, sexual intercourse or sodomy; and fondling or other erotic touching of human genitals, pubic region, buttock or female breasts.
(C) Adult uses enumerated. The following shall be considered adult uses for the purpose of this section:
(1) Adult book store;
(2) Adult motion picture theater;
(3) Adult mini motion picture theater;
(4) Adult entertainment cabaret;
(5) Body shop or model studio; and
(6) Other uses similar to those in divisions (C)(1) through (C)(5) above.
(D) Limitations on adult uses. Adult uses shall be permitted subject to the following restrictions.
(1) An adult use shall not be allowed within 500 feet of another existing adult use.
(2) An adult use shall not be located within 700 feet of:
(a) Any residential zoning district;
(b) A church, synagogue, mosque, temple or building, which is used primarily for religious worship and related religious activities;
(c) A public or private educational facility, including, but not limited to, child day care facilities, nursery schools, pre-schools, kindergartens, elementary schools and private schools. SCHOOL includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school;
(d) A public park or recreational area which has been designated for park or recreational activities, including, but not limited to, a park, basketball or tennis courts or other similar public land within the village which is under the control, operation or management of the village; or
(e) An entertainment business which is oriented primarily towards children or family entertainment.
(3) An adult use shall not be located in a building structure which contains another business that sells or dispenses in some manner alcoholic beverages.
(4) Alcoholic beverages shall not be possessed nor consumed on the lot or parcel, or within the structure, containing the adult use.
(E) Measurement of distance. For the purposes of this section, measurements shall be made in a straight line, without regard to intervening structures or objects, from the nearest property line of the lot or parcel containing the adult use to the nearest property line of the premises listed in division (D) above.
(F) License required, filing of application, filing fee.
(1) It shall be unlawful for any person to engage in, conduct, be employed by or to permit to be engaged in, conducted or carried on, in or upon any premises in the village the operation of an adult use as herein defined, without first having obtained a separate license for such adult use from the Mayor of the village.
(2) Every applicant for a license, new or renewal, to maintain, operate, conduct or be employed by an adult use shall file a completed, notarized application in duplicate under oath with the Village Clerk upon a form provided by the Village Clerk. The applicant for a license to maintain, operate or conduct the adult use shall pay with the submission, a non-refundable filing fee of $500 to the Village Clerk; every applicant for a license to be employed by an adult use shall submit, with the completed application, a non-refundable filing fee of $300 to the Village Clerk. The Village Clerk shall issue a receipt for all such filing fees which shall be attached to the application filed with the Mayor.
(3) Within 30 days after receiving the application, the Mayor shall notify the applicant that his or her application is granted, denied or held for further investigation. Such additional investigation shall not exceed an additional 30 days unless otherwise agreed to by the applicant. Upon the conclusion of such additional investigation, the Mayor shall advise the applicant in writing whether the application is granted or denied.
(4) Whenever an application is denied or held for further investigation, the Mayor shall advise the applicant in writing of the reasons for such action.
(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 inspection or investigation required by this chapter shall constitute an admission by the applicant that he or she is ineligible for such permit and shall be grounds for denial thereof by the Mayor.
(G) Contents of application for license. The term APPLICANT, as used in this section, shall include any partner or limited partner of a partnership applicant and any officer or director of a corporate applicant and any stockholder owning more than 10% of the stock of a corporate applicant, another person who is interested directly in the ownership or operation of the business or person seeking employment by a business conducting an adult use; an applicant for a license shall, furnish the following information under oath:
(1) Full true name and any other names used in the preceding five years;
(2) Written proof that the individual is at least 18 years of age;
(3) Name and designated address of the business for which the license is sought;
(4) The adult uses to be conducted at the designated address;
(5) A set of fingerprints of the applicant and the applicant’s Social Security number, both to be used for conducting necessary background checks pursuant to this section;
(6) A picture identification document issued by a governmental agency;
(7) The issuing jurisdiction and the effective dates of any license or permit held by the applicant relating to a sexually-oriented business, and whether any such license or permit has been denied, revoked or suspended, and, if so, the reason or reasons therefor; and
(8) The information provided by an applicant in connection in connection with the application for a license under this section shall be maintained by the village on a confidential basis, and may be disclosed only to other governmental agencies in connection with a law enforcement or public safety function or as and may otherwise be required by law or a court order.
(H) Exhibition of sexually explicit films, videos or live entertainment in viewing rooms. A person who operates, or causes to be operated, an adult use 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:
(1) Provide, with the application for a license of those premises, a diagram of the premises showing a plan specifying the location of one or more manager 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 station may not exceed 32 square feet of floor area. The diagram need not be professionally prepared but shall 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;
(2) The licensee of the premises shall ensure that at least one licensed employee is on duty and situated in each manager’s station, at all times, any patron is present inside the premises;
(3) The interior of the premises shall be configured to provide 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. The view required in this division (H)(3) must be by direct line of sight from the manager’s station;
(4) The licensee shall ensure that the view area specified in division (H)(3) above is unobstructed by any item or material 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;
(5) No viewing room may be occupied by more than one person at any time;
(6) 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-foot candles as measured at the floor level;
(7) The licensee shall ensure that the illumination described above is maintained, at all times, that any patron is present in the premises;
(8) The licensee shall not permit any opening of any kind to exist between viewing rooms or booths;
(9) The licensee shall, during each business day, regularly inspect the walls between the viewing booths to determine if any openings or holes exist;
(10) The licensee shall cause all floor coverings in viewing booths to be non-porous, easily cleanable surfaces, with no rugs or carpeting; and
(11) The licensee shall cause all wall surfaces and ceiling surfaces in viewing booths to be constructed of, or permanently covered by, non-porous, easily cleanable material. No wood, plywood, composition board or other porous material shall be used within 48 inches of the floor.
(I) Issuance of adult use license.
(1) The Mayor shall issue a license to maintain, operate, conduct an adult use or be employed by an adult use unless he or she finds:
(a) That the applicant is under the age of 18 years or under any legal disability;
(b) That the applicant is a person who is not of good moral character and reputation in the community in which he or she resides;
(c) That the applicant has been convicted, by plea or finding of guilty, of a sexually related crime; or
(d) An applicant has falsely answered a question or request for information on the application form.
(2) The license, if granted, shall state on its face the name of person or persons to whom it is granted, the number of the license issued to that applicant, the expiration date and, if the license is for a sexually-oriented business, the address of the sexually-oriented business. A sexually- oriented business employee license shall contain a photograph of the licensee. A sexually-oriented business employee shall keep the employee’s license on his or her person or on the premises where the licensee is then working or performing, and shall produce such license for inspection upon request by a law enforcement officer.
(3) Every adult use license issued pursuant to this section will terminate at the expiration of one year from the date of its issuance unless sooner revoked.
(J) Suspension or revocation of license for adult use.
(1) Any license issued for an adult use may be revoked or suspended by the Mayor if the Mayor shall find:
(a) That the licensee has violated any of the provisions of this chapter regarding adult uses;
(b) Refused to allow an inspection of the sexually-oriented business premises as authorized hereunder;
(c) That the licensee has knowingly furnished false or misleading information or withheld relevant information on any application for any license or permit required by this chapter or knowingly caused or suffered another to furnish or withhold such information on his or her behalf;
(d) A licensee has knowingly allowed possession, use or sale of controlled substances on the premises;
(e) A licensee has knowingly allowed prostitution on the premises;
(f) A licensee has knowingly operated the sexually-oriented business during the period of time when the licensee’s license was suspended;
(g) A licensee has knowingly allowed any sexual act to occur on the licensed premises;
(h) The fact that a conviction is being appealed shall have no effect on the revocation of the license; or
(i) A licensee has knowingly allowed the possession or consumption of alcoholic beverages on the lot or parcel, or within the structure, containing the adult use.
(2) The Mayor, before revoking or suspending any license, shall give the licensee at least ten days’ written notice of the charges against him or her. The licensee may, within five days of receipt of said notice, request a public hearing before the Mayor, at which time the licensee may present evidence bearing upon the question. Any notice by the Mayor may be delivered personally to the licensee or be posted on the premises of the establishment being used as an adult use.
(3) When and after the notice and hearing procedure described herein, the Mayor 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 revocation becomes effective. If subsequent to revocation the Mayor finds that the basis for revocation found herein has been corrected or abated, the applicant shall be granted a license if at least 90 days have elapsed since the date the revocation became effective.
(4) The licensee shall be responsible for the acts of his or her agents, servants and employees; provided, however, that in the case of a first offense by a licensee where the conduct was solely that of an employee, the penalty shall not exceed a suspension of 30 days if the Mayor shall find that the licensee had no actual or constructive knowledge of such violation and could not, by the exercise of due diligence, have had such actual constructive knowledge.
(K) Exterior display. No adult use shall be conducted in any manner that permits the observation of any material depicting, describing or relating to specified sexual activities or specified anatomical areas by display, decoration, sign, show window or other opening from any public way or from any property not licensed as an adult use.
(L) Display of license and permit. Every licensee shall display a valid license in a conspicuous place within the adult use business so that it may be readily seen by persons entering the premises.
(M) Employment of persons under age of 18 prohibited. It shall be unlawful for any adult use licensee, its manager or employee to employ, in any capacity within the adult business, any person who is not at least 18 years of age.
(N) Inspection. For the purpose of ensuring compliance with this section, an applicant, operator or licensee shall permit law enforcement officers and any other federal, state, county or village agency in the performance of any function connected with the enforcement of this chapter normally and regularly conducted by such agencies, to inspect, at any time, the businesses occupied or open for business, those portions of the premises of a sexually-oriented business which patrons or customers are permitted to occupy.
(O) Illegal activities on premises. No licensee or any officer, associate, member, representative, agent or employee of such licensee shall engage in any activity or conduct or permit any other person to engage in any activity or conduct in or about the licensed premises which is prohibited by an ordinance of the village or law of the state or of the United States.
(P) Hours of operation. No sexually-oriented business, as defined herein, may remain open at any time between the hours of 1:00 a.m. and 1:00 p.m.
(Prior Code, § 154.026) (Ord. 02-04-02, passed 4-8-2002) Penalty, see § 154.999