Chapter 5

ADULT-ORIENTED ESTABLISHMENTS AND CLUBS

[HISTORY: Adopted by the Common Council of the City of Gillett as §§ 7.05 and 7.08 of the former Municipal Code. Amendments noted where applicable.]

GENERAL REFERENCES

Intoxicating liquor — See Ch. 14.

Nuisances — See Ch. 15.

Peace and good order — See Ch. 16.

Zoning — See Ch. 21.

ARTICLE I

Adult-Oriented Establishments

§ 5-1.  Purpose, authority and findings.

A.     It is a lawful purpose of the Common Council to enact regulatory ordinances protecting and promoting the general welfare, health and safety of its citizens.

B.      The City is empowered to enact such ordinances pursuant to the Constitution and laws of the State of Wisconsin.

C.     The Common Council deems it necessary to provide for licensing and regulation of adult-oriented establishments, including but not limited to adult bookstores, adult mini motion-picture theaters, adult motion-picture theaters and adult cabarets.

D.     Many adult-oriented establishments install booths with doors in which patrons can view adult-oriented movies or videotape or film or view other forms of adult entertainment.

E.      It is well known and has been found that viewing booths in adult-oriented establishments have been and are being used by patrons of said establishments for engaging in sexual acts, particularly between males, including but not limited to intercourse, sodomy, oral copulation and masturbation, resulting in unsafe and unsanitary conditions in said booths. AIDS is a sexually transmitted disease which destroys the body's immune system, is always fatal and has no known cure. The viral agents responsible for AIDS and other sexually transmitted diseases have all been isolated at one time or another from semen.

§ 5-2.  Definitions.

For the purpose of this article, the terms used shall be defined as follows:

ADULT BOOKSTORE — An establishment having as its stock-in-trade, for sale, rent, lease, inspection or viewing, books, films, videocassettes, magazines or other periodicals which are distinguished or characterized by their emphasis on matters depicting, describing or relating to specific sexual activities or specified anatomical areas, as defined below, and, in conjunction therewith, have facilities for the presentation of adult entertainment, as defined below, including adult-oriented films, movies or live performances for observation by patrons therein.

ADULT CABARET — A cabaret which features topless dancers, strippers, male or female impersonators or similar entertainers.

ADULT ENTERTAINMENT — Any exhibition of any motion picture, live performance, display or dance of any type which has as its dominate theme, or is distinguished or characterized by an emphasis on, any actual or simulated specified sexual activities or specified anatomical areas, as defined below, or the removal of articles of clothing or appearing partially or totally nude.

ADULT MINI MOTION-PICTURE THEATER — An enclosed building with a capacity of fewer than 50 persons used for presenting material having as its dominant theme, or distinguished or characterized by an emphasis on, matters depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined below, for observation by patrons therein.

ADULT MOTION-PICTURE THEATER — An enclosed building with a capacity of 50 or more persons used for presenting material having as its dominant theme, or distinguished or characterized by an emphasis on, matters depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined below, for observation by patrons therein.

ADULT-ORIENTED ESTABLISHMENT — Includes, but is not limited to, adult bookstores, adult motion-picture theaters, adult mini motion-picture theaters or adult cabarets and further means any premises to which public patrons or members are invited or admitted and which are so physically arranged as to provide booths, cubicles, rooms, compartments or stalls separate from the common 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.

COMMON COUNCIL — The Common Council of the City of Gillett.

OPERATOR — Any person, partnership or corporation operating, conducting, maintaining or owning any adult-oriented establishment.

SPECIFIED ANATOMICAL AREA

A.     Less than completely and opaquely covered human genitals, pubic region, buttocks and female breasts below a point immediately above the top of the areola.

B.      Human male genitals in a discernible turgid state, even if opaquely covered.

SPECIFIED SEXUAL ACTIVITIES — Simulated or actual:

A.     Showing of human genitals in a state of sexual stimulation or arousal.

B.      Acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio or cunnilingus.

C.     Fondling or erotic touching of human genitals, pubic region, buttocks or female breasts.

§ 5-3.  License required.

A.     No adult-oriented establishment shall be operated or maintained in the City without first obtaining a license to operate, issued by the City.

B.      A license may be issued only for one adult-oriented establishment located at a fixed and certain place. Any person, partnership or corporation who or which desires to operate more than one adult-oriented establishment must have a license for each.

C.     No license or interest in a license may be transferred to any person, partnership or corporation.

§ 5-4.  Application for license.

A.     Any person, partnership or corporation desiring to secure a license shall make application to the Clerk/Treasurer. The application shall be filed in triplicate and dated by the Clerk/Treasurer. A copy of the application shall be distributed promptly by the Clerk/Treasurer to the Police Department and to the applicant.

B.      The application for a license shall be upon a form provided by the Clerk/Treasurer. An applicant for a license interested directly in the ownership or operation of the business shall furnish the following information under oath:

(1)    Name and permanent address, telephone number and temporary address, if any.

(2)    Age, height, weight and color of hair and eyes.

(3)    Written proof that the individual is at least 18 years of age.

(4)    The address of the adult-oriented establishment to be operated by the applicant.

(5)    If the applicant is a corporation, the application 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 all shareholders owning more than 5% of the stock in said corporation and all officers and directors of the corporation.

C.     Within 21 days of receiving an application for a license, the Clerk/Treasurer shall notify the applicant whether the application is granted or denied.

D.     Whenever an application is denied, the Clerk/Treasurer shall advise the applicant, in writing, of the reason for such action. If the applicant requests a hearing within 10 days of receipt of notification of denial, a public hearing shall be held thereafter before the Common Council, as hereinafter provided.

E.      Failure or refusal of the applicant to give any information relevant to the investigation of the application or his/her refusal or failure to appear at any reasonable time and place for examination under oath regarding said application or his/her refusal to submit to or cooperate with any investigation required by this article shall constitute an admission by the applicant that he/she is ineligible for such license and shall be grounds for denial thereof by the Clerk/Treasurer.

§ 5-5.  Standards for issuance of license.

To receive a license to operate an adult-oriented establishment, an applicant must meet the following standards:

A.     If the applicant is an individual:

(1)    The applicant shall be at least 18 years of age.

(2)    The applicant shall not have been found to have previously violated this article within five years immediately preceding the date of the application.

B.      If the applicant is a corporation, no officers, directors and stockholders required to be named under § 5-4B above shall have been found to have previously violated this article within five years immediately preceding the date of the application.

C.     If the applicant is a partnership, joint venture or any other type of organization where two or more persons have a financial interest:

(1)    All persons having a financial interest in the partnership, joint venture or other type of organization shall be at least 18 years of age.

(2)    No person having a financial interest in the partnership, joint venture or other type of organization shall have been found to have violated any provision of this article with five years immediately preceding the date of the application.

D.     For any applicant:

(1)    The application cannot contain any material omission or materially inaccurate statement.

(2)    The applicant shall not have been convicted of a crime, statutory violation or ordinance violation within the last five years, the nature of which is directly related to the applicant's fitness to engage in said adult-oriented establishment.

§ 5-6.  License fee.

A license fee as set by the Common Council[1] shall be submitted with the application for a license. If the application is denied, 1/2 of the fee shall be returned.

§ 5-7.  Display of license.

The license shall be displayed in conspicuous public place in the adult-oriented establishment.

§ 5-8.  Term of license; renewal.

A.     Every license issued pursuant to this article shall terminate on June 30 of each year unless sooner revoked and must be renewed before operation is allowed. Any operator desiring to renew a license shall make application to the Clerk/Treasurer. The application for renewal must be filed not later than 45 days before the license expires. The application for renewal shall be filed with and dated by the Clerk/Treasurer. A copy of the application for renewal shall be distributed promptly by the Clerk/Treasurer to the Police Department and to the operator. The application for renewal shall be upon a form provided by the Clerk/Treasurer and shall contain such information and data, given under oath or affirmation, as is required for an application for a new license.

B.      A license renewal fee as set by the Common Council[2] shall be submitted with the application for renewal. In addition to the renewal fee, a late penalty as set by the Common Council shall be assessed against an applicant who files for a renewal less than 45 days before the license expires. If the application is denied, 1/2 of the total fees collected shall be returned.

C.     If the Police Department is aware of any information bearing on the operator's qualifications, that information shall be filed in writing with the Clerk/Treasurer.

§ 5-9.  Revocation of license.

A.     The Common Council shall revoke a license for any of the following reasons:

(1)    Discovery that false or misleading information or data was given on any application or material facts were omitted from any application.

(2)    The operator or any employee of the operator violates any provision of this article or any rule or regulation adopted by the Common Council pursuant to this article; provided, however, that in the case of a first offense by an operator where the conduct was solely that of an employee, the penalty shall not exceed a suspension of 30 days if the Common Council shall find that the operator had no actual or constructive knowledge of such violation and could not, by the exercise of due diligence, have had such actual or constructive knowledge.

(3)    The operator becomes ineligible to obtain a license.

(4)    Any cost or fee required to be paid by this article is not paid.

(5)    Any intoxicating liquor or fermented malt beverage is served or consumed on the premises of the adult-oriented establishment.

B.      The Common Council, before revoking or suspending any license, shall give the operator at least 10 days' written notice of the charges against him and the opportunity for a public hearing before the Common Council, as hereinafter provided.

C.     The transfer of a license or any interest in a license shall automatically and immediately revoke the license.

D.     Any operator whose license is revoked shall not be eligible to receive a license for one year from the date of revocation. No location or 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.

§ 5-10.  Physical layout.

Any adult-oriented. establishment having available for customers, patrons or members any booth, room or cubicle for the private viewing of any adult entertainment must comply with the following requirements.

A.     Access. Each booth, room or cubicle shall be totally accessible to and from aisles and public areas of the adult-oriented establishment and shall be unobstructed by any door lock or other control-type devices.

B.      Construction. Every booth, room or cubicle shall meet the following construction requirements:

(1)    Each booth, room or cubicle shall be separated from adjacent booths, rooms and cubicles and any nonpublic areas by a wall.

(2)    Each booth, room or cubicle shall have at least one side totally open to a public, lighted aisle so that there is an unobstructed view at all times of anyone occupying the same.

(3)    All walls should be solid and without any openings, extended from the floor to a height of not less than six feet and be light colored, nonabsorbent, smooth textured and easily cleanable.

(4)    The floor must be light colored, nonabsorbent, smooth textured and easily cleanable.

(5)    The lighting level of each booth, room or cubicle, when not in use, shall be a minimum of 10 footcandles at all times, as measured from the floor.

C.     Occupants. Only one individual shall occupy a booth, room or cubicle at any time. No occupant of the same shall engage in any type of sexual activity, cause any bodily discharge or litter while in the booth. No individual shall damage or deface any portion of the booth.

§ 5-11.  Responsibilities of operator.

A.     Every act or omission by an employee constituting a violation of the provisions of this article 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.

B.      Any act or omission of any employee constituting a violation of the provisions of this article shall be deemed the act or omission of the operator for purposes of determining whether the operator's license shall be revoked, suspended or renewed.

C.     No 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.

D.     The operator shall maintain the premises in a clean and sanitary manner at all times.

E.      The operator shall maintain at least 10 footcandles of light in the public portions of the establishment, including aisles, at all times. However, if a lesser level of illumination in the aisles shall be necessary to enable a patron to view the adult entertainment in a booth, room or cubicle adjoining an aisle, a lesser amount of illumination may be maintained in such aisles; provided, however, that at no time shall there be less than one footcandle of illumination in said aisles, as measured from the floor.

F.      The operator shall ensure compliance of the establishment and its patrons with the provisions of this article.

§ 5-12.  Administrative procedure and review.

This Code and the Wisconsin Statutes shall govern the administrative procedure and review regarding the granting, denial, renewal, nonrenewal, revocation or suspension of a license.[3]

§ 5-13.  Exclusions.

All private schools and public schools, as defined in Ch. 115, Wis. Stats., located within the City are exempt from obtaining a license hereunder when instructing pupils in sex education as part of their curriculum.

§ 5-14.  Violations and penalties.

Any person who shall violate any provision of this article or who shall fail to obtain a license as required hereunder, or who shall operate after his license is revoked, shall be subject to a penalty as provided Chapter 1, Article II of this Code.

ARTICLE II

Private Clubs

§ 5-15.  Definitions.

As used in this article, the following terms shall have the meanings indicated:

PRIVATE CLUB — Any association, person(s), firm or corporation, key club, bottle club, locker club, pool club, or any other kind of club or association excluding the general public from its premises or place of meeting, or congregating, or operating, or exercising control over any other person where persons are permitted to drink alcoholic beverages other than in a private home.

STOCKHOLDER — Applies only to those stockholders who receive, or whose rights as a stockholder are ordinarily intended to cause him to receive, a financial return on his stock.

§ 5-16.  Classification.

For the purpose of license and regulation, private clubs shall be divided into three classes:

A.     Class "A" shall include those clubs, associations or corporations, falling within the general term of "private club" as above defined, which are charitable, educational, or recreational and which are not operated for profit and which hold and maintain an income tax exempt status under the regulations and rulings of the Internal Revenue Service of the United States.

B.      Class "B" shall include restaurants open to the general public but maintaining a private room opening into the restaurant, which private room is used as a private club as defined herein. No food may be served in said private room nor dancing permitted in said private room or in the adjacent restaurant.

C.     Class "C" shall include any other private club as defined herein.

§ 5-17.  License required.

It shall be unlawful for any association, person, firm or corporation to maintain or operate any private club after the enactment of this article without first paying in advance to the Clerk/Treasurer a license fee hereinafter prescribed and making application for a license therefor on forms provided by the Clerk/Treasurer and receiving a license from the Clerk/Treasurer.

§ 5-18.  Articles of incorporation.

Any applicant for a license for a private club shall file with the Clerk/Treasurer true copies in duplicate of the articles of incorporation and bylaws, if the applicant is a corporation; true copies of any articles of association and bylaws, if the applicant is an association; and a list of the officers, directors, owners and managers of such club and stockholders.

§ 5-19.  Change of officers.

If changes occur in the aforesaid officers, directors, stockholders, owners or managers of any private club after filing of their names with the Clerk/Treasurer as aforesaid at any time during the year, said applicant shall furnish such changes in writing in duplicate on the forms provided by said Clerk/Treasurer within one week after their occurrence.

§ 5-20.  Investigations.

The Clerk/Treasurer shall forward one copy of said list of officers, directors, stockholders, owners and managers to the Chief of Police, who shall cause a check to be made of any criminal record of any of the persons named therein and report in writing thereafter to said Clerk/Treasurer as to his findings.

§ 5-21.  Requirements for Class "B" and "C" licenses.

Applicants for Class "B" or "C" licenses shall be either corporations or associations incorporated in this state with written articles of association and bylaws. Said articles or bylaws shall provide for regular election of officers or directors.

§ 5-22.  Qualifications of officers.

No person shall be eligible for election or to serve or act in any private club subject to this article, as an officer, director, stockholder, owner or manager, or to direct any policy thereof who has been convicted of any felony or of violating any of the gambling or prohibitory laws of the state or any other state, or the United States, including those heretofore in effect, or who has been convicted of violation of any of the gambling or prohibitory liquor ordinances of any city in the state; provided, however, that any person holding such a position in any private club licensed under this article and operating at the time of its enactment shall not be subject to this section as to the position he holds at the time of such enactment.

§ 5-23.  Compliance with statutes.

It shall be unlawful for any private club or any officer, director, stockholder, owner or manager thereof licensed pursuant to the provisions of this article to violate any of the provisions of the State Alcoholic Beverages Law[4] or any of the gambling laws of the state, or knowingly permit the violation thereof on any premises subject to the control of said private club.

§ 5-24.  Location restrictions.

No private club as defined herein shall be licensed to operate within 300 feet of any church, school, day-care or residential property, measured from the nearest point of such church, school, day-care or residential land on which there is located a building in normal use for such purposes to the nearest point of the proposed private club building, in the normal and usual course of travel; provided, however, that the limitations of this section shall not apply to a private club which is in operation at the time of the passage of this article even though it is nearer a church, school, day-care or residential property than 300 feet.

§ 5-25.  Rental or lease agreement.

No private club licensed pursuant to the provisions of this article shall have or make any rental or lease agreement with any other person, firm, trust, estate, corporation or other entity providing for any rentals based upon percentage of profit of the private club, but any rentals paid or to be paid shall be on a fixed basis without relation to any income, volume or profit of said private club.

§ 5-26.  Right of entry and inspection.

The right of entry and inspection of any premises subject to the control of any private club by any officer or agent of any department of the City charged with the enforcement of the provisions hereof shall be a condition on which every license shall be issued, and the application for and the acceptance of any license hereunder shall conclusively be deemed to be consent of the applicant and licensee to such entry and inspection.

§ 5-27.  Membership requirements.

Membership in any private club subject to this article shall be regulated by articles or bylaws. Upon election to membership in any private club, a membership card shall be issued to the member and his name enrolled on a list of members, which shall be kept on the premises of every private club and be subject to inspection at all times. Said list of members shall show the full name of the member, his address and the dates of his application for membership and election to membership. The bylaws or articles may provide for temporary membership for nonmembers. A copy of said temporary membership shall be filed with the Clerk/Treasurer.

§ 5-28.  Minors.

It shall be unlawful to permit any person under the age of 21 years in or on that part of the premises subject to the control of any private club where persons are permitted to drink alcoholic beverages unless accompanied by and in the custody of one of his parents or guardians.

§ 5-29.  Branch locations; transfer of license.

A separate license must be obtained for each branch established or separate place operated by a private club, and each license shall authorize the operation of a private club only at the location described in such license and in conformity with the ordinances of the City or the laws of the state and the United States, and no license shall be transferable to another person, firm, association or corporation or to any other location.

§ 5-30.  Posting of license.

Every private club having a license under the provision of this article shall place and exhibit it in some conspicuous place in the premises licensed and shall produce or exhibit the same when applying for a renewal thereof.

§ 5-31.  Closing hours.

Every private club having a license under the provisions of this article shall close and remain closed, permitting no members other than employees to remain on the premises of the club, between the hours of 2:00 a.m. and 6:00 a.m. of each day.

§ 5-32.  Compliance with ordinances.

Every private club licensed or any applicant for a private club license pursuant to this article shall be subject to all other ordinances of the City, including but not limited to the applicable provisions of the building code, fire prevention code, health regulations, zoning ordinances, food handling ordinances and restaurant ordinances.

§ 5-33.  Issuance of license; fee; expiration of license.

The Clerk/Treasurer shall cause the Chief of Police, the Building Inspector, Fire Inspector and the Chairperson of the Health, Protection and License Committee to make due investigation of the application and, upon being notified by them that all of the applicable ordinances of the City have been complied with, shall issue the license. The annual license fee for such license shall be as set by the Common Council.[5] This license shall expire June 30 of each year.