A.Â
Intent. It is the intent of this chapter to regulate sexually oriented
businesses and related activities to promote the health, safety and
general welfare of the citizens of the Village of Baldwin 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 chapter 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 nor 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. Neither is it the intent nor
effect of this chapter to condone or legitimize the distribution of
obscene materials.
B.Â
Findings.
(1)Â
It is a lawful purpose of the Village Board to enact rules and regulations
as are necessary for the preservation of health and to prevent the
spread of AIDS and other communicable or sexually transmitted diseases
in the Village of Baldwin. It has been found by localities through
the State of Wisconsin, particularly Milwaukee, Racine, Waukesha,
Delafield, Kenosha and West Allis, as well as communities around the
country, including Indianapolis, Indiana; Austin, Texas; Chattanooga,
Tennessee; Newport News, Virginia; Marion County, Indiana; Detroit,
Michigan; and Seattle, Washington, as well as other communities around
the country, that sexually oriented adult entertainment establishments
are predisposed to the creation of unsafe and unsanitary conditions;
that operators and employees of such businesses tend to participate
in sex-related offenses on the premises, creating substantial law
enforcement problems, and that the operational characteristics of
such businesses have a deleterious effect on surrounding areas, resulting
in neighborhood blight and reduced property values, especially when
such businesses are concentrated in one area. Many of such establishments
install movie viewing booths with doors in which patrons view videotapes,
movies, films and other forms of entertainment characterized by their
emphasis on depicting, describing or relating to specified sexual
activities or specified anatomical areas, and such booths have been
and are being used by patrons to engage in sexual acts resulting in
unsanitary, unhealthy and unsafe conditions in said booths and establishments.
This chapter is intended to establish standards in order to prevent
the spread of AIDS and other communicable or sexually transmitted
diseases, and to eliminate the deleterious effects described above
in the Village of Baldwin.
(2)Â
The Village Board finds that there is an increasing likelihood of
commercial exploitation of human sexuality by owners of premises holding
"Class B" alcohol beverage licenses in the State of Wisconsin. Such
exploitation takes place in the form of employing or permitting persons
to perform or exhibit their nude or seminude bodies to other persons
as an inducement to other persons to purchase alcohol beverages. The
direct result of such exploitation is criminal activity, moral degradation
and disturbance of the peace and good order of the community. In addition,
this commercial exploitation of such nude and seminude acts is adverse
to the public's interest in the quality of life, commercial activity
and total community environment in the Village of Baldwin.
(3)Â
Based on evidence concerning the adverse secondary effects of adult
uses on communities stated above, and on findings incorporated in
the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986); Young v. American Mini Theatres, 426 U.S. 50 (1976); Barnes
v. Glen Theatre, Inc., 501 U.S. 560 (1991); Arcara v. Cloud Books,
Inc., 478 U.S. 697 (1986); California v. LaRue, 409 U.S. 109 (1972);
Iacobucci v. City of Newport, Ky., 479 U.S. 92 (1986); United States
v. O'Brien, 391 U.S. 367 (1968); DLS, Inc. v. City of Chattanooga,
107 F.3d 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); and South Florida Free Beaches, Inc. v. City
of Miami, 734 F.2d 608 (11th Cir. 1984), and 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 obtained from the U.S. Department of
Health and Human Services, Centers for Disease Control and Prevention,
the Village Board finds that:
(a)Â
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)Â
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)Â
Sexually oriented businesses may contribute to an increased
public health risk through the spread of sexually transmitted diseases.
C.Â
Exemptions. 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 adult-oriented establishments or sexually oriented
businesses on the community. Negative secondary effects have not been
associated with these establishments.
The following definitions are applicable in this chapter:
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 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 section.
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, an adult body painting studio
shall not be deemed to include a tattoo parlor.
An establishment having as a substantial or significant portion
of its stock and trade in books, magazines, and other periodicals
which are distinguished or characterized by their emphasis on matter
depicting, describing, or relating to specified sexual activities
or specified anatomical areas as defined herein. This includes an
establishment having as its stock-in-trade, for sale, rent, trade,
lease, inspection or viewing, books, films, videocassettes, motion
pictures, 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,
and in conjunction therewith have facilities for the presentation
of adult entertainment, including adult-oriented videotapes, films,
motion pictures or other offered entertainment for observation by
patrons therein. This also includes a commercial establishment that,
as one of its principal business purposes, offers for sale or rental
for any form of consideration instruments, devices, or paraphernalia
that are designed for use in connection with specified sexual activities.
Note: A commercial establishment may have other principal business
purposes that do not involve the offering for sale or rental of material
depicting or describing specified sexual activities or specified anatomical
areas and still be categorized as an adult bookstore 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 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.
A nightclub, dance hall, bar, restaurant, or similar commercial
establishment that regularly features:
Persons who appear in a state of nudity or seminudity;
Live performances that are characterized by specified sexual
activities; or
Films, motion pictures, videocassettes, slides, or other photographic
or computer reproductions or depictions that are characterized by
the depiction or description of specified sexual activities or nudity.
Any exhibition of any motion picture, live performance, display
or dance of any type which has 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, as defined
herein, appearing unclothed, or the removal of articles of clothing
to reveal specified anatomical areas.
An enclosed building with a capacity for fewer than 50 patrons,
including establishments that have coin-operated video or motion-picture
booths, used for presenting material distinguished or characterized
by an emphasis on matter depicting, describing, or relating to specified
sexual activities or specified anatomical areas as defined herein
for observation by patrons therein.
An establishment or business which provides the services
of modeling for the purpose of reproducing the human body wholly or
partially nude by means of photography, painting, sketching, drawing
or otherwise.
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, videocassettes, slides, or other photographic reproductions
which are characterized by the depiction or description of specified
sexual activities or specified anatomical areas; and which may have
a sign visible from the public right-of-way which advertises the availability
of this adult type of photographic reproductions;
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 building with a capacity of 50 or more persons
at which a significant or substantial portion of the material presented
is distinguished or characterized by an emphasis on matter depicting,
describing, or relating to specified sexual activities or specified
anatomical areas as defined herein for observation by patrons therein.
A parcel of land from which individuals may view a motion
picture presented out of doors which presents material distinguished
or characterized by an emphasis on matter depicting, describing, or
relating to specified sexual activity or specified anatomical areas,
as defined herein, for observation by patrons.
An establishment or business having as a substantial or significant
portion of its stock and trade in novelty or other items which are
distinguished or characterized by their emphasis on, or designed for,
specified sexual activities or specified anatomical areas, as defined
herein, or stimulating such activity.
An establishment which includes, but is not limited to, adult
bookstores, adult motion-picture theaters, adult mini motion-picture
theaters, adult theaters, adult bath houses, adult body painting studios,
adult motels, adult novelty shops or adult cabarets, sexual encounter
centers, sexually oriented businesses, escort agencies, and establishments
featuring live sexually explicit performances, and further means any
premises to which public patrons or members are invited or admitted
and which is so physically arranged as to provide booths, cubicles,
rooms, compartments or stalls separate from the common area of the
premises for the purposes 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 profit, direct or indirect.
An adult-oriented establishment further includes, without being limited
to, any adult entertainment studio or any premises that is physically
arranged and used as such whether advertised or represented as an
adult entertainment studio, rap studio, exotic dance studio, encounter
studio, sensitivity studio, modeling studio or any other term of like
import.
A theater, concert hall, auditorium, or similar commercial
establishment that regularly features persons who appear, in person,
in a state of nudity and/or semi-nudity, and/or live performances
that 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 an adult-oriented establishment 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 members of the establishment for hire or for a fee or for the purpose of viewing entertainment for a fee, and are not open to any persons other then 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 portion of the human female mammary gland (commonly referred
to as the female breast) including the nipple and the areola (the
darker-colored area of the breast surrounding the nipple) and an outside
area of such gland wherein such outside area is:
(For a short general description, see the last sentence of
this definition.)
The area at the rear of the human body (sometimes referred to
as the gluteus maximus) which lies between two imaginary straight
lines running parallel to the ground when a person is standing, the
first or top such line being 1/2 inch below the top of the vertical
cleavage of the nates (i.e., the prominence formed by the muscles
running from the back of the hip to the back of the leg) and the second
or bottom such line being 1/2 inch above the lowest point of the curvature
of the fleshy protuberance (sometimes referred to as the gluteal fold),
and between two imaginary straight lines, one on each side of the
body (the "outside line"), which outside lines are perpendicular to
the ground and to the horizontal lines described above and which perpendicular
outside lines pass through the outermost point(s) at which each nate
meets the outer side of each leg.
Notwithstanding the above, buttocks shall not include the leg,
the hamstring muscle below the gluteal fold, the tensor fasciae latae
muscle or any of the above-described portion of the human body that
is between either the left inside perpendicular line and the left
outside perpendicular line or the right inside perpendicular line
and the right outside perpendicular line. For the purpose of the previous
sentence, the "left inside perpendicular line" shall be an imaginary
straight line on the left side of the anus that is perpendicular to
the ground and to the horizontal lines described above and that is
1/3 of the distance from the anus to the left outside line and the
right inside perpendicular line shall be an imaginary straight line
on the right side of the anus that is perpendicular to the ground
and to the horizontal lines described above and that is 1/3 of the
distance from the anus to the right outside line. (The above description
can generally be described as covering 1/3 of the buttocks centered
over the cleavage for the length of the cleavage.)
A building, whether situated within the Village or not, in
which persons regularly assemble for religious worship intended primarily
for purposes connected with such worship or for propagating a particular
form of religious belief.
The State of Wisconsin.
Any person who:
Is allowed to enter an adult-oriented establishment in return
for the payment of an admission fee or any other form of consideration
or gratuity;
Enters an adult-oriented business and purchases, rents or otherwise
partakes of any merchandise, goods, entertainment or other services
offered therein; or
Is a member of and on the premises of an adult-oriented establishment
operating as a private club.
A facility licensed by the State of Wisconsin pursuant to
§ 48.65, Wis. Stats., whether situated within the Village
or not.
A nontransparent closure device which prevents activity taking
place within a booth, room or cubicle from being seen or viewed from
outside the booth, room or cubicle.
Any and all persons, including independent contractors, who
work in or at or render any services directly or indirectly related
to the operation of an adult-oriented establishment.
Any person who provides entertainment within an adult-oriented
establishment as defined in this chapter, whether or not a fee is
charged or accepted for entertainment and whether or not entertainment
is provided as an employee or independent contractor, including:
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 striptease
for another person.
A person or business association who or which furnishes,
offers to furnish, or advertises to furnish escorts as one of its
primary business purposes for a fee, tip, or other consideration.
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 addition of any sexually oriented business to any other
existing sexually oriented business;
The relocation of any sexually oriented business; or
A sexually oriented business or premises on which the sexually
oriented business is located.
That quality of any description or representation, in whatever
form, of nudity, specified sexual activities or specified anatomical
areas, which taken as a whole appeals to the prurient interest in
sex, which taken as a whole portrays sexual conduct in a patently
offensive way, and which taken as a whole does not have serious literary,
artistic, political or scientific value. Whether a work appeals to
the prurient interest and whether it depicts or describes sexual conduct
in a patently offensive way and whether it has serious literary, artistic,
political or scientific value are to be determined by applying contemporary
community standards in the adult community as a whole with respect
to what is suitable material for minors.
Having general knowledge of, or reason to know, or a belief
or ground for belief which warrants further inspection or inquiry
of both:
The character and content of any material described herein which
is reasonably suspect under this chapter; and
The age of a minor; provided, however, that an honest mistake
shall constitute an excuse from liability hereunder if the defendant
made a reasonable bona fide attempt to ascertain the true age of such
minor.
The operator or agent licensed under this chapter who shall
not be licensed as a massage technician.
Any process or procedure consisting of rubbing, stroking,
kneading or tapping, by physical or mechanical means, upon the external
parts or tissues of the body of another for consideration.
A place of business wherein private massage is practiced,
used or made available as a principal use of the premises.
The area where private massage is performed.
A person who practices, administers or uses massage for a
consideration and who holds a valid license under this chapter.
Any person under the age of 18 years.
The showing of the human male or female genitals, pubic area,
or buttocks with less than a fully opaque covering or the showing
of the female breast with less than a fully opaque covering of any
part of the nipple, or the showing of covered male genitals in a discernibly
turgid state.
Any person operating, conducting, maintaining or owning any
sexually oriented establishment, adult-oriented establishment or massage
establishment.
Any person who receives a massage under such circumstances
that it is reasonably expected that he or she will pay money or give
any consideration therefor.
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.
Pertaining to the use of land, whether situated within the
Village or not, for premises such as homes, townhouses, duplexes,
condominiums, apartments and mobile homes, which contain habitable
rooms for nontransient occupancy and which are designed primarily
for living, sleeping, cooking and eating therein. A premises which
is designed primarily for living, sleeping, working and eating therein
shall be deemed to be residential in character unless it is actually
occupied and used exclusively for other purposes. Hotels, motels,
boardinghouses, nursing homes and hospitals shall not be considered
to be residential.
Flagellation or torture by a person clad in undergarments,
a mask or bizarre costume, or the condition of being fettered, bound
or otherwise physically restrained on the part of one so clothed.
A building, whether situated within the Village or not, where
persons regularly assemble for the purpose of instruction or education,
together with playgrounds, stadiums and other structures or grounds
used in conjunction therewith. The term is limited to:
Public and private schools used for primary or secondary education
in which any regular kindergarten or grades one through 12 classes
are taught; and
Special educational facilities in which students who have physical
or learning disabilities receive specialized education in lieu of
attending regular classes in kindergarten or any of grades one through
12.
The exposure of a bare female breast with less than 1/4 of
the breast surface area, contiguous to and containing the areola,
completely and opaquely covered (see definition of "breast" in this
section). Each female person may determine which 1/4 of her breast
surface area contiguous to and containing the areola is to be covered.
The commission of any of the following: sexual intercourse,
sodomy, bestiality, necrophilia, human excretion, masturbation, sadism,
masochism, fellatio, cunnilingus, lewd exhibition of human genitals,
or passionate kissing and petting of a sexual nature.
A business or commercial enterprise that, as one if its principal
business purposes, offers for any form of consideration:
Physical sexual contact between individuals that involves
the genitalia of at least one person including, but not limited to,
heterosexual intercourse, sodomy, fellatio, or cunnilingus.
Simulated or actual:
Showing of human genitals in a state of sexual stimulation or
arousal.
Acts of human masturbation, sexual intercourse, sodomy, bestiality,
necrophilia, sadomasochistic abuse, fellatio, or cunnilingus.
Fondling or other erotic touching of human genitals, pubic region,
buttock, or female breasts, whether covered or uncovered.
As used in various definitions, shall mean 50% or more of
a business's stock in trade, display space, floor space or retail
sales in any one month during the license year.
An area adjacent to the main entrance that is separate from
any area where massages are given.
A.Â
Any person who, within the Village of Baldwin municipal limits, knowingly
or intentionally, in a public place, does one of the following, commits
an act of public indecency:[1]
B.Â
In addition to any other actions allowed by law or taken by the Village
Board and/or committee thereof, including the action of applicable
license revocation or non-renewal, anyone who violates any of the
provisions of this section shall forfeit not less than $250, and not
more than $2,000, for each offense, together with costs, and if such
forfeiture and costs are not paid, such person so convicted shall
be subject to such other penalties available by law.
A.Â
It shall be unlawful for any person knowingly to exhibit for a monetary
consideration to a minor or knowingly to sell to a minor an admission
ticket or pass or knowingly to admit a minor for a monetary consideration
to premises whereon there is exhibited a motion picture, show or other
presentation which in whole or in part depicts nudity or specified
sexual activities and which is harmful to minors.
B.Â
It shall be unlawful for any person knowingly to sell or loan for
monetary consideration to a minor:
(1)Â
Any picture, photograph, drawing, sculpture, motion picture film
or similar visual representation or image of a person or portion of
the human body which depicts specified anatomical areas or shows specified
sexual activities and which is harmful to minors.[1]
(2)Â
Any book, pamphlet, magazine, printed matter however produced, or sound recording which contains any material enumerated in Subsection B(1) hereof, or explicit and detailed verbal descriptions or narrative accounts of specified sexual activities and which, taken as a whole, is harmful to minors.
C.Â
It shall be unlawful for any person knowingly to admit a minor to
any premises whereon there is exhibited nudity or specified sexual
activities which are harmful to minors unless such minor is accompanied
by his/her parent or legal guardian.
