Intoxicating liquor and fermented malt beverages — See Ch. 114.
§ 153-5Regulation of sexually oriented businesses.
§ 153-7Violations and penalties.
Whereas, the Town Board finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature; and whereas, the concern over sexually transmitted diseases is a legitimate health concern of the Town Board, which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of the citizens; and whereas, there is convincing documented evidence that sexually oriented businesses have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values; and whereas, the Town Board desires to minimize and control these adverse secondary effects and thereby protect the health, safety and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of surrounding neighborhoods; and deter the spread of urban blight; and whereas, it is not the intent of this chapter to suppress any speech activities protected by the First Amendment but to enact a content-neutral chapter which addresses the negative secondary effects of sexually oriented businesses; and whereas, it is not the intent of the Town Board to condone or legitimize the distribution of obscene material, and the Town Board recognizes that state and federal law prohibits the distribution of obscene materials and expects and encourages state law enforcement officials to enforce state obscenity statutes against any such illegal activities in the Town of St. Joseph; now, therefore, the Town Board of the Town of St. Joseph ordains as follows.
It is the intent of this chapter to regulate sexually oriented businesses and related activities in order to ameliorate the negative secondary effects associated with such businesses so as to promote the health, safety and general welfare of the citizens of the Town of St. Joseph. It is not intended that the provisions of this chapter directly or indirectly impose limitations or restrictions on the content of any communicative materials, including sexually oriented materials, nor is it the intent of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment of the Constitution of the United States or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Further, it is not the intent of this chapter to condone or legitimize the distribution of obscene materials.
The Town of St. Joseph relies upon evidence concerning the adverse secondary effects of sexually oriented businesses on the community as reported in the following cases of City of Erie v. Pap's A.M., 120 S. Ct. 1389 (2000); City of Renton v. Playtime Theaters, Inc., 475 U.S.C. § 41 (1986); Young v. American Mini Theaters, 426 U.S.C. § 50 (1976); and Barnes v. Glen Theatre, Inc., 501 U.S.C. § 560 (1991); Arcara v. Cloud Books, Inc., 478 U.S.C. § 697 (1986); California v. LaRue, 409 U.S.C. § 697 (1972); Iacobucci v. City of Newport, Ky, 479 U.S.C. § 92 (1986); United States v. O'Brien, 391 U.S.C. § 367 (1968); DLS, Inc. v. City of Chattanooga, 107 F.2d 403 (6th Cir. 1997); Key, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Hang on, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608 (11th Cir. 1984); East of the River Enterprises II v. City of Hudson, 2000 Wis. App. Lexis 734 (Ct. App. August 1, 2000); and Urmanski v. Town of Bradley, 2000 WI App. 141, 613 N.W.2d 905 (Ct. App. 2000); and upon studies conducted in numerous cities, such as Phoenix, Arizona; Minneapolis,Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas, among others. It further relies upon the findings reported in Regulation of Adult Entertainment Establishes in St. Croix County, Wisconsin, findings reported in the Final Report of the Attorney General's Commission on Pornography (1986), the Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989, State of Minnesota) and statistics reported by the Centers for Disease Control and Prevention. Therefore, the Town of St. Joseph finds that:
Crime statistics show that all types of crimes, especially sex-related crimes, occur with more frequency in neighborhoods where sexually oriented businesses are located.
Studies of the relationship between sexually oriented businesses and neighborhood property values have found a negative impact on both residential and commercial property values.
Sexually oriented businesses may contribute to an increased public health risk through the spread of sexually transmitted diseases.
Sexually oriented businesses may encourage, support and facilitate prohibited secondary sexual activities such as prostitution.
The consumption of alcoholic beverages on the premises of sexually oriented businesses exacerbates the negative secondary effects of such businesses on the community.
There is an increase in the potential for infiltration by organized crime for the purposes of unlawful conduct.
The following terms shall have the following meanings:
- ADULT ARCADE
- 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.
- ADULT BOOKSTORE OR ADULT VIDEO STORE
- An establishment which, as its substantial course of business, presents adult entertainment for observation by patrons therein or which, as part of its substantial course of conduct, offers for sale, rent, trade, lease, inspection or viewing books, films, videocassettes, magazines or other such media which are distinguished or characterized by their emphasis on matters depicting, describing or relating to specified anatomical areas or specified sexual activities; or instruments, devices or paraphernalia that are designed for use in connection with specified sexual activities. A commercial establishment may have other principal business purposes that do not involve the offering for sale or for rent of material as defined above and still be categorized as an adult bookstore or adult video store. Such other business purpose will not serve to exempt these commercial establishments from being categorized as adult bookstores or adult video stores so long as one of the principal purposes is the offering for sale or rent for consideration the specified materials that depict or describe specified sexual activities or specified anatomical areas. A principal business purpose need not be a primary use of an establishment so long as it is a significant use based upon the visible inventory or commercial activity of the establishment.
Substantial means 40% or more of a business stock in trade, display space, floor space or retail sales in any one month. Upon reasonable belief that an entity is in excess of the forty-percent threshold, that entity shall provide all necessary records, receipts and documentation to the town upon request. Failure to do so shall result in a presumption that the entity is operating in excess of the threshold.
- ADULT CABARET
- A nightclub, dance hall, bar, restaurant or similar commercial establishment that regularly features:
Persons who appear in a state of nudity or semi-nudity; or
Live performances that are characterized by specified sexual activities; or
Films, motion pictures, videocassettes, slides or other photographic reproductions that are characterized by the depiction or description of specified sexual activity or nudity or specified anatomical areas.
- ADULT ENTERTAINMENT
- Any exhibition of any motion picture, live performance, display or dance of any type which has as a significant or substantial portion of such performance or is distinguished or characterized by an emphasis on any actual or simulated performance of specified sexual activities or exhibition and viewing of specified anatomical areas.
- ADULT ESTABLISHMENT
- An adult arcade, adult bookstore, adult cabaret, adult motion-picture theater, adult theater, adult video store and further means any premises to which public patrons or members are invited or admitted that is substantially devoted to the purveyance, demonstration or display of specified sexual activities or specified anatomical areas.
- ADULT MOTION-PICTURE THEATER
- A commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides or similar photographic reproductions are regularly shown that are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT THEATER
- A theater, concert hall, auditorium or similar commercial establishment that regularly features persons who appear in person in a state of nudity and/or seminudity and/or live performances that are characterized by the exposure of specified anatomical areas or by specific sexual activities.
"Regularly" means on a daily, weekly, monthly, semimonthly or bimonthly basis as part of the ongoing scheduled activities of the establishment.
- A person who performs any service on the premises of a sexually oriented business on a full-time, part-time, contract or independent basis, whether or not the person is denominated an employee, independent contractor, agent or otherwise, and whether or not the said person is paid a salary, wages or other compensation by the operator of said business. Employee does not include a person exclusively on the premises for repair or maintenance of the premises or equipment on the premises nor does employee include a person exclusively on the premises as a patron or customer.
- Includes any of the following:
The opening or commencement of any sexually oriented business as a new business.
The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business.
The additions of any sexually oriented business to any other existing sexually oriented business.
The relocation of any sexually oriented business.
A sexually oriented business or premises on which the sexually oriented business is located.
- NUDE, NUDITY OR STATE OF NUDITY
- The exposure of any specified anatomical areas as defined in this chapter.
- The person on the premises who is responsible for the control and management of the sexually oriented business.
- An individual, proprietorship, partnership, corporation, association or other legal entity.
- PLACES IN SEXUALLY ORIENTED BUSINESSES THAT ARE PROVIDED OR SET APART FOR NUDITY
- Enclosed single sex public restrooms, enclosed single sex functional shower, locker and/or dressing room facilities, enclosed motel rooms and hotel rooms designed and intended for sleeping accommodations and similar places in which nudity or exposure of specified anatomical areas is necessarily and customarily expected outside of the home and the sphere of privacy constitutionally protected therein. This term shall not be deemed to include places where a person's conduct of being nude is used for his or her profit or where being nude is used for the promotion of business or is otherwise commercially exploited.
- The real property upon which the sexually oriented business is located and all appurtenances thereto and buildings thereon, including, but not limited to, the sexually oriented business, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control or supervision of the owner or operator of the business.
- Recurring on a basis which is frequently, customarily or typically a part of the ongoing scheduled activities of the establishment.
- SEMINUDE OR SEMINUDITY
- The exposure of the nipples or areolas of the female breast less than completely and opaquely covered.
- SEXUALLY ORIENTED BUSINESS
- An adult bookstore, adult establishment, adult motion-picture theater, adult video store, adult cabaret or a business featuring adult entertainment, adult motion-picture theater, adult theater or other business classified as an adult establishment.
- SPECIFIED SEXUAL ACTIVITIES
- Includes any of the following:
The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts, whether covered or uncovered.
Sex acts, actual or simulated, including intercourse, oral copulation, sodomy, masturbation, necrophilia, sadomasochistic abuse, fellatio or cunnilingus.
Showing human genitals in a state of sexual stimulation or arousal.
Excretory functions as part of or in connection with any of the activities set forth in Subsections A through C above.
No person, employee, entertainer or patron shall be permitted to have any physical contact with any entertainer on the premises of a sexually oriented business during any performance. To prevent actual physical contact between the entertainer and any other person, employee or patron, all performances shall only occur on a stage or on a table that is elevated at least 18 inches above the immediate floor level and shall not be less than five feet from any area occupied by any patron. Patrons shall not have any physical contact with and shall not be less than five feet from any entertainer during any performance, including, but not limited to, during the payment of a tip or gratuity.
The sale, use or consumption of alcoholic beverages on the premises of a sexually oriented business is prohibited.
It shall be unlawful to allow a person who is younger than 18 years of age to enter or be on the premises of a sexually oriented business at any time the sexually oriented business is open for business.
It shall be the duty of the operator of each sexually oriented business to ensure that an attendant is stationed at each public entrance to the sexually oriented business at all times during regular business hours. It shall be presumed that an attendant knew a person was under the age of 18 unless such attendant asked for and was furnished:
No person shall cause another to commit a violation of this chapter, nor shall any person permit such a violation to occur on any premise under his/her control, tenancy, management or ownership.
Hours of operation. No sexually oriented business regulated by this chapter may remain open between the hours of 2:00 a.m. and 8:00 a.m., Monday through Friday, or between the hours of 2:30 a.m. and 8:00 a.m. on Saturdays and Sundays.
Signs posted. All Premises governed by this chapter shall be required to post signs provided by the Town of St. Joseph which state:
|By Town of St. Joseph Ordinance: The use or consumption of alcoholic beverages on these premises is prohibited. No person shall be permitted to have any physical contact with any entertainer. No person shall be less than five feet from any entertainer, including during the payment of tips. Violators may be subject to a fine of not less than $200 and not more than $700 per violation.|
Doors. Each entryway to a sexually oriented business featuring live entertainment shall, through use of a vestibule, screening or double doors and with window coverings, eliminate any direct line of sight from the public street area to any entertainer on the premises.
The provisions of this chapter do not apply to the following establishments: theaters, performing arts centers, civic centers and dinner theaters where live dance, ballet, music and dramatic performances of serious artistic, social or political merit are offered on a regular basis and in which the predominant business or attraction is not the offering of entertainment which is intended for the sexual interests or titillation of customers and where the establishment is not distinguished by an emphasis on or the advertising or promotion of nude or seminude performances. While expressive live nudity may occur within these establishments, this chapter seeks only to minimize and prevent the secondary effects of sexually oriented businesses on the community. Negative secondary effects have not been associated with these establishments.
Places in sexually oriented businesses that are provided or set apart for nudity, provided that:
Persons appearing nude in a place provided or set apart for nudity do so for the sole purpose of performing a lawful function(s) that is customarily intended to be performed within such place provided or set apart for nudity; and
Persons appearing nude in a place provided or set apart for nudity are not nude for the purpose of directly or indirectly obtaining money or other financial gain for such person or for another person or entity.
Violation of the use provisions of § 153-5 is declared to be a public nuisance per se which, in addition to any other remedy provided by law, may be abated by the Town Board or its designee by way of civil abatement procedures.
Any person, partnership or corporation who violates any of the provisions of § 153-5 of this chapter shall be subject to a forfeiture of not less than $200 and not more than $700 per violation. A separate offense and violation shall be deemed committed on each day on which a violation occurs or continues to occur.
Violation of this chapter constitutes sufficient grounds for suspending, revoking or nonrenewing an alcohol beverage license under W.S.A. s. 125.12.