Title
Ordinance to Repeal and Recreate Section 7.154 of the West Allis Revised Municipal Code Relating to Public Physical Conditioning Establishments.
Body
The Common Council of the City of West Allis do ordain as follows:
PART I. Section 7.154 of the Revised Municipal Code is hereby repealed and recreated to read as follows:
7.154 PUBLIC PHYSICAL CONDITIONING ESTABLISHMENTS.
(1) Definitions. The following definitions shall apply in the interpretation and the enforcement of this section:
(a) Health Commissioner. The term "Health Commissioner" shall mean the Health Commissioner of the City or designee.
(b) Person. The term "person" shall mean any person, firm, organization, or corporation.
(c) Public Physical Conditioning Establishment. The term "Public Physical Conditioning Establishment" shall mean any premises or facilities used by customers, members, students, or the general public for conditioning or training activities, swimming, jogging, martial arts instruction or training, weightlifting, gymnastics, aerobic exercise, tanning, or similar or related activities.
(2) State Regulations. Except as otherwise provided herein, the provisions of Wisconsin Statute Section 100.178 as related to fitness centers, as they are from time to time amended, are hereby adopted by reference. All fitness centers shall comply with all applicable provisions of these regulations.
(3) License Application. A written application for the license required by this section shall be filed with the Health Commissioner upon forms provided by the Health Commissioner. The annual license fee shall be $25.00 and shall be paid at the time the initial application is filed or, for license renewals, prior to the expiration of a license. Any renewal license fee paid on July 1 or later shall be subject to a late fee of $10.00. No person shall operate any public physical conditioning establishment until all license fees have been paid. A licensee or applicant shall notify the Health Commissioner in writing if any information listed in the application form has changed within ten (10) days of such change.
(4) License Required. No person shall operate a public physical conditioning establishment in the City without a license from the Health Commissioner. Only a person who complies with the requirements of this section shall be entitled to receive and retain a license. Licenses shall not be transferable as to persons or premises.
(5) Posting License; Fee for Duplicate License. Every public physical conditioning establishment shall display its license at all times in plain view of the public. Duplicate licenses shall be issued to replace licenses which are misplaced or damaged so as to be illegible. The fee for a duplicate license shall be $10.00.
(6) License Year. The license year for the public physical conditioning establishment license shall be from July 1 to June 30 annually.
(7) Inspection of Establishments.
(a) Frequency of Inspections. The Health Commissioner or his/her designee shall inspect public physical conditioning establishments at least once during the license year. If the Health Commissioner or his/her designee discovers any violation that is potentially hazardous to the health and welfare of patrons or employees of the public physical conditioning establishment or to the public health, he/she may make a re-inspection after a lapse of five (5) business days or such time as he/she deems reasonably necessary for the violations to be corrected. Failure to correct a violation within the scheduled time shall result in additional re-inspections and may result in further legal action, including the issuance of citations. Any re-inspection shall result in the Health Department assessing a $25.00 re-inspection fee, per re-inspection, to the public physical conditioning establishment applicant or licensee.
(b) Inspection Report. One copy of the inspection report shall be given to the person in charge of the establishment and another copy shall be kept with the records of the Health Department.
(c) Access to Establishments and Records Required. The person operating a public physical conditioning establishment shall, upon the request of the Health Commissioner or his/her designee, permit access to all parts of the establishment and shall permit the copying of any records necessary for a health investigation.
(d) Inspection After Complaint. Upon a complaint or report of a violation of this section, the Health Commissioner or his/her designee shall inspect the establishment to determine if a violation exists. If the Health Commissioner or his/her designee confirms a violation to exist, the Health Department shall assess a $25.00 inspection fee to the public physical conditioning establishment licensee.
(8) Establishments Which May Operate. No public physical conditioning establishment shall operate within the City unless it conforms to the requirements of this section.
(9) Summary Suspension and Reinstatement of License.
(a) Whenever the Health Commissioner or his/her designee finds unsanitary or other conditions in the operation of a public physical conditioning establishment, which in his/her opinion constitutes a substantial hazard to the public health, he/she may without warning, notice, or hearing issue a written notice to the licensee citing the condition, specifying the corrective action to be taken, and specifying the time period within which the action shall be taken; and, if deemed necessary, the order stall state that the license is immediately suspended and all public physical conditioning operations are to be immediately discontinued. The Health Commissioner or his/her designee shall promptly notify the City Clerk of any suspension. Any person to whom such an order is issued shall comply immediately therewith, but upon written petition to the City Clerk, shall be afforded a hearing before the License and Health Committee. The procedure for such hearing shall be the applicable provisions of subsections (13)(c)-(f) of this section. Such hearing shall be scheduled within ten (10) days of the appellant filing the petition with the City Clerk.
(b) The license holder, whose license has been suspended by the Health Commissioner or his/her designee, may, at any time, make application for reinstatement of the license. The Health Commissioner or his/her designee shall make a re-inspection and thereafter as many additional re-inspections as he/she deems necessary to ensure that the applicant is complying with the requirements; and, in the event the findings indicate compliance, shall reinstate or reissue the license.
(10) Truth of Statements. All matters submitted in writing to the City by any applicant or licensee pertaining to any license issued under this section shall be true.
(11) Conditions of License.
(a) Every applicant procuring a license thereby consents to the entry of the Health Department, police, or other duly authorized representatives of the City at all reasonable hours for the purpose of inspection and search, and consents to the removal from said premises of all things and articles there had in violation of City ordinances or State laws.
(b) The licensee and/or employees and agents of the licensee shall cooperate with Health Department and police investigations. "Cooperate," as used in this subsection, shall mean calling the police when a disturbance of the peace or other violation occurs on the licensed premises and providing complete and truth responses to police and Health Department inquiries. A licensee shall also appear before the License and Health Committee when requested to do so and shall otherwise follow the lawful directives of the License and Health Committee.
(c) Each licensed premises shall be conducted in an orderly manner, and no disorderly, riotous, or indecent conduct shall be allowed at any time on any licensed premises.
(d) The licensee shall comply with all other provisions of this section and all other ordinances of the City of West Allis and the laws of the State of Wisconsin.
(12) Minimum Requirements. All public physical conditioning establishments shall comply with the following minimum requirements:
(a) Equipment.
1. Conditioning equipment, exercise devices, tanning beds, and similar and related equipment shall be operated and maintained in compliance with recommendations and requirements of the manufacturer and all applicable regulations.
2. Equipment that is subject to bodily contact by users shall be washed or rinsed with a bactericidal solution, as frequently as necessary to insure adequate hygiene. Such bactericidal solutions and single use towels shall be available for optional use by patrons at all times. Specific cleaning frequency requirements may be made a condition of the license for a public physical conditioning establishment.
(b) Locker Room Requirements.
1. Separate locker room facilities shall be present and accessible for men and women.
2. Hot and cold running water, under pressure, shall be supplied at all times to all sinks, lavatories, tubs, showers, and other bathing facilities. At least one wash sink and one toilet shall be available for use at any public locker room.
3. When towels or towel service are provided, clean towels shall be kept dry until used and shall not be used by more than one patron. Used towels shall be kept separate from clean towels and shall be laundered or removed from the facility after use. Laundering of towels shall be done in a manner which provides complete bactericidal treatment.
4. Shower curtains, when used, shall be of plastic or similar material and shall be kept clean and in good repair. Worn, ripped, or uncleanable shower curtains shall be removed. Cloth or absorbent shower curtains and curtain liners are prohibited.
5. Public locker room floors, walls, and ceilings, as well as benches, chairs, and other furniture shall be clean, water-resistant, and in good repair. All room surfaces subject to moisture and bacterial contamination shall be washed or wet mopped with an appropriate bactericide as frequently as necessary to prevent odors or disease. Areas in which moisture or other conditions create slipping or sliding hazards shall be equipped with handrails or other anti-slip devices or treatments.
6. All public locker room patrons shall have available for their optional use a clothes locker constructed of substantial material, provided with an interior hook for hanging items of clothing and with a means for locking to provide security for patrons' items and property. Lockers shall be arranged, designed, and located so that they are not subject to spray or other water damage.
(13) Suspension, Revocation, and Non-Renewal.
(a) Causes. Any license issued under this section may be suspended, revoked, or not renewed for cause by the Common Council after notice to the licensee and a hearing. Licenses may be suspended, revoked, or not renewed for the following causes:
1. The making of any material false statement in any application for a license.
2. The violation of any of the applicable provisions of Section 7.154.
3. The violation of any of the applicable provisions of Wisconsin Statute Sections 100.177 or 100.178.
4. The failure to conduct its licensed business at the authorized location for a period of thirty (30) consecutive days, unless such thirty-day period shall, for good cause shown, be extended by the Common Council.
5. The licensed premises is operated in such a manner that it constitutes a public or private nuisance or that conduct on or emanating from the licensed premises, including but not limited to loud and raucous noise, has had a substantial adverse effect upon the health, safety, convenience or prosperity of the immediate neighborhood.
6. The failure to pay any tax or forfeiture as provided in Section 1.08(9)(a)-(b).
(b) Commencement of Proceedings. Suspension, revocation, or nonrenewal proceedings may be instituted by the License and Health Committee of the Common Council upon its own motion or upon sworn written charges made and filed with the Clerk/Treasurer by the Health Commissioner.
(c) Procedure.
1. Upon receipt of a sworn complaint, either from the Health Commissioner or upon directive of the Committee, the License and Health Committee shall direct the City Attorney to prepare a summons and have the summons and complaint served upon the licensee pursuant to Section 801.11 of the Wisconsin Statutes.
2. The summons and complaint shall contain: the date and time for appearance by the licensee; a statement of the Common Council's intention to suspend, revoke, or not renew the license in the event any of the allegations are found to be true; a statement of the reasons for suspension, revocation, or nonrenewal; notification to the licensee of an opportunity to be heard, respond to and challenge the reasons for suspension, revocation, or nonrenewal and to present and cross examine witnesses under oath; notification to the licensee of the right to be represented by counsel of the licensee's choice and at the licensee's expense.
3. If the licensee fails to appear on the date and time designated in the summons, the License and Health Committee may enter a default judgment and take the allegations of the complaint to be true. The License and Health Committee shall then deliberate on what sanction, if any, to impose.
4. If the licensee appears before the License and Health Committee at the date and time designated in the summons and denies the material charges contained in the complaint, an evidentiary hearing shall be scheduled. If the licensee does not appear or appears, but does not deny the material charges contained in the complaint, the complaint may be taken as true and the Committee shall hear the arguments of the complainant and, if applicable, the licensee in connection with whether to not renew, revoke or suspend the license and the length of the suspension.
5. If the matter proceeds to hearing before the Committee, the following procedures shall apply:
a. The complainant shall first present evidence in support of the complaint.
b. After the complainant rests, the licensee may present evidence in opposition to the charges.
c. The complainant and licensee may subpoena and present witnesses. All witnesses shall testify under oath or affirmation and shall be subject to cross examination.
d. The complainant and licensee shall each be limited to one (1) hour for testimony unless the Chair, subject to approval of the Committee, extends the time to assure a full and fair presentation.
e. Questions by Committee members or the advising City Attorney and answers to such questions shall not be counted against the time limitations.
f. At the close of testimony, the complainant and licensee shall be given a reasonable time to make arguments upon the evidence produced at hearing.
(d) Miscellaneous Procedural Matters.
1. At all stages of the proceedings, the licensee shall be entitled to appear in person or by an attorney of his or her own expense.
2. If the complaint is in the name of the Committee or is brought by a City official in his/her official capacity, the complainant shall be represented by a prosecuting City Attorney.
3. The Committee shall be, when required, advised by an advisory City Attorney who shall not be the same individual as the prosecuting City Attorney.
4. The Chair of the License and Health Committee shall be the presiding officer. The Chair shall direct that oaths and affirmations be administered and subpoenas issued upon request of either side. The Chair shall ensure that an orderly hearing is conducted in accordance with the provisions of this section. The Chair shall rule on objections to the admissibility of evidence. Any ruling of the Chair shall be final unless appealed to the Committee and a majority vote of those members present and voting reverses such ruling.
5. An audio recording or stenographic record shall be made of all proceedings at the hearing. Any interested party may obtain a copy of the recording or transcript at his or her own expense.
(e) Findings and Recommendations.
1. After the close of the hearing, the Committee shall deliberate and reach a decision. The Committee shall prepare findings on factual matters, conclusions of law, and a recommendation on what action, if any, should be taken with regard to the license(s) at issue. The report shall be filed with the City Clerk/Treasurer with a copy to the licensee and complainant. The findings and recommendations shall be distributed to each member of the Common Council.
2. The licensee and complainant may file a written statement or response to the findings and recommendation, including objections, exceptions, and arguments of fact and law. A written statement must be filed with the City Clerk/Treasurer before the close of business on a day that is at least three (3) working days prior to the date set for determination by the Common Council. Copies of written statements shall be provided to each member of the Common Council at least twenty-four (24) hours before any vote on the matter is scheduled before the Common Council.
(f) Common Council Action.
1. Not less than five (5) working days prior to the matter being scheduled before the Common Council, the Clerk/Treasurer shall notify the licensee and complainant by U.S. first class mail, postage prepaid, sent to the last known address, that the Common Council will convene to determine the matter.
2. Unless an alderperson states that he/she has not read the findings and recommendations, and written statements, if any, the matter shall proceed to debate amongst members of the Common Council. Neither the complainant nor the licensee shall be permitted to make oral arguments.
3. The Common Council shall determine by a majority vote of those in attendance and voting whether to adopt the recommendation of the Committee or make such modification as is deemed appropriate. Such vote shall be a roll call vote. Upon an affirmative vote suspending, revoking, or not renewing the license(s), the Clerk/Treasurer shall give notice to the person whose license is affected. If the Common Council finds the complaint to be untrue or unsupported by sufficient evidence, the proceedings shall be dismissed without cost to the accused.
(g) Surrender of License.
1. A licensee may, at any time during the license year surrender a license to the Health Department, along with a statement, in writing, that the licensee no longer wishes to conduct licensed activity at the licensed premises.
2. Except as set forth in Subsection (h)3 below, the surrender shall operate to extinguish any right the licensee had to the license or to conduct licensed activity at the premises listed in the license.
3. If a summons and complaint has been issued against the licensee seeking suspension, revocation, or nonrenewal of the license, the surrender of the license shall be deemed a request and the matter shall be referred to the License and Health Committee. The Committee may approve the request or deny the request and proceed to hearing.
4. Any request to have a surrendered license returned shall be treated as a new license application and the requestor must fill out the required applications and pay the required fees. The request shall thereafter be treated as all other new license applications.
(h) Prohibition on Future Issuance. If a license is revoked or not renewed due to action by the License and Health Committee, at least two (2) years shall elapse before another license may be given to the same licensee.
(14) Nuisance Enforcement. In addition to the penalties listed within this section, the City Attorney or his/her designee or the Health Commissioner or his/her designee may pursue a nuisance enforcement action against a public physical conditioning establishment under Chapter 18 of this Code.
PART II. All ordinances or parts of ordinances contravening the provisions of this ordinance are hereby repealed.
PART III. This ordinance shall take effect and be in force from and after its passage and publication.
ATTO-Repeal&RecreateSec7.154PublicPhysicalConditioning