[HISTORY: Adopted by the Board of Trustees of the Village of Horseheads
12-11-1997 by L.L. No. 2-1997. Amendments noted where applicable.]
It is recognized that buildings and establishments operated as adult
uses have serious objectionable operational characteristics. In order to promote
the health, safety and general welfare of the residents of the Village of
Horseheads, this chapter is intended to restrict adult uses to nonresidential
and nonbusiness areas of the village. The Village Board hereby finds that
the operational characteristics of adult uses increase the detrimental impact
on a community when such uses are concentrated. Incidents of crime may increase,
property values may diminish and retail trade may be harmed. This chapter
is intended to protect and preserve the quality of neighborhoods and commercial
districts and the quality of urban life. 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 neither 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 market. Neither is it the intent nor effect
of this chapter to condone or legitimize the distribution of obscene materials.
All possible options and alternatives to enactment of this chapter have been
considered. It has been determined that the type of regulation imposed by
this chapter is the least intrusive method.
A.
General. Unless specifically defined below, words or
phrases used in this chapter shall be interpreted so as to give them the meaning
they have in common usage and to give this chapter its most reasonable application.
B.
ADULT BOOKSTORE, ADULT NOVELTY STORE OR ADULT VIDEO STORE
(1)
(a)
(b)
(2)
ADULT ENTERTAINMENT CABARET
ADULT ENTERTAINMENT ESTABLISHMENT
ADULT MINI MOTION-PICTURE THEATER
ADULT MOTEL
(1)
(2)
(3)
ADULT MOTION-PICTURE THEATER
ADULT THEATER
ADULT USE
AUDIENCE
BUSINESS
DISSEMINATION
ESCORT
ESCORT AGENCY
ESTABLISHMENT
(1)
(2)
(3)
(4)
NUDE MODEL STUDIO
NUDE, NUDITY or STATE OF NUDITY
PERFORMANCE
PERSON
PUBLIC PARK OR RECREATION AREA
RELIGIOUS INSTITUTION
RESIDENTIAL DISTRICT OR USE
SADOMASOCHISTIC ABUSE
SCHOOL
SEMINUDE
SEXUAL CONDUCT
(1)
(2)
(3)
(4)
(5)
(6)
(7)
SEXUAL ENCOUNTER CENTER
SPECIFIED ANATOMICAL AREAS
(1)
(2)
SPECIFIED SEXUAL ACTIVITIES
(1)
(2)
(3)
(4)
SUBSTANTIAL CONNECTION
(1)
(2)
(3)
(4)
Specific terms. As used in this chapter, the following
terms shall have the meanings indicated.
An establishment or business, whether retail or wholesale, having as
a substantial or significant portion of its stock-in-trade and/or as one of
its principal business purposes offers for sale or rental for any form of
consideration one or more of the following:
Instruments, devices or paraphernalia which are primarily intended,
labeled, designed, advertised or promoted for use in connection with specified
sexual activities, or for stimulation of human genital organs or for sadomasochistic
use or abuse of a person or others; or
Books, magazines, periodicals and other printed matter, photographs,
films, motion pictures, video cassettes or video reproductions, slides, compact
discs, computer software or other visual representations and viewing materials
for sale or rental or viewing on premises or rental for viewing on or off
premises, by use of motion-picture devices or any coin- or slug-operated means,
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 or business containing a segment or section devoted
to the sale or display of such material.
A business may have other principal business purposes that do not involve
the offering for sale or rental of instruments, devices or paraphernalia or
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. Such other business purposes will not serve to exempt
such business from being categorized as an adult bookstore, adult novelty
store or adult video store, so long as one of its principal business purposes
is offering for sale or rental, for some form of consideration, the specified
materials which depict or describe specified anatomical areas or specified
sexual activities.
A public or private establishment which may or may not be licensed
to serve food and/or alcoholic beverages which regularly features persons
who appear in a state of nudity, topless and/or bottomless dancers, strippers
and/or films, motion pictures, videos, slides, compact discs or other photographic
reproductions or other visual representations, including computer generated,
which are distinguished or characterized by their emphasis on matter depicting,
describing or related to specific sexual activities or specific anatomical
areas.
A public or private establishment which regularly presents any of
the following entertainments, exhibitions or services: topless and/or bottomless
dancers, strippers, topless waitressing, busing or service, topless hair care
or massages, service or entertainment where the servers or entertainment are
wearing only pasties or G-strings or both, or other adult uses as defined
herein.
An enclosed building with a capacity of less than 50 persons regularly
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.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any form of consideration and
provides patrons with closed circuit television transmissions, films, motion
pictures, video cassettes, slides, compact discs, computer software or other
photographic reproductions or other visual representations which depict, describe
or relate to specific sexual activities or specific anatomical areas and which
has a sign visible from a public right-of-way which advertises the availability
of this adult type of photographic reproductions; or
Offers a sleeping room for rent for a period of time of 10 hours or
less; or
Allows a tenant or occupant of a sleeping room to sublet the room for
a period of time that is 10 hours or less.
A commercial establishment regularly used for presenting materials
including films, motion pictures, videos, slides, compact discs, computer
software or other photographic or visual reproductions or representations
having as a dominant theme 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.
A theater, concert hall, auditorium or similar establishment which
regularly features persons who appear in a state of nudity or live performances
which are characterized by the exposure of specific anatomical areas or by
specific sexual activities.
Any establishment or business regularly involved in the dissemination
of material, performance of entertainments or exhibitions or provision of
services distinguished or characterized by an emphasis on matter depicting,
describing or relating to specified sexual activities and/or specified anatomical
areas, including but not limited to adult bookstores, adult entertainment
cabarets, adult entertainment establishments, adult mini motion-picture theaters,
adult motion-picture theaters, adult motels, adult theaters, escort agencies,
nude model studios and sexual encounter centers.
One or more persons who are permitted to view a performance, for
any valuable consideration, in or from a public place.
Any commercial enterprise, association or arrangement for profit.
The transfer of possession, custody control or ownership of or the
exhibition or presentation of any performance to a customer, member of the
public or business invitee of any material distinguished or characterized
by an emphasis on matter depicting, describing or relating to specified sexual
activities or specified anatomical areas.
A person who, for consideration, agrees or offers to act as a companion,
guide or date for any person or who agrees or offers to privately model lingerie
or to privately perform a striptease for another person.
A person or business who or which furnishes, offers to furnish or
advertises to furnish escorts as one of its primary businesses for a fee,
tip or other consideration.
Means and includes any of the following:
The opening or commencement of any business as a new business;
The conversion of an existing business whether or not an adult use to
any of the adult use businesses defined in this chapter;
The addition of any of the adult use businesses defined in this chapter
to any other existing adult use business; or
The relocation of any adult use business.
Any place where a person who appears in a state of nudity or who
displays specified anatomical areas is provided to be observed, sketched,
drawn, painted, sculpted, photographed or similarly depicted by other persons
who pay money or any form of consideration.
The appearance or less than complete and opaque covering of the anus,
genitals, pubic region, buttocks, areola or nipple of the female breast, or
any artificial depiction of same.
Any live or reproduced exhibition including but not limited to any
play, motion-picture film, dance or appearance or other visual representation
presented to or performed before an audience.
Any person, firm, partnership, corporation, association or legal
representative, acting individually or jointly.
Public land which has been designated for park or recreational activities
including but not limited to a park, playground, nature trail, swimming pool,
reservoir, athletic field, basketball or tennis courts, athletic courts, pedestrian/bicycle
paths, open space, wilderness area or similar public land within the village
which is under the control, operation or management of the village, a religious
institution, a school or other governmental entity.
Any church, synagogue, mosque, temple or building which is used primarily
for religious worship and related religious activities including education
and instruction.
A single-family dwelling, two-family dwelling, row dwelling, multifamily
dwelling or mobile home park use or district as defined or designated in the
Village of Horseheads Code.
Flagellation or torture by or upon a person who is nude or clad in
undergarments or in a sexually revealing or bizarre costume, or the condition
of such person being fettered, bound or otherwise physically restrained in
an apparent act of sexual stimulation or gratification.
Any public or private educational facility including but not limited
to child day-care facilities, nursery school, preschool, kindergarten, elementary
school, primary school, intermediate school, junior high school, middle school,
high school, vocational school, secondary school, continuation school, special
education school, junior college and university. School includes the school
grounds but does not include the facilities used primarily for another purpose
or incidentally as a school.
A state of dress in which clothing covers no more than the genitals,
pubic region and the female breast below a point immediately above the top
of the areola, as well as portions of the body covered by supporting straps
or devices.
Masturbation.
Sexual intercourse, whether genital-genital, genital-oral, oral-anal
or anal-genital.
Any erotic fondling or touching of any parts of the covered or uncovered
genitals, buttocks, pubic area or breasts of the female.
Actual or simulated display or exhibition of the human pubic area or
genitals, or any part thereof.
Sexual excitement as herein defined.
Sadomasochistic abuse as herein defined.
A business or other commercial enterprise that as one of its primary
business purposes offers for any form or consideration physical contact in
the form of wrestling or tumbling or other similar activity between persons
of the opposite sex; or activities between male and female persons and/or
persons of the same sex when one or more of the persons is in a state of nudity
or seminude.
Less than the completely and opaquely covered human anus, genitals,
pubic region, buttocks or female breast below a point immediately above the
top of the areola, or any artificial depiction of the same.
Human male genitals in a discernibly turgid state even if completely
and opaquely covered.
Human genitals in a state of sexual stimulation or arousal.
Acts of human masturbation, oral copulation, sexual intercourse or sodomy,
normal or perverted, actual or simulated.
Fondling or other erotic or intentional touching of human genitals,
pubic region, buttock, anus or female breast, or artificial depiction of the
same.
In a sole proprietorship, an individual who owns, operates, controls
or conducts, directly or indirectly, any premises, building or location upon
which any adult use takes place.
In a partnership, limited or general, an individual who shares in any
potential profits or losses of the business or who shares in the ownership
of any of the assets of the partnership business.
In a corporation, an individual who is an officer, director or a holder,
either directly, indirectly or beneficially, of more than 20% of any class
of stock.
Any person who furnishes more than 20% of the capital financing or assets
of such business, whether in case, goods or services.
In addition to the requirements of the New York State Uniform Fire Prevention
and Building Code and the Village of Horseheads Code and any rules and/or
regulations promulgated thereunder, adult uses shall be permitted subject
to the following restrictions:
A.
No adult use shall be allowed within 750 feet of the
nearest property line of another existing adult use.
B.
No adult use shall be located within 1,000 feet of the
boundaries of any zoning district which is zoned for residential use or zoned
as a planned unit development (PUD).
C.
No adult use shall be located in any zoning district
except those districts zoned for manufacturing (M-1).
D.
No adult use shall be conducted in any manner that permits
the observation of any instruments, devices or paraphernalia which is primarily
intended, labeled, designed, advertised or promoted for use in connection
with specified sexual activities or material depicting, describing or relating
to specified sexual activities or specified anatomical areas from any public
way or from any property not registered as an adult use. This provision shall
apply to any display, decoration, sign, show window, screen or other opening.
E.
No more than one of the adult uses defined herein shall
be located on any one lot or parcel of land, unless such lot or parcel is
sufficiently large as to permit all distance limitations provided herein to
be satisfied.
F.
No adult use shall be located within 1,000 feet of the
nearest property line of any preexisting public, private or parochial school,
church, convent, monastery, synagogue or other places of worship, nor any
park, library, playground or playing field, recreation area, boys' club, girls'
club or similar youth organization.
G.
An adult use may not be operated in the same building,
structure or portion thereof containing another adult use.
H.
For the purpose of this chapter, measurement shall be
made in a straight line, without regard to intervening structures or objects,
from the nearest exterior wall of the building or structure used as part of
the premises where the adult use is conducted to the nearest property line
of another existing adult use, a school, church, convent, monastery, synagogue
or other place of worship, or park, library, playground, playing field, recreation
area, residential district or residential lot, or exterior wall of a building
or structure used as part of the premises in which another adult use is located.
A.
No person, firm, corporation or other entity shall lease,
rent, maintain, operate, use or allow to be operated or used any business
or establishment, any part thereof which contains an adult use, without first
complying with the provisions of this section as set forth below.
B.
In addition to any and all other necessary licenses and
permits, no form of adult use shall be allowed to operate nor allowed to continue
to operate until a certificate of registration is filed with the Village Clerk
containing:
(1)
The address of the premises.
(2)
The legal name, aliases and address of the owner(s) of
the premises and the legal name, aliases and address of the beneficial owner(s)
if the property is in a land trust.
(3)
The name of the business or the establishment subject
to the provisions of this chapter.
(4)
The legal name, aliases, business and home address and
business or home phone numbers of all owners of the business or establishment
subject to the provisions of this chapter.
(5)
The legal names, aliases, business and home addresses
and business or home phone numbers of all those persons having a substantial
connection with the business or establishment subject to the provisions of
this chapter.
(6)
The date of the initiation of the adult use.
(7)
The exact nature of the adult use.
(8)
If the premises or the building in which the business
containing the adult use is leased, a copy of the lease.
C.
If there occurs any change in the information required
for the certificate of registration, the Village Clerk shall be notified no
less than 30 days before such change, and a new or amended certificate filed
within 30 days after receipt of such notification.
D.
The processing fee for each certificate of registration
or amendment thereto shall be $1,000 payable to the Village Clerk. Each certificate
of registration or amendment thereto shall expire on December 31 of each year.
Each certificate of registration may be renewed only by filing a complete
certificate of registration as provided in this chapter and paying the processing
fee therefor at least 30 days before the expiration of the then-existing certificate
of registration.
E.
No certificate or registration issued under the provisions
of this section shall be transferable to any person other than the registrant,
nor shall a certificate of registration be transferable for use at any premises,
building or location other than that stated in the certificate of registration.
F.
The owner, manager or agent of any adult use shall cause
a copy of the certificate of registration issued under the provisions of this
section to be prominently displayed on the premises, building or location
for which it is issued.
G.
Any knowingly false statement or any statement which
the registrant or applicant should reasonably have known to be false which
is provided in the certificate of registration or any document or information
supplied therewith shall be grounds for rejection, suspension or revocation
of the certificate of registration.
H.
It is a violation of this chapter for the owner or person
in control of any property to establish or operate thereon or to permit any
person to establish or operate thereon an adult use without having in force
a current certificate of registration complying with this section.
I.
The owners of the business or establishment subject to
the provisions of this chapter shall permit representatives of the Village
Police Department, Fire Department, Zoning, Building and Code Enforcement
Department or other village departments or agencies to inspect the premises
of an adult use for the purpose of ensuring compliance with this chapter and
all federal, state and local laws, rules, regulations, ordinances and codes.
Such inspection may occur at any time the business is occupied or open for
business. It shall be a violation of this chapter, and a person who operates
an adult use, regardless of whether or not a certificate of registration has
been issued for such business under this chapter, or his agent or employee
commits a violation if such person refuses to permit any such lawful inspection
of the premises at any time that it is occupied or open for business.
A.
It is a defense to prosecution under this chapter if
a person appearing in a state of nudity did so in a modeling class operated:
(1)
By a proprietary school licensed by the State of New
York or a college, junior college or university supported entirely or partially
by taxation;
(2)
By a private college or university which maintains and
operates educational programs in which credits are transferable to a college,
junior college or university supported entirely or partially by taxation;
(3)
In a structure:
(a)
Which has no sign visible from the exterior of the structure
and no other advertising that indicates a nude person is available for viewing.
(b)
Where in order to participate in a class a student must
enroll at least three days in advance of the class.
(c)
Where no more than one nude model is on the premises
at any one time.
B.
It is a defense to prosecution for a violation of this
chapter that an employee of an adult use, regardless of whether or not a certificate
of registration has been issued for said business under this chapter, exposes
any specified anatomical area during the employee's bona fide use of a restroom
or during the employee's bona fide use of a dressing room which is accessible
only to employees.
A person violates this chapter if such person operates or causes to
be operated an adult use, regardless of whether or not a certificate of registration
has been issued for said business under this chapter, and knowingly or with
reasonable cause to know permits, suffers or allows:
A.
Admittance of a person under 18 years of age to the business
premises unless accompanied by a parent or guardian;
B.
A person under 18 years of age to remain at the business
premises unless accompanied by a parent or guardian;
C.
A person under 18 years of age to purchase goods or services
at the business premises without the specific consent of a parent or guardian;
or
D.
A person who is under 18 years of age to work at the
business premises as an employee.
A.
It shall be a violation of this chapter if a person operates
or causes to be operated an adult use, regardless of whether or not a certificate
of registration has been issued for such business under this chapter, and
advertises the presentation of any activity prohibited by any applicable federal,
state or local statute, law, rule or regulation.
B.
It shall be a violation of this chapter if a person operates
or causes to be operated an adult use, regardless of whether or not a certificate
of registration has been issued for such use under this chapter, and displays
or otherwise exhibits the materials and/or performances at such adult use
in any advertising which is visible outside the premises. This prohibition
shall not extend to advertising of the existence or location of such adult
use.
C.
It is a violation of this chapter if the owner and/or
person in control of any property registered as an adult use allows, causes
or permits any portion of the interior premises to be visible from outside
the premises.
D.
All off-street parking areas and premises entries of
the adult use will be illuminated from dusk to closing hours of operation
with a lighting system which provides an average maintained horizontal illumination
of one foot candle of light on the parking surface and/or walkways. This required
lighting level is established in order to provide sufficient illumination
of the parking areas and walkways serving the business for personal safety
of patrons and employees, and to reduce the incidents of vandalism and criminal
conduct.
A.
It shall be a violation of this chapter if a person operates
or causes to be operated an adult use, regardless of whether or not a certificate
of registration has been issued for such business under this chapter, and
allows such business to remain open for business or to permit any employee
to engage in any solicited performance, make a sale, solicit a sale, provide
a service or solicit a service between the hours of 1:00 a.m. and 9:00 a.m.
local time of any particular day.
B.
It shall be a violation of this chapter if a person,
working as an employee of an adult use business, regardless of whether or
not a certificate of registration has been issued for such business under
this chapter, engages in a performance, solicits a performance, makes a sale,
solicits a sale, provides a service or solicits a service between the hours
of 1:00 a.m. and 9:00 a.m. local time of any particular day.
The village and all other departments and agencies of the village including
its officers, employees, etc., charged with enforcement of state and local
laws and codes shall be immune from prosecution, civil or criminal, for reasonable
good faith trespass upon an adult use business while acting within the scope
of authority conferred by this chapter or any other state or federal law,
rule or regulation.
Any person, firm or corporation which shall violate any of the provisions
of this chapter shall upon conviction thereof be subject to a fine not exceeding
$250 or by imprisonment for a term not exceeding 15 days, or both, except
as otherwise provided herein. Each day and/or time that any violation of this
chapter shall continue shall constitute a separate offense.
