[HISTORY: Adopted by the Board of Trustees of the Village of East
Rochester 12-11-1995 by L.L. No. 6-1995
(Ch. 3 of the 1983 Code). Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 193.
It is the purpose of this chapter to regulate sexually oriented businesses,
to promote the health, safety, morals and general welfare of the citizens
of the town/village and to establish reasonable and uniform regulations to
monitor the location and concentration of sexually oriented businesses within
the town/village. The provisions of this chapter have neither the purpose
nor effect of imposing a limitation or restriction on the content of any communicative
material, including sexually oriented materials. Similarly, it is not the
intent or 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.
As used in this chapter, the following terms shall have the meanings
indicated:
- 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, as defined herein.
- ADULT BOOKSTORE OR ADULT VIDEO STORE
- A commercial establishment which, as one of its business purposes, offers one or more of the following:
- A. Books, magazines, periodicals or other printed matter or photographs, film motion pictures, videocassettes or video reproductions, slides or other visual representations which depict or describe, as defined herein, specified sexual activities or specified anatomical areas, as defined herein; or
- B. Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities, as defined herein.
- ADULT CABARET
- A nightclub, bar, restaurant or similar commercial establishment which regularly features:
- A. Persons who appear in a state of nudity, as defined herein;
- B. Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities, as defined herein; or
- C. 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, as defined herein.
- ADULT MOTEL
- A hotel, motel or similar commercial establishment which:
- A. Offers accommodations to the public and provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas, as defined herein, or has a sign visible from the public right-of-way which advertises the availability of such adult type of photographic reproductions;
- B. Offers a sleeping room for rent for a period of time that is less than 10 hours; or
- C. Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours.
- ADULT MOTION-PICTURE THEATER
- A commercial establishment where films, motion pictures, videos, cassettes, slides or similar photographic reproductions are regularly shown which are characterized by the depiction of specified sexual activities or specified anatomical areas, as defined herein.
- ADULT THEATER
- A theater, concert hall, auditorium or similar commercial establishment which regularly features persons who appear in a state of nudity, as defined herein, or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities, as defined herein.
- ADULT USES
- Any use set forth herein as defining a sexually oriented business or businesses.
- ESCORT
- 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.
- ESCORT AGENCY
- A commercial establishment which furnishes, offers to furnish or advertises to furnish escorts as one of its business purposes.
- ESTABLISHMENT
- When used as a verb, includes any of the following:
- A. The opening or commencement of any sexually oriented business as a new business, as defined herein.
- B. The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business, as defined herein.
- C. The addition of any sexually oriented business, as defined herein.
- D. The relocation of any sexually oriented business, as defined herein.
- NUDITY OR A STATE OF NUDITY
- The appearance of bare human buttocks, anus, male genitals, female genitals or full female breasts.
- PERMITTEE AND/OR LICENSEE
- Any person in whose name a permit and/or license to operate a sexually oriented business, as defined herein, has been issued, as well as any individual listed as an applicant on any application for such a permit and/or license.
- PERSON
- Any individual, proprietorship, partnership, corporation, association or other legal entity.
- SEMINUDE
- A state of dress in which clothing covers no more than the genitals, pubic region and areolae of the female breast, as well as portions of the body covered by straps or other devices used to cover said areas.
- SEXUAL ENCOUNTER CENTER
- A business or commercial enterprise that, as one of its business purposes, provides or facilitates:
- SEXUALLY ORIENTED BUSINESS
- An adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion-picture theater, escort agency or sexual encounter center, as defined herein.
- SPECIFIED ANATOMICAL AREAS
- The male genitals and/or the vulva or any parts of the female genitals, or full female breasts.
- SPECIFIED SEXUAL ACTIVITIES
- Includes any of the following:
- SUBSTANTIAL ENLARGEMENT
- Of a sexually oriented business, as defined herein, means any increase in floor areas as the floor areas exist on the date of enactment.
- TRANSFER OF OWNERSHIP OR CONTROL
- Of a sexually oriented business, as defined herein, means and includes any of the following:
- A. The sale, lease or sublease of the sexually oriented business, as defined herein.
- B. The transfer of securities which constitute a controlling interest in the sexually oriented business, as defined herein, whether by sale, exchange or similar means.
- C. The establishment of a trust, gift or similar legal device which transfers the ownership or control of the sexually oriented business, as defined herein.
Adult uses, as defined herein, shall be permitted in any General Commercial District only, provided that a special use permit is obtained in accordance with Article XI of Chapter 193 and the following:
A.
An adult use, as defined herein, may not be operated
within 1,000 feet of:
(1)
A church, synagogue or regular place of worship.
(2)
A public or private elementary or secondary school.
(3)
A boundary line of any property zoned as a residential
district or any property used for residential purposes as a permitted use.
(4)
A public use park adjacent to any residential district
or any property used for residential purposes as a permitted use.
(5)
Day-care facilities.
B.
An adult use, as defined herein, may not be operated
within 1,000 feet of another adult use, as defined herein, on the same lot
or parcel of land.
C.
An adult use, as defined herein, may not be operated
in the same building, structure or portion thereof containing another adult
use.
D.
For the purpose of this chapter, measurement shall be
made in a straight line, without regard to intervening structures or objects,
from the nearest portion of the property line where an adult use, as defined
herein, is conducted to the nearest property line of the premises of a church
or public or private elementary or secondary school or to the nearest boundary
of an affected public park, residential district or residential lot.
E.
For purposes of Subsection D of this section, the distance between any two adult uses, as defined herein, shall be measured in a straight line, without regard to intervening structures or objects, from the property line in which each business is located.
F.
All adult uses, as defined herein, shall be conducted
in an enclosed building. No specified anatomical area or any specified sexual
activity, as defined herein, or any display, decoration, sign or similar depiction
of specific anatomical areas or specified sexual activities, as defined herein,
shall be visible from the exterior of any building containing an adult use,
as defined herein, regardless of location or distance.
A.
A sexually oriented business, as defined herein, may
be operated only within a General Commercial District and only in accordance
with the provisions of this chapter.
B.
Prior to the commencement of any sexually oriented business,
as defined herein, or upon any transfer of ownership or control of any sexually
oriented business or upon commencing any adult use, as defined herein, the
premises housing such business or use must be inspected and found to be in
compliance with all laws, rules and regulations of the Health Department,
Fire Department, Village Building and Zoning Enforcement Officer, Fire Marshal
and other code enforcement officials.
C.
The Health Department, Fire Department, Village Building
and Zoning Enforcement Officer, Fire Marshal and other code enforcement officials
shall complete their certification that the premises is in compliance or not
in compliance within 20 days of the inspection of the premises by such officials.
Such certification shall be promptly presented to the Village Building and
Zoning Enforcement Officer.
D.
An applicant, permittee and/or licensee shall permit
representatives of the village administration or other village departments
or agencies to inspect the premises of a sexually oriented business, as defined
herein, for the purpose of ensuring compliance with the law at any time it
is occupied or open for business or at such other times as may be reasonable
or appropriate.
E.
The Village Building and Zoning Enforcement Officer shall
suspend the right to conduct any adult use, as defined herein, for a period
not to exceed 30 days if it is determined that the owner and/or operator or
an employee of the owner and/or operator of the sexually oriented business,
as defined herein, has:
(1)
Violated or is not in compliance with any section of
this chapter.
(2)
Engaged in use of alcoholic beverages while on the sexually
oriented business, as defined herein, premises.
(3)
Refused to allow an inspection of the sexually oriented
business, as defined herein, premises as authorized by this chapter.
(4)
Knowingly permitted gambling by any person on the sexually
oriented business, as defined herein, premises.
(5)
Knowingly allowed possession, use or sale of controlled
substances on the sexually oriented business, as defined herein, premises.
(6)
Knowingly allowed prostitution on the sexually oriented
business, as defined herein, premises.
(7)
Knowingly allowed any act of sexual intercourse, sodomy,
oral copulation, masturbation or other sexual conduct to occur in or on the
permitted and/or licensed premises.
(8)
Knowingly allowed any other act prohibited by law.
F.
Prior to any suspension, the Village Building and Zoning
Enforcement Officer shall provide the owner and/or operator of a sexually
oriented business, as defined herein, with a written notice stating the grounds
for suspension. The owner and/or operator has the right to submit a response
to this notice to the Village Building and Zoning Enforcement Officer within
10 days of receipt of said notice. Such response shall be made in writing.
G.
The Village Building and Zoning Enforcement Officer may
not suspend the right to conduct such an adult use, as defined herein, until
15 days after the notice is given to the owner and/or operator or until after
receiving the owner's and/or operator's response, whichever is sooner.
A.
Any adult use, as defined herein, by a sexually oriented
business, as defined herein, that is lawfully operating on the effective date
of this chapter, yet is in violation of the location or structural configuration
requirements of this chapter, shall be deemed a nonconforming use. Such nonconforming
use will be permitted to continue for a period not to exceed two years, unless
sooner terminated or voluntarily discontinued for any reason for a period
of 30 days or more. Such nonconforming uses shall not be increased, enlarged,
extended or altered except that the use may be changed to a conforming use.
B.
Any adult use, as defined herein, of a sexually oriented
business, as defined herein, lawfully operating as a conforming use is not
rendered a nonconforming use by the subsequent location of a church, public
or private elementary or secondary school, public park, day care, residential
district or a residential lot within 1,000 feet of the adult use, as defined
herein, or sexually oriented business, as defined herein.
A.
A person who knowingly owns, manages, operates, conducts
or maintains any adult use, as defined herein, in any way which is contrary
to this chapter shall be subject to prosecution under this chapter and shall
also be subject to injunction.
B.
The continuation of a violation of the provisions of
this chapter shall constitute a separate and distinct offense hereunder for
each day the violation is continued.
C.
Any person found in violation of this chapter
shall be guilty of a violation, punishable by a fine not to exceed $250 or
imprisonment for not more than 15 days, or both. Each day on which the violation
continues shall constitute a separate offense.
[Amended 3-8-1999 by L.L. No. 1-1999]
