[HISTORY: Derived from Chapter 38 of the 1975 Compilation, as amended through 1996. Subsequent amendments noted where applicable.]
Zoning — See Ch. 300.
It is the purpose of this chapter to regulate sexually explicit businesses, to promote the health, safety, morals or general welfare of the citizens of the City of Oneonta and to establish reasonable and uniform regulations to prevent the undue concentration of sexually explicit businesses within the City of Oneonta. The provisions of this chapter have neither the purpose nor the effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent of this article 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 purpose of this article to condone or legitimize the distribution of obscene materials.
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.
- ADULT BOOKSTORE or ADULT VIDEO STORE
- A commercial establishment which offers for sale or rental for any form of consideration any one or more of the following on 35% or more of its sales floor:
- A. Books, magazines, periodicals or other printed matter, or photographs, films, motion picture, video cassettes or video reproductions, slides or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or
- B. Instruments, devices or paraphernalia which 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 rental of material depicting or describing specified sexual activities or anatomical areas and still be categorized as 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 which depict or describe specified sexual activities or specified anatomical areas.
- ADULT CABARET
- A nightclub, bar, restaurant or similar commercial establishment which regularly features:
- A. Persons who appear in a state of nudity;
- B. Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
- C. Films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT MOTEL
- A hotel, motel or similar commercial establishment which:
- A. Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and has a sign visible from the public right-of-way which advertises the availability of this 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, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are regularly shown which 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 which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
- 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 person or business association who 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:
- A. The opening or commencement of any sexually oriented business as a new business.
- B. The conversion of an existing business, whether or not sexually oriented business, to any sexually oriented business.
- C. The additions of any sexually oriented business to any other existing sexually oriented business.
- D. The relocation of any sexually oriented business.
- NUDE MODEL STUDIO
- Any place where a person who appears in a state of nudity or displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons who pay money or any form of consideration, excepting such studios provided by a state-chartered educational institution or nonprofit entities.
- NUDITY OR A STATE OF NUDITY
- The appearance of a human bare buttocks, anus, male genitals, female genitals or full female breast.
- PERMITTEE AND/OR LICENSEE
- A person in whose name a permit and/or license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit and/or license.
- An individual, proprietorship, partnership, corporation, association or other legal entity.
- 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 supporting straps or devices.
- SEXUAL ENCOUNTER CENTER
- A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
- SEXUALLY EXPLICIT BUSINESS
- An adult arcade, adult bookstore or adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio or sexual encounter center.
- SPECIFIED ANATOMICAL AREAS
- The male genitals in a state of sexual arousal and/or the vulva or more intimate parts of the female genitals.
- SPECIFIED SEXUAL ACTIVITIES
- Includes any of the following:
- SUBSTANTIAL ENLARGEMENT OF A SEXUALLY ORIENTED BUSINESS
- The increase in floor areas occupied by the business by more than 25%, as the floor areas exist on date of enactment.
- TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS
- Includes any of the following:
- A. The sale, lease or sublease of the business.
- B. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means.
- C. The establishment of a trust, gift or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
The following uses as hereinbefore defined: adult arcades, adult bookstores or adult video stores, adult cabarets, adult motels, adult motion picture theaters, adult theaters, escort agencies, nude model studios and sexual encounter centers shall be designated "adult uses." Adult uses shall be a permitted use in any GBD or HID zone only, provided that:
An adult use may not be operated within 1,000 feet of another adult use or on the same lot or parcel of land.
An adult use may not be operated in the same building, structure or portion thereof containing another adult use.
For the purpose of this article, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as part of the premises where an adult use 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.
For purposes of Subsection C of this section, the distance between any two adult uses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
All adult uses shall be conducted in an enclosed building with a setback from any public street of at least 100 feet. Regardless of location or distance, no one who is passing by any enclosed building having a use governed by these provisions shall be able to visually see any specified anatomical area or any specified sexual activity by virtue of any display which depicts or shows said area or activity. This requirement shall apply to any display, decoration, sign, window or other opening.
A person may operate an adult use business only within the GBD or HID zone of the City of Oneonta only in accordance with the provisions of this statute.
Prior to the commencement of any adult use business or upon any transfer of ownership or control, the premises must be inspected and found to be in compliance with all laws, rules and regulations of the Health Department, Fire Department and City Building and Zoning Enforcement Officer, Fire Marshal and other code enforcement officials.
The Health Department, Fire Department and the City Code Enforcement Officer 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. The certification shall be promptly presented to the City Code Enforcement Officer.
The City Code Enforcement Officer shall suspend the right to conduct such adult use for a period not to exceed 30 days if he determines that the owner and/or operator or an employee of the owner and/or operator has:
Violated or is not in compliance with any section of this chapter.
Engaged in illegal use of alcoholic beverages while on the adult use business premises.
Refused to allow an inspection of the adult use business premises as authorized by this chapter.
Knowingly permitted gambling by any person on the adult use business premises.
Knowingly allowed possession, use or sale of controlled substances on the premises.
Knowingly allowed prostitution on the premises.
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.
An applicant, or permittee and/or licensee shall permit representatives of the City Police Department, Health Department, Fire Department, Code Enforcement Officer or other city departments or agencies to inspect the premises of an adult use business for the purpose of ensuring compliance with the law at any time it is occupied or open for business.
Prior to any suspension, the Code Enforcement Officer shall provide to the owner and/or operator a notice stating the grounds for the suspension. The notice stating the grounds shall be provided to the owner and/or operator in writing. The owner and/or operator has the right to appeal this notice in writing to the Code Enforcement Officer within 10 days of receipt of said notice. The Code Enforcement Officer may not suspend the right to conduct such adult use 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 person who knowingly owns, manages, operates, conducts or maintains any of the uses governed by these provisions in any way which is contrary to those regulations shall be subject to prosecution under this Code or by civil injunction by the City Attorney in any court of competent jurisdiction.
The continuation of a violation of the provisions of this article shall constitute, for each day the violation is continued, a separate and distinct offense hereunder.
Each violation of the provisions of this article shall subject the owner and/or operator to a fine in the amount of $250 for each such violation in addition to any other penalties otherwise imposed hereunder.