Zoning — See Ch. 110.
§ 88-2Considerations and declarations.
§ 88-4License required for operation
§ 88-5Powers of Planning Board.
§ 88-6License application; contents; term; fee.
§ 88-7Location restrictions.
§ 88-8Grant of license to certain persons prohibited.
§ 88-9License application procedure.
§ 88-10Provisions governing licenses.
§ 88-11Prohibited actions.
§ 88-12Licensees to file bond.
§ 88-13Revocation of license.
§ 88-14Civil penalties.
The purpose of this chapter is to establish an adult use law to protect the public health, safety, and welfare of its citizens, safeguard the economic and social well being of the Town of Potsdam and prevent the negative secondary effects associated with adult use establishments.
In the execution of this chapter it is recognized that there are some uses, which due to their very nature have serious objectionable characteristics. The objectionable characteristics of these uses are further heightened by their concentration in any one area, thereby having deleterious effects on adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhoods or land uses.
It is further declared that the location of these uses in regard to areas where our youth may regularly assemble and the general atmosphere encompassing their operation is of great concern to the Town of Potsdam.
These special regulations are itemized in this section to accomplish the primary purposes of preventing a concentration of these uses in any one area and restricting their accessibility to minors.
As used in this chapter, the following terms shall have the following meanings:
- ADULT BOOK AND/OR VIDEO STORE
- An establishment having a substantial or significant portion (more than 25% of merchandise in number, value or bulk and/or more than 10% of floor area) of its stock-in-trade books, magazines, periodicals or other printed or digital matter or photographs, films, videos, slides or other visual representations, which are characterized by the exposure or emphasis of specified sexual activities or specified anatomical areas or instruments, devices or paraphernalia, which are designed for use in connection with specified sexual activities, which are for sale, rental or viewing on or off the premises.
- ADULT ENTERTAINMENT CABARET
- A public or private establishment which regularly presents topless and/or bottomless dancers, strippers, waiters or waitresses, male or female impersonators, lingerie models or exotic dancers, or other similar entertainment or films, motion pictures, digitalized CDs or videos, slides or other photographic material, or which utilizes employees, who, as part of their employment, regularly expose patrons to specified sexual activities or specified anatomical areas.
- ADULT MODEL STUDIO
- 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; are acceptable if duly licensed by the Board of Regents of the State of New York as an educational institution.
- ADULT MOTION-PICTURE THEATER
- Any motion-picture theater where, for any form of consideration, films, motion pictures, digital CDs or videocassettes, slides or other photographic or digital reproductions are shown, and in which a substantial portion of the total presentation time is devoted to the showing of material characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT THEATER
- A theater, concert hall, auditorium or similar establishment which, for any form of consideration, regularly features live performances characterized by the exposure of specified sexual activities or specified anatomical areas.
- Ethyl alcohol or hydrated oxide of ethyl from whatever source or by whatever process produced.
- ALCOHOLIC BEVERAGE
- Includes alcohol, spirits, liquor, wine, beer, cider and every liquid or solid, containing alcohol, spirits, wine or beer and capable of being consumed by a human being.
- The person applying for a license to conduct a sexually oriented business.
- The application for a license to operate a sexually oriented business.
- BUILDING CONTAINING LICENSED PREMISES
- The licensed premises and also any part of a building in which such premises is contained and any part of any other building connected with such building by direct access or by a common entrance.
- A license issued pursuant to this chapter.
- Any person to whom a license is issued pursuant to this chapter.
- MASSAGE ESTABLISHMENT
- An establishment having a fixed place of business where massages are administered for pay, including, but not limited to, massage parlors, sauna baths or steam baths. This definition shall not be construed to include a hospital, nursing home or medical clinic or the office of a physician, surgeon, chiropractor, osteopath, duly licensed physical therapist or duly licensed massage therapist or barbershop or beauty salon, athletic club, health club, school, spa or similar establishment where massage or similar manipulation of the human body is offered as an incidental accessory service.
- The person responsible for the overall operation and supervision of a sexually oriented business.
- The person who owns a sexually oriented business.
- PEEP SHOWS
- A theater which presents materials distinguished or characterized by primary emphasis on matters depicting, describing or relating to specified sexual activities or specified sexual anatomical areas, in the form of live shows, films or videotapes, viewed from an individual enclosure, for which a fee is charged.
- An individual, partnership, corporation or any other legal entity.
- The premises licensed pursuant to this chapter and on which a sexually oriented business may be operated.
- SEXUALLY ORIENTED BUSINESS
- Any commercial activity which sells, rents, shows, exhibits, or makes available for sale, rent, showing or exhibition, any material or entertainment distinguished or characterized by an emphasis on depicting or description of specified anatomical areas or of specified sexual activity and shall include, but not be limited to, adult arcades, adult markets, adult motion-picture theaters, adult theaters and adult video rental/sale stores.
- SPECIFIED SEXUAL ACTIVITIES
- Human genitals in a state of sexual stimulation or arousal; or acts of human masturbation, sexual intercourse, oral copulation or sodomy; or fondling or other erotic touching of human genitals, pubic region, buttocks or breasts.
- SPECIFIED ANATOMICAL AREAS
- Less than completely and opaquely covered human genitals, pubic region, buttock and female breast below a point immediately above the top of the areola; and human male genital in a discernible turgid state even if completely and opaquely covered.
No person shall operate a sexually oriented business within the Town of Potsdam without obtaining a license therefor.
The Town Planning Board shall have the following functions, powers and duties:
After a public hearing, to issue or refuse to issue an initial license provided for in this chapter; and without a public hearing, to issue or refuse to issue a renewal license provided for in this chapter.
To revoke, cancel or suspend any license provided for in this chapter and/or to impose a civil penalty hereinafter described against a licensee, for cause and after hearing. The Town Board may authorize, by resolution, the Town Court of the Town of Potsdam to conduct and adjudicate such hearing under this chapter, or as a violation of Chapter 110, Zoning.
To inspect or provide for the inspection of any premises upon which a sexually oriented business is operated. The Town Board may delegate, by resolution, this function/power/duty to the Code Enforcement Officer of the Town of Potsdam.
To prescribe forms of applications for initial and renewal licenses under this chapter and of all reports which it deems necessary to be made by any licensee.
Any person may apply to the Town Planning Board for a license to operate a sexually oriented business within the Town of Potsdam or for a renewal thereof.
Such license shall contain a description of the licensed premises and in form and substance shall be a license to the person therein specifically designated to operate a sexually oriented business on the premises therein specifically licensed.
Such license shall be valid for a period of one year from the date it is issued.
The annual license fee shall be $1,000.
No license shall be granted under this chapter for any premises which are located within a distance of:
One thousand four hundred feet of any zoning district which is zoned R-1 or R-2.
One thousand four hundred feet of any single-family, two-family or multiple-family dwelling, including structures devoted to both residential and commercial or business purposes, any public or private school, any church or other religious facility or institution.
Five hundred feet of any public park, public bike path, playground or playing field, cemetery, civic or recreational facility.
Five hundred feet of another existing adult entertainment use.
No license shall be granted under this chapter to the following persons:
A person who is under 21 years of age.
A person who has been convicted of a felony.
A person who is not a citizen of the United States, nor an alien not lawfully admitted for permanent residence in the United States.
A partnership or corporation, unless each member of the partnership, or each of the principal officers and directors of the corporation, is a citizen of the United States or an alien lawfully admitted for permanent residence in the United States, is not under 21 years of age and has not been convicted of a felony.
A person who has been convicted of any violation of this chapter or who shall have had any license issued under this chapter revoked for cause, until the expiration of two years from the date of such conviction or revocation.
A partnership or corporation, if any partner, officer or director has been convicted of a violation of this chapter or shall have had any license revoked for cause, until the expiration of two years from the date of such conviction or revocation.
No license shall be granted for any premises unless the applicant shall be the owner thereof, or shall be in possession of said premises under a lease, in writing, for a term not less than the license period.
Such application shall be in writing and verified and shall contain such information as the Town Planning Board shall require and be submitted on forms provided for that purpose by the Town Planning Board. Such application shall be accompanied by a certified check, bank officer's check or draft or money order for the amount required by this chapter for such license and the application filing fee. In case of applications for renewals, the Town Planning Board may dispense with such information, as it deems unnecessary in view of the information contained in the application made for the initial license.
The application-filing fee for an initial license shall be $2,500. The application-filing fee for a renewal license shall be $1,000.
The application for an initial license or a renewal license must be filed with the Town Planning Board at a regular meeting thereof.
At its regular meeting next following the meeting at which the application for an initial license was filed, the Town Planning Board shall designate a date upon which it will hold a public hearing for the purpose of hearing all interested persons. Said public hearing shall be held not more than 45 days after the meeting of the Town Planning Board at which the date therefor was designated. Notice of said public hearing shall be published in the official newspapers of the Town not less than 15 days prior to the date upon which said public hearing is noticed to be held. Not more than 60 days following the date of said public hearing, the Town Planning Board shall decide to grant or to deny the application. The decision of the Town Planning Board shall be in writing and shall set forth the reasons for its decision and shall be filed with the Town Clerk. The decision of the Town Planning Board may be reviewed under Article 78 of the Civil Practice Law and Rules, provided that the Article 78 proceeding is commenced within 30 days of the date upon which the decision of the Planning Board is filed with the Town Clerk.
At its regular meeting next following the meeting at which the application for a renewal license was filed, the Town Planning Board shall decide to grant or to deny the application. The decision of the Town Planning Board shall be in writing and shall set forth the reasons for its decision and shall be filed with the Town Clerk. The decision of the Town Planning Board may be appealed under Article 78 of the Civil Practice Law and Rules, provided that the Article 78 proceeding is commenced within 30 days of the date upon which the decision of the Planning Board is filed with the Town Clerk.
If there be any change, after the granting of any license, in any of the facts required to be set forth in the application therefor, a supplemental statement giving notice of such change, duly verified, shall be filed with the Town Planning Board within 10 days after such change. Failure to do so shall, if willful and deliberate, be cause for revocation of the license and the imposition of a civil penalty hereinafter described against the licensee. In giving any notice or taking any action in reference to a licensee or licensed premises, the Town Planning Board may rely upon the information furnished in such application and in any supplemental statement connected therewith, and such information may be presumed to be correct, and shall be binding upon a licensee or licensed premises as if correct. All information required to be furnished in such application or supplemental statements shall be deemed material in any prosecution for perjury.
No licensee shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverage for consumption on or off the licensed premises.
No licensee shall permit or suffer any person under the age of 21 years to enter or remain in the licensed premises.
No licensee shall employ or hire or suffer or permit any person under the age of 21 years to work in the premises.
No licensee shall suffer or permit any gambling in the licensed premises, or suffer or permit such premises to become disorderly.
A license issued to any person pursuant to this chapter for any licensed premises shall not be transferable to any other person or to any other premises or to any other part of the building containing the licensed premises. It shall be available only to the person therein specified, and only for the premises licensed and no other.
It shall be unlawful for any female person to appear, work, entertain, act or display herself in any sexually oriented business or any other public place in the Town of Potsdam, New York, clothed or costumed in such a manner that a portion of her breast below the top of the areola is not covered with a fully opaque covering or in such a manner that her genitals, pubic area or buttocks are not covered with a fully opaque covering.
It shall be unlawful for any male to appear, work, entertain, act or display himself in any sexually oriented business or any other public place in the Town of Potsdam, New York, clothed or costumed in such a manner that his genitals, pubic area or buttocks are not covered with a fully opaque covering.
It shall be unlawful for any person to knowingly conduct, maintain, own, lease, manage, operate or furnish any sexually oriented facility or any other public place in the Town of Potsdam, New York, where a female or male person is not clothed, costumed or covered as required by Subsections A and B of this section set forth immediately above.
It shall be unlawful to encourage or permit any person in or on the premises to touch, caress or fondle the breasts, buttocks or genitals of any other person.
It shall be unlawful to employ or permit any person to wear or use any device or covering exposed to view which simulates the breasts, buttocks or genitals of any other person.
It shall be unlawful to employ or permit any person in or on the premises to perform an act or acts or to simulate the act or acts of:
It shall be unlawful to employ or permit any person in or on the licensed premises to show motion-picture films, television-type cassettes, still pictures or other photographic or digital reproduction depicting any of the acts or any simulation of any of the acts prohibited in Subsections A through G hereof.
The licensee shall file with the Town Clerk a bond to the Town of Potsdam issued by a surety company, approved by the New York State Insurance Department and authorized to transact business in New York State, in the penal sum of $100,000, conditioned that such licensee will not suffer or permit any violation of the provisions of this chapter and that all fines and penalties which shall accrue, during the time the license shall be in effect, will be paid, together with all costs taxed or allowed in any action or proceeding brought or instituted for a violation of any of the provisions of this chapter. A suit to recover on any bond filed pursuant to this chapter may be brought by the Town of Potsdam in a court of competent jurisdiction, and in the event that the obligor named in such bond has violated any of the conditions of such bond, recovery for the penal sum of such bond may be had in favor of the Town of Potsdam.
Any license issued pursuant to this chapter may be revoked, canceled or suspended and/or a civil penalty, hereinafter described, may be imposed against the licensee for the following causes:
In the event that a person, corporation, partnership or other entity, regardless of whether such is a licensee or not, is found to have violated any provision of this chapter, in addition to any other disposition or sanction allowed for, and set forth in this chapter, a civil penalty of up to $1,000 may be imposed upon and against such person, corporation, partnership or other entity for each violation. Each act, which is found to violate any provision of this chapter shall be deemed a separate violation, and each day any such act occurs, shall be deemed to be a separate violation.