[HISTORY: Adopted by the Town Board of the
Town of Walworth 3-20-2003 by L.L. No. 2-2003.[1] Amendments noted where applicable.]
The Town of Walworth, New York has determined
that certain regulations in the field of public entertainment are
needed and are necessary in order to promote the general good, health
and welfare of its citizens, including the children of the community.
The Town of Walworth therefore invokes the privilege and authority
given to it under the provisions of the Penal Law of the State of
New York and the general powers granted to said Town.
A.Â
It shall be unlawful for any female person to appear,
work, entertain, act or display herself in any cabaret, dance hall,
bar, tavern, lounge, discotheque, restaurant or any other public place
in the Town of Walworth, 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 full opaque covering or in such a manner that her genitals,
pubic area or buttocks are not covered with a fully opaque covering.
B.Â
It shall be unlawful for any male to appear, work,
entertain, act or display himself in any cabaret, dance hall, bar,
tavern, lounge, discotheque, restaurant or any other public place
in the Town of Walworth, New York, clothed or costumed in such a manner
that his genitals, pubic area or buttocks are not covered with a fully
opaque covering.
C.Â
It shall be unlawful for any person to knowingly conduct, maintain, own, lease, manage, operate or furnish any cabaret, dance hall, bar, tavern, lounge, discotheque, restaurant or any other public place in the Town of Walworth, New York, where a female or male person is not clothed, costumed or covered as required by Subsections A and B of this section.
This chapter shall be known as the "Adult Use
Business Regulations Law of the Town of Walworth."
Based upon a comprehensive study of the adverse
secondary impacts of adult use establishments as documented in accordance
with the ruling of the United States Supreme Court in the matter of
the City of Renton v. Playtime Theaters, Inc. [475 U.S. 41(1986)]
and commissioned by the Town Board of the Town of Walworth, the Town
of Walworth finds that:
A.Â
There are adverse secondary impacts associated with
the establishment and operation of adult-oriented businesses within
a community;
B.Â
Among these adverse secondary impacts are a deterioration
in the local quality of life, an adverse effect upon local property
values, an adverse effect upon local economic viability, an imposition,
whether intentional or unintentional, of exposure to adult-oriented
expression undesired by neighbors, pedestrians and passersby, an increase
in traffic, noise, litter and nuisance, criminal and illegal sexual
behavior, a threat to the health and safety of children and young
adults and an undermining of the established sense of community;
C.Â
These adverse secondary impacts of the establishment
and operation of adult-oriented businesses are a threat to the general
health, safety and economic viability of the community;
D.Â
The unregulated establishment and operation of adult-oriented
businesses would lead to the widespread imposition of adverse secondary
impacts upon the residents, businesses, economic viability, property
values and quality of life of the Town and would therefore be detrimental
to the general health, safety and economic viability of the community;
E.Â
The United States Constitution and the Constitution
and laws of the State of New York grant to the Town of Walworth the
powers, especially police powers, to enact reasonable legislation
and measures to regulate the location and operation of adult-oriented
businesses, hereinafter defined, in order to protect the general health,
safety and economic viability of the community.
A.Â
It is the express intent of the Town of Walworth in
adopting this chapter to:
(1)Â
Ameliorate, mitigate, reduce or prevent the widespread
and unregulated imposition of the adverse secondary impacts of adult-oriented
businesses upon the residents, businesses, economic viability, property
values, quality of life and general health, safety and welfare of
the community;
(2)Â
Protect the right of the free expression, guaranteed
by the United States Constitution and the New York State Constitution,
as may be expressed and presented in the form of goods and services
offered by adult-oriented businesses.
B.Â
It is not the intent of the Town of Walworth in adopting
this chapter to:
(1)Â
Deny any person the right of free expression, guaranteed
by the United States Constitution and the New York State Constitution,
as may be expressed and presented in the form of goods and services
offered by adult-oriented businesses; or
(2)Â
Impose upon any person any additional limitations
or restrictions upon the right of free expression, guaranteed by the
United States Constitution and the New York State Constitution, as
may be expressed and presented in the form of goods and services offered
by adult-oriented businesses, beyond those granted to the Town under
the United States Constitution, the New York State Constitution and
the laws of the State of New York regarding the time, place and manner
of that free expression. These constitutionally protected rights are
understood to include the right to sell, distribute and exhibit the
legal goods and services offered by adult-oriented businesses; or
(3)Â
Impose upon any person any additional limitations
or restrictions upon the right to obtain, view or partake of any communications
guaranteed by the United States Constitution and the New York State
Constitution, as may be expressed and presented in the form of goods
and services offered by adult-oriented businesses, beyond those granted
to the Town under the United States Constitution, the New York State
Constitution and the laws of the State of New York regarding the time,
place and manner of that free expression; or
(4)Â
Estimate, decide, determine, resolve, consider, conclude,
judge or qualify in any manner or fashion the quality or value of
the content, nature, message, form, format, appearance, substance
or presentation of the free expression guaranteed by the United States
Constitution and the New York State Constitution, as may be expressed
and presented in the form of goods and services offered by adult-oriented
businesses.
C.Â
Aware that, according to numerous decisions by both
federal courts and state courts of the State of New York, the regulation
of the location of adult businesses must be based upon a finding of
the adverse secondary impacts of these businesses upon the community
and must be directed solely toward the mitigation of these impacts,
not be directed toward any form of speech or expression, be no broader
than necessary and must provide alternative locations within the Town
for adult use businesses, the Town of Walworth hereby adopts the following
amendment to its Code.
[Amended 7-17-2003 by L.L. No. 3-2003]
As used in this chapter, the following terms
shall have the meanings indicated:
An establishment having a substantial or significant portion
of its stock-in-trade books, magazines and other periodicals which
are distinguished or characterized by their emphasis on matter depicting,
describing or relating to "specific sexual activities" or "specific
anatomical areas" as defined below.
An establishment which features live go-go dancers, exotic
dancers, strippers, male or female, male or female impersonators or
similar entertainers whose performances are characterized by partial
or full nudity.
A drive-in theater utilized for the presentation of materials
distinguished or characterized by their emphasis on matter depicting,
describing or relating to "specific sexual activities" or "specific
anatomical areas" as defined below for the observation of patrons
therein.
An enclosed building with a capacity of less than 50 persons
used for presenting material distinguished, characterized or relating
to "specific sexual activities" or "specific anatomical areas" as
defined below for the observation of patrons therein.
A building with a capacity of 50 persons or more used for
presenting material distinguished or characterized by their emphasis
on matter depicting, describing or relating to "specific sexual activities"
or "specific anatomical areas" as defined below for the observation
of patrons therein.
Any establishment, which offers or purports to offer, massages
or other physical contact to patrons of either gender by employees
or staff of either gender. Medical offices, offices of persons licensed
or authorized under the Education Law to practice massage therapy,
offices of persons licensed or otherwise authorized by the Education
Law as a physical therapist or physical therapist assistant and electrolysis,
karate, judo and dance studios are not to be considered adult physical
contact establishments under this chapter.
Any business which:
Is the use of land, structures or location for
an "adult entertainment business" or as an "adult physical contact
establishment" as herein defined; and
Is any use of land, structure or location which,
by the provisions of the Penal Law, is required to restrict the access
thereto by minors; and
Is an establishment, location, building or structure,
which features topless dancers, nude dancers or strippers, male or
female; and
Is a location, building or structure used for
presenting, lending or selling motion-picture films, video cassettes,
cable television or any other such visual media, or used for presenting,
lending or selling books, magazines, publications, photographs or
any other written materials distinguished or characterized by an emphasis
of matter depicting, describing or relating to "specific sexual activities"
or "specific anatomical areas" as defined below.
An establishment having as a substantial or significant portion
of its stock-in-trade video films, video cassettes or other films
for sale or rental which arc distinguished or characterized by their
emphasis on matter depicting, describing or relating to "specific
sexual activities" or "specific anatomical areas" as defined below.
Activities which show, demonstrate or where one performs:
Human genitals in a state of sexual stimulation
or arousal; or
Acts of human masturbation, sexual intercourse
or sodomy; or
Fondling or other erotic touching of human genitals,
pubic regions, buttocks or female breast; or
Less than completely and opaquely covered human
genitals, pubic region, buttock and female breast below a point immediately
above the top of the areola; or
Human male genitals in a discernible turgid
state, even if completely or opaquely covered.
A.Â
An overlay district is hereby established for adult
use businesses within that portion of the I Industrial District as
shown on the Walworth Zoning Map and shall be known as the "Adult
Use Business Overlay District."[1] All zoning requirements of the I Industrial District,
which are not superseded herein, shall apply to the Adult Use Business
Overlay District.
B.Â
The boundaries of the overlay district known as the
"Adult Use Business Overlay District" are superimposed over those
portions of the I Industrial District described as an area containing
the following parcels of land within the following tax account numbers:
the south part of a parcel of land now owned by Dolomite Products
Company, Inc., tax account No. 62115-00-454823, on the north, by a
line running in a westerly direction at a 90° angle where the
south line of a parcel of land owned or formerly owned by Sidney K.
and Evelyn P. Schoenwald, tax account No. 62115-00-274918 intersects
with the east line of a parcel of land owned or formerly owned by
Dolomite Products Company, Inc., tax account No. 62115-00-454823 to
the east line of said parcel of land owned or formerly owned by Dolomite
Products Company, Inc. and on the south, by the south line of the
said parcel of land owned or formerly owned by Dolomite Products Company,
Inc. and also a parcel of land owned or formerly owned by Dolomite
Products Company, Inc., tax account No. 62115-00-500574.
A.Â
No adult entertainment business shall be established
within 500 feet of any of the following:
B.Â
No adult entertainment business shall be established
within 300 feet of any residential dwelling.
C.Â
No sale of alcoholic beverages of any kind or nature shall be permitted within this overlay district and notwithstanding any other provision in Chapter 180, no sale of alcoholic beverages of any kind or nature shall be permitted within 1,225 feet of any adult business established within this overlay district.
D.Â
Any private booths or areas within such adult use
business, either for the viewing of motion pictures or live performances,
shall be subject to the following requirements:
(1)Â
Any and all such booths, cubicles, studios, studies
and rooms for the private viewing of adult motion-pictures and/or
live performances or areas shall be open to public view from the common
areas of the establishment and that there not be any doors, curtains,
blinds or other structures or devices that shall obstruct observation
of the viewing areas from the common area of the establishment.
(2)Â
That such private viewing areas shall be well-lighted
and readily accessible at all times and shall continuously be open
to view.
(3)Â
Lighting throughout the adult establishment shall
be sufficient to illuminate every area which patrons are permitted
access.
E.Â
Adult use businesses shall be conducted in an enclosed
building. It shall be a violation to display or exhibit in the open
air (outside of the establishment), through a window or by means of
a depiction or decoration, or to allow to be displayed or exhibited
any specific anatomical areas or specific sexual activities.
F.Â
The exterior appearance of any building containing
an adult use business shall be consistent with the character of surrounding
structures and shall not detract from the appearance of the neighborhood.
G.Â
Adult use businesses shall conform to all existing
applicable sign regulations in addition to the following specific
requirements:
(1)Â
Signs which are illuminated in neon or which contain
flashing lights shall be prohibited.
(2)Â
Exterior signs, displays or other advertisements which
contain nude, seminude or provocative pictures or silhouettes shall
be prohibited.
(3)Â
Interior signs, displays, posters or other advertisements
which contain nude, seminude or provocative pictures shall be located
a minimum of six feet from any window or door and shall not be visible
from the exterior of the establishment.
(4)Â
Permanent and/or temporary window and door signs shall
not occupy more than 20% of each window or door.
H.Â
Adult use businesses shall be required to meet all
design standards, construction specifications and site plan requirements
as required by the laws, rules and regulations of the Town of Walworth
and shall operate the business in compliance with such laws and the
laws, rules and regulations of the State of New York.
I.Â
Adult use businesses located within the overlay district
shall be:
(2)Â
Subject to the minimal dimensional requirements as set forth in § 180-14 of this Code pertaining to building height limit; required lot size; percentage of lot coverage; yards required (front, side and rear); landscaping; parking and signs and in regard to signs, the use thereof shall be further restricted by the provisions of § 180-40; and
(3)Â
Shall be buffered from neighboring property by berms,
screen plantings and ground cover to provide a visual and sound buffer
between the adult use business and properties contiguous to the sides
and rear.
A.Â
Violations and penalties for offenses. A violation
of this chapter is hereby declared to be an offense, punishable by
a fine not exceeding $250 or imprisonment for a period not to exceed
15 days, or both. However, for the purposes of conferring jurisdictions
on court and judicial officers, violations of this chapter shall be
deemed misdemeanors, and, for such purpose only, all provisions of
the law relating to misdemeanors shall apply to such violation. Each
day's continued violation shall constitute a separate violation.
B.Â
Injunctive relief. In case of any violation of this
chapter, the proper local authorities of the Town, in addition to
other remedies, may institute any appropriate action or proceeding
to prevent further violations of this chapter or to prevent any illegal
act or conduct.
