[HISTORY: Adopted by the Town Board of the Town of Wales 10-1-1996 by L.L. No. 4-1996. Amendments noted where applicable.]
Zoning — See Ch. 200.
Editor's Note: This local law also provided for the repeal of L.L. No. 2-1996, which imposed a moratorium on the establishment of adult entertainment establishments within the Town.
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 of Wales and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the Town of Wales. 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 not the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment to the Constitution of the United States, or to deny access by distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene materials.
The following words or phases used in this chapter are defined as follows:
- 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, or 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 VIDEO STORE
- A commercial establishment which, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:
- A. Books, magazines, periodicals or other printed matter or photographs, films, motion pictures, videocassettes or video reproduction, slides or other visual representations which depict or describe specified sexual activities or specified anatomical areas.
- 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 specified anatomical areas and still be defined as an "adult bookstore" so long as one of its principal business purposes is the offering for sale or rental for consideration of 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; or
- B. Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
- C. Films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified anatomical areas or specified sexual activities.
- 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 transmission, 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; and has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions; or
- B. Offers sleeping rooms 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, videocassettes, 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.
- ADULT USES
- Adult arcades, adult bookstores, adult cabarets, adult motels, adult motion-picture theaters, adult theaters, adult video stores, escort agencies, nude model studios and sexual encounter centers.
- 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.
- 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 a 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.
- The appearance of a human bare buttocks, anus, genitals, or full female breast.
- 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 ORIENTED BUSINESS
- An adult arcade, adult bookstore or adult video store, 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 and/or the female genitals.
- SPECIFIED SEXUAL ACTIVITIES
- Any of the following:
- STATE OF NUDITY
- See "nudity."
- SUBSTANTIAL ENLARGEMENT
- The increase in floor area occupied by a sexually oriented business by more than 25% of the floor area as it exists on the effective date of this chapter.
- TRANSFER OF OWNERSHIP OR CONTROL
- Means and includes any of the following:
- A. The sale, lease or sublease of a sexually oriented business.
- B. The transfer of securities which constitute a controlling interest in a sexually oriented 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 a sexually oriented business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
Adult uses may be permitted in any M-Manufacturing District, as defined in § 200-30, upon issuance of a special permit by the Wales Town Board, pursuant to § 200-31, and shall also be subject to the following regulations:
An adult use may not be operated within 1,500 feet of another adult use or on the same lot or parcel of land as another adult use.
An adult use may not be operated in the same building, structure or portion thereof containing another adult use.
For the purposes of this chapter, 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 school or licensed child day-care center, or to the nearest boundary of an affected public park, residential district or residential lot.
For the purpose of this chapter, 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. Regardless of location or distance, no one who is passing by an enclosed building having a use governed by this chapter 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 M-Manufacturing District in the Town of Wales in accordance with the provisions of this chapter and Chapter 200, Zoning, of the Code of the Town of Wales.
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, ordinances, rules and regulations applicable to the use and occupancy for an adult use business and compliance with this chapter.
All code enforcement officials, including the Town Code Enforcement Officer and Town Fire Marshal, 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.
Any owner and/or operator, employee of the owner and/or operator or agent of the owner/operator shall permit representatives of the Erie County Sheriff's Department, New York State Police, County or State Health Department, Town Fire Marshal or Town Building Inspector, or other Town, county or state departments or agencies that have permitting authority regarding the use and/or premises, to inspect the premises of an adult use business for the purpose of ensuring compliance with this chapter, at any time it is occupied or open for business.
It shall be deemed a violation of this chapter if the owner and/or operator, an employee of the owner and/or operator, or an agent of the owner/operator has:
Violated, or is not in compliance with, any section of this chapter;
Refused to allow an inspection of the adult use business premises as authorized in this chapter;
Allowed gambling to occur on the adult use business premises;
Allowed the possession, use or sale of a controlled substance to occur on the premises;
Allowed prostitution to occur on the premises; and/or
Allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or other sexual conduct to occur on the premises.
Any person, firm, corporation or entity found to be violating any provisions of this chapter shall be served with a written notice by the Building Inspector or his designee, stating the nature of the violation and providing for immediate correction thereof. Such notice shall be served by one of the following methods:
By personal service.
By certified mail, return receipt requested, addressed to his or their last known address as shown on the latest completed assessment roll of the Town of Wales.
By posting of such notice in a conspicuous place upon the premises affected and a copy thereof mailed, addressed to his or their last known address as shown on the latest completed assessment roll of the Town of Wales.
Any person, firm, corporation or entity who shall violate any portion of this chapter shall be guilty of a violation and, upon conviction thereof, shall be fined in an amount not to exceed $500 for each violation. The continuation of a violation of the provisions of this chapter shall constitute, for each day the violation is continued, a separate and distinct offense hereunder.
The owner and/or any occupant and/or any tenant and/or general agent of a building, premises or part thereof where such a violation has been committed or does exist shall be guilty of such an offense.
Any person, firm, corporation or entity violating any of the provisions of this chapter shall become liable to the Town for any expense or loss or damage occasioned the Town by reason of such violation.