For purposes of this chapter, the words and
phrases defined in this section hereunder shall have the meanings
therein respectively ascribed to them unless a different meaning is
clearly indicated by the context.
ADULT BOOKSTORE or ADULT VIDEO STORE
A commercial establishment which, as one of its principal
business activities, offers for sale or rental for any form of consideration
any one or more of the following: books, magazines, periodicals or
other printed matter, or photographs, films, motion pictures, video
cassettes, compact discs, digital video discs, slides, or other visual
representations which are characterized by their emphasis upon the
display of specified sexual activities or specified anatomical areas.
A "principal business activity" exists where the commercial establishment:
A.
Has a substantial portion of its displayed merchandise
which consists of said items; or
B.
Has a substantial portion of the wholesale value
of its displayed merchandise which consists of said items; or
C.
Has a substantial portion of the retail value
(defined as the price charged to customers) of its displayed merchandise
which consists of said items; or
D.
Derives a substantial portion of its revenues
from the sale or rental, for any form of consideration of said items;
or
E.
Maintains a substantial portion of its interior
business space for the display, sale, and/or rental of said items
(aisles and walkways used to access said items shall be included in
interior business space maintained for the display, sale, or rental
of said items); or
F.
Maintains at least 500 square feet of its interior
business space for the display, sale, and/or rental of said items
(aisles and walkways used to access said items shall be included in
interior business space maintained for the display, sale, or rental
of said items) and limits access to the premises to adults only; or
G.
Offers for sale or rental at least 2,000 of
the foregoing items and limits access to the premises to adults only;
or
H.
Regularly features said items and regularly
advertises itself or holds itself out as an establishment that caters
to adult sexual interests by using "adult," "XXX," "sex," "erotic,"
or substantially similar language; or
I.
Maintains an "adult arcade," which means 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 regularly maintained to show images to
five or fewer persons per machine at any one time, and where the images
so displayed are characterized by their emphasis upon matter exhibiting
specified sexual activities or specified anatomical areas.
ADULT CABARET
A nightclub, bar, juice bar, restaurant, bottle club, or
similar commercial establishment which regularly features persons
who appear seminude.
ADULT ENTERTAINMENT BUSINESS
An adult bookstore or adult video store, an adult cabaret,
an adult motion-picture theater, a seminude model studio, or a sexual
device shop.
ADULT MOTION-PICTURE THEATER
A commercial establishment where films, motion pictures,
videocassettes, slides, or similar photographic reproductions which
are characterized by their emphasis upon the display of specified
sexual activities or specified anatomical areas are regularly shown
to more than five persons for any form of consideration.
CHARACTERIZED BY
Describing the essential character or quality of an item.
As applied in this chapter, no business shall be classified as an
adult entertainment business by virtue of showing, selling, or renting
materials rated NC-17 or R by the Motion Picture Association of America.
EMPLOY, EMPLOYEE, and EMPLOYMENT
These words describe and pertain to any person who performs
any service on the premises of an adult entertainment business, on
a full-time, part-time, or contract basis, regardless of whether the
person is denominated an employee, independent contractor, agent,
or otherwise. Employee does not include a person exclusively on the
premises for repair or maintenance of the premises or for the delivery
of goods to the premises. Employee does include any security guard
employed by an adult entertainment business or whose services are
performed on the premises of an adult entertainment business.
ESTABLISH or ESTABLISHMENT
Any of the following:
A.
The opening or commencement of any adult entertainment
business as a new business;
B.
The conversion of an existing business, whether
or not an adult entertainment business, to any adult entertainment
business; or
C.
The addition of any adult entertainment business
to any other existing adult entertainment business.
HEARING OFFICER
An attorney, not employed by the Village other than as a
hearing officer, who is licensed to practice law in the State of New
York and is retained to serve as an independent tribunal to conduct
hearings under this chapter.
INFLUENTIAL INTEREST
A.
The authority to manage or operate the adult
entertainment business or control the operation, management or policies
of the adult entertainment business or legal entity which operates
the adult entertainment business;
B.
Ownership of a financial interest of 30% or
more of a business or of any class of voting securities of a business;
C.
Holding an office (e.g., president, vice president,
secretary, treasurer, managing member, managing director, etc.) in
a legal entity which operates the adult entertainment business.
INTERIOR BUSINESS SPACE
The floor area inside an adult entertainment business that
is visible or accessible to patrons for any reason, excluding restrooms.
LICENSEE
A person in whose name a license to operate an adult entertainment
business has been issued, as well as the individual or individuals
listed as an applicant on the application for an adult entertainment
business license. In the case of an employee, it shall mean the person
in whose name the adult entertainment business employee license has
been issued.
MANAGER
Any person on the premises of an adult entertainment business
who causes the business to function or who puts or keeps in operation
the business or who is authorized to manage the business or exercise
overall operational control of the business premises. A person may
be found to be operating or causing to be operated an adult entertainment
business regardless of whether that person is an owner or part owner
of the business or a licensee under this chapter.
NUDITY or STATE OF NUDITY
The showing of the human male or female genitals, pubic area,
vulva, anus, anal cleft or cleavage with less than a fully opaque
covering, or the showing of the female breast with less than a fully
opaque covering of any part of the nipple and areola.
PERSON
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
PREMISES
The real property upon which the adult entertainment business
is located, and all appurtenances thereto and buildings thereon, including,
but not limited to, the adult entertainment business, the grounds,
private walkways, and parking lots and/or parking garages adjacent
thereto, under the ownership, control, or supervision of the licensee,
as described in the application for an adult entertainment business
license.
REGULARLY
The consistent and repeated doing of an act on an ongoing
basis.
SECURITY GUARD
A person who has a valid registration card to perform security
guard functions in the State of New York issued by the New York State
Department of State, Division of Licensing Services which has not
expired or been revoked or suspended.
SEMINUDE or STATE OF SEMINUDITY
The showing of the female breast below a horizontal line
across the top of the areola and extending across the width of the
breast at that point, or the showing of the male or female buttocks.
This definition shall include the lower portion of the human female
breast, but shall not include any portion of the cleavage of the human
female breasts exhibited by a bikini, dress, blouse, shirt, leotard,
or similar wearing apparel provided the areola is not exposed in whole
or in part.
SEMINUDE MODEL STUDIO
A place where persons regularly appear in a state of seminudity
for money or any form of consideration in order to be observed, sketched,
drawn, painted, sculptured, photographed, or similarly depicted by
other persons. This definition does not apply to any place where persons
appearing in a state of seminudity did so in a class operated:
A.
By a college, junior college, or university
supported entirely or partly by taxation;
B.
By a private college or university which maintains
and operates educational programs in which credits are transferable
to a college, junior college, or university supported entirely or
partly by taxation; or
C.
In a structure:
(1)
Which has no sign visible from the exterior
of the structure and no other advertising that indicates a seminude
person is available for viewing; and
(2)
Where, in order to participate in a class, a
student must enroll at least three days in advance of the class.
SEXUAL DEVICE
Any three-dimensional object designed for stimulation of
the male or female human genitals, anus, buttocks, female breast,
or for sadomasochistic use or abuse of oneself or others and shall
include devices commonly known as dildos, vibrators, penis pumps,
cock rings, anal beads, butt plugs, nipple clamps, and physical representations
of the human genital organs. Nothing in this definition shall be construed
to include devices primarily intended for protection against sexually
transmitted diseases or for preventing pregnancy.
SEXUAL DEVICE SHOP
A commercial establishment that regularly features sexual
devices. This definition shall not be construed to include any pharmacy,
drug store, medical clinic, any establishment primarily dedicated
to providing medical or healthcare products or services, or any establishment
that does not limit access to its premises or a portion of its premises
to adults only.
SPECIFIED ANATOMICAL AREAS
This term means and includes:
A.
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
B.
Human male genitals in a discernibly turgid
state, even if completely and opaquely covered.
SPECIFIED CRIMINAL ACTIVITY
Any of the following offenses, for which less than five years
have elapsed since the date of conviction of a felony or the date
of release from confinement for the conviction of a felony, whichever
is the later date, or for which less than two years have elapsed since
the date of conviction of a misdemeanor or the date of release from
confinement for the conviction of a misdemeanor, whichever is the
later date:
A.
An offense within §§ 120.00 through
and including 120.12 of the Penal Law relating to assault;
B.
An offense within Article 200 of the Penal Law
relating to bribery involving public servants;
C.
An offense within Article 210 of the Penal Law
relating to perjury;
D.
An offense within Article 220 of the Penal Law
relating to controlled substances;
E.
An offense within Article 221 of the Penal Law
relating to marihuana;
F.
An offense within Article 225 of the Penal Law
relating to gambling;
G.
An offense within Article 230 of the Penal Law
relating to prostitution;
H.
An offense within Article 245 of the Penal Law
relating to offenses against public sensibilities;
I.
An offense within §§ 260.20 and
260.21 of the Penal Law relating to unlawfully dealing with a child;
J.
An offense within Article 460 of the Penal Law
relating to enterprise corruption;
K.
An offense within Article 470 of the Penal Law
relating to money laundering;
L.
Any other crime committed in violation of the
laws of any other jurisdiction which if committed in this state would
constitute one of the foregoing offenses;
M.
Any offense which is a misdemeanor or felony
involving the adult entertainment business premises.
SPECIFED SEXUAL ACTIVITY
Any of the following:
A.
Intercourse, oral copulation, masturbation or
sodomy; or
B.
Excretory functions as a part of or in connection with any of the activities described in Subsection
A above.
TRANSFER OF OWNERSHIP OR CONTROL
Any of the following:
A.
The sale, lease, or sublease of the business;
B.
The transfer of securities which constitute
an influential interest in the business, whether by sale, exchange,
or similar means; or
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.
VIEWING ROOM
The room, booth, or area where a patron of an adult entertainment
business would ordinarily be positioned while watching a film, videocassette,
digital video disc, or other video reproduction.
VILLAGE
The Village of Port Chester, New York.
Each adult entertainment business license issued
under this chapter shall be posted and prominently displayed at the
main entrance of the establishment.
Adult entertainment business licensees shall
provide a manager or other responsible party on the premises when
the adult entertainment business is occupied by patrons or is open
to the public.
No license issued under the provisions of this
chapter shall be transferred or assigned to any person, or used by
any person, other than the licensee to whom it was issued. No adult
entertainment business license shall be used on any location other
than the location stated in such adult entertainment business license.
Adult entertainment businesses and adult entertainment
business employees shall permit employees of the Village to inspect,
from time to time on an occasional basis, the portions of the adult
entertainment business premises where patrons are permitted, for the
purpose of ensuring compliance with the specific regulations of this
chapter, during those times when the adult entertainment business
is occupied by patrons or is open to the public. This section shall
be narrowly construed by the Village to authorize only reasonable
inspections of the licensed premises pursuant to this chapter.
All preexisting adult entertainment businesses
lawfully operating in the Village in compliance with all state and
local laws prior to the effective date of this chapter, and all adult
entertainment business employees working in the Village prior to the
effective date of this chapter, are hereby granted a de facto temporary
license to continue operation or employment for a period of 90 days
following the effective date of this chapter. By the end of said 90
days, all adult entertainment businesses and adult entertainment business
employees must conform to and abide by the requirements of this chapter.
This chapter does not impose strict liability.
Unless a culpable mental state is otherwise specified herein, a showing
of a knowing or reckless mental state is necessary to establish a
violation of a provision of this chapter. Notwithstanding anything
to the contrary, for the purposes of this chapter, an act by an employee
that constitutes grounds for suspension or revocation of that employee's
license shall be imputed to the adult entertainment business licensee
for purposes of finding a violation of this chapter, or for purposes
of license denial, suspension, or revocation, only if an officer,
director, or general partner, or a person who managed, supervised,
or controlled the operation of the business premises knowingly or
recklessly allowed such act to occur on the premises. It shall be
a defense to liability that the person to whom liability is imputed
was powerless to prevent the act.
This chapter and each section and provision
of said Chapter hereunder, are hereby declared to be independent divisions
and subdivisions and, not withstanding any other evidence of legislative
intent, it is hereby declared to be the controlling legislative intent
that if any provisions of said chapter, or the application thereof
to any person or circumstance is held to be invalid, the remaining
sections or provisions and the application of such sections and provisions
to any person or circumstances other than those to which it is held
invalid shall not be affected thereby, and it is hereby declared that
such sections and provisions would have been passed independently
of such section or provision so known to be invalid. Should any procedural
aspect of this chapter be invalidated, such invalidation shall not
affect the enforceability of the substantive aspects of this chapter.
Any provision(s) in the Village Code, including the provisions of Chapter
206, Licensed Occupations, specifically in conflict with any provision in this chapter is hereby deemed inoperative as to adult entertainment business licenses and adult entertainment business employee licenses.