[HISTORY: Adopted by the Village Board of the Village of Port Chester 9-2-2008 by L.L. No. 8-2008. Amendments noted where applicable.]
The purpose of this chapter is to establish licensing requirements and operational regulations for restaurants that provide ancillary entertainment to protect the health, safety, and welfare of the community and to provide demarcation between entertainment that is incidental to a restaurant and entertainment that is more than incidental to a restaurant or other commercial establishment.
For the purpose of this chapter, the following words shall have the following meanings:
- ANCILLARY ENTERTAINMENT
- Activities and areas unrelated to the preparation and service of food to restaurant patrons, including but not limited to lounges, bars, live performance, and disc jockey areas.
- Any person who performs any service on the premises of a restaurant, 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 a restaurant or whose services are performed on the premises of a restaurant. Employee does not include an individual exclusively on the premises to engage in live entertainment provided by the restaurant.
- 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.
- A. The actual power to operate the restaurant or control the operation, management or policies of the restaurant or legal entity which operates the restaurant;
- B. Ownership of a financial interest of 30% or more of the restaurant or of any class of voting securities of the restaurant; or
- C. Holding an office (e.g., president, vice president, secretary, treasurer, managing member, managing director, etc.) in a legal entity which operates the restaurant.
- A person in whose name a license to operate a restaurant with ancillary entertainment has been issued, as well as the individual or individuals listed as an applicant on the application for a restaurant ancillary entertainment license.
- A person on the premises of the restaurant who is authorized to exercise, or who in fact exercises, control of the business premises. A person may be a manager regardless of whether that person is an owner of the business or a licensee under this chapter.
- The real property upon which the restaurant is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the restaurant, 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 a restaurant ancillary entertainment license.
- An establishment which prepares and serves food and beverages to patrons primarily for consumption at tables or a counter within the building. As used in this chapter, restaurant also includes drive-in restaurant, fast food restaurant, restaurant, full-service, and restaurant, carry out as those terms are or may be defined in Chapter 345, § 345-2 of the Code of the Village of Port Chester.
- 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 restaurant premises on or in which the ancillary entertainment is to be conducted.
It shall be unlawful for any person to conduct, maintain or operate, or engage in the business of conducting, maintaining or operating a restaurant with ancillary entertainment without a valid restaurant ancillary entertainment license.
An applicant for a restaurant ancillary entertainment license shall file at the office of the Village Clerk a complete application made on a form provided by the Village Clerk. If an individual seeks a restaurant ancillary entertainment license, he shall sign and certify the application for a license as applicant. If a person who seeks a restaurant ancillary entertainment license is other than an individual, each person with an influential interest in the restaurant or in a legal entity that controls the restaurant shall sign and certify the application as applicant. Each applicant must be qualified under this chapter and each applicant shall be considered a licensee if a license is granted.
An application for a restaurant ancillary entertainment license shall be considered complete when it is notarized and contains, for each person required to sign the application, the information and/or items required in this Subsection C, accompanied by the appropriate licensing fee:
The applicant's full legal name and any other names used by the applicant in the preceding five years. The application shall also include the name of the legal entity(ies) intending to operate the restaurant as well as the doing business as name of the restaurant.
Current business address or another mailing address for the applicant.
Written proof of age, in the form of a driver’s license, a picture identification document containing the applicant’s date of birth issued by a governmental agency, or a copy of a birth certificate accompanied by a picture identification document issued by a governmental agency.
[Amended 12-7-2009 by L.L. No. 14-2009]
The restaurant name, street address, legal description, mailing address, and phone number.
[Amended 12-7-2009 by L.L. No. 14-2009]
The name and business address of the statutory agent or other agent authorized to receive service of process for the operator of the restaurant.
A statement whether an applicant has been convicted of or has pleaded guilty or nolo contendre to a specified criminal activity as defined in this chapter, and if so, each specified criminal activity involved, including the date, place, and jurisdiction of each as well as the dates of conviction and release from confinement, where applicable. If an applicant has been convicted of, or has pled nolo contendere to, a specified criminal activity as defined in this chapter, the applicant shall include a statement of whether the conviction or plea is subject to a certificate of relief from disability or a certificate of good conduct pursuant to New York State Correction Law §§ 701-703-b.
[Amended 12-7-2009 by L.L. No. 14-2009]
Four copies of a sketch or diagram showing the configuration of the restaurant premises, including a statement of the total floor area occupied by the restaurant, a statement of the total floor area devoted to food preparation, and a statement of the total floor area devoted to ancillary entertainment. The sketch or diagram need not be professionally prepared but shall be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. The Village Clerk may waive the requirements of this Subsection C(7) for a renewal application if the applicant adopts a sketch or diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
[Amended 12-7-2009 by L.L. No. 14-2009]
A copy of the valid permit to operate a food service establishment at the restaurant issued by the Westchester County Health Department.
A copy of the current certificate of occupancy to operate the restaurant.
The information provided pursuant to this section shall be supplemented, in writing, to the Village Clerk within 10 working days of a change in circumstances which would render the information previously submitted false or incomplete.
An applicant may obtain an annual license which expires 12 months from the date of issuance, or an occasional license which may be issued for up to 20 days in a twelve-month period. An annual license may be renewed only by making application and payment of a fee as set forth in Village Code § 175-4.
Application for renewal of an annual license should be made no more than 60 days prior to the expiration of the current annual license, and when made less than 30 days before the expiration date, the expiration of the current license will not be affected.
Within 20 days of the filing of a complete restaurant ancillary entertainment license application, the Village Clerk shall either issue a license to the applicant or issue a written notice of intent to deny a license to the applicant. The applicant shall allow Village officials access to the floor area of the premises, during regular business hours, for the limited purpose of verifying compliance with the specific standards set forth in this chapter. The Village Clerk shall issue or renew a license unless:
The total floor area devoted to ancillary entertainment exceeds 25% of the total floor area of the establishment.
An applicant is less than 18 years of age.
An applicant has failed to provide information required by this chapter for issuance of a license or has falsely answered a question or request for information on the application form.
The applicant does not possess a valid permit from the Westchester County Health Department to operate a food service establishment at the restaurant.
The applicant does not possess a current certificate of occupancy to operate the restaurant.
The license application fee required by this chapter has not been paid.
An applicant has been convicted of or pled guilty or nolo contendre to a specified criminal activity, as defined in this chapter, provided that a specified criminal activity that is subject to a certificate of relief from disability or a certificate of good conduct pursuant to New York State Correction Law §§ 701 to 703-b shall not disqualify an applicant from receiving a license, nor shall an applicant be denied a license if such a denial would violate New York State Correction Law §§ 751 to 753.
[Amended 12-7-2009 by L.L. No. 14-2009]
An applicant has suffered or permitted the restaurant on or in which the ancillary entertainment is to be conducted, through improper or inadequate maintenance and supervision, to be used for the commission of any specified criminal activity as defined in this chapter.
Within the prior twenty-four-month period, two or more of any of the following have occurred on the premises of the establishment due to the knowing, reckless, or negligent conduct of an applicant:
Occupancy limits applicable to the establishment have been exceeded.
Exit doors have been locked while the premises are occupied.
Exits and/or aisles have been obstructed in violation of the fire code or building code.
Centralized fire alarm system or fire hood suppression system, as required by the NYS Building and Fire Code, have been inoperable or lacking from required locations.
Fights, assaults, or other disturbances of a similar nature have occurred on the premises.
Violations of the Alcoholic Beverage Control laws of the State of New York.
Within the prior sixty-month period, any of the following have occurred due to the knowing, reckless, or negligent conduct of an applicant:
A fire on the restaurant premises resulting in death or serious physical injury, as defined in Penal Law § 10.00, Subdivision 10, where one or more fire code violations existed on the premises at the time of the fire.
Death or serious physical injury, as defined in Penal Law § 10.00, Subdivision 10, arising out of an incident on the restaurant premises.
A riot, as defined in Penal Law § 240.05, taking place upon the premises or arising out of an incident on the premises and taking place, in whole or in part, within 200 feet of the restaurant premises.
The Village Clerk shall not issue or renew a license if an applicant has not paid any fine, penalty or judgment duly imposed in connection with or arising from the use, occupation or operation of the restaurant on which the ancillary entertainment is to be conducted.
The application fee for each annual restaurant ancillary entertainment license is set forth in Village Code § 175-4.
The application fee for each occasional restaurant ancillary entertainment license is set forth in Village Code § 175-4.
The applicable license fee shall be paid upon filing of an application for a license herein prescribed, in order to defray the cost of administering and enforcing this chapter, and shall not be refundable.
Each restaurant ancillary entertainment license issued under this chapter shall be posted and prominently displayed at the main entrance of the restaurant.
A licensee shall provide a manager or other responsible party on the premises throughout the entire time that entertainment is provided.
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, nor shall such license be used on any location other than the location stated in such license.
Restaurants with ancillary entertainment, and their employees, shall permit employees of the Village to inspect, from time to time on an occasional basis, the portions of the restaurant premises where patrons are permitted, for the purpose of ensuring compliance with the specific regulations of this chapter, during those times when the restaurant 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.
If, during the term of the licensing period, one or more persons with an influential interest in the licensed restaurant is substituted or added, such substituted or added person with an influential interest shall, within 10 days of such substitution or addition, file with the Village Clerk an application for an approval of the change of licensees on such forms as are prescribed by the Village Clerk. Within 10 days of such a submission, the Village Clerk shall approve the application, in writing, if the application meets the standards set forth in § 250-4. If the application does not meet the standards set forth in § 250-4, the Village Clerk shall, within 10 days of the submission, issue a written notice of intent to deny the license and shall follow the procedures set forth in § 250-14.
A restaurant that has obtained a restaurant ancillary entertainment license under this chapter may provide ancillary entertainment to the patrons of such establishments, provided that:
[Amended 12-7-2009 by L.L. No. 14-2009]
Live entertainment shall only be permitted between the hours of 9:00 a.m. and 2:00 a.m. the next day, inclusive;
No more than 25% of the total restaurant floor area may be used for ancillary entertainment;
Ancillary entertainment referenced in this section shall be permitted only within the interior of the restaurant establishment and shall be clearly subordinate in area, extent, hours of operation, and purpose to areas designated for food preparation, service, and consumption;
No recreational dancing by patrons shall be permitted;
No employee of the establishment shall knowingly or intentionally touch or make physical contact with the clothed or unclothed buttocks, breast, lap, groin area, or pubic area of a patron on the premises of the establishment; and
No patron of the establishment shall knowingly or intentionally touch or make physical contact with the clothed or unclothed buttocks, breast, lap, groin area, or pubic area of an employee on the premises of the establishment.
Upon request of a patron or guest of a restaurant, such patron or guest shall be furnished with a clearly printed menu or other written list that itemizes the prices charged for food and drink sold before he or she is served, or, in the alternative, one or more signs reciting such itemized prices may be placed in conspicuous locations within the premises so as to be readily observable to all patrons and guests.
The Village Clerk may issue a written notice of intent to suspend a restaurant ancillary entertainment license for a period not to exceed 30 days if the licensee has knowingly violated this chapter or has knowingly allowed an employee or any other person to violate this chapter.
The Village Clerk shall issue a written notice of intent to revoke a restaurant ancillary entertainment license if the licensee knowingly violates this chapter or has knowingly allowed an employee or any other person to violate this chapter and a suspension of the licensee's license has become effective within the previous twelve-month period.
The Village Clerk shall issue a written notice of intent to revoke a restaurant ancillary entertainment license if:
A licensee has knowingly given false information in the application for the restaurant ancillary entertainment license;
A licensee has knowingly or recklessly engaged in or allowed possession, use, or sale of controlled substances on the premises of the restaurant;
A licensee has knowingly or recklessly engaged in or allowed prostitution on the premises of the restaurant;
A licensee knowingly or recklessly allowed ancillary entertainment in the restaurant during a period of time when the restaurant ancillary entertainment license was finally suspended or revoked;
A licensee is convicted of any specified criminal activity as defined in this chapter;
A licensee has knowingly or recklessly engaged in or allowed any specified sexual activity or specified criminal activity to occur in or on the premises of the restaurant;
The fact that any relevant conviction is being appealed shall have no effect on the revocation of the license, provided that, if any conviction which serves as a basis of a license revocation is overturned or reversed on appeal, that conviction shall be treated as null and of no effect for revocation purposes.
When, after the notice and hearing procedure described in this chapter, the Village revokes a restaurant ancillary entertainment license, the revocation shall continue for one year and the licensee shall not be issued any restaurant ancillary entertainment license for one year from the date revocation becomes effective.
When the Village Clerk issues a written notice of intent to deny, suspend, or revoke a license, the Village Clerk shall immediately send such notice, which shall include the specific grounds under this chapter for such action, to the applicant or licensee (respondent) by personal delivery or certified mail. The notice shall be directed to the most current business address or other mailing address on file with the Village Clerk for the respondent. The notice shall specify a date, not less than 10 days nor more than 20 days after the date the notice is issued, on which the hearing officer shall conduct a hearing on the Village Clerk's written notice of intent to deny, suspend, or revoke the license.
At the hearing, the respondent shall have the opportunity to present all of respondent's arguments and to be represented by counsel, present evidence and witnesses on his or her behalf, and cross-examine any of the Village Clerk's witnesses. The Village Clerk shall also be represented by counsel and shall bear the burden of proving the grounds for denying, suspending, or revoking the license. The hearing shall take no longer than two days, unless extended at the request of the respondent to meet the requirements of due process and proper administration of justice. The hearing officer shall issue a written decision, including specific reasons for the decision pursuant to this chapter, to the respondent within five days after the hearing.
If the decision is to deny, suspend, or revoke the license, the decision shall not become effective until the 30th day after it is rendered, and the decision shall include a statement advising the respondent of the right to appeal such decision to a court of competent jurisdiction. If the hearing officer's decision finds that no grounds exist for denial, suspension, or revocation of the license, the hearing officer shall, contemporaneously with the issuance of the decision, order the Village Clerk to immediately withdraw the intent to deny, suspend, or revoke the license and to notify the respondent, in writing, by certified mail of such action. If the respondent is not yet licensed, the Village Clerk shall contemporaneously therewith issue the license to the applicant.
If any court action challenging a licensing decision is initiated, the Village shall prepare and transmit to the court a transcript of the hearing within 10 days after receiving written notice of the filing of the court action. The Village shall consent to expedited briefing and/or disposition of the action, shall comply with any expedited schedule set by the court, and shall facilitate prompt judicial review of the proceedings. The following shall apply to any licensee that possesses a valid annual restaurant ancillary entertainment license on the date on which the complete application is filed with the Village Clerk. Upon the filing of any court action to appeal, challenge, restrain, or otherwise enjoin the Village's enforcement of the denial, suspension, or revocation, the Village Clerk shall immediately issue the respondent a provisional license. The provisional license shall allow the respondent to continue providing entertainment as an ancillary use to a restaurant under this chapter and will expire upon the court's entry of a judgment on the respondent's appeal or other action to restrain or otherwise enjoin the Village's enforcement.
Any person who violates, disobeys, omits, neglects, or refuses to comply with or resists the enforcement of any of the provisions of this chapter shall be guilty of a violation and, upon conviction, be subject to a fine of not less than $750 nor greater than $900 for each offense. Each day a violation is committed, or permitted to continue, shall constitute a separate offense and shall be fined as such.
[Amended 12-7-2009 by L.L. No. 14-2009]
The Village Attorney is hereby authorized to institute civil proceedings necessary for the enforcement of this chapter to prosecute, restrain, or correct violations hereof. Such proceedings, including suit for an injunction, shall be brought in the name of the Village; provided, however, that nothing in this section and no action taken hereunder shall be held to exclude such criminal or administrative proceedings as may be authorized by other provisions of this chapter or any of the laws in force in the Village or to exempt anyone violating this Code or any part of the said laws from any penalty which may be incurred.
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 shall be imputed to the restaurant ancillary entertainment 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 restaurant ancillary entertainment licenses.