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.
EMPLOYEE
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.
INFLUENTIAL INTEREST
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.
LICENSEE
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.
MANAGER
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.
PREMISES
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.
RESTAURANT
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.
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.
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.
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.