A.Â
Purpose. It is the purpose of this article to regulate sexually oriented
businesses, hereafter referred to as "adult establishments," in order
to promote the health, safety, morals and general welfare of the citizens
of the Town. Eradicating and preventing neighborhood blight, and the
character of the neighborhoods from adverse secondary effects associated
with adult establishments which contribute to such deterioration,
is a further goal of this article. The provisions of this article
have neither the purpose nor effect of imposing a limitation or restriction
on the content of any speech, including sexually oriented speech.
Similarly, it is not the intent nor effect of this article to restrict
or deny access by adults to speech protected by the First Amendment
and New York Constitution, or to deny access by the distributors and
exhibitors of sexually oriented speech to their intended market. It
is neither the intent nor effect of this article to condone or legitimize
the distribution of obscene material.
B.Â
Findings. The Supervisor and members of the Town Board of the Town
of Athens are all residents of the Town and represent districts in
the Town or the Town at large. The Supervisor and members of the Board
are familiar with the Town and the issues raised by adult establishment
types of businesses throughout the country. The Supervisor and Board
are also cognizant that AIDS, hepatitis and other sexually transmitted
diseases are serious health concerns. Based on local knowledge and
evidence concerning the impacts or "secondary effects" of adult uses
on the community, as presented in hearings and in reports made available
to the Board, on findings involving the effects of adult establishments
and public nudity incorporated in judicial decisions such as, but
not limited to: Town of Islip v Caviglia (73 NY2d 544 [1989]); Stringfellow's
of New York, Ltd v City of New York (91 NY2d 382 [1998]); City of
Erie v Pap's A.M. (146 L Ed2d 265 [2000]); City of Renton v Playtime
Theatres. Inc. (475 US 41 [1986]); Young v American Mini Theatres
(426 US 50 [1976]); and Barnes v Glen Theatre, Inc. (501 US 560 [1991]);
and on studies summarized by the Town's Ad-Hoc Committee, prepared
in 2002, and in other communities, including, but not limited to,
Kansas City, Missouri; Newport News, Virginia; St. Paul, Minnesota;
El Paso, Texas; City of New Rochelle, New York; Coxsackie, New York;
Phoenix, Arizona; Indianapolis, Indiana; Austin, Texas; Seattle, Washington;
and Tucson, Arizona, the Supervisor and Board find:
(1)Â
Adult establishments lend themselves to ancillary unlawful and unhealthy
activities that are not properly controlled by the operators of the
establishments. Further, there are not adequate legal provisions making
the owners of these establishments responsible for the activities
that occur on their premises.
(2)Â
Ancillary adverse secondary effects impact the community from adult
establishments, such as blight, neighborhood deterioration, increased
crime rate, decreased property values, increased demand on police
services, noise and general deterioration of the quality of life in
surrounding neighborhoods.
(3)Â
Persons frequent certain adult establishments for the purpose of
engaging in sexual activities within the premises of such adult establishments.
(4)Â
Communicable diseases may be spread by sexual activities, including,
but not limited to, human immunodeficiency virus (HIV), AIDS, hepatitis
B and venereal diseases.
(5)Â
AIDS, HIV, hepatitis B and venereal diseases are serious health concerns
in this state and country.
(6)Â
Adult establishments have operational characteristics which should
be reasonably regulated in order to protect the substantial governmental
concerns raised by the various findings herein.
(7)Â
A licensing procedure is an appropriate mechanism to place the burden
of reasonable regulation on the owners and the operators of the adult
establishments. Further, such a licensing procedure will place an
incentive on the operators to see that the adult establishment is
run in a manner consistent with the health, safety and welfare of
its patrons and employees, as well as the citizens of the Town. It
is appropriate to require reasonable assurances that the licensee
is the actual operator of the adult establishment and fully in possession
and control of the premises and activities occurring therein.
(8)Â
The disclosure of certain information by those persons ultimately
responsible for the day-to-day operation and maintenance of the adult
establishment, where such information is substantially related to
the significant governmental interest in the operation of such uses,
will aid in assuring that the adult establishment is operated appropriately.
(9)Â
The barring of such individuals from association with adult uses
for a period of years serves as a deterrent to and prevents conduct
which leads to unwanted sexual activities.
(10)Â
Regulations separating the performers who appear nude or seminude
in adult establishments from the patrons or customers protect the
performers, reduce the opportunity for illegal activities between
performers and patrons or customers and do not interfere with the
content of any performance.
(11)Â
Other less restrictive methods of addressing the problems caused
by adult uses, such as more aggressive enforcement of existing penal
and public nuisance laws and limiting adult-use zoning restrictions
to new establishments, could not adequately address problems this
article seeks to ameliorate.
(12)Â
There are no adult uses in the Town, so that placing adult establishment
uses in the light industrial districts will not reduce that number
and will afford reasonable space for adult establishments.
(13)Â
The general welfare, health, morals and safety of the citizens
of the Town will be promoted by the enactment of this article.
As used in this article, the following terms shall have the
meanings indicated:
A commercial establishment which is or includes an adult
bookstore, adult retail store, adult eating or drinking establishment,
adult theater or other adult commercial establishment, or any combination
thereof, as defined below.
ADULT BOOKSTOREA bookstore that offers printed or visual material for sale or rent to customers where a substantial portion of its stock-in-trade of printed or visual material consists of adult printed or visual material, defined as printed or visual material characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.
ADULT RETAIL STOREA business enterprise where a substantial portion of its stock-in-trade is sexually oriented materials, leather goods which are marketed or presented in a context to suggest their use in connection with specified sexual activities and/or sexually oriented toys and novelties for sale or rent to customers.
ADULT EATING OR DRINKING ESTABLISHMENTAn eating or drinking establishment which regularly features in any portion of such establishment any one or more of the following: live performances which are characterized by an emphasis on specified anatomical areas or specified sexual activities; or films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by an emphasis upon the depiction or description of specified anatomical areas or specified sexual activities; or employees who, as part of their employment, regularly expose to patrons specified anatomical areas; and which is not customarily open to the general public during such features because it excludes or restricts minors.
ADULT THEATERA commercial establishment which regularly features one or more of the following: films, motion pictures, videocassettes, slides, internet images or other photographic reproductions which are characterized by an emphasis upon the depiction or description of specified anatomical areas or specified sexual activities; or live performances which are characterized by an emphasis on specified anatomical areas or specified sexual activities; and which is not customarily open to the general public during such features because it excludes or restricts minors. An adult theater shall include commercial establishments where such materials or performances are viewed from one or more individual enclosures.
Another adult commercial establishment is a facility, other
than an adult bookstore, adult retail store, adult eating or drinking
establishment, adult theater, commercial studio or business or trade
school, which features employees who, as part of their employment,
regularly expose to patrons specified anatomical areas and which is
not customarily open to the general public during such features because
it excludes or restricts minors.
Defined terms:
For purposes of Subsection A of this definition, "printed or visual materials" are books, magazines or other printed matter, including product packaging or wrapping, or photographs, films, motion pictures, videocassettes, slides or other visual matter.
For purposes of Subsection B of this definition, "sexually oriented materials, toys and novelties" are instruments, devices or paraphernalia either designed as representations of human genital organs or female breasts or designed or marketed primarily for use to stimulate human genital organs, except medical devices approved by the Food and Drug Administration.
"Regularly features" or "regularly exposes" shall mean that
inspections on multiple days at multiple times establish that there
is occurring on a frequent, ongoing basis, with the inspector observing
any of the following or combination thereof:
Adult entertainment should be a principal form of entertainment
at the establishment. For theaters, adult entertainment should be
the principal purpose of the theater showing the adult material. "Regularly
feature" or "regularly expose" is not intended to cover establishments
that offer adult entertainment on an occasional basis.
For the purpose of Subsections A and B of this definition, a "substantial portion" of a store's stock-in-trade consists of adult printed, visual or retail material or sexually oriented materials, leather goods which are marketed or presented in a context to suggest their use in connection with specified sexual activities and/or sexually oriented toys and novelties if more than 10% of the stock-in-trade or sales and display area is devoted to adult printed, visual or retail material, sexually oriented materials, unless all of the adult printed, visual or retail material, sexually oriented toys and novelties are separated from other sales and display areas by an opaque wall at least eight feet in height with a management-controlled system of access to ensure that only persons over the age of 18 years are allowed to enter the area.
For the purposes of Subsection C of this definition, an "eating or drinking establishment" includes:
Any portion of a commercial establishment within which food
or beverages are offered for purchase or are available to or are consumed
by customers or patrons; and
Any portion of a commercial establishment from which a portion of a commercial establishment described in Subsection F(7)(a) above is accessible by customers or patrons.
Any of the following offenses, as defined in the New York
State Penal Law, or any similar offenses under the criminal or penal
code of other states or countries:
Prostitution offenses; obscenity and related offenses; sexual
performance by a child; possession or distribution of child pornography;
offenses against public sensibilities; sex offenses; unlawfully dealing
with a child.
For which:
Less than two years have elapsed since the date of conviction
or the date of release from confinement imposed for the conviction,
whichever is the later date, if the conviction is of a misdemeanor
offense;
Less than five years have elapsed since the date of conviction
or the date of release from confinement for the last conviction, whichever
is the later date, if the conviction is of a felony offense; or
Less than five years have elapsed since the date of the last
conviction or the date of release from confinement for the last conviction,
whichever is the later date, if the convictions are of two or more
misdemeanor offenses or combination of misdemeanor offenses occurring
within any two-year period.
The fact that a conviction is being appealed shall have no effect
on the disqualification of the applicant.
Includes any of the following:
The sale, lease or sublease of the business.
The transfer of securities which constitute a controlling interest
in the business, whether by sale, exchange or similar means.
The establishment of a trust, gift or other similar legal device
which transfers the ownership or control of the business.
A.Â
Adult establishments shall be permitted in the LI-1 and LI-2 Districts,
subject to the following conditions:
(1)Â
Adult entertainment uses must have direct road frontage.
(2)Â
Adult entertainment uses are prohibited within:
(a)Â
Five hundred feet of any Rr or Ru Zoning District.
(b)Â
Five hundred feet of any single-family, two-family or multiple-family
dwelling, including structures devoted to both residential and commercial
or business purposes.
(c)Â
Five hundred feet of any public or private school.
(d)Â
Five hundred feet of any church or other religious facility
or institution.
(e)Â
Five hundred feet of any public park, public bike path, playground
or playing field, cemetery, or civic, cultural or recreational facility.
(f)Â
Five hundred feet of another existing adult establishment.
(3)Â
The distances provided in Subsection A(2) shall be measured by following a straight line, without regard to intervening buildings, from the nearest point of the property parcel upon which the adult entertainment use is to be located to the nearest point of the parcel of the property or land use district boundary line from which the adult entertainment use is to be separated.
B.Â
Adult establishments are prohibited in the Rr, Ru, Ru-1, MUC, H,
Ru-385, Ag and OS Districts.
A.Â
It is unlawful for any person to operate an adult establishment without
a valid license issued by the Town pursuant to this section.
B.Â
Application for license.
(1)Â
An application to operate an adult establishment must be submitted
to the Town Clerk on a form provided by the Town.
(2)Â
All applicants must be qualified according to the provisions of this
section. The application may request and the applicant shall provide
such information as to enable the Town to determine whether the applicant
meets the qualifications established in this section.
(3)Â
If a person who wishes to operate an adult establishment is an individual,
the person must sign the application for a license as applicant. Each
applicant must be qualified according to the provisions of this section,
and each applicant shall be considered a licensee if a license is
granted.
(4)Â
The completed application for an adult establishment license shall
contain the following information and shall be accompanied by the
following documents:
(a)Â
If the applicant is:
[1]Â
An individual, the individual shall state his/her legal name
and any aliases and submit proof that he/she is at least 18 years
of age.
[2]Â
A partnership, the partnership shall state its complete name,
and the names of all partners, whether the partnership is general
or limited, and a copy of the partnership agreement, if any.
[3]Â
A corporation, the corporation shall state its complete name,
the date of its incorporation, evidence that the corporation is in
good standing under the laws of its state of incorporation, the names
and capacity of all officers and directors, and the name of the registered
corporate agent and the address of the registered office for service
of process.
(b)Â
If the applicant intends to operate the adult establishment
under a name other than that of the applicant, he or she must state
the adult establishment's fictitious name and submit copies of the
registration documents.
(c)Â
Whether the applicant has been convicted of a specified criminal
activity as defined in this section, and, if so, the specified criminal
activity involved, and the date, place and jurisdiction of each.
(d)Â
Whether the applicant has had a previous personal or business
license under this section or other similar adult establishment sections
from another city or county denied, suspended or revoked, including
the name and location of any adult establishment for which the permit
was denied, suspended or revoked, as well as the date of the denial,
suspension or revocation, and whether the applicant has been a partner
in a partnership or an officer or director of a corporation that is
licensed under this section whose license has previously been denied,
suspended or revoked, including the name and location of the adult
establishment for which the permit was denied, suspended or revoked,
as well as the date of denial, suspension or revocation.
(e)Â
Whether the applicant holds any other personal or business licenses
under this section or other similar adult establishment section from
another municipality and the names and locations of any such other
licensed businesses.
(g)Â
The location of the proposed adult establishment, including
a legal description of the property, street address and telephone
number(s), if any.
C.Â
Issuing authority. The Code Enforcement Officer shall be the issuing
authority for an adult establishment license.
D.Â
Granting or denial of adult establishment license.
(1)Â
Upon the filing of an application for an adult establishment license,
the application shall be referred by the Town Clerk to the Code Enforcement
Officer for an investigation to be made for compliance with this section
and with applicable fire, building, zoning, health and safety codes.
The investigation process shall be completed within 30 days from the
date the completed adult establishment application is filed. After
the investigation, the Code Enforcement Officer shall issue a license,
unless it is determined that one or more of the following is true:
(a)Â
An applicant has failed to provide information reasonably necessary
for the issuance of the license or has falsely answered a question
or request for information on the application form.
(b)Â
An applicant is under the age of 18 years.
(c)Â
An applicant has been convicted of a specified criminal activity.
(d)Â
The license is to be used for a business prohibited by local
or state law, statute, rule or regulation, or prohibited by a particular
provision of this section.
(e)Â
An applicant has had an adult establishment license, an adult
establishment manager license or an adult establishment employee license
revoked by the Town within two years of the date of the current application.
(f)Â
The premises to be used for the adult establishment is in violation
of applicable fire, zoning, building or health and safety laws and
ordinances.
(g)Â
The license fee required by this section has not been paid.
(h)Â
An applicant or the proposed establishment is in violation of
or is not in compliance with any of the provisions of this section.
(2)Â
The adult establishment license shall state on its face the name
of the person or persons to whom it is granted, the expiration date
and the address of the adult establishment.
(3)Â
Denial of a license. Denial of a license shall be subject to the
restrictions set forth in this article.
E.Â
Fees.
(1)Â
Every application for an adult establishment license (whether for
a new license or for renewal of an existing license) shall be accompanied
by the fee established by resolution of the Town Board, on file with
the Town Clerk.
(2)Â
All license applications and fees shall be submitted to the Town
Clerk.
F.Â
Inspections. An applicant shall permit representatives of the Code
Enforcement Officer to inspect the premises of an adult establishment
for the purpose of ensuring compliance with this section and applicable
fire, building, zoning, health and safety codes prior to its initial
opening for business and at any time it is occupied or open for business.
G.Â
Expiration of license.
(1)Â
Each license shall expire on January 31 following the date of issuance
and may be renewed by making application for renewal at least 30 days
and not more than 45 days before the expiration date. When application
for renewal is made less than 30 days before the expiration date,
the expiration of the license will not be affected.
(2)Â
A
license granted pursuant to this section shall be subject to annual
renewal unless the Code Enforcement Officer finds information since
the last time the license had been approved which would constitute
grounds to deny an initial license application or that there have
been violations of this section since the last time the license was
approved or an accumulation of violations within the last two license
years which would be grounds for suspension or revocation of the license.
The renewal of the license shall be subject to the payment of the
renewal fee.
(3)Â
When the Code Enforcement Officer denies renewal of a license, the
applicant shall not be issued a license for one year from the date
of denial.
H.Â
Procedure for denial of license or renewal. If the investigation
reveals cause to believe that a license or renewal of a license may
be denied in accordance with this section, the Code Enforcement Officer,
within 30 days after a completed application is filed, shall inform
the applicant, in writing, sent by first-class mail to the address
provided by the applicant in the application, of the possible reasons
for the denial and provide the applicant with 10 days within which
to review evidence, respond, in writing, and provide documentary evidence
to the contrary. The Code Enforcement Officer may extend the time
limit for response upon request of the applicant and for good cause.
If no response is made in a timely fashion, the Code Enforcement Officer
shall make a final determination within five days after the expiration
of the time to reply. If response is made in a timely fashion, the
Code Enforcement Officer shall make a final determination within five
days after the response is received. The final determination shall
be in writing and provide specific reasons for the denial. The status
quo shall be maintained until the final determination is made.
I.Â
Suspension of licenses. A license may be suspended for a period not to exceed 90 days, after a hearing held pursuant to the procedures in Subsection H of this section, if the hearing officer determines that a licensee has, within the preceding 12 months, violated or is not in compliance with any provision of this section.
J.Â
Revocation.
(1)Â
A license may be revoked, after a hearing, if it is determined that
a licensee has violated or is not in compliance with any provision
of this section and the license has been suspended within the preceding
12 months. All hearings shall be held by a hearing officer designated
by the Town Board to conduct the hearing and make a final determination.
The license holder shall be permitted to be represented by counsel
at the hearing, to submit evidence and summon witnesses on his/her
own behalf, to inspect opposing evidence and cross-examine opposing
witnesses. The burden of proof shall be upon the person bringing the
charges. Compliance with the technical rules of evidence shall not
be required.
(2)Â
The hearing officer may also revoke a license, after a hearing held as set forth in Subsection J(1) if he or she determines that:
(a)Â
A licensee, within two years, gave false or misleading information
in the material submitted during the application process;
(b)Â
A licensee, manager or employee of a licensee has violated or
is not in compliance with any section of this section within one year;
or
(c)Â
There has been an accumulation of violations of this section
within two years.
(3)Â
When the hearing officer revokes a license, the revocation shall
continue for two years, within which time period the licensee shall
not be issued an adult establishment license.
K.Â
Determinations resulting from a person's background or activities
at an adult establishment, with respect to the denial, suspension
or revocation of a license, which incidentally burden free expression,
shall be no broader than needed to achieve Town goals. The Code Enforcement
Officer is authorized to issue warning notices and/or grant conditional
licenses as a means of allowing expression while curbing unwanted
activities where violations are found but denial, suspension or revocation
is deemed not justified.
L.Â
Notices. All notices required to be sent by the Town shall be in
writing, sent by first-class mail to the address provided by the applicant
in the application.
M.Â
Prompt judicial review. Upon denial of an application or denial of
a renewal of a license, or suspension or revocation of any license,
the applicant or licensee may seek prompt judicial review of such
administrative action pursuant to Article 78 of the Civil Practice
Law and Rules. The denial of a renewal of a license, or suspension
or revocation of any license, shall be stayed for a period of 20 days
and, if a proceeding is brought to challenge the administrative action,
throughout the pendency of the proceeding in the trial court. The
administrative action shall be promptly reviewed by the court.
N.Â
Transfer of license. A licensee shall not transfer his/her license
to another, nor shall a licensee operate an adult establishment under
the authority of a license at any place other than the address designated
in the application.
O.Â
Additional regulations.
(1)Â
No person in or on the premises of an adult establishment shall engage
in any specified sexual activities.
(2)Â
No person shall appear seminude in or on the premises of a adult
establishment unless the person is an employee who, while seminude,
shall be on a stage or platform in the premises which is at least
18 inches above the immediate floor level and which is removed at
least six feet from the nearest customer.
(3)Â
No person shall appear nude in or on the premises of an adult establishment
unless the person is an employee who, while nude, shall be on a stage
or platform in the premises permanently anchored to the floor at least
18 inches above the floor level of the areas to which customers have
access and separated from the areas to which customers have access
by a continuous, permanently affixed barrier at least three feet in
height and located at least six feet from the areas to which customers
have access, which barrier shall consist of horizontal or vertical
members spaced no more than nine inches apart and no more than nine
inches from the floor or the walls to which they are attached.
(4)Â
No person shall be permitted or allowed to view another person in
an adult establishment who is nude or seminude from within a room
or booth in the premises which is not continuously open and visible
to persons in an adjacent public area of the premises, or from a viewing
area that is not at least 150 square feet in size.
(5)Â
No person shall appear nude or seminude, or knowingly allow another
to appear nude or seminude, in an area of an adult establishment which
can be viewed from off the premises.
(6)Â
No person in or on the premises of an adult establishment shall,
while nude or seminude, touch a customer or the clothing of a customer.
(7)Â
No employee in or on the premises of a adult establishment shall,
while nude or seminude, solicit any compensation or gratuity from
any customer.
(8)Â
No person shall pay or give a gratuity to an employee in or on the
premises of an adult establishment by giving the payment or gratuity
to, or placing the payment or gratuity on the body of or inside the
clothing of, the employee while the employee is nude or seminude.
(9)Â
No person shall allow a person under the age of 18 years in or on
the premises of an adult establishment.
(10)Â
No person shall consume or possess any alcoholic beverage in
or on the premises of an adult establishment, other than an alcoholic
beverage legally sold in the adult establishment for on-premises consumption
pursuant to the Alcoholic Beverage Control Law of the State of New
York.
(11)Â
No person shall bring any animal, except a guide dog, hearing
dog, service dog or police work dog, in or on the premises of an adult
establishment.
(12)Â
No employee, whether clothed or unclothed, shall sit in the
lap of or lay or lean against a customer and rub his or her genital
or pubic area, or her female breasts, against the customer; nor, whether
clothed or unclothed, allow the customer to touch his or her genitals
or pubic area or her female breasts.
(13)Â
The licensee or his/her manager, as identified in the approved
license application, must be present at the adult establishment during
business hours.
A.Â
Conflicting provisions. The provisions of this article shall be controlling
in the event of any conflict between the provisions of this article
and any other provisions of the Town Code.
B.Â
Penalties for offenses. Any person who violates this article shall
be subject to the penalties set forth in this chapter, and the Town
shall be authorized to seek said penalties as criminal fines in Town
Court or as civil penalties in a proceeding in Supreme Court or other
court of competent jurisdiction, along with other legal remedies,
including declaratory and injunctive relief.
C.Â
Severability. If any section, subsection or paragraph of this article
shall be deemed to be unconstitutional or otherwise invalid, the validity
of the remaining sections, subsections and clauses shall not be affected.