Town of Athens, NY Article VII Adult Establishments

§ 180-65 Purpose and findings.

A. 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. 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) 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) 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) Persons frequent certain adult establishments for the purpose of engaging in sexual activities within the premises of such adult establishments.

(4) Communicable diseases may be spread by sexual activities, including, but not limited to, human immunodeficiency virus (HIV), AIDS, hepatitis B and venereal diseases.

(5) AIDS, HIV, hepatitis B and venereal diseases are serious health concerns in this state and country.

(6) 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) 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) 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) 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) 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) 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) 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) The general welfare, health, morals and safety of the citizens of the Town will be promoted by the enactment of this article.

§ 180-66 Definitions.

As used in this article, the following terms shall have the meanings indicated:

ADULT ESTABLISHMENT

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.

A. ADULT BOOKSTORE A 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.

B. ADULT RETAIL STORE A 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.

C. ADULT EATING OR DRINKING ESTABLISHMENT An 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.

D. ADULT THEATER A 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.

E. 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.

F. Defined terms:

(1) 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.

(2) For purposes of Subsections A, B, C and D of this definition, "specified sexual activities" are:

(a) Human genitals in a state of sexual stimulation or arousal;

(b) Actual or simulated acts of human masturbation, sexual intercourse or sodomy; or

(c) Fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breast.

(3) For purposes of Subsections A, C and D of this definition, "specified anatomical areas" are:

(a) Less than completely and opaquely concealed:

[1] Human genitals, pubic region;

[2] Human buttock, anus; or

[3] Female breast below a point immediately above the top of the areola.

(b) Human male genitals in a discernibly turgid state, even if completely and opaquely concealed.

(4) 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.

(5) For purposes of Subsections C, D and E of this definition:

(a) "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:

[1] Observation of entertainment.

[2] Hours of operation.

[3] Posted show times.

[4] Advertisement(s).

[5] Sign(s) at the premises.

[6] Any other relevant indicia.

(b) 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.

(6) 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.

(7) For the purposes of Subsection C of this definition, an "eating or drinking establishment" includes:

(a) 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

(b) 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.

SPECIFIED CRIMINAL ACTIVITY

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:

A. 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.

B. For which:

(1) 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;

(2) 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

(3) 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.

C. The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.

TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS

Includes any of the following:

A. The sale, lease or sublease of the business.

B. The transfer of securities which constitute a controlling interest in the 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 the business.

§ 180-67 Adult establishments as permitted use.

A. Adult establishments shall be permitted in the LI-1 and LI-2 Districts, subject to the following conditions:

(1) Adult entertainment uses must have direct road frontage.

(2) Adult entertainment uses are prohibited within:

(a) Five hundred feet of any Rr or Ru Zoning District.

(b) 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) Five hundred feet of any public or private school.

(d) Five hundred feet of any church or other religious facility or institution.

(e) Five hundred feet of any public park, public bike path, playground or playing field, cemetery, or civic, cultural or recreational facility.

(f) Five hundred feet of another existing adult establishment.

(3) 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.

(4) Adult establishments must be licensed pursuant to § 180-68 of this chapter and comply with all regulations set forth in this chapter.

B. Adult establishments are prohibited in the Rr, Ru, Ru-1, MUC, H, Ru-385, Ag and OS Districts.

§ 180-68 License required.

A. It is unlawful for any person to operate an adult establishment without a valid license issued by the Town pursuant to this section.

B. Application for license.

(1) An application to operate an adult establishment must be submitted to the Town Clerk on a form provided by the Town.

(2) 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) 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) The completed application for an adult establishment license shall contain the following information and shall be accompanied by the following documents:

(a) If the applicant is:

[1] 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] 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] 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) 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) 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) 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) 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.

(f) If the applicant is employing a manager of the establishment, the information required in Subsection B(3) and (4) of this section must be supplied for the manager and the applicant.

(g) The location of the proposed adult establishment, including a legal description of the property, street address and telephone number(s), if any.

C. Issuing authority. The Code Enforcement Officer shall be the issuing authority for an adult establishment license.

D. Granting or denial of adult establishment license.

(1) 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) 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) An applicant is under the age of 18 years.

(c) An applicant has been convicted of a specified criminal activity.

(d) 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) 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) 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) The license fee required by this section has not been paid.

(h) An applicant or the proposed establishment is in violation of or is not in compliance with any of the provisions of this section.

(2) 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) Denial of a license. Denial of a license shall be subject to the restrictions set forth in this article.

E. Fees.

(1) 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) All license applications and fees shall be submitted to the Town Clerk.

F. 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. Expiration of license.

(1) 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) 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) 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.

(4) The denial of renewal of a license shall be subject to the procedures set forth in Subsection H of this section.

H. 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. 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. Revocation.

(1) 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) 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) A licensee, within two years, gave false or misleading information in the material submitted during the application process;

(b) 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) There has been an accumulation of violations of this section within two years.

(3) 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. 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. 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. 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. 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. Additional regulations.

(1) No person in or on the premises of an adult establishment shall engage in any specified sexual activities.

(2) 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) 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) 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) 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) 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) 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) 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) No person shall allow a person under the age of 18 years in or on the premises of an adult establishment.

(10) 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) 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) 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) The licensee or his/her manager, as identified in the approved license application, must be present at the adult establishment during business hours.

§ 180-69 General provisions.

A. 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. 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. 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.