[HISTORY: Adopted by the Town Board of the Town of Geneva 7-9-2002 by L.L. No. 2-2002. (This local law was adopted as Ch. 166, but was renumbered to fit into the organizational scheme of the Code.) Amendments noted where applicable.]
The purpose of this chapter is to promote the health, safety, morals and general welfare of the citizens of the Town of Geneva, New York and to establish reasonable and uniform regulations regarding the location and concentration of sexually oriented businesses within the Town of Geneva, New York. It is not the intent of this chapter to impose a limitation or restriction on the content of any communicative materials, including sexually oriented materials. It is not the intent of this chapter to impose any restriction by any adult to access of sexually oriented materials protected by the First Amendment of the United States Constitution or Article 6 of the New York State Constitution nor to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market; neither is it the intent nor the effect of this chapter to condone or legitimize the distribution or dissemination of obscene materials.
The Town Board has established a citizens committee to study the effects of the establishment of an adult use or adult entertainment business within the Town of Geneva and provided said committee with resources to study the nature of business within the Business Zones and the Industrial Zone in the town of Geneva and to make recommendations to the Town Board relating to the effect of establishment of adult use or adult entertainment business in said business districts.
The Town Board has also examined legislative findings of several communities in Upstate New York, including the City of Geneva, NY, the City of Rochester, NY, and the City of Batavia, NY.
Based upon the official report of said citizens committee, a copy of which is filed with the Town Clerk, and findings of various legislative bodies in upstate New York, the Town Board finds as follows:
The Town of Geneva is primarily a rural residential community with a limited area for the operation of businesses. The population at the last census is approximately 3,260. There are approximately 12,361 acres in the Town of Geneva with 65% of the land being agricultural, 25% residential, 3% business and 7% industrial.
The establishment of an adult use or adult entertainment business should only be permitted by the issuance of a special use permit and located only where other businesses are permitted and should not be granted a special use permit to operate in a location that currently or previously permits the operation of a business by reason of a preexisting nonconforming use, a use variance or a special use permit, nor should a special use permit for an adult use or adult entertainment business be issued for a home occupation.
The Board finds that there are currently no known adult use businesses established in the Town of Geneva
The current business zones are small in size, with the B1 Zone and B2 Zones being only 352 acres. Both current business zones border on residential zones and contain preexisting nonconforming residential uses. The detrimental impact of an adult use on these business zones would be magnified because of the small size of the business zones.
The Industrial Zone contains 900 acres and is occupied by actual industrial uses and nonconforming preexisting residential, business or agricultural uses.
By reason that the Industrial Zone is greater in size with a low-density impact, permitting the establishment of an adult use in the Industrial Zone would have less negative impact on the existing uses within that zone than if permitted in the business zones.
The regulation of adult use establishments, as hereinafter defined, is found to be necessary in light of the operational characteristics of such uses which, without the enactment and enforcement of appropriate regulations, would have documented adverse, detrimental and harmful impacts and effects within the Town of Geneva, and particularly on residential neighborhoods and community business areas. Such impacts and effects include but are not limited to decreased property values; creation of traffic and/or parking problems due to the attraction of transients; potential increases in criminal activities; loss of business by non-adult-use commercial establishments in the vicinity, and deterioration within residential and business neighborhoods creating a general deterioration of quality of life within the Town of Geneva.
The words and phrases set forth below shall have the meaning respectively ascribed to them:
- ADULT ARCADE
- Any place to which the public is permitted or invited or in which coin-operated or slug-operated or electronically, electrically or mechanically controlled still or motion-picture machines, projectors, or other image-producing devices are maintained to show images to an individual or individuals, and where the image is so displayed, distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
- ADULT RETAIL STORE
- A commercial establishment having a substantial or significant portion of its stock-in-trade, including but not limited to books, magazines, periodicals, visual representations or writings, photographs, videotapes, computer-generated images, devices or substances intended to be used for sexual stimulation or material, distinguished or characterized by emphasis on matter depicting, describing or related to specified anatomical areas or to specified sexual activities or an establishment with a segment or section devoted to the sale or display of such materials or which is used for the dissemination of such material for consideration by way of broadcast by radio, television telephone, internet or computer-generated images or by means of other electronic-powered devices. A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of materials depicting or describing specified sexual activities or specified anatomical areas and still be defined as an adult retail store hereunder. Such other business purposes will not serve to exempt such commercial establishment from being characterized as an adult retail store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials which depict or describe specified sexual activities or specified anatomical areas.
- ADULT CABARET
- A nightclub, bar, restaurant or similar commercial establishment which regularly features:
- A. Persons who appear in a state of nudity;
- B. Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
- C. Files, motion pictures, videocassettes, slides, computer-generated images or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT MOTEL
- A hotel, motel or similar commercial establishment which:
- A. Offers accommodations to the public for any form of consideration, provides patrons with closed-circuit television transmissions, films, or motion pictures, videocassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas;
- B. Offers a sleeping room for rent for a period of time that is less than 10 hours; or
- C. Allows a tenant or occupant of the sleeping room to sublet the room for a period of time that is less than 10 hours.
- ADULT MOTION-PICTURE THEATER
- A commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides or similar graphic reproductions are displayed, which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT THEATER
- A theater, concert hall, auditorium or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the depiction or description of specified sexual activities or exposure of specified anatomical areas.
- One or more persons who are permitted to view a performance for valuable consideration of, in or from a public place.
- DISPLAY PUBLICLY
- The exposing, placing, posting, exhibiting or, in any other fashion, displaying in any location, whether public or private, material or a performance in such manner that it may be readily seen and its contents or character distinguished by normal unaided vision viewing it from a public place or vehicle.
- To manufacture, issue, publish, sell, lend, distribute, transmit, broadcast, exhibit or present materials or to offer or agree to do the same or to have in one's possession with intent to do the same.
- A person who, for consideration, agrees or offers to act as a companion, guide or date for any person or who agrees or offers to privately model lingerie or privately perform a striptease for another person.
- ESCORT AGENCY
- person or business association who or which furnishes, offers to furnish or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.
- Includes any of the following:
- A. The opening or commencement of any sexually oriented business as a new business;
- B. The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
- C. The addition of any sexually oriented business to any other existing sexually oriented business; or
- D. The relocation of any sexually oriented business.
- NUDE MODEL STUDIO
- Any place where a person who appears in a state of nudity or who displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons who pay money or any form of consideration. It is not intended to include in this definition a model studio operated by an accredited school, college or university if the same is operated as part of the regular art curriculum of said school, college or university.
- Uncovered or less than opaquely covered post-pubertal human genitals or pubic area, the post-pubertal human female breast below the point immediately above the areola or the covered human male genitals in a discernibly turgid state. For the purpose of this definition, a female breast is considered uncovered if the nipple only or the nipple and the areola only are covered.
- Advertising or propagandizing in connection with the sale of material, the offering of a service or the presentation or exhibition of a performance by appealing to the prurient interest of potential customers.
- Any live or reproduced exhibition, including but not limited to any play, motion-picture film, dance or appearance presented to or performed before an audience.
- PUBLIC PLACE OR VEHICLE
- Any of the streets, alleys, parks, boulevards, school or other public property in the Town of Geneva or any dance hall, rental hall, theater, amusement park, liquor establishment or depot, place of public accommodation or other private property generally frequented by the public for the purpose of education, recreation, amusement entertainment, sport, shopping or travel, or any vehicle for public transportation, owned or operated by government, either directly or through a public corporation or authority or owned of operated by any nongovernmental agency for the use, enjoyment or transportation of the general public.
- SADOMASOCHISTIC ABUSE
- Flagellation or torture by or upon a person who is nude or clad in undergarments or in a sexually revealing or bizarre costume; or the condition of such person being fettered, bound or otherwise physically restrained in an apparent act of sexual stimulation or gratification.
- A. Masturbation.
- B. Sexual intercourse, whether genital-genital, oral-genital, oral-anal or anal-genital.
- C. Any erotic fondling or touching of any parts of the covered or uncovered genitals, buttocks, pubic area or breasts of the female or male.
- D. Actual or simulated display or exhibition of the human pubic area or genitals or any part thereof.
- E. Sexual excitement, as hereinafter defined.
- F. Sadomasochistic abuse, as hereinbefore defined.
- SEXUAL ENCOUNTER CENTER
- A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
- SEXUAL EXCITEMENT
- The facial expression, movements, utterances or other responses of a human male or female, whether alone or with others, whether clothed or not, who is in an apparent state of sexual stimulation or arousal or who experiences the physical or sensual reactions of humans engaging in or witnessing sexual conduct.
- SEXUALLY ORIENTED BUSINESS
- An adult arcade, adult bookstore, adult cabaret, adult motel, adult motion-picture theater, adult theater, escort agency, nude model studio or sexual encounter center or dissemination of sexually related materials.
- SPECIFIED ANATOMICAL AREAS
- Human genitals; pubic region; buttocks; female breasts below a point immediately above the top of the areola.
- SPECIFIED SEXUAL ACTIVITIES
- Human male genitals in a discernibly turgid state of sexual stimulation or arousal; acts of human masturbation, sexual intercourse or sodomy; fondling or other erotic touching of human genitals, pubic regions, buttocks or female breasts.
Sexually oriented businesses are classified as follows:
A sexually oriented business, as that term is defined herein, shall not be established except in accordance with the provisions of the Code of the Town of Geneva, NY and subject to the following conditions and criteria, which shall be in addition to and supplementary to those matters which the Planning Board is to consider in reviewing a site plan application under Chapter 123 of said Code, a subdivision application under Chapter 136 and which shall also be in addition to and supplementary to those matters which the Zoning Board of Appeals is to consider in reviewing a special use permit application under Chapter 165 of said Code.
Such use shall be permitted upon application for and final approval of a special use permit in conformance with this chapter and with § 165-72 of the Code of the Town of Geneva, NY and that the granting of the special use permit by the Zoning Board of Appeals shall require the following:
The sexually oriented business shall only be permitted in the Industrial Zone and no special use permit for a sexually oriented business shall be granted for establishment in any other zone in the Town notwithstanding that a location may be currently operating a business pursuant to a duly granted variance or a nonconforming preexisting use or otherwise.
Such a use shall only be permitted in conformance with current density requirements within the Industrial Zone.
Such a use may not be established or maintained within 500 feet of the following:
The property line of a church, synagogue, mosque or other regular place of worship.
The property line of a public or private elementary or secondary school.
The property line of any child-care institution or day-care center, as defined herein and in the Education Law.
The property line of a residence, or the boundary of any residential or agricultural zoning district.
The property line of a public or private park, playground, playing field, governmental office or facility or other similar area where large numbers of persons may travel or congregate.
A municipal boundary.
No two sexually oriented business may be established or maintained within 1,000 feet of each other.
Only one sexually oriented business may be established or maintained on any lot or in any building or structure
No sexually oriented business shall be located nearer than 1000 feet to the boundary of any public use highway.
For the purposes of this section, measurement of the distances specified above shall be made in a straight line, without regard to intervening structures or objects, from the nearest property line of the property upon which the sexually oriented business is located to the nearest property line or boundary of an affected use, as listed in Subsection B(1) through (6) above, provided that for purposes of Subsection B(4) and (6) above, the distance shall be measured in a straight line, without regard to intervening structures or objects, between the closest exterior walls of the structures in which each such use is located or from the closest exterior wall of the structure in which such use is located and the boundary of the public use highway, as the case may be.
Sexually oriented businesses shall be conducted at all times in the following manner; otherwise the business shall be deemed in violation of the special use permit and shall be subject to the penalties provided:
It shall be conducted in an enclosed building.
It shall be conducted in such a manner that, regardless of location or distance, no one who is passing by or who is at any point outside of the enclosed building occupied by such a use shall be able to observe or perceive any performance, conduct, image, printed matter, visual representation, instrument, device or paraphernalia displaying, depicting or otherwise presenting any specified anatomical area or specified sexual activity regulated hereunder, including but not limited to any sign or advertisement or any window or other opening permitting the view of the interior of the premises from the exterior of the premises.
It shall not employ loudspeakers or sound equipment as part of the adult use establishment in such a way as may be audible or discerned by the public from public or semipublic areas or from contiguous private property.
It shall provide for the parking of vehicles on the site only during the hours of operation and shall provide for a parking space for each and every employee, in addition to those parking requirements specified in the Code of the Town of Geneva, NY.
It shall display no more than a single building-mounted sign and a single pylon sign in conformance with the Code of the Town of Geneva, NY, that shall identify only the name of the establishment and shall contain no graphic representation of any material depicting, describing or relating to specified sexual activities or specified anatomical areas.
Final approval by the Zoning Board of Appeals of any special use permit application for sexually oriented businesses shall only be made contingent upon the applicant also satisfying all conditions and requirements of approval by the Planning Board of any site plan application or subdivision approval as provided for from time to time in the Town Code or the laws of the State of New York for such a use and upon compliance with the building code of the State of New York as enforced by the Code Enforcement Officer of the Town of Geneva.
Prior to the commencement of any sexually oriented business, or upon any transfer of ownership or control of such a business, the premises on which such establishment is located must be inspected and found to be in compliance with all laws, rules and regulations of or enforced by the New York State Health Department, Fire Department, Code Enforcement Office, Fire Marshal, and other code enforcement officials of the Town and county.
The New York State Health Department, Fire Department, Code Enforcement Office, Fire Marshal and other code enforcement officials shall complete their certification that the premises is in compliance, or not in compliance, within 20 days of the inspection of the premises by such officials. The certification shall be promptly presented to the Code Enforcement Office and shall be a precondition to the issuance of any certificate of occupancy, certificate of compliance or any other certificate evidencing conformance with governmental laws, regulations, codes, rules or requirements.
An applicant, or permittee and/or licensee, shall permit representatives of the Police Department, New York State Health Department, Fire Department, Code Enforcement Office, or other Town or county departments or agencies to inspect the premises of an adult use establishment for the purpose of ensuring compliance with applicable laws, rules and regulations at any time it is occupied or open for business.
While code enforcement officials shall have the right to inspect the premises for the purpose of ensuring compliance with all applicable laws, rules and regulations, the owner, agent or person in charge thereof shall have the right to insist upon the procurement of a search warrant from a court of competent jurisdiction in order to enable such inspection. The officials charged with conducting the inspection pursuant to this chapter shall be required to obtain a search warrant whenever an owner, agent or person in charge refuses to permit a warrantless inspection of the premises after having been advised that he or she has a constitutional right to refuse entry of the officials without a search warrant.
Whenever it shall become necessary for the Code Enforcement Officer or any officer of the Town of Geneva shall determine that Chapter 53, Adult Uses, of the Geneva Code shall be required to be enforced, the costs incurred by said officer for consultation fees with engineers, attorneys, or other professionals or costs incurred in enforcement of compliance with this Code, including but not limited to the costs of meeting the requirements of Article 6 of the Environmental Conservation Law (SEQR), and it shall be charged to the applicant or owner of the real property and shall be reimbursed by the applicant or owner of the real property before a building permit may be issued or a certificate of occupancy may be issued, and upon failure by the applicant or property owner to make such reimbursement, then said reimbursement costs levied pursuant to this chapter are hereby made a lien on the premises, and if the same are not paid within 30 days after they shall be deemed payable, the same shall be certified to the County Treasurer's office, which shall place the same on the real property tax roll for that year, with interest, and penalties allowed by law, and be collected as other taxes are collected.
If any part or provisions of this chapter or the application thereof to any person or circumstance be adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part or provisions or application directly involved in the controversy in which such judgment shall have been rendered and shall not affect or impair the validity of the remainder of this chapter or the application thereof to other persons or circumstances, and the Town Board of the Town of Geneva hereby declares that it would have passed this chapter or the remainder thereof had such invalid application or invalid provision been apparent.
In addition to the penalties provided above, any violation under this section shall be punishable by suspension of the right to conduct or operate such adult use for a period not to exceed 30 days for each separate and distinct violation.
In addition to the penalties provided above, the Code Enforcement Office may also maintain an action or proceeding in the name of the Town of Geneva in a court of competent jurisdiction to compel compliance with or to restrain by injunction any violation of this chapter.