[HISTORY: Adopted by the Board of Trustees of the Village
of New Hartford 8-11-1997 by L.L.
No. 4-1997. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 126.
It is the purpose of this chapter to regulate sexually oriented
businesses and related activities to promote the health, safety, morals
and general welfare of the citizens of the Village and to establish
reasonable and uniform regulations to prevent the deleterious location
and concentration of sexually oriented businesses within the Village.
The provisions of this chapter have neither the purpose nor effect
of imposing a limitation or restriction on the content of any communicative
materials, including sexually oriented materials. Similarly, it is
not the intent nor effect of this chapter to restrict or deny access
by adults to sexually oriented materials protected by the First Amendment,
or to deny access by the distributors and exhibitors of sexually oriented
entertainment to their intended market. Neither is it the intent nor
effect of this chapter to condone or legitimize the distribution of
obscene materials.
As used in this chapter, the following terms shall have the
meanings indicated:
Any place to which the public is permitted or invited wherein
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
five or fewer persons per machine at any one time, and where the images
so displayed are distinguished or characterized by the depicting or
describing of specified sexual activities or specified anatomical
areas.
A commercial establishment, that has as its principal business
purpose, and offers for sale or rental for any form of consideration,
any one or more of the following:
Books, magazines, periodicals or other printed matter, or photographs,
films, motion pictures, video cassettes or video reproductions, slides
or other visual representations which depict or describe specified
sexual activities or specified anatomical areas; or
Instruments, devices or paraphernalia that are designed for
use in connection with specified sexual activities.
A nightclub, bar, restaurant or similar commercial establishment
that regularly features:
Persons who appear in a state of seminudity; or
Live performances that are characterized by the exposure of
specified anatomical areas or by specified sexual activities; or
Films, motion pictures, video cassettes, slides or other photograghic
reproductions that are characterized by the depiction or description
of specified sexual activities or specified anatomical areas; or
Persons who engage in lewd, lascivious or erotic dancing or
performances that are intended for the sexual interests or titillation
of an audience or customers.
A hotel, motel or similar commercial establishment that:
Offers accommodation to the public for any form of consideration
and provides patrons with closed-circuit television transmissions,
films, motion pictures, video cassettes, slides or other photographic
reproductions that are characterized by the depiction or description
of specified sexual activities or specified anatomical areas; and
has a sign visible from the public right-of-way that advertises the
availability of this adult type of photographic reproductions; or
Offers on a regular basis a sleeping room for rent for a period
of time that is less than eight hours; or
Allows a tenant or occupant of a sleeping room to subrent the
room for a period of time that is less than eight hours.
A commercial establishment where, for any form of consideration,
films, motion pictures, video cassettes, slides or similar photographic
reproductions are regularly shown that are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas.
A theater, concert hall, auditorium or similar commercial
establishment that regularly features persons who appear in a state
of nudity or live performances that are characterized by the exposure
of specified anatomical areas or by specified sexual activities.
The duly appointed Codes Enforcer and such employee(s) of
his department as he may designate to perform the duties of the Codes
Enforcer under this chapter.
A person who, for consideration, agrees or offers to act
as a companion, guide or date for another person, or who agrees or
offers to privately model lingerie or to privately perform a striptease
for another person.
A person or business association who 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:
The opening or commencement of any sexually oriented business
as a new business;
The conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business;
The additions of any sexually oriented business to any other
existing sexually oriented business; or
The relocation of any sexually oriented business.
A facility licensed by the State of New York, whether situated
within the Village or not, that provides care, training, education,
custody, treatment or supervision for more than 12 children under
14 years of age, where such children are not related by blood, marriage
or adoption to the owner or operator of the facility, for less than
24 hours a day, regardless of whether or not the facility is operated
for a profit or charges for the services it offers.
A person in whose name a permit and/or license to operate
a sexually oriented business has been issued, as well as the individual
listed as an applicant on the application for a permit and/or license.
Any place where a person who appears in a state of nudity
or 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.
The appearance of a human bare buttock, anus, male genitals,
female genitals or female breast without a fully opaque complete covering
of the breast below a point immediately above the top of the areola,
or human male genitals in a discernibly turgid state even if completely
and opaquely covered.
An individual, proprietorship, partnership, corporation,
association or other legal entity.
A state of dress in which clothing covers no more than the
human bare buttock, anus, male genitals, female genitals or female
breast without a fully opaque complete covering of the breast below
a point immediately above the top of the areola, or human male genitals
in a discernibly turgid state even if completely and opaquely covered.
A business or commercial enterprise that, as one of its principal
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore or adult video store, adult
cabaret, adult motel, adult motion-picture theater, adult theater,
escort agency, nude model studio or sexual encounter center.
The male genitals in a state of sexual arousal and/or the
vulva or more intimate parts of the female genitals.
Includes any of the following:
The increase in floor areas occupied by a sexually oriented
business by more than 10%, as the floor areas exist on January 1,
1995.[1]
Includes any of the following:
The sale, lease or sublease of a sexually oriented business;
The transfer of securities that form a controlling interest
in a sexually oriented business, whether by sale, exchange or similar
means; or
The establishment of a trust, gift or other similar legal device
that transfers the ownership or control of a sexually oriented business,
except for transfer by bequest or other operation of law upon the
death of the person possessing the ownership or control.
Sexually oriented businesses are classified as follows:
A.
It shall be unlawful for a person to operate a sexually oriented
business without a valid permit and/or license issued by the Codes
Enforcer.
B.
An application for a permit and/or license must be made on a form
provided by the Village of New Hartford. The application must be accompanied
by a sketch or a diagram showing the configuration of the premises,
including a statement of total floor space occupied by the business.
The sketch or diagram need not be professionally prepared but must
be drawn to a designated scale or drawn with marked dimensions of
the interior of the premises to an accuracy of plus or minus six inches.
C.
The applicant must be qualified according to the provision of this
chapter and the premises must be inspected and found to be in compliance
with the law by the Health Department, Fire Department, Building Official
and Zoning Official.
D.
If a person who wishes to operate a sexually oriented business is
an individual, he must sign the application for a permit and/or license
as applicant. If a person who wishes to operate a sexually oriented
business is other than an individual, each individual who has a ten-percent
or greater interest in the business must sign the application for
a permit and/or license as applicant. If a corporation is listed as
owner of a sexually oriented business or as the entity that wishes
to operate such a business, each individual having a ten-percent or
greater interest in the corporation must sign the application for
a permit and/or license as applicant.
E.
The fact that a person possesses other types of state or Village
permits and/or licenses does not exempt him from the requirement of
obtaining a sexually oriented business permit and/or license.
F.
Applications for a permit, whether original or renewal, must be made
to the Codes Enforcer by the intended operator of the enterprise.
Applications must be submitted by hand delivery to the office of the
Codes Enforcer or his designee during regular working hours. Application
forms shall be supplied by the Codes Enforcer. The intended operator
shall be required to give the following information on the application
form:
(2)
The name under which the establishment is to be operated and a general
description of the services to be provided.
(3)
The telephone number of the establishment.
(4)
The name and address of the owner of the land, and a legal description
of the tract of land on which the establishment is to be located.
(5)
If the establishment is in operation, the date on which the owner(s)
acquired the establishment for which the permit is sought, and the
date on which the establishment began operations as a sexually oriented
business at the location for which the permit is sought.
(6)
If the establishment is not in operation, the expected startup date
(which shall be expressed in number of days from the date of issuance
of the permit). If the expected startup date is to be more than 10
days following the date of issuance of the permit, then a detailed
explanation of the construction, repair or remodeling work or other
cause of the expected delay and a statement of the owner's time schedule
and plan for accomplishing the same.
G.
The application shall be accompanied by the following:
(1)
Payment of the application fee in full.
(2)
If the establishment is a New York corporation, a certified copy
of the articles of incorporation, together with all amendments thereto.
(4)
If the establishment is a foreign corporation, a certified copy of
the certificate of authority to transact business in this state, together
with all amendments thereto.
(5)
If the establishment is a limited partnership formed under the laws
of New York, a certified copy of the certificate of limited partnership,
together with all amendments thereto.
(6)
If the establishment is a foreign limited partnership, a certified
copy of the certificate of limited partnership and the qualification
documents, together with all amendments thereto.
(7)
Proof of the current fee ownership of the tract of land on which
the establishment is to be situated in the form of a copy of the recorded
deed.
(8)
If the persons identified as the fee owner(s) of the tract of land in Subsection G(6) are not also the owners of the establishment, then the lease, purchase contract, purchase option contract, lease option contract or other document(s) evidencing the legally enforceable right of the owners or proposed owners of the establishment to have or obtain the use and possession of the tract or portion thereof that is to be used for the establishment for the purpose of the operation of the establishment.
I.
A separate application and permit shall be required for each sexually
oriented business.
A.
The Codes Enforcer shall approve the issuance of a permit and/or
license to an applicant within 30 days after receipt of an application
unless he finds one or more of the following can be true:
(1)
An applicant is under 18 years of age.
(2)
An applicant or an applicant's spouse is overdue in his payment to
the Village of taxes, fines or penalties assessed against him or imposed
upon him in relation to a sexually oriented business.
(3)
An applicant has failed to provide information reasonably necessary
for issuance of the permit and/or license or has falsely answered
a question or request for information on the application form.
(4)
An applicant is residing with a person who has been denied a permit
and/or license by the Village to operate a sexually oriented business
within the preceding 12 months, or residing with a person whose license
to operate a sexually oriented business has been revoked within the
preceding 12 months.
(5)
The premises to be used for the sexually oriented business have not
been approved by the Health Department, Fire Department, Building
Official and Zoning Official as being in compliance with applicable
laws and ordinances.
(6)
The permit and/or license fee required by this chapter has not been
paid.
(7)
An application of the proposed establishment is in violation of or
is not in compliance with any of the provisions of this chapter.
B.
The permit and/or license, if granted, 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 sexually oriented business. The permit
and/or license shall be posted in a conspicuous place at or near the
entrance to the sexually oriented business so that it may be easily
read at any time.
C.
The Health Department, Fire Department, Building Official and Zoning
Official shall complete their certification that the premises is in
compliance or not in compliance within 20 days of receipt of the application
by the Codes Enforcer. The certification shall be promptly presented
to the Codes Enforcer.
D.
In the event that the Codes Enforcer determines that an applicant
is not eligible for a permit, the applicant shall be given notice
in writing of the reasons for the denial within 45 of the receipt
of its application by the Codes Enforcer, provided that the applicant
may request, in writing, that such period be extended for an additional
period of not more than 10 days at any time before the notice is issued
in order to make modifications necessary to comply with this chapter.
E.
An applicant may appeal the decision of the Codes Enforcer regarding
a denial to the Board of Trustees by filing a written notice of appeal
with the Village Clerk within 15 days after the applicant is given
notice of the Codes Enforcer's decision. The notice of appeal shall
be accompanied by a memorandum or other writing setting out fully
the grounds for such appeal and all arguments in support thereof.
The Codes Enforcer may submit a memorandum in response to the memorandum
filed by the applicant on appeal to the Village Board. After reviewing
such memoranda, as well as the Codes Enforcer's written decision,
if any, and exhibits submitted to the Codes Enforcer, the Village
Board shall vote to either uphold or overrule the Codes Enforcer's
decision. Such vote shall be taken within 21 calendar days after the
date on which the Village Clerk receives the notice of appeal. However,
all parties shall be required to comply with the Codes Enforcer's
decision during the pendency of the appeal.
The annual fee for a sexually oriented business permit and/or
license is $500. This fee is to be used to pay for the cost of the
administration and enforcement of this chapter.
An applicant or permittee and/or licensee shall permit representatives
of the Police Department, Health Department, Fire Department, Zoning
Department or other Village or state departments or agencies to inspect
the premises of a sexually oriented business for the purpose of ensuring
compliance with the law, at any time it is occupied or open for business.
A.
Each permit and/or license shall expire one year from the date of issuance and may be renewed only by making application as provided in § 32-5. Application for renewal should be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the permit and/or license will not be affected.
B.
When the Codes Enforcer denies renewal of a license, the applicant
shall not be issued a permit and/or license for one year from the
date of the denial. If, subsequent to denial, the Codes Enforcer finds
that the basis for denial of the renewal permit and/or license has
been corrected or abated, the applicant may be granted a permit and/or
license if at least 90 days have elapsed since the date denial became
final.
The Codes Enforcer shall suspend a permit and/or license for
a period not to exceed 30 days if he determines that a permittee and/or
licensee or an employee of a permittee and/or licensee has:
A.
Violated or is not in compliance with any section of this chapter;
B.
Become impaired or intoxicated through the use of alcoholic beverages
while on the sexually oriented business premises;
C.
Refused to allow an inspection of the sexually oriented business
premises as authorized by this chapter;
D.
Knowingly permitted gambling by any person on the sexually oriented
business premises.
A.
The Codes Enforcer shall revoke a permit and/or license if a cause of suspension in § 32-9 occurs and the permit and/or license has been suspended within the preceding 12 months.
B.
The Codes Enforcer shall also revoke a permit and/or license if he
determines that:
(1)
A permittee and/or licensee gave false or misleading information
in the material submitted during the application process;
(2)
A permittee and/or licensee or an employee has knowingly allowed
possession, use or sale of controlled substances on the premises;
(3)
A permittee and/or licensee or an employee has knowingly allowed
prostitution on the premises;
(4)
A permittee and/or licensee or an employee knowingly operated the
sexually oriented business during a period of time when the permittee's
and/or licensee's permit and/or license was suspended;
(5)
A permittee and/or licensee or an employee has knowingly allowed
any act of sexual intercourse, sodomy, oral copulation, masturbation
or other sexual conduct to occur in or on the permitted and/or licensed
premises;
(6)
A permittee and/or licensee is delinquent in payment to the town
and county, Village, school or state for any taxes or fees past due;
(7)
The owner or operator of the permitted establishment knowingly allowed
a person under 18 years of age to enter an establishment; or
(8)
There was a change of owner or operator for which a transfer application
was not timely filed.
C.
When the Codes Enforcer revokes a permit and/or license, the revocation
shall continue for one year, and the permittee and/or licensee shall
not be issued a sexually oriented permit and/or license for one year
from the date revocation became effective. If, subsequent to revocation,
the Codes Enforcer finds that the basis for the revocation has been
corrected or abated, the applicant may be granted a permit and/or
license if at least 90 days have elapsed since the date the revocation
became effective.
D.
After denial of an application by the Codes Enforcer and the Board
of Trustees, or denial of a renewal of an application, or suspension
or revocation of a permit and/or license by the Codes Enforcer, the
applicant or licensee or permittee may seek prompt judicial review
of such administrative action in any court of competent jurisdiction.
The administrative action shall be promptly reviewed by the court.
A permittee and/or licensee shall not transfer his permit and/or
license to another, nor shall a permittee and/or licensee operate
a sexually oriented business under the authority of a permit and/or
license at any place other than the address designated in the application.
Sexually oriented businesses shall be permitted in the Manufacturing
(M-1) District, provided that:
A.
The sexually oriented business may not be operated within 1,000 feet
of:
B.
A sexually oriented business may not be operated in the same building,
structure or portion thereof containing another sexually oriented
business.
C.
For the purpose of this chapter, measurement shall be made in a straight
line, without regard to intervening structures or objects, from the
nearest portion of the building or structure used as a part of the
premises where a sexually oriented business is conducted, to the nearest
property line of the premises of a church, synagogue, regular place
of worship or public or private elementary or secondary school, or
to the nearest boundary of an affected public park, residential district
or residential lot, or licensed day-care center.
A.
Any business lawfully operating on the effective date of this chapter
that is in violation of the locational or structural configuration
requirements of this chapter shall be deemed a nonconforming use.
The nonconforming use will be permitted to continue for a period not
to exceed two years, unless sooner terminated for any reason or voluntarily
discontinued for a period of 30 days or more. Such nonconforming uses
shall not be increased, enlarged, extended or altered except that
the use may be changed to a conforming use. If two or more sexually
oriented businesses are within 1,000 feet of one another and otherwise
in a permissible location, the sexually oriented business that was
first established and continually operating at a particular location
is the conforming use and the later-established business(es) is nonconforming.
B.
A sexually oriented business lawfully operating as a conforming use
is not rendered a nonconforming use by the location, subsequent to
the grant or renewal of the sexually oriented business permit and/or
license, of a church, synagogue or regular place of religious worship,
public or private elementary or secondary school, licensed day-care
center, public park or residential district within 1,000 feet of the
sexually oriented business. This provision applies only to the renewal
of a valid permit and/or license, and does not apply when an application
for a permit and/or license is submitted after a permit and/or license
has expired or has been revoked.
A person who operates or causes to be operated a sexually oriented
business, other than an adult motel, which exhibits on the premises
in a viewing room of less than 150 square feet of floor space, a film,
video cassette or other video reproduction that depicts specified
sexual activities or specified anatomical areas, shall comply with
the following requirements:
A.
Upon application for a sexually oriented permit and/or license, the
application shall be accompanied by a diagram of the premises showing
a plan thereof specifying the location of one or more manager's stations
and the location of all overhead lighting fixtures and designating
any portion of the premises in which patrons will not be permitted.
A manager's station may not exceed 32 square feet of floor area. The
diagram shall also designate the place at which the permit will be
conspicuously posted, if granted. A professionally prepared diagram
in the nature of an engineer's or architect's blueprint shall not
be required; however, each diagram should be oriented to the north
or to some designated street or object and should be drawn to a designated
scale or with marked dimensions sufficient to show the various internal
dimensions of all areas of the interior of the premises to an accuracy
of plus or minus six inches. The Codes Enforcer may waive the foregoing
diagram for renewal applications if the applicant adopts a diagram
that was previously submitted and certifies that the configuration
of the premises has not been altered since it was prepared.
B.
The application shall be sworn to be true and correct by the applicant.
C.
No alteration in the configuration or location of a manager's station
may be made without the prior approval of the Codes Enforcer or his
designee.
D.
It is the duty of the owners and operator of the premises to ensure
that at least one employee is on duty and situated in each manager's
station at all times that any patron is present inside the premises.
E.
The interior of the premises shall be configured in such a manner
that there is an unobstructed view from a manager's station of every
area of the premises to which any patron is permitted access for any
purpose, excluding rest rooms. Rest rooms may not contain video reproduction
equipment. If the premises has two or more manager's stations designated,
then the interior of the premises shall be configured in such a manner
that there is an unobstructed view of each area of the premises to
which any patron is permitted access for any purpose from at least
one of the manager's stations. The view required in this subsection
must be by direct line of sight from the manager's station.
F.
It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises, to ensure that the view area specified in Subsection E remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises that has been designated as an area in which patrons will not be permitted in the application filed pursuant a Subsection A of this section.
G.
No viewing room may be occupied by more than one person at any time.
H.
The premises shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place to which patrons are
permitted access at an illumination of not less than 1.0 footcandle
as measured at the floor level.
I.
It shall be the duty of the owners and operator, and it shall also
be the duty of any agents and employees present in the premises, to
ensure that the illumination described above is maintained at all
times that any patron is present in the premises.
A.
It shall be unlawful for an owner or operator of a sexually oriented
business to allow the merchandise or activities of the establishment
to be visible from a point outside the establishment.
B.
It shall be unlawful for the owner or operator of a sexually oriented
business to allow the exterior portion of the sexually oriented business
to have flashing lights, or any words, lettering, photographs, silhouettes,
drawings or pictorial representations of any manner except to the
extent permitted by the provisions of this chapter.
C.
It shall be unlawful for the owner or operator of a sexually oriented
business to allow exterior portions of the establishment to be painted
any color other than a single achromatic color. This provision shall
not apply to a sexually oriented business if the following conditions
are met:
(1)
The establishment is a part of a commercial multiunit center.
(2)
The exterior portions of each individual unit in the commercial multiunit
center, including the exterior portions of the business, are painted
the same color as one another or are painted in such a way so as to
be a component of the overall architectural style or pattern of the
commercial multiunit center.
D.
Nothing in this section shall be construed to require the painting
of an otherwise unpainted exterior portion of a sexually oriented
business.
A.
Notwithstanding any other Village local law, code or regulation to
the contrary, it shall be unlawful for the owner or operator of any
sexually oriented business or any other person to erect, construct
or maintain any sign for the sexually oriented business other than
the one primary sign, as provided herein.[1]
B.
C.
Primary signs shall contain no photographs, silhouettes, drawings
or pictorial representations in any manner, and may contain only the
name of the enterprise.
D.
Each letter forming a word on a primary sign shall be of solid color
and each such letter shall be the same print-type, size and color.
The background behind such lettering on the display surface of a primary
sign shall be of a uniform and solid color.
A.
It shall be unlawful to allow a person who is younger than 18 years
of age to enter or be on the premises of a sexually oriented business
at any time that the sexually oriented business is open for business.
B.
It shall be the duty of the operator of each sexually oriented business
to ensure that an attendant is stationed at each public entrance to
the sexually oriented business at all times during such sexually oriented
business' regular business hours. It shall be the duty of the attendant
to prohibit any person under the age of 18 years from entering the
sexually oriented business. It shall be presumed that an attendant
knew a person was under the age of 18 unless such attendant asked
for and was furnished:
It is a defense to prosecution under this chapter that a person
appearing in a state of nudity did so in a modeling class operated:
A.
By a proprietary school, licensed by the State of New York; a college,
junior college or university supported entirely or partly by taxation.
B.
By a private college or university that maintains and operates educational
programs in which credits are transferable to a college, junior college
or university supported entirely or partly by taxation.
A.
Any notice required or permitted to be given by the Codes Enforcer
or any other Village office, division, department or other agency
under this chapter to any applicant, operator or owner of an establishment
may be given either by personal delivery or by certified United States
mail, postage prepaid, receipt requested, addressed to the most recent
address as specified in the application for the permit, or transfer
application that has been received by the Codes Enforcer, or any notice
of address change that has been received by the Codes Enforcer. Notices
mailed as above shall be deemed given upon their deposit in the United
States mail. In the event that any notice given by mail is returned
by the Postal Service, the Codes Enforcer or his designee shall cause
it to be posted at the principal entrance to the establishment.
B.
Any notice required or permitted to be given to the Codes Enforcer
by any person under this chapter shall not be deemed given until and
unless it is received in the office of the Codes Enforcer.
C.
It shall be the duty of each owner who is designated on the permit
application and each operator to furnish notice to the Codes Enforcer
in writing or any change of residence or mailing address.
A.
Any person violating a provision of this chapter shall be subject
to a fine of $1,000 for each violation and for each day that the violation
continues. In addition, such person shall be guilty of disorderly
conduct and punishable as such.[1]
B.
A person who operates or causes to be operated a sexually oriented
business without a valid permit and/or license or otherwise violates
this chapter is subject to a suit for injunction as well as prosecution
for disorderly conduct.
