This article shall be known as the "Adult Use
and Entertainment Establishments Regulation Law" of the Town of Phelps,
and shall be added to the comprehensive development regulations of
the town.
As used in this article, the following terms
shall have the meanings indicated:
ADULT USE AND ENTERTAINMENT ESTABLISHMENTS
A public or private establishment, or any part thereof, which
presents any of the following entertainment, exhibitions or services:
topless and/or bottomless dancers; strippers; topless waitressing,
busing or service; topless hair care or massages; service or entertainment
where the servers or entertainers wear pasties or G-strings or both;
adult arcades, adult bookstores or adult video stores; adult cabarets;
adult motels; adult motion-picture theaters; adult theaters; escort
agencies; nude model studios and sexual encounter centers. Adult use
and entertainment establishments customarily exclude minors by reason
of age and are those businesses defined as follows:
A.
ADULT ARCADEAny 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, which are regularly used to show films, motion pictures, videocassettes, slides or other photographic reproductions, 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 depicting or describing specified sexual activities or specified anatomical areas.
B.
ADULT BOOKSTORE or ADULT VIDEO STORE:
(1)
A commercial establishment which has as a significant
or substantial portion of its stock-in-trade or derives a significant
or substantial portion of its revenues or devotes a significant or
substantial portion of its interior business advertising to the sale
or rental, for any form of consideration, of any one or more of the
following:
(a)
Books, magazines, periodicals or other printed
matter or photographs, films, motion picture, videocassettes, or video
reproductions, slides, compact disks, computer software or other visual
representations which depict or describe specified sexual activities
or specified anatomical areas; or
(b)
Instruments, devices or paraphernalia which
are designed for use or marketed primarily for stimulation of human
genital organs or for sadomasochistic use or abuse of themselves or
others.
(2)
A commercial establishment may have other principal
business purposes that do not involve the offering for sale or rental
of material depicting or describing specified sexual activities or
specified anatomical areas and still be categorized as adult bookstore
or adult video 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. For purposes of this definition, "principal
business purpose" shall mean 25% or more of any of the following:
(a)
The number of different, titles or kinds of
such merchandise.
(b)
The number of copies or pieces of such merchandise.
(c)
The amount of floor space devoted to the sale
and/or display of such merchandise.
(d)
The amount of advertising which is devoted to
such merchandise, either in print or broadcast media.
C.
ADULT CABARETA nightclub, bar, nonalcoholic or "juice" bar, restaurant or similar commercial establishment which regularly features:
(1)
Persons who appear nude or in a state of seminudity;
or
(2)
Live performances which are characterized by
the exposure of specified anatomical areas or by specified sexual
activities; or
(3)
Films, motion pictures, videocassettes, slides
or other photographic reproductions which are characterized by the
depiction or description of specified sexual activities or specified
anatomical areas.
D.
ADULT MOTELA hotel, motel or similar commercial establishment which:
(1)
Offers accommodations to the public for any
form of consideration; provides patrons with closed-circuit television
transmissions, films, motion pictures, videocassettes, slides or other
photographic reproductions which are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas; and which advertises the availability of sexually oriented
type of material by means of a sign visible from a public right-of-way,
or by means of off-premises advertising, including, but not limited
to, newspapers, magazines, pamphlets or leaflets, radio or television;
or
(2)
Offers sleeping rooms for rent on a regular
basis for a period of time that is less than 10 hours; or
(3)
Allows a tenant or occupant of a room to subrent
the room for a period of time that is less than 10 hours.
E.
ADULT MOTION-PICTURE THEATERA commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
F.
ADULT THEATERA theater, concert hall, auditorium or similar commercial establishment which, for any form of consideration, regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
G.
ESCORT AGENCYA person or business association who or which furnishes, or offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.
H.
MASSAGE PARLORAny place where, for any form of consideration or gratuity, massage, alcohol rub or administration of fomentations, electric or magnetic treatments or any other treatment manipulation of the human body occurs as apart of or in connection with specified sexual activities, or where any person providing such treatment, manipulation or service related thereto, exposes his or her specified anatomical areas. The definition of adult use shall not include the practice of massage in any licensed hospital, nor by a licensed physician, surgeon, chiropractor or osteopath nor by any nurse or technician working under the supervision of a licensed physician, surgeon, chiropractor or osteopath, nor by trainers for any amateur, semiprofessional or professional athlete or athletic team or school athletic program.
I.
NUDE MODEL STUDIOAny place where a person who appears in a state of nudity or displays specified anatomical areas is regularly provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons who pay money or any form of consideration, other than as a part of a course of instruction offered by an educational institution established pursuant to the laws of the State of New York.
J.
SEXUAL ENCOUNTER CENTERA business or commercial enterprise that, as one of its primary business purposes, offers, for any form of consideration, a place where two or more persons may congregate, associate or consort for the purpose of specified sexual activities or exposure of specified anatomical areas, or activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or seminude. The definition of adult uses shall not include an establishment where a medical practitioner, psychologist, psychiatrist or similar professional person licensed by the state engages in medically approved and recognized sexual therapy.
ESCORT
A person who, for a fee, tip or other consideration, agrees
to or offers any of the following: act as a date for another person;
for consideration; to privately model lingerie for another person;
or to privately perform a striptease for another person.
MINOR
A person less than 18 years of age.
NUDITY or STATE OF NUDITY
The appearance of:
A.
Human bare buttocks, anus, male genitals, female
genitals or areola or nipple of the female breast; or
B.
A state of dress which fails to opaquely and
fully cover human bare buttocks, anus, male genitals, female genitals,
pubic region or areola or nipple of female breast.
PERSON
An individual, proprietorship, partnership, corporation,
association or other legal entity.
PROMOTE
To manufacture, issue, sell, give, provide, lend, mail, deliver,
transmute, publish, distribute, circulate, disseminate, present, exhibit
or advertise or to offer or agree to do the same.
SADOMASOCHISTIC ABUSE
Actual or explicitly simulated flagellation or torture by
or upon a person who is nude or clad in undergarments, a mask or bizarre
costume, or the condition of being fettered, bound or otherwise physically
restrained on the part of the one so clothed.
SEXUAL CONDUCT
Actual or explicitly simulated acts of masturbation, homosexuality,
sexual intercourse or physical contact in an act of apparent sexual
stimulation or gratification with a person's clothed or unclothed
genitals, pubic area, buttocks, or if such be female, breast.
SEXUAL EXCITEMENT
The condition of human male or female genitals when in a
state of sexual stimulation or arousal.
SPECIFIED ANATOMICAL AREAS
A.
Unless completely and opaquely covered, human
genitals, pubic region, buttocks or breasts below a point immediately
above the top of the areola.
B.
Even if completely and opaquely covered, male
genitals in a discernibly turgid state.
SPECIFIED SEXUAL ACTIVITIES
Includes any of the following:
A.
The fondling or other erotic touching of human
genitals, pubic region, buttocks, anus or breasts.
B.
Sex acts, normal or perverted, actual or simulated,
including intercourse, oral copulation or sodomy.
C.
Masturbation, actual or simulated.
All regulated uses as defined herein may only
be created, opened, commenced or operated within the M-1 Zoning District
within the Town of Phelps.
All regulated uses shall be conducted in an
enclosed building. It shall be a violation to display or exhibit in
the open air (outside of the establishment), through a window or by
means of a depiction or decoration, or to allow to be displayed or
exhibited, any specified anatomical area or specified sexual activity.
Any person aggrieved by the action of the Code
Enforcement Officer shall appeal such action to the Town Zoning Board
of Appeals in the form and manner prescribed by that Board. Such appeal
shall be filed within 30 days of the Code Enforcement Officer's determination
being filed with the Town Clerk.
This section gives the Town of Phelps Code Enforcement
Officer the authority to enforce this article as well as any local,
county or state police.