[Added 6-5-2000 by L.L. No. 4-2000]
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.
A.
In the development and execution of this article,
it is recognized that adult uses and entertainment establishments,
because of their very nature, have serious objectionable, operational
characteristics when concentrated under certain circumstances and
can have a deleterious effect on adjacent areas.
B.
It is the purpose of this article to regulate the
creation, opening, commencement and/or operation of adult use and
entertainment establishments, as herein defined, in order to achieve
the following:
(1)
To preserve the character and the quality of
life in the Town of Phelps' neighborhoods and business areas.
(2)
To control such documented harmful and adverse
secondary effects of adult uses on the surrounding areas as: decreased
property values; attraction of transients; parking and traffic problems;
increased crime; loss of business for surrounding nonadult businesses;
and deterioration of neighborhcods.
(3)
To restrict minors' access to adult uses.
(4)
To maintain the general welfare and safety for
the Town of Phelps' residents.
As used in this article, the following terms
shall have the meanings indicated:
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:
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.
ADULT BOOKSTORE or ADULT VIDEO STORE:
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:
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
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.
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:
The number of different, titles or kinds of
such merchandise.
The number of copies or pieces of such merchandise.
The amount of floor space devoted to the sale
and/or display of such merchandise.
The amount of advertising which is devoted to
such merchandise, either in print or broadcast media.
ADULT CABARETA nightclub, bar, nonalcoholic or "juice" bar, restaurant or similar commercial establishment which regularly features:
Persons who appear nude or in a state of seminudity;
or
Live performances which are characterized by
the exposure of specified anatomical areas or by specified sexual
activities; or
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.
ADULT MOTELA hotel, motel or similar commercial establishment which:
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
Offers sleeping rooms for rent on a regular
basis for a period of time that is less than 10 hours; or
Allows a tenant or occupant of a room to subrent
the room for a period of time that is less than 10 hours.
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.
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.
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.
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.
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.
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.
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.
A person less than 18 years of age.
The appearance of:
An individual, proprietorship, partnership, corporation,
association or other legal entity.
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.
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.
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.
The condition of human male or female genitals when in a
state of sexual stimulation or arousal.
Includes any of the following:
A.
Special regulations are necessary to ensure that the
adverse effects of these specific uses will not contribute to the
blighting or downgrading of the surrounding neighborhood. The primary
control or regulation is for the purpose of preventing concentration
of these uses.
B.
Uses subject to these controls and special regulations
are as follows:
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.
A.
All regulated uses shall be permitted only in the allowed zoning district as set forth in § 145-43.5 hereof, and, within such a district, the site and location shall be regulated as follows:
(1)
Residential zoning district boundary: not allowed
within 500 feet of the boundary of any residential zoning district
in the town.
(2)
Residential use: not allowed within 500 feet
of the property line of a parcel used for residential purposes in
the town.
(3)
Place of worship, school day care: not allowed
within 500 feet of the property line of a parcel containing a church,
synagogue, other place of worship, library, school, day-care facility,
park, or playground, within the town.
(4)
School bus stop: not allowed within 150 feet
of a school bus stop.
(5)
Same parcel: not allowed on the same parcel
as another adult use and entertainment establishment.
(6)
Proximity to another regulated use: not allowed
within 1,000 feet of the property line of another regulated use, whether
or not such other establishment is located in the town.
B.
The above distances of separation shall be measured
from the nearest exterior wall of the portion of the structure containing
the regulated use.
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.
A.
No regulated use shall be established in the Town
until the issuance of an operating permit by the Code Enforcement
Officer. Such permit shall be issued upon a determination by the Code
Enforcement Officer that such regulated use is in conformance with
all of the provisions of this article.
B.
In order for the Code Enforcement Officer to make
such determination, the applicant shall submit the following minimum
information:
(1)
A completed application on a form to be provided
by the Town and application fee.
(2)
A parcel location map.
(3)
A drawing, drawn to scale, indicating the portion
of the parcel to be developed in the regulated use, as well as all
required appurtenances.
(4)
A clear and concise description of the proposed
use.
(5)
A site plan review.
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.
A.
Any person, firm, corporation or entity who or which
shall violate any portion of this article shall be guilty of a violation
and, upon conviction thereof, shall be fined in an amount not to exceed
$500 for each violation. The continuation of a violation of the provisions
of this article shall constitute, for each day the violation is continued,
a separate and district offense hereunder.
B.
The owner and/or any occupant and/or any tenant and/or
general agent of a building, premises or part thereof where such a
violation has been committed or does exist shall be guilty of such
an offense.
C.
Any person, firm, corporation or entity violating
any of the provisions of this article shall become liable to the Town
for any expense or loss or damage occasioned the Town by reason of
such violation.
D.
The imposition of penalties herein prescribed shall
not preclude the Town or any person from instituting appropriate legal
action or proceedings to prevent a violation of this article, or to
restrain or enjoin the use or occupancy of a building, premises or
part thereof in violation of this article.
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.
