For purposes of this chapter, the words and phrases defined
in the sections hereunder shall have the meanings therein respectively
ascribed to them unless a different meaning is clearly indicated by
the context.
CABARET
A nightclub, bar, juice bar, restaurant, or similar commercial
establishment with an occupancy greater than 25 people, regardless
of whether alcoholic beverages are served, which regularly devotes
25% or more of its total floor area to dance floors, live performance
areas, and/or disc jockey areas, and is not an “adult cabaret”
as defined in the Village Code. The term "cabaret" shall include establishments
customarily called "discotheques." It shall also include a ship or
boat moored or tied to a dock, pier or shore and which contains a
cabaret in use while so moored or tied.
[Amended 3-1-2010 by L.L. No. 2-2010]
EMPLOY, EMPLOYEE and EMPLOYMENT
These words describe and pertain to any person who performs
any service on the premises of a cabaret on a full-time, part-time
or contract basis, regardless of whether the person is denominated
an employee, independent contractor, agent or otherwise. "Employee"
does not include a person exclusively on the premises for repair or
maintenance of the premises or for delivery of goods to the premises.
"Employee" does include any security guard employed by a cabaret or
whose services are performed on the premises of a cabaret.
ESTABLISH or ESTABLISHMENT
Any of the following:
A.
The opening or commencement of any cabaret as a new establishment;
or
B.
The conversion of any existing establishment to a cabaret.
HEARING OFFICER
An attorney, not employed by the Village other than as a
hearing officer, who is licensed to practice law in the State of New
York and is retained to serve as an independent tribunal to conduct
hearings under this chapter.
INFLUENTIAL INTEREST
A.
The actual power to operate the cabaret or control the operation,
management or policies of the cabaret or legal entity which operates
the cabaret;
B.
Ownership of a financial interest of 30% or more of the cabaret
or of any class of voting securities of the cabaret; or
C.
Holding an office (e.g., president, vice president, secretary,
treasurer, managing member, managing director, etc.) in a legal entity
which operates the cabaret.
LICENSEE
A person in whose name a license to operate a cabaret has
been issued, as well as the individual or individuals listed as an
applicant on the application for a cabaret license.
[Amended 3-1-2010 by L.L. No. 2-2010]
MANAGER
Any person on the premises of a cabaret who causes the business
to function or who puts or keeps in operation the business or who
is authorized to manage the business or exercise overall operational
control of the business premises. A person may be found to be operating
or causing to be operated a cabaret regardless of whether that person
is an owner or part owner of the business or a licensee under this
chapter.
NUDITY or STATE OF NUDITY
The showing of the human male or female genitals, pubic area,
vulva, anus, anal cleft or cleavage with less than a fully opaque
covering or the showing of the female breast with less than a fully
opaque covering of any part of the nipple and areola.
PERSON
An individual, proprietorship, partnership, corporation,
association or other legal entity.
PREMISES
The real property upon which the cabaret is located, and
all appurtenances thereto and buildings thereon, including, but not
limited to, the cabaret, the grounds, private walkways and parking
lots and/or parking garages adjacent thereto, under the ownership,
control or supervision of the licensee, as described in the application
for a cabaret license.
REGULARLY
The consistent and repeated doing of an act on an ongoing
basis.
SECURITY GUARD
A person who has a valid registration card to perform security
guard functions in the State of New York issued by the New York State
Department of State, Division of Licensing Services, which has not
expired or been revoked or suspended.
SEMINUDE or STATE OF SEMINUDITY
The showing of the female breast below a horizontal line
across the top of the areola and extending across the width of the
breast at that point or the showing of the male or female buttocks.
This definition shall include the lower portion of the human female
breast, but shall not include any portion of the cleavage of the human
female breasts exhibited by a bikini, dress, blouse, shirt, leotard
or similar wearing apparel, provided the areola is not exposed in
whole or in part.
SMALL PARTY ROOM
Any room that is less than 300 square feet to which any patron
is permitted access for any purpose, excluding restrooms.
SPECIFIED CRIMINAL ACTIVITY
Any of the following offenses, for which less than five years
have elapsed since the date of conviction of a felony or the date
of release from confinement for the conviction of a felony, whichever
is the later date, or for which less than two years have elapsed since
the date of conviction of a misdemeanor or the date of release from
confinement for the conviction of a misdemeanor, whichever is the
later date:
A.
An offense within §§ 120.00 through and including
120.12 of the Penal Law relating to assault;
B.
An offense within Article 200 of the Penal Law relating to bribery
involving public servants;
C.
An offense within Article 210 of the Penal Law relating to perjury;
D.
An offense within Article 220 of the Penal Law relating to controlled
substances;
E.
An offense within Article 221 of the Penal Law relating to marihuana;
F.
An offense within Article 225 of the Penal Law relating to gambling;
G.
An offense within Article 230 of the Penal Law relating to prostitution;
H.
An offense within Article 245 of the Penal Law relating to offenses
against public sensibilities;
I.
An offense within §§ 260.20 and 260.21 of the
Penal Law relating to unlawfully dealing with a child;
J.
An offense within Article 460 of the Penal Law relating to enterprise
corruption;
K.
An offense within Article 470 of the Penal Law relating to money
laundering;
L.
Any other crime committed in violation of the laws of any other
jurisdiction which if committed in this state would constitute one
of the foregoing offenses;
M.
Any offense which is a misdemeanor or felony involving the cabaret
premises.
SPECIFIED SEXUAL ACTIVITY
Any of the following:
A.
Intercourse, oral copulation, masturbation or sodomy; or
B.
Excretory functions as a part of or in connection with any of the activities described in Subsection
A above.
TRANSFER OF OWNERSHIP OR CONTROL
Any of the following:
A.
The sale, lease or sublease of the business;
B.
The transfer of securities which constitute an influential interest
in the business, whether by sale, exchange or similar means; or
C.
The establishment of a trust, gift or other similar legal device
which transfers the ownership or control of the business, except for
transfer by bequest or other operation of law upon the death of the
person possessing the ownership or control.
VILLAGE
The Village of Port Chester, New York.
VILLAGE MANAGER
The Village Manager of the Village of Port Chester or his
or her designee.
[Added 2-22-2022 by L.L. No. 5-2022]
Each cabaret license issued under this chapter shall be posted
and prominently displayed at the main entrance of the establishment.
Cabaret licensees shall provide a manager or other responsible
party on the premises when the cabaret is occupied by patrons or is
open to the public.
No license issued under the provisions of this chapter shall
be transferred or assigned to any person or used by any person other
than the licensee to whom it was issued. No cabaret license shall
be used on any location other than the location stated in such cabaret
license.
[Amended 3-1-2010 by L.L. No. 2-2010]
Cabarets and cabaret employees shall permit employees of the
Village to inspect, from time to time on an occasional basis, the
portions of the cabaret premises where patrons are permitted, for
the purpose of ensuring compliance with the specific regulations of
this chapter, during those times when the cabaret is occupied by patrons
or is open to the public. This section shall be narrowly construed
by the Village to authorize reasonable inspections of the licensed
premises pursuant to this chapter.
[Amended 3-1-2010 by L.L. No. 2-2010; 2-22-2022 by L.L. No. 5-2022]
The Village Manager shall issue a written notice of intent to
revoke a cabaret license for a period not to exceed 30 days if the
cabaret licensee has knowingly violated this chapter or has knowingly
allowed an employee or any other person to violate this chapter.
[Amended 3-1-2010 by L.L. No. 2-2010; 2-22-2022 by L.L. No. 5-2022]
A. When the Village Manager issues a written notice of intent to deny, suspend or revoke a license, the Village Manager shall immediately send such notice, which shall include the specific grounds under this chapter for such action, to the applicant or licensee (respondent) by personal delivery or certified mail. The notice shall be directed to the most current business address or other mailing address on file with the Village Manager for the respondent. The notice shall also set forth the following: The respondent shall have 10 days after the delivery of the written notice to submit, at the office of the Village Manager, a written request for a hearing. If the respondent does not request a hearing within said 10 days, the Village Manager’s written notice shall become a final denial, suspension or revocation, as the case may be, on the 30th day after it is issued and shall be subject to the provisions of Subsection
B of this section.
(1) If the respondent does make a written request for a hearing within
said 10 days, then the Village Manager shall, within 10 days after
the submission of the request, send a notice to the respondent indicating
the date, time and place of the hearing. The hearing shall be conducted
not less than 10 days nor more than 20 days after the date that the
hearing notice is issued. The Village shall provide for the hearing
to be transcribed.
(2) At the hearing, the respondent shall have the opportunity to present
all of the respondent’s arguments and to be represented by counsel,
present evidence and witnesses on his or her behalf and cross-examine
any of the Village Manager’s witnesses. The Village Manager
shall also be represented by counsel and shall bear the burden of
proving the grounds for denying, suspending or revoking the license.
The hearing shall take no longer than two days, unless extended at
the request of the respondent to meet the requirements of due process
and proper administration of justice. The Hearing Officer shall issue
a final written decision, including specific reasons for the decision
pursuant to this chapter, to the respondent within five days after
the hearing.
(3) If the decision is to deny, suspend or revoke the license, the decision
shall not become effective until the 30th day after it is rendered,
and the decision shall include a statement advising the respondent
of the right to appeal such decision to a court of competent jurisdiction.
If the Hearing Officer’s decision finds no grounds exist for
denial, suspension or revocation of the license, the Hearing Officer
shall, contemporaneously with the issuance of the decision, order
the Village Manager to immediately withdraw the intent to deny, suspend
or revoke the license and notify the respondent, in writing, by certified
mail of such action. If the respondent is not yet licensed, the Village
Manager shall contemporaneously therewith issue the license to the
applicant.
B. If any court action challenging a licensing decision is initiated,
the Village shall prepare and transmit to the court a transcript of
the hearing within 30 days after receiving written notice of the filing
of the court action. The Village shall consent to expedited briefing
and/or disposition of the action, shall comply with any expedited
schedule set by the court, and shall facilitate prompt judicial review
of the proceedings. The following shall apply to any cabaret that
is lawfully operating as a cabaret on the date on which the complete
cabaret application is filed with the Village Manager. Upon the filing
of any court action to appeal, challenge, restrain, or otherwise enjoin
the Village’s enforcement of any denial, suspension, or revocation
of a temporary license or annual license, the Village Manager shall
immediately issue the respondent a provisional license. The provisional
license shall allow the respondent to continue operation of the cabaret
and will expire upon the court’s entry of a judgment on the
respondent’s appeal or other action to restrain or otherwise
enjoin the Village’s enforcement.
[Amended 3-1-2010 by L.L. No. 2-2010]
This chapter does not impose strict liability. Unless a culpable
mental state is otherwise specified herein, a showing of a knowing
or reckless mental state is necessary to establish a violation of
a provision of this chapter. Notwithstanding anything to the contrary,
for the purposes of this chapter, an act by an employee shall be imputed
to the cabaret licensee for purposes of finding a violation of this
chapter, or for purposes of license denial, suspension, or revocation,
only if an officer, director, or general partner, or a person who
managed, supervised, or controlled the operation of the business premises,
knowingly or recklessly allowed such act to occur on the premises.
It shall be a defense to liability that the person to whom liability
is imputed was powerless to prevent the act.
[Amended 3-1-2010 by L.L. No. 2-2010]
In the event that a Village official is required to act or to
do a thing pursuant to this chapter within a prescribed time, and
fails to act or to do such thing within the time prescribed, said
failure shall not prevent the exercise of constitutional rights of
an applicant or licensee. If the act required of the Village official
under this chapter, and not completed in the time prescribed, includes
approval of condition(s) necessary for approval by the Village of
an applicant or licensee's application for a cabaret license (including
a renewal), the license shall be deemed granted and the business allowed
to commence operations the day after the deadline for the Village's
action has passed.
[Amended 3-1-2010 by L.L. No. 2-2010]
All preexisting cabarets lawfully operating in the Village in
compliance with all state and local laws prior to the effective date
of this chapter are hereby granted a de facto temporary license to
continue operation for a period of 90 days following the effective
date of this chapter. By the end of said 90 days, all cabarets must
conform to and abide by the requirements of this chapter.
This chapter, and each section and provision of said chapter
hereunder, are hereby declared to be independent divisions and subdivisions
and, notwithstanding any other evidence of legislative intent, it
is hereby declared to be the controlling legislative intent that if
any provisions of said chapter, or the application thereof to any
person or circumstance, are held to be invalid, the remaining sections
or provisions and the application of such sections and provisions
to any person or circumstances other than those to which it is held
invalid shall not be affected thereby, and it is hereby declared that
such sections and provisions would have been passed independently
of such section or provision so known to be invalid. Should any procedural
aspect of this chapter be invalidated, such invalidation shall not
affect the enforceability of the substantive aspects of this chapter.
[Amended 3-1-2010 by L.L. No. 2-2010]
Any provision(s) in the Village Code, including the provisions of Chapter
206 (Licensed Occupations), specifically in conflict with any provision in this chapter is hereby deemed inoperative as to cabaret licenses.