[HISTORY: Adopted by the Town Board of the Town of Highland
by L.L. No. 10-2002[1]. Amendments noted where applicable.]
[1]
Editor's Note: The title of this chapter, formerly "Adult
Uses," was amended 4-13-2021 by L.L. No. 3-2021.
This chapter regulates the establishment of any adult-oriented
business in the Town of Highland, Sullivan County, New York. This
chapter may be referred to as the "Adult Oriented Business Law of
the Town of Highland."
[Amended 4-13-2021 by L.L. No. 3-2021]
The intent of this chapter is to safeguard the health, safety
and welfare of the inhabitants of the Town by regulating the location
and operation of adult-oriented businesses within the Town of Highland.
Adult-oriented businesses can have serious negative impacts on surrounding
areas, including declines in property values, degradation of neighborhoods,
increases in crime and deterioration of community character. This
has been substantiated by a number of studies conducted throughout
the United States. The Town of Highland has considered the findings
of these studies and those incorporated in the cases of; a) City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); b) Young v.
American Mini Theatres, 426 U.S. 50 (1976); and c) Northend Cinema,
Inc. v. Seattle, 585 P.2d 1153 (Wash. 1978). The Town's intent
in enacting this chapter is not to restrict speech protected by the
First Amendment but rather to provide for it in a way that is consistent
with the demands of the U.S. Constitution, as expressed in the referenced
cases. It is also, however, intended to address, in a practical way,
the very real secondary effects of adult-oriented businesses on the
peace, good order and safety of Town residents.
An "adult-oriented business" is hereby defined, for purposes
of this chapter, as the use of a building or property for a business
which has adult materials as a significant portion of its stock-in-trade
or involves the sale, lease, trade, gift or display of drug paraphernalia.
Adult materials include any literature, book, magazine, pamphlet,
newspaper, paper, comic book, drawing, computer or other image, motion
picture, sound recording, article, instrument, display or any other
written or recorded material which depicts or describes: a) any nudity
as defined herein; or b) the specific sexual activities listed herein.
The Town shall also rely upon the general meaning given to these two
terms by the State of New York and in the various decisions of the
U.S. Supreme Court referenced herein, should further clarification
be required.
So as to limit these impacts, all adult-oriented businesses
shall require a license from the Town of Highland Town Board, which
license shall be subject to renewal each calendar year based upon
continued conformance with the requirements of this chapter. Such
license shall be subject to fees to be established by the Town Board
and only be initially issued upon the granting of a Special Use permit
under the Town of Highland Zoning Law.[1] Adult-oriented businesses activities shall be subject
to the following licensing standards:
A.
Because adult-oriented businesses can lend themselves to ancillary
unlawful and unhealthy activities, they shall be separated from other
uses that could be severely impacted by their presence or which, in
combination with the adult-oriented business, accentuate the negative
impacts on the area. Adult-oriented businesses, therefore, shall not
be located within 1,000 feet of any residence, residential facility,
institution, health facility, church, synagogue, school, public or
semi-public use, public park or recreation facility, any other establishment
which sells alcoholic beverages or any other existing adult-oriented
business. This setback is consistent with the open rural character
of the Town within which numerous locations exist that can meet this
standard.
B.
Sale of alcoholic beverages at an adult-oriented business shall not
be permitted unless the business is being operated as a bona-fide
restaurant or eating and drinking establishment open to the general
public.
C.
No exterior display or interior display which is visible from outside
the business shall be made to identify or portray the type of activity
which occurs at an adult-oriented business excepting for one approved
ground sign not to exceed a surface area of 32 square feet for both
sides combined. Such sign shall be subject to all other Town limitations
applicable to signs. It shall not incorporate any obscene material
but shall be otherwise unlimited as to message.
D.
No building or lot that does not conform with this chapter and the
Town of Highland Zoning Law[2] shall be used for an adult-oriented business. No other
existing building, lot or use shall be added to, enlarged, expanded
in size or program or converted for purposes of conducting an adult-oriented
business unless application to do so has been made pursuant to this
section and the approval of the Town Board has been granted along
with a special use permit under the Town of Highland Zoning Law.
E.
Because they are known to encourage prostitution, increase sexual
assaults and attract criminal activity, the following activities shall
not be permitted in any adult-oriented business within Highland Town:
(1)
Public appearance by a person knowingly or intentionally engaged
in sexual intercourse, deviate sexual conduct or the fondling of the
genitals of himself, herself or another person.
(2)
The knowing and intentional public appearance of a person in a state
of nudity. Nudity means the showing of the human male or female genitals,
pubic area, or buttocks with less than a fully opaque covering of
any part of the nipple, or the showing of the covered male genitals
in a discernibly turgid state. These prohibitions are further based
on the findings of the U.S. Supreme Court in the case of Barnes v.
Glen Theatre, 501 U.S. 560, 115 L.Ed 2d 504 (1991) and are intended
to fulfill purposes identical to those upheld in that case. Moreover,
there exists within Sullivan County, New York, substantial experience
with these activities which indicates they, indeed, have the types
of negative impacts on the community that the Indiana statute was
designed to address and produce general deterioration of the character
of the area in which they were located, leading to commercial and
residential blight.
The provisions of this chapter, in their interpretation and
application, shall be held to the minimum requirements for the promotion
of the public health, safety, and general welfare.
The provisions of this chapter shall be enforced by the Town
of Highland Code Enforcement Officer and/or other law enforcement
agencies as shall be appointed by the Town of Highland Town Board.
Any violation of this chapter is hereby declared to be an offense
and shall render the violator or, if applicable, the owner of the
land or the lessee, tenant or occupant, if his responsibility is fixed
by contractual agreement, liable to a fine not to exceed $250.
A.
Each and every day that any such violation continues after notification
that such violation exists shall constitute a separate offense. Such
notice shall be written by the Code Enforcement Officer and shall
be served either by certified mail or by an appearance citation to
the court, of courts appropriate jurisdiction, including the court
of the Town Justice.
B.
Should there be a conflict or provision between this chapter and
any other local or state rules, regulations, codes or laws the more
restrictive shall apply.
