[Added 6-11-2001 by L.L. No. 1-2001; amended 11-19-2001 by L.L. No.
2-2001]
A.
Purpose. It is the purpose of this article to regulate sexually oriented
businesses in order to promote the health, safety, morals, and general
welfare of the citizens of the Town, and to establish reasonable and
uniform regulations to prevent the deleterious location and concentration
of sexually oriented businesses within the Town. The provisions of
this article 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 article 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
article to condone or legitimize the distribution of obscene material.
B.
Finding. Based on evidence concerning the adverse secondary effects
of adult uses on the community presented in hearings and in reports
made available to the Town Board, and on findings incorporated in
the cases of City of Renton v. Playtime Theaters, Inc., 475 U.S. 41(1986),
Young v. American Mini Theaters, 426 U.S. 50 (1976), FW/PBS, Inc.
v. City of Dallas, 493 U.S. 215(1990); Barnes v. Glen Theater, Inc.,
501 U.S. 560 (1991), City of Erie v. Pap's A.M., 120 S. Ct. 1382 (2000),
and on studies in other communities, including but not limited to,
New York City, Village of Washingtonville, New York, Town of Ellicottville,
New York, and Kansas City, Kansas; and also on findings from the Report
of the Attorney General's Working Group on the Regulation of Sexually
Oriented Businesses, (June 6, 1989, State of Minnesota), the Town
Board finds that:
(1)
Sexually oriented businesses lend themselves to ancillary unlawful
and unhealthy activities that are presently uncontrolled by the operators
of the establishments. Further, there is presently no mechanism to
make the owners of these establishments responsible for the activities
that occur on their premises.
(2)
Certain employees of sexually oriented businesses defined in this
article as adult theaters and cabarets engage in higher incidence
of certain types of illicit sexual behavior than employees of other
establishments.
(3)
Sexual acts, including masturbation, and oral and anal sex, occur
at sexually oriented businesses, especially those which provide private
or semiprivate booths or cubicles for viewing films, videos, or live
sex shows.
(4)
Offering and providing such space encourages such activities, which
creates unhealthy conditions.
(5)
Persons frequent certain adult theaters, adult arcades, and other
sexually oriented businesses for the purpose of engaging in sex within
the premises of such sexually oriented businesses.
(6)
At least 50 communicable diseases may be spread by activities occurring
in sexually oriented businesses, including but not limited to syphilis,
gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital
herpes, hepatitis (B, Non-A, Non-B), amebiasis, salmonella infections
and shigella infections.
(7)
Since 1981 and to the present, there has been an increasing cumulative
number of reported cases of AIDS caused by the human immunodeficiency
virus (HIV) in the United States: 600 in 1982, 2,200 in 1983, 4,600
in 1984, 8,555 in 1985 and 253,448 through December 31, 1992.
(8)
As of March 2001, there have been many, many reported cases of AIDS
in the State of New York.
(9)
Since 1981 and to the present, there have been an increasing cumulative
number of persons testing positive for the HIV antibody test in New
York.
(10)
The number of cases of early (less than one year) syphilis in
the United States reported annually has risen, with 33,613 cases reported
in 1982 and 45,200 through November of 1990.
(11)
The number of cases of gonorrhea in the United States reported
annually remains at a high level, with over 1/2 million cases being
reported in 1990.
(12)
The Surgeon General of the United States in his report of October
22, 1986, has advised the American public that AIDS and HIV infection
may be transmitted through sexual contact, intravenous drug abuse,
exposure to infected blood and blood components, and from an infected
mother to her newborn.
(13)
According to the best scientific evidence, AIDS and HIV infection,
as well as syphilis and gonorrhea, are principally transmitted by
sexual acts.
(14)
Sanitary conditions in some sexually oriented businesses are
unhealthy, in part, because the activities conducted there are unhealthy,
and, in part, because of the unregulated nature of the activities
and the failure of the owners and the operators of the facilities
to self-regulate those activities and maintain those facilities.
(15)
Numerous studies and reports have determined that semen is found
in the areas of sexually oriented businesses where persons view adult-oriented
films.
(17)
Sexually oriented businesses have operational characteristics
which should be reasonably regulated in order to protect those substantial
governmental concerns.
(18)
A reasonable licensing procedure is an appropriate mechanism
to place the burden of that reasonable regulation on the owners and
the operators of the sexually oriented businesses. Further, such a
licensing procedure will place a heretofore nonexistent incentive
on the operators to see that the sexually oriented business is run
in a manner consistent with the health, safety and welfare of its
patrons and employees, as well as the citizens of the Town. It is
appropriate to require reasonable assurances that the licensee is
the actual operator of the sexually oriented business, fully in possession
and control of the premises and activities occurring therein.
(19)
Removal of doors on adult booths and requiring sufficient lighting
on premises with adult booths advances a substantial governmental
interest in curbing the illegal and unsanitary sexual activity occurring
in adult theaters.
(20)
Requiring licensees of sexually oriented businesses to keep
information regarding current employees and certain past employees
will help reduce the incidence of certain types of criminal behavior
by facilitating the identification of potential witnesses or suspects
and by preventing minors from working in such establishments.
(21)
The disclosure of certain information by those persons ultimately
responsible for the day-to-day operation and maintenance of the sexually
oriented business, where such information is substantially related
to the significant governmental interest in the operation of such
uses, will aid in preventing the spread of sexually transmitted diseases.
(22)
It is desirable in the prevention of the spread of communicable
diseases to obtain a limited amount of information regarding certain
employees who may engage in the conduct which this article is designed
to prevent or who are likely to be witnesses to such activity.
(23)
The fact that an applicant for an adult use license has been
convicted of a sexually related crime leads to the rational assumption
that the applicant may engage in that conduct in contravention of
this article.
(24)
The barring of such individuals from the management of adult
uses for a period of years serves as a deterrent to and prevents conduct
which leads to the transmission of sexually transmitted diseases.
(25)
The general welfare, health, morals and safety of the citizens
of the Town will be promoted by the enactment of this article.
As used in this article, 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 regularly 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 their
emphasis upon matter exhibiting specified sexual activities or specified
anatomical areas.
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 or advertising, or maintains
a substantial section of its sales or display space, for 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 pictures, video cassettes, compact discs, slides, or
other visual representations which are characterized by their emphasis
upon the exhibition or display of specified sexual activities or specified
anatomical areas.
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 nightclub, bar, restaurant, or similar commercial establishment
which regularly features:
Persons who appear seminude;
Live performances which are characterized by the exposure of
specified anatomical areas or by specified sexual activities; or
Films, motion pictures, video cassettes, slides or other photographic
reproductions which are characterized by the exhibition or display
of specified sexual activities or specified anatomical areas.
A 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, video cassettes, slides, or other photographic reproductions
which are characterized by the exhibition or display of specified
sexual activities or specified anatomical areas; and has a sign visible
from the public right-of-way which advertises the availability of
this adult type of photographic reproductions; and either:
A commercial establishment where, for any form of consideration,
films, motion pictures, video cassettes, slides, or similar photographic
reproductions are regularly shown which are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas.
A theater, concert hall, auditorium, or similar commercial
establishment which regularly features persons who appear in a state
of nudity or seminude, or live performances which are characterized
by the exposure of specified anatomical areas or by specified sexual
activities.
The dominant or principal theme of the object referenced.
For instance, when the phrase refers to films "which are distinguished
or characterized by an emphasis upon the exhibition or display of
specified sexual activities or specified anatomical areas," the films
so described are those whose dominant or principal character and theme
are the exhibition or display of specified anatomical areas or specified
sexual activities.
Describe and pertain to any person who performs any service
on the premises of a sexually oriented business, on a full-time, part-time,
or contract basis, regardless of whether the person is denominated
an employee, independent contractor, agent, or other status. "Employee"
does not include a person exclusively on the premises for repair or
maintenance of the premises or for the delivery of goods to the premises.
The Town Code Enforcement Officer or such person as may be
designated by the Town Board.
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 addition of any sexually oriented business to any other
existing sexually oriented business; or
The relocation of any sexually oriented business.
A person in whose name a license to operate a sexually oriented
business has been issued, as well as the individual listed as an applicant
on the application for a license; and in the case of an employee,
a person in whose name a license has been issued authorizing employment
in a sexually oriented business.
The showing of the human male or female genitals, pubic area,
vulva, anus, or anal cleft with less than a fully opaque covering,
the showing of the female breast 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.
To cause to function or to put or keep in a state of doing
business. "Operator" means any person on the premises of a sexually
oriented business who is authorized to exercise operational control
of the business or who causes to function or who puts or keeps in
operation the business. A person may be found to be operating or causing
to be operated a sexually oriented business regardless of whether
that person is an owner, part owner, or licensee of the business.
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
The showing of the female breast below a horizontal line
across the top of the areola at its highest point or the showing of
the male or female buttocks. This definition shall include the entire
lower portion of the human female breast, but shall not include any
portion of the cleavage of the human female breast, exhibited by a
dress, blouse, skirt, leotard, bathing suit, or other wearing apparel,
provided the areola is not exposed in whole or in part.
Any place where a person appears seminude and is provided
to be observed, sketched, drawn, painted, sculptured, or photographed
by other persons who pay money or any form of consideration. "Nude
model studio" shall not include:
A proprietary school licensed by the State of New York or a
college, junior college or university supported entirely or in part
by public taxation;
A private college or university which maintains and operates
educational programs in which credits are transferable to a college,
junior college, or university supported entirely or partly by taxation;
or
A structure:
That has no sign visible from the exterior of the structure
and no other advertising that indicates a nude or seminude person
is available for viewing;
Where, in order to participate in a class, a student must enroll
at least three days in advance of the class; and
Where no more than one nude or seminude model is on the premises
at any one time.
A business or commercial establishment that as one of its
principal 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. The definition of
"sexual encounter establishment" or any sexually oriented businesses
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.
An adult arcade, adult bookstore, adult novelty store, adult
video store, adult cabaret, adult motel, adult motion-picture theater,
adult theater, escort agency, nude model studio, or sexual encounter
center.
Any of the following offenses: prostitution or promotion
of prostitution; dissemination of obscenity; sale, distribution or
display of harmful material to a minor; sexual performance by a child;
possession or distribution of child pornography; public lewdness;
indecent exposure; indecency with a child; engaging in organized criminal
activity relating to a sexually oriented business; sexual assault;
molestation of a child; distribution of a controlled substance; or
any offenses similar to those described above under the criminal or
penal code of other states or countries; for which:
Less than two years have elapsed since the date of conviction
or the date of release from confinement imposed for the conviction,
whichever is the later date, if the conviction is of a misdemeanor
offense;
Less than five years have elapsed since the date of conviction
or the date of release from confinement for the conviction, whichever
is the later date, if the conviction is of a felony offense; or
Less than five years have elapsed since the date of the last
conviction or the date of release from confinement for the last conviction,
whichever is the later date, if the convictions are of two or more
misdemeanor offenses or combination of misdemeanor offenses occurring
within any twenty-four-month period.
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The fact that a conviction is being appealed shall have no effect
on the disqualification of the applicant or a person residing with
the applicant.
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Any of the following:
The increase in floor areas occupied by the business by more
than 25%, as the floor areas exist on the date this article takes
effect.
Includes any of the following:
The sale, lease or sublease of the business;
The transfer of securities which constitute a controlling interest
in the business, whether by sale, exchange, or similar means; or
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.
Sexually oriented businesses are classified as follows:
A.
It is unlawful:
(1)
For any person to operate a sexually oriented business without a
valid sexually oriented business license issued by the Town pursuant
to this article.
(2)
For any person who operates a sexually oriented business to employ
a person to work for the sexually oriented business who is not licensed
as a sexually oriented business employee by the Town pursuant to this
article.
(3)
For any person to obtain employment with a sexually oriented business
without having secured a sexually oriented business employee license
pursuant to this article.
B.
An application for a license must be made on a form provided by the
Town. All applicants must be qualified according to the provisions
of this article.
C.
An applicant for a sexually oriented business license or a sexually oriented business employee license shall file with the Town Code Enforcement Officer a completed application made on a form prescribed and provided by the Town. An application shall be considered complete if it includes the information required in this section. The applicant shall be qualified according to the provisions of this article. The application shall be notarized. The application shall include the information called for in Subsection C(1) through (6) as follows:
(1)
The full true name and any other names used in the preceding five
years.
(2)
Current business address.
(3)
Either a set of fingerprints suitable for conducting necessary background
checks pursuant to this chapter or the applicant's social security
number to be used for the same purpose.
(4)
If the application is for a sexually oriented business license, the
name, business location, legal description, business mailing address
and phone number of the proposed sexually oriented business.
(5)
Written proof of age, in the form of either a copy of a birth certificate
and current photo, a current driver's license with picture, or other
picture identification document issued by a governmental agency.
(6)
The issuing jurisdiction and the effective dates of any license or
permit held by the applicant relating to a sexually oriented business,
whether any such license or permit has been denied, revoked or suspended
and, if so, the reason or reasons therefor.
(7)
If the application is for a sexually oriented business license, the name and address of the statutory agent or other agent authorized to receive service of process. The information provided pursuant to Subsection C(1) through (7) of this section shall be supplemented in writing by certified mail, return receipt requested, to the Code Enforcement Officer within 10 working days of a change of circumstances which would render the information originally submitted false or incomplete.
D.
The application for a sexually oriented business license shall be
accompanied by a sketch or 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 shall 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.
E.
If a person who wishes to operate a sexually oriented business is an individual, he shall sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, such as a corporation, each officer, director, general partner or other person who will participate directly in decisions relating to management of the business shall sign the application for a license as applicant. Each applicant must be qualified under § 280-33, and each applicant shall be considered a licensee if a license is granted.
F.
A person who possesses a valid business license is not exempt from
the requirement of obtaining any required sexually oriented business
license. A person who operates a sexually oriented business and possesses
a business license shall comply with the requirements and provisions
of this chapter, where applicable.
G.
The information provided by an applicant in connection with the application
for a license under this chapter shall be maintained by the Code Enforcement
Officer on a confidential basis and may be disclosed only to other
governmental agencies in connection with a law enforcement or public
safety function or as may otherwise be required by law or court order.
A.
Upon the filing of a completed application for a sexually oriented
business license or a sexually oriented business employee license,
the Enforcement Officer shall issue a temporary license to the applicant,
which temporary license shall expire upon the final decision of the
Code Enforcement Officer to deny or grant the license. Within 20 days
after the receipt of a completed application, the Code Enforcement
Officer shall either issue a license or issue a written notice of
intent to deny a license to the applicant. The Code Enforcement Officer
shall approve the issuance of a license unless one or more of the
following is found to be true:
(1)
An applicant is less than 18 years of age.
(2)
An applicant is delinquent in the payment to the Town of taxes, fees,
fines, or penalties assessed against or imposed upon the applicant
in relation to a sexually oriented business.
(3)
An applicant has failed to provide information as required by § 280-32 for issuance of the license.
(4)
An applicant, a business entity for which the applicant had, at the
time of an offense leading to a criminal conviction described herein,
a management responsibility or a controlling interest, has been convicted
of a specified criminal activity as defined in this chapter. The fact
that a conviction is being appealed shall have no effect.
(5)
The license application fee required by this article has not been
paid.
(6)
An applicant has falsely answered a question or request for information
on the application form.
(7)
The proposed sexually oriented business is located in a zoning district
other than a district in which sexually oriented businesses are allowed
to operate under this article or is not in compliance with the location
restrictions established for sexually oriented businesses in the appropriate
zoning district(s).
B.
An applicant ineligible for a license due to Subsection A(4) of this section may qualify for a sexually oriented business license only when the time period required by the applicable subsection has elapsed.
C.
The license, if granted, shall state on its face the name of the
person or persons to whom it is granted, the number of the license
issued to that applicant, the expiration date, and, if the license
is for a sexually oriented business, the address of the sexually oriented
business. A sexually oriented business employee license shall contain
a photograph of the licensee. The sexually oriented business 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. A sexually oriented business employee shall keep the employee's
license on his or her person or on the premises where the licensee
is then working or performing and shall produce such license for inspection
upon request by a law enforcement officer or other authorized Town
official.
A.
The nonrefundable initial license fee and annual renewal fee for a sexually oriented business license or a sexually oriented business employee license shall be set by the Town Board at an amount determined to be sufficient to pay the cost of administering this program, subject to Subsection B herein.
B.
In no event shall the fees exceed $500 for the initial license and
$125 for the renewal fee for a sexually oriented business license.
In no event shall the fees exceed $100 for the initial license and
$50 for the renewal fee for a sexually oriented business employee
license.
A.
An applicant, operator or licensee shall permit law enforcement officers
and any other federal, state, county or Town agency in the performance
of any function connected with the enforcement of this article normally
and regularly conducted by such agencies to inspect those portions
of the premises of a sexually oriented business where patrons or customers
are permitted to occupy for the purpose of ensuring compliance with
this chapter at any time the business is occupied or open for business.
B.
The provisions of this section do not apply to areas of an adult
motel which are currently being rented by a customer for use as a
permanent or temporary habitation.
A.
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in § 280-32. Application for renewal shall 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 license will not be affected.
B.
When the Town denies renewal of a license, the applicant shall not
be issued a license for one year from the date of denial. If, subsequent
to denial, the Town finds that the basis for denial of the renewal
license has been corrected or abated, the applicant shall be granted
a license if at least 90 days have elapsed since the date denial became
final.
The Town shall issue a written intent to suspend a license for
a period not to exceed 30 days if it determines that a licensee or
an employee of a licensee has:
A.
The Code Enforcement Officer shall issue a written statement of intent to revoke a sexually oriented business license if a cause of suspension in § 280-37 occurs and the license has been suspended within the preceding 12 months.
B.
The Code Enforcement Officer shall issue a written statement of intent
to revoke a sexually oriented business license if the Officer determines
that:
(1)
A licensee gave false or misleading information in the material submitted
during the application process;
(2)
A licensee has knowingly allowed possession, use or sale of controlled
substances on the premises;
(3)
A licensee has knowingly allowed prostitution on the premises;
(4)
A licensee knowingly operated the sexually oriented business during
a period of time when the licensee's license was suspended; or
(5)
A licensee has knowingly allowed any act of sexual intercourse, sodomy,
oral copulation, masturbation or other sex act to occur in or on the
licensed premises. This subsection will not apply to an adult motel,
unless the licensee knowingly allowed sexual activities to occur either
in exchange for money or in a public place or within public view.
C.
The fact that a conviction is being appealed shall have no effect
on the revocation of the license.
D.
When, after the notice and hearing procedure described in § 280-39, the Enforcement Officer revokes a license, the revocation shall continue for one year, and the licensee shall not be issued a sexually oriented business license for one year from the date revocation becomes effective, provided that, if the conditions of § 280-39D are met, a provisional license will be granted pursuant to that section. If, subsequent to revocation, the Code Enforcement Officer finds that the basis for the revocation found in Subsection B(1) and (4) of this section has been corrected or abated, the applicant shall be granted a license if at least 90 days have elapsed since the date the revocation became effective.
A.
If the Code Enforcement Officer determines that facts exist for denial,
suspension or revocation of a license under this article, the Enforcement
Officer shall notify the applicant or licensee (respondent) in writing
of the intent to deny, suspend or revoke the license, including the
grounds therefor, by personal delivery or by certified mail. The notification
shall be directed to the most current business address on file with
the Code Enforcement Officer. Within 10 working days of receipt of
such notice, the respondent may provide to the Code Enforcement Officer
and Town Clerk in writing a response that shall include a statement
of reasons why the license or permit should not be denied, suspended
or revoked. Within three days of the receipt of the respondent's written
response, the Town Clerk shall notify respondent in writing of the
hearing date on the respondent's denial, suspension or revocation
proceeding.
B.
Within 10 working days of the receipt of the respondent's written
response, the Town Board shall conduct a hearing at which the respondent
shall have the opportunity to be represented by counsel and present
evidence and witnesses on his or her behalf. If a response is not
received by the Town Clerk and Code Enforcement Officer in the time
stated, or if after the hearing the Town Board finds that grounds
as specified in this resolution exist for denial, suspension, or revocation,
then such denial, suspension, or revocation shall become final five
days after the Town Clerk sends, by certified mail, written notice
that the license has been denied, suspended, or revoked. Such notice
shall include a statement advising the applicant or licensee of the
right to appeal such decision to a court of competent jurisdiction.
C.
If the Town Board finds that no grounds exist for denial, suspension
or revocation of a license, then within five days after the hearing
the Town Board shall withdraw the intent to deny, suspend or revoke
the license and the Town Clerk shall so notify the respondent in writing
by certified mail of such action and shall contemporaneously therewith
issue the license.
D.
When a decision to deny, suspend or revoke a license becomes final,
the applicant or licensee (aggrieved party) whose application for
a license has been denied or whose license has been suspended or revoked
shall have the right to appeal such action to a court of competent
jurisdiction. Upon the granting of a temporary restraining order or
a preliminary injunction of the Town's enforcement of the denial,
suspension, or revocation, the Town shall immediately issue the aggrieved
party a provisional license. The provisional license shall allow the
aggrieved party to continue operation of the sexually oriented business
or to continue employment as a sexually oriented business employee
and will expire upon the court's entry of a judgment on the aggrieved
party's action to appeal, challenge, restrain or otherwise enjoin
the Town's enforcement.
A licensee shall not transfer his/her license to another, nor
shall a licensee operate a sexually oriented business under the authority
of a license at any place other than the address designated in the
application.
A.
A person commits a misdemeanor if that person operates or causes
to be operated a sexually oriented business in the Kingsbury Industrial
Park or in any zoning district other than the district area defined
herein.
B.
A person commits an offense if the person operates or causes to be
operated a sexually oriented business within 500 feet of:
(1)
A church, synagogue, mosque, temple or building which is used primarily
for religious worship and related religious activities;
(2)
A public or private educational facility, including but not limited
to child day-care facilities, nursery schools, preschools, kindergartens,
elementary schools, private schools, intermediate schools, junior
high schools, middle schools, high schools, vocational schools, secondary
schools, continuation schools, special education schools, junior colleges,
and universities; "school" includes the school grounds but does not
include facilities used primarily for another purpose and only incidentally
as a school;
(4)
A public park or recreational area which has been designated for
park or recreational activities, including but not limited to a park,
playground, nature trails, swimming pool, reservoir, athletic field,
basketball or tennis courts, pedestrian/bicycle paths, wilderness
areas, or other similar public land within the Town which is under
the control, operation, or management of the Town's park and recreation
authorities;
(5)
The property line of a lot devoted to a residential use as defined
in this chapter;
(6)
An entertainment business which is oriented primarily towards children
or family entertainment; or
(7)
A licensed premises, licensed pursuant to the alcoholic beverage
control regulations of the state.
C.
A person commits a misdemeanor if that person causes or permits the
operation, establishment, substantial enlargement, or transfer of
ownership or control of a sexually oriented business within 500 feet
of another sexually oriented business.
D.
A person commits a misdemeanor if that person causes or permits the
operation, establishment, or maintenance of more than one sexually
oriented business in the same building, structure, or portion thereof,
or the increase of floor area of any sexually oriented business in
any building, structure, or portion thereof containing another sexually
oriented business.
E.
For the purpose of Subsection B of this section, measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the building or structure used as the part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a use listed in Subsection B. Presence of a town, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section.
F.
For purposes of Subsection C of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to the intervening structures or objects or political boundaries, from the closest exterior wall of the structure in which each business is located.
G.
Any sexually oriented business lawfully operating on the effective date of this article that is in violation of Subsections A through F of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed one year, 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 500 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business(es) is/are nonconforming.
H.
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 license, of a use listed in Subsection B of this section within 500 feet of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application is made for a license after the applicant's previous license has expired or been revoked.
A.
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, live entertainment, or other video reproduction which
depicts specified sexual activities or specified anatomical areas,
shall comply with the following requirements:
(1)
Upon application for a sexually oriented 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 Town 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.
(2)
The application shall be sworn to be true and correct by the applicant.
(3)
No alteration in the configuration or location of a manager's station
may be made without the prior approval of the Town.
(4)
It is the duty of the licensee of the premises to ensure that at
least one licensed employee is on duty and situated in each manager's
station at all times that any patron is present inside the premises.
(5)
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.
(6)
It shall be the duty of the licensee to ensure that the view area specified in Subsection A(5) remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection A(1) of this section.
(7)
No viewing room may be occupied by more than one person at any time.
(8)
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 five footcandles
as measured at the floor level.
(9)
It shall be the duty of the licensee to ensure that the illumination
described above is maintained at all times that any patron is present
in the premises.
(10)
No licensee shall allow openings of any kind to exist between
viewing rooms or booths.
(11)
No person shall make or attempt to make an opening of any kind
between viewing booths or rooms.
(12)
The licensee shall, during each business day, regularly inspect
the walls between the viewing booths to determine if any openings
or holes exist.
(13)
The licensee shall cause all floor coverings in viewing booths
to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
(14)
The licensee shall cause all wall surfaces and ceiling surfaces
in viewing booths to be constructed of, or permanently covered by,
nonporous, easily cleanable material. No wood, plywood, composition
board or other porous material shall be used within 48 inches of the
floor.
A.
It shall be a misdemeanor for a person who knowingly and intentionally,
in a sexually oriented business, appears in a state of nudity or engages
in specified sexual activities.
B.
It shall be a misdemeanor for a person who knowingly or intentionally,
in a sexually oriented business, appears in a seminude condition unless
the person is an employee who, while seminude, shall be at least six
feet from any patron or customer and on a stage at least two feet
from the floor.
C.
It shall be a misdemeanor for an employee, while seminude in a sexually
oriented business, to receive directly any pay or gratuity from any
patron or customer or for any patron or customer to pay or give any
gratuity directly to any employee while said employee is seminude
in a sexually oriented business.
D.
It shall be a misdemeanor for an employee, while seminude, to knowingly
and intentionally touch a customer or the clothing of a customer.
A person commits a misdemeanor if the person knowingly allows
a person under the age of 18 years on the premises of a sexually oriented
business.
No sexually oriented business, except for an adult motel, may
remain open at any time between the hours of 12:00 midnight and 8:00
a.m. on weekdays and Saturdays, and 12:00 midnight and noon on Sundays.
It is a defense to prosecution under § 280-45 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 which maintains and operates educational
programs in which credits are transferable to a college, junior college,
or university supported entirely or partly by taxation; or
C.
In a structure:
(1)
Which has no sign visible from the exterior of the structure and
no other advertising that indicates a nude person is available for
viewing; and
(2)
Where, in order to participate in a class, a student must enroll
at least three days in advance of the class; and
(3)
Where no more than one nude model is on the premises at any one time.
A person who operates or causes to be operated a sexually oriented
business without a valid license or in violation of this article is
subject to a suit for injunction as well as prosecution for criminal
violations. Such violations shall be punishable by a fine of $200
or 30 days' imprisonment. Each day a sexually oriented business so
operates is a separate offense or violation.
