The Town Board of the Town of Newburgh is familiar with the
Town, the location of adult-oriented business within the Town and
the issues raised by such business in the Town and throughout the
country. Based on the Board's local knowledge, the input of Town residents
and business owners obtained during a public input session held on
August 14, 2012, and evidence and studies concerning the possible
impacts or secondary effects of adult-oriented businesses on the surrounding
community, as presented in judicial decisions such as, but not limited
to, City of Erie v. Pap's A.M. d/b/a "Kandyland", 529 U.S. 277 (2000);
Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991); City of Renton
v. Playtime Theaters, Inc., 475 U.S. 41 (1986); Young v. American
Mini Theaters, Inc., 427 U.S. 50 (1976); Stringfellow's of New York,
Ltd. v. City of New York, 671 N.Y.S.2d 406 (1998); Town of Islip v.
Caviglia, 73 N.Y. 2d 544 (1989) and Singer v. Town of East Hartford,
736 F.Supp. 430 (D. Conn. 1989), aff'd 901 F.2d 297 (2d Cir. 1990)
(affirming judgment on basis of district court opinion); and on studies
conducted by other communities including, but not limited to, Report
on the Secondary Effects of the Concentration of Adult Use Establishments
in the Times Square Area; Study of Police Activity Milford: Testing
for Negative Secondary Effects of Adult Business; Adult Business - Study
(Planning Department, City of Phoenix); Adult Use Study (Newport News
Department of Planning and Development); Rural Hot Spots: the Case
of Adult Businesses (by Richard McCleary); Adult Entertainment Businesses
in Indianapolis an Analysis, Report on Adult Oriented Businesses in
Austin (Office of Land Development Services); Survey of Florida Appraisers:
Effect of Land Uses on Market Values; Adult Entertainment Study (Department
of City Planning City of New York); Effects of Adult Entertainment
Businesses on Residential Neighborhoods (Office of the City Attorney,
City of El Paso); the Secondary Effects Doctrine Since Alameda: an
Empirical Re-examination of the Justification for Laws Limiting First
Amendment Protection (by Christopher Seaman and Daniel Linzand); and
Survey of Texas Appraisers Secondary Effects of Sexually-Oriented
Businesses on Market Values, the Board finds:
A. Adult-oriented businesses are unavoidably associated with unlawful,
unhealthy and detrimental activities ancillary to the constitutionally
protected speech activities of such businesses.
B. Employees of adult-oriented businesses engage in or may be requested
to engage in sexual behavior as a result of the type of business by
which they are employed.
C. People present in the vicinity of an adult-oriented business are
often assumed by third parties to be engaged in, or amenable to, the
types of unlawful, unhealthy and detrimental activities ancillary
to such businesses. As a result, such persons are subjected to unwanted
advances or attention by persons frequenting such adult-oriented business.
D. People who choose not to frequent adult-oriented businesses tend
to avoid areas in which such businesses locate. As a result, areas
in which adult-oriented businesses and massage establishments locate
often become dead zones, i.e., areas in which owners of non-adult-oriented
businesses tend to choose not to locate in the first instance, or
choose to migrate away from, because of diminished pedestrian traffic
due to the presence of adult-oriented businesses and massage establishments.
E. Because non-adult-oriented businesses tend not to locate near, or
migrate away from, adult-oriented businesses, the presence of one
such business tends to attract other adult-oriented businesses into
the dead zone, thereby increasing the pace and intensity of the unlawful,
unhealthy and detrimental activities unavoidably associated with such
businesses and contributing to the blighting of the area surrounding
such businesses. The smaller the municipality, including the Town,
the larger the effects of a dead zone because such a zone would encompass
a larger proportion of the municipality's businesses as opposed to
a similar zone situated in a larger municipality.
F. Due to the small geographical area of the Town of Newburgh, the probability
increases that adult-oriented businesses will have substantial effects
upon residential areas within the Town. Further, smaller municipalities,
including the Town, are more likely to have fewer days and hours of
commercial activity than a larger municipality. This increases the
likelihood that an adult-oriented business or massage establishment
will have a larger effect on the area in which it is located during
the off-hours of non-adult-oriented businesses.
G. Sexual acts, including masturbation, occur at adult-oriented businesses,
especially those which provide enclosed rooms, booths or other cubicles
for viewing of films, videos or live sex shows, thereby creating unhealthy
and unsanitary conditions within the premises of such businesses.
H. Sexual activity is often a secondary effect of the constitutionally
protected speech activities presented at adult-oriented businesses,
thereby creating unhealthy and unsanitary conditions.
I. Some patrons frequent adult-oriented businesses for the purpose of
engaging in specified sexual activities within the premises of such
businesses, thereby creating unhealthy and unsanitary conditions within
the premises of such businesses as demonstrated by online reports
of patrons of adult-oriented businesses located within the Hudson
Valley stating that some employees of such businesses provide extras,
i.e., engage in specified sexual activities with patrons in exchange
for monetary compensation.
J. Communicable diseases may be spread by specified sexual activities,
including, but not limited to, transmission of the human immunodeficiency
virus ("HIV") and the contraction of the acquired immunodeficiency
syndrome ("AIDS"), hepatitis B and venereal diseases.
K. Venereal diseases, HIV, AIDS and hepatitis B, as well as other communicable
diseases spread by specified sexual activities, are serious health
concerns in the local community.
L. Sanitary conditions in some adult-oriented businesses are unhealthy,
in part, because the activities conducted there are unhealthy, and,
in part, because of the unregulated nature of the activities engaged
in by some patrons of such businesses and the failure of some business
owners and operators to self-regulate those activities and maintain
the business premises.
M. Numerous studies and reports have determined that semen and other
bodily fluids are found in certain areas of adult-oriented businesses,
particularly where persons view, in enclosed rooms, booths or other
cubicles, adult materials or entertainments characterized by an emphasis
on nudity or specified sexual activities or specified anatomical areas.
N. Adult-oriented businesses have operational characteristics which
should be reasonably regulated in order to protect the substantial
governmental concerns raised by the various findings herein while
permitting patrons and owners of such businesses to engage in constitutionally
protected speech activities.
O. The unregulated presence of adult-oriented businesses is associated
with declining property values.
P. The unregulated presence of adult-oriented businesses is associated
with increased crime rates against both property and persons.
Q. Children and teenagers are more likely to be exposed to graphic sexual
images because of the unregulated presence of adult-oriented businesses.
R. Because persons patronizing adult-oriented businesses often travel
a significant distance to such businesses, these persons tend to not
share with Town residents the concerns for the quality of life in
the Town. Consequently, persons from outside the Town patronizing
such businesses tend to place an inordinate strain on Town services
and facilities such as parking, usage of Town streets, and trash collection
and removal.
S. The unregulated presence of adult-oriented businesses tends to alter
the character of the community in which they are located and quality
of life for the residents of such community. The Town is presently
in the process of addressing legislative and administrative action
items recommended by the adoption of the Town's Comprehensive Plan
Update in a deliberate process in an effort to alter and improve both
the character and quality of life in the Town. The alterations to
character and quality of life associated with the unregulated presence
of adult-oriented businesses are at odds with the goals of the alteration
and improvement the Town is undergoing and, consequently, the failure
to properly regulate adult-oriented businesses and massage establishments
could undermine this process.
T. The Town's intent in regulating adult-oriented businesses is not
to restrict constitutionally protected speech activities but rather
to provide constitutionally sufficient alternate avenues for persons
to engage in such activities in a manner consistent with the constitutions
of the United States and New York State while addressing the unlawful,
unhealthy and detrimental activities ancillary to such speech and
ameliorating these secondary effects on the peace, good order, commercial
viability and safety of Town residents and non-adult-oriented businesses.
U. The Town has granted a franchise to both Verizon and Time Warner
for the provision of cable television, and these franchisees additionally
provide high-speed Internet services within the Town, and such access
is available to all Town residents. This universal availability of
cable television and high-speed Internet access throughout the Town
provides additional alternate avenues for residents to view constitutionally
protected adult materials and adult entertainment if they exercise
their right to do so.
V. The regulations set forth in this article are the least intrusive
method available to ameliorate the negative secondary effects of adult-oriented
businesses within the Town without infringing on constitutionally
protected speech activities. The Town considered imposing separation
restrictions from cemeteries and establishments serving alcoholic
beverages, but declined to do so in order to ensure the availability
of a sufficient number of commercially viable sites for the location
of adult-oriented businesses within the Town. Similarly, the Town
considered, but declined, to implement a prohibition on nudity in
live adult entertainment offered by adult-oriented businesses as it
was determined that such a restriction would impose an unjustified
burden on the underlying expressive activity. The Town also rejected
creating any type of licensing scheme for adult-oriented businesses
as the Board believed doing so might create, either facially or as
applied, an unconstitutional system of prior restraint. Finally, the
Board rejected dedicating additional police resources toward the more
aggressive enforcement of existing penal and public nuisance laws,
because of both budgetary limitations and to avoid possibly chilling
the free-speech activities of law-abiding adult-business owners and
their patrons.
W. The studies conducted by other communities that were reviewed by
the Board, particularly, but not limited to, the 1994 study prepared
by New York City, are applicable to the particular circumstances and
experiences of the Town regarding adult-oriented businesses. Although
most of the studies reviewed by the Board were conducted by larger
municipalities, the studies themselves often focused their factual
sampling and analysis on small, discrete areas of the municipality
rather than the whole municipality. The relatively small size of the
study areas in which secondary effects were found to occur is far
more analogous to the geographic area of the Town. As such, the experiences
and conclusions documented in the secondary effects studies are valid
predictors of the effects of adult-oriented businesses within the
Town. In order to screen the quality of secondary effects studies
considered, the Board reviewed and relied on only those studies that
were based on collected data, e.g., crime statistics, property value
assessments, etc., rather than on anecdotal statements.
X. The separation of adult-oriented businesses from sensitive sites
and the boundaries of residential zoning districts mandated by this
article, and the requirement that such businesses locate in nonresidential
districts, will ameliorate the negative secondary effects of such
businesses by creating a spatial buffer between those portions of
the Town most subject to the harms of increased crime, decreased property
values, influx of patrons from outside of the Town, late night traffic
and parking congestion, noise, unhygienic conditions, and the likely
exposure of children and teenagers to nudity, specified anatomical
areas or specified sexual activities.
Y. This article provides for alternative sites on which adult-oriented
business may locate, and these sites are both physically and legally
available, within the Town's borders. These alternate sites are part
of an actual business real estate market within the Town. The local
law makes available for adult-oriented businesses approximately 41%
of the total area of the Town open for commercial activity. Applying
a five-hundred-foot separation requirement between adult-oriented
businesses in addition to separation requirements between adult-oriented
businesses and residential zoning district boundaries and sensitive
sites, approximately 39% of the land area of the IB Zoning District
and 40% of the land area in the B Zoning District outside the latter
separation requirements remains available for adult-oriented businesses.
These alternate sites have been identified and reviewed and are accessible
to the public, have some likelihood of being available for use by
adult-oriented businesses, and are suitable for commercial activity
as they have access to the necessary public infrastructure required
to support a commercial activity, e.g., water, sewage and electrical
service, as well as a reasonable ability for patrons to lawfully ingress
and egress such sites.
Z. Massage establishments are associated with many of the same unavoidably
unlawful, unhealthy and detrimental activities associated with adult-oriented
business that offer adult materials or adult entertainment.
AA. The general welfare, health, comfort and safety of the citizens of
the Town will be promoted by the enactment of this article and it
is, therefore, necessary to do so.
BB. The intent of the Town Board in enacting this article is to ameliorate
the negative secondary effects of adult-oriented businesses. The intent
of the Board is not to limit constitutionally protected expressive
activity and, to this end, this article is not intended to prohibit
the establishment or operation of adult-oriented businesses in compliance
with the content-neutral, time, place and manner restrictions established
by this enactment.
As used in this article, the enumerated terms shall be defined
as follows:
ADULT ENTERTAINMENT
A.
Includes all entertainment in any live or recorded form or format
which includes nudity or the depiction or display of specified sexual
activities, specified anatomical areas or adult materials, as well
as employees of any establishment who, as part of their employment
duties, are required to wear costumes or uniforms or engage in live
performances, in addition to their non-performance employment duties,
where, during any portion of the discharge of their employment duties,
such employees are in a state of nudity or depict or describe specified
sexual activities or specified anatomical areas as defined herein.
B.
Exceptions. Any entertainment otherwise falling within the definition set forth in Subsection
A shall not be considered to be within such definition if:
(1)
The entertainment does not include at least one visual depiction
of nudity or specified sexual activities or specified anatomical areas;
or
(2)
The entertainment includes at least one visual depiction of
nudity or specified sexual activities or specified anatomical areas;
and
(a)
The entertainment, when viewed as a whole, presents such depiction
for educational or scholarly purposes; and
(b)
Such depiction constitutes less than 10% of total duration of
the entertainment.
ADULT MATERIALS
A.
Includes any literature, books, magazines, pamphlets, newspapers,
papers, comic books, drawings, articles, computer or other images,
motion pictures, films, photographs, digital video discs, videocassettes,
slides; or other visual representations, mechanical devices, instruments,
clothing or any other writings, materials or accessories which are
distinguished or characterized by their emphasis on matter depicted,
described or related to nudity, specified sexual activities or specified
anatomical areas as defined herein.
B.
Exceptions. An item otherwise falling within the definition set forth in Subsection
A shall not be considered to be within such definition if:
(1)
The item is printed matter that does not contain at least one
visual depiction of nudity or specified sexual activities or specified
anatomical areas; or
(2)
The item is printed matter containing at least one visual depiction
of nudity or specified sexual activities or specified anatomical areas;
and
(a)
The item, when viewed as a whole, presents such depiction for
educational or scholarly purposes; and
(b)
The item is offered for sale by an establishment in which not
more than 10% of the establishment's total interior square footage
which is open to the general public is devoted to the sale, rental,
lease, trade, gift or display of adult materials.
ADULT-ORIENTED BUSINESS
A use of a building, structure, or property for a business
which includes the regular offering, for economic gain or other consideration,
of adult materials or adult entertainment as a substantial or significant
portion of its stock-in-trade for the purposes of sale, rental, lease,
trade, gift or display of such adult materials or adult entertainment.
For the purposes of this article, adult-oriented businesses shall
include any restaurant, nightclub, bar, tavern, eating-and-drinking
place or establishment, arcade, theater, video store, motel, hotel,
or any other establishment that regularly offers, for economic gain
or other consideration, adult entertainment, a retail store that offers
adult materials as hereinafter defined and any massage establishment.
EMPLOYEE
Any person who provides services or any other type of labor,
including live performances, on the premises of an adult-oriented
business, as such term is defined herein, regardless of the nature
of the legal relationship between such person and the adult-oriented
business in which such services or labor occur and whether such services
or labor are performed for economic gain or other consideration.
FINANCIAL EXPENDITURES
Any improvements or other capital outlay made by an owner of an adult-oriented business to establish such business, exclusive of the fair market value of the building, structure, and/or property in or on which such business is located at the time of any application pursuant to §
185-75D and exclusive of any improvements or other capital outlay unrelated to the offering of adult materials or adult entertainment which renders the use a nonconforming adult-oriented business.
MASSAGE ESTABLISHMENT
A.
Any establishment having a fixed place of business where massages
are administered for pay, including but not limited to massage parlors,
sauna baths and steam baths.
B.
Exceptions. The definition provided for under Subsection
A above shall not be construed to include the following:
(1)
Hospitals, nursing homes, medical clinics, or the offices of
a physician, surgeon, chiropractor, osteopath, or duly licensed physical
therapists, occupational therapists, or duly licensed massage therapists;
(2)
Barber shops, beauty salons or nail salons in which massages
are administered only to the scalp, face, neck or shoulders; or
(3)
Health clubs or fitness facilities and recreational membership
clubs which have facilities for physical exercise, such as tennis
courts, racquetball courts, ice skating rinks, or exercise rooms,
and which do not receive their primary source of revenue through the
administration of massages.
NON-ADULT ENTERTAINMENT
All entertainment in any live or recorded form or format
not within the definition of adult entertainment.
NON-ADULT MATERIALS
Any literature, books, magazines, pamphlets, newspapers,
papers, comic books, drawings, articles, computer or other images,
motion pictures, films, photographs, digital video discs, videocassettes,
slides; or other visual representations, mechanical devices, instruments,
clothing or any other writings, materials or accessories not within
the definition of adult materials.
NUDITY
The showing of the human male or female genitals, pubic areas,
buttocks, or anus, any part of the nipple or any part of a female
breast below a point immediately above the top of the areola with
less than a fully opaque covering.
SENSITIVE SITE
Any one of the following: churches, synagogues, mosques or
other places of worship, schools, child or day nursery facilities,
public or semipublic parks or recreational facilities in existence
as of September 15, 2012.
SPECIFIED ANATOMICAL AREAS
Includes:
A.
Less than completely or opaquely covered:
(4)
Female breast below a point immediately above the top of the
areola.
B.
Human male genitals in a discernible turgid state, even if completely
and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES
Includes:
A.
Actual or simulated fondling or other erotic touching of human
genitals, pubic region, buttocks, anus, or female breast;
B.
Actual or simulated acts of human masturbation, sexual intercourse,
contact between the mouth and genitals, contact between the mouth
and anus, contact between the mouth and breast;
C.
Human genitals in a state of sexual stimulation or arousal;
D.
Actual or simulated sexual acts between humans and animals;
or
E.
Excretory functions as part of or in connection with any of the activities set forth in Subsection
A,
B,
C or
D above.
SUBSTANTIAL OR SIGNIFICANT PORTION
A.
General rule. An establishment that regularly offers, for economic
gain or other consideration, adult materials or adult entertainment
shall be considered to include adult materials or adult entertainment
as a substantial or significant portion of its stock-in-trade where
only a portion or section of such establishment's area is set aside
for the sale, rental, lease, trade, gift or display of adult materials
or adult entertainment.
B.
Ten-percent safe harbor exception. Any establishment that would
otherwise be subject to this article that can prove that adult materials
are contained, or adult entertainment is permitted to occur, in not
more than 10% of the establishment's total interior square footage
which is open to the general public, shall be exempt from the provisions
of this article so long as such adult materials are kept out of the
reach of minors and the method of operation of such establishment
does not permit minors to view nudity, specified sexual activities
or specified anatomical areas.
C.
Exception to ten-percent safe harbor exception. The ten-percent
safe harbor exception otherwise provided for under this definition
shall not apply to any establishment possessing one or more of the
following features:
(1)
An interior configuration and layout requiring customers to
pass through an area of the establishment with adult materials or
adult entertainment in order to access an area of the establishment
with non-adult materials or non-adult entertainment;
(2)
One or more individual enclosures where adult materials or adult
entertainment are available for viewing by customers;
(3)
A method of operation requiring customer transactions with respect
to non-adult materials or non-adult entertainment to be made in an
area in which nudity, specified sexual activities or specified anatomical
areas are visible;
(4)
A method of operation under which non-adult materials or non-adult
entertainment are offered for sale only and adult materials or adult
entertainment are offered for sale or rental;
(5)
A greater number of different titles of adult materials than
the number of different titles of non-adult materials;
(6)
A method of operation excluding or restricting minors from the
establishment as a whole or from any section of the establishment
with non-adult materials or non-adult entertainment;
(7)
A sign advertising the availability of adult materials or adult
entertainment which is disproportionate in size relative to a sign
advertising the availability of non-adult materials or non-adult entertainment,
when compared with the proportions of adult materials or adult entertainment
and non-adult materials or non-adult entertainment offered for sale
or rent in the establishment; or the proportions of the establishment's
total interior square footage open to the general public containing
adult materials, or in which adult entertainment is permitted to occur,
and such square footage containing non-adult materials or in which
non-adult entertainment is permitted to occur; or
(8)
A window display in which the number of products or area of
display of adult materials or adult entertainment is disproportionate
in size relative to the number of products or area of display of non-adult
materials or adult entertainment, when compared with the proportions
of adult materials or adult entertainment and non-adult materials
or non-adult entertainment offered for sale or rent in the establishment;
or the proportions of the establishment's total interior square footage
open to the general public containing adult materials, or in which
adult entertainment is permitted to occur, and such square footage
containing non-adult materials or in which non-adult entertainment
is permitted to occur.
ZONING BOARD OF APPEALS
The terms "Board," "Board of Appeals" and "Zoning Board of
Appeals of the Town of Newburgh" shall mean the Zoning Board of Appeals
of the Town of Newburgh.
Massage establishments shall not be a permitted use within the
Town of Newburgh.
An adult-oriented business shall be permitted, in accordance with the requirements of this section, only in the B, IB or I zoning districts as shown on the August 19, 1974, Zoning Map, Town of Newburgh, last amended on June 4, 2012, which accompanies and which, with all explanatory matter thereon, is hereby adopted and made a part of this article. The exact location of each zoning district boundary is recorded on the Official Zoning Map in the office of the Town Clerk in accordance with § 264 of Town Law and §
185-5 of the Town's Zoning Law.
During the period that an adult-oriented business is occupied,
it shall be illuminated by sufficient natural or nonflashing artificial
light to permit safe ingress and egress to and from the premises.
Each adult-oriented business offering entertainment consisting
of live performances shall maintain adequate security during hours
of operation to ensure the public peace and order. The provisions
of this section shall require each adult-oriented business offering
live performances to employ not less than one uniformed security guard
per every 50 or fewer patrons on the premises. For any number of patrons
over 50, each adult-oriented business offering live performances shall
employ not less than two uniformed security guards. All uniformed
security guards shall be employed in accordance with the New York
State Security Guard Act of 1992, as may be amended from time to time.
No nonconforming building or lot shall be used for an adult-oriented
business, unless a variance has been obtained from the Zoning Board
of Appeals. No existing building, lot or use shall be added to, enlarged,
expanded in size or converted for purposes of conducting an adult-oriented
business so as to render such building, lot or use nonconforming.
The following shall not be permitted on the premises of any
adult-oriented business within the Town of Newburgh:
A. Appearance by a person knowingly or intentionally engaging in specified
sexual activities; or
B. The use of sound amplification equipment to amplify a description
or discussion of nudity, specified anatomical areas or specified sexual
activities if:
(1) Such description or discussion is audible beyond the exterior of
the structure from which the description or discussion originates;
or
(2) Such description or discussion is amplified in a public place.
Violations of this article are subject to enforcement and penalties as provided for in Code §
185-52 and in case any adult-oriented business or massage establishment is operating or has been established in violation of this section or any regulations made under authority conferred hereby, the Town Board of the Town of Newburgh or, with its approval, the Building and Code Enforcement Officer or other proper official, in addition to other remedies, may institute any appropriate action or proceedings to prevent, correct or abate such violation.