[HISTORY: Adopted by the Board of Trustees of the Village
of Chittenango 12-18-2012 by L.L. No. 7-2012.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Alcoholic beverages — See Ch. 44.
Peace and good order — See Ch. 104.
Zoning — See Ch. 148.
[1]
Editor's Note: This chapter was originally adopted as
Ch. 105 but was renumbered in order to maintain the alphabetical organization
of the Code.
The Village Board of Trustees has determined that the difficulties
in controlling the operational characteristics and consequences of
sexually oriented adult uses creates a detrimental impact on the community.
If such uses are spread throughout the Village, the detrimental impact
is compounded. Based upon common knowledge, experience and studies
by other municipalities, both large and small, adult uses sought to
be regulated by this chapter have been disproportionately associated
with criminal behavior and other socially undesirable behavior. Such
behavior includes increased disorderly conduct, prostitution, dissemination
of child and adult pornography, increased drug trafficking and substance
abuse. These have the resulting effects of depressing property values
in the surrounding neighborhood, subjecting residents and persons
lawfully in the area to personal harm and increasing the burden upon
law enforcement personnel. Therefore, the purpose of this chapter
is to regulate sexually oriented adult uses, in order to promote the
health, safety, moral and general welfare of the citizens of, and
visitors to, the Village of Chittenango.
This chapter is enacted pursuant to authority granted under
§ 10-1(a)(12) and § 10-4(b) of the Municipal Home
Rule Law of the State of New York and § 4-412(1) of the
Village Law of the State of New York.
General intent: unless specifically defined below, words or
phrases used in this chapter shall be interpreted so as to give them
the meaning they have in common usage and to give this chapter its
most reasonable application.
Acts which result in the satisfaction of overtly sexual desire,
including, but not limited to, masturbation, sexual intercourse, sodomy,
sexual touching, and those similar acts for which the Penal Law of
the State of New York provides criminal sanctions for unauthorized
contact or public display.
Those uses which primarily promote, utilize, sell or display
human conduct, materials or speech which are primarily intended to
incite immediate sexual arousal and/or response. They may include,
but are not limited to portrayal of persons engaging in intimate sexual
contact; activities of employees or contractors who openly display
parts of the human anatomy and sexual genitalia, in a manner which
incites a sexual response; sale or rental of books, CDs, videotapes,
audiotapes and other media which openly portray intimate sexual contact;
offer customers the opportunity to have direct contact with objects,
or persons, for the purpose of sexual gratification; offer for sale
pictures, posters, and other printed materials which depict intimate
sexual contact and/or openly display intimate parts of the human anatomy
primarily for sexual gratification purposes; engage in oral communication
principally intended to induce sexual arousal; and sale or rental
of objects similar to sexual organs in appearance, or whose primary
purpose is to act as a substitute for a sexual organ, primarily to
promote sexual gratification.
Any commercial enterprise, association, or arrangement which
charges a fee, or otherwise requires consideration of monetary value,
for its products, whether or not actually paid.
The transfer or possession, custody, control or ownership
of, or the exhibition of, presentation of, any material object, or
the display of any performance of activities by a person or animal
in any media form to a customer, member of the public or business
invitee. With regard to its meaning in this chapter, when the words,
conduct and material being disseminated is for adult use distinguished
by, or characterized by, a substantial emphasis on matter depicting,
describing or relating to acts of sexual gratification. Such shall
include the temporary possession of such materials with intent to
disseminate.
Those parts of the human anatomy commonly covered by clothing
and for which a person is subject to criminal prosecution resulting
from the unauthorized touching thereof or contact with, under the
Penal Law of the State of New York.
Any person, firm, partnership, corporation, association,
or legal representative, acting individually or jointly.
Genitalia of a human being.
Having ownership, responsibility for operation, control of
conduct, directly or indirectly, of a business, premises, building
or location where a business is conducted; having a share in any potential
profits or losses of a business; having a share of ownership of assets
of a business from which profits are derived based upon usage; having
an ownership interest in the premises or structure in which a business
is located; individuals who are officers, directors or shareholders,
either directly, indirectly or beneficially, of more than 20% of any
class of stock of a business; any person who has furnished, or furnishes,
more than 20% of the capital financing or assets of a business, whether
in cash, goods or services; and having a leasehold interest in any
structure or premises upon which the business is located or operated.
In addition to the requirements of the Zoning Chapter of the
Village Code of the Village of Chittenango,[1] any new adult use shall only be permitted, subject to
the following restrictions:
A.
No adult use shall be located within 500 feet of another existing
adult use.
B.
No adult use shall be located within 1,000 feet of the boundaries
of any zoning district primarily designated for single-family, two-family
or multiple-family dwelling units.
C.
No adult use shall be located within 1,000 feet of a preexisting
public or private school, park, playground, child day-care center,
library or a structure primarily used for worship.
D.
No adult use shall be located in any zoning district, except those
districts designated as special business or industrial use.
E.
No structure, business or entity authorized to conduct an adult use
shall offer a room, or rooms, to its customers for the purpose of
permitting its customers to engage in acts of sexual gratification,
either among themselves or with employees or contractors of the business
or entity, whether or not a fee is charged for use of the room or
for contact with its employees or contractors.
F.
Every adult use shall conduct business in an enclosed building, with
a setback from a public street of at least 100 feet, with a minimum
fifty-foot side yard requirement and one-hundred-foot rear yard requirement.
Regardless of location or distance, there shall not be visible,
from outside a structure having a use governed by these provisions,
pictures, photographs, drawings, or other realistic depictions of
intimate parts of the human anatomy or acts of sexual gratification
which are located on or inside such structure. There shall also not
be visible, from outside such structure, live presentations of intimate
parts of the human anatomy or any live acts of sexual gratification,
which are conducted inside such structure. All signs advertising such
adult use must otherwise comply with sign restrictions of the Zoning
Chapter of the Village Code[1] and other applicable laws regarding signs.
A.
No person, firm, corporation or other entity shall lease or rent
as landlord or tenant, or maintain, operate, use or allow to be operated
or used, any structure, business or establishment, any part thereof
which contains an adult use, without first complying with the provisions
of this article.
B.
No adult use shall be operated, nor continue to operate, until a
certificate of registration is filed with the Village Clerk, either
personally or by certified mail, containing:
(1)
The address of the premises;
(2)
The name(s) and address(es) of the owner(s) of the structure and
land upon which the structure is located; or the name(s) and address(s)
of the beneficial owner(s), if the property is in a land trust.
(3)
The name of the business or the establishment subject to the provisions
of this chapter.
(4)
The names, business and home addresses, and business and home telephone
numbers of all persons having a substantial business connection with
the adult use, subject to the provisions of this chapter.
(5)
The date of the initiation of the adult use.
(6)
The exact nature of the adult use.
(7)
If the premises or the structure in which the business containing
the adult use is located is leased, a copy of the lease.
C.
If there occurs any change in the information required for the certificate
of registration, the Village Clerk shall be notified either personally
or by certified mail of such change, and a new or amended certificate
shall be filed within 30 days of such change.
D.
The processing fee on each certificate of registration shall be $100.
The fee for each amendment shall be $100, prorated for the balance
of the term of the original certificate of registration. Such certificate
of registration must be effective concurrently with the special use
permit issued for such use. The fee provided in this section shall
be an annual charge, commencing on or about June 1 of each successive
year.
E.
The certificate of registration issued under the provisions of this
chapter shall not be transferable for use at any premises, building
or location other than that stated in the certificate of registration.
F.
All owners of, managers of, agents of, and anyone with a substantial
business connection to any adult use shall be responsible, jointly
and severally, for obtaining a certificate of registration and causing
a copy of the certificate of registration issued under the provisions
of this chapter to be prominently displayed on the premises, building
or location for which it is issued.
G.
Any knowingly false statement, or any statement which the registrant
or applicant should reasonably have known to be false, which is provided
for the certificate of registration, or any false document or false
information supplied in connection with the application, shall be
grounds for rejection, suspension or revocation of the certificate
of registration, in addition to any other penalties under statute
or local law.
H.
It is a violation of this chapter for the owner or person in control
of any property to establish or operate thereon, or permit any person
to establish or operate thereon, an adult use without having in force
a current certificate of registration.
A.
No adult uses described in this chapter shall be established until
the issuance of a special use permit by the Village Planning Board.
Application for such special use permit shall be in conformity with
this chapter and provide all information necessary to assure compliance
with the provisions of this chapter.
B.
The application shall be in writing to the Village Planning Board
and shall include a description of the premises for which a permit
is sought, a plain and concise statement of the use which is proposed
and such additional information as required by the Village Planning
Board.
C.
A special permit issued pursuant to this chapter shall be limited
in term to one year. Such permit shall be prominently displayed upon
the premises in which the adult use is conducted.
D.
No later than 60 days prior to the expiration of such special permit,
the person to whom a special permit was issued may make application
to extend such permit and shall provide to the Village Planning Board
such information as such board shall require, to assure that the adult
use has been, and will be, in compliance with the terms and provisions
of this chapter. Unless there is a proceeding pending before the Zoning
Board of Appeals to terminate the special use permit, pending the
determination of an application for renewal, the special use permit
shall remain in full force and effect.
E.
The Zoning Board of Appeals shall have the right to suspend or terminate
the special use permit, if it is determined that the person to whom
such permit has been issued has demonstrated a pattern of noncompliance
with the provisions of this chapter, has failed to manage or control
its customers, such that peace and good order has not been consistently
maintained, or has engaged in, or has knowingly permitted, activities
at the premises for which a person or persons having substantial business
connection to the adult use have been found guilty of a crime.
(1)
Termination or suspension of a special use permit provided in this
chapter, prior to the expiration of its term, can only be undertaken
after the person to whom the special use permit has been issued has
been afforded the opportunity for a hearing.
(2)
Such hearing shall be upon no less than seven days' written
notice, either personally delivered to the holder of the permit, or
mailed to the last known address, contained in the records of the
Village Clerk, of the person to whom the permit was issued.
(3)
Such notice shall state the date of the hearing, the location of
the hearing, the time of the hearing, a summary of the factual information
providing grounds for the proposed termination, shall state that,
as a consequence of the hearing, the special permit may be suspended
or terminated, and shall provide that the holder of the permit, or
its representative, shall have the right to be represented by an attorney,
and shall indicate that in default of appearance by the person to
whom the permit was issued, or its representative, the special permit
may be suspended or terminated.
(4)
At such hearing, the formal rules of evidence shall not apply, and
it shall be the burden of the party seeking to have the special permit
suspended or terminated to demonstrate good cause therefor, by a preponderance
of the evidence acceptable to the Zoning Board of Appeals. The holder
of the special permit, or its representative, shall have the opportunity
to present evidence and testify in opposition to such suspension or
termination proceeding.
(5)
The Zoning Board of Appeals shall have the authority to grant adjournments
of the hearing, to grant continuances of the hearing, and to suspend
the special use permit, pending a formal determination, if such is
determined to be necessary for the health and safety of the Village
and its residents.
A.
Prior to the commencement of any adult use, or upon any transfer
of ownership, or control, of any adult use, the premises must be inspected
by the Code Enforcement Officer and found to be in compliance with
all building and zoning regulations. The Code Enforcement Officer
shall certify that the premises is in compliance, or not in compliance,
within 20 days of inspection.
B.
The Code Enforcement Officer shall have the right to inspect any
adult use facility at any time. Refusal to allow inspection on the
part of the owner, operator, or any other person with a substantial
business connection with the adult use shall be grounds for suspending
the registration of the adult use until the Code Enforcement Officer
is allowed to make a proper inspection. If such suspension exceeds
30 days in continuous duration, the owner, or operator of the adult
use, shall have the right to a hearing before the Zoning Board of
Appeals upon written request, notice of which shall be served upon
the Code Enforcement Officer.
C.
The Code Enforcement Officer shall have the power, subject to review
by the Zoning Board of Appeals, to suspend operation of any adult
use for a period not to exceed 30 days, if such officer determines
that the owner and/or operator, and/or an employee of the adult use
has:
(1)
Violated, or is not in compliance with, the provisions of this chapter;
(2)
Engaged in, or permitted, illegal use of alcoholic beverages while
on the premises of the adult use;
(3)
Knowingly permitted illegal gambling by any person upon the premises
of the adult use;
(4)
Knowingly allowed possession, use or sale of a controlled substance,
as defined in the Penal Law of the State of New York, on the premises
of the adult use;
(5)
Knowingly allowed prostitution on the premises of the adult use;
or,
(6)
Knowingly allowed any act of sexual gratification, in violation of
the Penal Law of the State of New York, to occur on the premises of
the adult use.
D.
Prior to any suspension, the Code Enforcement Officer shall serve,
personally or by certified mail, the owner and/or operator of the
adult use a written notice of intent to suspend the special permit
of the adult use, stating the grounds of the suspension and that the
Zoning Board of Appeals will review the grounds for suspension set
forth by the Code Enforcement Officer; further, that if the Zoning
Board of Appeals determines the grounds to be sufficient, the Zoning
Board of Appeals will issue a hearing notice for continued suspension
or revocation of the special permit issued for the adult use, as provided
in this chapter, within 30 days of the service of notice of intent
to suspend the special permit by the Code Enforcement Officer. Service
will be deemed complete on the date such notice is personally delivered
to, or three days after mailing, if served by certified mail, regardless
of acceptance of such certified mail by, the owner and/or operator
of the adult use.
E.
Unless, in the determination of the Code Enforcement Officer, the
grounds for suspension have been adequately addressed by the owner
and/or operator within 10 days of service of the written notice of
intent to suspend the special permit, the Code Enforcement Officer
shall have the power to suspend the special permit for such adult
use, pending the determination of the Zoning Board of Appeals.
F.
The owner and/or operator of the adult use may independently file
a written appeal of the notice of intent to suspend the special permit,
at any time after service of the notice, with the Village Clerk. Such
appeal shall be initially reviewed at the next scheduled meeting of
the Zoning Board of Appeals immediately following the filing of such
appeal. A copy of the appeal must be served upon the Code Enforcement
Officer and proof of service provided with the written appeal when
the appeal is filed.
G.
If an appeal is filed by the owner and/or operator of the adult use,
the Code Enforcement Officer shall not suspend the special permit
for adult use pending review by the Zoning Board of Appeals. At the
next immediately following scheduled meeting, the Zoning Board of
Appeals may either review the grounds of the Code Enforcement Officer
for suspension of the special use permit and vacate the same, if the
grounds are inadequate; or, if it determines the grounds for suspension
to justify suspension or termination of the special use permit, advise
the Code Enforcement Officer that a suspension may be issued and inform
the owner and/or operator of the adult use that a hearing notice will
be issued within 30 days of the issuance of the suspension by the
Code Enforcement Officer, pursuant to the provisions of this chapter.
A.
The provisions of this chapter shall not apply to any theater, concert
hall or similar establishment which is primarily devoted to films
and theatrical performances intended for the general public, including
children.
B.
The restrictions contained in § 42-4 of this chapter shall not apply to any adult use business, establishment, or entity existing on the effective date of this chapter; provided, however, that any expansion or extension of such adult use must comply with all of the provisions of this chapter. Any existing adult use must come into compliance with the other sections of this chapter, within 90 days of the effective date of this chapter.
A.
A person who knowingly owns, manages, operates, conducts, maintains,
or has a substantial business connection to an adult use, who knowingly
permits the adult use to be operated in a manner contrary to the provisions
of this chapter shall be subject to criminal prosecution pursuant
to the laws of the State of New York.
B.
A person, firm, association, partnership, or corporation found to
have violated any provisions of this chapter, after a criminal court
proceeding, shall be guilty of an offense. Such person shall be subject
to a fine not to exceed $250, imprisonment not to exceed 15 days,
or by both such fine and punishment.
C.
The continued, or additional, violation of any provision of this
chapter, seven days after each notice of violation of this chapter,
or after each criminal summons issued for violating the provisions
of this chapter has been served upon the party alleged to have violated
the provisions hereof, shall constitute a separate and distinct violation
of this chapter and shall subject the offender to the penalties provided
herein, independent of and in addition to the penalties assessed for
prior offenses of this chapter.
D.
The penalties provided herein shall be in addition to any proceedings
in equity or at law brought to enforce this chapter, and shall be
separate and in addition to any penalties imposed for violation of
any statute.
