Town of Marion, NY
Wayne County
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[HISTORY: Adopted by the Town Board of the Town of Marion 8-8-1994 by L.L. No. 1-1994. Amendments noted where applicable.]
GENERAL REFERENCES
Public nuisances — See Ch. 207.
Zoning — See Ch. 308.
This chapter shall be cited as the "Town of Marion Adult Use Law."
It is the intent of this chapter to regulate sexually oriented businesses and related activities to promote the health, safety, morals, and general welfare of the citizens of the Town of Marion, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the Town. The primary purposes of this chapter are as follows:
A. 
To preserve the character and quality of life in Town neighborhoods and business areas.
B. 
To control such documented harmful and adverse secondary effects of adult uses on the surrounding areas as: decreased property values; attraction of transients; parking and traffic problems; increased crime; loss of business for surrounding nonadult businesses; and deterioration of neighborhood.
C. 
To maintain property values.
D. 
To prevent crime.
E. 
To protect retail trade.
F. 
To restrict minors' access to adult uses.
As used in this chapter, the following terms shall have the meanings indicated:
ADULT ARCADE
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 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 the depicting or describing of specified sexual activities or specified anatomical areas.
A. 
A commercial establishment which, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:
(1) 
Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or
(2) 
Instruments, devices, or paraphernalia which are designed for use in connection with specified sexual activities.
B. 
A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing "special sexual activities" or "specified anatomical areas" and still be categorized as an adult bookstore or adult video store. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an adult bookstore or adult video store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials that depict or describe "specified sexual activities" or "specified anatomical areas." A "principal business purpose" shall mean more than 1/4 of the business is devoted to the sale, rental, or display of such materials as determined by any of the following:
(1) 
The number of different titles of printed, visual or audio materials of any kind that are characterized by their emphasis on the description or depiction of specified anatomical areas or specified sexual activities;
(2) 
The number of copies of printed, visual or audio materials of any kind which are characterized by their emphasis on the description or depiction of specified anatomical areas or specified sexual activities;
(3) 
The amount of floor space devoted to the sale and display of printed, visual or audio materials of any kind which are characterized by their emphasis on the description or depiction of specified anatomical areas or specified sexual activities;
(4) 
The dollar amount of sales are printed, visual or audio materials of any kind which are characterized by their emphasis on the description or depiction of specified anatomical areas or specified sexual activities; or
(5) 
The amount of on-site advertising which can be viewed by passersby, or the amount or cost of advertising in print or broadcast media devoted to printed, visual or audio materials of any kind which are characterized by their emphasis on the description or depiction of specified anatomical areas or specified sexual activities.
ADULT CABARETS
A nightclub, bar, restaurant, or similar commercial establishment that features:
A. 
Persons who appear in a state of nudity or seminudity; or
B. 
Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
C. 
Films, motion pictures, video cassettes, slides, or other photographic reproductions that are characterized by the depiction or description of specified anatomical areas or specified sexual activities.
ADULT MOTEL
A hotel, motel or similar commercial establishment which:
A. 
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 depiction of description 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; or
B. 
Offers sleeping rooms for rent for a period of time that is less than 10 hours; or
C. 
Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than 10 hours.
ADULT MOTION-PICTURE THEATER
A commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are shown that are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
ADULT THEATER
A theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
ADULT USES
Adult arcades, adult bookstores, adult cabarets, adult motels, adult motion-picture theaters, adult theaters, adult video stores, escort agencies, nude model studios and sexual encounter centers.
ADULT VIDEO STORE
(See "adult bookstore.")
ESCORT
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.
ESTABLISHMENT
Any of the following:
A. 
The opening or commencement of any adult use as a new business;
B. 
The conversion of an existing business, whether or not an adult use, to any adult use;
C. 
The additions of any adult use to any other existing adult use; or
D. 
The relocation of any adult use.
NUDE MODEL STUDIO
Any place where a person who appears in a state of nudity or displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration.
NUDITY
The appearance of a human bare buttocks, anus, genitals, or full female breast.
PERSON
An individual, proprietorship, partnership, corporation, association, or other legal entity.
SEMINUDITY
A state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices.
SEXUAL ENCOUNTER CENTER
A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration;
A. 
Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
B. 
Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or seminudity.
SPECIFIED ANATOMICAL AREAS
The male genitals in a state of sexual arousal and/or the vulva or more intimate parts of the female genitals.
SPECIFIED SEXUAL ACTIVITIES
Any of the following:
A. 
The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts;
B. 
Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy;
C. 
Masturbation, actual or simulated; or
D. 
Excretory functions as part of or in connection with any of the activities set forth in Subsections A, B and C above.
STATE OF NUDITY
(See "nudity.")
TRANSFER OF OWNERSHIP OR CONTROL
Includes any of the following:
A. 
The sale, lease, or sublease of an adult use;
B. 
The transfer of securities which constitute a controlling interest in an adult use, whether by sale, exchange, or similar means; or
C. 
The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of an adult use, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
Adult uses shall be a permitted use in any Industrial District, provided that:
A. 
An adult use may not be operated within 500 feet of:
(1) 
A church, synagogue or regular place of worship;
(2) 
A public or private elementary, secondary school or licensed child day-care center;
(3) 
A boundary of any residence or residential zoning district; or
(4) 
A public park;
(5) 
A business or commercial operation.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
B. 
An adult use may not be operated within 1,000 feet of another adult use, or on the same lot or parcel of land as another adult use.
C. 
An adult use may not be operated in the same building, structure, or portion thereof, containing another adult use.
D. 
For the purposes of this chapter, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as part of the premises where an adult use is conducted, to the nearest property line of the premises of a church or public or private elementary, secondary school or licensed child day-care center, or to the nearest boundary of an affected public park, residential district, or residential lot.
E. 
For the purposes of this chapter, the distance between any two adult uses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
F. 
All adult uses shall be conducted in an enclosed building. Regardless of location or distance, no one who is passing by an enclosed building having a use governed by this chapter shall be able to visually see any specified anatomical area or any specified sexual activity by virtue of any display that depicts or shows said area or activity. This requirement shall apply to any display, decoration, sign, window or other opening.
A. 
A person may operate an adult use business in the Town of Marion only in accordance with the provisions of this chapter and Chapter 308, Zoning, of the Code of the Town of Marion.
B. 
Prior to the commencement of any adult use or upon any transfer of ownership or control, the premises must be inspected and found to be in compliance with all laws, ordinances, rules and regulations applicable to the use and occupancy for an adult use and compliance with this chapter.
C. 
All code enforcement officials, including the Town Code Enforcement Officer, shall complete their certification that the premises is in compliance, or not in compliance, within 20 days of the inspection of the premises by such officials.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
D. 
Any owner and/or operator, employee of the owner and/or operator or agent of the owner/operator shall permit representatives of the Wayne County Sheriff's Office, the New York State Police, County or State Health Department, Town Code Enforcement Officer, or other Town, county or state department or agencies that has permitting authority regarding the use and/or premises, to inspect the premises of an adult use for the purpose of insuring compliance with this chapter, at any time it is occupied or open for business.
A. 
Any adult use lawfully operating on the effective date of this chapter that is in violation of the location or structural configuration requirements of this chapter shall be deemed a nonconforming use. The continuation of the same use of substantially the same character and intensity shall be allowed. The nonconforming use will be permitted to continue for a period not to exceed two years, 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 adult use businesses are within 1,000 feet of one another and otherwise in a permissible location, the adult use that was first established and continually operating at a particular location is the conforming use and the later-established business(es) is nonconforming.
B. 
An adult use business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the operation of the adult use business, of a church, public or private elementary or secondary school, public park, residential zoning district, or a residential lot within 500 feet of the adult use business.
It shall be deemed a violation of this chapter if the owner and/or operator, an employee of the owner and/or operator or an agent of the owner/operator has:
A. 
Violated or is not in compliance with any section of this chapter;
B. 
Refused to allow an inspection of the adult use business premises as authorized by this chapter;
C. 
Had gambling occurred on the adult use business premises;
D. 
Had the possession, use, or sale of a controlled substance occur on the premises;
E. 
Had prostitution occur on the premises;
F. 
Had any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sexual conduct to occur on the premises.
The provisions of this chapter shall be enforced by the same persons and in the same manner as provided for in Chapter 308, Zoning.
The violation of any of the provisions of this chapter shall be punishable by a maximum fine of $250 or by imprisonment for 15 days, or by both such fine and imprisonment. Each day any violation shall continue shall constitute a separate violation.
[1]
Editor's Note: Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I).