[HISTORY: Adopted by the Town Board of the Town of Marion 8-8-1994 by L.L. No. 1-1994. Amendments noted where applicable.]
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:
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 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:
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
Instruments, devices, or paraphernalia which are designed for
use in connection with specified sexual activities.
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:
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;
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;
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;
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
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.
A nightclub, bar, restaurant, or similar commercial establishment
that features:
Persons who appear in a state of nudity or seminudity; or
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 that are characterized by the depiction or description
of specified anatomical areas or specified sexual activities.
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 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
Offers sleeping rooms for rent for a period of time that is
less than 10 hours; or
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.
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.
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 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.
(See "adult bookstore.")
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.
Any of the following:
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.
The appearance of a human bare buttocks, anus, genitals,
or full female breast.
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
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.
A business or commercial enterprise that, as one of its primary
business purposes, offers for any form of consideration;
The male genitals in a state of sexual arousal and/or the
vulva or more intimate parts of the female genitals.
Any of the following:
(See "nudity.")
Includes any of the following:
The sale, lease, or sublease of an adult use;
The transfer of securities which constitute a controlling interest
in an adult use, 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 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.
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]
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.
