The Board of Selectmen of the Town of Winchester finds:
A. The operation of adult-oriented establishments requires special regulation
and supervision by the Town to protect, preserve and promote the health,
safety and welfare of the patrons, clients or customers and employees
of such establishments, as well as the health, safety and welfare
of the Town's citizens. Further, protecting order and morality, preserving
the character, and preventing the deterioration of the Town's neighborhoods,
avoiding blight, decreasing crime and juvenile delinquency, promoting
retail trade, maintaining property values, and ensuring sanitary and
safe public places are desirable objectives of the community and its
leaders.
B. Statistics and studies performed by a substantial number of cities
and towns in the United States indicate that:
(1) Large numbers of persons frequent such adult-oriented establishments,
especially those which provide closed booths, cubicles, studios and
rooms for the private viewing of so-called adult motion pictures and/or
videotapes and/or live entertainment; and
(2) Such closed booths, cubicles, studios and rooms have been used by
patrons, clients or customers of such adult-oriented establishments
for the purpose of engaging in specified sexual activities; and
(3) Male and female prostitutes have been known to frequent such establishments
in order to provide sex for hire to the patrons, clients or customers
of such establishments within such booths, cubicles, studios and rooms;
and
(4) Doors, curtains, blinds and/or other closures installed or on the
entrances and/or exits of such booths, cubicles, studios and rooms
which are closed while such booths, cubicles, studios and rooms are
in use encourage patrons, clients or customers using such booths,
cubicles, studios and rooms to engage in specified sexual activities
therein with prostitutes and/or with other persons and/or by themselves,
thereby promoting or encouraging prostitution and the commission of
specified sexual activities which cause blood, semen, urine or other
bodily secretions to be deposited on the floors and/or walls of such
booths, cubicles, studios and rooms, which deposits could prove detrimental
to the health and safety of other persons who may come into contact
with such deposits; and
(5) Booths, cubicles, studios and rooms which are closed while such booths,
cubicles, studios and rooms are in use often contain holes that have
been cut or smashed out of the walls or other partitioning material.
These holes permit the inhabitant of one booth to engage in specified
sexual activities with the inhabitant of an adjoining booth, cubicle,
studio or room. These promote and encourage specified sexual acts
to occur between persons anonymously. Anonymous sexual contact poses
a higher risk of spread of communicable diseases, including the AIDS
virus and Hepatitis B and other sexually transmitted diseases. Further,
the existence of such holes in booths, cubicles, studios and rooms
in an adult-oriented establishment provides an increased risk that
blood, semen, urine and other bodily secretions will be deposited
on the floors and/or walls of such booths, cubicles, studios and rooms,
which deposits could prove detrimental to the health and safety of
other persons who may come into contact with such deposits; and
(6) Specified sexual activities often occur at unregulated adult-oriented
establishments which provide live adult entertainment, specified sexual
activities, including sexual physical contact between employees and
patrons, clients or customers of adult-oriented establishments, and
specifically include lap dancing and/or manual or oral touching or
fondling of specified anatomical areas, whether clothed or unclothed.
Such casual, sexual physical contact between strangers may result
in the transmission of communicable diseases which would be detrimental
to the health of the patrons, clients or customers and employees of
such adult-oriented establishments; and
(7) The unregulated operation of adult-oriented establishments is associated
with an increase in the incidents of sex-related crimes and also has
a disruptive effect on the surrounding neighborhood by causing excessive
noise, parking problems, the presence of discarded sexually oriented
material on residential lawns, and the performance of sexual acts
in public places; and
(8) The reasonable regulation and supervision of such adult-oriented
establishments tends to discourage prostitution, other sex-related
crimes, anonymous high-risk sexual contact and/or high-risk unsanitary
sexual activity, excessive noise and property devaluation, thereby
decreasing the incidents of communicable diseases and sex-related
crimes and thereby promoting and protecting the health, safety and
welfare of the employees and the public who patronize such establishments
and protecting the health, safety and property interests of the Town
and its citizens.
C. The continued unregulated operation of adult-oriented establishments
is and would be detrimental to the general welfare, health and safety
of the citizens of Winchester. The Constitution and the laws of the
State of Connecticut grant to the Town powers, especially police power,
to enact reasonable legislation and measures to regulate and supervise
adult-oriented establishments in order to protect the public health,
safety and welfare.
D. It is not the intent of the Board of Selectman, in enacting this
chapter, to deny any person rights to speech protected by the United
States and/or State Constitutions, nor is it the intent of the Board
of Selectman to impose any limitations or restrictions on the content
of any communicative materials, including sexually oriented films,
videotapes, books and/or other materials. Further, by enacting this
chapter, the Board of Selectman does not intend to deny or restrict
the rights of any adult to obtain or view any sexually oriented materials
protected by the United States and/or State Constitution; nor does
it intend to restrict or deny any Constitutionally protected rights
that distributors or exhibitors of such sexually oriented materials
may have to sell, distribute or exhibit such materials.
As used in this chapter, the following terms shall have the
meanings indicated:
ADULT AMUSEMENT MACHINE
Includes any amusement machine that is regularly used for
presenting material distinguished or characterized by an emphasis
on matter depicting, describing or relating to specified sexual activities
and specified anatomical areas, as defined below, for observation
by patrons therein.
ADULT BOOKSTORE
An establishment having 10% or more of the value of its stock
and trade in books, films or other video reproductions or magazines
and other periodicals which are distinguished or characterized by
their emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas as defined herein,
and in conjunction therewith has facilities for the presentation of
adult entertainment as defined herein and including adult-oriented
films, movies, live entertainment for observation by patrons, clients
or customers therein.
ADULT ENTERTAINMENT
Includes any exhibition of any adult-oriented motion pictures,
live performance, display or dance of any type which has as a significant
or substantial portion of such performance, any actual or simulated
performance of specified sexual activities or exhibition and viewing
of specified anatomical areas, removal of articles of clothing or
appearing unclothed in a modeling or any other personal services offered
customers. It also includes any amusement machine that is regularly
used for presenting material distinguished or characterized by an
emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas as defined herein
for observation by patrons, clients or customers thereof.
ADULT MINI-MOTION-PICTURE THEATER
Any enclosed building with a capacity of less than 50 persons
regularly used for presenting material distinguished or characterized
by an emphasis on matter depicting, describing or related to specified
sexual activities or specified anatomical areas as defined herein
for observation by patrons, clients or customers therein.
ADULT MOTION-PICTURE THEATER
An enclosed building with a capacity of 50 or more persons
regularly used for presenting material distinguished or characterized
by an emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas as defined herein
for observation by patrons, clients or customers therein.
ADULT-ORIENTED ESTABLISHMENT
Includes, without limitation, adult amusement machine, adult
bookstores, adult motion-picture theaters, adult mini-motion-picture
theaters and further means any premises to which the public, patrons,
clients or customers or members are invited or admitted and wherever
an entertainer provides adult entertainment, or which premises are
so visibly arranged as to provide booths, cubicles, rooms, studios,
compartments or stalls, separate from the common areas of the premises
for the purpose of viewing adult-oriented motion pictures or wherein
an entertainer provides adult entertainment when such adult entertainment
is held, conducted, operated or maintained for profit, direct or indirect,
or not for profit. An adult-oriented establishment further includes
without limitation any adult entertainment studio or any premises
that are physically arranged and used as such, whether advertised
or represented as an adult entertainment, rap studio, exotic dance
studio and encounter studio, sensitivity studio, massage studio, modeling
studio or any other term of like import.
EMPLOYEE
Any and all persons, including independent contractors, who
work in or at or render any services directly related to the operation
of an adult-oriented establishment.
ENTERTAINER
Any person who provides entertainment within an adult-oriented
establishment as defined in this section, whether or not a fee is
charged or accepted for entertainment and whether or not the entertainment
is provided as an employee or an independent contractor.
INSPECTOR
The Director of Health, the Chief of Police, the Fire Marshal,
their agents or representatives or any Town employee designated to
make inspections for health, fire, building safety, public safety,
zoning purposes, violations of this chapter, or violations of any
laws or ordinances of the Town.
MINOR
Shall be deemed to refer to a person under the age of 18
years.
OPERATOR
Any person, partnership, corporation or other entity operating,
conducting or maintaining an adult-oriented establishment.
SPECIFIED ANATOMICAL AREAS
A.
Less than completely and opaquely covered:
(1)
Human genitals, pubic region;
(3)
Female breast(s) below a point immediately above the top of
the areola; and
B.
Human male genitals in a discernibly turgid state, even if completely
opaquely covered.
SPECIFIED SEXUAL ACTIVITIES
A.
Simulated or actual:
(1)
Showing of human genitals in a state of sexual stimulation or
arousal.
(2)
Acts of masturbation, sexual intercourse, sodomy, bestiality,
necrophilia, sadomasochistic abuse, fellatio or cunnilingus.
(3)
Fondling or erotic touching of female genitals, pubic region,
buttocks or female breasts.
(5)
Excretory functions as part of or in connection with any of the activities set forth in Subsections
(1) through
(4).
B.
However, the definition of "specified sexual activity" shall
not apply to any medical publications or films or bona fide educational
publication or films, any art or photography publications which devote
25% of the lineage of each issue to articles and advertisements dealing
with subjects of art or photography; any periodical which reports
or describes current events and which from time to time publishes
photos of nude or seminude persons in connection with the dissemination
of the news, publications or films which describe and report different
cultures and which, from time to time, publish or show photographs
or depiction of nude or seminude persons when describing cultures
in which nudity or semi-nudity is indigenous to the population.
Adult-oriented establishments shall be located no less than
1,500 feet from any of the following uses if existing at the time
when the adult-oriented establishment is established: any public or
private school serving grade 12 or lower, any day-care center, nursery
school or similar use, any public park or playground, any church or
place of worship or other community building or any residential zone.
Measurements of this shall be from any portion of the building housing
such adult-oriented establishment to any portion of the parcel of
land containing such land uses or being residentially zoned. The separating
distance required by this section shall be determined as of the date
that the adult-oriented establishment commences to operate in accordance
with this chapter and any applicable provisions of the Town of Winchester
Zoning Regulations, Building Code, Health Code, and other applicable
state and local laws, and such adult-oriented establishment shall
not be deemed to violate this section if thereafter one of the enumerated
uses is established within the distance set forth herein.
No adult-oriented establishments shall be permitted in any portion
of a building that is less than 1,500 feet from the closest property
line on which the adult-oriented establishment is located to the closest
property line of another adult-oriented establishment.
The provisions of the preceding §§
162-4 and
162-5 shall not be deemed to prohibit any use preexisting the enactment of this chapter. Any preexisting use which shall be discontinued for a period of 30 days shall thereafter conform to §§
162-4 and
162-5, excluding therefrom any discontinuance caused by a suspension of the operating license.
If the Chief of Police or his authorized representative denies
the issuance of a license or suspends or revokes a license he shall,
within 10 days of his decision, send to the applicant or operator
at the address listed on the application by certified mail, return
receipt requested, written notice of a decision, and further shall
specifically state the evidence presented, the reason for the decision
and the right to an appeal. The aggrieved party may appeal the decision
of the Chief of Police to the Board of Selectmen within 30 days of
receipt of the notice by filing a written application to the Town
Clerk requesting a hearing before the Board of Selectmen. At the hearing,
the applicant/licensee shall have the opportunity to present evidence
bearing upon the question. If the applicant/licensee makes application
for a hearing, a hearing shall be scheduled within 30 days of the
notice of appeal. The Board must render a decision within 45 days
of the receipt of the appeal. Within five days after such hearing,
the Board of Selectmen shall issue written notice of a final decision
and issue any license or renewal of license where applicable. All
operations of the adult-oriented establishment shall be maintained
pending the final decision being issued by the Board of Selectmen.
Any denial, nonrenewal, suspension or revocation of a license that
is sustained in a written decision after hearing, as provided for
above, shall be appealable to the Superior Court within 15 days of
written notice thereof by any person aggrieved in accordance with
the procedure established for zoning appeals by C.G.S. § 8-8,
as amended. Any denial of renewal, suspension or revocation shall
be stayed during the appeal unless otherwise ordered by the Superior
Court.
In addition to any fines or penalties imposed herein, this chapter
may be enforced by injunctive relief in the Superior Court.
Should any court of competent jurisdiction declare any section
or clause or provision of this chapter to be unconstitutional, such
decision shall affect only such section, clause or provision so declared
unconstitutional and shall not affect any other section, clause or
provision of this chapter.
In construing this chapter, masculine or neuter pronouns shall
be substituted for those of feminine form and vice versa and the plural
of the singular and the singular of the plural shall be substituted
in any case in which the context may require.