This Part 2 is enacted under the home rule power
of the Town of Clarkstown, and is enacted in the interest of the public
health, peace, safety, morals and general welfare of the citizens
and inhabitants of the Town and nearby areas to regulate businesses
within the Town of Clarkstown.
It is the intent of the Town of Clarkstown,
in enacting this Part 2, to establish reasonable and uniform regulations
of commercial establishments that will reduce the adverse effects
of the concentration of adult entertainment establishments upon the
morals, manners and property values of citizens of the Town and nearby
areas.
There is presently in the Town of Clarkstown
an increasing trend toward the opening of adult entertainment establishments.
Based on evidence and testimony presented at public hearings before
the Town Board of the Town of Clarkstown, the First Amendment of the
United States Constitution, Article 1, Section 8 of the New York State
Constitution, the Supreme Court case of City of Renton v. Playtime
Theatres, studies conducted by the Planning Board of the Town of Clarkstown,
and on the findings incorporated in the Secondary Effects Study of
Adult Entertainment Uses, Village of Scotia, N.Y., Orange County,
Florida Adult Entertainment Code, Chapter 83, the Jacksonville, Florida
Municipal Code, Chapter 410, Ordinance No. 77-257-256, Section 1,
the Los Angeles Municipal Code, Section 12.70, Ordinance No. 156509
(1982), the Detroit Zoning Ordinance, 66,0000, Ordinance No. 742-G,
Section 1, October 24, 1972, and a "Summary of a National Survey of
Real Estate Appraisers Regarding the Effect of Adult Bookstores on
Property Values," conducted by the Division of Planning, Department
of Metropolitan Development, Indianapolis, January 1984, the Town
Board hereby finds:
A.Â
In the development and adoption of this Part 2, it
is recognized that there are some uses which, by their very nature,
are recognized as having some serious objectionable operational characteristics,
particularly when several such similar uses are concentrated within
one area within the Town, thereby having a deleterious effect upon
adjacent areas. Special regulation of these uses is necessary to ensure
that these adverse effects will not contribute to the blighting or
downgrading of the surrounding neighborhoods of the Town of Clarkstown
and nearby areas of adjoining communities. The primary legislative
objective in passage of this legislation is for the purpose of preventing
a concentration of such uses in any area of the Town.
B.Â
It is further found that the concentration within a limited area of the Town of business operations and activities as described above, and as defined in § 290-42 below, tends to attract an undesirable number of transients, adversely affects property values, promotes an increase in crime, encourages illegal, immoral or unhealthy behavior and tends to expose minors to harmful materials and influences.
C.Â
It is further found that the amount of through traffic
on Interstate 87/287, the presence of several state highways and the
presence of two regional malls within the Town tend to attract businesses
oriented to a market beyond the Town.
D.Â
The Constitution and laws of the State of New York
grant to the Town of Clarkstown certain powers, in particular, police
powers, to enact reasonable legislation and measures to regulate and
supervise adult entertainment establishments in order to protect the
public health, peace, safety, general welfare and good order in the
community.
E.Â
Therefore, in order to preserve the public health,
peace, safety, general welfare and good order of the community and
to safeguard the present and future character of neighborhoods and
citizens in the area, the Town of Clarkstown has an interest in planning,
regulating and legislating the use of properties for specified commercial
purposes.
In this Part 2, unless the context otherwise requires, the following terms shall have the definitions set out in this section.
An establishment where, for any form of consideration, one
or more motion-picture projectors, slide projectors, video cassette
players, DVD players or similar machines for viewing by five or fewer
persons each are used to show films, motion pictures, video cassette
images, slides or other photographic reproductions, such as, but not
limited to, cartoons and virtual images which are characterized by
emphasis upon the depiction or description of specified sexual activities
or specified anatomical areas. For the purposes of this Part 2, "adult
arcade" is included within the definition of "adult motion-picture
theater."
An establishment that sells or offers for sale,
for any form of consideration, adult material, the gross sale of which
represents more than 10% of the gross sales of the place or that comprises
more than 25% of the individual items it displays on the premises
as its stock-in-trade in any one or more of the following categories:
An adult bookstore, which contains items such as, but not limited to, books, magazines, seasonal items, i.e., calendars, includes a place with only a portion or section of its area set aside for the display or sale to adults of materials listed in Subsection A(1) and (2) above, except that any place otherwise included within this definition that can prove that it derives not more than 10% of its gross income from the sale of materials listed in Subsection A(1) and (2) above shall be exempt from the provisions of this Part 2 so long as such material is kept out of the reach of customers and is accessed only by employees.
A commercial establishment that permits, suffers or allows
dancers to display or expose specified anatomical areas. Any establishment
on whose premises an employee, who need not be the same employee,
displays or exposes specified anatomical areas on more than one day
in a thirty-day period shall be deemed an "adult dancing establishment"
and shall be required to obtain a license under this Part 2.
An adult motion-picture theater, a massage establishment,
an adult bookstore or an adult dancing establishment.
Any one or more of the following:
Books, magazines, periodicals or other printed
matter or photographs, films, motion pictures, video cassettes, video
cassette players, DVD players, slides or other visual representations
or recordings, lingerie, novelties and devices which have as their
primary or dominant theme matter depicting, illustrating, describing
or relating to specified sexual activities or specified anatomical
areas.
Instruments, devices or paraphernalia which
are designed for use in connection with specified sexual activities.
An enclosed area designed or used for the viewing by one
or two persons of motion pictures, films, video cassettes, slides
or other photographic reproductions which have as their primary or
dominant theme matters depicting, illustrating or relating to specified
sexual activities or specified anatomical areas. For the purposes
of this Part 2, an "adult motion-picture booth" is included within
the definition of an "adult motion-picture theater."
An enclosed building or a portion or part of an enclosed
building, or an open-air theater designed to permit viewing by patrons
seated in automobiles, used to present on a regular basis, for any
form of consideration, film material which has as its primary or dominant
theme matters depicting, illustrating or relating to specified sexual
activities for observation by adult persons thereof and includes any
hotel or motel, boardinghouse, rooming house or other lodging for
transient customers which advertises the presentation of such film
material. For the purposes of this Part 2, an "adult motion-picture
theater" includes both an adult arcade and an adult motion-picture
booth.
All beverages containing more than 1% alcohol by weight.
Operated for pecuniary gain, which shall be presumed for
any establishment which has received an occupational license. For
purposes of this Part 2, operation for pecuniary gain shall not depend
on actual profit or loss.
Any business location, place or business conducting or allowing
to be conducted on its premises any commercial activity.
The Town Board of the Town of Clarkstown.
A person who works or performs or acts as an independent
contractor or agent in a commercial establishment, irrespective of
whether said person is paid a salary or wage by the owner or manager
of the premises, or whether said person works for tips.
A physical plant or location or the commercial activities
or operations being conducted, or both together, as the context of
this Part 2 may require.
An employee of the Rockland County Department of Health or
the Building Department or the Zoning Administrator's office or the
Fire Inspector of the Town of Clarkstown authorized to inspect premises
licensed under this Part 2 and to take or require the actions authorized
by this Part 2 in case of violations being found on licensed premises,
and also to inspect premises seeking to be licensed under this Part
2 and to require corrections of unsatisfactory conditions found on
said premises.
Not only rooms and areas where adult materials regulated
under this Part 2 or adult activities regulated by this Part 2 are
sold, rented, offered, presented or stored or where any form of adult
entertainment is presented, but also all other areas within 500 feet
of the room or area where adult materials or adult activities are
regulated and over which the licensee has some dominion and control
and to which customers or patrons may pass, and shall include all
of the floor or land areas embraced within the plan appearing on or
attached to the application for the license involved and designated
as such on said plan.
A site or premises or portion thereof upon which any person
who is an employee, manager, independent contractor, owner or agent
of the owner, manipulates the superficial tissues of the body of another
person with any portion of the hand, foot, leg, arm or elbow, but
not including the following: licensed health care facilities, licensed
physicians or nurses, licensed massage therapists engaged in the practice
of their professions, educational athletic facilities, if the massage
is a normal and usual practice in such facilities, or establishments
exempted under New York State statute.
Individuals, firms, associations, joint ventures, partnerships,
estates, trusts, business trusts, syndicates, fiduciaries, corporations
and all other groups or combinations.
Any communication on the part of an employee of an adult
entertainment establishment that is designed to encourage a prospective
patron to enter said establishment and is performed by repeatedly
speaking in a raised tone of voice, by making prominent physical gestures,
such as waving or repeatedly pointing, or by holding signs or other
written statements. Personal advertising shall not include oral or
physical references to an adult entertainment establishment by patrons
or spectators.
The Town of Clarkstown Chief of Police.
Not only the rooms and areas physically occupied by a commercial
establishment or where alcoholic beverages are sold, dispensed, offered,
presented or consumed, but also all areas within 500 feet of the rooms
and areas physically occupied by a commercial establishment or where
alcoholic beverages are sold, dispensed, offered, presented or consumed
over which the owner or management of the premises has some dominion
and control and to which customers or patrons may pass.
Any individual, partnership or corporation that owns or controls,
legally or beneficially, 10% or more of a corporation's capital stock,
and includes the officers, directors and principal stockholders of
a corporation that is a principal stockholder under this Part 2, provided
that if no stockholder of a corporation owns or controls, legally
or beneficially, at least 10% of the capital stock, all stockholders
shall be considered principal stockholders, and further provided that
if a corporation is registered with the Securities and Exchange Commission,
and its stock is for sale to the general public, it shall not be considered
to have any principal stockholders.
A building which is used primarily for religious worship
and related religious activities.
When used in the discussion of adult entertainment establishments,
includes any area outside the Town of Clarkstown legally zoned in
a manner primarily intended for dwellings and any area inside the
Town which is included in any of the following zoning districts: R-10,
R-15, R-22, R-40, R-80, R-160, RG-1, RG-2, MF-1, MF-2, MF-3 and any
zoning district established in the future which is primarily intended
for dwellings.
An institution of learning for minors, whether public or
private or parochial, which offers instruction in those courses of
study required under the Education Law of the State of New York, or
which is maintained pursuant to standards set by the State Board of
Regents or Education. This definition includes a nursery school, kindergarten,
elementary school, junior high school, senior high school or any special
institution of learning under the jurisdiction of the State Department
of Education, but it does not include a vocational or professional
institution or an institution of higher education, including a community
or junior college, college or university.
Less than completely and opaquely covered:
Human genitals or pubic region.
The cleavage of the human buttocks.
That portion of the human female breast encompassed
within an area falling below the horizontal line one would have to
draw to intersect a point immediately above the top of the areola
(the colored ring around the nipple). This definition shall include
the entire lower portion of the breast but shall not be interpreted
to include any portion of the cleavage of the breast exhibited by
a dress, blouse, shirt, leotard, bathing suit or other wearing apparel,
provided that the areola is not so exposed.
Human male genitals in a discernibly turgid
state, even if completely and opaquely covered.
A violation of this Part 2 or any other local laws or New
York State Penal Codes.
Also known as a "lap dance" or "face dance." The use by an
employee, whether clothed or not, of any part of his or her body to
massage, rub, stroke, knead, caress or fondle the genital or pubic
area of a patron while on the premises, or the placing of the genital
or pubic area of an employee in contact with the face of a patron
while on the premises.
When used in the discussion of adult entertainment establishments,
the increasing of the size of the permitted and/or licensed premises
by more than 10% of the original permitted and/or licensed premises.
A violation of any provision of this Part 2 as found by a
jury or any other trier of fact. All violations occurring on the same
day prior to an arrest or the issuance of a notice to appear shall
be considered as a single violation.
[Amended 4-9-2013 by L.L. No. 2-2013]
In addition to the penalties as provided in § 290-34, any person who violates any section of this Part 2 shall be prosecuted as provided by this Part 2, and additionally shall be subject to suspension or revocation of his license or permit as provided in this Part 2 or as provided in other sections of the Code of the Town of Clarkstown.
All officers and employees of the Town who are
acting within the scope of their authority and shall be immune from
prosecution, civil and criminal, for trespassing upon real property.
