[HISTORY: Adopted by the Town Board of the Town of Moreau 2-12-2002
by L.L. No. 2-2002.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law also superseded former Ch. 65,
Public Entertainment, which consisted of Art. I, Shows and Exhibitions, adopted
12-11-1973 as Ch. 15, Art. I, of the 1973 Code, as amended; and Art. II, Attire,
adopted 12-11-1973 as Ch. 15, Art. II, of the 1973 Code, as amended. Former
Art. III, Outdoor or Drive-in Motion-Picture Theaters, adopted 6-4-1974 as
Ch. 15, Art. III, of the 1973 Code, was repealed 7-27-1990 by L.L. No. 4-1990.
A.
The Town of Moreau has undertaken a review of its local
Code and regulations as they pertain to adult entertainment of a sexually
oriented nature, and has determined such current Code and regulations to be
insufficient.
B.
It is the purpose and intent of the Town of Moreau to
protect and preserve the health, safety, morals and welfare of the residents
of the Town of Moreau and establish reasonable and suitable regulations for
the location and use of sexually oriented businesses in the Town.
C.
It is further the purpose of this chapter to prevent,
to the extent possible, the secondary effects that such businesses may cause
such as noise, crime, litter and the reduction in property values in areas
or neighborhoods near sexually oriented businesses.
D.
It is further the purpose of this chapter to fulfill
the Town's constitutional, statutory and legal obligations to protect
and preserve the public health, welfare and safety of the citizens of the
Town of Moreau, and in particular to protect the value, use and enjoyment
of the property in the Town.
A.
NUDITY or A STATE OF NUDITY
SEMI-NUDE or IN A SEMI-NUDE CONDITION
SEXUAL ENCOUNTER CENTER
SEXUALLY ORIENTED BUSINESS
(1)
(2)
(3)
(4)
(5)
(6)
(7)
As used in this chapter, the following terms shall have
the meanings indicated:
The showing of the human male or female genitals, pubic area, vulva,
anus, or anal cleft with less than a fully opaque covering, the showing of
the female breast with less than a fully opaque covering of any part of the
nipple, or the showing of the covered male genitals in a discernibly turgid
state.
The showing of the female breast below a horizontal line across the
top of the areola at its highest point or the showing of the male or female
buttocks. This definition shall include the entire lower portion of the human
female breast, but shall not include any portion of the cleavage of the human
female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit,
or other wearing apparel, provided the areola is not exposed in whole or it
part.
A business or commercial establishment that as one of its principal
purposes offers for any form of consideration a place where two or more persons
may congregate, associate, or consort for the purpose of specified sexual
activities. The definition of sexual encounter establishment or any sexually
oriented businesses shall not include an establishment where a medical practitioner,
psychologist, psychiatrist, or similar professional person licensed by the
state engages in medically approved and recognized sexual therapy.
Any business, including, any club, nightclub, tavern, bar, restaurant,
cabaret, motel, hotel, theater, gathering hall, arcade, store or any similar
commercial establishment, that offers any live performances, films, motion
pictures, videocassettes, slides or other photographic reproduction in which
a person of any age appears or performs in a state of partial and/or full
nudity or conducts any activity which is pornographic in nature and content,
meaning the conduct depicts, describes or represents sexual conduct or otherwise
appeals to the prurient interest. Sexually oriented businesses shall include,
but are not limited to, the following establishments:
ADULT BOOKSTOREAn establishment having as a substantial or significant portion of its stock-in-trade books, magazines, other periodicals, films, slides and videotapes and which establishment is customarily not open to the public generally and excludes any minor by reason of age.
ADULT VIDEO STOREAn establishment having as a substantial or significant portion of its stock-in-trade video films, videocassettes or other films for sale or rental which are distinguished or characterized by their emphasis on matters depicting, describing or relating to specified sexual activities or specified sexual anatomical areas as defined in §§ 65-3 and 65-4 herein.
ADULT DRIVE-IN THEATERA drive-in theater that customarily presents motion pictures that are not open to the public generally and excludes any minor by reason of age.
ADULT THEATERA theater that customarily presents motion pictures, live shows, films, videotapes or slide shows that are not open to the public generally, including theaters which offer viewing of matters depicting, describing or relating to sexual activities or sexual anatomical areas from an individual enclosure for which a fee is charged and which is not open to the public generally and excludes any minor by reason of age.
ADULT ENTERTAINMENT CABARETA public or private establishment which regularly presents topless and/or bottomless dancers, strippers, waiters or waitresses, male or female impersonators, lingerie models, exotic or other similar entertainment or films, motion pictures, videos, slides or other photographic material or which utilizes employees that, as part of their employment, regularly expose patrons to specified sexual activities or specified anatomical areas as defined in §§ 65-3 and 65-4 herein.
ADULT MODEL STUDIOAny establishment where a person who appears in a state of nudity or displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by other persons who pay money or any form of consideration.
MASSAGE ESTABLISHMENTAny establishment having a fixed place of business where massages are administered for pay, including, but not limited to, massage parlors, sauna baths and steam baths. This definition shall not be construed to include hospitals, physical therapists, occupational therapists, nursing homes or medical clinics or the office of a physician, surgeon, chiropractor, licensed massage therapist or barbershops or beauty salons in which massages are administered only to the scalp, face, neck or shoulders. This definition shall also exclude health clubs which have facilities for physical exercise such as tennis courts, racquetball courts or exercise rooms and which do not receive their primary source of revenue through the administration of massages.
B.
Nothing in these definitions or chapter shall require
a permit for the display or sale of magazines, written or photographic materials
which depict person(s) in a state of partial or full nudity or are otherwise
pornographic in nature in any convenience store such as a food store or gas
station or other similar establishment, provided that the materials are covered
or are out of direct public view and the display or sale of such materials
is secondary to the primary business purpose.
Specified sexual activities are:
Specified anatomical areas are:
B.
Such sexually oriented business shall also be in accordance
with the following requirements:
(1)
Sexually oriented businesses shall be prohibited from
locating within 500 feet of a residential use.
(2)
Sexually oriented businesses shall be prohibited from
locating within 2,500 feet of the property line of a school, child-care facility,
house of worship, public park, public or private recreation facility, community
center or other public facility, motel or hotel, designated historic district,
historic landmark or site, or designated urban renewal area.
(3)
Sexually oriented businesses shall not be permitted to
locate less than 1,000 feet from another such use, and not more than one sexually
oriented business shall be permitted to locate within a single building or
single lot.
(4)
Sexually oriented businesses shall not exceed, in total,
2,500 square feet of floor area, and cellar space shall not be used for enclosed
storage or mechanical equipment.
(5)
Sexually oriented businesses shall be required to meet
all other development standards and requirements of the laws of the Town of
Moreau, including, but not limited to, licensing requirements, district lot
and building regulations, parking requirements, signage, facade and screening
regulations.
(6)
Sexually oriented businesses shall not be permitted in
any building where a portion of the floor area of the building is in residential
use, including nonconforming residential uses, a school, house of worship,
public or private recreation facility, community center or other public facility,
motel or hotel, historic landmark or site or designated urban renewal area.
(7)
Sexually oriented businesses shall not be permitted to
provide live entertainment on the premises which involves nude dancing that
is lewd, indecent or gross in nature. This shall not be construed to include
conduct of being nude that constitutes a part of a bona fide live communication,
demonstration or performance by a person wherein such nudity is expressive
conduct incidental to, and necessary for, the conveyance or communication
of a genuine message or public expression and is not a guise or pretense utilized
to exploit nudity, nor shall it include conduct that is protected by the United
States or New York State Constitution.
(8)
The exterior appearance of any building containing an
adult-oriented business shall be consistent with the character of surrounding
structures and shall not detract from the appearance of the neighborhood.
(9)
Sexually oriented businesses shall conform with all existing
applicable sign laws in addition to the following specific requirements:
(a)
Signs which are illuminated in neon or which contain
flashing lights shall be prohibited.
(b)
Exterior signs, displays or other advertisements which
depict human nudity, seminudity, in a state of nudity or are otherwise provocative
shall be prohibited.
(c)
Interior signs, displays, posters or other advertisements
which contain nude, seminude or provocative pictures shall be located a minimum
of four feet from any window or door, and shall not be visible from the exterior
of the establishment.
(d)
Permanent and/or temporary window and door signs shall
not occupy more than 20% of each window or door.
A.
No person shall establish or maintain a sexually oriented
business in the Town without a special use permit as required by this chapter
and as set forth in Article V of the Zoning Code. A special use permit may
be issued by the Zoning Board of Appeals after public hearing. The Zoning
Board of Appeals may place conditions on any special use permit, which conditions
may include but are not necessarily limited to hours of operation, signs,
window displays, outdoor advertising, landscaping, screening and lighting.
In no event shall a sexually oriented business operate beyond the hour of
11:00 p.m. A sexually oriented business must comply with all zoning regulations
applicable to the zone where the business is to be located.
B.
An application for a special use permit must be made
on a form prescribed by the Town. At a minimum the application must include
the following:
(1)
The name of the applicant, coapplicant and any individual
or entity that has or will have an ownership or interest in the sexually oriented
business (hereinafter referred to as "applicant").
(2)
The mailing and residential address of the applicant.
(3)
A copy of the applicant's driver's license,
if existing.
(4)
The applicant's social security number and/or federal
tax identification number.
(5)
A recent photograph of the applicant and proof that the
applicant is 18 years of age or older.
(6)
A statement under oath whether the applicant has been
convicted of any crime within the previous five years and, if so, the specifics
of the crime, including the date and jurisdiction of the conviction.
(7)
A statement under oath whether the applicant has ever
had a sexually oriented business license issued pursuant to this chapter or
pursuant to a local law of another municipality denied, suspended or revoked
and providing the circumstances, including the date of the denial, suspension
or revocation.
(8)
A description of the exact location of the proposed sexually
oriented business, including street address.
(9)
A sketch or diagram depicting the layout of the premises
where the sexually oriented business is to be operated.
(10)
A description of the type and nature of activities which
are proposed to be conducted at the sexually oriented business.
(11)
A list of any and all licenses or permits which the applicant
of the proposed sexually oriented business maintains or holds in the Town
or in any other municipality, including the names and locations of such other
licensed sexually oriented businesses.
(12)
Proposed parking for patrons.
(13)
Details of all outdoor lighting and all outdoor advertising,
signs and window displays.
(14)
Such other information as may be required by the Town.
C.
Property owners within 2,000 feet of the location of
a proposed sexually oriented business shall be notified in writing of the
date, time and location of the public hearing.
A special use permit issued pursuant to this chapter may not be transferred
to any other individual or entity. The permittee shall not be allowed to operate
the permitted business at any other location other than the address designated
in the application.
A special use permit shall be revoked, after a hearing on notice to
the permit holder, upon a finding by the Zoning Board of Appeals that any
of the following has occurred, which conduct shall also constitute a violation
of this chapter:
A.
The permittee has knowingly allowed possession, use or
sale of controlled substances at the premises.
B.
The permittee has knowingly allowed prostitution on the
premises.
C.
The permittee provided false or misleading information
during the application process.
D.
The permittee has knowingly allowed any act of sexual
intercourse, sodomy, oral copulation, masturbation, or other sex acts to occur
in or on the premises.
E.
The permittee has knowingly allowed any person under
the age of 18 years to enter, occupy or work at the sexually oriented business.
F.
The permittee has violated any conditions placed on the
sexually oriented business by the Zoning Board of Appeals.
The application fee for a sexually oriented special use permit shall
be set by the Town Board at an amount determined to be sufficient to pay the
cost of administering this program, but in no event shall exceed $1,000.
An applicant or permittee shall permit authorized representatives of
the Town, including the Building Inspector/Code Enforcement Officer, to inspect
the premises for the purpose of insuring compliance with this chapter at any
time during operating hours of the business.
Any person convicted of violating this chapter shall be subject to a
fine not exceeding $2,500 for each such offense, plus costs, or imprisonment
for a period not exceeding six months, or both. Each day on which the violation(s)
continue shall be a separate offense.
Any sexually oriented business lawfully existing and operating as of
the effective date of this chapter shall be exempt from this chapter.
Should any section or provision of this chapter be deemed to be unconstitutional
or invalid by a court of law, such decision shall not affect the validity
of this chapter as a whole or any part thereof other than the part so decided
to be unconstitutional or invalid.
This chapter shall become effective upon filing with the Secretary of
State.
