[Added 4-21-2003 by L.L. No. 4-2003]
A.
Purpose. The purpose of this section is to regulate
the impacts from adult businesses or sexually oriented businesses,
to safeguard the economic and social well-being of the Village of
Potsdam and its residents, and to control negative secondary effects
associated with sexually oriented businesses. It is recognized that
there are some uses which, due to their nature, have objectionable
characteristics. The regulation of these uses is appropriate to ensure
that the adverse effects will not contribute to the blighting or downgrading
of the surrounding neighborhood.
B.
This article shall become effective immediately upon
the notification of its filing with the Secretary of State. At such
time, Local Law No. 2-2003, "Moratorium on Sexually Oriented Businesses,"
shall be no longer in effect.
C.
ADULT BOOK AND/OR VIDEO STORE
ADULT ENTERTAINMENT CABARET
ADULT MODEL STUDIO
ADULT MOTION-PICTURE THEATER
ADULT THEATER
ALCOHOL
ALCOHOLIC BEVERAGE
APPLICANT
APPLICATION
BUILDING CONTAINING LICENSED PREMISES
LICENSE
LICENSEE
MASSAGE ESTABLISHMENT
OPERATOR
OWNER
PEEP SHOWS
PERSON
PREMISES
SEXUALLY ORIENTED BUSINESS
SPECIFIED ANATOMICAL AREAS
SPECIFIED SEXUAL ACTIVITIES
Definitions: When used in these regulations, unless
otherwise expressly stated or unless the content or subject matter
otherwise requires, the following terms shall have the meanings indicated:
An establishment having a substantial or significant portion
(more than 25% of merchandise in number, value or bulk and/or more
than 10% of floor area) of its stock-in-trade books, magazines, periodicals
or other printed or digital matter, or photographs, films, videos,
slides or other visual representations, which are characterized by
the exposure or emphasis of specified sexual activities or specified
anatomical areas or instruments, devices or paraphernalia, which are
designed for use in connection with specified sexual activities, which
are for sale, rental or viewing on or off the premises.
A public or private establishment which regularly presents
topless and/or bottomless dancers, strippers, waiters or waitresses,
male or female impersonators, lingerie models or exotic dancers, or
other similar entertainment or films, motion pictures, digitalized
CDs or videos, slides or other photographic material, or which utilizes
employees who, as part of their employment, regularly expose patrons
to specified sexual activities or specified anatomical areas.
Any place where a person who appears in a state of nudity
or who 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; are acceptable
if duly licensed by the Board of Regents of the State of New York
as an educational institution.
Any motion-picture theater where, for any form of consideration,
films, motion pictures, digital CDs or videocassettes, slides or other
photographic or digital reproductions are shown, and in which a substantial
portion of the total presentation time is devoted to the showing of
material characterized by an emphasis upon the depiction or description
of specified sexual activities or specified anatomical areas.
A theater, concert hall, auditorium or similar establishment
which, for any form of consideration, regularly features live performances
characterized by the exposure of specified sexual activities or specified
anatomical areas.
Ethyl alcohol or hydrated oxide of ethyl from whatever source
or by whatever process produced.
Includes alcohol, spirits, liquor, wine, beer, cider and
every liquid or solid containing alcohol, spirits, wine or beer and
capable of being consumed by a human being.
The person applying for a license to conduct a sexually oriented
business.
The application for a license to operate a sexually oriented
business.
The licensed premises and also any part of a building in
which such premises is contained and any part of any other building
connected with such building by direct access or by a common entrance.
A license issued pursuant to this article.
Any person to whom a license is issued pursuant to this article.
An establishment having a fixed place of business where massages
are administered for pay, including but not limited to massage parlors,
sauna baths or steam baths. This definition shall not be construed
to include a hospital, nursing home or medical clinic or the office
of a physician, surgeon, chiropractor, osteopath, duly licensed physical
therapist or duly licensed massage therapist or barbershop or beauty
salon, athletic club, health club, school, spa or similar establishment
where massage or similar manipulation of the human body is offered
as an incidental accessory service.
The person responsible for the overall operation and supervision
of a sexually oriented business.
The person who owns a sexually oriented business.
A theater which presents materials distinguished or characterized
by primary emphasis on matters depicting, describing or relating to
specified sexual activities or specified sexual anatomical areas,
in the form of live shows, films or videotapes, viewed from an individual
enclosure, for which a fee is charged.
An individual, partnership, corporation or any other legal
entity.
The premises licensed pursuant to this article and on which
a sexually oriented business may be operated.
Any commercial activity which sells, rents, shows, exhibits,
or makes available for sale, rent, showing or exhibition, any material
or entertainment distinguished or characterized by an emphasis on
depicting or description of specified anatomical areas or of specified
sexual activity and shall include, but not be limited to, adult arcades,
adult markets, adult motion-picture theaters, adult theaters and adult
video rental/sale stores.
Less than completely and opaquely covered human genitals,
pubic region, buttock, and female breast below a point immediately
above the top of the areola; and human male genital in a discernibly
turgid state even if completely and opaquely covered.
Human genitals in a state of sexual stimulation or arousal;
or acts of human masturbation, sexual intercourse, oral copulation
or sodomy; or fondling or other erotic touching of human genitals,
pubic region, buttocks or breasts.
D.
Special use permit required. The establishment of a sexually oriented business in the Village shall require the approval by the Planning Board of a special use permit per § 180-31 of the Village Code. The special permit for a sexually oriented business shall terminate upon the transfer of title of the property or if there is a change in the ownership of the business, and, at that point, reapplication shall be necessary.
(1)
Sexually oriented business. Sexually oriented businesses
shall be permitted in the Industrial District (IND) and Business District
(B-1), provided that the following conditions are met:
(a)
The business is not located within 300 feet
of an area zoned R-1, R-2, R-3, R-4, or is located within the Central
Business District B-1 area.
(b)
The business is not located within 300 feet
of any school building, day-care facility, religious institution,
public park, playground or recreation area, residential area, or other
sexually oriented business establishment.
(c)
The applicant obtains a permit for the operation
of a sexually oriented business from the Village Board.
E.
Licensing of sexually oriented business.
(1)
Licenses. The applicant for a permit to establish
a sexually oriented business must obtain a license from the Village
Board to operate such an establishment. Such license shall contain
a description of the licensed premises, its location, and other information
determined to be necessary by the Village Board.
(2)
No license shall be granted under this article to
the following:
(a)
A person who is under 21 years of age.
(b)
A person who has been convicted of a felony.
(c)
A partnership or corporation, unless each member
of the partnership or each principal officer and director of the corporation
is over 21 years of age and has not been convicted of a felony.
(d)
A partnership or corporation, if any partner,
officer or director has been convicted of a violation of this article
or shall have had any license revoked for cause, until the expiration
of two years from the date of such conviction or revocation.
(e)
Any person, partnership or corporation, unless
the applicant shall be the owner or shall be in possession of said
premises under a lease, in writing, the term of said lease being not
less than the license period.
(3)
License period. Licenses shall be renewed annually
by the Village Board, on the recommendation of the Chief of Police,
with renewals for a term of one year. The fee for an annual license
shall be $50.
(4)
Granting of license. The Village Board shall grant
licenses under this section following a public hearing, said hearing
to be advertised in a newspaper of general circulation at least five
days, but not more than 30 days, from the scheduled date of the public
hearing. The Village Board will make a determination on the granting
of a license within 30 days of the public hearing, said decision to
be in writing and filed with the Village Clerk. In the event that
the Board does not grant a license, the applicant will be provided,
within 10 days, a written explanation of the reasons for the determination
not to approve the license.
(5)
Appeal. An appeal of the Village Board's decision
regarding an application for a license shall be per Article 78 of
the Civil Practice Law and Rules.
(6)
Transfer of licenses. Licenses are not transferable
to other parties.
F.
Provisions governing the license to operate a sexually
oriented business.
(1)
Alcohol. No license shall sell, deliver, or give away
or cause or permit or procure to be sold, delivered, or given away,
or otherwise permit, any alcoholic beverage for consumption on the
licensed premises.
(3)
No licensee shall employ or otherwise allow to work
on the licensed premises anyone who is under the age of 21 years.
(4)
No licensee shall allow or permit any gambling in
the licensed premises, or allow the premises to become disorderly.
G.
Prohibitions.
(1)
It shall be unlawful for any female person to appear,
work, entertain, act or display herself in any sexually oriented business,
or any other public place in the Village of Potsdam, clothed or costumed
in such a manner that a portion of her breast below the top of the
areola is not covered with a fully opaque covering or in such a manner
that her genitals, pubic area or buttocks are not covered with a fully
opaque covering.
(2)
It shall be unlawful for any male to appear, work,
entertain, act, or display himself in any sexually oriented business,
or any other public place in the Village, clothed or costumed in such
a manner that his genitals, pubic area or buttocks are not covered
with a fully opaque covering.
(3)
It shall be unlawful for any person to knowingly conduct,
maintain, own, lease, manage or furnish any sexually oriented facility
or any other public place in the Village where a person, whether employee
or patron, is not clothed, costumed or covered as required by the
provisions of § 180-47(G)(1) and (2) or to wear or use any
device that simulates the breast, buttocks or genitals.
(4)
It shall be unlawful to employ or permit any person
in the premises, employee or patron, to perform or simulate sexually
explicit acts, including sexual intercourse or any sexual acts prohibited
by law, nor shall the owner permit, encourage or allow the touching,
caressing or fondling of the breasts, buttocks or genitals of another
person.
H.
Revocation of license for cause. Any license may be
revoked, canceled or suspended and/or a civil penalty may be imposed
against the licensee if the licensee violates any provision of this
article, is convicted of a felony, or if the licensee makes a false
statement in application.
I.
Civic penalty. Any person, partnership or corporation,
whether a licensee or not, that is found to have violated any provision
of this section shall be subject to a penalty of up to $1,000. Each
action found to violate any provision of this article shall be deemed
a separate violation and each day that any such act occurs will be
deemed a separate violation.
J.
Severability. The invalidity of any section of this
article shall not invalidate any other provision thereof.
