[HISTORY: Adopted by the Board of Trustees of the Village of Massena 10-2-2007
by L.L. No. 2-2007. Amendments noted where applicable.]
A.
Purpose. It is the purpose of this chapter to regulate
sexually oriented businesses in order to promote the health, safety, morals
and general welfare of the citizens of the Village. The provisions of this
chapter have neither the purpose nor effect of imposing a limitation or restriction
on the content of any speech, including sexually oriented speech. Similarly,
it is not the intent nor effect of this chapter to restrict or deny access
by adults to speech protected by the First Amendment and New York Constitution,
or to deny access by the distributors and exhibitors of sexually oriented
speech to their intended market; neither is it the intent nor effect of this
chapter to condone or legitimize the distribution of obscene material.
B.
Findings. The Mayor and members of the Board of Trustees
of the Village of Massena are all residents of the Village. The Mayor and
members of the Board are familiar with the Village, the locations of sexually
oriented businesses in the Village, and the issues raised by those types of
businesses in the Village and throughout the country. The Mayor and Board
are also cognizant that AIDS, hepatitis and other sexually transmitted diseases
are serious health concerns in the local community. Based on the Mayor and
Board's local knowledge and evidence concerning the impacts or "secondary
effects" of adult uses on the community, as presented in hearings and in reports
made available to the Board on findings involving the effects of sexually
oriented businesses and public nudity incorporated in judicial decisions such
as, but not limited to, Town of Islip v. Caviglia, 73 N.Y.2d 544 (1989); Stringfellow's
of New York, Ltd. v. City of New York, 91 N.Y.2d 382 (1998); City of Erie
v. Pap's A.M., 146 L. Ed.2d 265 (2000); City of Renton v. Playtime Theatres.
Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 426 U.S. 50 (1976);
and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); and on studies in other
communities, including, but not limited to, Kansas City, Missouri; Newport
News, Virginia; St. Paul, Minnesota; Whittier, California; Phoenix, Arizona;
Indianapolis, Indiana; Austin, Texas; Seattle, Washington; and Tucson, Arizona;
and from manuals and books such as "An Educational Manual on How to Regulate
the Location of Adult Businesses Through Zoning," developed by the Massachusetts
Chapter of the American Planning Association and the Massachusetts City Solicitors
and Town Counsel Association; "Location of Adult Businesses, 2000 Edition,"
by Jules B. Gerard (West Group 1999); "Protecting Communities from Sexually
Oriented Businesses," by Len L. Munsil (Southwest Legal Press, Inc. 1996);
and also on findings from the Report of the Attorney General's Working
Group on the Regulation of Sexually Oriented Businesses, (June 6, 1989, State
of Minnesota), the Mayor and Board find:
(1)
Sexually oriented businesses lend themselves to ancillary
unlawful and unhealthy activities that are not properly controlled by the
operators of the establishments. Further, there are not adequate legal provisions
making the owners of these establishments responsible for the activities that
occur on their premises.
(2)
Employees of sexually oriented businesses engage in or
may be requested to engage in sexual behavior as a result of the type of employment
in which they are engaged.
(3)
Sexual acts, including masturbation, occur at sexually
oriented businesses, especially those which provide private or semiprivate
booths or cubicles for viewing films, videos or live sex shows.
(4)
The "entertainment" offered at sexually oriented businesses
often encourages sexual activities, which create unhealthy conditions.
(5)
Persons frequent certain sexually oriented businesses
for the purpose of engaging in sexual activities within the premises of such
sexually oriented businesses.
(6)
Communicable diseases may be spread by sexual activities,
including, but not limited to, human immunodeficiency virus (HIV), AIDS, hepatitis
B, and venereal diseases.
(7)
AIDS, HIV, hepatitis B and venereal diseases are serious
health concerns in the local community.
(8)
Sanitary conditions in some sexually oriented businesses
are unhealthy, in part, because the activities conducted there are unhealthy,
and, in part, because of the unregulated nature of the activities and the
failure of the owners and the operators of the facilities to regulate those
activities and maintain those facilities.
(9)
Numerous studies and reports have determined that semen
is found in certain areas of sexually oriented businesses, particularly where
persons view "adult" oriented films or "adult" entertainment.
(10)
Sexually oriented businesses have operational characteristics
which should be reasonably regulated in order to protect the substantial governmental
concerns raised by the various findings herein.
(11)
A licensing procedure is an appropriate mechanism to
place the burden of reasonable regulation on the owners and the operators
of the sexually oriented businesses. Further, such a licensing procedure will
place an incentive on the operators to see that the sexually oriented business
is run in a manner consistent with the health, safety and welfare of its patrons
and employees, as well as the citizens of the Village. It is appropriate to
require reasonable assurances that the licensee is the actual operator of
the sexually oriented business, and fully in possession and control of the
premises and activities occurring therein.
(12)
Requiring licensees of sexually oriented businesses to
keep information regarding current employees will help reduce the incidence
of certain types of behavior by facilitating the identification of potential
witnesses or participants and by preventing minors from working in such establishments.
(13)
The disclosure of certain information by those persons
ultimately responsible for the day-to-day operation and maintenance of the
sexually oriented business, where such information is substantially related
to the significant governmental interest in the operation of such uses, will
aid in assuring that the sexually oriented business is operated appropriately.
(14)
It is desirable, in the prevention of illegal activities
and the spread of communicable diseases, to obtain a limited amount of information
regarding certain employees who may engage in the conduct which this chapter
is designed to prevent or who are likely to be witnesses to such activity.
(15)
The fact that an applicant for an adult license has been
convicted of a sexually related crime leads to the rational assumption that
the applicant may engage in that conduct in sexually oriented businesses in
which sexual activities often occur.
(16)
The barring of such individuals from association with
adult uses for a period of years serves as a deterrent to and prevents conduct
which leads to unwanted sexual activities.
(17)
Regulations separating the performers who appear nude
or seminude in sexually oriented businesses from the patrons or customers
protect the performers, reduce the opportunity for illegal activities between
performers and patrons or customers and do not interfere with the content
of any performance.
(18)
The Board has determined that body rubs should only be
conducted for compensation by certain licensed professionals or athletic trainers.
(19)
The Board further determines that sexual encounter centers,
as defined herein, do not serve a legitimate purpose, offer a location at
which sexual activities and acts of prostitution can readily occur, and provide
a location at which sexually transmitted diseases may be spread. The Board
thus determines that sexual encounter centers should be prohibited.
(20)
The Board further determines that adult hotels or motels,
as defined herein, offer a location at which sexual activities and acts of
prostitution can readily occur due to the offering of short-term or hourly
rooms with beds, and provide a location at which sexually transmitted diseases
may be spread. The Board thus determines that adult hotels or motels should
be prohibited.
(21)
The general welfare, health, morals and safety of the
citizens of the Village will be promoted by the enactment of this chapter.
As used in this chapter, the following terms shall have the meanings
indicated:
A business enterprise which offers or maintains one or more adult
video viewing booths.
A business enterprise which regularly features or offers, to the
public, customers or members, performances by persons who appear nude or seminude
or live performances that are characterized by their emphasis on the exposure,
depiction or description of specified anatomical areas or the conduct or simulation
of specified sexual activities.
A hotel, motel or similar business enterprise which offers a sleeping
room for rent for a period of time that is less than 10 hours or allows a
tenant or occupant of a sleeping room to subrent the room for a period of
time that is less than 10 hours.
A business enterprise which regularly features or offers to the public
the presentation of motion-picture films, movies or sound recordings which
are characterized by their emphasis on the description or depiction of specified
anatomical areas or specified sexual activities and which are presented to
a common audience of more than five persons in an enclosed common area or
are presented in a common area of more than 150 square feet.
A business enterprise which meets any of the following tests:
Offers for sale sexually oriented toys and novelties, except a business
enterprise which devotes less than 10% of its stock-in-trade and sales and
display area to sexually oriented materials, with all sexually oriented toys
and novelties separated from other sales and display areas by an opaque wall
at least eight feet in height with a management-controlled system of access
to ensure that only persons over the age of 18 years are allowed to enter
the area.
Devotes more than 10% of its stock-in-trade or sales and display area
to sexually oriented materials without having all sexually oriented materials
separated from other sales and display areas by an opaque wall at least eight
feet in height with a management-controlled system of access to ensure that
only persons over the age of 18 years are allowed to enter the area.
Devotes more than 40% of its stock-in-trade or sales and display area
to sexually oriented materials.
Offers sexually oriented materials and advertises or holds itself out
in signage visible from the public right of way as "X," "adult," "sex" or
otherwise as a sexually oriented business.
A business enterprise which offers for sale or rental sexually oriented
materials, and which devotes at least 10% and not more than 40% of its stock-in-trade
or sales and display area to sexually oriented materials, provided that:
All sexually oriented materials are separated from other sales and display
areas by an opaque wall at least eight feet in height with a management-controlled
system of access to ensure that only persons over the age of 18 years are
allowed to enter the area; and
The business enterprise does not advertise or hold itself out in signage
visible from the public right-of-way as "X," "adult," "sex" or otherwise as
a sexually oriented business.
Coin- or slug-operated, or electronically or mechanically controlled,
still- or motion-picture machines, projectors or other image-producing devices
which present visual or audio material of any kind which is characterized
by its emphasis on the description or depiction of specified anatomical areas
or specified sexual activities and which are designed to be viewed by five
or fewer persons per machine at any one time or are located in a room or booth
of less than 150 square feet. No part of this definition shall be construed
to permit more than one person to occupy an adult video viewing booth at any
time.
A business enterprise where body rub services are provided in order
to induce relaxation or for other purposes, and which is not a massage establishment.
Any business or place where, for consideration, goods, merchandise,
services or entertainment are offered.
The payment of money or the exchange of any item or services of value
for:
The right to enter the business premises, or any portion thereof;
The right to remain on the business premises, or any portion thereof;
The right to purchase any item permitting the right to enter, or remain
on, the business premises, or any portion thereof.
The right to a membership permitting the right to enter, or remain on,
the business premises, or any portion thereof; or
The right to obtain any services, buy or rent any items or view any
entertainment in a sexually oriented business.
Any person present in a sexually oriented business when open for
business, except an employee of the business or a person making deliveries
or performing maintenance or repairs to the premises.
Any person who works or performs in or at, or renders any services
directly related to the operation of, a sexually oriented business, whether
such person is denominated an employee, independent contractor, agent or otherwise,
and whether or not said person is paid a salary, wage or other compensation
by the operator of the business.
LICENSEE -- A person in whose name a license to operate a sexually
oriented business has been issued, as well as individuals listed as applicants
on the application for a license; and in the case of a manager or employee,
a person in whose name a sexually oriented business manager license or a sexually
oriented business employee license has been issued authorizing such employment.
Any person who manages, directs, administers or is in charge of the
affairs or conduct of any activity occurring at a sexually oriented business,
either in conjunction with a licensee or in the absence of the licensee.
A business enterprise offering massage conducted by persons engaged
in the practice of medicine, nursing, osteopathy, physiotherapy, chiropractic,
podiatry or massage therapy for which they are licensed by the State of New
York, or persons under the direct supervision and control of such licensed
persons.
The showing of the human male or female genitals, pubic area, vulva,
anus, anal cleft or cleavage with less than a fully opaque covering, or the
showing of the covered male genitals in a discernibly turgid state.
A licensee or any person operating, conducting or maintaining a sexually
oriented business.
An individual, proprietorship, partnership, corporation, association
or other legal entity.
The building in which a sexually oriented business is conducted as well as its surrounding yard and parking area and any additional parking areas required for compliance with Chapter 300, Zoning.
The showing of the female breast with less than a full opaque covering
of any portion thereof below the top of the areola, 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 that the areola is not exposed
in whole or in part.
A business enterprise in which a person may view, or may participate
in, specified sexual activities.
Books, magazines, pamphlets, pictures, drawings, photographs, videotapes,
digital video disks, motion-picture films or sound recordings, or printed,
visual and audio material of any kind, which are characterized by their emphasis
on the description or depiction of specified anatomical areas or specified
sexual activities.
An adult retail store, adult arcade, adult cabaret or adult movie theater and, except for purposes of business and manager licensing, a limited adult retail store. For purposes of the definitions of "employee" and "manager" and the regulations found in §§ 233-22 and 233-23, a sexually oriented business shall also include any business enterprise where activities prohibited in §§ 233-22 and 233-23, are occurring, or a business enterprise which offers at any time to the public, customers or members performances by persons who appear nude or seminude or live performances that are characterized by their emphasis on the exposure, depiction or description of specified anatomical areas or the conduct or simulation of specified sexual activities, whether such business is licensed or unlicensed and whether such activities occur regularly or on one occasion only.
All sexually oriented toys and novelties and sexually oriented books
and videos.
Instruments, devices or paraphernalia either designed as representations
of human genital organs or female breasts, or designed or marketed primarily
for use to stimulate human genital organs, except medical devices approved
by the Food and Drug Administration.
Any showing of the human male or female genitals, pubic area or buttocks
with less than a full opaque covering, or the showing of the female breast
with less than a full opaque covering of any portion thereof below the top
of the nipple, or the depiction of covered male genitals in a discernibly
turgid state.
Any of the following offenses, as defined in the New York State Penal
Law, or any similar offenses under the criminal or penal code of other states
or countries: prostitution offenses; obscenity and related offenses; sexual
performance by a child; possession or distribution of child pornography; offenses
against public sensibilities; sex offenses; unlawfully dealing with a child;
for which less than two years have elapsed since the date of conviction or
the date of release from confinement imposed for the conviction, whichever
is the later date, if the conviction is of a misdemeanor offense; a felony
conviction; or less than five years have elapsed since the date of the last
conviction or the date of release from confinement for the last conviction,
whichever is the later date, if the convictions are of two or more misdemeanor
offenses or combination of misdemeanor offenses occurring within any two-year
period. The fact that a conviction is being appealed shall have no effect
on the disqualification of the applicant.
Acts of masturbation, sexual intercourse, oral or anal copulation;
fondling of another's genitals, pubic area, buttocks or female breasts,
whether clothed or unclothed; human male or female genitals when in a state
of sexual stimulation or arousal; or excretory functions or sexual acts with
animals.
Includes any of the following:
The sale, lease, or sublease of the business.
The transfer of securities which constitute a controlling interest in
the business, whether by sale, exchange or similar means.
The establishment of a trust, gift or other similar legal device which
transfers the ownership or control of the business, except for transfer by
bequest or other operation of law upon the death of the person possessing
the ownership or control.
A.
It is unlawful:
(1)
For any person to operate a sexually oriented business
without a valid sexually oriented business license issued by the Village pursuant
to this chapter.
(2)
For any person who operates or manages a sexually oriented
business to employ or allow to work or perform in a sexually oriented business
a person who appears nude or seminude who is not licensed as required by this
chapter.
(3)
For any person who operates a sexually oriented business
to allow the business to be open without a designated manager on duty, which
manager shall be licensed by the Village if the business is an adult cabaret.
The name of the manager on duty at any time shall be prominently displayed
at or near the manager's station in the public area of the sexually oriented
business. For sexually oriented businesses other than adult cabarets, the
operator shall with reasonable diligence investigate the background of its
managers and shall certify to the Village, within five days of employment,
that its managers are at least 18 years of age and have not been convicted
of a specified criminal activity; or within five days of employment, the operator
shall provide the Chief of Police or his or her designee with the name, date
of birth and social security number of its managers so that the Chief of Police
or his or her designee can investigate the background of the managers. No
person shall serve as a manager of a sexually oriented business unless the
person is at least 18 years of age and has not been convicted of a specified
criminal activity.
(4)
For any person to act as a manager of an adult cabaret
without having secured a sexually oriented business manager license pursuant
to this chapter.
(5)
For any employee to appear nude or seminude at a sexually
oriented business without having secured a sexually oriented business employee
license pursuant to this chapter.
(6)
For any person who operates an adult cabaret to employ
or allow to work in an adult cabaret a manager who is not licensed as required
by this chapter.
B.
The requirement to obtain a sexually oriented business
employee license shall not apply to a person residing outside the Village
of Massena who appears nude or seminude at a sexually oriented business for
a single engagement in any year extending fewer than 10 consecutive days.
Such person shall supply to the licensee and manager of the sexually oriented
business his or her name, address, date of birth, social security number and
dates of engagement. The licensee and manager shall maintain a record containing
such information which is secured in the premises of the sexually oriented
business so that it may be immediately retrieved and shown to a police officer
upon demand during all hours that the sexually oriented business is open.
A.
An application for a sexually oriented business license
must be made to the Village Clerk on a form provided by the Village.
B.
All applicants must be qualified according to the provisions
of this chapter. The application may request and the applicant shall provide
such information as to enable the Village to determine whether the applicant
meets the qualifications established in this chapter.
C.
If a person who wishes to operate a sexually oriented
business is an individual, the person must sign the application for a license
as applicant. Each applicant must be qualified according to the provisions
of this chapter, and each applicant shall be considered a licensee if a license
is granted.
D.
The completed application for a sexually oriented business
license shall contain the following information and shall be accompanied by
the following documents:
(1)
If the applicant is:
(a)
An individual, the individual shall state his/her legal
name and any aliases and submit proof that he/she is at least 18 years of
age.
(b)
A partnership, the partnership shall state its complete
name, and the names of all partners, whether the partnership is general or
limited, and a copy of the partnership agreement, if any.
(c)
A corporation, the corporation shall state its complete
name, the date of its incorporation, evidence that the corporation is in good
standing under the laws of its state of incorporation, the names and capacity
of all officers and directors, and the name of the registered corporate agent
and the address of the registered office for service of process.
(2)
If the applicant intends to operate the sexually oriented
business under a name other than that of the applicant, he or she must state
the sexually oriented business's fictitious name and submit copies of
the registration documents.
(3)
Whether the applicant has been convicted of a specified
criminal activity as defined in this chapter and, if so, the specified criminal
activity involved, and the date, place and jurisdiction of each.
(4)
Whether the applicant has had a previous personal or
business license under this chapter or other similar sexually oriented business
chapters from another village, city or county denied, suspended or revoked,
including the name and location of any sexually oriented business for which
the permit was denied, suspended or revoked, as well as the date of the denial,
suspension or revocation, and whether the applicant has been a partner in
a partnership or an officer or director of a corporation that is licensed
under this chapter whose license has previously been denied, suspended or
revoked, including the name and location of the sexually oriented business
for which the permit was denied, suspended or revoked as well as the date
of denial, suspension or revocation.
(5)
Whether the applicant holds any other personal or business
licenses under this chapter or other similar sexually oriented business chapter
from another village, city or county and the names and locations of any such
other licensed businesses.
(6)
The classification of license for which the applicant
is filing.
(7)
The location of the proposed sexually oriented business,
including a legal description of the property, street address, and telephone
number(s), if any.
(8)
The applicant's mailing address.
(9)
The applicant's social security number.
A.
An application for a sexually oriented business manager
license or a sexually oriented business employee license must be made to the
Village Clerk on a form provided by the Village.
B.
All applicants must be qualified according to the provisions
of this chapter. The application may request and the applicant shall provide
such information as to enable the Village to determine whether the applicant
meets the qualifications established in this chapter.
C.
Before any applicant may be issued a sexually oriented
business manager license or a sexually oriented business employee license,
the applicant shall submit, on a form to be provided by the Village, the following
information:
(1)
The applicant's name or any other name (including
"stage" names) or aliases used by the individual.
(2)
Age and date of birth.
(3)
Height, weight, hair and eye color.
(4)
Present business address and telephone number.
(5)
Social security number.
(6)
Proof that the individual is at least 18 years of age.
D.
Attached to the application form for a sexually oriented
business manager license or a sexually oriented business employee license
shall be the following:
(1)
Not fewer than four unmounted, unretouched colored photographs
of the applicant clearly showing the applicant's face, taken within 30
days preceding the filing of the application. Each photograph shall be two
inches by three inches in size.
(2)
Whether the applicant has had a previous personal or
business license under this chapter or other similar sexually oriented business
chapters from another village, city or county denied, suspended or revoked,
including the name and location of any sexually oriented business for which
the permit was denied, suspended or revoked, as well as the date of the denial,
suspension or revocation, and whether the applicant has been a partner in
a partnership or an officer or director of a corporation that is licensed
under this chapter whose license has previously been denied, suspended or
revoked, including the name and location of the sexually oriented business
for which the permit was denied, suspended or revoked as well as the date
of denial, suspension or revocation.
(3)
Whether the applicant holds any other personal or business
licenses under this chapter or other similar sexually oriented business chapter
from another city or county and the names and locations of any such other
licensed businesses.
(4)
A statement whether the applicant has been convicted
of a specified criminal activity as defined in this chapter and, if so, the
specified criminal activity involved, and the date, place and jurisdiction
of each.
A licensee holding a sexually oriented business license shall not also
be required to obtain an entertainment center license or a dance license for
the same premises, but shall obtain any necessary amusement center and amusement
game licenses.
The Chief of Police shall be the issuing authority for a sexually oriented
business license, a sexually oriented business manager license and a sexually
oriented business employee license.
A.
Upon the filing of an application for a sexually oriented
business manager license or a sexually oriented business employee license,
the Chief of Police shall authorize the Village Clerk to issue a temporary
license to said applicant unless it can be immediately determined that the
applicant does not meet one or more of the requirements that would justify
a denial.
B.
The application process shall be completed within 30
days from the date the completed application for a sexually oriented business
manager license or a sexually oriented business employee license is filed.
After the investigation, the Chief of Police shall authorize the Village Clerk
to issue a license, unless it is determined that one or more of the following
is true:
(1)
The applicant has failed to provide information reasonably
necessary for issuance of the license or has falsely answered a question or
request for information on the application form.
(2)
The applicant is under the age of 18 years.
(3)
The applicant has been convicted of a specified criminal
activity.
(4)
The license is to be used for employment in a business
prohibited by local or state law, statute, rule or regulation, or prohibited
by a particular provision of this chapter.
(5)
The license fee required by this chapter has not been
paid.
(6)
The applicant has had a sexually oriented business license,
a sexually oriented business manager license or a sexually oriented business
employee license revoked by the Village within two years of the date of the
current application.
C.
If the license is denied, a temporary license previously
issued is immediately deemed null and void.
A.
Upon the filing of an application for a sexually oriented
business license, the application shall be referred to the Police Department
and Code Enforcement Office for an investigation to be made for compliance
with this chapter and with applicable fire, building, zoning, property conservation,
health and safety codes. The investigation process shall be completed within
30 days from the date the completed sexually oriented business application
is filed. After the investigation, the Chief of Police shall authorize the
Village Clerk to issue a license, unless it is determined that one or more
of the following is true:
(1)
An applicant has failed to provide information reasonably
necessary for issuance of the license or has falsely answered a question or
request for information on the application form.
(2)
An applicant is under the age of 18 years.
(3)
An applicant has been convicted of a specified criminal
activity.
(4)
The license is to be used for a business prohibited by
local or state law, statute, rule or regulation, or prohibited by a particular
provision of this chapter.
(5)
An applicant has had a sexually oriented business license,
a sexually oriented business manager license or a sexually oriented business
employee license revoked by the Village within two years of the date of the
current application.
(6)
The premises to be used for the sexually oriented business
is in violation of applicable fire, zoning, building, property conservation
or health and safety laws and ordinances.
(7)
The license fee required by this chapter has not been
paid.
(8)
An applicant or the proposed establishment is in violation
of or is not in compliance with any of the provisions of this chapter.
A.
Every application for a sexually oriented business license
(whether for a new license or for renewal of an existing license) shall be
accompanied by the following fee:
|
Floor Space
(square feet)
|
Annual Fee
| |
|---|---|---|
|
Not exceeding 2,400
|
$325
| |
|
Over 2,400
|
$375
|
B.
Every application for a sexually oriented business manager
license or a sexually oriented business employee license (whether for a new
license or for renewal of an existing license) shall be accompanied by an
annual fee of $30.
C.
All license applications and fees shall be submitted
to the Village Clerk.
D.
The fee for replacement of a license which has been lost
or destroyed shall be $10.
An applicant, licensee or manager shall permit representatives of the
Police Department, Fire Department, and Code Enforcement Office to inspect
the premises of a sexually oriented business for the purpose of ensuring compliance
with this chapter and applicable fire, building, zoning, property conservation,
health and safety codes, prior to its initial opening for business and at
any time it is occupied or open for business.
A.
Each license shall expire on January 31 following the
date of issuance and may be renewed by making application for renewal at least
30 days and not more than 45 days before the expiration date. When application
for renewal is made less than 30 days before the expiration date, the expiration
of the license will not be affected.
B.
A license granted pursuant to this section shall be subject
to annual renewal unless the Chief of Police finds information since the last
time the license had been approved which would constitute grounds to deny
an initial license application or that there have been violations of this
chapter since the last time the license was approved or an accumulation of
violations within the last two license years which would be grounds for suspension
or revocation of the license. The renewal of the license shall be subject
to the payment of the renewal fee.
C.
When the Chief of Police denies renewal of a license,
the applicant shall not be issued a license for one year from the date of
denial. This provision shall not apply if the reason for the denial relates
to the business premises or location and all specified problems have been
corrected.
If the investigation reveals cause to believe that a license or renewal
of a license may be denied in accordance with this chapter, the Chief of Police
shall, within 30 days after a completed application is filed, inform the applicant
in writing, sent by first-class mail to the address provided by the applicant
in the application, of the possible reasons for the denial, and provide the
applicant with 10 days within which to review evidence, respond in writing
and provide documentary evidence to the contrary. The Chief of Police may
extend the time limit for response upon request of the applicant and for good
cause. If no response is made in a timely fashion, the Chief of Police shall
make a final determination within five days after the expiration of the time
to reply. If response is made in a timely fashion, the Chief of Police shall
make a final determination within five days after the response is received.
The final determination shall be in writing and provide specific reasons for
the denial. The status quo shall be maintained until the final determination
is made.
A.
The Chief of Police may suspend a license for a period
not to exceed 90 days, after a hearing, if he or she determines that a licensee,
manager or employee of a licensee has, within one year, violated or is not
in compliance with any section of this chapter.
A.
The Chief of Police may revoke a license, after a hearing,
if he or she determines that a licensee, manager or employee of a licensee
has violated or is not in compliance with any section of this chapter and
the license has been suspended within the preceding 12 months.
B.
The Chief of Police may also revoke a license, after
a hearing, if he or she determines that:
(1)
A licensee, within two years, gave false or misleading
information in the material submitted during the application process;
(2)
A licensee, manager or employee of a licensee has violated
or is not in compliance with any section of this chapter within one year;
or
(3)
There has been an accumulation of violations of this
chapter within two years.
C.
When the Chief of Police revokes a license, the revocation
shall continue for two years, within which time the licensee shall not be
issued a sexually oriented business license, sexually oriented business manager
license or sexually oriented business employee license. This provision shall
not apply if the reason for the revocation relates to the business premises
or location and all specified problems have been corrected.
Determinations resulting from a person's background, or activities
at a sexually oriented business, with respect to the denial, suspension or
revocation of a license, which incidentally burden free expression, shall
be no broader than needed to achieve Village goals. The Chief of Police is
authorized to issue warning notices and/or grant conditional licenses as a
means of allowing expression while curbing unwanted activities where violations
are found but denial, suspension or revocation is deemed not justified.
All notices required to be sent by the Village shall be in writing,
sent by first-class mail to the address provided by the applicant in the application.
Upon denial of an application, or denial of a renewal of a license,
or suspension or revocation of any license, the applicant or licensee may
seek prompt judicial review of such administrative action pursuant to Article
78 of the Civil Practice Law and Rules. The denial of a renewal of a license,
or suspension or revocation of any license, shall be stayed for a period of
20 days and, if a proceeding is brought to challenge the administrative action,
throughout the pendency of the proceeding in the trial court. The administrative
action shall be promptly reviewed by the court.
A licensee shall not transfer his/her license to another, nor shall
a licensee operate a sexually oriented business under the authority of a license
at any place other than the address designated in the application.
A.
No person in or on the premises of a sexually oriented
business shall engage in any specified sexual activities.
B.
No person shall appear seminude in or on the premises
of a sexually oriented business unless the person is an employee who, while
seminude, shall be on a stage or platform in the premises, which is at least
18 inches above the immediate floor level, and which is removed at least six
feet from the nearest customer.
C.
No person shall appear nude in or on the premises of
a sexually oriented business unless the person is an employee who, while nude,
shall be on a stage or platform in the premises permanently anchored to the
floor at least 18 inches above the floor level of the areas to which customers
have access and separated from the areas to which customers have access by
a continuous permanently affixed barrier at least three feet in height and
located at least six feet from the areas to which customers have access, which
barrier shall consist of horizontal or vertical members spaced no more than
nine inches apart and no more than nine inches from the floor or the walls
to which it is attached.
D.
No person shall be permitted or allowed to view another
person in a sexually oriented business who is nude or seminude from within
a room or booth in the premises which is not continuously open and visible
to persons in an adjacent public area of the premises, or from a viewing area
that is not at least 150 square feet in size.
E.
No person shall appear nude or seminude, or knowingly
allow another to appear nude or seminude, in an area of a sexually oriented
business that can be viewed from off the premises.
F.
No person in or on the premises of a sexually oriented
business shall, while nude or seminude, touch a customer or the clothing of
a customer.
G.
No employee in or on the premises of a sexually oriented
business shall, while nude or seminude, solicit any compensation or gratuity
from any customer.
H.
No person shall pay or give a gratuity to an employee
in or on the premises of a sexually oriented business by giving the payment
or gratuity to, or placing the payment or gratuity on the body of, or inside
the clothing of, the employee, while the employee is nude or seminude.
I.
No person shall allow a person under the age of 18 years
in or on the premises of a sexually oriented business.
J.
No person shall consume or possess any alcoholic beverage
in or on the premises of a sexually oriented business, other than an alcoholic
beverage legally sold in the sexually oriented business for on-premises consumption
pursuant to the Alcoholic Beverage Control Law of the State of New York.
K.
No person shall bring any animal, except a guide dog,
hearing dog, service dog or police work dog, in or on the premises of a sexually
oriented business.
L.
No employee, whether clothed or unclothed, shall sit
in the lap of or lay or lean against a customer and rub his or her genital
or pubic area, or her female breasts, against the customer; nor, whether clothed
or unclothed, allow the customer to touch his or her genital or pubic area,
or her female breasts.
A.
No licensee or manager of a sexually oriented business
shall knowingly or through reckless disregard:
(1)
Allow or permit persons to appear or act on the premises of the sexually oriented business in violation of the regulations set forth in § 233-21.
(2)
Allow or permit any building on the premises of the sexually
oriented business to be occupied by more than the number of persons established
by the Village as the legal occupancy.
(3)
Allow or permit the possession, use or sale of controlled
substances, marijuana, hypodermic instruments or drug paraphernalia in or
on the licensed premises.
(4)
Allow or permit prostitution in or on the premises of
the sexually oriented business.
(5)
Operate the sexually oriented business without a sexually
oriented business license.
(6)
Allow or permit any specified sexual activities to occur
in or on the premises of the sexually oriented business.
(7)
Allow or permit alcoholic beverages in or on the premises
of the sexually oriented business, other than alcoholic beverages offered
or sold pursuant to an on-premises license issued pursuant to the Alcoholic
Beverage Control Law of the State of New York.
(8)
Allow or permit illegal or excessive consumption of alcoholic
beverages to occur in or on the licensed premises.
(9)
Allow or permit gambling to occur in or on the licensed
premises.
(10)
Allow or permit the premises of the sexually oriented
business to become the focal point for fighting, assaults or other illegal
activities.
(11)
Allow or permit amplified noise in or on the premises of the sexually oriented business in accordance with § 200-2 of the Municipal Code.
(12)
Allow or permit animals, except guide dogs, hearing dogs,
service dogs or police work dogs, in or on the premises of the sexually oriented
business.
(13)
Allow or permit a sexually oriented business to be open
unless the sexually oriented business license is posted in a conspicuous place
at or near the entrance to the sexually oriented business so that it may be
easily read at any time.
(14)
Allow or permit a sexually oriented business to be open
unless a list of all employees, with managers designated, and copies of all
required sexually oriented business manager and employee licenses are secured
in the premises of the sexually oriented business so that they may be immediately
retrieved and shown to a police officer upon demand during all hours that
the sexually oriented business is open.
B.
For purposes of the denial of the renewal of a sexually
oriented business license, or the suspension or revocation of such a license,
the licensee shall be deemed responsible for the actions of the managers and
employees of the sexually oriented business.
A.
No person shall own, operate or maintain a body rub parlor
in the Village.
B.
No person shall give a body rub to another person in
the Village for compensation.
C.
The prohibitions found in this section shall not apply
to persons engaged in the following activities for which they are licensed
by the State of New York or persons under the direct supervision and control
of such licensed persons:
(1)
Persons engaged in the practice of medicine, nursing,
osteopathy, physiotherapy, chiropractic podiatry or massage.
(2)
The practice of that massage which is customarily given
in barbershops or beauty parlors for the purpose of beautification by a licensed
barber or beauty culturist.
(3)
Persons enrolled in a program of a school or institute
registered by the state to provide training for any of the occupations enumerated
in this section.
(4)
The practice of massage by any person duly employed as
a trainer by an athletic association, club or team, or as a member of the
physical education department of a university, college or school.
(5)
The practice of massage by any person employed by a corporation
or association organized exclusively for the moral or mental improvement of
men, women or children.
No person shall own, operate or maintain a sexual encounter center in
the Village.
No person shall own, operate or maintain an adult hotel or adult motel
in the Village.
The provisions of this chapter shall be controlling in the event of
any conflict between the provisions of this chapter and any other provisions
of the Municipal Code.
A person, firm or corporation violating any of the provisions of this
chapter shall be guilty of a violation punishable by a fine not exceeding
$200 or by imprisonment for a term not exceeding 15 days, or both such fine
and imprisonment. Each day the offense is continued shall constitute a separate
and distinct violation hereunder.
