[Added 10-16-2001 by L.L. No. 1-2001; amended 10-15-2002 by L.L. No. 5-2002; 3-16-2010 by L.L. No. 4-2010]
A.
Purpose. It is the purpose of this article to regulate adult use
establishments in order to promote the health, safety and general
welfare of the citizens of the Village and the patrons of such establishments
and to establish reasonable and uniform regulations to prevent the
deleterious secondary effects of such establishments within the Village.
The provisions of this article have neither the purpose nor effect
of imposing a limitation or restriction on the content of or reasonable
access to any communicative materials or any form of expression. Similarly,
it is neither the intent nor effect of this article to restrict or
deny access by adults to materials protected by the First Amendment
or to deny access by the distributors and exhibitors of entertainment
to their intended market.
B.
Findings and rationale. Based on the Adult Use Secondary Effects
Study and Adult Use Impact Analysis adopted by the Village Board of
Trustees on August 4, 2009, the Board of Trustees finds:
(1)
Adult use establishments are associated with a wide variety
of adverse secondary effects, including, but not limited to, personal
and property crimes, noise and traffic congestion, prostitution, potential
spread of disease, lewdness, public indecency, illicit drug use and
drug trafficking and negative impacts on surrounding properties.
(2)
Each of the foregoing negative secondary effects constitutes
a harm which the Village has a substantial government interest in
preventing and/or abating. This substantial government interest in
preventing secondary effects, which is the Village's rationale for
this article, exists independent of any comparative analysis between
subcategories of commercial entertainment establishments. Additionally,
the Village's interest in regulating adult use establishments extends
to preventing future secondary effects of either current or future
businesses that may locate in the Village.
C.
The Village hereby adopts and incorporates herein its stated findings
and legislative record related to the adverse secondary effects study.
As used in this article, the following adult uses are defined
as follows:
An individual 18 years of age or older.
A person, establishment or business, whether retail or wholesale,
having as more than a minimal portion of its stock-in-trade recordings,
books, magazines, periodicals, films, videotapes/cassettes, DVDs or
other audio or viewing materials for sale or viewing on or off the
premises, which are distinguished or characterized by their emphasis
on matter depicting, describing or relating to sexual activities or
sexual anatomical areas. For purposes of this definition, "minimal
portion" means more than 10% of the total area devoted to display
of such materials listed herein.
A public or private establishment which presents topless
dancers, bottomless dancers, strippers, male or female impersonators
or exotic dancers or other similar entertainment.
Any activity covered by the definitions of "adult bookstore,"
"adult motion-picture theater," "adult entertainment cabaret," "adult
motel," "adult novelty business," "adult-oriented business," "adult
personal service establishment," "adult video store," "peep show"
and "adult personal service establishment" in this section.
Any book, magazine, newspaper, pamphlet, poster, print, picture,
slide, transparency, figure, image, description, motion-picture film,
phonographic record or tape, other tangible thing, or any service,
capable of arousing interest through sight, sound, or touch, and:
Which material is distinguished or characterized by an emphasis
on matter displaying, describing, or representing sexual activity,
masturbation, sexual excitement, nudity, bestiality, or human bodily
functions of elimination; or
Which service is distinguished or characterized by an emphasis
on sexual activity, masturbation, sexual excitement, nudity, bestiality,
or human bodily functions of elimination.
A motel which makes available to its patrons in their rooms
films, slide shows or videotapes/cassettes or DVDs, with material
distinguished or characterized by primary emphasis on matter depicting,
describing or relating to sexual activities of sexual anatomical areas
for observation by patrons.
An enclosed or unenclosed building, structure, or portion
thereof used for presenting materials distinguished or characterized
by primary emphasis on matter depicting, describing, or relating to
sexual activities or sexual anatomical areas for observation by patrons.
An establishment having 10% or more of its total area devoted
to display of adult materials, toys and other devices designed for
sexual stimulation or wearing apparel that exposes specific anatomical
areas when worn that would otherwise be covered by such articles of
clothing.
An establishment in which 10% or more of its total area is
devoted to the display of adult books, adult videos or DVDs, adult
novelties, adult magazines, which can be characterized as adult materials
because they emphasize matters depicting sexual activities or sexual
parts of the male or female anatomy or facsimiles of the same, and
are intended for adult viewing.
An establishment, club, or business by whatever name designated,
including but not limited to massage parlors, which offers or advertises
or is equipped or arranged so as to allow a person to provide personal
services for a person of the same or other sex, where either person
is nude or partially nude, on an individual basis in an open or closed
room and which excludes minors by virtue of age. Such services or
activities include but are not limited to massages, body rubs, alcohol
rubs, baths and other similar treatments, as well as modeling studios,
body painting studios, wrestling studios, and individual theatrical
performances. It does not include the following specific uses and
activities, performed by persons pursuant to, and in accordance with,
licenses issued to such persons by the State of New York:
Treatment by a licensed chiropractor, a licensed osteopath,
a New York State licensed masseur or masseuse, a licensed practical
nurse or a registered professional nurse.
Electrolysis treatment by a licensed operator of electrolysis
equipment.
Hospitals, nursing homes, medical clinics or medical offices.
Barbershops or beauty parlors which offer massage to the scalp,
the face, the neck or shoulders only.
An establishment having 10% or more of its stock-in-trade
in videotapes, DVDs or films for barter, sale or rent or for viewing
on premises by use of motion-picture devices or any other coin-operated
means, and other printed materials and other periodicals which are
distinguished or characterized by their emphasis on matters depicting
or relating to specified sexual activities or specific anatomical
areas, as defined below.
Less than full opaque covering of male or female genitals,
pubic area or buttocks.
Any person, firm, association, partnership, corporation,
or other entity for profit.
Any person who engages in the performance of adult entertainment
within an adult-oriented business establishment, as defined in this
section, whether or not a fee is charged or accepted for such entertainment
and whether or not such person is an employee or an independent contractor.
A method of treating the external parts of the human body
by rubbing, stroking, kneading, tapping or vibrating with the hand
or any instrument.
The showing, representation, or depiction of human male or
female genitals, pubic area, or buttocks with less than full, opaque
covering of any portion thereof, or female breast(s) with less than
a full, opaque covering of any portion thereof below the top of the
nipple, or of covered male genitals in a discernibly turgid state.
Any establishment that presents material in the form of live
shows, films, videotapes/cassettes or DVDs, which material is distinguished
or characterized by an emphasis on matters depicting, describing or
relating to sexual activities or specified anatomical areas and that
are viewed from an individual machine or enclosure for which a fee
is charged.
A building, structure or open area intended primarily for
the conduct of organized or regularly scheduled religious services.
Vaginal intercourse between a male and a female, and anal
intercourse (Penetration, however slight, is sufficient to complete
vaginal or anal intercourse.), fellatio, and cunnilingus between persons
regardless of sex and any act of masturbation, sadomasochism or physical
contact with a person's clothed or unclothed genitals, pubic area,
buttocks or, if such person be female, breast.
Any touching of an erogenous zone of another, including without
limitation the thigh, genitals, buttock, pubic region, or, if the
person is a female, a breast, for the purpose of sexually arousing
or gratifying either person.
The condition of human male or female genitals when in a
state of sexual stimulation or arousal.
The showing of a female breast with less than a full opaque
covering of any portion thereof below the top of the nipple.
A.
Notwithstanding any provisions of this article to the contrary, adult
uses defined above shall be restricted as to location in the following
manner in addition to any other requirements of the Code of the Village
of Hempstead:
(1)
Any of the above adult uses shall not be located within three-hundred-foot
radius of any residence and/or residence district.
(2)
Any of the above adult uses shall not be located within a one-thousand-foot
radius of another such use.
(3)
Any of the above adult uses shall not be located within a five-hundred-foot
radius of any school, park, playground or playing field, nonconforming
residential use, community center, or other public facility, or designated
historic landmark.
(4)
Not more than one of the above adult uses shall be located within
a single building or single lot.
(5)
Adult uses should be prohibited from locating within 1,000 feet of
urban renewal areas.
(6)
Adult uses should be prohibited from locating within a three-hundred-foot
radius of a place of worship.
B.
By amortization, the right to maintain any of the above uses as a
legal nonconforming use shall terminate in accordance with the following
schedule:
|
Dollar Amount of Capital Investment as of Effective Date
of this article
| ||
|---|---|---|
|
$0 to $20,000
|
January 1, 2012
| |
|
$20,001 to $40,000
|
January 1, 2013
| |
|
$40,001 to $60,000
|
January 1, 2014
| |
|
$60,001 or more
|
January 1, 2015
| |
C.
The term "capital investment," as used above, is defined to mean
the initial outlay by the owner or operator of the use to establish
the business as of the effective date of this article, exclusive of
the fair market value of the structure in which the use is located.
(1)
In order to be permitted to continue operating for such period
of time, an application shall be made to the Zoning Board of Appeals
by the owner of such adult establishment within 120 days of the effective
date of this section.
(2)
The Zoning Board of Appeals may issue a special use permit allowing
such adult establishment to continue operating only for that period
of time necessary to recover said financial expenditures, within the
limits set forth hereinabove, and only after determining, based on
evidence offered by the applicant, that:
(a)
Prior to the effective date of this Code provision statute,
the applicant made financial expenditures related to the adult establishment;
and
(b)
The applicant can demonstrate the actual amount of said financial
expenditures; and
(c)
The applicant has not yet recovered substantially all of said
financial expenditures, and how much; and
(d)
The amount of additional operating time necessary to recover
such financial expenditures.
D.
If any two or more adult uses lawfully existing upon the effective
date of this article shall become legally nonconforming by the sole
basis of their distance from each other, then the adult use that has
been in lawful existence for the longer or longest period of time
shall be permitted to remain, and such other lawfully existing adult
use(s) shall be subjected to amortization as provided herein.
E.
Severability. If any part or provision of this article, or the application
thereof to any person or circumstance, is adjudged invalid by any
court of competent jurisdiction, such judgment shall be confined in
its operation to the part or provision or application directly involved
in the controversy in which such judgment shall have been rendered.
Such judgment shall not affect or impair the validity of the remainder
of this article or the application thereof to other persons or circumstances.
F.
When effective. This article will be effective immediately upon adoption
and filing pursuant to the Municipal Home Rule Law.
