[HISTORY: Adopted by the Board of Trustees
of the Village of Fishkill 2-13-1984 by L.L. No. 13-1984; amended in its entirety 1-9-2006 by L.L. No. 1-2006. Subsequent amendments noted where applicable.]
The Village Board hereby finds that cabarets,
and/or lounges, dance halls and discotheques within the Village of
Fishkill can create unique impacts in regard to municipal services,
traffic patterns, fire and safety conditions, and upon the residents
of the surrounding areas. The purpose of this chapter is to minimize
the adverse impacts of these uses and yet permit their existence,
thus providing for the economic and social welfare, health, and peace
of the people of the Village of Fishkill. The provisions of this chapter
shall be liberally construed for the accomplishment of that purpose.
As used in this chapter, the following terms
shall have the meanings indicated:
Any person applying for a license under this chapter.
Any place of public assembly in which the business of directly
or indirectly selling or serving food or drink is conducted and in
which any musical entertainment, singing, dancing, or DJ (disc jockey)
in a designated area or other form of live entertainment is also permitted,
but shall not include such a room, place or space that provides incidental
background music by mechanical devices without dancing.
Any place of public assembly in which dancing is carried
on and into which the public may gain admittance either with or without
the payment of a fee.
Any place of public assembly in which the business of directly
or indirectly selling or serving food or drinks and/or beverages to
the public is conducted and in which dancing is carried on by any
musical entertainment and into which the public may gain admission
either with or without the payment of a fee.
A permit issued by the Village Board in accordance with this
chapter.
Any individual or partnership, club, corporation, association,
society or any other organized group of persons, including the officers,
directors, stockholders and trustees of a club, corporation, association
or society.
Any room, place or space which is occupied or arranged to
be occupied for recreational, amusement, social, sports or similar
purposes, or any building, shed or enclosure, whether indoor or outdoor,
coming within the occupancy and other similar classifications of this
chapter, as determined by the officer charged with the enforcement
of this chapter. For the purposes of interpretation, the term "public
assembly" where used in this chapter, shall include the term "public
assembly," as may be used in other codes, laws, ordinances, rules
or regulations as may be applicable in the Village of Fishkill.
A.
The Board of Trustees of the Village of Fishkill,
in accordance with this chapter, shall have the following functions,
powers and duties, in addition to those provided in any other law,
ordinance, rule or regulation:
(1)
To approve the issuance of or to refuse the issuance
of any license or permit provided for in this chapter.
(2)
To revoke, cancel or suspend for cause any license
or permit issued under this chapter.
(3)
To inspect or provide for the inspection of any place
of public assembly at any reasonable time.
(4)
To prescribe forms of application for licenses or
permits under this chapter and of all reports which it deems necessary
to be made by any licensee, permittee or applicant.
(5)
To hold hearings, to subpoena witnesses, to compel
their attendance, to administer oaths, to examine any person under
oath and, in connection therewith, to require the production of any
books or papers relative to the inquiry and to otherwise fully enforce
this chapter.
B.
The powers provided in this section may be delegated
by the Board of Trustees of the Village of Fishkill to any employee
or officer of the Village of Fishkill designated by it.
[Amended 12-11-2006 by L.L. No. 10-2006; 11-4-2009 by L.L. No. 33-2009]
It shall be unlawful for any person to conduct, maintain or operate, or engage in the business of conducting, maintaining or operating a cabaret, lounge, dance hall or discotheque establishment within the Village of Fishkill, unless the premises wherein the same is conducted, maintained or operated is licensed in the manner prescribed herein and unless said premises is zoned to permit the same in accordance with the Schedule of Regulations for Nonresidential Districts in § 171-53 of this Code. In addition, no cabaret, lounge, dance hall or discotheque establishment shall be allowed to be licensed west of Jackson Street, on either side of Main Street.
A.
The Village Board shall, by resolution, prescribe
the form of application for such license and determine such other
information that shall be furnished in any application for a license
under this chapter. The applicant may obtain said form of application,
with instructions for completion thereof, from the Village Clerk.
[Amended 4-18-2011 by L.L. No. 1-2011]
B.
Said application shall be signed and sworn to, before
a notary public or other officer authorized to administer an oath,
by all persons applying for a license.[1]
[1]
Editor's Note: Former Subsection C, requiring persons applying for a license to be fingerprinted, which immediately followed this subsection, was repealed 10-6-2014 by L.L. No. 7-2014, which local law also provided for the redesignation of former Subsections D through M as Subsections C through L, respectively.
C.
Said application shall be referred to the head of
the Village Police Department, the Fire Inspector and the Code Enforcement
Officer for proper investigation of the applicant and inspection of
the premises. As part of such investigation and inspection, the head
of the Village Police Department, the Fire Inspector and the Code
Enforcement Officer shall determine whether such applicant and premises
conform to the requirements of this chapter and all laws and regulations
of the State of New York, Dutchess County and the Village of Fishkill.
The investigation of the head of the Village Police Department shall
also include an examination into the present and projected noise,
traffic and safety impacts of the proposed cabaret, and/or lounge,
dance hall or discotheque. At the conclusion of such investigation,
the head of the Village Police Department, the Fire Inspector and
the Code Enforcement Officer shall render a written report to the
Village Board with their recommendation as to whether or not such
application should be granted. The head of the Village Police Department,
in making such recommendation, shall investigate the applicant's character
and conduct as a law-abiding person and shall consider past operations,
if any, convictions of crimes, misdemeanors or other violations involving
moral turpitude and connections with criminal elements. The application
shall also be referred to the Village Planning Board for its review
and advisory report.
[Amended 5-24-2010 by L.L. No. 6-2010]
D.
Within 30 days after the receipt of the reports and
recommendations of the head of the Village Police Department, the
Fire Inspector, the Code Enforcement Officer and the Planning Board,
the Village Board shall determine whether or not to grant the license.
However, in no event may the Village Board grant such license if:
[Amended 5-24-2010 by L.L. No. 6-2010]
(1)
The head of the Village Police Department, the Fire
Inspector or the Code Enforcement Officer recommends that such license
not be issued; provided, however, that if the recommendation of the
head of the Village Police Department is based on his investigation
of the applicant's connection with criminal elements, the Village
Board shall retain the discretion to deny or approve the license,
merely taking into account the recommendation of the head of the Village
Police Department with respect thereto.
(2)
The applicant or the premises does not conform to
all requirements of this chapter and all laws and regulations of the
State of New York, Dutchess County and the Village of Fishkill.
(3)
Any person having an interest in said premises has
been convicted of a misdemeanor or a felony which, in the judgment
of the Village Board, renders the applicant unfit or undesirable to
conduct a cabaret, and/or lounge, dance hall or discotheque.
(4)
The applicant or, if a corporation, the holders of
a majority of its capital stock and any persons having an interest
in such business have been convicted of violating any laws or ordinances
relating to public morality or decency or to the sale of intoxicating
liquor within five years preceding the date of such application.
E.
If an application is denied by the Village Board,
notice shall be given to the applicant within 10 days by regular mail,
and the notice shall state the reason(s) for denial.
F.
When an applicant has made timely and sufficient application
for a new license with reference to any activity of a continuing nature
for which such applicant had been issued a license in the previous
year, the existing license shall not expire until the new application
has been determined by the Village Board.
G.
Anything contained in Subsection G hereof to the contrary notwithstanding, if the recommendations of any one of the officials described in Subsection D of this section contain findings that the public health, safety and welfare imperatively require emergency action and the termination of all cabaret, and/or lounge, dance hall or discotheque activities pending such action, the Village Board shall incorporate such findings in an order summarily suspending the license effective on the date specified in such order or upon service of a certified copy of such order on the licensee, whichever shall be later, pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.
H.
In the event that the Village Board determines to
grant a license for a cabaret, and/or lounge, dance hall or discotheque,
the Village Board may impose such terms and conditions on said license
so as to effectuate the purposes of this chapter.
I.
If there is any change after the granting of a license
in any of the facts required to be set forth in said application,
a supplemental application giving notice of such change, duly verified,
shall be filed with the Village Clerk within 10 days after such change.
Failure to do so, if willful and deliberate, shall be cause for suspension
or revocation of the license. In giving any notice or taking any action
in reference to a licensee of licensed premises, the Village Board
or its designated agent or officer may rely upon the information furnished
in such application and in any supplemental statement connected therewith,
and such information may be presumed to be correct and shall be binding
upon a licensee of licensed premises as if correct. This supplemental
statement may be waived by said designated employee or officer, in
his discretion, as to any corporation with regard to stockholders
holding less than 10% of the issued stock.
J.
Said supplemental application shall be referred to the head of the Village Police Department, the Fire Inspector, the Code Enforcement Officer and the Village Planning Board for a report and recommendation pursuant to the provisions of § 59-5C.
[Amended 5-24-2010 by L.L. No. 6-2010]
K.
Within 30 days after the receipt of the reports and recommendations of the head of the Village Police Department, the Fire Inspector, the Code Enforcement Officer and the Planning Board, the Village Board shall determine whether or not to approve such supplemental application. However, in no event may the Village approve such supplemental application if any of the conditions set forth in § 59-5D are present.
[Amended 5-24-2010 by L.L. No. 6-2010]
L.
If a supplemental application is denied by the Village
Board, notice shall be given to the applicant within 10 days by regular
mail, and the notice shall state the reason(s) for denial.
A.
The term of licenses shall be for a period of one
year, commencing with February 1 and terminating at the end of the
following January, except that an original license shall be effective
from the date the license is granted to the end of the month of January
following.
B.
Renewal applications shall be submitted to the Village
Clerk at least 30 days prior to expiration of the license. Renewals
of licenses shall be effective for the one-year term described above.
A.
Fees for such cabaret, and/or lounge, dance hall or discotheque establishment licenses issued under this chapter shall be payable annually and are hereby fixed in accordance with the fee schedule set forth in Subsection B hereof, which amount includes the cost of issuing the license and the cost of making the necessary inspection of the premises to ascertain whether it complies with this chapter and any rules and regulations promulgated hereunder. Supplemental applications in accordance with § 59-5I shall also be accompanied by a fee in accordance with the fee schedule set forth in Subsection B under this chapter. Such license shall be at all times displayed in a conspicuous place at the place of business for which it is issued.
B.
License Fee Schedule.
[Amended 4-18-2011 by L.L. No. 1-2011]
(1)
Single-room license. The minimum license fee shall
be $250 and shall apply to all licensed establishments where only
one room is licensed under this chapter.
(2)
Multi-room license. The maximum license fee under
this chapter shall be $750 and shall apply to any establishment where
more than one room in the applicant's building/premises is to be licensed
hereunder.
(3)
Annual renewal fees. Provided that the applicant's
license has not been revoked or suspended for any reason, and provided
that a renewal application has been timely filed by the applicant,
the annual fee for renewal of a single-room license shall be $200
and for renewal of a multi-room license shall be $600.
C.
The license fee required hereunder shall be paid annually
on the anniversary date of the first issuance of the license. Any
license fee which is paid more than 15 days after the annual due date,
shall also require payment by the license holder of a late fee of
$250.
[Added 4-20-2009 by L.L. No. 7-2009]
A.
The Village Board, after a hearing upon notice, at
which hearing the licensee shall be given an opportunity to be heard,
may suspend or revoke any license issued, in its discretion, for any
of the following causes:
(1)
A person licensed hereunder making any false material
statement in the application for license.
(2)
A person licensed hereunder suffering or permitting
any waitress, barmaid or other person who comes in contact with or
is likely to come in contact with patrons of the licensed establishment
to appear in the presence of such patrons with breasts or the lower
part of the torso uncovered or so thinly covered or draped as to appear
uncovered, or suffering or permitting any person to appear in any
scene, sketch, act or entertainment with breasts or the lower part
of the torso uncovered or so thinly covered or draped as to appear
uncovered.
(3)
The violation of any provision of this chapter.
(4)
The violation of any federal, state or local law,
ordinance, rule or regulation applicable to the licensed premises
or enforceable by any government authority.
[Amended 4-18-2011 by L.L. No. 1-2011]
(5)
Conviction of any crime as the same is hereinbefore
referred to in this chapter.
(6)
Failure to provide for the health, safety or welfare
of any persons frequenting the licensed premises.
(7)
The grounds that disorderly, obscene or immoral conduct
is permitted on the licensed premises or is occasioned in the vicinity
of such premises as a result of its existence.
(8)
Other good cause.
B.
Upon the suspension or revocation of a license for
premises hereunder, it shall be unlawful to use or occupy any portion
of said premises as a cabaret, and/or lounge, dance hall or discotheque
during such period of suspension.
C.
The Village Clerk shall send notice of the suspension
or revocation to the person licensed hereunder by registered or certified
mail and shall cause to be attached thereto a statement of the reasons
therefor.
Any notice to be given under this chapter shall
be deemed to have been duly given when:
A.
Served personally upon the licensed person or sent
by registered or certified mail addressed to his residence contained
in the application or any supplemental application.
B.
In the case of a corporate licensee, served personally
upon an officer of said corporate licensee or sent by registered or
certified mail addressed to an officer thereof at his residence, together
with a copy of the notice sent by ordinary mail to the address of
the licensed premises.
No license issued under the provisions of this
chapter shall be transferred or assigned to any person or used by
any person other than the licensee to whom it was issued, nor shall
such license be used for any location other than the location stated
in such license.
Every person holding a license under this chapter
shall comply with the following provisions:
A.
Establishments licensed under the provisions of this
chapter shall not have live entertainment between the hours of 2:00
a.m. and 9:00 a.m.; provided, however, that in the event that Village
officials receive complaints that the operation of such establishment
after 12:00 midnight causes annoyance, disturbance, results in noise
or other inconvenience and, upon investigation, such officials determine
that such complaints are justified, such establishment shall no longer
be permitted to have live entertainment to 2:00 a.m., but said entertainment
shall cease at 12:00 midnight.
B.
After sunset every place licensed under the provisions
of this chapter shall be lighted or illuminated by electricity, provided
that the intensity of such illumination shall at no time be less than
three footcandles at a plane three feet above the floor at all parts
of said place. It shall be unlawful for the owner, proprietor, manager
or person in charge of such place to admit any patron thereto after
sunset until said place is illuminated, as provided herein. Such lighting
or illumination shall be maintained throughout the entire time during
which such place shall be open or entertaining patrons and until such
place shall be cleared and closed.
C.
It shall be unlawful for any person licensed under
the provisions of this chapter to permit on the premises any entertainment,
amplified by a mechanical device, of such an intensity, character
and duration as to disturb the peace, tranquility and good order of
the people of the Village of Fishkill.
D.
It shall be unlawful for any person licensed under
the provisions of this chapter to permit any disorderly, noisy, riotous
or tumultuous conduct or loitering about the licensed premises.
E.
It shall be unlawful for any place licensed under
the provisions of this chapter to permit outside doors to be open
at any time during the hours of operation, except:
F.
No light on any part of the premises licensed hereunder
shall be permitted to shine beyond the property line of the premises.
All exterior lights on such premises shall be equipped with shielding
devices so that the glow emanating therefrom shall be directed only
on and toward such premises.
G.
All garbage, rubbish and other refuse shall be stored,
until removed, at the rear of the premises in watertight receptacles
and securely covered. Such receptacles shall be maintained in a sanitary
condition.
H.
No soot, cinders, smoke, noxious acids, fumes, gases
or disagreeable or unusual odors shall be permitted to emanate from
the premises so as to be detrimental to any person or to the public
or which either annoy, disturb, injure or endanger the comfort, repose,
health, peace or safety of any person or the public.
I.
The place licensed under the provisions of this chapter
shall be sound-proofed, and no music shall be played in such place
either by mechanical device or live performance in such a manner that
the sound emanating therefrom shall be audible outside the building
or commercial business establishment where the sound is being produced.
At no time shall music be played either by mechanical device or live
performance in a manner which either annoys, disturbs, injures, endangers
or tends to annoy, disturb, injure or endanger the comfort, repose,
health, peace or safety of other persons or the public.
J.
No loud, unnecessary or unusual noise or any noise
shall be permitted to be made or continued or caused to be made or
continued which either annoys, disturbs, injures, endangers or tends
to annoy, disturb, injure or endanger the comfort, repose, health,
peace or safety of other persons or the public, or otherwise violates
the provisions of the Village of Fishkill noise regulations.[1]
[Amended 5-24-2010 by L.L. No. 6-2010]
Any police officer, Code Enforcement Officer
or Fire Inspector shall be permitted to inspect such licensed premises
during business hours to ensure that the provisions of this chapter
are being complied with by the licensee.
The provisions of this chapter shall not apply
to the activities conducted in a building or buildings owned by any
church, public school or firehouse which are not conducted for gain
or profit, if an exemption therefor is granted by the Village Board.
[Amended 5-24-2010 by L.L. No. 6-2010]
A.
When, in the opinion of the Fire Inspector, Code Enforcement
Officer or any police officer of the Village of Fishkill, there exists
a violation which creates imminent danger to public safety, the Fire
Inspector, Code Enforcement Officer or any police officer of the Village
of Fishkill may order the owner or operator:
[Amended 4-18-2011 by L.L. No. 1-2011]
B.
Upon failing to comply with such an order, the person
or persons so ordered shall be guilty of a misdemeanor and subject
to immediate arrest for violation of this chapter and any applicable
provisions of the Penal Law of the State of New York. In order to
protect the public health, safety and welfare, the Fire Inspector,
Code Enforcement Officer or any police officer of the Village of Fishkill
may order such establishment evacuated, and the license issued under
the provisions of this chapter shall be immediately suspended; provided,
however, that within 24 hours or the next business day following such
evacuation, whichever is later, there shall be a finding by the Code
Enforcement Officer, Fire Inspector or head of the Village Police
Department that emergency conditions exist that require the continuation
of the suspension until a hearing is provided or other action taken
as provided for under this chapter. In the event that there is not
such a finding, the establishment shall be permitted to operate pending
a hearing or other action taken as provided for under this chapter.
A.
Any person committing an offense against any provision
of this chapter or any rule or regulation adopted pursuant to this
chapter shall be punishable by a fine of not less than $250 and not
more than $500 or by imprisonment for a term of not more than 30 days,
or by both such fine and imprisonment.
B.
Conviction for an offense against this chapter shall
constitute and effect immediate forfeiture and cancellation of any
license issued hereunder.
[Added 12-11-2006 by L.L. No. 10-2006]
A.
Except as otherwise provided herein, a lawfully permitted
cabaret, lounge, dance hall or discotheque use existing at the time
of the adoption of this chapter may be continued although said use
does not conform to the standards specified for the district in which
it is located. Said use shall be deemed a nonconforming use.
B.
Expiration of nonconforming cabaret, lounge, dance
hall or discotheque use.
(1)
Any building or structure containing a cabaret, lounge,
dance hall or discotheque, the use of which does not conform to the
permitted use regulations for the district in which it is situated,
shall only be extended through continued compliance with the licensing
standards detailed in this chapter.
(2)
If any nonconforming cabaret, lounge, dance hall or
discotheque use ceases for any reason for a continuous period of more
than six months, then any future use of such building shall be in
conformance with the standards specified by this chapter and the district
in which said use is located.
(3)
If there is noncompliance with the conditions of the
license to operate a cabaret, lounge, dance hall or discotheque use,
the right of a nonconforming use to reapply for said license shall
be permanently revoked.
