[HISTORY: Adopted by the Board of Trustees of the Village of Elmsford 9-27-2004 by L.L. No. 9-2004. Amendments noted where applicable.]
The Board of Trustees of the Village of Elmsford hereby finds that adult-oriented businesses have been expanding into suburban municipalities and into urban areas that have not previously been home to such businesses. The Board of Trustees of the Village of Elmsford further finds that certain adult-oriented business activities, by their nature, have serious objectionable operational characteristics which can lead to a significant impact on the surrounding community. The Board of Trustees of the Village of Elmsford hereby further finds that adult-oriented businesses tend to concentrate or cluster within neighborhoods and, where such adult-oriented businesses are highly concentrated, they have been found to have negative secondary effects, including negative effects on commercial activity, incidence of crime, property values, community character and quality of life. The Board of Trustees of the Village of Elmsford further finds that the unrestrained proliferation of such businesses is inconsistent with existing development and future plans for the Village of Elmsford in that they often result in influences on the community which increase the crime rate and undermine the economic, moral, and social welfare of the community. Further, the location of these uses may be in areas where youth may regularly assemble, and the general atmosphere encompassing their operation is of great concern to the Village of Elmsford. The purpose of this chapter is to prevent the unrestricted proliferation of such businesses and to ensure that the effects of such businesses will not adversely affect the health, safety and economic well-being of the community by enacting criteria for the establishment of adult entertainment uses in the Village.
As used in this chapter, the following terms shall have the meanings indicated:
- ADULT BOOKSTORE
- A person, establishment or business, whether retail or wholesale, having 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 at least 20% of the total area devoted to display of such materials listed herein.
- ADULT ENTERTAINMENT CABARET
- A public or private establishment which presents topless dancers, bottomless dancers, strippers, male or female impersonators or exotic dancers, or other similar entertainments.
- ADULT ENTERTAINMENT ESTABLISHMENT
- Any building, structure or part thereof, whether permanent or temporary, in which an adult entertainment use is permitted in accordance with this chapter.
- ADULT ENTERTAINMENT USE
- 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.
- ADULT MOTEL
- 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.
- ADULT MOTION-PICTURE THEATER
- 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.
- ADULT NOVELTY BUSINESS
- 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.
- ADULT-ORIENTED BUSINESS
- A public or private establishment in which 20% 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.
- ADULT PERSONAL SERVICE ESTABLISHMENT
- 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:
- A. 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;
- B. Electrolysis treatment by a licensed operator of electrolysis equipment;
- C. Hospitals, nursing homes, medical clinics or medical offices;
- D. Barbershops or beauty parlors which offer massage to the scalp, the face, the neck or shoulders only;
- ADULT VIDEO STORE
- 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.
- Any person, firm, association, partnership, corporation, or other entity for profit.
- Any and all persons, including independent contractors, who work in or at or render any services directly related to the operation of an adult-oriented business establishment.
- 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 treating the external parts of the human body by rubbing, stroking, kneading, tapping or vibrating with the hand or any instrument.
- Any person insufficiently clothed in any manner so that any region of the genitals, pubic region, buttocks or that portion of the female breast referred to as the areola or nipple is not entirely covered with a fully opaque covering.
- Any person, or any proprietor, shareholder, general partner, LLC member or limited partner who holds 20% or more of the shares or partnership interest or ownership interest of any business, which is operating, conducting, owning or maintaining an adult business establishment.
- PEEP SHOW
- 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.
- Any individual, firm, partnership, corporation, club, association, or legal representative, acting individually or jointly.
- SEXUAL ACTIVITIES
- Any act of masturbation, fellatio, sadomasochism, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be female, breast.
- SPECIFIED ANATOMICAL. AREAS
- Any uncovered or exposed human genitals, pubic region or pubic hair; or buttock; or female breast or breasts below a point above the top of the areola or nipple; or any combination of the foregoing; or human male genitals in a discernibly erect state, even if completely and opaquely covered.
No business or person shall construct, establish or conduct any adult entertainment use within the Village of Elmsford unless he, she or it has applied for and obtained a certificate of occupancy, as provided for in this chapter and in this Village Code, from the Building Inspector. To receive a certificate of occupancy, the applicant must satisfy the additional following criteria:
No more than one adult entertainment use shall be located on any lot.
No adult entertainment use shall be established or permitted in any building of which any part is used for residential purposes.
No residential use shall be established in a building of which any part is used as an adult entertainment use.
No adult entertainment use shall be established closer than 500 feet to any lot line of any other adult entertainment use.
No adult entertainment use shall be established closer than 300 feet to the boundary line of any Residence District, R-0 through R-3, inclusive, and RCD.
No adult entertainment use shall be established closer than 200 feet to the lot line of any nonconforming residential use.
No adult entertainment use shall be established closer than 300 feet to the lot line of any church, community center, funeral home, school, day-care center, hospital, alcoholism center or drug treatment center, counseling or psychiatric treatment facility, or public park.
The applicant shall obtain site plan approval from the Planning Board.
The applicant shall meet all other regulations of the Village of Elmsford, including but not limited to district lot and bulk regulations, parking regulations and signage requirements.
No adult entertainment establishment other than an adult entertainment cabaret duly approved in accordance with this chapter shall allow, feature or exhibit employees or entertainers who are nude or partially nude where live specific anatomical areas are exposed to patrons.
No adult entertainment establishment shall include or feature live entertainment involving the touching of specific anatomical areas or in any way displaying, featuring, performing or simulating live specific sexual activities.
No adult entertainment use shall be conducted in a manner that permits the observation of any material or novelties depicting, describing, or relating to specified sexual activities or specific anatomical areas from any public way or from any property not registered as an adult entertainment establishment. This requirement shall also apply to any display, decoration, sign, show window or other opening.
Requirements of the operator.
Every act or omission by an employee constituting a violation of the provisions of this chapter shall be deemed the act or omission of the operator if such act or omission occurs either with the authorization, knowledge or approval of the operator, or as a result of the operator's negligent failure to supervise the employee's conduct, and the operator shall be punishable for such act or omission in the same manner as if the operator committed the act or caused the omission.
An operator of an adult entertainment establishment shall be responsible for the conduct of all employees while on the premises of such establishment, and any act or omission of any employee constituting a violation of the provisions of this chapter shall be deemed the act or omission of the operator for purposes of determining whether the operator shall be subject to the penalties imposed by this chapter.
No operator or employee or an adult entertainment establishment shall allow or permit any minor or intoxicated person to loiter in any part of such establishment, including parking lots immediately adjacent to such establishment used by patrons of such establishment.
Every adult entertainment establishment in the Village shall be well lit at all times in the interior and shall be physically arranged in such a manner as to prohibit booths, cubicles or stalls. All portions of the premises shall be readily accessible and open and well lit at all times in their entirety by overhead lighting fixtures of sufficient intensity to illuminate every place to which a patron is permitted access, at not less than one footcandle as measured from the floor level. It shall be the duty of the operator and its employees to ensure that the illumination described above is maintained at all times of hours of operation.
The operator shall insure compliance of the adult entertainment establishment and its patrons with the provisions of this chapter.
Inspections. An operator or an applicant for a license to operate an adult entertainment establishment shall permit representatives of the Police Department, Health Department, Fire Department, Building Department and/or any other inspector as defined above to inspect the premises of an adult-oriented business for the purpose of ensuring compliance with the law, at all reasonable times.
Any person desiring to procure a certificate of occupancy in accordance with this chapter for an adult entertainment cabaret shall make application therefor to the Building Inspector upon a form to be furnished by the Building Inspector. Such form shall contain, but shall not be limited to, the following information:
Name, address, date of birth and social security number or federal employer identification number of applicant.
Whether applicant is an individual, partnership, corporation or other association.
If a partnership, the names, addresses, dates of birth and social security numbers of all persons having an interest in the partnership.
If a corporation, the names, addresses, dates of birth and social security numbers of all officers, directors and managers.
If a corporation, the name of each stockholder owning 10% or more of the total outstanding shares of any class of stock. There shall also be given the number of shares held by the stockholder and his percentage of the total outstanding shares of stock.
Name, address, date of birth and social security number of each and every employee and manager of the premises.
The applicant's place of previous employment during the past five years.
Whether any person mentioned in Subsection A(1), (3), (4), (5) and (6) has been engaged as an operator or manager of an adult entertainment cabaret or similar business within the last five years and, if so, the name of such business, its address and the length of time such person operated or managed such business.
Whether any person mentioned in Subsection A(1), (3), (4), (5) and (6) has ever had a previous adult entertainment cabaret certificate of occupancy or similar municipal approval revoked or suspended and whether such person has been convicted of operating or managing such a business without such municipal approval and, if so, the full particulars.
The name of the adult entertainment cabaret under which the applicant will operate and the location.
Whether the premises upon which the proposed adult entertainment cabaret is to be conducted comply with the requirements of the New York State Uniform Fire Prevention and Building Construction Code and any amendments thereto and those relating to health and sanitation.
Whether the premises complies with the requirements of the local law of the Village of Elmsford relating to and regulating adult entertainment cabarets, providing for the procurement of a certificate of occupancy, regulating the conduct of persons therein, defining offenses and providing penalties for the violation thereof.
The nature of the entertainment to be produced.
The area of the floor space to be used by the public, the maximum number of rooms to be occupied by the public, the maximum number of tables in each occupied room and the number of entrances and exits.
Whether any part of the premises to be used will be used for a motel and, if so, the full particulars.
Affixed to the application shall be two copies of a scale drawing showing the dimensions of all occupied rooms; the locations of all tables; the width of aisles between tables; the width of aisles between tables and walls, posts, poles, bars, stages and other fixtures, appurtenances and appliances; and the location of all exits, exit signs and emergency lighting, as shown on a plan or drawing prepared by a licensed engineer or architect to the satisfaction of the Building Inspector.
The County Health Department permit number and any conditions of such approved permit.
Whether adult entertainment cabaret activities shall be conducted every day of the week or be limited to Friday, Saturday and Sunday or be limited to some other specified day or days of the week.
In addition to the foregoing, the applicant shall supply any and all reasonably relevant information concerning its application to operate an adult entertainment cabaret when requested to do so by authorized officials of the Village.
The applicant shall sign the following affidavit in connection with all applications for certificate of occupancy for an adult entertainment cabaret:
Said application shall be signed and duly verified by the applicant before an officer authorized to administer oaths. No such applications shall be granted to conduct such adult entertainment cabaret on premises which do not conform to the requirements of this chapter and all laws and regulations of the State of New York and all ordinances and regulations of the Village of Elmsford.
Each applicant shall submit two sets of fingerprints to the Village of Elmsford Police Department. Said fingerprints shall be taken by the Village of Elmsford Police Department, and the applicant shall pay a fee as set forth by resolution of the Board of Trustees in the Master Fee Schedule, which may be amended from time to time. If the applicant is a company or corporation. then two full sets of fingerprints of the principal officer of said company or corporation shall be provided in accordance with this subsection. The Police Department shall forward the applicant's fingerprints to the New York State Division of Criminal Justice Services (DCJS) and shall be responsible for reviewing criminal history record information disseminated by the DCJS. A certified check or money order, in the amount specified by and made payable to the DCJS to cover the cost of processing fingerprints, shall accompany the application.
Such application shall be reviewed by the Police Department and the Building Inspector for a full investigation as to the truth of the statements contained therein. The Police Department and Building Inspector shall, within 30 days after any application has been referred to them, furnish an opinion containing the result of their investigation.
The Building Inspector shall not issue a certificate of occupancy for an adult entertainment cabaret and shall revoke any issued certificate of occupancy for an adult entertainment cabaret if:
The person holding such certificate of occupancy, or any of his or her servants, agents or employees, is in violation of any of, or fails to comply with, the provisions of this chapter or the laws and regulations of the State of New York and the Village of Elmsford, or if the person holding such certificate of occupancy is convicted of any crime or offense involving moral turpitude, or if any of his or her servants, agents or employees is convicted of any crime or offense involving moral turpitude committed on the premises on which the adult entertainment cabaret is conducted.
The report of the Building Inspector, based on inspection reports filed in his office, shall show that within the prior twenty-four-month period, two or more of any of the following acts or omissions have taken place at the adult entertainment cabaret:
The report of the Chief of Police, based on police reports filed in his office, shall show that within the prior twenty-four-month period, one or more of any of the following acts or omissions have taken place at the adult entertainment cabaret:
The report of the Chief of Police, based on police reports filed in his office, shall show that any of the following have taken place in the last 36 months, arising out of the operation or maintenance of the adult entertainment cabaret:
A fire resulting in death or serious physical injury as defined in Penal Law § 10.00 in which one or more New York State Fire Prevention and Building Code violations existed on the premises at the time of the fire;
Death or serious physical injury as defined in Penal Law § 10.00 occurring on the premises or arising out of an incident or incidents on the premises and which took place in close proximity in time and place to the premises;
A riot as defined in Penal Law § 240.05 has taken place upon the premises or arising out of an incident on the premises and which took place in close proximity in time and place to the premises.
For an adult entertainment cabaret, the applicant or anyone owning an interest in the adult entertainment cabaret has, within three years preceding the date of such application, been convicted of violating any laws or ordinances relating to the sale of intoxicating liquor.
The premises does not comply with the requirements of this chapter and all laws and regulations of the State of New York and all ordinances and regulations of the Village of Elmsford.
Prior to the denial or revocation of any certificate of occupancy for an adult entertainment cabaret, the Building Inspector shall, upon at least three days' notice, cause to be mailed to the adult entertainment cabaret operator, at the address at which his or her adult entertainment cabaret is being conducted, notice stating the time and place of a hearing concerning the denial or revocation of the certificate of occupancy. The adult entertainment cabaret operator shall be given an opportunity to be heard and introduce the testimony of witnesses. If, after such hearing, the Building inspector finds from a preponderance of the evidence that none of the foregoing facts in Subsection A herein have been established, he shall issue the certificate of occupancy or not revoke it; provided, however, that whenever any person to whom a certificate of occupancy has been granted or who has applied for a certificate of occupancy under the provisions of this chapter shall be convicted of violating any of the provisions thereof, such convictions shall be prime facia evidence of facts sufficient to warrant denial or revocation of the certificate of occupancy. If, after such hearing, the Building Inspector shall find that the foregoing facts in Subsection A herein have been established by the evidence, then the certificate of occupancy shall be denied or revoked. Upon the denial or revocation of a certificate of occupancy for the premises hereunder, it shall be unlawful to use or occupy any portion of said premises as an adult entertainment cabaret.
No person owning, managing or operating or conducting an adult entertainment cabaret shall allow or permit himself or herself or any person employed by him in the capacity of an entertainer or servant or otherwise to approach or accost any guest, to dance with or have refreshments with such guest as aforesaid during the hours of his or her employment, nor shall any person in the premises of an adult entertainment cabaret approach any person who is an employee of the owner or manager or operator in the capacity of an entertainer or servant or otherwise during the hours of his or her employment, for the purpose of inducing any such person so employed to dance with or have refreshments with such guest.
It shall be unlawful for any adult entertainment cabaret to have, permit or maintain any boxes or booths closed by any door, screen, curtain or other device. It shall be unlawful for any adult entertainment cabaret to have, permit or maintain any box or booth with an entrance thereto in any side other than the side which faces the center of the main room.
It shall be unlawful for the owner, proprietor, manager or person in charge of any adult entertainment cabaret to employ as an entertainer in such place any person who is not at least 18 years of age or who has been convicted of any crime involving moral turpitude.
It shall be unlawful for the owner, proprietor, manager or person in charge of any adult entertainment cabaret to refuse admission to any peace officer or building or fire inspector charged with the duty of enforcing this chapter during business hours. Said officers shall have free access during such times to any adult entertainment cabarets.
It shall be unlawful for the owner, proprietor, manager or person in charge of any adult entertainment cabaret or for any employee of said place to harbor, admit, receive or permit to be or remain in and about any such place any minor under the age of 18 years, any prostitute, any drunken person or any person whose conduct tends in any way to affect the peace and tranquility of the neighborhood.
It shall be unlawful for any minor under the age of 18 years, any prostitute, any drunken person or any person whose conduct while present in said place affects the peace and tranquility of the neighborhood to be or remain in or about any adult entertainment cabaret after being notified by the management or a peace officer to leave the premises.
It shall be unlawful for any person to make any misrepresentation or false statement as to his or her own age, or that of any person, for the purpose of obtaining the admission, to any adult entertainment cabaret, of such person as to whose age such statement is made.
It shall be unlawful for the owner, proprietor, manager or person in charge of any adult entertainment cabaret 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 Elmsford or which otherwise violates the Noise Ordinance of the Village of Elmsford.
It shall be unlawful to operate an adult entertainment cabaret unless the premises is soundproofed or provision is made so that no amplification or excess noise is audible beyond the property lines of the parcel upon which the adult entertainment cabaret is situated.
The certificate of occupancy issued hereunder shall be kept posted at the main entrance of each adult entertainment cabaret.
Any adult entertainment cabaret serving alcoholic beverages shall not be opened except during hours as may be permitted by the State Liquor Authority and/or a local board of such authority.
Any adult entertainment cabaret not serving alcoholic beverages shall not operate as a cabaret during the day between the hours of 1:00 a.m. and 12:00 noon. If any adult entertainment cabaret is found open between the prohibited hours, the person owning, managing, operating or conducting the adult entertainment cabaret shall be held responsible for a violation of the provisions of this chapter in relation to such hours.
It shall be unlawful for any adult entertainment cabaret to permit outside doors to be open at any time during the hours of operation except:
Each adult entertainment cabaret shall maintain adequate security during hours of operation to insure the public peace and order. The provisions of this section shall require each adult entertainment cabaret to employ not less than one uniformed security guard per every 100 or fewer patrons on the premises. For any number of patrons over 100, each adult entertainment cabaret shall employ not less than two uniformed security guards. All uniform security guards shall be employed in accordance with the New York State Security Guard Act of 1992, as same may be amended from time to time.
All parking for patrons or employees of any adult entertainment use shall conform to the requirements of any applicable provisions of the Municipal Code of the Village of Elmsford. The owner, proprietor, manager or person in charge of any adult entertainment use shall be responsible for compliance with this section. Failure to comply with this section shall constitute a violation of this section.
During the period that an adult entertainment use is occupied by patrons or guests, it shall be illuminated by sufficient natural or artificial light to permit safe ingress and egress to and from the premises.
Before the issuance of a certificate of occupancy for an adult entertainment use, the Building Inspector shall determine the maximum number of patrons permitted upon the premises at one time, as set forth in the New York State Uniform Fire Prevention and Building Code in order to prevent overcrowding and the resultant hazards to health and safety. Such maximum number so determined shall be stated on said certificate of occupancy, and any premises containing a greater number shall be in violation of this chapter.
All stockholders, officers, directors, agents, employees and concessionaires of an adult entertainment use shall at all times strictly and promptly conform to and comply with all laws, provisions, rules, regulations and requirements of all federal, state and municipal authorities and agencies having jurisdiction, with respect to the premises and the conduct and operation of the adult entertainment use therein and thereat, now in force or hereafter adopted.
Any business or person currently operating an adult entertainment use within the Village of Elmsford that fails to conform to the requirements of this chapter shall cease such use in accordance with the following amortization schedule:
The term "capital investment," as used above, shall mean the initial outlay of money or other consideration by the owner or operator of the use to establish the business as of the date of the enactment of these regulations, exclusive of the fair market value of the structure and land in which the use is located.
The owner of each such use shall specify the amount of its capital investment upon registering with the Building Inspector and shall provide such documentation as the Building Inspector shall require to establish such amount.
Any person committing an offense against any provision of this chapter shall be guilty of a misdemeanor punishable by a minimum fine of $350 and a maximum fine of $1,000, imprisonment for a period not to exceed one year, or both such fine and imprisonment. The continuation of an offense against the provisions of this chapter shall constitute, for each day the offense is continued, a separate and distinct offense hereunder.
The provisions of this chapter may be enforced by the Village of Elmsford Building Department and/or Police Department.