[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:
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.
A public or private establishment which presents topless dancers,
bottomless dancers, strippers, male or female impersonators or exotic dancers,
or other similar entertainments.
Any building, structure or part thereof, whether permanent or temporary,
in which an adult entertainment use is permitted in accordance with this chapter.
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.
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.
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.
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.
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.
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.
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.
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:
A.
No more than one adult entertainment use shall be located
on any lot.
B.
No adult entertainment use shall be established or permitted
in any building of which any part is used for residential purposes.
C.
No residential use shall be established in a building
of which any part is used as an adult entertainment use.
D.
No adult entertainment use shall be established closer
than 500 feet to any lot line of any other adult entertainment use.
E.
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.
F.
No adult entertainment use shall be established closer
than 200 feet to the lot line of any nonconforming residential use.
G.
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.
H.
The applicant shall obtain site plan approval from the
Planning Board.
I.
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.
J.
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.
K.
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.
L.
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.
A.
Requirements of the operator.
(1)
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.
(2)
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.
(3)
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.
(4)
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.
(5)
The operator shall insure compliance of the adult entertainment
establishment and its patrons with the provisions of this chapter.
B.
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.
A.
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:
(1)
Name, address, date of birth and social security number
or federal employer identification number of applicant.
(2)
Whether applicant is an individual, partnership, corporation
or other association.
(3)
If a partnership, the names, addresses, dates of birth
and social security numbers of all persons having an interest in the partnership.
(4)
If a corporation, the names, addresses, dates of birth
and social security numbers of all officers, directors and managers.
(5)
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.
(6)
Name, address, date of birth and social security number
of each and every employee and manager of the premises.
(8)
The applicant's place of previous employment during
the past five years.
(9)
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.
(10)
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.
(13)
The name of the adult entertainment cabaret under which
the applicant will operate and the location.
(14)
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.
(15)
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.
(16)
The nature of the entertainment to be produced.
(17)
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.
(18)
Whether any part of the premises to be used will be used
for a motel and, if so, the full particulars.
(19)
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.
(20)
The County Health Department permit number and any conditions
of such approved permit.
(21)
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.
(22)
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.
(23)
The applicant shall sign the following affidavit in connection
with all applications for certificate of occupancy for an adult entertainment
cabaret:
State of New York)
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County of Westchester) SS:
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________________________, being duly sworn, deposes and says: I am the _________________________,
above-named applicant, and make this affidavit for the purpose of obtaining
from the Village of Elmsford a certificate of occupancy to operate an adult
entertainment cabaret as provided in the local law relating to and regulating
adult entertainment cabarets, regulating the conduct of persons therein, defining
offenses and providing penalties for the violation thereof. I have personal
knowledge of the matters stated in the foregoing application, and the statements
therein contained are true.
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Sworn to before me this
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__________ day of ___________________, 20_____
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Notary Public: Westchester County
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B.
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.
C.
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.
D.
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.
A.
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:
(2)
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.
(3)
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:
(4)
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:
(5)
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)
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;
(b)
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;
(c)
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.
(6)
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.
(7)
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.
B.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.[1]
I.
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.
J.
The certificate of occupancy issued hereunder shall be
kept posted at the main entrance of each adult entertainment cabaret.
K.
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.
L.
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.
M.
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:
N.
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.
A.
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:
Amount of Capital Investment as
of the Effective Date of this Chapter
|
Date Before Which
Use Shall Terminate
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$0 to 25,000
|
December 1, 2005
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$25,001 to 50,000
|
December 1, 2006
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$50,001 to 75,000
|
December 1, 2007
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$75,001 to 100,000
|
December 1, 2008
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$100,001 or more
|
December 1, 2009
|
B.
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.
C.
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.