[HISTORY: Adopted by the Rochester City Council
9-19-2000 by Ord. No. 2000-300. Amendments noted where applicable.]
A.
Purpose. It is the purpose of this chapter to regulate
sexually oriented businesses in order to promote the health, safety,
morals and general welfare of the citizens of the City. The provisions
of this chapter have neither the purpose nor effect of imposing a
limitation or restriction on the content of any speech, including
sexually oriented speech. Similarly, it is not the intent nor effect
of this chapter to restrict or deny access by adults to speech protected
by the First Amendment and New York Constitution, or to deny access
by the distributors and exhibitors of sexually oriented speech to
their intended market. Neither is it the intent nor effect of this
chapter to condone or legitimize the distribution of obscene material.
B.
Findings. The Mayor and members of the City Council
of the City of Rochester are all residents of the City and represent
one of the four districts in the City or the City at-large. The Mayor
and members of the Council are familiar with the City, the locations
of sexually oriented businesses in the City, and the issues raised
by those types of businesses in the City and throughout the country.
The Mayor and Council are also cognizant that AIDS, hepatitis and
other sexually transmitted diseases are serious health concerns in
the local community. Based on the Mayor and Council's local knowledge
and evidence concerning the impacts or "secondary effects" of adult
uses on the community, as presented in hearings and in reports made
available to the Council. in cases and proceedings involving businesses
in the City, on findings involving the effects of sexually oriented
businesses and public nudity incorporated in judicial decisions such
as, but not limited to, Town of Islip v. Caviglia, 73 N.Y.2d 544 (1989); Stringfellow's of New York, Ltd.
v. City of New York, 91 N.Y.2d 382 (1998); City of Erie v. Pap's A.M., 146 L. Ed.2d 265 (2000); City of Renton v. Playtime Theatres. Inc., 475 U.S. 41
(1986); Young v. American Mini Theatres, 426
U.S. 50 (1976); and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); and on studies in other communities including,
but not limited to, Kansas City, Missouri; Newport News, Virginia;
St. Paul, Minnesota; Whittier, California; Phoenix, Arizona; Indianapolis,
Indiana; Austin, Texas; Seattle, Washington and Tucson, Arizona; and
from manuals and books such as "An Educational Manual on How to Regulate
the Location of Adult Businesses Through Zoning," developed by the
Massachusetts Chapter of American Planning Association and the Massachusetts
City Solicitors and Town Counsel Association; 'Location of Adult Businesses,
2000 Edition,"by Jules B. Gerard (West Group 1999); "Protecting Communities
from Sexually Oriented Businesses," by Len L. Munsil (Southwest Legal
Press, Inc. 1996); and also on findings from the Report of the Attorney
General's Working Group on the Regulation of Sexually Oriented Businesses,
(June 6, 1989, State of Minnesota), the Mayor and Council find:
(1)
Sexually oriented businesses lend themselves to ancillary
unlawful and unhealthy activities that are not properly controlled
by the operators of the establishments. Further, there are not adequate
legal provisions making the owners of these establishments responsible
for the activities that occur on their premises.
(2)
Employees of sexually oriented businesses engage in
or may be requested to engage in sexual behavior as a result of the
type of employment in which they are engaged.
(3)
Sexual acts, including masturbation, occur at sexually
oriented businesses, especially those which provide private or semiprivate
booths or cubicles for viewing films, videos or live sex shows.
(4)
The "entertainment" offered at sexually oriented businesses
often encourages sexual activities, which create unhealthy conditions.
(5)
Persons frequent certain sexually oriented businesses
for the purpose of engaging in sexual activities within the premises
of such sexually oriented businesses.
(6)
Communicable diseases may be spread by sexual activities,
including, but not limited to, human immunodeficiency virus (HIV),
AIDS, hepatitis B, and venereal diseases.
(7)
AIDS, HIV, hepatitis B and venereal diseases are serious
health concerns in the local community.
(8)
Sanitary conditions in some sexually oriented businesses
are unhealthy, in part, because the activities conducted there are
unhealthy, and, in part, because of the unregulated nature of the
activities and the failure of the owners and the operators of the
facilities to regulate those activities and maintain those facilities.
(9)
Numerous studies and reports have determined that
semen is found in certain areas of sexually oriented businesses, particularly
where persons view "adult" oriented films or "adult" entertainment,
and similar findings have been made in sexually oriented businesses
in the City. In addition, an adult theater in the City has been the
setting for sexual acts, and live performers in sexually oriented
businesses in the City have performed acts of masturbation in front
of customers for pay and have encouraged the customers to do the same,
and have performed "lap dances" for customers and/or encouraged touching
of or by customers while they were in various stages of undress.
(10)
Sexually oriented businesses have operational characteristics
which should be reasonably regulated in order to protect the substantial
governmental concerns raised by the various findings herein.
(11)
A licensing procedure is an appropriate mechanism
to place the burden of reasonable regulation on the owners and the
operators of the sexually oriented businesses. Further, such a licensing
procedure will place an incentive on the operators to see that the
sexually oriented business is run in a manner consistent with the
health, safety and welfare of its patrons and employees, as well as
the citizens of the City. It is appropriate to require reasonable
assurances that the licensee is the actual operator of the sexually
oriented business, and fully in possession and control of the premises
and activities occurring therein.
(12)
Requiring licensees of sexually oriented businesses
to keep information regarding current employees will help reduce the
incidence of certain types of behavior by facilitating the identification
of potential witnesses or participants and by preventing minors from
working in such establishments.
(13)
The disclosure of certain information by those persons
ultimately responsible for the day-to-day operation and maintenance
of the sexually oriented business, where such information is substantially
related to the significant governmental interest in the operation
of such uses, will aid in assuring that the sexually oriented business
is operated appropriately.
(14)
It is desirable in the prevention of illegal activities
and the spread of communicable diseases to obtain a limited amount
of information regarding certain employees who may engage in the conduct
which this chapter is designed to prevent or who are likely to be
witnesses to such activity.
(15)
The fact that an applicant for an adult license has
been convicted of a sexually related crime leads to the rational assumption
that the applicant may engage in that conduct in sexually oriented
businesses in which sexual activities often occur.
(16)
The barring of such individuals from association with
adult uses for a period of years serves as a deterrent to and prevents
conduct which leads to unwanted sexual activities.
(17)
Regulations separating the performers who appear nude
or seminude in sexually oriented businesses from the patrons or customers
protect the performers, reduce the opportunity for illegal activities
between performers and patrons or customers and do not interfere with
the content of any performance.
(18)
Information from the Rochester Police Department shows
that acts of prostitution have frequently occurred in body rub parlors
in the City and that licensing provisions have not been effective
in controlling such activities, and the Council thus determines that
body rubs should only be conducted for compensation by certain licensed
professionals or athletic trainers.
(19)
The Council further determines that sexual encounter
centers, as defined herein, do not serve a legitimate purpose, offer
a location at which sexual activities and acts of prostitution can
readily occur, and provide a location at which sexually transmitted
diseases may be spread. The Council thus determines that sexual encounter
centers should be prohibited.
(20)
The Council further determines that adult hotels or
motels, as defined herein, offer a location at which sexual activities
and acts of prostitution can readily occur due to the offering of
short-term or hourly rooms with beds, and provide a location at which
sexually transmitted diseases may be spread. The Council thus determines
that adult hotels or motels should be prohibited.
(21)
The general welfare, health, morals and safety of
the citizens of the City will be promoted by the enactment of this
chapter.
As used in this chapter, the following terms
shall have the meanings indicated:
A business enterprise which offers or maintains one or more
adult video viewing booths.
A business enterprise which regularly features or offers,
to the public, customers or members, performances by persons who appear
nude or seminude or live performances that are characterized by their
emphasis on the exposure, depiction or description of specified anatomical
areas or the conduct or simulation of specified sexual activities.
A hotel, motel or similar business enterprise which offers
a sleeping room for rent for a period of time that is less than 10
hours or allows a tenant or occupant of a sleeping room to subrent
the room for a period of time that is less than 10 hours.
A business enterprise which regularly features or offers
to the public the presentation of motion-picture films, movies or
sound recordings which are characterized by their emphasis on the
description or depiction of specified anatomical areas or specified
sexual activities and which are presented to a common audience of
more than five persons in an enclosed common area or are presented
in a common area of more that 150 square feet.
A business enterprise which meets any of the following tests:
Offers for sale sexually oriented toys and novelties,
except a business enterprise which devotes less than 10% of its stock
in trade and sales and display area to sexually oriented materials,
with all sexually oriented toys and novelties separated from other
sales and display areas by an opaque wall at least eight feet in height
with a management-controlled system of access to ensure that only
persons over the age of 18 years are allowed to enter the area.
Devotes more than 10% of its stock in trade
or sales and display area to sexually oriented materials without having
all sexually oriented materials separated from other sales and display
areas by an opaque wall at least eight feet in height with a management-controlled
system of access to ensure that only persons over the age of 18 years
are allowed to enter the area.
Devotes more than 40% of its stock in trade
or sales and display area to sexually oriented materials.
Offers sexually oriented materials and advertises
or holds itself out in signage visible from the public right of way
as "X," "adult," "sex" or otherwise as a sexually oriented business.
A business enterprise which offers for sale or rental sexually
oriented materials, and which devotes at least 10% and not more than
40% of its stock in trade or sales and display area to sexually oriented
materials, provided that:
All sexually oriented materials are separated
from other sales and display areas by an opaque wall at least eight
feet in height with a management-controlled system of access to ensure
that only persons over the age of 18 years are allowed to enter the
area; and
The business enterprise does not advertise or
hold itself out in signage visible from the public right-of-way as
"X," "adult," "sex" or otherwise as a sexually oriented business.
Coin- or slug-operated, or electronically or mechanically
controlled, still- or motion-picture machines, projectors or other
image-producing devices which present visual or audio material of
any kind which is characterized by its emphasis on the description
or depiction of specified anatomical areas or specified sexual activities
and which are designed to be viewed by five or fewer persons per machine
at any one time or are located in a room or booth of less than 150
square feet. No part of this definition shall be construed to permit
more than one person to occupy an adult video viewing booth at any
time.
A business enterprise where body rub services are provided
in order to induce relaxation or for other purposes, and which is
not a massage establishment.
Any business or place where, for consideration, goods, merchandise,
services or entertainment are offered.
The payment of money or the exchange of any item or services
of value for:
The right to enter the business premises, or
any portion thereof;
The right to remain on the business premises,
or any portion thereof;
The right to purchase any item permitting the
right to enter, or remain on, the business premises, or any portion
thereof.
The right to a membership permitting the right
to enter, or remain on, the business premises, or any portion thereof;
or
The right to obtain any services, buy or rent
any items or view any entertainment in a sexually oriented business.
Any person present in a sexually oriented business when open
for business, except an employee of the business or a person making
deliveries or performing maintenance or repairs to the premises.
Any person who works or performs in or at, or renders any
services directly related to the operation of, a sexually oriented
business, whether such person is denominated an employee, independent
contractor, agent or otherwise, and whether or not said person is
paid a salary, wage or other compensation by the operator of the business.
A person in whose name a license to operate a sexually oriented
business has been issued, as well as individuals listed as applicants
on the application for a license; and in the case of a manager or
employee, a person in whose name a sexually oriented business manager
license or a sexually oriented business employee license has been
issued authorizing such employment.
Any person who manages, directs, administers or is in charge
of the affairs or conduct of any activity occurring at a sexually
oriented business, either in conjunction with a licensee or in the
absence of the licensee.
A business enterprise offering massage conducted by persons
engaged in the practice of medicine, nursing, osteopathy, physiotherapy,
chiropractic, podiatry or massage therapy for which they are licensed
by the State of New York, or persons under the direct supervision
and control of such licensed persons.
The showing of the human male or female genitals, pubic area,
vulva, anus, anal cleft or cleavage with less than a fully opaque
covering, or the showing of the covered male genitals in a discernibly
turgid state.
A licensee or any person operating, conducting or maintaining
a sexually oriented business.
An individual, proprietorship, partnership, corporation,
association or other legal entity.
The building in which a sexually oriented business is conducted
as well as its surrounding yard and parking area and any additional
parking areas required for compliance with the Zoning Code.[1]
[Amended 11-19-2002 by Ord. No. 2002-354]
The showing of the female breast with less than a full opaque
covering of any portion thereof below the top of the areola, or the
showing of the male or female buttocks. This definition shall include
the entire lower portion of the human female breast, but shall not
include any portion of the cleavage of the human female breast, exhibited
by a dress, blouse, skirt, leotard, bathing suit or other wearing
apparel, provided that the areola is not exposed in whole or in part.
A business enterprise in which a person may view, or may
participate in, specified sexual activities.
Books, magazines, pamphlets, pictures, drawings, photographs,
video tapes, digital video disks, motion-picture films or sound recordings,
or printed, visual and audio material of any kind, which are characterized
by their emphasis on the description or depiction of specified anatomical
areas or specified sexual activities.
An adult retail store, adult arcade, adult cabaret or adult movie theater and, except for purposes of business and manager licensing, a limited adult retail store. For purposes of the definitions of "employee" and "manager" and the regulations found in §§ 98-21 and 98-22, a sexually oriented business shall also include any business enterprise where activities prohibited in §§ 98-21 and 98-22 are occurring, or a business enterprise which offers at any time to the public, customers or members, performances by persons who appear nude or seminude or live performances that are characterized by their emphasis on the exposure, depiction or description of specified anatomical areas or the conduct or simulation of specified sexual activities, whether such business is licensed or unlicensed and whether such activities occur regularly or on one occasion only.
[Amended 11-19-2002 by Ord. No. 2002-353]
All sexually oriented toys and novelties and sexually oriented
books and videos.
Instruments, devices or paraphernalia either designed as
representations of human genital organs or female breasts, or designed
or marketed primarily for use to stimulate human genital organs, except
medical devices approved by the Food and Drug Administration.
Any showing of the human male or female genitals, pubic area
or buttocks with less than a full opaque covering, or the showing
of the female breast with less than a full opaque covering of any
portion thereof below the top of the nipple, or the depiction of covered
male genitals in a discernibly turgid state.
Any of the following offenses, as defined in the New York
State Penal Law, or any similar offenses under the criminal or penal
code of other states or countries:
Prostitution offenses; obscenity and related
offenses; sexual performance by a child; possession or distribution
of child pornography; offenses against public sensibilities; sex offenses;
unlawfully dealing with a child;
[Amended 12-18-2001 by Ord. No. 2001-421[2]]
For which:
Less than two years have elapsed since the date
of conviction or the date of release from confinement imposed for
the conviction, whichever is the later date, if the conviction is
of a misdemeanor offense;
Less than five years have elapsed since the
date of conviction or the date of release from confinement for the
conviction, whichever is the later date, if the conviction is of a
felony offense; or
Less than five years have elapsed since the
date of the last conviction or the date of release from confinement
for the last conviction, whichever is the later date, if the convictions
are of two or more misdemeanor offenses or combination of misdemeanor
offenses occurring within any two-year period.
The fact that a conviction is being appealed
shall have no effect on the disqualification of the applicant.
Acts of masturbation, sexual intercourse, oral or anal copulation;
fondling of another's genitals, pubic area, buttocks or female breasts,
whether clothed or unclothed; human male or female genitals when in
a state of sexual stimulation or arousal; or excretory functions or
sexual acts with animals.
[Amended 12-18-2001 by Ord. No. 2001-421[3]]
Includes any of the following:
The sale, lease, or sublease of the business.
The transfer of securities which constitute
a controlling interest in the business, whether by sale, exchange
or similar means.
The establishment of a trust, gift or other
similar legal device which transfers the ownership or control of the
business, except for transfer by bequest or other operation of law
upon the death of the person possessing the ownership or control.
B.
A sexually oriented business license shall issue for
only one classification. However, a limited adult retail store or
adult retail store which offered or maintained on November 11, 1999,
one or more adult video viewing booths and has continued to offer
or maintain any such adult video viewing booths through the effective
date of this chapter may still offer the same number of booths which
have been so continued and may be issued an adult arcade license for
such booths, which for such an adult retail store shall not be considered
an additional classification. Such rights shall terminate if the adult
video viewing booths are discontinued.
[Amended 11-19-2002 by Ord. No. 2002-353]
A.
It is unlawful:
(1)
For any person to operate a sexually oriented business
without a valid sexually oriented business license issued by the City
pursuant to this chapter.
(2)
For any person who operates or manages a sexually
oriented business to employ or allow to work or perform in a sexually
oriented business a person who appears nude or seminude who is not
licensed as required by this chapter.
[Amended 11-19-2002 by Ord. No. 2002-353]
(3)
For any person who operates a sexually oriented business
to allow the business to be open without a designated manager on duty,
which manager shall be licensed by the City if the business is an
adult cabaret. The name of the manager on duty at any time shall be
prominently displayed at or near the manager's station in the public
area of the sexually oriented business. For sexually oriented businesses
other than adult cabarets, the operator shall with reasonable diligence
investigate the background of its managers and shall certify to the
City, within five days of employment, that its managers are at least
18 years of age and have not been convicted of a specified criminal
activity; or within five days of employment, the operator shall provide
the Chief of Police or his or her designee with the name and date
of birth of its managers so that the Chief of Police or his or her
designee can investigate the background of the managers. No person
shall serve as a manager of a sexually oriented business unless the
person is at least 18 years of age and has not been convicted of a
specified criminal activity.
[Amended 11-19-2002 by Ord. No. 2002-353; 9-19-2006 by Ord. No. 2006-293]
(4)
For any person to act as a manager of an adult cabaret
without having secured a sexually oriented business manager license
pursuant to this chapter.
[Amended 11-19-2002 by Ord. No. 2002-353]
(5)
For any employee to appear nude or seminude at a sexually
oriented business without having secured a sexually oriented business
employee license pursuant to this chapter.
(6)
For any person who operates an adult cabaret to employ
or allow to work in an adult cabaret a manager who is not licensed
as required by this chapter.
[Added 11-19-2002 by Ord. No. 2002-353]
B.
The requirement to obtain a sexually oriented business
employee license shall not apply to a person residing outside the
Rochester Standard Metropolitan Statistical Area who appears nude
or seminude at a sexually oriented business for a single engagement
in any year extending less that 10 consecutive days. Such person shall
supply to the licensee and manager of the sexually oriented business
his or her name, address, date of birth, and dates of engagement.
The licensee and manager shall maintain a record containing such information
which is secured in the premises of the sexually oriented business
so that it may be immediately retrieved and shown to a police officer
upon demand during all hours that the sexually oriented business is
open.
[Amended 9-19-2006 by Ord. No. 2006-293]
A.
An application for a sexually oriented business license
must be made to the City Clerk on a form provided by the City.
B.
All applicants must be qualified according to the
provisions of this chapter. The application may request and the applicant
shall provide such information as to enable the City to determine
whether the applicant meets the qualifications established in this
chapter.
C.
If a person who wishes to operate a sexually oriented
business is an individual, the person must sign the application for
a license as applicant. Each applicant must be qualified according
to the provisions of this chapter, and each applicant shall be considered
a licensee if a license is granted.
[Amended 12-18-2001 by Ord. No. 2001-421[1]]
[1]
Editor's Note: This ordinance provided that
it take effect 2-1-2002.
D.
The completed application for a sexually oriented
business license shall contain the following information and shall
be accompanied by the following documents:
(1)
If the applicant is:
(a)
An individual, the individual shall state his or her
legal name and any aliases and submit proof that he or she is at least
18 years of age.
[Amended 2-14-2006 by Ord. No. 2006-22]
(b)
A partnership, the partnership shall state its complete
name, and the names of all partners, whether the partnership is general
or limited, and a copy of the partnership agreement, if any.
(c)
A corporation, the corporation shall state its complete
name, the date of its incorporation, evidence that the corporation
is in good standing under the laws of its state of incorporation,
the names and capacity of all officers and directors, and the name
of the registered corporate agent and the address of the registered
office for service of process.
[Amended 12-18-2001 by Ord. No. 2001-421[2]]
[2]
Editor's Note: This ordinance provided that
it take effect 2-1-2002.
(2)
If the applicant intends to operate the sexually oriented
business under a name other than that of the applicant, he or she
must state the sexually oriented business's fictitious name and submit
copies of the registration documents.
(3)
Whether the applicant has been convicted of a specified
criminal activity as defined in this chapter, and, if so, the specified
criminal activity involved, and the date, place and jurisdiction of
each.
(4)
Whether the applicant has had a previous personal
or business license under this chapter or other similar sexually oriented
business chapters from another City or county denied, suspended or
revoked, including the name and location of any sexually oriented
business for which the permit was denied, suspended or revoked, as
well as the date of the denial, suspension or revocation, and whether
the applicant has been a partner in a partnership or an officer or
director of a corporation that is licensed under this chapter whose
license has previously been denied, suspended or revoked, including
the name and location of the sexually oriented business for which
the permit was denied, suspended or revoked as well as the date of
denial, suspension or revocation.
[Amended 12-18-2001 by Ord. No. 2001-421[3]]
[3]
Editor's Note: This ordinance provided that
it take effect 2-1-2002.
(5)
Whether the applicant holds any other personal or
business licenses under this chapter or other similar sexually oriented
business chapter from another City or county and the names and locations
of any such other licensed businesses.
(6)
The classification of license for which the applicant
is filing.
(7)
The location of the proposed sexually oriented business,
including a legal description of the property, street address, and
telephone number(s), if any.
A.
An application for a sexually oriented business manager
license or a sexually oriented business employee license must be made
to the City Clerk on a form provided by the City.
B.
All applicants must be qualified according to the
provisions of this chapter. The application may request and the applicant
shall provide such information as to enable the City to determine
whether the applicant meets the qualifications established in this
chapter.
C.
Before any applicant may be issued a sexually oriented
business manager license or a sexually oriented business employee
license, the applicant shall submit, on a form to be provided by the
City, the following information:
(1)
The applicant's name or any other name (including
"stage" names) or aliases used by the individual.
(3)
Height, weight, hair and eye color.
(4)
Present business address and telephone number.[2]
[2]
Editor's Note: Former Subsection C(4), requiring the applicant's present residence address and telephone number, was repealed 12-18-2001 by Ord. No. 2001-421, effective 2-1-2002. This ordinance also repealed former Subsection C(6), requiring driver's license information, and renumbered Subsection C(5) through (8) as C(4) through (6), respectively.
D.
Attached to the application form for a sexually oriented
business manager license or a sexually oriented business employee
license shall be the following:
(1)
Not fewer than four unmounted, unretouched colored
photographs of the applicant clearly showing the applicant's face,
taken within 30 days preceding the filing of the application. Each
photograph shall be two inches by three inches in size.
(2)
Whether the applicant has had a previous personal
or business license under this chapter or other similar sexually oriented
business chapters from another City or county denied, suspended or
revoked, including the name and location of any sexually oriented
business for which the permit was denied, suspended or revoked, as
well as the date of the denial, suspension or revocation, and whether
the applicant has been a partner in a partnership or an officer or
director of a corporation that is licensed under this chapter whose
license has previously been denied, suspended or revoked, including
the name and location of the sexually oriented business for which
the permit was denied, suspended or revoked as well as the date of
denial, suspension or revocation.
[Amended 12-18-2001 by Ord. No. 2001-421[4]]
[4]
Editor's Note: This ordinance provided that
it take effect 2-1-2002.
(3)
Whether the applicant holds any other personal or
business licenses under this chapter or other similar sexually oriented
business chapter from another City or county and the names and locations
of any such other licensed businesses.
(4)
A statement whether the applicant has been convicted
of a specified criminal activity as defined in this chapter and, if
so, the specified criminal activity involved, and the date, place
and jurisdiction of each.
[Amended 11-12-2019 by Ord. No. 2019-326]
A licensee holding a sexually oriented business license shall
not also be required to obtain a public entertainment center license,
limited entertainment center license or a dance license for the same
premises, but shall obtain any necessary amusement center and amusement
game licenses.
The Chief of Police shall be the issuing authority
for a sexually oriented business license, a sexually oriented business
manager license and a sexually oriented business employee license.
A.
Upon the filing of an application for a sexually oriented
business manager license or a sexually oriented business employee
license, the Chief of Police shall issue a temporary license to said
applicant unless it can be immediately determined that the applicant
does not meet one or more of the requirements that would justify a
denial.
B.
The application process shall be completed within
30 days from the date the completed application for a sexually oriented
business manager license or a sexually oriented business employee
license is filed. After the investigation, the Chief of Police shall
issue a license, unless it is determined that one or more of the following
is true:
(1)
The applicant has failed to provide information reasonably
necessary for issuance of the license or has falsely answered a question
or request for information on the application form.
(2)
The applicant is under the age of 18 years.
(3)
The applicant has been convicted of a specified criminal
activity.
(4)
The license is to be used for employment in a business
prohibited by local or state law, statute, rule or regulation, or
prohibited by a particular provision of this chapter.
(5)
The license fee required by this chapter has not been
paid.
(6)
The applicant has had a sexually oriented business
license, a sexually oriented business manager license or a sexually
oriented business employee license revoked by the City within two
years of the date of the current application.
[Amended 12-18-2001 by Ord. No. 2001-421[1]]
[1]
Editor's Note: This ordinance provided that
it take effect 2-1-2002.
C.
If the license is denied, a temporary license previously
issued is immediately deemed null and void.
A.
Upon the filing of an application for a sexually oriented
business license, the application shall be referred to the Police
Department, Fire Department, Department of Neighborhood and Business
Development and Neighborhood Service Centers for an investigation
to be made for compliance with this chapter and with applicable fire,
building, zoning, property conservation, health and safety codes.
The investigation process shall be completed within 30 days from the
date the completed sexually oriented business application is filed.
After the investigation, the Chief of Police shall issue a license,
unless it is determined that one or more of the following is true:
[Amended 12-18-2001 by Ord. No. 2001-421[1]; 7-15-2008 by Ord. No. 2008-254; 6-16-2009 by Ord. No.
2009-179]
(1)
An applicant has failed to provide information reasonably
necessary for issuance of the license or has falsely answered a question
or request for information on the application form.
(2)
An applicant is under the age of 18 years.
(3)
An applicant has been convicted of a specified criminal
activity.
(4)
The license is to be used for a business prohibited
by local or state law, statute, rule or regulation, or prohibited
by a particular provision of this chapter.
(5)
An applicant has had a sexually oriented business
license, a sexually oriented business manager license or a sexually
oriented business employee license revoked by the City within two
years of the date of the current application.
(6)
The premises to be used for the sexually oriented
business is in violation of applicable fire, zoning, building, property
conservation or health and safety laws and ordinances.
(7)
The license fee required by this chapter has not been
paid.
(8)
An applicant or the proposed establishment is in violation
of or is not in compliance with any of the provisions of this chapter.
[1]
Editor's Note: This ordinance provided that
it take effect 2-1-2002.
A.
Every application for a sexually oriented business
license (whether for a new license or for renewal of an existing license)
shall be accompanied by the following fee:
Floor Space
(square feet)
|
Annual Fee
| |
---|---|---|
Not exceeding 2,400
|
$425
| |
Over 2,400
|
$475
|
[1]
Editor's Note: This ordinance provided an
effective date of 7-1-2008.
B.
Every application for a sexually oriented business
manager license or a sexually oriented business employee license (whether
for a new license or for renewal of an existing license) shall be
accompanied by an annual fee of $40.
[2]
Editor's Note: This ordinance provided an effective date of
7-1-2012.
C.
All license applications and fees shall be submitted
to the City Clerk.
E.
The fee for replacement of a license which has been
lost or destroyed shall be $10.
[Amended 7-15-2008 by Ord. No. 2008-254; 6-16-2009 by Ord. No. 2009-179]
An applicant, licensee or manager shall permit
representatives of the Police Department, Fire Department, Department
of Neighborhood and Business Development and Neighborhood Service
Centers to inspect the premises of a sexually oriented business for
the purpose of ensuring compliance with this chapter and applicable
fire, building, zoning, property conservation, health and safety codes,
prior to its initial opening for business and at any time it is occupied
or open for business.
A.
Each license shall expire on January 31 following
the date of issuance and may be renewed by making application for
renewal at least 30 days and not more than 45 days before the expiration
date. When application for renewal is made less than 30 days before
the expiration date, the expiration of the license will not be affected.
Initial licenses issued in year 2000 may extend until January 31,
2002.
B.
A license granted pursuant to this section shall be
subject to annual renewal unless the Chief of Police finds information
since the last time the license had been approved which would constitute
grounds to deny an initial license application or that there have
been violations of this chapter since the last time the license was
approved or an accumulation of violations within the last two license
years which would be grounds for suspension or revocation of the license.
The renewal of the license shall be subject to the payment of the
renewal fee.
C.
When the Chief of Police denies renewal of a license,
the applicant shall not be issued a license for one year from the
date of denial. This provision shall not apply if the reason for the
denial relates to the business premises or location and all specified
problems have been corrected.
If the investigation reveals cause to believe
that a license or renewal of a license may be denied in accordance
with this chapter, the Chief of Police shall, within 30 days after
a completed application is filed, inform the applicant in writing,
sent by first-class mail to the address provided by the applicant
in the application, of the possible reasons for the denial, and provide
the applicant with 10 days within which to review evidence, respond
in writing and provide documentary evidence to the contrary. The Chief
of Police may extend the time limit for response upon request of the
applicant and for good cause. If no response is made in a timely fashion,
the Chief of Police shall make a final determination within five days
after the expiration of the time to reply. If response is made in
a timely fashion, the Chief of Police shall make a final determination
within five days after the response is received. The final determination
shall be in writing and provide specific reasons for the denial. The
status quo shall be maintained until the final determination is made.
A.
The Chief of Police may suspend a license for a period not to exceed 90 days, after a hearing held in accordance with Chapter 68 of the Municipal Code, if he or she determines that a licensee, manager or employee of a licensee has, within one year, violated or is not in compliance with any section of this chapter.
A.
The Chief of Police may revoke a license, after a hearing held in accordance with Chapter 68 of the Municipal Code, if he or she determines that a licensee, manager or employee of a licensee has violated or is not in compliance with any section of this chapter and the license has been suspended within the preceding 12 months.
B.
The Chief of Police may also revoke a license, after a hearing held in accordance with Chapter 68 of the Municipal Code, if he or she determines that:
(1)
A licensee within two years gave false or misleading
information in the material submitted during the application process;
(2)
A licensee, manager or employee of a licensee has
violated or is not in compliance with any section of this chapter
within one year; or
(3)
There has been an accumulation of violations of this
chapter within two years.
C.
When the Chief of Police revokes a license, the revocation
shall continue for two years, within which time period the licensee
shall not be issued a sexually oriented business license, sexually
oriented business manager license or sexually oriented business employee
license. This provision shall not apply if the reason for the revocation
relates to the business premises or location and all specified problems
have been corrected.
Determinations resulting from a person's background,
or activities at a sexually oriented business, with respect to the
denial, suspension or revocation of a license, which incidentally
burden free expression, shall be no broader than needed to achieve
City goals. The Chief of Police is authorized to issue warning notices
and/or grant conditional licenses as a means of allowing expression
while curbing unwanted activities where violations are found but denial,
suspension or revocation is deemed not justified.
All notices required to be sent by the City
shall be in writing, sent by first-class mail to the address provided
by the applicant in the application.
Upon denial of an application, or denial of
a renewal of a license, or suspension or revocation of any license,
the applicant or licensee may seek prompt judicial review of such
administrative action pursuant to Article 78 of the Civil Practice
Law and Rules. The denial of a renewal of a license, or suspension
or revocation of any license, shall be stayed for a period of 20 days
and, if a proceeding is brought to challenge the administrative action,
throughout the pendency of the proceeding in the trial court. The
administrative action shall be promptly reviewed by the court.
[Amended 2-14-2006 by Ord. No. 2006-22]
A licensee shall not transfer his or her license
to another, nor shall a licensee operate a sexually oriented business
under the authority of a license at any place other than the address
designated in the application.
A.
No person in or on the premises of a sexually oriented
business shall engage in any specified sexual activities.
B.
No person shall appear seminude in or on the premises
of a sexually oriented business unless the person is an employee who,
while seminude, shall be on a stage or platform in the premises which
is at least 18 inches above the immediate floor level and which is
removed at least six feet from the nearest customer.
C.
No person shall appear nude in or on the premises
of a sexually oriented business unless the person is an employee who,
while nude, shall be on a stage or platform in the premises permanently
anchored to the floor at least 18 inches above the floor level of
the areas to which customers have access and separated from the areas
to which customers have access by a continuous permanently affixed
barrier at least three feet in height and located at least six feet
from the areas to which customers have access, which barrier shall
consist of horizontal or vertical members spaced no more than nine
inches apart and no more than nine inches from the floor or the walls
to which it is attached.
D.
No person shall be permitted or allowed to view another
person in a sexually oriented business who is nude or seminude from
within a room or booth in the premises which is not continuously open
and visible to persons in an adjacent public area of the premises,
or from a viewing area that is not at least 150 square feet in size.
E.
No person shall appear nude or seminude, or knowingly
allow another to appear nude or seminude, in an area of a sexually
oriented business which can be viewed from off the premises.
F.
No person in or on the premises of a sexually oriented
business shall, while nude or seminude, touch a customer or the clothing
of a customer.
G.
No employee in or on the premises of a sexually oriented
business shall, while nude or seminude, solicit any compensation or
gratuity from any customer.
H.
No person shall pay or give a gratuity to an employee
in or on the premises of a sexually oriented business by giving the
payment or gratuity to, or placing the payment or gratuity on the
body of, or inside the clothing of, the employee, while the employee
is nude or seminude.
I.
No person shall allow a person under the age of 18
years in or on the premises of a sexually oriented business.
J.
No person shall consume or possess any alcoholic beverage
in or on the premises of a sexually oriented business, other than
an alcoholic beverage legally sold in the sexually oriented business
for on-premises consumption pursuant to the Alcoholic Beverage Control
Law of the State of New York.
K.
No person shall bring any animal, except a guide dog,
hearing dog, service dog or police work dog, in or on the premises
of a sexually oriented business.
L.
Additional regulations relating to adult video viewing booths in sexually oriented businesses are found in § 29-15 of the Municipal Code.
M.
No employee, whether clothed or unclothed, shall sit
in the lap of or lay or lean against a customer and rub his or her
genital or pubic area, or her female breasts, against the customer;
nor, whether clothed or unclothed, allow the customer to touch his
or her genital or pubic area, or her female breasts.
[Amended 12-18-2001 by Ord. No. 2001-421[1]]
[1]
Editor's Note: This ordinance provided that
it take effect 2-1-2002.
A.
No licensee or manager of a sexually oriented business
shall knowingly or through reckless disregard:
(1)
Allow or permit persons to appear or act on the premises of the sexually oriented business in violation of the regulations set forth in § 98-21.
(2)
Allow or permit any building on the premises of the
sexually oriented business to be occupied by more than the number
of persons established by the City as the legal occupancy.
(3)
Allow or permit the possession, use or sale of controlled
substances, marijuana, hypodermic instruments or drug paraphernalia
in or on the licensed premises.
(4)
Allow or permit prostitution in or on the premises
of the sexually oriented business.
(5)
Operate the sexually oriented business without a sexually
oriented business license.
(6)
Allow or permit any specified sexual activities to
occur in or on the premises of the sexually oriented business.
(7)
Allow or permit alcoholic beverages in or on the premises
of the sexually oriented business, other than alcoholic beverages
offered or sold pursuant to an on-premises license issued pursuant
to the Alcoholic Beverage Control Law of the State of New York.
(8)
Allow or permit illegal or excessive consumption of
alcoholic beverages to occur in or on the licensed premises.
(9)
Allow or permit gambling to occur in or on the licensed
premises.
(10)
Allow or permit the premises of the sexually oriented
business to become the focal point for fighting, assaults or other
illegal activities.
(11)
Allow or permit amplified noise in or on the premises of the sexually oriented business in excess of the levels established in § 75-12 of the Municipal Code.
(12)
Allow or permit animals, except guide dogs, hearing
dogs, service dogs or police work dogs, in or on the premises of the
sexually oriented business.
(13)
Allow or permit a sexually oriented business to be
open unless the sexually oriented business license is posted in a
conspicuous place at or near the entrance to the sexually oriented
business so that it may be easily read at any time.
(14)
Allow or permit a sexually oriented business to be
open unless a list of all employees, with managers designated, and
copies of all required sexually oriented business manager and employee
licenses, are secured in the premises of the sexually oriented business
so that they may be immediately retrieved and shown to a police officer
upon demand during all hours that the sexually oriented business is
open.
B.
For purposes of the denial of the renewal of a sexually
oriented business license, or the suspension or revocation of such
a license, the licensee shall be deemed responsible for the actions
of the managers and employees of the sexually oriented business.
A.
No person shall own, operate or maintain a body rub
parlor in the City.
B.
No person shall give a body rub to another person
in the City for compensation.
C.
The prohibitions found in this section shall not apply
to persons engaged in the following activities for which they are
licensed by the State of New York or persons under the direct supervision
and control of such licensed persons:
(1)
Persons engaged in the practice of medicine, nursing,
osteopathy, physiotherapy, chiropractic podiatry or massage.
(2)
The practice of that massage which is customarily
given in barbershops or beauty parlors for the purpose of beautification
by a licensed barber or beauty culturist.
(3)
Persons enrolled in a program of a school or institute
registered by the state to provide training for any of the occupations
enumerated in this section.
(4)
The practice of massage by any person duly employed
as a trainer by an athletic association, club or team, or as a member
of the physical education department of a university, college or school.
(5)
The practice of massage by any person employed by
a corporation or association organized exclusively for the moral or
mental improvement of men, women or children.
No person shall own, operate or maintain a sexual
encounter center in the City.
No person shall own, operate or maintain an
adult hotel or adult motel in the City.
If any section, subsection or clause of this
chapter shall be deemed to be unconstitutional or otherwise invalid,
the validity of the remaining sections, subsections and clauses shall
not be affected.
The provisions of this chapter shall be controlling
in the event of any conflict between the provisions of this chapter
and any other provisions of the Municipal Code.
The Municipal Code Violations Bureau shall hear and determine charges involving violations of this chapter. Any person who violates this chapter shall be subject to the penalties set forth in § 13A-11G of the Municipal Code.