As used in this chapter, the following terms shall have the meanings indicated:
ADULT ARCADE A business enterprise which offers or maintains one or more adult video viewing booths.
ADULT CABARET 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.
ADULT HOTEL or ADULT MOTEL 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.
ADULT MOVIE THEATER 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.
ADULT RETAIL STORE A business enterprise which meets any of the following tests:
A. Offers for sale or rental items from any two of the following categories:
(1) Sexually oriented materials;
(3) Leather goods which are marketed or presented in a context to suggest their use in connection with specified sexual activities.
B. 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.
C. 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.
D. Devotes more than 40% of its stock in trade or sales and display area to sexually oriented materials.
E. 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.
ADULT RETAIL STORE, LIMITED 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:
A. The following items are not also offered for sale:
(2) Leather goods which are marketed or presented in a context to suggest their use in connection with specified sexual activities
B. 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
C. 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.
ADULT VIDEO VIEWING BOOTH 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.
BODY RUB PARLOR 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.
BUSINESS ENTERPRISE Any business or place where, for consideration, goods, merchandise, services or entertainment are offered.
CONSIDERATION The payment of money or the exchange of any item or services of value for:
A. The right to enter the business premises, or any portion thereof;
B. The right to remain on the business premises, or any portion thereof;
C. The right to purchase any item permitting the right to enter, or remain on, the business premises, or any portion thereof.
D. The right to a membership permitting the right to enter, or remain on, the business premises, or any portion thereof; or
E. The right to obtain any services, buy or rent any items or view any entertainment in a sexually oriented business.
CUSTOMER 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.
EMPLOYEE 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.
LICENSEE 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.
MANAGER 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.
MASSAGE ESTABLISHMENT 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.
NUDE 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.
OPERATOR A licensee or any person operating, conducting or maintaining a sexually oriented business.
PERSON An individual, proprietorship, partnership, corporation, association or other legal entity.
PREMISES 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.
[Amended 11-19-2002 by Ord. No. 2002-354]
SEMINUDE 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.
SEXUAL ENCOUNTER CENTER A business enterprise in which a person may view, or may participate in, specified sexual activities.
SEXUALLY ORIENTED BOOKS AND VIDEOS 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.
SEXUALLY ORIENTED BUSINESS 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]
SEXUALLY ORIENTED TOYS AND NOVELTIES 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.
SPECIFIED ANATOMICAL AREAS 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.
SPECIFIED CRIMINAL ACTIVITY 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:
A. 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]
B. For which:
(1) 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;
(2) 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
(3) 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.
C. The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.
SPECIFIED SEXUAL ACTIVITIES 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]
TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS Includes any of the following:
A. The sale, lease, or sublease of the business.
B. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means.
C. 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.
[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.
[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.
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.
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.
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.